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2002 DIGILAW 993 (JHR)

Suchit Bhagat v. Indian Overseas Bank

2002-09-10

VIKRAMADITYA PRASAD

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JUDGMENT Vikramaditya Prasad, J. 1. This writ application under Article 226 of the Constitution has been filed for quashing a portion of the order by which the petitioner has been awarded the punishment as contained in Annexure 3 and the order as contained in Annexure 6 whereby the punishment of compulsory retirement was awarded and also for restraining the respondents from acting in pursuance of the impugned order. 2. Undisputedly, the respondent No. 1, Indian Overseas Bank, is a Government Company and a State within the meaning of Article 12 of the Constitution and the petitioner was working as Assistant Manager (Agriculture) in their Branch at Malda. His nature of job was of the routine field visit and identification of the borrowers and technical feasibility of the project given to the Bank for finances. As averred by the petitioner, he was not assigned to do any general work in the said Branch and he was never a loan sanctioning authority as the loans were sanctioned by the Senior Managers and the petitioner had issued some bank cheques as per instructions of the Senior Manager which were encashed in the absence of the petitioner in that Branch. Thereafter, the petitioner was transferred to Dakra Branch and served a chargesheet-cum-suspension order on the allegation that while he was functioning as an Assistant Manager (Agriculture) at Maldah Branch, certain acts of commission or omission were reported which might amount to misconduct, vide Annexure 4. The petitioner submitted a detailed reply to the charge, pleaded not guilty and denied the charges. Then a detailed enquiry in terms of Banks Regulations was initiated and concluded on 22.8.1996. The Enquiry Officer submitted his report, a copy of which was served upon the petitioner. The petitioner submitted a show cause against the enquiry report contending the findings of the Enquiry Officer, which is stated in detail in Annexure 2. Then the respondent No. 2, though he was not the appointing authority, issued Annexure 3, which is an office order, holding the petitioner guilty of all the charges and awarded a penalty of removal from service under Rule 4(g) of the Indian Overseas Bank Officers (Discipline, Appeal) Regulation (hereinafter called as Regulation). Then the petitioner preferred an appeal before the respondent No. 2 on 23.7.1997 and the petitioner listed specific grounds in the memo of appeal, vide Annexure 4. Then the petitioner preferred an appeal before the respondent No. 2 on 23.7.1997 and the petitioner listed specific grounds in the memo of appeal, vide Annexure 4. The petitioner also prayed before the respondent No. 2 to grant a personal hearing along with his defence-representative. The respondent No. 2 granted the same at Chennai but deprived the petitioner of an opportunity to represent his case along with his defence-representative and by his order dated 6.1.1998 forwarded to the petitioner through the Branch Manager, Dakra, on 24.2.1998, the respondent No. 2 allowed the petitioners appeal in part and changed the penalty from Rule 4(g) to Rule 4(f) as described in the Regulation, vide Annexure 5. Annexure 6 is the amended regulations. According to the petitioner, the impugned order is vitiated because the imputation Nos. (6) and (4) were never termed to be any violation and any conduct regulation and therefore, the same cannot be misconduct, warranting the order of punishment. With regard to the imputation Nos. (1) and (2), it was the case of the petitioner that the work of passing of vouchers and general accounting was never assigned to the petitioner and was assigned to the General Officer, therefore, the petitioner cannot be held guilty warranting the order of punishment. The General Manager PAD is the appointing authority and therefore, the original order of punishment dated 21.6.1997 passed by the Deputy General Manager is without jurisdiction and is, therefore, illegal and cannot be allowed to be sustained. 3. The respondents appeared, contested the case and according to them, though the petitioner was recruited as Specialised Officer (Agriculture), but in the appointment letter, it was stated that, "Although you are appointed as Agricultural Officer, now you are also liable to be given any other officers assignment in the bank as it may be necessary" and on the basis of the terms contained in the appointment letter, the petitioner cannot claim that his work was confined only to routine field visits and identification and assessment of technical feasibility of the project given to the bank for finances. It is admitted that the petitioner was assigned to do other nature of general work in the Branch, vide Annexure F. It is further pleaded that on 12.9.1992, the petitioner had unauthorisedly and wrongfully debited a sum of Rs. 61,000/- from 60 small loan accounts and sum of Rs. It is admitted that the petitioner was assigned to do other nature of general work in the Branch, vide Annexure F. It is further pleaded that on 12.9.1992, the petitioner had unauthorisedly and wrongfully debited a sum of Rs. 61,000/- from 60 small loan accounts and sum of Rs. 1,15,667/- from 109 Agricultural Loan Accounts with the narration "Margin money/ excess subsidy" but neither any margin money/subsidy was credited at all to the respective accounts by that time. These unauthorised credits were utilised by the petitioner to give wrong credit to various small loan accounts of borrowers and thereby the petitioner caused undue pecuniary loss to the Bank. Besides, the petitioner made fictitious credit entries without date and voucher in 60 small loan accounts amounting to Rs. 61,600/- and in 64 agricultural loan accounts amount to Rs. 48,600/-without receiving any funds by the Bank. An allegation was also levelled against the petitioner that one Shri Shambhu Rabidas was his intermediatory. It was also stated that the petitioner had credited Rs. 11,000/- and 34,000/- on 3.6.1993 and 4.6.1993, respectively in his own account and further another credit of Rs. 24,300/-dated 1.6.1992 were drawn on various date by Marar Branch to the debit of one Smt. Sheela Prasad and thus, the petitioner had entered into illegal crediting of accounts in his accounts and also to help another persons without any authority. 4. The admitted position is that the petitioner had been given full opportunity to defend himself and as per his own statement, he presented himself at every level, i.e. before the Enquiry Officer and before the Appellate Authority. Of course, before the appellate authority, his prayer to appear along with defence-representative was disallowed. The question is whether disallowing of presenting a defence-representative was violative of the principles of natural justice or violation of any provisions of the Regulation. The reply of the respondents on this point is in paragraph No. 18 of the counter-affidavit where they have said that the appellate authority allowed him personal hearing (this is an admitted fact) and the appellate authority had asked him certain questions (since he had appeared, this cannot be disputed). 5. The petitioner himself is an Officer. The reply of the respondents on this point is in paragraph No. 18 of the counter-affidavit where they have said that the appellate authority allowed him personal hearing (this is an admitted fact) and the appellate authority had asked him certain questions (since he had appeared, this cannot be disputed). 5. The petitioner himself is an Officer. If there is no rule that a proceedee is entitled to appear with his defence-representative, then this is not a violation of any regulation/rule and the appellate authority has not acted against the rule/regulation or has deprived the petitioner of his legal right recognised by regulation. Absence of any regulation to this effect and the appellate authority, admittedly, hearing the appellant (petitioner) on his request, in my opinion, does not require the petitioner to be represented by a defence representative for the pros of the principles of natural justice. So, it cannot be said that the appellate authority denied any legal right of the petitioner while hearing the appeal or in any way violated the principles of natural justice. 6. The Regulation 4 of the Indian Overseas Bank Officers Employees (Discipline & Appeal) Regulations, 1976, was amended and it had come into force with effect from 20.9.1997. A comparative chart of the existing and amended provisions are quoted hereinbelow :-- __________________________________________________________________ AS EXISTING AS AMENDED __________________________________________________________________ Minor Penalties : Major Penalties : (a) Censure. (a) Censure. (b) Withhold of increments of pay with or without cumulative effect. (b) Withhold of increments of pay with or without cumulative effect. (c) Withholding of promotion. (c) Withholding of promotion. (d) Recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the bank by negligence or breach of orders. (d) Recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the bank by negligence or breach of orders. (e) Reduction to a lower stage in the time scale or pay for a period not exceeding three years, without cumulative effect and not adversely affecting the officers pension. (e) Reduction to a lower stage in the time scale or pay for a period not exceeding three years, without cumulative effect and not adversely affecting the officers pension. Major Penalties : Major Penalties : (e) Reduction to a lower grade or post or to a lower scale in a time scale; (f) Save as provided for in (a) above reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the officer will earn increments of pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have. the effect of postponing the future increments of his pay. (f) Compulsory retirement. (g) Reduction to a lower grade or post. (g) Removal from service which shall not be a disqualification for future employment. (h) Compulsory retirement. (h) Dismissal which shall ordinarily be a disqualification for future employment. (i) Removal from service which shall not be a disqualification for future employment. (j) Dismissal which shall ordinarily be a disqualification for future employment. __________________________________________________________________ On perusal of the aforesaid chart, it is apparent that prior to amendment, the removal from service, a major punishment was prescribed under Rule 4(g) whereas under the amended regulations, the punishment under Rule 4(g) is the reduction to a lower grade or post and the punishment under the amended provision of Rule 4(h) is the compulsory retirement and the provision under the amended Rule 17 of the Regulation relating to appeal is as follows :-- "17(i) If the enhanced penalty which the appellate authority proposed to impose is a major penalty specified in Clauses (f), (g), (h), (i) and (j) of Regulation 4, and an inquiry as provided in Regulation 6 has not already been held in the case, the appellate authority shall direct that such an inquiry be held in accordance with the provision of Regulation 6 and thereafter consider the record of the inquiry and pass such orders as it may deem proper." 7. The petitioner has a grievance that it is a clear case of in application of mind that the appellate authority, though passed the punishment under Regulation 4(f) but awarded a punishment of compulsory retirement, which is not provided under Regulation 4(1). The petitioner has a grievance that it is a clear case of in application of mind that the appellate authority, though passed the punishment under Regulation 4(f) but awarded a punishment of compulsory retirement, which is not provided under Regulation 4(1). Non-application of mind is also not entertainable on the ground of not writing a detailed judgment by the appellate authority. The rule requires that the appellate authority will "consider". Consideration only means that the inquiry report has been properly considered. In absence of any rule that the appellate authority will give his finding on every charge, the "consideration" means reasons for agreeing with the enquiry officers finding. 8. Now the question is when the regulation was amended with effect from 20.9.1997 and the appellate order was passed after the amendment, whether the provisions of unamended regulation will cover the case of the petitioner or the new regulation will be applicable. 9. The petitioner was being proceeded under the old regulation. Therefore, the new amendment will cover those cases only, which arose on or after the date of amendment and the old proceedee will be governed according to the unamended regulations even in respect of punishment and under unamended regulation, under Rule 4(f), the punishment is compulsory retirement. Therefore, the award of the appellate authority under this provision of Rule 4(f) does not amount to his non-application of mind. Moreover, in the counter-affidavit, this error of Rule 4(f) or 4(h) is attributed to typography. When the intention of the punishing authority is clear in specific words, then mere wrong insertion of some section or rule is immaterial and does not indicate non-application of mind. 10. In the result, I do not find any merit in this application, which is accordingly dismissed.