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2007 DIGILAW 1507 (PAT)

Mrityunjay Jha v. State Of Bihar

2007-09-14

ANWAR AHMAD, BARIN GHOSH

body2007
Judgment Barin Ghosh and Anwar Ahmad JJ. 1. While the appellant was working as an assistant of the Madhubani Branch of the respondent Co-operative Bank, a charge- sheet was issued to him. In the charge- sheet dated 11th June, 1994 it was alleged, amongst others, that the request for waiver of loan made by a few customer- Cooperative Societies of the respondent- Cooperative Bank, was pending consideration by the State Government and NABARD, but before a final decision in that regard could be taken, the appellant and some other officers of the respondent- Cooperative Bank caused the amount of waiver to reach those customer- Cooperative Societies in cash. It was alleged that in the matter of making those waiver amounts available, the appellant while debited the Head Office of the Co- operative Bank in the ledger of the Madhubani Branch of the Co-operative Bank, he credited the same in the respective savings bank accounts of the customer-Cooperative Societies. In sum and substance, it was alleged that those customer-Cooperative Societies were creditors of the Bank to the extent of the amount of loan for which waiver was sought and though the Co-operative Bank did not get any reimbursement on their count either from the State Government or NABARD, the waiver as was claimed by the customer-Cooperative Societies was not only made available to them, but while doing so, their liability towards the bank was not reduced, instead by giving credit in their savings bank account, the liability of the bank was increased towards them which was adjusted by increasing the liability of the Head Office of the Co- operative Bank. 2. The appellant while replying to the charge-sheet accepted in toto the ingredients of the said charge, but purported to contend that he acted on the basis of directions of the then Managing Director of the Co-operative Bank. While, however, doing so, he did not indicate that the Head Office directed the matter to be dealt with in the manner, the same was dealt with in the ledger of Madhubani Branch of the respondent-Co-operative Bank. In reply, two additional informations were supplied; one was that the same procedure was adopted by the predecessor of the appellant and that immediately after making the entries in the ledger, advice had been sent to the Head Office. In reply, two additional informations were supplied; one was that the same procedure was adopted by the predecessor of the appellant and that immediately after making the entries in the ledger, advice had been sent to the Head Office. The Enquiry Officer having regard to such reply to the charge-sheet did not propose to hold fullfledged inquiry, instead he opined in a report dated 18th February, 1995 that in relation to making available the amounts of waiver to those customer-Cooperative Societies, the appellant acted in an illegal manner. In the meantime, it appears that on 19th January, 1995, although there was no requirement of law to do so, a second show cause notice was issued, whereby and whereunder it was stated that upon consideration of the reply given to the charge-sheet and by looking into the matter, it appears that the appellant is guilty of gross misconduct which may result in even an order of dismissal. The appellant was given time until 27th January, 1995 to make representation in respect of the said notice dated 19th January, 1995. Admittedly, the appellant did not react to the said notice. 3. On 28th February, 1995 once again a notice was given to the appellant by the Managing Director of the respondent-Co- operative Bank asking him to produce witnesses and other evidence on 27th February, 1995 in respect of the charges levelled against him, if the appellant so desires. This notice was replied by the appellant by a letter dated 15th March, 1995, but in this letter the appellant did not exercise his option to produce witnesses or other evidence on 27th February, 1995 or on any other date. 4. The matter was then placed before the Board on 4th July, 1995. The Board while considering as to what action should be taken against the appellant and other persons in respect of the charges levelled against them, found that out of five persons involved in the matter complained of in the charge-sheet, two are Government employees beyond the disciplinary jurisdiction of the Cooperative Bank and, accordingly, resolved to approach the Government in relation to those two persons. At the same time, the Board decided to stop increments and promotions of the appellant and two other employees of the Bank with immediate effect and decided also to stop payment of GPF and gratuity to them. 5. At the same time, the Board decided to stop increments and promotions of the appellant and two other employees of the Bank with immediate effect and decided also to stop payment of GPF and gratuity to them. 5. On 18th November, 1995 the respondent-Cooperative Bank lodged a first information report and thereby reported what had been stated in the charge-sheet. Thereupon, on 15th December, 1995, the appellant was put under suspension. While suspending the appellant the suspension order did not indicate as to whether the same was passed in view of pendency of the disciplinary proceeding or because a case in respect of a criminal offence against the appellant was then pending investigation. 6. This order of suspension dated 15th February, 1995 was the subject matter of challenge in the writ petition. However, against this order of suspension dated 15th December, 1995, the writ petition was filed on 21st January, 1998. 7. On 1st April, 1998 once again a second show cause notice was issued to the appellant indicating therein that he must indicate in writing within 15 days from the date of receipt of said notice as to why he should not be dismissed, for he has been found to have committed the acts complained of in the charge-sheet. The appellant did not give any reply to the said notice. While the writ petition was pending, an order dated 28th May, 1998 was passed and thereby the appellant was dismissed from service. By amending the writ petition the appellant also challenged the said order dated 28th February, 1998. 8. In the amended writ petition, having regard to the order of dismissal, the order of suspension became meaningless and, accordingly, the appellant gave emphasis to put at knot the order of dismissal dated 28th May, 1998. For that purpose it was urged that the appellant having been punished by the Boards resolution dated 4th July, 1995, he could not be punished also by an order dated 28th May, 1998 for ths self-same misconduct. It was contended that admittedly, there was only one charge, as mentioned above, and in respect of that charge, the appellant having been punished once on 4th July, 1995 he could not be punished in relation thereto on 28th February, 1995 in the same disciplinary proceeding. 9. It was contended that admittedly, there was only one charge, as mentioned above, and in respect of that charge, the appellant having been punished once on 4th July, 1995 he could not be punished in relation thereto on 28th February, 1995 in the same disciplinary proceeding. 9. The question, therefore, arises as to whether the resolution of the Board dated 4th July, 1995 is the final order passed in the disciplinary proceedings concluding the same. A look at the said order would amply demonstrate that though the Board on 4th July, 1995 took up the matter pertaining to punishment of the appellant and four other persons, but it could not do so, inasmuch as two of the persons to be punished were not employees of the Bank, they were employees of the State Government and accordingly, a decision was taken to approach the State Government. The resolution specifically mentions that upon such permission being obtained from the State Government, an FIR should be filed against all of them. It is true that the Bihar and Orissa Subordinate Services (Disciplinary and Appeal) Rules, 1935, which admittedly governed the service conditions of the appellant, authorises grant of punishment of withholding of increments and promotions in disciplinary proceeding, and as such, the decision to immediately stop increments and promotions of the appellant may be treated to be punishment meted out in the disciplinary proceeding and thereby the disciplinary proceeding stood concluded. However, the words used in the resolution would suggest that the decision was to immediately stop all yearly increments and promotions. That means, all future increments and promotions. It was at the same time decided to keep in abeyance payment of GPF and Gratuity. As aforesaid with that, a decision was also taken to lodge an FIR. It was not indicated that as and by way of punishment all future increments and promotions of the appellant are being withheld. On the other hand, the words used were that immediate steps be taken to stop all future increments and promotions. This state of affairs clearly demonstrates that it was only an interim measure to safeguard the interest of the Bank. The resolution did not indicate intention to conclude the disciplinary proceeding bypassing a final order of punishment. 10. In those circumstances, there is hardly any scope of interference with the judgment and order under appeal by which the writ petition has been dismissed. The resolution did not indicate intention to conclude the disciplinary proceeding bypassing a final order of punishment. 10. In those circumstances, there is hardly any scope of interference with the judgment and order under appeal by which the writ petition has been dismissed. It is true that there are certain mistakes in noting down certain dates in the judgment and order under appeal, and accordingly, we have tried to give in seriatim the events that have taken place, which clarifies that the learned Judge, who dealt with the writ petition, correctly concluded the matter. 11. Learned counsel for the appellant contended that the appellant was mere assistant of a branch of the bank and he had obeyed the orders of his superiors. It was stated that even the finding as recorded in the inquiry report suggests irregularity on the part of the appellant in respect of the transactions, being the subject matter of the charge-sheet. It was submitted that in such circumstances, the order of punishment by way of dismissal is too harsh and disproportionate. 12. In reply to the charge-sheet, while accepting the basic ingredients of the charge, the appellant did not indicate that he was asked by his superiors to write the ledger of the branch of the bank in the manner the same was written. In the normal circumstances, if a decision is taken to waive the loan of a customer, the liability of the customer towards the bank should be reduced and the same should be reflected in the ledger of the bank. In the instant case, though the appellant was aware that such liability is being reduced, but instead of reducing the same in the ledger of the bank, the matter was dealt with in such a manner, so that the customers get payment while withdrawing the money transferred to their savings bank account and in order to keep the money credited the Head Office of the bank was debited and thereby one entry under one head in the liability side of the balance-sheet was shifted to another head in the assets side, to facilitate the said customers of the bank to take out the money from the bank. Such being the situation, if the bank is of the view that it is no longer in a position to have any further trust upon the appellant and accordingly decides to disassociate itself from the appellant, we do not think that while exercising jurisdiction under Article 226 of the Constitution of India, we can interefere with such decision of the bank. 13. The appeal accordingly fails and the same is dismissed.