State Bank Of India And Ors. vs Gourisankar Chakraborty

[1] This appeal is filed by the State Bank of India to challenge the judgment of the learned Single Judge dated 3rd December, 2019 passed in WP(C) No.46/2015.

[2] Brief facts are as under :

Respondent herein original petitioner was employed by the State Bank of India as a Middle Management Officer Grade Scale - II (M.M.G.S- II). The Bank issued a charge sheet dated 11th May, 2012 to the petitioner alleging that "while you were posted as Deputy Manager of the State Bank of India, Agartala Brach from September, 2009 onwards, you committed some serious irregularities. You fraudulently siphoned-off bank's funds by debiting Bank's BGL accounts and credited to several fictitious accounts apart from your own accounts. Thus, you have defrauded Bank to the tune of Rs.48.14 lacs. You did not discharge your duties with utmost integrity, honesty, devotion and diligence and acted against the interest of the Bank. You have failed to discharge your duties in the desired manner as per Bank's extant norms/instructions and have displayed conduct unbecoming of an officer. Thus you have violated Rule 50(1) and 50(4) of SBI Officers Service Rules which are applicable to you. Statement of imputation of lapses on the basis of which the aforesaid charges are framed are furnished in the attached Annexure II and the list of documents/witnesses on which the Bank would rely upon to prove the charges are given in Annexure - II."

[3] Along with the charge sheet a statement of irregularities/lapses committed by the petitioner when he was posted as a Deputy Manager, State Bank of India, Agartala Branch was annexed. This document contained as many as 18 different allegations. 16 allegations pertained to different instances of defalcation of Bank funds by the petitioner. 17th allegation was that the petitioner had retained several Bank securities in his custody with mala fide intentions and the last allegation was that by above acts he had acted beyond his powers and thus, caused a loss of 48.14 lakhs to the Bank.

[4] At the end of the inquiry, inquiry officer submitted a detailed report holding almost all charges as proved. The disciplinary authority agreed with the findings of the inquiry officer and looking to the gravity of the misconduct committed by the petitioner, he imposed a penalty of dismissal further providing that the period of suspension which the petitioner spent would be treated as not on duty.

[5] The petitioner unsuccessfully challenged the said order of dismissal before the appellate authority but thereafter took no further steps to challenge the same. Thus, the order of dismissal passed by the disciplinary authority achieved finality. The petitioner thereafter filed said WP(C) No.46/2015 and made two prayers. First was, for payment of subsistence allowance at the enhanced rate and the second was, for releasing his various dues such as Contributory Provident Fund, gratuity, leave encashment etc. lying with the Bank as also certain other amounts which were lying with the Bank in the form of fixed deposits. The learned Single Judge by the impugned judgment allowed the petition in part. The Bank was directed to release the amounts lying in the account of the petitioner's Contributory Provident Fund, gratuity, leave salary as well as to release the maturity amount of the 4 fixed deposits of the petitioner and the amounts lying in the petitioner's salary account. The prayer for higher rate of subsistence allowance for the period of suspension was rejected.

[6] Before the learned Single Judge the Bank had contended that the petitioner had caused loss to the tune of Rs.48.14 lakhs to the Bank and the amounts lying in the petitioner's accounts should be utilised for the purpose of recovering this loss. The learned Single Judge rejected this contention primarily on two grounds. First was, that the inquiry officer had recorded that the entire amount in question was lying in different fictitious accounts opened by the petitioner which could be utilised for the purpose of recoveries and that therefore, there was no further need to allow the Bank to access the petitioner's accounts. The second reason cited by the learned Judge was that the service rules governing the officers of the Bank permit the disciplinary authority to order recovery of loss caused to the Bank by negligence or breach of orders by the employee. In the present case, the disciplinary authority consciously confined the punishment to order of dismissal and did not order any recovery of the loss caused to the Bank and that therefore, the Bank now cannot access the petitioner's various amounts such as provident fund, gratuity, leave salary and fixed deposits lying with the Bank for the purpose of recovery.

[7] Having heard learned counsel for the parties and having perused documents on record what emerges is that -

(i) In the departmental inquiry it was held against the petitioner that he had opened different fictitious Bank accounts in which the Bank funds were diverted. The total amount so defalcated by the petitioner came to Rs.48.14 lakhs.

(ii) For such misconduct the petitioner was dismissed from service which dismissal order the petitioner had not challenged in the High Court.

(iii) The inquiry officer in his report, in the context of the petitioner exposing the Bank to the loss of 48.14 lakhs, had come to following conclusions :

"While it is a fact that the man behind all these illegal transactions were none other than Shri Chakraborty, the entire amount (DEx no.3) is available in different accounts of the CSO, his relatives and other fictitious accounts opened for parking of the amounts. Since Bank is in a position to recover the entire amount I consider that Bank will not incur any loss."

(iv) Thus, according to the inquiry officer, though the petitioner was responsible for diversion of Bank funds to the tune of Rs.48.14 lakhs such amount was available in different accounts of the charged-officer i.e. the petitioner, his relatives and in other fictitious accounts opened by him for parking such amounts and that therefore, the Bank would be in a position to recover the entire amount.

(v) Thus, when the disciplinary authority accepted the findings of the inquiry officer, what he agreed to was that the amount of Rs.48.14 lakhs was recoverable from the accounts of the petitioner, those of his relatives and the monies lying in fictitious accounts. This is vitally different from what the learned Single Judge held namely, that the amount was already recovered by the Bank. There is a vital difference between amount being recoverable and the amount already recovered. What the inquiry officer referred to and what the disciplinary authority accepted was that the Bank still had control over various accounts of the petitioner, his family members and fictitious accounts from where a total of Rs.48.14 lakhs could be recovered. The learned Single Judge, in our opinion, construed these findings as to mean that the amount was already recovered and that therefore, there cannot be any further recovery from the petitioner's dues such as provident fund, gratuity, leave encashment and fixed deposits etc.

(vi) Yet another vital aspect of the matter which was not placed before the learned Single Judge either by the petitioner or the Bank is a letter written by the petitioner to the Bank on 30th December, 2010. In this letter, the petitioner in unequivocal terms admitted to his guilt and authorized the Bank to recover entire amount diverted by him in various accounts. He apologised to the Bank and requested for leniency.

[8] Rue 67 of the State Bank of India Officers' Service Rules, 1992 (hereinafter to be referred to as the "said Rules") pertains to penalties. The minor penalties include recovery from pay or such other amount as may be due to an employee of the whole or part of the pecuniary loss caused to the Bank by negligence or breach of orders. The major penalties include compulsory retirement, removal, dismissal and others. The learned Single Judge is absolutely correct in pointing out that in normal circumstances the Bank cannot cause recoveries from the dues of an employee of any alleged loss caused to the Bank by the employee without passing an order in this respect. This has to be preceded by imposition of penalty under Rule 67. Unless and until of course the Bank takes recourse to any recovery proceedings in a Court of law, the Bank cannot unilaterally come to the conclusion that the employee had been guilty of negligence or breach of order and on account of which certain loss was caused to the Bank. The learned Single Judge is also correct in noticing that in the present case, when the Bank proceeded against the petitioner departmentally only penalty imposed was of dismissal without providing for recovery of the loss caused to the Bank. However, what was not pointed out to the learned Judge was the declaration made by the petitioner before the Bank under letter dated 30th December, 2010 admitting his acts of deceit and permitting the Bank to recover the loss from his accounts. It was perhaps because of this reason that the disciplinary authority did not pass an independent order, besides dismissal, providing for recovery of the loss caused to the Bank from the accounts of the petitioner. This letter dated 30.12.2010 was not part of the writ petition compilation but has been brought on record by the Bank in this Writ appeal with the permission of the Court and the petitioner has not disputed contents of this letter.

[9] The culmination of this discussion would be that the Bank is free to recover the sum of Rs.48.14 lakhs from the petitioner however no further sum can be withheld. Since the Bank has retained such sums, the recovery would be without interest. If there is any amount in excess of 48.14 lakhs, the petitioner must receive the same from the Bank with interest. It is clarified that such recoveries should first be made from the fictitious accounts to the extent amounts may be available in such accounts. Thereafter the recoveries may be made from the petitioner's various claims with the Bank such as leave encashment, fixed deposits etc. and that of the petitioner's relatives. After recovering a total sum of Rs.48.14 lakhs from such sources, if there is any excess, the same shall be paid over to the petitioner with simple interest @ 7% per annum from the date such amounts became due and payable till actual payment. The Bank shall compute such amounts recoverable from the different accounts and the rest if any, would be paid over to the petitioner and communicate the same to the petitioner along with the computation of such amounts. Entire exercise shall be completed within 3(three) months form today.

[10] With these observations and directions judgment of the learned Single Judge is modified. Appeal is disposed of accordingly. Pending application(s), if any, also stands disposed of.