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2022 (1) TMI 1347 - SUPREME COURTComplicity of charges - Failure to discharge the duty to maintain the subsidy register - depositing subsidy in the account of twelve fictitious beneficiaries - Misappropriation of the entire loan and subsidy amount in connivance with Sri Subhendu Kumar Das and Sri Madan Mohan Saha - Charge relating to removal of documents - Transferring amounts through three demand drafts from the account of Sri Madan Mohan Saha to Joint S.S. Account of Sri Haradhan Bera on 28.06.94 - It is argued on behalf of the bank that the High Court re-appreciated the evidence and altered the finding on facts of the disciplinary authority on the ground of insufficiency of evidence. Failure to discharge the duty to maintain the subsidy register - HELD THAT:- MW 1, the management witness, who deposed about the procedure in the bank, for recording entries in the subsidy register, clearly stated that at the relevant time, some entries were made by the Respondent, and some by Sri Madan Mohan Saha, who "used to maintain the subsidy register on most occasions." He also deposed that it was Sri Madan Mohan Saha's duty as the cashier to maintain the subsidy register. Saha failed to discharge that duty. In view of this evidence, and no contrary documentary evidence casting the primary responsibility to maintain the subsidy register on the Respondent, the impugned judgment, in this Court's opinion, cannot be faulted with in concluding that there was no material to prove the first charge against the employee. Depositing subsidy in the account of twelve fictitious beneficiaries - HELD RHAT:- The enquiry officer did not Rule on this. The impugned judgment concluded that in the absence of proof of Sri Haradhan Bera's identity, and any independent material, with respect to the seven alleged beneficiaries, their identity was not independently proved. Additionally, there had to be some material, linking the employee (Respondent) with the applications, introducing the borrowers, etc. MW-1, the subsequent manager, clearly deposed in reply to a query (question No. 8) as to who used to "identify the borrowers" before sanction and disbursement of IRDP loans, that the "Pradhan/Member of Gram Panchayat" used to identify the beneficiaries. Such being the case, the involvement of the Respondent employee had to be shown by more definitive evidence. It is again a matter of record, that the then Pradhan of the Gram Panchayat, Sri Subhendu Kumar Das, identified the borrowers. In these circumstances, even in departmental proceedings, there had to be some overt evidence, and not mere suspicion, to support a valid finding of complicity of the Respondent. In these circumstances, the impugned judgment cannot be faulted with in its findings on the second charge. Misappropriation of the entire loan and subsidy amount in connivance with Sri Subhendu Kumar Das and Sri Madan Mohan Saha - HELD THAT:- In the present case, the confessional statement was not by the Respondent. Those who authored the confession, did not depose in the enquiry. Furthermore, no witness who heard the authors of the confession, deposed to it. At best then, that document bound the authors, not third parties, like the Respondent. The enquiry officer clearly erred by relying on such extraneous matters, as the Respondent could not be made a scapegoat for the confession of others, especially with regard to his role. The bank's charge about his complicity had to be proved by evidence. This document, containing others' confession, could not have been used against him. Charge relating to removal of documents - HELD THAT:- There was no evidence to show that the Respondent had removed the documents, from the bank. Importantly, he was charged seven years after the alleged incident; by that time other managers had taken over the branch. Transferring amounts through three demand drafts from the account of Sri Madan Mohan Saha to Joint S.S. Account of Sri Haradhan Bera on 28.06.94 - HELD THAT:- The enquiry officer noted that, "Sri Haradhan Bera in his evidence avoided the matter for some reasons best known to him." In the absence of any other material, the finding that the amounts had been misappropriated by the Respondent, who in connivance with Sri Madan Mohan Saha, and Sri Subhendu Kumar Das, ensured that the loan component was returned to the bank, cannot be said to have been established. An interesting side is this-Sri Madan Mohan Saha, who confessed to the misconduct, was charged and proceeded with departmentally. The confession of guilt, which he owned up to, nevertheless resulted in a mild penalty of withholding of increments. However, the Respondent, who did not admit his guilt, or confess to it, and in respect of whom there was no credible evidence, even going by the lower standards of acceptable proof in departmental inquires, was held to be guilty and visited with the penalty of dismissal. A reading of the disciplinary authority's order reveals that his past record of minor misconduct played a major role in determining his guilt, despite lack of evidence, and the extreme penalty of dismissal. The impugned judgment cannot be faulted with. The appeal is unmerited.
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