Quashed

Preeti Sahay v. Bank of India and Ors.

Jharkhand HC9 Jul 2019WPC/3343/2012

Case brief

AI extract

What is this about?

The High Court quashed a bank employee's compulsory retirement order and remitted the matter, finding insufficient proof of moral turpitude or personal use of misappropriated cash. The Court directed the bank to release deceased employee's retiral dues to his widow and pass a fresh order.

What did the court decide?

The impugned orders dated 18.04.2011 and 12.04.2012 are quashed and remanded to the Zonal Manager, Bank of India, to pass a fresh order. The Bank is directed to release the admitted retiral dues to th

Preeti Sahay Vs Bank of India and Ors. — Pension and Retirement Benefits | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3343 of 2012

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Preeti Sahay, wife of Late Manoj Kumar Sahay, resident of Sheo Dayal Nagar, Ram Nagar, PO- Kadma, PS- Pelawal, District- Hazaribagh

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... … Petitioner

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Versus

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Bank of India through its Chairman-cum-Managing Director, Mumbai

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Zonal Manager, Bank of India, Hazaribagh Zone, Hazaribagh

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Assistant Zonal Manager, Bank of India, Hazaribagh

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… … Respondents

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CORAM: - HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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----- For the Petitioner : Mr. Saurabh Shekhar, Advocate Mr. Rishi Raj Verma, Advocate For the Respondent-BoI : Mr. A. Allam, Sr. Advocate Mr. Fahad Allam, Advocate

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Order No.-07 : Dated 9^th July, 2019 Per Sanjay Kumar Dwivedi, J.

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Heard Mr. Saurabh Shekhar, the learned counsel appearing for the petitioner and Mr. A. Allam, the learned Senior Counsel for the respondent-Bank of India.

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2. I.A. No. 1556 of 2013 has been filed for payment of the admitted retiral dues. The original petitioner-Manoj Kumar Sahay died on 11.06.2014, during pendency of this writ petition and thereafter, his wife (the present petitioner) being legal heir has been substituted in this writ petition.

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3. This writ petition has been preferred for quashing the order dated 18.04.2011, whereby the original petitioner has been punished with compulsory retirement with superannuation benefits and also to quash the appellate order dated 12.04.2012 by which the punishment order dated 18.04.2011 has been confirmed.

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4. The learned counsel appearing for the petitioner submits that the original petitioner- Manoj Kumar Sahay joined his service under Clerical Cadre under the respondents-Bank of India and thereafter he was discharging his duties to the utmost satisfaction of the superiors of the Bank. The original petitioner while was posted as Cash-cum-Clerk Accounts at Hazaribagh Branch, one memo of charge was issued on 14.05.2010 alleging therein as under:

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“1.(a) On 06.05.2009, you were deputed along with cash team consisting of Shri Nowel Tirkey, StaffSubordinate/Armed Guard, Smt. Sati Devi, StaffSubordinate and Shri Mahesh Goswami, StaffSubordinate/Driver, to lift cash from Barhi Branch and lodged Rs.20.00 lakh and Rs.8.00 lakh respectively to Barkatha Branch and Mandu Branch. After lodging the cash to both branches, on the same day, Mandu Branch returned a packet, containing 100 notes of Rs.1000/- denomination amounting to Rs.1,00,000/along with Special Collection Schedule No. 0564498 dated 06.05.2009 for Rs.1,00,000/- on Barhi Branch. The said packet was received by you by signing on the reverse of the debit voucher dated 06.05.2009 for Rs.1,00,000/-.

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(b) You misappropriated said cash of Rs. One Lacs by retaining the same with yourself and without lodging with Barhi Branch nor you deposited it with Hazaribag Branch on 06.05.2009 on your return before the cash at Hazaribagh branch was closed. Even you were present at the Branch on 07.05.2009 and 08.05.2009 and resumed your duties on 27.05.2009 after availing leave but not deposited the cash.

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(c) You gave the said SCS No. 0564498 dated 06.05.2009 for Rs.1,00,000/- received from Mandu Branch to Barhi Brnach on 30.05.2009 and misrepresented that the cash of Rs.1,00,000/- is already in the box with you. Subsequently, when Barhi Branch handed over you cash of Rs.9,00,000/- along with SCS No. 0894933 dated 30.05.2009 for Rs.10,00,000/- on Garikalan Branch, you lodged only Rs.9,00,000/at Garikalan Branch as against Rs.10,00,000/- and retained the relevant SCS with the advice to raise credit note for Rs.9,00,000/- on Barhi Branch. It is only on receipt of Credit Note No. 554983 dated 30.05.2009 of Rs.9,00,000/- by Barhi Branch it was revealed that you not only misappropriated the Bank’s funds but to cover up your misdeeds also misrepresented the facts to the Bank’s officials and thereby acted to the detriment of Bank’s interest.

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(2) Thus, your above acts, amounts to “gross misconduct” under Clause 5(j) of Bipartite Settlement dated 10.04.2002, which reads as under:

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“Doing any act prejudicial to the interest of the Bank or gross negligence or negligence involving or likely to involve the Bank in serious loss.”

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5. Thereafter, a departmental inquiry was conducted and the original petitioner appeared in that inquiry and filed his reply denying the entire allegations stating therein that he has committed no misconduct as has been alleged. The original petitioner has specifically stated in his defence reply that he could not deposit the amount in

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question due to the reason that on 07.05.2009 and 08.05.2009, he had not come to the Bank at about 10:00 a.m., rather in the very morning on 07.05.2009 and 08.05.2009, he had rushed to the other Bank for handing over the cash for its public dealing since he was in-charge of the Chest and his duty was to carry the cash for disbursal to various branches for day-to-day functioning of the various Branches. He has also stated that due to said reason, the amount of Rs. One Lakh was in his possession on 06.05.2009, but he was not able to disburse the same on 07.05.2009 and 08.05.2009. It is also stated that on 09.05.2009, since the original petitioner fell ill all of a sudden, he had to take leave from 09.05.2009 and he remained on leave till 27.05.2009 and hence, the amount in question could not be deposited till 27.05.2009 and after resuming his duty, he deposited the said amount on 01.06.2009.

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6. Mr. Saurabh Shekhar, the learned counsel appearing for the petitioner, assailed the impugned order on the ground that the order of compulsory retirement has been passed holding that there is misrepresentation by the original petitioner and the compulsory retirement order is by way of punishment. He further submits that in view of the disciplinary action and procedure of the Bank, the said punishment is not prescribed either under Rule 17.5 or 17.6 of the Discipline and Appeal Rules and in spite of that the impugned order has been passed. He further submits that the petitioner is concerned as the compulsory retirement order has been inflicted taking into account of moral turpitude, rather the original petitioner has got no intention of any moral turpitude as the amount in question has been kept intact in the sealed cover. He further submits that on record of inquiry, the original petitioner deposited the same currency notes packet with the Deputy Zonal Manager of the Zone on return from Vellore after treatment. He further submits that on record of inquiry, it transpires that currency notes packet was in his custody and the original petitioner never put it for personal use as the currency notes packet was handed over to the Bank authorities. He further submits that the impugned orders also cannot sustain in law as the punishment order as well as the appellate order have been passed by the same

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authority that is, the Zonal Manager, who is the architect of both the orders. As such, the impugned orders are liable to be quashed. He further submits that the loss of confidence has not been proved in this case as the original petitioner has deposited the cash in question in the same currency notes. He further submits that the Inquiry Officer has not taken into consideration the medical certificates produced by the original petitioner and there is no finding on that point as to whether the original petitioner was on leave due to his ailment. The learned counsel for the petitioner puts reliance on the judgment of the Hon’ble Supreme Court rendered in the case of “Vijay Singh Vs. State of Uttar Pradesh & Ors.” reported in (2012) 5 SCC 242 particularly paragraph-18 wherein it has been held as under:

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“18. The present case shows dealing with the most serious issues without any seriousness and sincerity. Integrity means soundness of moral principle or character, fidelity, honesty, free from every biasing or corrupting influence or motive and a character of uncorrupted virtue. It is synonymous with probity, purity, uprightness, rectitude, sinlessness and sincerity. The charge of negligence, inadvertence or unintentional acts would not culminate into the case of doubtful integrity. ”

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7 . The learned counsel for the petitioner further submits that integrity means soundness of moral principle or character, fidelity, honesty, free from every biasing or corrupting influence or motive. Integrity is synonymous with probity, purity, uprightness, rectitude, sinlessness and sincerity. On the strength of this judgment, he submits that doubtful integrity of the original petitioner has not been proved in the inquiry, whereas punishment order has been passed by way of taking into account that the original petitioner is guilty of not depositing the amount in question.

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8 . On the other hand, Mr. A. Allam, the learned Senior Counsel for the respondent-Bank, submits that in the inquiry report, it has been proved that the original petitioner did not deposit the amount in question on time and only after query from the Bank, he deposited the said amount in the Bank. He further submits that there are catena of decisions in this regard that if the integrity is doubtful, compulsory retirement is the right punishment. It is also submitted

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that the respondent-authorities have taken a lenient view in the matter and in spite of dismissing the original petitioner, they have passed the order of compulsory retirement with benefit of retiral dues. The learned Senior Counsel for the respondent-Bank relied on the judgment of the Hon’ble Supreme Court rendered in the case of “Union of India & Ors. Vs. P. Gunasekaran” reported in AIR 2015 SC 545 and on the strength of this judgment, he submits that the High Court, in exercise of its powers under Article 226 of the Constitution of India, shall not venture into re-appreciation of the evidence.

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9. Having heard the learned counsel for the parties, this Court finds that the original petitioner deposited the amount in question in the same currency notes packet with the Deputy Zonal Manager of the Zone on return from Vellore after treatment. There is no concrete finding either on the part of the disciplinary authority or the appellate authority or the inquiry officer that the original petitioner was absent due to ailment during that period. There is also no finding that the original petitioner has deposited the same currency notes packet and he has not utilized the amount for his personal use. It cannot be said that the conduct of the original petitioner was intentional in not depositing the same, rather he has deposited the same currency notes packet before the Bank. The order of compulsory retirement has been passed by way of punishment or moral turpitude and the moral turpitude has been considered in the case of “Vijay Singh” (supra), wherein the Hon’ble Supreme Court held that it shows dealing with the most serious issues without any seriousness and sincerity. Integrity means soundness of moral principle or character, fidelity, honesty, free from every biasing or corrupting influence or motive and a character of uncorrupted virtue. It is synonymous with probity, purity, uprightness, rectitude, sinlessness and sincerity. The charge of negligence, inadvertence or unintentional acts would not culminate into the case of doubtful integrity. As such in this case, the doubtful integrity of the original petitioner has not been proved and in spite of that, the punishment order has been passed showing that the original petitioner is guilty of not depositing the aforesaid amount.

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10. As a cumulative effect of the facts discussed hereinabove, the impugned orders dated 18.04.2011 and 12.04.2012 cannot sustain in the eye of law and the same are accordingly quashed. This Court also finds that the punishment order is not proportionate to the charge. Accordingly, the matter is remitted back to the respondent no. 2 –Zonal Manager, Bank of India, Hazaribagh Zone, Hazaribagh, who will pass a fresh order taking into account the observation made hereinabove. Since the original petitioner has already died, it is expected that the respondent-Bank will release the admitted retiral dues in favour of the widow of the deceased within eight weeks from the date of receipt/production of a copy of this order. 11 . With the above observations/directions, the writ petition is disposed of.

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(Sanjay Kumar Dwivedi, J.)

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Manish/Ritesh

Preeti Sahay v. Bank of India and Ors.

Case brief

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Preeti Sahay v. Bank of India and Ors.

Case brief

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