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2011 DIGILAW 1124 (CAL)

Partha Banerejee v. State Bank of India

2011-08-18

TAPEN SEN

body2011
Judgment :- Tapen Sen, J. In this Writ Petition, the Petitioner has prayed for a Order commanding upon the Respondents to withdraw the letter dated 22.4.2010 as contained in Annexure-P/2 at Page 36 of the Writ Petition whereby and whereunder the Petitioner was directed to show cause on certain alleged irregularities and/or alleged violation of the code of conduct within a period of 3 days failing which, it was indicated, that it will be construed that he had no reply to offer and in that event, the Bank would take further appropriate action. The Petitioner has also prayed for an Order commanding upon the Respondents to withdraw the subsequent Order of suspension passed on 14.5.2010 as contained in Annexure-P/10 at Page 45 whereby and whereunder the Petitioner was informed that the appropriate authority had decided to place the Petitioner under suspension from the Bank’s service pending completion of the disciplinary proceedings in connection with the Violation of Service Rules and for “gross misconduct” by engaging in trade or business outside the scope of his duties and indulging in acts prejudicial to the interest of the Bank which was likely to cause serious loss to the Bank. Consequently the Petitioner was put under suspension with a direction that during the said period, he would refrain from entering into the Bank’s premises unless specifically instructed/permitted to do so by the Bank in connection with the enquiry. The Petitioner has also prayed for quashing of the said letter and Order as contained in Annexure-P/2 and P/10 respectively. Other consequential prayers have been made including an Order directing the Respondents to allow him to join his duties as Senior Assistant in the Burrabazar Branch of the State Bank of India, Kolkata. 2. The short facts of this case are that the Petitioner was working as a Senior Assistant in the Burrabazar Branch of the State Bank of India (hereinafter referred to as the said SBI) and there were no allegations against him in the discharge of his duties. His wife, Sukanya Banerjee is carrying on a trading business of foreign liquor under the name and style of “M/s. B.S. Enterprise” as a Partner and, as a Proprietress of M/s. Shivam Enterprise. According to the Petitioner, he is however, in no way connected with the said business of his wife. 3. His wife, Sukanya Banerjee is carrying on a trading business of foreign liquor under the name and style of “M/s. B.S. Enterprise” as a Partner and, as a Proprietress of M/s. Shivam Enterprise. According to the Petitioner, he is however, in no way connected with the said business of his wife. 3. On or about 22.10.2005, the Petitioner’s wife Sukanya Banerjee, had entered as a partner of M/s. B. S. Enterprise. In the year 2006, the Respondent No. 4 (Branch Manager, SBI, Mankundu Branch) granted credit facilities to the wife of the Petitioner for her business in respect of her proprietorship concern. The said credit facility is still continuing. According to the Petitioner, the said credit facility is fully secured by creation of mortgage on several immovable properties in favour of the Respondent No. 4 (Branch Manager, SBI, Mankundu Branch). 4. The Petitioner has stated that for purposes of granting of such credit facility, he had stood as a Guarantor thereof after informing the appropriate authority. Several documents and papers were therefore signed and excluded by and between the wife of the Petitioner as borrower, the Petitioner as guarantor and, the Respondent No. 4. 5. On 10.6.2008, Sukanya Banerjee again applied before the Respondent No. 4 for credit facilities for her business in respect of the proprietorship concern namely M/s. Shivam Enterprises and the Respondent No. 4, after considering all aspects of the matter including the earlier credit facilities granted to her, duly sanctioned the same on 29.5.2009. 6. The Petitioner was again a Guarantor to the said application for credit facility and like the other transactions, several documents were again signed by the three parties mentioned above. The Petitioner has submitted and relied on his letter dated 9.7.2009 in order to say that he had sought permission from the Regional Manager, Region-III for standing as a Guarantor. The second credit facility is still continuing and is also secured. In Para-13, the Petitioner has stated that he had stood Guarantor in respect of the credit facilities because the mortgaged immovable properties are joint ownership properties belonging both to the Petitioner as well as to his wife. 7. In Para-14, the Petitioner has stated that though he stood guarantor in respect of the credit facilities availed by his wife, he was however not, in any way, connected with the business of his wife. 8. 7. In Para-14, the Petitioner has stated that though he stood guarantor in respect of the credit facilities availed by his wife, he was however not, in any way, connected with the business of his wife. 8. On 22.4.2010, while he was working as a Senior Assistant in the Burrabazar Branch of the said SBI, the Petitioner received the impugned show cause notice vide Annexure-P/2. By his letter dated 24.4.2010, the Petitioner requested for 15 days’ time to submit his explanation vide Annexure-P/3. Subsequently, by letter dated 26.4.2010 (Annexure-P/4), the Respondent No. 3 (Chief Manager) informed the Petitioner that he was given 7 days’ time from the date of issuance of the earlier letter dated 22.4.2010 to reply to the show cause notice. In reply, the Petitioner, by his letter dated 28.4.2010 (Annexure-P/5), requested the Chief Manager that necessary documents be allowed to be seen by him so as to enable him to give a suitable reply. Since the Respondent No. 3 did not allow the Petitioner to see the documents, the Petitioner again wrote on 30.4.2010 (Annexure-P/6) wherein he again requested that he be shown the documents so as to give a reply as sought for by the said SBI. The said documents that he wanted to see were:- a) Guarantee form and any other forms signed by him in connection with the account of Ms. Shivam Enterprises. b) Affidavit dated 15.01.2009. c) His Bio-data. 9. In Para-22, the Petitioner has stated that in spite of repeated written and verbal requests, the Respondent No. 3 did not allow the Petitioner to peruse the documents and instead, by a letter dated 4.5.2010(Annexure-P/8), he informed the Petitioner that he could peruse the documents of M/s. Shivam Enterprises at their Mankundu Branch and submit his reply latest by 7.5.2010 failing which, the competent authority would take action as may be deemed fit and proper. 10. The Petitioner filed his reply on 7.5.2010 vide Annexure- P/9. Thereafter on 14.5.2010, the impugned Order of suspension was passed. 11. According to the Petitioner, the impugned Order of suspension is illegal and motivated as there was no misconduct at all. 10. The Petitioner filed his reply on 7.5.2010 vide Annexure- P/9. Thereafter on 14.5.2010, the impugned Order of suspension was passed. 11. According to the Petitioner, the impugned Order of suspension is illegal and motivated as there was no misconduct at all. The Petitioner has submitted that he had stood as a Guarantor in the first credit facility in respect of the proprietorship concern, namely, M/s. Shivam Enterprises, in the year 1998 but no departmental action was taken since he had submitted the necessary letter of approval from the competent authority. The Petitioner has also submitted that he had not personally engaged in any trade or business which was outside the scope of his duties. He had only stood as a guarantor after applying for the same and therefore, the action of the Respondents was not proper. 12. An Affidavit-in-opposition has been filed on behalf of the Respondents wherein they have stated that the Writ Petition is not maintainable since the Petitioner is a “workman” within the meaning of Industrial Disputes Act, 1947 and has an alternative remedy under the provisions of the said Act. They have also stated that the Writ Petition abounds in disputed questions of fact and that the Petitioner has approached this Court with unclean hands. They have further stated that the letter dated 22.4.2010 was not liable to be questioned before this Court and similarly, the letter of suspension was also not liable to be questioned. They have further stated that this Court has no scope to entertain the said Petition and that the Petitioner is trying to delay the departmental proceedings which should not be permitted. They have also stated that the reply submitted by the Petitioner was not found to be satisfactory and as such, the Disciplinary authority decided to proceed further in the matter and accordingly, issued the letter of suspension. 13. On facts, these Respondents have given details of the duties of the Petitioner in Para 5(iii) and have stated that by reason of his powers and duties, he had easy access to all confidential records and documents of the Bank and was therefore in a position to influence the staff of the Bank. 13. On facts, these Respondents have given details of the duties of the Petitioner in Para 5(iii) and have stated that by reason of his powers and duties, he had easy access to all confidential records and documents of the Bank and was therefore in a position to influence the staff of the Bank. They have also stated that the Petitioner is governed by the provisions of various Bipartite Settlements applicable to the award staff and also by the Rules of Conduct of the Bank which are, in addition, to the provisions of the Sastri and the Desai awards or any other award that may come into force. These Rules prohibit an employee of the Bank from placing himself under a pecuniary obligation to any firm or person having dealings with the Bank and except with the permission of the competent authority, no employee can guarantee the pecuniary obligation of other persons or agree to indemnify such other person from loss. They have stated, in the instant case, that the wife of the Petitioner, who was a partner of M/s. B.S. Enterprises had taken a loan in the year 2005 when the Petitioner was a Senior Assistant. They have submitted that it is incomprehensible that the Petitioner had no knowledge about his wife’s business or about her taking loan from the Branch. The said amount of M/s. B.S. Enterprises had turned NPA which, according to Mr. Soumya Majumder, learned counsel appearing for the Respondent Bank means, “Non Performing Asset” and therefore, the Bank had to initiate a proceeding under the SARFAESI Act which again, according to Mr. Soumya Majumder, means the Securitisation and Restriction of Financial Assets and Enforcement of Security Interest Act.” 14. According to the Bank, the non-refund of the loan taken by the wife of the Petitioner has caused substantial loss to the Bank and therefore, proceedings under Section 13 of the said Act had already been initiated in the year 2010 against the borrower firm as well as against the partners of M/s. B.S. Enterprises. 15. The Respondents have stated that in the year 2008, a second loan was again applied for in the name of M/s. Shivam Enterprises and this time, the Application was made before the Mankundu Branch. 15. The Respondents have stated that in the year 2008, a second loan was again applied for in the name of M/s. Shivam Enterprises and this time, the Application was made before the Mankundu Branch. According to the Respondents, the records of the said Mankundu Branch have revealed that the Petitioner, along with his wife, had filed a joint declaration which was notarised before the Notary Public, Hooghly at Chinsurah on 15.1.2009 and in the said Affidavit, both had declared to have applied and approached the Branch Manager of the Mankundu Branch for taking a house building loan. In the same Affidavit, they had also declared that they were not defaulters in any Bank. It is the further case of the Respondents that the Petitioner stood as a Guarantor to the said loan without obtaining permission of the competent authority which, as per Rules, was the Controller of the Branch Office where he was posted i.e. Assistant General Manager, Region-III. They have stated that even on the date of making the Affidavit, he was aware that his wife was a defaulter in respect of the loan taken by her in 2005 and that he had not obtained any permission from the competent authority before standing as a Guarantor to the loan taken by his wife in the year 2008. They have also stated that although in his letter dated 7.5.2010 (Annexure-P/9) the Petitioner has referred to his application for standing as a guarantor dated 9.7.2008 in relation to the loan proposal of M/s. Shivam Enterprises, he did not annex the said letter. However, it appears that the same letter has been brought on record by the Petitioner vide Annexure-P/1 which, according to the Respondents, is not available in the records of the Bank. They have also stated that in his letter dated 7.5.2010, he has himself requested the Chief Manager to enquire into the matter so as to prove his innocence. 16. The Respondents have stated that his reply was found to be unsatisfactory and therefore, they put him under suspension. They have also stated that in his letter dated 7.5.2010, he has himself requested the Chief Manager to enquire into the matter so as to prove his innocence. 16. The Respondents have stated that his reply was found to be unsatisfactory and therefore, they put him under suspension. These then are the contentions of the Bank in answer to the various statements made by the petitioner in the different paragraphs contained in the Writ Petition but basically, while denying the allegations made therein, these Respondents have stated that whether the Petitioner is connected with the business of his wife or not, cannot be a subject matter of a Writ Petition but it is a subject matter of an enquiry. They have also repeated that the loan given to the partnership firm of M/s. B. S. Enterprises had turned into a Non Performing Asset and the Bank had already initiated a proceeding under the relevant Act referred to above. 17. An Affidavit-in-Reply has been filed by the Petitioner which are in the nature of repetitions of what have been stated and submitted in the Writ Petition but in reply to statements made in Para 5(v), the Petitioner has denied to have been aware of the fact that his wife was a defaulter in respect of the loan taken in 2005 even on the date when he was making the affidavit. He has also denied that he had not obtained permission from the competent authority. He has further, inter alia, stated that he denies and disputes the contention of the Bank that he had interest with the business of his wife or that he had wilfully suppressed the fact that M/s. B.S. Enterprise had turned into a “Non Performing Asset” since December 2008. 18. Other statements have also been made which are all in the nature of denial of the contentions raised by the Respondents. 19. Upon a perusal of the rival contentions of the parties, this Court is inclined to agree with the contentions of the Respondents. The basic contention of the Petitioner is that he is not connected in any way with the business or the firm of his wife. Whether he is connected with the business or the firm of his wife, is really a question of fact which can be decided in a duly constituted enquiry. The basic contention of the Petitioner is that he is not connected in any way with the business or the firm of his wife. Whether he is connected with the business or the firm of his wife, is really a question of fact which can be decided in a duly constituted enquiry. Moreover, from his own request made in his letter dated 7.5.2010, the Petitioner has himself requested that enquiry should be held to prove his innocence. In fact, he had stated that there should be a meaningful and viable investigation. The relevant portions of the two paragraphs of his letter dated 7.5.2010 as contained in Annexure-P/9 are quoted below but some of the portions have been underlined for emphasis: “I request your administration to look into the matter and believe that your administration should have take cognigence to the actual incidence holding and enquiry proceedings, so as to prove my documentation, furnished by me at the relevant time, in connection with the query sought for by your good administration in course of discharging my responsibilities as senior assistant in Burrabazar branch. I hope the above representation on my part should move you in right perspective and also request your good administration to see that you should make a viable and meaningful investigation without any such precedence on the either side. This is without prejudice to my other rights and contentions.” (Quoted but underlining the emphasis is by this Court) 20. This Court is of the view that a mere denial by the Petitioner in para-8 that he denies and disputes that he was aware that his wife was a defaulter in respect of the loan taken in 2005 and that he was unaware of such a fact at the time of making the affidavit, is a mere denial for denial’s sake. The wife being a defaulter and the husband not knowing anything about it, is totally incomprehensible even though the Petitioner claims to have a separate identity as a service holder and his wife, a businesswoman. For all other purposes, these two cannot be mixed up but it is not at all possible to believe that a husband is not aware of the fact that his wife is a defaulter and for which, the Bank has initiated proceedings for the 2005 loan. Such a denial therefore cannot be believed. For all other purposes, these two cannot be mixed up but it is not at all possible to believe that a husband is not aware of the fact that his wife is a defaulter and for which, the Bank has initiated proceedings for the 2005 loan. Such a denial therefore cannot be believed. Under the circumstances stated above and for the foregoing reasons, this Court is of the view that there is no merit in the Writ Petition. It is accordingly Dismissed. All interim Orders are hereby vacated. As a consequence, this Court is not inclined to hold that Respondent’s are guilty of any contempt as has been sought to be made out in the Contempt Application being C.C. No. 186 of 2010. The same is therefore, accordingly, also Dismissed. For the foregoing reasons, G. A. No.2578 of 2010 is also disposed of. No Order as to costs. Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, may be given/issued expeditiously subject to usual terms and conditions.