Central Bank of India & ANR. Vs. Nripendra Nath Sarkar  INSC
900 (13 May
CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO. 3544 OF 2008 (Arising out of SLP (C) No. 20242 of 2007) Central Bank
of India & Another .. Appellants Versus Nripendra Nath Sarkar .. Respondent
Dalveer Bhandari, J.
This appeal is directed against
the judgment dated 20.8.2007 passed by the High Court of Calcutta in APOT
No.363 of 2007.
Brief facts which are necessary to
dispose of this appeal are as under:- 1 The respondent was working as a Clerk
with the appellant-Bank at Calcutta. The respondent was issued a charge-sheet for short
deposit of Rs.36,990.53. An enquiry was instituted against him and he was found
guilty and consequently he was dismissed from service.
The respondent aggrieved by the
order of dismissal preferred a writ petition under Article 226 of the
Constitution before the High Court.
The learned Single Judge came to
the conclusion that the enquiry officer was biased and the proceedings were conducted
in a manner prejudicial to the interest of the delinquent respondent. The
entire proceedings except the charge-sheet were quashed. The appellants herein
were granted an opportunity to proceed with the matter de novo on the same
The appeal filed against the
aforesaid judgment was dismissed by the Appellate Court with slight
modification 2 of the order affirming the decision of the learned Single Judge.
The appellant-Bank proceeded
against the respondent de novo appointing an enquiry officer. The second
enquiry ultimately revealed that there has been a loss to the bank to the tune
of Rs.9,662.46 only and not Rs.36,990.53. The enquiry officer held that the
charges have been proved. The learned Single Judge observed that the respondent
was served with a copy of the enquiry report. The respondent filed detailed
explanation against the enquiry report. However, the second show cause notice
was issued by the appellant-Bank again proposing punishment of dismissal from
The respondent filed the second
writ petition which came up for hearing before the learned Single Judge who
granted liberty to the appellant-Bank to proceed with the dismissal proceedings
and to pass a final order. The respondent was again dismissed from service. On
3 perusal of the said dismissal order, the learned Single Judge found a number
of infirmities in the order.
The court observed that the
disciplinary authority without dealing with the issues raised by the respondent
rejected the contentions by observing them as `irrelevant'. According to the
disciplinary authority, the explanation offered by the respondent on enquiry
report was not satisfactory.
The learned Single Judge on the
basis of the observations made in the earlier judgment as well as the second
enquiry report came to the conclusion that the original charge of defalcation
of Rs.36,990.53 had been whittled down to Rs.9,662.46. Thus, it has been
observed that there has been a dilution of the charge to a substantial extent.
The learned Single Judge observed that it might be possible that if there was a
third enquiry formed the amount might have been lesser. This according to the
learned Single Judge would lead to the 4 conclusion that there is likelihood of
faulty accounting system. A request was made by the learned counsel for the
respondent to produce the audit report wherein the discrepancy had surfaced. It
was submitted that if the report is produced it would show that the respondent
was given a clean chit by the audit officials. The learned Single Judge,
therefore, came to the conclusion that an opportunity should be given to the
delinquent to prefer an appeal from the final order and directed that the
Appellate Authority may go into the question afresh in the light of the
observations made by the learned Single Judge. The respondent deposited the sum
Rs.9,662.46 with the bank. This
was a pre-condition of filing an appeal. The Appellate Authority was directed
to grant personal hearing to the respondent.
The Division Bench observed that
despite orders of the learned Single Judge, the Appellate Authority has not
decided the case according to the observations of the court. The learned Single
Judge had gone to the extent 5 of observing that "the Appellate Authority
had scant regard for the dignity and the finality of the observations made by
the two learned Single Judges of this court." In spite of the contemptuous
comments made by the Appellate Authority, the learned Single Judge directed it
to take a fresh decision in the light of the observations made by the learned
Single Judge in his order dated 24th March, 2006. The appellant-Bank filed an
appeal being APOT No. 363 of 2007 which was dismissed by the Division Bench
with the following orders :- "Heard the learned counsel for the appellant.
In our opinion, since the learned Single Judge has not imposed any punishment
on the appellant, the present appeal would not be maintainable under section 19
of the Contempt
of Courts Act, 1971. In case the appellant is aggrieved by certain
observations made by the learned Single Judge with regard to the merits of the
decision taken by the authorities, the appellant would always be at liberty to
seek remedy by way of inter-court appeal under clause 15 of the Letters Patent.
Accordingly, both the appeal and
the application are disposed of.
6 All parties concerned are to act
on a signed Xerox copy of this order on the usual undertakings."
The Division Bench with great
anguish made the following observations regarding the conduct of the
appellant-Bank. We reproduce the same as under:- "We see absolutely no
merit in the appeal. In our opinion, the Appellate Authority of the
appellant-Bank has been shown a great deal of leniency by the learned Single
Judge. Even after taking note of the unwarranted observations of the Appellate
Authority in rejecting the appeal filed by the respondent-writ petitioner and
in a manner totally contrary to the observations made by the learned Single
Judge, no punishment was imposed on the Appellate Authority.
Not only no punishment, but
adverse comments were even made about the observations made by the Appellate
Authority. Rather, another opportunity has been given to rectify the error. Mr.
Bose submits that while dealing
with an application for contempt the Court ought to be concerned only with the
question whether the earlier decision has received its finality and has been
complied with or not. It would not be permissible for the court to examine the
correctness of the earlier decision which had been assailed and to take a view
different from that 7 what was taken in the earlier decision.
In support of this the learned
counsel relied on a judgment in Union of India & Ors. v. Subedar Devassy PV
(2006) 1 SCC 613. We are of the considered opinion that the aforesaid judgment
is not applicable in the facts and circumstances of this case. We find no merit
in this appeal and the same is dismissed.
In the interest of justice we
grant another four weeks time to the Appellate Authority to decide the appeal
in accordance with the observations made by the learned Single Judge in the
order dated 24th March, 2006 and the observations made by this Court in this
The appellant-Bank instead of
complying with the directions of the Division Bench has again approached this
We have heard the learned counsel
for the parties at length. It was submitted before the court by the
appellant-Bank that where there is no allegation of procedural irregularity or
illegality or violation of statutory rules prescribed in the mode of enquiry,
the 8 High Court cannot upset the well-reasoned order of dismissal passed by
the Disciplinary Authority. It was also submitted by the appellant-Bank that in
the enquiry proceedings, a case of financial irregularity was detected and the
court ought not to have interfered with the order of dismissal.
We have carefully perused the
entire record of the case and all the proceedings before various courts. The
Division Bench in the impugned judgment while dismissing the appeal gave four
weeks time to the Appellate Authority to decide the appeal in accordance with
the observations made by the learned Single Judge in the order dated 24th
March, 2006 and the observations made by the Division Bench.
In the facts and circumstances of
this case, the observations made in the impugned judgment are absolutely just
and fair. The Appellate Authority is directed to carry out the direction given
by the learned 9 Single Judge and the Division Bench in its true spirits.
We find no infirmity in the
directions given by the Division Bench in the impugned judgment.
The appellant instead of
approaching this court ought to have complied with the directions of the
Division Bench. This appeal being devoid of any merit is dismissed with costs.
(Dalveer Bhandari) New Delhi;