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IN THE HIGH COURT OF CALCUTTA
Saugata Bhattacharyya, J.
Avik Kumar Sinharay - Appellant
Versus
Punjab National Bank And Others - Respondent
WPO/52/2019 & IA NO: GA/1/2019( Old No:GA/1981/2019)
Decided On : 08-06-2022
Whistle Blower Policy - Disciplinary Proceedings - Banking Regulation Act, 1949 - [Whistle Blower Policy] - [Disciplinary Proceedings] - [Banking Regulation Act, 1949, Section 35 A (1)] - The court set aside the report of the enquiry officer, the order of dismissal, and the order of the appellate authority. The respondent bank was directed to reinstate the petitioner with 50% back-wages from the date of dismissal till the date of reinstatement.
Fact of the Case:
The petitioner, a Senior Manager (IT) of a bank, was dismissed from service based on charges including unauthorized access to the bank's data server, creation of a fake email ID, and unauthorized entry into the office premises. The petitioner had lodged a complaint under the Whistle Blower Policy, which led to his suspension and subsequent dismissal. The petitioner challenged the charge-sheet, enquiry report, and dismissal order, alleging bias and administrative malice by the bank authorities.
Finding of the Court:
The court found that the findings of the enquiry officer were erroneous and lacked reasoning. It concluded that the disciplinary authority, enquiry officer, and appellate authority had failed in their duties, resulting in a miscarriage of justice. The court also considered the order of discharge from a criminal case, which had similar allegations, and directed the bank to reinstate the petitioner with back-wages.
Issues: The issues included the validity of the charges against the petitioner, the fairness of the enquiry proceedings, and the impact of the order of discharge from the criminal case on the disciplinary proceedings.
Ratio Decidendi: The court can interfere with the decision of the disciplinary authority when findings are unsupported by evidence or suffer from perversity. The court also considered the similarity of charges in the criminal case and the disciplinary proceedings, leading to the reinstatement of the petitioner.
Final Decision: The court set aside the report of the enquiry officer, the order of dismissal, and the order of the appellate authority. The respondent bank was directed to reinstate the petitioner with 50% back-wages from the date of his dismissal from service till the date of reinstatement.
JUDGMENT
Saugata Bhattacharyya, J. - The present writ petition is directed against the final order of punishment dated 30th December, 2017 issued against the petitioner who is a Senior Manager (IT) of Punjab National Bank, formerly United Bank of India, (hereinafter referred to as the 'said bank'), whereby the petitioner has been dismissed from service which shall be considered as disqualification for a future employment. The order of dismissal dated 30th December, 2017 was questioned before the appellate authority of the said bank and the appeal was dismissed by the appellate authority vide order dated 16th August, 2018 confirming the original order passed in the disciplinary proceeding. In the writ petition petitioner has thrown challenge to the charge-sheet dated 27th January, 2017, enquiry report dated 15th November, 2017 as well as order of dismissal dated 30th December, 2017 and the order of the appellate authority dated 16th August, 2018.
2. While petitioner was working as Senior Manager (IT), he was sent on deputation to Bangiya Gramin Vikash Bank (hereinafter referred to as 'BGVB') being regional rural bank sponsored by the said bank on 10th August, 2015. While working in BGVB according to the petitioner he lodged complaint on 4th April, 2016 under Whistle Blower Policy of the bank to draw attention of the vigilance authorities on bank loans fraud while sanctioning credit by some of the staff and officials of the said bank as submitted by Mr. Soumya Majumdar, learned advocate representing the petitioner. One of the officials named in such Whistle Blower complaint is respondent no.5 in the writ petition who is General Manager (HR) of the said bank. According to the petitioner such complaint dated 4th April, 2016 was made in order to purge the ongoing malpractices continuing in credit operation and loan monitoring department of the said bank which drew the petitioner to the wrath of the management of the bank resulting in suspension order of the petitioner on 30th July, 2016 followed by charge- sheet on 27th January, 2017 containing following charges:-
'During your tenure of service as sr. Manager-IT, Head Office and on deputation to Bangiya Gramin Vikash Bank, Head Office from 10.08.2015 till date, you had failed to maintain sanctity of Bank's information and secrecy about affairs including financial activities of the Bank and thereby failed to take all possible steps to ensure and protect the interest of the Bank and discharge your duties with utmost integrity, devotion and diligence in contravention of Regulations 3(1), 3(2), 3(3), 3(4), 7(2) and Regulation 4 of United Bank of India Officer Employees' (Conduct) Regulations, 1976 amounting to misconduct in terms of Regulation 24 of the said Regulations, you have committed the under mentioned irregular acts.
1) You have accessed to Bank's data Server/System Network without the consent of the authority and stolen the electronic data and information of the Bank and used the same dishonestly to cause harm to the reputation of the Bank.
2) You have created a fake e-mail Id in the name and title of Joy Shankar Bhattacharya and also used the name and e-mail Id for sending insinuatory and derogatory allegations against Bank Officials.
3) You have entered the office premises on 18.06.2016 at 8.45 A.M. which is unusual compared to your regular attendance time and were instrumental in changing the Central Processing Unit (CPU) of the computer set allotted to Sri. Saibal Routh, Manager with that allotted to you. Incidentally the house of your in-laws were searched on 17.06.2016 and some hard disk and router were seized by police authorities.'
3. The petitioner replied to such charge-sheet vide letter dated 14th February, 2017 denying the charges levelled against him. The disciplinary authority having found such reply being unsatisfactory initiated the enquiry proceeding pursuant to such charge-sheet dated 27th January, 2017. Enquiry was held on several dates in the month of September 20
The court can interfere with the decision of the disciplinary authority when findings are unsupported by evidence or suffer from perversity. The court also considered the similarity of charges in the....
Distinct allegations against employee charged in the same transaction would be justified being based on a valid classification and no perversity or arbitrariness can be alleged in the process.
The responsibility of the employee to maintain trust and the principles of natural justice were central to the court's decision.
The Disciplinary Authority can order further enquiry only if serious defects exist in the initial enquiry; it cannot do so after a finding of exoneration.
The court upheld the disciplinary proceedings and the penalty imposed, but modified the penalty from removal from service to compulsory retirement, considering the nature of the petitioner's role and....
Removal from Service - Committed irregularities - Procedure for imposing major penalties - Power of judicial review available to High Court as also to this Court under Constitution takes in its strid....
Disciplinary dismissal based on financial misconduct was set aside due to lack of fair process and the employee's prior acquittal in criminal proceedings regarding identical charges.
The court emphasized the importance of procedural fairness and parity in disciplinary actions, reducing the punishment from dismissal to withholding increments.
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