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2007 DIGILAW 1868 (PAT)

Hem Chandra Singh v. State Of Bihar

2007-12-07

V.N.SINHA

body2007
Judgment V.N.Sinha, J. 1. Heard learned Counsel for the parties. 1.1 Petitioner, who at the relevant time was serving as District Co-operative Officer-cum-Managing Director, Central Co-operative bank Ltd., Chapra, has filed this writ application assailing the Notification of the State Government, bearing Memo. No. 217 dated, 15.01.1999, Annexure-1, whereunder after conclusion of the Departmental proceeding in the light of the findings recorded by the Enquiry Officer that he distributed loan to the tune of over Rupees one crore to the different Co-operative Societies on the basis of incorrect facts/figures furnished by those Societies as also withdrew house rent allowance beyond the rent paid by him and that he further violated the Orders of his superiors, he has been dismissed with approval of the Bihar Public Service Commission (hereinafter referred to as the Commission). 1.2 During pendency of this application, by filing I.A. No. 2981 of 2007, he has placed on record Letter No. 482 dated, 18.03.2005, Annexure-6 issued under the signature of the Under Secretary to the State Government in the Co-operative Department informing the Deputy Secretary of the Governor Secretariat with reference to Governor Secretariat Letter No. 2815 dated, 8.10.2004 that the memo of appeal of the Petitioner was considered by the State Cabinet in its meeting dated, 25.02.2005 and the same has been rejected. Having placed on record the said letter, he has also requested this Court to quash the decision communicated thereunder. 1.3 A Bench of this Court considered the prayer made in the Writ Petition as also in the aforesaid I.A. No. 2981 of 2007 and under Orders dated, 23.07.2007, three weeks time was allowed to the State Respondents to place on record the detailed Order in support of the communications as contained in Annexures-1 to the writ application and Annexure-6 to I.A. No. 2981 of 2007. State Respondents, in compliance of the aforesaid directions of this Court, filed supplementary counter affidavit on behalf of Respondent Nos. 2 to 4 duly affirmed by the Joint Secretary-cum-Chief Vigilance Officer, Co-operative Department, Bihar, Patna and once again placed on record the Notification of the State Government, bearing Memo. No. 217 dated, 15.01.1999, whereunder Petitioner was dismissed, which Notification was already on record as Annexure-1 to this application. They further placed on record the memorandum, bearing Memo. 2 to 4 duly affirmed by the Joint Secretary-cum-Chief Vigilance Officer, Co-operative Department, Bihar, Patna and once again placed on record the Notification of the State Government, bearing Memo. No. 217 dated, 15.01.1999, whereunder Petitioner was dismissed, which Notification was already on record as Annexure-1 to this application. They further placed on record the memorandum, bearing Memo. No. 12 dated, 25.01.2005 of the Co-operative Department, Annexure-B to the supplementary counter affidavit, whereunder Co-operative Department noted the background in which Departmental proceeding was initiated against the Petitioner as also the findings, which were recorded by the Enquiry Officer and the fact that his dismissal was earlier notified under the Orders of the State Government after obtaining approval from the Commission under Notification No. 217 dated, 15.01.1999, Annexure-1 to this application and in the background noted above proposed that his appeal be dismissed which memorandum was considered by the State Cabinet in its meeting held on 25.02.2005 and the proposal of the Department for rejecting the appeal was accepted vide item No. 15 as is evident from the extracts of the proceedings communicated to the Department under signature of the Additional Secretary, Cabinet Secretariat, as contained in Annexure-C to the said supplementary counter affidavit. 2. During the hearing of this writ application, learned Counsel for the Petitioner has challenged the original Notification dismissing the Petitioner dated, 15.01.1999, Annexure-1 to this application as also the subsequent proposal of the Co-operative Department, as contained in memorandum dated, 25.01.2005, Annexure-B to the supplementary counter affidavit and the decision of the State Cabinet dated, 25.02.2005 to reject the appeal as communicated to the Co-operative Department by the Cabinet Secretariat under Annexure-C to the said supplementary counter affidavit. He also assails the communication dated, 18.03.2005, Annexure-6, whereunder rejection of the appeal by the State Cabinet in its meeting dated, 25.02.2005 has been communicated to the Governor Secretariat. 3. During the hearing of this application, learned Counsel for the Petitioner, with reference to the charges levelled in the memo of charge dated, 8.09.1995, submitted that as many as ten charges with various sub-charges were framed against him, but after enquiry only Charge No. 1 (Ka), 3(Ka), 4, 8 and 9 have been proved as would appear from the enquiry report dated, 19.11.1996. In this connection, he pointed out that ample opportunity to rebut the charges with reference to the various documents was not provided to the Petitioner as documents called for by the Petitioner under his Letter No. 115 dated, 21.09.1996 were not furnished to him in spite of clear direction of the Enquiry Officer to produce those letter/documents before him on the next date fixed in the enquiry i.e. 14.10.1996 so that the Departmental proceeding may be concluded within the time frame fixed by the High Court. Appreciating the fact that the documents were not furnished as was directed to be furnished by the Enquiry Officer, the Enquiry Officer in the enquiry report itself at the top observed that copy of most of the documents were given to the Petitioner and the remaining documents like the Appointment Order of the Administrator of the superseded Co-operative Societies as also the file with regard to the registration of the Co-operative Societies was shown to him at the time of hearing. In this connection, learned Counsel for the Petitioner, with reference to the said observation of the Enquiry Officer, submitted that the Enquiry Officer did not enumerate the documents, which could not be shown to the Petitioner. He further submitted that even the relevancy of those documents, which could not be shown to the Petitioner, was not considered by the Enquiry Officer and with reference to the said omission on the part of the Enquiry Officer, learned Counsel for the Petitioner submitted that the Petitioner was not given adequate opportunity to defend himself. He further pointed out, with reference to the findings of the Enquiry Officer as regards Charge No. 1 (Ka) and 3(Ka) that loan to the tune of Rupees one crore was advanced to the different Co-operative Societies on the basis of the facts and figures mentioned in the loan application, which was submitted under the signature of the Manager/Chairman of the Society concerned, which signature was even certified by the concerned Block Co-operative Extension Officer. The Enquiry Officer, while holding the Petitioner guilty of the aforesaid two charges, has taken the view that certificate granted by the Block Co-operative Extension Officer about the genuineness of the signature of the Manager/Chairman of the Society concerned, cannot be taken as the recommendation of the Block Co-operative Extension Officer for grant of loan and the Petitioner cannot be absolved of the two charges, if he has misconstrued the certificate granted by the Block Co-operative Extension Officer as his recommendation for grant of loan. Learned Counsel for the Petitioner, as regards Charge No. 4, submitted that Petitioner diverted the amount of Rs. 61 lacs out of the cash credit limit of Rs. 1,70,97,000.00 without the permission of the competent Authority, as the said amount was required to ensure the depositors/creditors of the bank who wanted to withdraw the amount from their personal account were paid the required amount, the moment they presented their demand/cheque, failing which reputation of the bank would have been tarnished. In the aforesaid background, it was submitted that the diversion of the cash credit amount for paying the depositors/creditors of the bank was for ensuring the reputation of the bank and should not be taken as misconduct on the part of the Petitioner. As regards the findings of the Enquiry Officer with regard to Charge No. 8, learned Counsel for the Petitioner submitted that the Enquiry Officer has recorded a finding that the Petitioner was paying house rent in the District Board Dakbunglow at the rate of Rs. 200.00 per month but has drawn house rent allowance at the rate of Rs. 300.00 per month and he could be directed to deposit the excess house rent amount of Rs. 100.00 per month in the State Treasury, which the Petitioner was and is always willing to deposit the same. As regards Charge No. 9, learned Counsel for the Petitioner submitted that two fruit and vegetable producer co-operative Societies were registered without the approval of the Registrar of the Co-operative Society as also without deposit of the share money on the verbal Orders of the District Magistrate as a special case but without any ill-motive and those Societies can always be directed to deposit the share money. 4. With reference to the aforesaid findings, learned Counsel for the Petitioner submitted that the Enquiry Officer has not found the Petitioner guilty of any financial misconduct. 4. With reference to the aforesaid findings, learned Counsel for the Petitioner submitted that the Enquiry Officer has not found the Petitioner guilty of any financial misconduct. According to the learned Counsel for the Petitioner, Petitioner is only guilty of having accepted the certificate of the Block Co-operative Extension Officer granted over the loan application filed by the Manager/Chairman of the different primary Co-operative Societies certifying the signature as his recommendation for grant of loan. In this connection, he further submitted that once the Block Co-operative Extension Officer had certified the signature, that obviously means that the other contents of the loan application form were also duly certified by him. Learned Counsel for the Petitioner submitted that the aforesaid aspect of the matter was highlighted by the Petitioner in his second show cause reply and he also desired to personally explain the aforesaid factual aspect of the matter to the Departmental Secretary in course of hearing of his second show cause reply, but such opportunity was not granted to him by the Secretary, as he turned him out of his official chamber, which fact is duly mentioned by the Petitioner in his representation dated, 12.06.1998 addressed to the Secretary of the Department to re-open the proceedings, which is available at page 258 of the Departmental file, which this Court had called for, for perusal and ignoring such plea of the Petitioner, co-operative Department submitted memorandum, bearing Memo. No. 4197 dated, 1.12.1998 proposing dismissal of the Petitioner, which was approved by the State Cabinet in its meeting dated, 21.12.1998, vide Agenda No. 15, which was communicated to the Co-operative Department by the Special Secretary of the Cabinet Secretariat, vide communication of the Departmental file and thereafter, the Notification dated, 15.01.1999, Annexure-1 to this application dismissing the Petitioner was issued. 5. Learned Counsel for the Petitioner assails the impugned Dismissal Order, Annexure-1 by filing appeal dated, 14.03.1999 before his Excellency the Governor of Bihar, Patna, It appears, the appeal remained pending and the Petitioner filed C.W.J.C. No. 4746 of 1999, which was disposed of under Orders dated, 1.04.2004 observing that as the matter is pending for decision before the Appellate Authority, the Writ Petition is dismissed with observation that the Appellate Authority shall dispose of the appeal expeditiously. Enclosing the aforesaid Order dated, 1.04.2004, Petitioner once again furnished a copy of memo of appeal before his Excellency the Governor of Bihar, which was forwarded to the State Government for disposal by the Council of Ministers under the Governor Secretariat Letter No. 1604 dated, 7.06.2004. Similar request was again made by the Governor Secretariat under Letter No. 2815 dated, 8.10.2004 to obtain the advise of the Council of Ministers in respect of the appeal of the Petitioner. In compliance of the aforesaid two requests of his excellency the Governor of Bihar, memo of appeal was considered by the Council of Ministers together with the memorandum dated, 25.01.2005 of the Co-operative Department, Annexure-B to the supplementary counter affidavit by the State Cabinet in its meeting dated, 25.02.2005 and was rejected as is evident from the communication issued under the signature of the Additional Secretary, as contained in Annexure-C to the supplementary counter affidavit. 6. Learned Counsel for the Petitioner states that perusal of the findings recorded by the Enquiry Officer clearly indicates that Petitioner is not guilty of any financial irregularity rather he is guilty of having accepted the certificate of Block Co-operative Extension Officer granted over the loan application of the different Co-operative Societies as the recommendation of the Block Co-operative Extension Officer for grant of loan to the co-operative society concerned on the, basis of facts and figures mentioned in the application. In this connection, he submitted that if the Block Co-operative Extension Officer certified the signature, it necessarily means that he has also certified the facts and figures mentioned therein and Petitioner accepted the certificate as recommendations. As regards the registration of two fruits and vegetable producer Co-operative society without the approval of the Registrar of Co-operative Society that too without deposit of share money and drawal of higher house rent allowance of Rs. 100.00 per month by the Petitioner, learned Counsel for the Petitioner submitted that even in terms of the findings of the Enquiry Officer, over drawn amount of house rent allowance of Rs. 100.00 per month was directed to be deposited in the treasury and the Petitioner should have been directed to deposit the same and the two charges are not such for which Petitioner could be dismissed. 7. Learned Counsel for the State has opposed the prayer as according to him Charge Nos. 100.00 per month was directed to be deposited in the treasury and the Petitioner should have been directed to deposit the same and the two charges are not such for which Petitioner could be dismissed. 7. Learned Counsel for the State has opposed the prayer as according to him Charge Nos. 1 (Ka), 3(Ka), 4, 8 and 9 having been proved by the Enquiry Officer, Petitioner has to be dismissed irrespective of the fact whether he has committed any financial irregularity or he has been careless in accepting the certificate of the Block Co-operative Extension Officer granted over the loan application as the recommendation for grant of loan since loans were granted to such Co-operative Societies, which were contrary to the norms fixed by the State Government. 8. In rejoinder, learned Counsel for the Petitioner has submitted that if the Petitioner is to be dismissed for his carelessness to accept the certificate of the Block Co-operative Extension Officer as their recommendation then the Block Co-operative Extension Officer who mechanically certified the signature of the Manager and the Chairman of the co-operative society concerned over the loan application should also have been proceeded against as according to him before certifying the loan application, it was boundend duty of the Block Co-operative Extension Officer to have verified the facts and figures mentioned in the loan application and as the Block Co-operative Extension Officer having not even been proceeded Departmentally, it shall be too harsh for the State to dismiss the Petitioner for carelessness to accept the certificate as recommendation. 9. 9. Having heard Counsel for the parties, I am of the view that before proceeding with the loan application, Petitioner was required to have verified the correctness or otherwise of the contents of the loan application and he ought not to have proceeded on the basis of the certificates granted by the Block Co-operative Extension Officer alone and to that extent he is certainly guilty of carelessness and on account of his carelessness loan has been sanctioned and granted to as many as 40 Co-operative Societies, which were never recommended by the Block Co-operative Extension Officer concerned for grant of loan but as the Block Co-operative Extension Officer, Who Without verifying the contents of the loan application, certified the signatures of the Manager/Chairman of the Co-operative Society and those Block Co-operative Extension Officers have not even been proceeded against Departmentally, I am of the view that the punishment of dismissal imposed on the Petitioner is too harsh as it would relegate the family of the Petitioner to starvation that too when he was about to superannuate four years after the passing of the impugned Dismissal Order. In this regard his submission that he was not given a patient hearing at the stage of consideration of his second show cause reply by the Departmental Secretary as is evident from his representation dated, 12.06.1998 of the Departmental file, becomes relevant and appreciating such plea I set aside the impugned Dismissal Order dated, 15.01.1999, Annexure-1 to this application and direct the State Respondents in view of the finding of the Enquiry Officer to consider his case for grant of any punishment other than the dismissal, including compulsory retirement with effect from the date of earlier Dismissal Order and the arrears of salary for the period between the date of dismissal until the date of his superannuation shall depend upon the nature of the punishment, which is imposed upon the Petitioner by the State Government. 10. This application is, accordingly, disposed of.