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2003 DIGILAW 463 (PAT)

Golok Bihari Sharan Tiwary v. Uco Bank

2003-04-22

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. Petitioner at the relevant time was working as Manager (MMG Scale-ll) at Tarapur Branch of the respondent-United Commercial Bank. By order dated 30th of July, 1996 he was put under suspension with immediate effect and a departmental enquiry was initiated against him. Charges levelled against the petitioner were as follows : "Shri G.B.S. Tiwary (PRM N. 06262) Officer Scale-II presently placed under suspension while functioning as Manager at Sultanganj and Tarapur Branches from 3rd Feb. 1993 to 23rd Dec. 1995 and 8th Jan. 96 to 30th July 96 respectively had indulged in several acts of omission and commission for which he is hereby charged as under : 1. Shri G.B.S. Tiwary had drawn unjustified and higher amount of House Rent Allowance and derived pecuniary benefit mis-using powers conferred on him without any authority/sanction for drawing such allowance for which he was not entitled. He thus acted in a manner unbecoming of a Bank Officer prejudicial to the interest of the Bank which is violative of Regulations 3(1) and 3(3) of UCO Bank Officer Employees, (Conduct) Regulations, 1976 as amended. 2. Shri G.B.S. Tiwary had derived pecuniary benefit to himself mis-using and abusing his position sanctioning loan to himself against FDR/NSC and Bills Purchase facility violating the rules of the Bank and suppression of material facts from higher authorities. He had committed breach of faith in the performance of his duties. He thus acted in a manner unbecoming of a Bank Officer which is violative of Regulations 3(1) and 3(3) of UCO Bank Officer Employees (Conduct) Regulations, 1976 as amended. 3. Shri G.B. S. Tiwary had engaged directly or indirectly in a trade or business for which he himself sanctioned Cash Credit facility and free Bills Purchase facility for himself unauthorisedly misusing his position without seeking permission from competent authority of the bank. Thus he violated Regulation-6 of UCO Bank Officer Employees (Conduct) Regulations, 1976, as amended. 4. Sri G.B.S. Tiwary had not deducted Income-tax due against his salary income every month, violating statutory obligations with intent to evade paying Income-tax due to him concealing material facts abusing his position for personal gains. Besides, he misused his position and after passing working expenses vouchers received himself cash amounting to Rs. 4. Sri G.B.S. Tiwary had not deducted Income-tax due against his salary income every month, violating statutory obligations with intent to evade paying Income-tax due to him concealing material facts abusing his position for personal gains. Besides, he misused his position and after passing working expenses vouchers received himself cash amounting to Rs. 6,710/- on the pretext of Postage Charge/Courier charges without any bill/receipt either from Postal authority or Courier Service Agency which reflected against his integrity in discharge of duties. Thus, he violated Regulation 3(1) of UCO Bank Officer Employees (Conduct) Regulations, 1976 as amended. 5. Shri G.B.S. Tiwawry did not discharge his duties as Manager in follow-up and recovery of Banks dues in borrowal Accounts of the Banks branch failing to ensure and protect the interests of the Bank and lacked devotion and diligence which is violative of Regulation 3(1) of UCO Bank Officer Employees (Conduct) Regulations, 1976 as amended. 6. Shri G.B.S. Tiwary in gross abuse of his official position attempted to defraud the Bank by issuing two Demand Drafts of aggregate amount of Rs. 1,10,000/- deliberately without any deposit/credit for issuance of such Demand Drafts. He further misused advance aggregating to Rs. 19,400/- on diverse dates from 16.7.93 to 9.12.95 taken from Sundry Debtors Account against Leave Fare Concession and Travelling Allowance which still remain outstanding indicating misuse of the amount. He has not been maintaining his Leave record properly and had been availing leave without any application or sanction from Competent Authority. Thus, he acted in a manner which is violative of Regulations 3(1), 3(3) and 24 of UCO Bank Officer Employees (Conduct) Regulations, 1976 as amended." 2. Petitioner submitted his reply denying all the charges. The disciplinary authority by order dated 25.1.97 (Annexure-4) appointed Sri Atul Kumar Sinha, Manager, Bariarpur Branch as the Enquiry Officer. Later on, petitioner was served with another articles of charges dated 8.4.97 and enquiry in respect of both the articles of charges were conducted together. Petitioner was held guilty of charge Nos. 1, 2, 4, 5 and 6 in respect of articles of charges dated 21st of November, 1996 and Charge no. 3 was found to have been partially proved. However, the petitioner was found guilty of both the charges of the articles of charges dated 8.4.97. Petitioner was served with a copy of the enquiry report to which he replied. 1, 2, 4, 5 and 6 in respect of articles of charges dated 21st of November, 1996 and Charge no. 3 was found to have been partially proved. However, the petitioner was found guilty of both the charges of the articles of charges dated 8.4.97. Petitioner was served with a copy of the enquiry report to which he replied. The disciplinary authority by order dated 2nd of March, 1998 inflicted the punishment of reduction to initial position of JMG Grade Scale-ll for each of the charges in relation to articles of charges dated 8.4.97 and further for charge nos. 1, 2, 3 and 5 of articles of charges dated 21.11.96 same punishment for each of the aforesaid charges were inflicted. He also inflicted punishment of recovery from pay or any amount due to him of a sum of Rs. 23,291/- for charge no. 4 and a sum of Rs. one lac for charge no. 6. Petitioner aggrieved by the same preferred appeal and the appellate authority by order dated 24.4.99 exonerated him from charge nos. 4 and 6 imposing the penalty of recovery by the disciplinary authority. 3. In this writ application filed under Article 226 of the Constitution of India, prayer of the petitioner is to quash the aforesaid order of the disciplinary as well as the appellate authority. 4. Mr. Upadhaya appearing on behalfof the petitioner has raised various submissions to assail the orders impugned. As the writ application has to succeed on a very short point, I am not inclined to either incorporate or answer those submissions. 5. Petitioner in paragraph 10 of the writ application has stated that Mr. Atul Sinha, the enquiry officer was junior to the petitioner and in all fairness he ought not to have been appointed as the enquiry officer. Paragraph 10 of the writ application reads as follows : "It may not be out of place of mention here that Mr. Atul Sinha appointed as enquiry officer who was also in MMG-II scale and in fact, junior to the petitioner and in all fairness he should not have been appointed as Enquiry Officer to conduct the enquiry against the petitioner, an officer senior in the same scale. Petitioner brings on record copy of the seniority list of officers of the Bank scale II which will demonstrate the fact that the petitioner was at serial no. Petitioner brings on record copy of the seniority list of officers of the Bank scale II which will demonstrate the fact that the petitioner was at serial no. 141 whereas Sri Atul Sinha the Enquiry Officer was at serial no. 1995. The assertion of the petitioner in paragraph 10 of the writ application has been replied by respondent no. 3 also in paragraph 10 of the counter affidavit. Same reads as follows : "As far as statements in paragraph 10, the same is misplaced as Bank rules do not prohibit an officer from becoming Enquiry Officer in any enquiry against an officer." 6. Thus the assertion of the petitioner that the enquiry was conducted by a person who is junior to the petitioner has gone unrebutted. In my opinion, conduct of enquiry by a junior shall always be fraught with danger. The Enquiry Officer may in a given case for his career development hold a senior guilty of misconduct to facilitate his career. It is of fundamental importance that justice should not be done but should manifestly and undoubtedly be seen to be done. Fair play demands that inquiry be conducted by a person senior to the delinquent employee. To avoid this, appointment of senior officer as Enquiry Officer shall be just and proper. Here in the present case, undisputedly the Enquiry Officer is junior to the petitioner and the report by him has formed the basis of the impugned orders. This itself renders the impugned orders as also the enquiry report illegal in the eye of law and the same cannot be allowed to survive. 7. Respondents, if sc advised, may proceed against the petitioner de novo from the stage subsequent to the framing of the charge in accordance with law. 8. In the result, the application is allowed. Orders of the disciplinary authority as well as the appellate authority are quashed with the liberty aforesaid. No costs.