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2014 DIGILAW 71 (CAL)

Shyamal Kumar Majumder v. Bank of India

2014-01-31

ARINDAM SINHA

body2014
Judgment : Arindam Sinha, J. The writ petitioner was posted and served as Manager in the Debaipur Branch of Bank of India with effect from 13th January, 1997 to 15th November, 1998. By a letter dated 19th April, 2001 the Bank decided to proceed against the writ petitioner under Regulation 6 of its Officers’ (Discipline and Appeal) Regulations, 1976 in respect of acts of misconduct alleged to have been committed by the writ petitioner while posted as aforesaid. The charges notified to the writ petitioner were as follows:- 1. That, violating Bank’s lending norms, the petitioner had sanctioned an additional cash, credit limit of Rs.70,000/- to the borrower M/s Sephali Cycle Store, proprietor Shri Tushar Kanti Mondal and he, with an ulterior motive, enabled the said borrower Shri Tushar Kanti Mondal proprietor of M/s Sephali Cycle Store and also the borrower Shri Sanjib Kumar Mondal (PMRY Loanee) to divert the bank’s loan amount disbursed to them through S/B A/c no.3093 of Shri B.N.Pramanik for the purpose other than for which it was sanctioned. 2. That, with intent to get undue pecuniary gain for himself, he dishonestly submitted false claims for travelling expenses to the total amount of Rs.950/- only in respect of his official journey claimed by him to have been undertaken by Auto on 21.02.97, 28.02.97, 06.03.97, 07.03.97, 21.05.98 and by Horsecart on 08.01.98 and 16.07.98 and got it sanctioned by the Competent Authority on the basis of his aforesaid false declarations whereas he had actually used and travelled to the places on bank’s Motor Cycle on aforesaid dates, thereby causing pecuniary loss to the bank to the extent of Rs.950/- only. 3. That, violating bank’s lending norms, he unduly accommodated ten PMRY borrowers to the detriment of the bank’s interest in as much as he disbursed the part loan to them through suppliers without mentioning the details of goods/articles to be supplied by the suppliers to the borrowers, in the Delivery Orders issued by him to the suppliers and without obtaining quotation from suppliers in Nine loan A/cs………….all the ten loan A/cs.were out of order and the business activities for which the loan was sanctioned had stopped in five loan A/cs. out of aforesaid ten loan A/cs. and the bank was likely to incur pecuniary loss to the extent of Rs.2,69,372/- (approximate). 4. out of aforesaid ten loan A/cs. and the bank was likely to incur pecuniary loss to the extent of Rs.2,69,372/- (approximate). 4. That, violating bank’s norms for lending, he unduly accommodated 24 PMRY borrowers, to the detriment of the bank’s interest in as much as he sanctioned and disbursed loans to them under bank’s PMRY scheme without conducting proper pre-sanction inspection and the pre-sanction inspection Reports available in 20 loan A/cs were even not signed by the Inspecting Officer…..all the aforesaid 24 PMRY loan A/cs were out of order and the business activity for which loan was sanctioned had been stopped in respect of 16 loan A/c causing likely financial loss to the tune of Rs.7,21,320/- only (approximately) to the bank. Departmental Inquiry was made and a report dated 5th September, 2001 submitted by the Inquiring Authority. The conclusions in the said report can be summed up as follows:- (a) Regarding charge no.1 the Inquiring Authority found it difficult to conclusively say that the charges were proved beyond doubt and element of inconsistency persists when the records along with the deposition made by the writ petitioner was read. However, the said authority conclusively observed that both the writ petitioner (Manager) and the Casher did not follow the laid down norms/systems and procedures while dealing with the transactions. (b) Regarding charge no.2 the Inquiring Authority observed that the charge was conclusively proved. (c) Regarding charge no.3 the Inquiring Authority observed that there were irregularities for those accounts either at the time of disbursement or after disbursement but there were recourses for recovery of the loan and, hence, the charge for bank’s loss against the writ petitioner was not conclusively proved. (d) Regarding charge no.4 the Inquiring Authority found that the documents in respect of the accounts were alive and though there were some irregularities but the recourses for recovery were not over and, hence, the charges for bank’s loss were not conclusively proved. Mr. Chatterjee appearing on behalf of the petitioner submitted that the Disciplinary Authority thereafter went on to differ with the findings of the Inquiring Authority on the same materials and evidence on record based on which the Inquiry Report had been made. Mr. Chatterjee submitted that the evidence both documentary and oral adduced in support of the charges were not such as to lead a prudent and reasonable person to differ with the conclusions of the Inquiring Authority. Mr. Chatterjee submitted that the evidence both documentary and oral adduced in support of the charges were not such as to lead a prudent and reasonable person to differ with the conclusions of the Inquiring Authority. As such the writ petitioner has challenged the order of dismissal dated 19th October, 2001, the appellate order dated 15th July, 2002 confirming such dismissal and the order dated 4th April, 2003 passed by the Reviewing Authority, as bad and should all be set aside. Mr. Chatterjee further submitted that the charges and the case of the management against his client made before the Inquiring Authority would show that charges 1, 3 and 4 as presented could not be proved. On the same material, the Disciplinary Authority had differed from such findings by virtually reframing the said charges to purportedly appreciate a case arising out of the documents on record but not put to the writ petitioner in the inquiry proceeding. Such act on the part of the Disciplinary Authority as upheld concurrently by the Appellate as well as the Reviewing Authorities, was in gross violation of the principles of natural justice and, therefore, liable to be quashed. He relied on the decision reported (2009) 12 Supreme Court Cases 78 (Union of India and Ors. vs. Gyan Chand Chattar) where the Hon’ble Supreme Court had held, inter alia, that serious charges like bribery should be specific, definite, detailed and strict adherence to statutory principles and natural justice were essential. The Hon’ble Supreme Court also held that in Departmental Inquiries proof and suspicion were distinct from each other. Mr. Majumdar on behalf of the respondents (bank) submitted that the scope of the writ court to interfere in matters of disciplinary proceedings and findings arrived at therein was limited to the court being satisfied as to whether or not the proceedings were duly conducted upon every opportunity to defend, given to the charged officer. He submitted that there was no allegation on the part of the petitioner that the proceedings commencing with the inquiry and culminating with the order of the Reviewing Authority had not been duly conducted. He submitted that there was no allegation on the part of the petitioner that the proceedings commencing with the inquiry and culminating with the order of the Reviewing Authority had not been duly conducted. The writ petitioner was given every opportunity of hearing before the Inquiring Authority to make representation before the Disciplinary Authority, prefer appeal and review from orders and in the circumstances the court should not shift through the material to test the decision arrived at, as if in appeal therefrom. Mr. Majumdar relied upon the following decisions to emphasize his point. 1. (1998) 7 Supreme Court Cases 84 (Punjab National Bank and Ors. vs. Kunj Bihari Misra) for the proposition that when findings in the Inquiry Report are favourable to the charged employee the Disciplinary Authority before differing with those findings must give opportunity of representation to the charged employee. 2. (i) (2009) 13 Supreme Court Cases 272 (Government of Andhra Pradesh and Ors. vs. P Chandra Mouli and Anr.); (ii) (2005)3 Supreme Court Cases 254 (Divisional Controller, KSRTC (NWKRTC) vs A.T.MANE); (iii) (2003) 9 Supreme Court Cases 191 (Sub-Divisional Officer, Konch vs. Maharaj Singh); (iv) (2003) 4 Supreme Court Cases 364 (Chairman and Managing Director, UCO Bank and Ors. vs. P.C Kankan); and (v) (2003) 3 Supreme Court Cases 586 (Lalit Popli vs. Kanara Bank and Ors.) for the proposition that under Article 226 of the Constitution of India the scope of judicial review of the High Court was not to act as an Appellate Authority. 3. (1997) II LLJ 26 (Tara Chand Vyas vs. Chairman and Disciplinary Authority and Ors.) to rely upon the observation of the Hon’ble Supreme Court that the disciplinary measure should aim to eradicate the corrupt proclivity of conduct on the part of the employees/officers in the public offices including those in banks. It would, therefore, be necessary to consider, from this perspective, the need for disciplinary action to eradicate corruption to properly channelise the use of the public funds, and to see that the corrupt conduct of the officers does not degenerate the efficiency of service leading to denationalisation of the banking system. 4. (1999) 4 Supreme Court Cases 759 (State Bank of India and Ors. 4. (1999) 4 Supreme Court Cases 759 (State Bank of India and Ors. vs. T.J Paul) for the proposition that in the context of doing any act prejudicial to the interests of the Bank or gross negligence involving or likely to involve the Bank in serious loss, proof of actual loss was not necessary and likelihood of loss was enough to return the verdict of guilty to the charged employee. 5. (1996) Supreme Court Cases (L & S) 1194 (Disciplinary Authority-cum- Regional Manager and Ors. Vs. Nikunja Bihari Patnaik) for the proposition that acting beyond one’s authority would be misconduct and proof of any loss was not necessary. 6. (1998) 4 Supreme Court Cases 310 (Union Bank of India vs. Vishwa Mohan) for the proposition that penalty of dismissal was justified when a bank officer charged with taking bribe, failing to protect the interests of the bank and to perform duty with utmost diligence, integrity and honesty by acting in a manner in becoming of a bank officer. The propositions of law laid down by the Hon’ble Supreme Court when applied to the present case would require this court to consider whether there has been any violation of the principles of natural justice in the matter of the departmental proceeding culminating in the order of dismissal from service. There is no allegation that opportunity of hearing or making representation was denied to the writ petitioner. The writ petitioner also has not invited this court to shift through the evidence as if in a first appeal to come to a decision on merits. What the petitioner has urged before this court is that the charges framed and case made out to prove such charges against the writ petitioner had resulted in findings of the Inquiry Authority which was of the opinion that excepting the minor charge no. 2, the others could not be conclusively proved. The Disciplinary Authority on the basis of the same material on record, which according to the bank was there but apparently not relied upon in presenting the case to the petitioner in the inquiry to give opportunity to the charged officer to explain, was not entitled to use the same to substantiate the charges made. It does appear from a perusal of the management’s case that the charged officer had the discretion to sanction the loan under charge no.1. It does appear from a perusal of the management’s case that the charged officer had the discretion to sanction the loan under charge no.1. There is no case that such discretion was misused. Furthermore, under charge nos. 3 and 4, the Disciplinary Authority impliedly conceded that likelihood of bank’s loss had not been proved. The reasons given by the Disciplinary Authority do not appear to have any relation to the case made out by the management as put to the petitioner in the inquiry proceeding. This court finds that the Disciplinary Authority sought to substantiate different findings against charge nos. 1, 3 and 4, that they were conclusively proved against writ petitioner and did so by seeking to rely on the documentary evidence on record as its reasons. Such reasons are not clear reasons and have no relation with the case on the charges made out in the inquiry proceeding. Since the Disciplinary Authority neither remitted the matter back to the Inquiring Authority nor gave a fresh hearing to the petitioner but relied on the materials on record to differ, the procedure adopted to come to the differing conclusions was in violation of the principles of natural justice as no opportunity was given to the writ petitioner to explain his position regarding the documents relied upon by the Disciplinary Authority to differ from the findings of the Inquiring Authority which were favourable to him. Even otherwise, the reasons given by the Disciplinary Authority are not at all clear. In the opinion of this court such reasons cannot be said to be reasons as could be understood by a reasonable and prudent person as good reasons for differing with those of the Inquiring Authority, thus no reasons at all. In view of my finding above the order of dismissal dated 19th October, 2001 passed by the Disciplinary Authority cannot be sustained and is set aside. Consequently, the orders dated 5th July, 2002 and 4th April, 2003 passed respectively in appeal and review therefrom upholding such order of dismissal are also set aside. It is, however, open to the Disciplinary Authority to continue with the disciplinary proceedings pursuant to the Inquiry Report dated 5th September, 2001 in accordance with law. The writ petition is allowed to the extent aforesaid. There will, however, be no order as to costs.