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2003 DIGILAW 21 (ORI)

Nirakar Sahoo v. Dhenkanal Gramya Bank

2003-01-09

PRADIP MOHANTY, R.K.PATRA

body2003
JUDGMENT R. K. PATRA, J. — In this writ petition, the petitioner seeks quashing of order dated 10.9.1996 (Annexure-6) made by the appellate authority imposing penalty of lowering his basic pay by five stages in his incremental scale in modification of the penalty of lowering the basic pay to the minimum of the officer’s scale passed by the disciplinary authority in a departmental proceeding. 2. The petitioner while serving as Manager, Dhenkanal Gramya Bank, Babandha Branch, was served with a set of charges which are as follows : (i) He had raised a loan of Rs.5000/- on 10.2.1990 in the name of one Bula Kishore Sahoo, son of Nibaran Sahoo of village Raibal by forging his signature on the loan documents of Small loan (General) 5/90 for the purpose of paddy processing and availed the proceeds of the said loan for himself. After com¬plaint was lodged by Bula Kishore Sahoo, he managed to close the loan account on 15.2.1993 through him. (ii) He sanctioned small loan on 6.10.1989 for Rs.5000/- to one minor Pruthiraj Sahoo for the purpose of paddy processing to derive pecuniary advantage. (iii) He provided debt relief to four lessees under the head ‘Asset lost’ without conducting verification of assets. The above charge-sheet was communicated to him by letter dated 11.5.1994 (Annexure-3) and he was called upon to submit his written explanation. The petitioner submitted his explanation on 1.6.1994 denying the charges. As the explanation was not satisfactory, one R.N. Parida was appointed as Enquiry Officer who conducted the enquiry and submitted the enquiry report exon¬erating the petitioner from charge No.3 and holding him guilty of charge Nos.1 and 3. The Chairman, Dhenkanal Gramya Bank, who is the disciplinary authority, on perusal of the enquiry report agreed with the findings and imposed the penalty of lowering the petitioner’s basic pay to the minimum of his scale by office order dated 28.3.1995 (Annexure-4). Against the aforesaid order of the disciplinary authority the petitioner preferred appeal before the appellate authority which after considering the matter reduced the penalty of lowering his basic pay to the minimum of his scale to ‘lowering the basic pay by 5 stages in his incremental scale.’ 3. Against the aforesaid order of the disciplinary authority the petitioner preferred appeal before the appellate authority which after considering the matter reduced the penalty of lowering his basic pay to the minimum of his scale to ‘lowering the basic pay by 5 stages in his incremental scale.’ 3. Shri Sanjit Mohanty, learned counsel for the petitioner raised the following contentions in support of the writ petition: (A) R.N. Parida being of the same rank as that of the peti¬tioner could not have been appointed as Enquiry Officer in viola¬tion of sub-regulation (3) of Regulation 30 of the Dhenkanal Gramya Bank (Staff) Service Regulations, 1982, and thus the entire enquiry is vitiated ; (B) The petitioner prayed before the Enquiry Officer to cross-examine Bula Kishore Sahoo to when he was alleged to have advanced the loan but he was not produced and because of non-examination of the material witness, the finding of guilt record¬ed in respect of charge No.2 (i) is vitiated ; (C) The decision of the appellate authority is illegal being violative of the principles of natural justice inasmuch as the Chairman he was the disciplinary authority was one of the members of the appellate authority (Board of Directors). 4. Let us proceed to consider each of the above conten¬tions raised on behalf of the petitioner. Contention No. (A) : Sub-regulation (3) of Regulation 30 of the Dhenkanal Gramya Bank (Staff) Service Regulation, 1982 pro¬vides as follows : “(3). The inquiry under this regulation and the procedure with the exception of the final order, may be delegated in case the person against whom proceeding are taken is an officer to any officer who is in a grade higher than such officer and in the case of an employee to any officer. For purpose of the inquiry, the officer or the employee may not engage a legal practitioner.” From the above provision, it may be seen that the discipli¬nary authority may delegate the task of enquiry to an officer who is in a grade higher than the delinquent. In the counter affida¬vit, it has been stated that the Enquiry Officer (R.N. Parida) is senior to the petitioner in the same grade, their positions being at Sl. No.2 and Sl.No.17 respectively. It is true that the disciplinary authority may delegate the enquiry to an officer of higher grade than that of the delin¬quent. The said provision is not, however, mandatory. No.2 and Sl.No.17 respectively. It is true that the disciplinary authority may delegate the enquiry to an officer of higher grade than that of the delin¬quent. The said provision is not, however, mandatory. It also does not lay down that in case of its violation, to proceeding would be vitiated. Admittedly, the petitioner had appeared before the Enquiry Officer and voluntarily participated in the proceeding. After the closure of the enquiry when the enquiry report went against him, he cannot be allowed to contend that the appointment of Enquiry Officer was illegal. It is a question of prejudice and the petitioner has not been able to show how he was prejudiced in the enquiry because of appointment of R.N. Parida as the Enquiry Officer see (Sridhar Chand v. State of Orissa, 44 (1977) C.L.T. 126). For the above reasons, we do not find any merit in this contention. 5. We need not examine contention no. (B) because the writ petition is bound to succeed to contention no.(C) raised by Shri Mohanty. The penalty of lowering his basic pay to the minimum of officer’s scale was imposed by the disciplinary authority (Biswajit Choudhury was the Chair man/Disciplinary Authority vide Annexure-4). From the order at Annexure-6 it appears that he (Biswajit Choudhury) and also the Chairman of the Board of Directors which heard and disposed of the petitioner’s appeal. In the counter affidavit is has been stated that though the disciplinary authority was the Chairman of the Board of Directors, at the time of taking decision on the appeal of the petitioner as was not present and, therefore, the decision is not vitiated. On our direction, learned counsel appearing for the opposite parties produced the Minutes Book of the Dhenkanal Gramya Bank. On its perusal, we found that the decision on the peti¬tioner’s appeal was taken in the 89th meeting of the Board of Directors held on 20.8.1996. On that day, five Directors were present including Biswajit Choudhury, Each of them has singed in token of their presence in the meeting. Biswajit Choudhury has also put his signature at the end of the proceeding of that day noted in the Minutes Book. Item No.13 of the day’s agenda reads as follows : “13. Miscellaneous matters : (i) Appeal of Sri Nirakar Sahoo against the final order of the Disciplinary Authority. Biswajit Choudhury has also put his signature at the end of the proceeding of that day noted in the Minutes Book. Item No.13 of the day’s agenda reads as follows : “13. Miscellaneous matters : (i) Appeal of Sri Nirakar Sahoo against the final order of the Disciplinary Authority. The matter was examined in detail and the detailed observa¬tion is enclosed herewith.” From the above notings, we have no hesitation to hold that Biswajit Choudhury also participated in the deliberation when the petitioner’s appeal was taken up for consideration. The question now raised is whether the ultimate decision taken by the Board of Directors is vitiated on the maxim of ‘Nemo debt esse judex in propria sua causa’. One such case came up for consideration before the Supreme Court in Baidyanath Mohapatra v. State of Orissa, AIR 1989 SC 2218 . In that case, the then Chief Secretary of the State Government being member of the Review Committee recommended for premature retirement of the appellant Baidyanath Mohapatra. Subsequently, he became the Chairman, Orissa Adminis¬trative Tribunal before whom the concerned officer’s case chal¬lenging the validity of his premature retirement came for hearing and he decided the matter sitting in Division Bench. In the back-ground of this circumstance the Supreme Court observed in the case : “ There is a disturbing feature of this case which vitiates Tribunal’s order. Shri Gian Chand, Chairman of the Tribunal, ex-Chief Secretary of the State of Orissa, was a member of the Review Committee which made recommendation against the appellant for his premature retirement and in pursuance thereof the State Government had issued the impugned order. It appears that Shri Gian Chand had later been ap¬pointed as Chairman of the Administrative Tribunal. Shri Gian Chand participated in the proceedings of the Tribunal. These facts show that Mr. Gian Chand, who had administratively taken a decision against the appellant, considered the matter judicially as a Chairman of the Tribunal, thereby he acted as a Judge of his own cause. While it is true that there in no allegation of perusal bias against Shri Gian Chand, he may have acted bona-fide, correctness, the princi¬ples of natural justice, fair play and judicial discipline required that he should have obtained from hearing the appel¬lant’s case. While it is true that there in no allegation of perusal bias against Shri Gian Chand, he may have acted bona-fide, correctness, the princi¬ples of natural justice, fair play and judicial discipline required that he should have obtained from hearing the appel¬lant’s case. While considering the appellant's case the Tribunal exercised judicial powers and it was required to act judicially as the jurisdiction of the Civil Court and High Court have been vested in the Administrative Tribunal. The members of the Tribunal must follow rule of natural justice in administering justice like judges, they should not sit in judgment on their own decisions. Shri Gian Chand was disqualified to hear the appellant’s case. The order of the Tribunal is vitiated on this ground.” We may at this stage refer to another case of the Supreme Court in State of West Bengal v. Shivanda Patnaik, AIR 1993 SC 2030. In paragraph-29 of the judgment it was observed as follows: “As pointed out earlier, on essential requirement of judicial adjudication is that the judge is impartial and neutral and in a position to apply his mind objectively to the facts of the case put up before him. If he is pre-disposed or suffers from prejudic¬es or has a biased mind, he disqualifies himself from acting as a Judge. But Frank, J. of the United States In re Lichen, 132 of 1932. If however, 'time' and 'partiality' be defined to mean the total absence of presentations in the mind of the Judge, then no one has ever had a fair trial and no one will. The human mind even at leniency, in no blank piece of paper. We are born with predispositions...... Much here is done by the myth that, merely by ...... taking the oath of office as a Judge, a man ceases to be human and stripe himself of all predlications, because a passionless thinking machine.” (See also Sriffth and Street Principles of Administrative law (1973 Edn.) 155 ; Judicial Review of Administrative Action by de smith (1980 Edn.)278 II Administrative Law Treatise by Davis (1958 Edn.) 130.)” This Court in Khira Swain v. State of Orissa (87 (1999) CLT 249) and M/s. Poddar Machinery House v. Orissa Sales Tax Tribunal (2000(II) OLR 382) also took the same view. In view of the facts stated above, the final decision taken on the petitioner’s appeal cannot be sustained in law and is hereby set aside. The appeal filed by the petitioner may be disposed of afresh according to law. The writ petition is accordingly allowed. PRADIP MOHANTY, J. I agree. Petition allowed.