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Allahabad High Court · body

2008 DIGILAW 1898 (ALL)

ATAM PRAKASH v. STATE OF UTTAR PRADESH

2008-09-08

R.M.CHAUHAN, SUNIL AMBWANI

body2008
JUDGMENT By the Court.—Heard learned Counsel for the petitioner, Sri K.N. Misra appears for respondent-bank. 2. Shri Atam Prakash, the petitioner was appointed as Asstt. Field Officer in U.P. Sahkari Gram Vikas Bank Ltd. in 1990. He was appointed as District/Senior Manager in the year 1995. In the period between 29.8.1998 to 2.11.1999 he was posted as District/Senior Manager, Pilibhit of the Bank. The petitioner was promoted as Regional/Asstt. General Manager in March 2000 in Kumayun Region and was thereafter transferred to Gorakhpur region. 3. A charge-sheet was served upon the petitioner on 16.1.2002 relevant to his posting in Kumayun region as well as Gorakhpur region. The charges related to failure to hold an enquiry on the complaint made by one Shri Shyam Lal, forwarded to the petitioner with endorsement of the Chief Minister of the State; failure to hold an enquiry in respect of complaints of 25 persons and acting negligently in distributing the loans: failure to make enquiry in respect of an officer regarding misappropriation and remaining absent in the office on 29.11.2001 without any sanctioned leave or permission of the authority. 4. The petitioner submitted a reply to the charge-sheet on 21.9.2002. The enquiry officer without holding any enquiry found that the charges were proved and submitted an enquiry report on 25.9.2003. No action was taken on this enquiry report. 5. On 2.8.2005 the Board of Management, U.P. Sahkari Gramin Vikas Bank Ltd. placed the petitioner under suspension on the ground that when the petitioner was posted as Senior Manager at Pilibhit during 29.8.1998 to 2.11.1999, he had committed irregularities in distribution of loans. The allegations included the charges in the earlier charge-sheet. Aggrieved the petitioner preferred Civil Misc. Writ Petition No. 1391 (S/B) of 2005 at the High Court at Lucknow, which was disposed of on 22.8.2005 with directions that the charge-sheet be given to the petitioner within 10 days; his reply to be submitted within four weeks and thereafter to conclude the departmental enquiry by 31st December, 2005 and if these proceedings are not concluded by 31st December, 2005, the suspension order dated 2.8.2005 was to stand automatically revoked. 6. A charge-sheet was given to the petitioner by the enquiry officer on 29.8.2005. All the allegations constituting charges related to the period, when the petitioner was posted as Senior Manager between 29.8.1998 to 2.11.1999 at Branch Pilibhit. 6. A charge-sheet was given to the petitioner by the enquiry officer on 29.8.2005. All the allegations constituting charges related to the period, when the petitioner was posted as Senior Manager between 29.8.1998 to 2.11.1999 at Branch Pilibhit. It was alleged that the petitioner sanctioned loans to 153 persons/matters of Rs. 51 lacs on the security of lease lands under the Government Grants Act. Out of this in 37 matters the applicants were not in possession. The charge No. 2 related to the same loans granted to 153 persons of Rs. 51 lacs out of which no recovery could be made in 51 cases. The charge No. 3 related to following wrong practices against the directions of the headquarters, in respect of disbursing loan to 27 persons, who were defaulters of the bank and were given second loans within six months. The charge No. 4 related to the failure to make appropriate assessment of the capacity, asset creation, financial means and the capacity of the borrowers to pay the loan, and charge No. 5 related to giving loan to such lease holders, who were having history of being defaulters and thus causing loss to the bank. 7. In the charge-sheet dated 29.8.2005 the charges relating to petitioner’s posting in Kumayun Region or Gorakhpur Region were not mentioned. 8. The petitioner submitted a reply to the charges on 27.9.2005 in which he alleged that allegations were frivolous. The loans were given after proper assessment of the capacity, and examining the lease deeds of the lease lands. The physical verification was made by the Field Officers and that the report of the Field Officers was given after proper verification, documentation in accordance with the norms of the bank. 9. It is stated by learned Counsel for the petitioner that on the only date fixed in the enquiry on 28.10.2005, when Shri D.D. Mitra, the Field Officer was present and examined, a request was made by the petitioner to summon the remaining two officers namely Shri R.S. Sharma and Shri K.S. Yadav, the Asstt. Field Officers and to summon and produce the records relating to recovery proceedings, initiated by the bank against the 51 borrowers. The enquiry officer neither summoned these witnesses with records nor allowed the petitioner any opportunity to produce his evidence. The enquiry officer straightway submitted his report dated 21.11.2005, without fixing any further date. Field Officers and to summon and produce the records relating to recovery proceedings, initiated by the bank against the 51 borrowers. The enquiry officer neither summoned these witnesses with records nor allowed the petitioner any opportunity to produce his evidence. The enquiry officer straightway submitted his report dated 21.11.2005, without fixing any further date. A show cause notice dated 13.12.2005 was issued to the petitioner by the respondent No. 3 proposing punishment of termination of his services as well as recovery of Rs. 78,86,865/-. 10. The petitioner filed a written reply to the Managing Director of the Bank on 20.12.2005 and stating therein that the preliminary enquiry was made by the officers lower in rank to the petitioner; the entire enquiry proceedings were held ex parte; the dates on which the enquiry officer inspected the records at Pilibhit was not informed to the petitioner and that only one date namely 28.10.2005 was fixed in the enquiry proceedings. On that date the petitioner was not told as to which documents and officers will be produced to prove the charges. The petitioner was not given any opportunity to defend himself. The entire proceedings were violative of principles of natural justice. The petitioner’s request to produce Shri K.L. Yadav and Shri R.S. Sharma was not considered and that enquiry report does not mention about any financial loss and the basis for making petitioner responsible for loss. The petitioner further submitted that charges related to posting at Kumayun region and Gorakhpur region were not made part of later enquiry. 11. The Managing Director of the bank by the impugned order dated 30.12.2005 found that the petitioner’s reply was not satisfactory. The bank acted on a false report generated by the Field Officer and did not adhere to the norms of the bank for grant of loans causing loss of Rs. 78,86,865/- to the bank. The permission of the U.P. Cooperative Institutional Board, Lucknow was taken before imposing punishment under U.P. Sahkari Gramin Vikas Bank Employees Service Rules. The petitioner was punished with removal from service and for recovery of Rs. 78,86,865 as loss caused to the bank under Section 68 of the U.P. Cooperative Societies Act, 1965. Further he was denied any amount other than suspension allowance during the period of his suspension. 12. Learned Counsel for the petitioner submits that the charges were entirely vague, no enquiry was held by the enquiry officer. 78,86,865 as loss caused to the bank under Section 68 of the U.P. Cooperative Societies Act, 1965. Further he was denied any amount other than suspension allowance during the period of his suspension. 12. Learned Counsel for the petitioner submits that the charges were entirely vague, no enquiry was held by the enquiry officer. The allegations and reports were not proved. The petitioner was not allowed to lead defence evidence. Only one date was fixed in the enquiry. Nothing much transpired on that date. The field officers, who had prepared the reports were not summoned and that petitioner’s request to summon them was also not accepted. He has relied upon several decision of the Supreme Court on the proof of charges in departmental enquiries. 13. In State of U.P. v. Satrughan Lal, 1998 (3) AWC 2373 (SC) the Supreme Court relying upon Chandrama Tiwari v. Union of India, JT 1987 (4) SC 398, has held that the delinquent officer must be supplied copies of the document relied upon in support of the charges. If the documents are voluminous and copies cannot be supplied, then the such officer must be given an opportunity to inspect the same or else the principles of natural justice would be violated. In Sher Bahadur v. Union of India, AIR 2002 SC 3030 , it was held by the Supreme Court that expression “sufficiency of evidence” postulates existence of some evidence, which links the charged officer with the misconduct alleged against him. Evidence, however, voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the enquiry officer has noted in his report “in view of oral, documentary and circumstantial evidence as adduced in the enquiry”, would not in principle satisfy the rule of sufficiency of evidence. In Tarlochan Dev Sharma v. State of Punjab and others, (2001) 6 SCC 260 , the Supreme Court held that the expression “abuse of powers” in the context and setting in which it has been used cannot mean use of power which may appear to be simply unreasonable or inappropriate. It implies a wilful abuse or an intentional wrong. In Tarlochan Dev Sharma v. State of Punjab and others, (2001) 6 SCC 260 , the Supreme Court held that the expression “abuse of powers” in the context and setting in which it has been used cannot mean use of power which may appear to be simply unreasonable or inappropriate. It implies a wilful abuse or an intentional wrong. In Sawai Singh v. State of Rajasthan, AIR 1986 SC 995 , the Supreme Court held that where charges framed against the delinquent officer were vague and no allegations regarding it have been made by him before the enquiry officer or before the High Court, the fact that he participated in the enquiry would not allow the department to bring home the charges. The enquiry based on such charges would stand vitiated, being not fair. 14. We do not express any opinion on the vagueness of the charges at this stage. In the preliminary enquiry the allegations of failure to consider at the time of grant of loan that all the applicants were not in possession of the lease land. There were allegations that the petitioner did not verify the lease deeds and that the norms of the bank in grant of loan were followed. These allegations were required to be proved in the enquiry by relevant evidence. We are concerned here in this case about the manner and method in which disciplinary enquiry was conducted. The petitioner was not given the copies of all the documents in support of the charges and was not allowed inspection of these documents as well. When the petitioner was charged with failing to adhere to the practices and norms and procedure of the bank in granting the loans, it was necessary to give him copies of such norms and practices to the officer. It was not sufficient to state that as senior officer the delinquent officer knows and was aware of these norms. 15. We further find that no enquiry was held on the charges. The enquiry officer fixed only one date in the entire proceedings. He did not examine the field officer, and the author of the preliminary enquiry report or any other officer of the bank to prove the allegations. There is nothing to show that the petitioner had admitted these charges and thus it was not necessary to prove the charges against the petitioner. He did not examine the field officer, and the author of the preliminary enquiry report or any other officer of the bank to prove the allegations. There is nothing to show that the petitioner had admitted these charges and thus it was not necessary to prove the charges against the petitioner. The petitioner protested on the same day on 28.10.2005 that he was not given the entire documents. In fact nothing transpired on 28.10.2005. The Managing Director as such could not have accepted the enquiry report. 16. The disciplinary authority must ensure that the rules prescribed to hold disciplinary enquiry have been followed and that the delinquent officer has been given sufficient opportunity to defend himself. He has to, thereafter, find out whether the charges are proved by the evidence relevant to the charges and that the charged officer is given both opportunity to cross-examine the witnesses and to lead his evidence in defence. It is only then the notice for accepting the enquiry report and proposed punishment can be given. In this case the procedure was not followed. The charges, which are alleged to be vague were not proved, and thus we cannot sustain the acceptance of the enquiry report and the order awarding punishment to the petitioner. 17. The writ petition is allowed. The impugned order of punishment dated 30.12.2005 passed by the Managing Director, U.P. Sahkari Gramin Vikas Bank, Lucknow as well as the enquiry report are set aside. The disciplinary enquiry, will be relegated on the stage of submission of charge-sheet. The respondents shall follow the procedure laid down under the rules for holding the enquiry and observed principles of natural justice in which the petitioner would be given adequate opportunity of hearing. The petitioner was suspended during the pendency of enquiry. He shall be, therefore, treated under suspension. The petitioner shall be paid entire suspension allowance admissible under the rules with effect from the date the suspension allowance was stopped. It will be open to the respondents to attach the petitioner at a convenient place, from where he may be able to defend himself. The entire arrears of suspension allowance shall be paid within a period of month from the date the petitioner furnishes a certified copy of the order before the Managing Director of the bank. 18. The petitioner will also be entitled to payment of Rs. The entire arrears of suspension allowance shall be paid within a period of month from the date the petitioner furnishes a certified copy of the order before the Managing Director of the bank. 18. The petitioner will also be entitled to payment of Rs. 15,000/- as costs of the proceedings from the bank, which shall also be paid to him along with arrears of suspension allowance. ————