Niranjan Prasad vs Central Bank Of India And Ors

Heard leaned counsel for the petitioner as well as leaned counsel for respondents no. 1 to 6.

At the very outset, it is submitted by the counsel for the petitioner that during pendency of the writ petition the petitioner has crossed the age of

superannuation on 31.1.2016 and as of today, the writ petition is relevant in view of the stigma attached to the petitioner by way of awarding him

punishment of compulsory superannuation vide order dated 10.12.2004 (Annexure 5), passed by the Disciplinary authority (respondent no.5) and the

appellate order dated 2.8.2005, contained in Annexure 7, passed by respondent no.4.

The pleadings and undisputed facts of the case are that the charge memo dated 30.9.2003 (Annexure 1) came to be served upon the petitioner in

relation to some allegations for a period when he was working as Computer Terminal Operator (C.T.O.) in the Boring Road branch of the Central

Bank of India. The charge sheet distinctly makes out charge that the petitioner had scanned a fake signature of the account holder to facilitate

fraudulent withdrawals of total sum of Rs. 38,800/- on five different dates, details of which are given in the charge memo. There are three distinct

ingredients of the said charge. One relating to the scanning being done on 20.11.2002, being the date of first fraudulent withdrawal of Rs.5000/-, the

second is relating to processing/posting of the withdrawal slips on five different dates being 20.11.2002, 22.11.2002, 25.11.2002, 28.11.2002 &

30.11.2002. In respect of processing done on two of the said dates, it is said in the charge memo that he got other two withdrawals posted by other

staff members; and lastly the third is relating to destroying all the five withdrawal slips on the basis of which fraudulent withdrawals had been done.

Charge no.2 in the charge memo is of unauthorisedly operating the Computer System by logging into it on 28.12.2002 and 29.1.2003 with ulterior

motives after getting transferred from Boring Road Branch. Petitioner logged into the system on 28.12.2002 from 12:50:41 hours to 12:52:04 hours and

on 29.1.2003 from 13:53:55 hours to 14:00:56 hours. The above acts of the petitioner are prejudicial to the interest of the bank after his transfer from

the Boring Road branch to the Zonal office, Patna. The charge sheet merely states that the petitioner’s act is prejudicial to the interest of the

bank, but the same does not disclose what is the actual prejudice or whether logging into the system per se constitutes misconduct when no

consequence of the logging in has been alleged.

Short point raised by learned counsel for the petitioner is that in respect of the first charge relating to scanning of fake signature of the deceased

account holder, the management seems to have relied upon Management exhibit (MEX) 7, which is a report submitted by the expert of the Computer

M/s Nellito Systems Ltd. Sri Jitendra Kumar (Computer Engineer). It is submitted that from the said report it is evident that the alleged forged

signature of the deceased account holder was scanned under Code No. C0004 which was allotted to petitioner and was obliterated under Code No.

BM 005 which was allotted to Manager Manoj Kumar, Defence exhibit (DEX) 1).

Other than the said report (MEX 7) about scanning of signature, none of the witness has ever said that they have seen the CSE/the petitioner

scanning the signature on 20.11.2002. Learned counsel has submitted that one Mr. D.P.Sinha, Senior Internal Auditor who enquired and submitted his

Audit report about the alleged fraud has stated in the Audit report that the system developed by M/s Nellito Systems Ltd., is defective and passwords

do not remain confidential and it is possible that any other person with vested interest can misuse the user code and password of any other staff for

ulterior reason. In this background, it is submitted by the learned counsel for the petitioner that the examination of Sri Jitendra Kumar (Computer

Engineer), was essential as he had submitted/signed the report (MEX 7) regarding petitioner’s involvement, he has not been produced before the

Enquiry officer, even though his testimony was of great consequence to the allegations made against the petitioner. The petitioner, in paragraphs 9 and

10 of his written argument dated 30.8.2004 before the Enquiry officer, has specifically raised this issue.

Respondent bank, on the other hand, has relied upon the deposition of the management witness MW 1 Sri Bijay Kumar, Assistant Manager, who

has deposed in relation to the said report submitted by Mr. Jitendra Kuamr (Computer Engineer) and read the contents of the said report in the

proceedings. By examining MW 1, respondent bank states that the report supports the allegation and there is sufficient compliance of the Principle of

Natural justice as MW 1 has reiterated the report (MEX 7) i.e., the report submitted by another person, namely, Mr. Jitendra Kumar (Computer

Engineer). It is submitted that since the said report indicates that User Code No. C0004 of the petitioner was used for scanning the fake signature of

the deceased account holder, the charge has sufficiently been established in the proceeding. As regards the allegation regarding two withdrawals,

namely, 2nd and 4th withdrawal being made by other employees of the branch, namely, Mr. Irshad Ahmad and Smt. Poonam Rani, allegations itself

are that said two withdrawals made on 22.11.2002 and 28.11.2002 were by other staff but the petitioner has been made responsible for the said

withdrawals due to the reason that they were passed on the basis of scanned signature. The third allegation of destroying all the five withdrawal slips

by relying on the statement of management witnesses, namely, MW 2 that only interested persons would destroy the withdrawal slips, charge has

been found to be proved against the petitioner.

Having examined the counter affidavit filed by the bank, one thing becomes clear that the report (MEX 7) of Mr. Jitendra Kumar (Computer

Engineer), who has never been examined in the proceeding, has been made the basis of establishing petitioner’s guilt in the proceeding. Besides,

the report of Mr. D.P.Sinha, Senior Internal Auditor who stated that the Nellito System is defective and passwords do not remain confidential, has not

been examined in the proceedings. Therefore, from the proceedings it is evident that none has appeared and supported the report (MEX 7) submitted

by Mr. Jitendra Kumar (Computer Engineer).

This Court is conscious of the fact that the technical rules of the evidence do not apply in the case of departmental proceedings but nonetheless the

charges must be established with reference to materials available on record. At least author of the documents which are being placed on record to

substantiate the guilt against the petitioner should have been examined in the enquiry. This has not been done in the instant case. What would have

been the outcome of examination of Mr. D.P.Sinha, Senior Internal Auditor as also Mr. Jitendra Kumar (Computer Engineer), author of the report

(MEX 7) cannot be visualized. Their non examination has prejudiced the case of the petitioner in the proceedings and in absence of their examination,

deparatmental proceedings cannot be said to have been conducted fairly in accordance with the Principle of Natural justice. In this connection, this

Court would refer to a decision rendered in case of Hardwari Lal vs State Of U.P. & Ors reported in (1999) 8 SCC 58.2 Paragraph of the said

judgment is reproduced herein for easy reference:-.

“Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri

Virender Singh, and witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant

that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to

whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So

also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to

prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-

examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal

erred in not attaching importance to this contention of the appellant.â€​

As noticed above, there is nothing on record to support the findings regarding the petitioner destroying the withdrawal slips. To bring home the

ingredients of the charges that all the five withdrawal slips were processed by the petitioner, no evidence has been referred in the charge memo. In

such circumstances, the findings with respect to the petitioner’s responsibility in respect of five withdrawals is unsustainable. As regards Charge

no.2 one defence witness DW 1 has deposed in the proceedings that he is a close friend of the CSE/the petitioner and on 28.12.2002 and 29.1.2003 he

had visited the Boring Road Branch along with him. DW 1 further deposed that he came to withdraw the salary and the CSE had come for

disbursement of a loan and CSE was with him throughout on the said two dates when he (CSE/the petitioner) had visited the branch. The said

statement of DW 1 has not been considered by the Enquiry officer. On the contrary, findings of guilt have been recorded on the basis of surmises and

conjectures.

In view of the facts as noted above, it is clear that the findings of the Enquiry officer are perverse, rather based on no evidence. The conclusion of

the enquiry report dated 20.9.2004 (Annexure 2) is therefore quashed. In view of quashing of the findings of the enquiry report, further conclusion of

the Disciplinary Authority (respondent no.5) as contained in order dated 10.12.2004 (Annexure 5) as also the appellate order dated 2.8.2005

(Annexure 7) also fail as being based on no evidence and being in violation of the Principles of Natural justice. Since, the counsel for the petitioner at

the very outset, has stated that the instant issue is an issue of stigma, no further direction need be passed.

The writ petition is allowed to the extent indicated above.