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Gauhati High Court · body

2015 DIGILAW 99 (GAU)

MANAPATI DAS v. ASSAM GRAMIN VIKASH BANK

2015-02-02

B.K.SHARMA

body2015
ORDER (CAV) 1. The petitioner is aggrieved by the penalty of compulsory retirement imposed on him pursuant to a departmental proceeding. The petitioner while serving as a Branch Manager of the particular branch of the respondent bank was served with the Annexure-1 charge-sheet dated 07.05.2008 leveling the following charges:- 1) You sanctioned and disbursed a loan of Rs.2.00 lakh (Rupees two lakh) including subsidy of Rs.1.00 Lakh (Rupees one lakh) to Nur SHG on 03.03.2005 for a duckery unit. You did not adjust the existing Cash Credit account of the SHG which was disbursed as Revolving Fund where the balance outstanding as on 22.09.2006 stood at Rs.21,391,00 (Rupees twenty one thousand three hundred ninety one). You did not report about this account to the Area Manager, Dhubri at the time of forwarding the loan proposal of Rs.2.00 lakh (Rupees two lakh) for sanction. This is a clear case of suppression of fact by way of which you misled the sanctioning authority to get the loan sanctioned. You disbursed the loan to the SHG but did not ensure implementation of the scheme. As a result the SHG diverted the entire amount of fund causing uncertainty of recovery of the bank’s money. You also encouraged the SHG to misappropriate Govt. subsidy to the tune of Rs.1.00 lakh (Rupees one lakh). Your such act has caused the bank likely to incur loss to the tune of Rs.2.21,391.00 (Rupees two lakh twenty one thousand three hundred ninety one) including the balance in the Cash Credit account with interest on the balances in both the accounts. 2)You sanctioned and disbursed a loan of Rs.2.00 lakh (Rupees two lakh) including subsidy of Rs.1.00 lakh (Rupees one lakh) to Amin SHG on 03.03.2005 for a duckery unit. Ydid not adjust the existing Cash Credit account of the SHG which was disbursed as Revolving Fund where the balance outstanding as on 22.09.2006 stood at Rs.22,108.00 (Rupees twenty two thousand one hundred eight). You did not report about this account to the Area Manager, Dhubri at the time of forwarding the loan proposal of Rs.2.00 lakh (Rupees two lakh) for sanction. This is a clear case of suppression of fact by way of which you mislead the sanctioning authority to get the loan sanctioned. You disbursed the loan to the SHG but did not ensure implementation of the scheme. This is a clear case of suppression of fact by way of which you mislead the sanctioning authority to get the loan sanctioned. You disbursed the loan to the SHG but did not ensure implementation of the scheme. As a result the SHG diverted the entire amount of fund causing uncertainty of recovery of the bank’s money. You also encouraged the SHG to misappropriate Govt. subsidy to the tune of Rs.1.00 lakh (Rupees one lakh). Your such act has caused the bank likely to incur loss to the tune of Rs.2,22,108 (Rupees two lakh twenty two thousand one hundred eight) including the balance in the Cash Credit account with interest on the balances in both the accounts. 3) You sanctioned and disbursed a loan of Rs.2.00 lakh (Rupees two lakh) including subsidy of Rs.1.00 lakh (Rupees one lakh) to Ashirbad SHG on 07.06.2006 for a duckery unit. You did not adjust the existing Cash Credit account of the SHG which was disbursed as Revolving Fund where the balance outstanding as on 22.09.2006 stood at Rs.10,326.00 (Rupees ten thousand three hundred twenty six). You did not report about this account to the Area Manager, Dhubri at the time of forwarding the loan proposal of Rs.2.00 lakh (Rupees two lakh) for sanction. This is a clear case of suppression of fact by way of which you mislead the sanctioning authority to get the loan sanctioned. You disbursed the loan to the SHG but did not ensure implementation of the scheme. As a result the SHG diverted the entire amount of fund causing uncertainty of recovery of the bank’s money. You also encouraged the SHG to misappropriate Govt. subsidy to the tune of Rs.1.00 lakh (Rupees one lakh). Your such act has caused the bank likely to incur loss to the tune of Rs.2,10,326.00 (Rupees two lakh ten thousand three hundred twenty six) including the balance in the Cash Credit account with interest on the balances in both the accounts. 4) You sanctioned and disbursed a loan of Rs.2.00 lakh (Rupees two lakh) including subsidy of Rs.1.00 lakh (Rupees one lakh) to Everest SHG on 07.06.2006 for a Piggery unit. You did not adjust the existing Cash Credit account of the SHG which was disbursed as Revolving Fund where the balance outstanding as on 23.10.2006 stood at Rs.10,000.00 (Rupees ten thousand ). You did not adjust the existing Cash Credit account of the SHG which was disbursed as Revolving Fund where the balance outstanding as on 23.10.2006 stood at Rs.10,000.00 (Rupees ten thousand ). You did not report about this account to the Area Manager, Dhubri at the time of forwarding the loan proposal of Rs.2.00 lakh (Rupees two lakh) for sanction. This is a clear case of suppression of fact by way of which you mislead the sanctioning authority to get the loan sanctioned. You disbursed the loan to the SHG but did not ensure implementation of the scheme. As a result the SHG diverted the entire amount of fund causing uncertainty of recovery of the bank’s money. You also encouraged the SHG to misappropriate Govt. subsidy to the tune of Rs.1.00 lakh (Rupees one lakh). Your such act has caused the bank likely to incur loss to the tune of Rs.2,10,000.00 (Rupees two lakh ten thousand) including the balance in the Cash Credit account with interest on the balances in both the accounts. 5) You allegedly accepted illegal gratification in the form of money from the following Self Help Groups for sanctioning advances along with the Revolving fund to them: Sl No. Name of the Self Help Group Amount taken as bribe (Rs) 01. Chaibari Hindupara SHG 500.00 02. Bahalpur Barpara Part-II SHG 1,000.00 03. Milijuli SHG, Chaibari 500.00 04. Manalisa SHG 500.00 05. Anupama SHG 500.00 06. Baba Loknath SHG 1,000.00 07. Milijuli SHG, Sasalpara 1,000.00 08. Mahila Pragati Got, Bahalpur 1,000.00 09. Kanaklata SHG 1,000.00 Total 7,000.00 6) It is also alleged that you did not extend financial assistance to Self Help Groups for taking up key activities unless the Groups offer you gratification. 7) Internal inspection of your Branch (Bahalpur Branch) was conducted from 04.01.2006 to 06.01.2006 and the irregularities were pointed out to you in the inspection report. You submitted to the Regional Office, Kokrajhar, a false rectification report vide your letter No.AGVB/BLPL/60/02/06 dated 24.06.2006 stating that all the irregularities pointed out by the inspecting officials were rectified. Thus, you mislead the controlling office without rectifying the irregularities. 2. Along with the charge sheet, the statement of allegation on which the articles of charges were based had also been furnished along with the list of documents and witnesses. In response to the charge sheet, the petitioner vide his Annexure-4 reply dated 18.11.2008 denied the charges. Thus, you mislead the controlling office without rectifying the irregularities. 2. Along with the charge sheet, the statement of allegation on which the articles of charges were based had also been furnished along with the list of documents and witnesses. In response to the charge sheet, the petitioner vide his Annexure-4 reply dated 18.11.2008 denied the charges. Thereafter, the disciplinary authority appointed Enquiry Officer to inquire into the charges, who in turn, on completion of the enquiry, submitted the Annexure-6 enquiry report dated 24.06.2010 holding that the charges which were leveled against the petitioner had been established in the enquiry. For a ready reference, the analysis on the basis of which the Enquiry Officer held the petitioner guilty of the charges is reproduced below:- “ANALYSIS OF CHARGES BY EO: 1. In response to question read with ME i.e. charge No.1, 2, 3 & 4 substantiate that while forwarding the SHG, Loan proposal (Key Activity) to higher authority for sanction the information of existing R/F A/c was not informed by the CSO. It was concealment of fact but in the Enquiry it is revealed that as per SGHY guideline no where it is stated that term loan in the form of key activities could not be available by a SHG while a C/c account (R/F) is exist in their name. As regard the non-implementation of the scheme documents studied in the enquiry do not goes in favour of the charges against CSO. Corroborations of MW1 & MW2 in response to question read with ME-36, establish that later on i.e. after 1 ½ year, it was found that bank loan was not utilized in a proper way & in some cases fund was diverted to other activity. However by this time, the loan account have already been closed and thus the Bank has not incurred any financial loss. 2. Corroboration of ME-16 in response to question read with ME i.e. charge No.3 & 4 substantiate that the loan was sanctioned by CSO as per his DP not by the then Area Managers D.P & thus, the charges against the CSO about misleading the sanctioning authority to get the loan sanctioned do not established. 3) Corroboration of ME 37, 38, 39 & 40 in response to question read with ME i.e. Charge No.7 substantiate that there are instances where the CSO has not correctly informed while submitting the compliance of Inspection Report. 3) Corroboration of ME 37, 38, 39 & 40 in response to question read with ME i.e. Charge No.7 substantiate that there are instances where the CSO has not correctly informed while submitting the compliance of Inspection Report. 4) Corroborations of MW1 & MW2 in response to question read with ME 27/1, 27/2, 29, 30, 32, 33, 34 & 35 substantiate that the CSO has accepted illegal gratification in the form of money from the nine nos. of SHG as alleged in the banks charge sheet No.5. Thus, in the enquiry it is established that the CSO has accepted illegal gratification in the form of money from the borrower which was also published by the complainant in the news paper “BATARI” & “PRATIDIN” of 28th August, 2006. Thus, charges leveled against the CSO vide Bank’s letter No.AGVB/I&V/CS/39/07/2008-09 dtd. 07.05.2008 have been established as above beyond doubt in the Enquiry.” 3. On being furnished with the copy of the enquiry report vide Annexure-7 letter dated 30.06.2010, the petitioner responded to the same by submitting written submission vide Annexure-8 dated 25.09.2010. Thereafter, he having been imposed with the penalty of compulsory retirement from service vide the impugned Annexure-9 order dated 22.02.2011, filed the instant writ petition challenging the said order primarily on the following grounds (Para-4, 7, 8, 11, 12 and 13). “4. That the petitioner begs to state that however, the authorities in the most illegal manner and in violation of all the principles of natural justice did not provide the petitioner with the documents, thus highly prejudicing the petitioner in his defense. The petitioner therefore himself attempted to collect the documents from the Bahalpur Branch, Assam Gramin Vikash Bank. In his visit on 18.11.2008 the petitioner asked for the purported copies of the complaint letters submitted by the Self Help Groups against the petitioner as regard receipt of illegal gratification. However the branch failed to supply the petitioner any such copies of the said purported complaints. Infact by way of letter dated 18.11.2008 the Branch Manager, Boholpur Branch, Assam Gramin Vikash bank have written to the General Manager, Head office of the bank regarding absence of any complaint against the petitioner. 7. That the petitioner begs to state that thereafter the enquiry proceeding was started. However, the enquiry officer failed to conduct the enquiry in appropriate manner in terms of the principle laid down in the service rule. 7. That the petitioner begs to state that thereafter the enquiry proceeding was started. However, the enquiry officer failed to conduct the enquiry in appropriate manner in terms of the principle laid down in the service rule. The proceedings of enquiry had not been maintained according to the principle under the procedure laid down under the relevant laws. Even the petitioner was not given the reasonable opportunity to defend his case also. The Enquiry Officer noted the proceedings as per his whims and refused to note the contentions placed before him by the petitioner. The petitioner was not also given the opportunity to cross-examine the witnesses of Management side and in most of the cases the enquiry officer noted the statements of management’s witnesses unilaterally ignoring the petitioner’s protest. The enquiry officer prepared the enquiry report ignoring the real facts and circumstances of the case and concluded his report to uphold some vested interest in a very bias manner. 8. That the petitioner begs to state that the entire enquiry proceeding was a farce and no principle of natural justice was followed during the so called Enquiry Proceeding. The petitioner had to participate in the enquiry without been supplied with the appropriate documents. Further the management witnesses submitted their evidence behind the back of the petitioner and the petitioner was not allowed to cross-examine the management witnesses. The Enquiry started on 09.02.2009 and ended on 21.12.2009 and it was only after the close of the enquiry, the documents relied by the management were furnished to the petitioner. Thus the entire enquiry was held in a illegal manner and therefore the same cannot be sustained under the eyes of law. The impugned enquiry is therefore liable to be set aside and quashed. 11. That the petitioner begs to state that though by the charge-sheet dated 07.05.2008 seven charges were leveled against the petitioner yet in the enquiry only Charge No.5 was shown to be proved against the petitioner. However, it is pertinent to mention herein that the said Charge No.5 of receipt of illegal gratification is baseless and without any evidence. The issue relates to the year 2006 and there has been no complaint at that point of time by the said Self Help Group from which the purported illegal gratification is alleged to be received by the petitioner. The issue relates to the year 2006 and there has been no complaint at that point of time by the said Self Help Group from which the purported illegal gratification is alleged to be received by the petitioner. No Self Help Group have filed any complaint before the police authorities or the bank at that relevant point of time as regard receipt of gratification by the petitioner. It was only after a period of 2 years from the alleged time of occurrence that on the statement of 2 persons not related to the issue, that the Bank has proceeded against the petitioner with the said charge. It is also pertinent to mention herein none of the SHG from whom the said money is being showed to be collected by the petitioner have been made witness in the said enquiry proceedings. Thus the said charge cannot be established against the petitioner. 12. That the petitioner begs to state that the petitioner has been victimized by the authorities and by way of a illegal enquiry is being imposed a major penalty of Compulsory Retirement which in no view of the matter be sustainable in the eyes of law. Thus the enquiry proceeding as well as the penalty order is liable to be set aside and quashed. 13. That the petitioner humbly beg to submit that the legitimate expectations of the petitioner, in view of the facts and circumstances that have been narrated above, have apparently been infringed in the instant case. There has been a total non-application of mind to the relevant factors. No person properly instructed in law could have restored to such illegal and arbitrary action and the same has been done for reasons other than relevant and bonafide. There has been colourable exercise of powers for collateral purpose.” 4. The respondents have filed their counter affidavit denying the aforesaid pleas raised in the writ petition. In response to the aforesaid paragraphs, the stand of the respondents in their counter affidavit is as follows:- “That the statements made in paragraph 4 of the Writ Petition are not correct and your deponent denies and disputes the same. Your deponent further reiterates that the Petitioner was duly intimated by the Bank vide letter dated 04.11.2008 that he was allowed to verify all the relevant documents available at the Head Office and Bahalpur Branch of the Respondent Bank. Your deponent further reiterates that the Petitioner was duly intimated by the Bank vide letter dated 04.11.2008 that he was allowed to verify all the relevant documents available at the Head Office and Bahalpur Branch of the Respondent Bank. Therefore, there was no question of violation of the principles of natural justice. Admittedly, the petitioner visited the Bahalpur Branch on 17.11.2008 and verified all the original documents available with the Branch. As regards the complaint letters submitted by the Self Help Groups against the petitioner, those complaints were available at the Head Office of the Bank and obviously therefore, the petitioner could not verify those documents at the Branch. Even on his visit to the Head Office on 18.11.2008, the petitioner chose not to verify those complaint letters. And now, the petitioner is trying to twist the factual position by citing the letter dated 18.11.2008 by the Branch to the Head Office, which was only meant to indicate that there was no complaint letter available at the Branch since those were at the Head Office. The letter however does not, in any way, indicate that here is no complaint at all against the petitioner. That, the statements made in paragraph 7 of the Writ Petition are not correct and your deponent denies and disputes the same. Your deponent further states that during the enquiry proceeding, the petitioner and his Defense Representative were present and participated in the enquiry. Both the Petitioner and his Defense Representative put in their signatures in the enquiry proceedings. Hence, it is totally a false allegation that the Petitioner was not given opportunity to cross-examine the Management Witness. The Enquiry Officer had prepared his enquiry report on the basis of his findings during the enquiry proceedings and it is a baseless allegation that the Enquiry Officer concluded his report to uphold some vested interest in a bias manner. That, the statements made in paragraph 8 of the Writ Petition are not correct and are hereby denied and disputed by your deponent. Your deponent further states that during the course of presentation of documents in the enquiry, the copies of the documents were provided to the Petitioner and his Defense Representative. Moreover, the Petitioner was given ample scope to verify all the relevant documents at the Head Office as well as at the Bahalpur Branch. Your deponent further states that during the course of presentation of documents in the enquiry, the copies of the documents were provided to the Petitioner and his Defense Representative. Moreover, the Petitioner was given ample scope to verify all the relevant documents at the Head Office as well as at the Bahalpur Branch. As per the records, the daily proceedings were accepted by the Petitioner and his Defense Representative and neither of them raised any objection regarding presentation of evidences by the Management Witnesses. Hence, the enquiry proceeding was held in a proper way and concluded as per procedure, and which was also accepted by the petitioner. That, the statements made in paragraph 11 of the Writ Petition are not correct and your deponent denies and disputes the same. Your deponent further states that as per the findings of the Enquiry Officer, the diversification of Fund by the units as alleged from Charge No.1 to Charge No.4 were duly established by the Bank and the petitioner did not disclose any such material documents rebutting those charges. Apart, therefrom, Charge No.5 and 7 were also duly proved against the petitioner. As regards Charge No.5 relating to illegal monetary gratification, the petitioner’s contention to the extent that there was no complaint by the Self Help Group before the Police Authorities at the relevant point of time is irrelevant inasmuch as Departmental Enquiry is initiated pursuant to complaint made against a delinquent before the Bank and in the instant case, the allegation of illegal monetary gratification was brought against the petitioner by the Self Help Group after the said Group could themselves ascertain the conduct of the petitioner and the Bank, on scrutiny of the relevant documents, could find that the allegations were true. As the documents spoke for themselves about the misdeed of the Petitioner, it was not required to make the Self Help Group, a witness to the Departmental Enquiry and it is also pertinent to mention herein that during the courses of the enquiry, the petitioner did not raise any such contention before the Authority and hence, Charge No.5 was established against the petitioner. It is also humbly stated herein that even if one out of the seven charges against the petitioner could not be established, the other charges were duly proved at the enquiry proceedings through evidences placed by the Management Witnesses and the petitioner or his Defense Representative could not disprove the charges. That, the statements made in paragraph 12 of the Writ Petition are not correct and your deponent denies and disputes the same. Your deponent further states that the Bank Authority being satisfied with the enquiry, imposed the punishment of “Compulsory Retirement” in terms of Regulation 38.1 of the Assam Gramin Vikash Bank (Officers & Employees) Service Regulations, 2006. That, the statements made in Paragraph 13 of the Writ Petition are not correct and your deponent denies and disputes the same. Your deponent further states that the contentions of the Petitioner are without any supportive material, which was neither produced during the Departmental Enquiry nor has it been produced before this Hon’ble Court so as to show that the Departmental Enquiry was arbitrary, unreasonable or without bonafide.” 5. I have heard Mr. S.N. Sarma, learned senior counsel assisted by Mr. S, Choudhury, learned counsel for the petitioner and have also heard Mr. S. Dutta, learned senior counsel assisted by Ms. N. Modi, learned counsel representing the respondent bank. I have also perused the entire materials on record including the departmental enquiry file. 6. Mr. Sarma, learned senior counsel for the petitioner referring to the aforesaid pleas raised in the writ petition submitted that the petitioner having not been provided with the relevant documents to defend his case, there was complete violation of the principles of natural justice. Referring to the enquiry report, he also submitted that the disciplinary authority could not have imposed the penalty of compulsory retirement on the basis of the findings recorded therein. According to him, the findings are in favour of the petitioner and the purported adverse findings being perverse and not based on the evidence on record, the disciplinary authority could not have placed reliance on those findings so as to impose the extreme penalty of compulsory retirement from service. According to him, the findings are in favour of the petitioner and the purported adverse findings being perverse and not based on the evidence on record, the disciplinary authority could not have placed reliance on those findings so as to impose the extreme penalty of compulsory retirement from service. In support of the argument advanced learned senior counsel for the petitioner, placed reliance on the decisions reported in 1995 SUPP (3) SCC 212 [ S.C. Girotra –vs- United Commercial Bank (UCO Bank) and others] and (1993) 4 SCC 727 [Managing Director, ECIL, Hyderabad –vs- B. Karunakar and others]. 7. Mr. S. Dutta, learned senior counsel representing the respondent bank on the other hand referring to the evidence on record and also the findings recorded by the Enquiry Officer and the disciplinary authority submitted that even if a single charge is held to have been established against the petitioner, the same is sufficient to dispense with the services of the petitioner, more particularly when he is a bank employee involved in financial transactions. According to him, there being nothing to show that the findings recorded by the Enquiry Officer are perverse and that they are based on no evidence, sufficiency or otherwise of the same cannot be gone into by exercising writ jurisdiction. He has also placed reliance on certain decisions which are as follows:- (i) (2009) 5 SCC 22 [ Shabbir Ahmed Sherkhan –vs- State of Maharashtra]; (ii) (2010) 11 SCC 233 [General Manager (P) Punjab & Sind Bank and others –vs- Daya Singh]; (iii) (2010) 6 SCC 555 [ U.P. State Road Transport Corporation –vs- Suresh Chand Sharma]; (iv) (2009) 3 SCC 97 [ Ex-Constable Ramvir Singh –vs- Union of India and others]; (v) (1996) 3 SCC 750 [State of U.P and others –vs- Nand Kishore Shukla and another] and (vi) 2004 (1) GLT 253 [ Biren Borah –vs- United Bank of India and others]. 8. As to what are the charges which were leveled against the petitioner has been noted above. The reply thereto of the petitioner has also been noted above. The allegation of violation of principle of natural justice by not providing the petitioner with the documents relied upon by the disciplinary authority has been denied by the respondents. 8. As to what are the charges which were leveled against the petitioner has been noted above. The reply thereto of the petitioner has also been noted above. The allegation of violation of principle of natural justice by not providing the petitioner with the documents relied upon by the disciplinary authority has been denied by the respondents. It is the stand of the respondents that the petitioner was duly intimated vide letter dated 04.11.2008 about the permission to verify all the relevant documents available at the Head Office and Bahalpur Branch of the Bank. In the writ petition, there is no mention of the letter dated 04.11.2008 and the projection made is that vide Annexure-3 letter dated 18.11.2008, the Branch Manager of Bahalpur Branch had intimated the Head Office that there was no any complaint against the petitioner and consequently the said Branch was not in a position to show him any complaint. However, the respondents in paragraph 9 of the counter affidavit have categorically stated that the petitioner was duly intimated vide letter dated 04.11.2008 allowing him to verify all the relevant documents available at Head Office and Bahalpur Branch. 9. The enquiry proceeding file contains the said letter dated 04.11.2008, by which the petitioner was intimated in response to his letter dated 19.05.2008 that he was allowed to verify all the relevant documents/registers/records etc available at Head Office and Bahalpur Branch. By the said letter, the petitioner was requested to verify the relevant records immediately and then to submit reply within 15 days. This categorical stand of the respondents in their counter affidavit supported by the relevant records has not been denied by the petitioner. Thus the Annexure-3 letter dated 18.11.2008 is of no help to the case of the petitioner so far as his allegation of non furnishing of the relevant documents is concerned. By the said letter the particular branch had only intimated the Head Office about non availability of any complaint against the petitioner. However, he was not debarred from inspecting the documents attending the Head Office. 10. By the said letter the particular branch had only intimated the Head Office about non availability of any complaint against the petitioner. However, he was not debarred from inspecting the documents attending the Head Office. 10. As regards the allegation of denial of opportunity to cross examine the witnesses leveled in paragraph-7 of the writ petition, the respondents have denied the same with the categorical statement that during the enquiry proceeding, the petitioner and his defence representative were present and participated in enquiry and acknowledged the proceedings by putting their signatures without raising any objection and/or grievance of not allowing to cross examine the management witnesses. Thus, this plea of the petitioner is also not sustainable. 11. The above position relating to the enquiry proceeding now leads us to the basic issue as to whether the findings recorded by the Enquiry Officer are perverse and/or based on no evidence at all. As to what are the findings recorded by the Enquiry Officer has been noted above. The Enquiry Officer in his enquiry report has referred to the documents exhibited by the management (ME-2 to ME-40) and also the management witnesses (MW to MW-2). After discussing the charges leveled against the petitioner and recording the argument of the disciplinary authority presented through the Presenting Officer, recorded the above quoted analysis of charges so as to come to the conclusion that the charges leveled against the petitioner had been established in the enquiry. 12. In paragraph-1 of the Analysis of Charge relating to Charge Nos. 1, 2, 3 and 4, the Enquiry Officer held that while forwarding the loan proposal (Key Activity) was not informed by the petitioner and thus there was concealment of fact. It was also observed that the loan was not utilized in a proper way and in some cases the fund was diverted to other activities, but then the bank did not incur any financial loss. However, as noted above, while forwarding the SHG (Self Help Group) loan proposal (Key Activity) to higher authority for sanction, the petitioner did not furnish information of existing R/F A/C and the same was by way of concealment of fact. 13. In paragraph-2 of the Analysis of Charge referring to Charge Nos. 3 and 4, the Enquiry Officer recorded his findings that the charge about misleading the sanctioning authority to get the loan sanctioned was not established in the enquiry. 13. In paragraph-2 of the Analysis of Charge referring to Charge Nos. 3 and 4, the Enquiry Officer recorded his findings that the charge about misleading the sanctioning authority to get the loan sanctioned was not established in the enquiry. As regards charge No.3 mentioned in paragraph-3 of the Analysis of Charge, the Enquiry Officer in reference to ME-37, Me-38, Me-39 and Me-40 held that there were instances where the petitioner did not furnish the correct information while submitting the compliance of inspection report. As regards the allegation of acceptance of illegal gratification by the petitioner (Charge No.5 and 6), the Enquiry Officer held in reference to the evidence of MW-1 and MW-2 and ME-27/1; Me-27/2; ME-29; ME-30; ME-32; ME-33; ME-34 and ME-35 that the acceptance of illegal gratification in the form of money from 09(nine) numbers of Self Help Groups (SHG) stood established against the petitioner. While doing so, the Enquiry Officer also referred to the alleged publication of reports thereof in the news papers namely “Batari” and “Pratidin” in the issues dated 28.08.2006. 14. Although the Enquiry Officer has recorded the above findings upon analysis of charges in reference to the evidence on record, but finally it was held that all the charges stood established against the petitioner. However, on perusal of the findings recorded by the Enquiry Officer, what has emerged is that there are findings relating to (i) Non furnishing of information while sending the loan proposal to higher authority about the existence of R/F A/C; (ii) Instances where the petitioner did not furnish correct information to the authority while submitting the compliance of inspection report and (iii) Establishing the charge of Charge No.5 of taking illegal gratification. While doing so, the Enquiry Officer also relied upon the news paper reports referred to above. 15. Mr. S.N. Sarma, learned senior counsel for the petitioner during the course of argument submitted that leaving aside the Charge No.5 of taking illegal gratification, other charges said to have been established in the Enquiry are of no consequences having regard to the findings recorded by the Enquiry Officer. He submitted that at best the findings on the basis of analysis of charges recorded by the Enquiry Officer and referred to above are in the nature of procedural lapses and not connected with the charges leveled against the petitioner. He submitted that at best the findings on the basis of analysis of charges recorded by the Enquiry Officer and referred to above are in the nature of procedural lapses and not connected with the charges leveled against the petitioner. As regards the charge of illegal gratification, he submitted that the same being in the form of obtaining the statements from the representatives of some Self Help Groups and that too after two years of the alleged incident is not sustainable in law, more particularly when the petitioner was not afforded with the opportunity to cross examine those representatives. It is in this context, he has placed reliance on the decision of the Apex Court in S.C. Girotra (Supra) in which the Apex Court held that the delinquent ought to have been given opportunity to cross examine the officers whose certificates and reports were placed reliance upon. In the said case having noticed the said omission, the matter was remanded back to the Enquiry Officer to start the enquiry denovo after affording opportunity of cross examination. The decision in Managing Director, ECIL, Hyderabad (Supra) is in the context of requirement to furnish relevant documents including the Enquiry Report enabling the delinquent to have his say against the same. This aspect of the mater need not detain us as it is found that the petitioner was afforded with the opportunity to examine the documents. 16. Let us now examine the decisions on which Mr. S. Dutta, learned counsel representing the Bank has placed reliance upon. In Shabbir Ahmed Sherkhan (Supra) the Apex Court was concerned with temporary misappropriation of Government money by the delinquent coupled with his unauthorized absence. It was held that even in case of temporary misappropriation of public money, the same amounted to misconduct and consequently did not interfere with the punishment imposed on the delinquent. In Daya Singh (Supra) also, the Apex Court was concerned with misappropriation/defalcation of amount by a bank employee emphasizing the need for higher degree of honesty and integrity, the Apex Court declined to interfere with the penalty of dismissal from service. In Daya Singh (Supra) also, the Apex Court was concerned with misappropriation/defalcation of amount by a bank employee emphasizing the need for higher degree of honesty and integrity, the Apex Court declined to interfere with the penalty of dismissal from service. In Suresh Chand Sharma (Supra) dealing with the need for cogent reasons in the matter of interference with the penalty imposed, the Apex Court while setting aside the judgment of the High Court directing reinstatement of the delinquent, held that when there was indication on the part of the delinquent to misappropriate fare recovered from the passengers, the High Court ought not to have set aside the order of penalty of dismissal from service on the ground that the passengers from whom the money was collected as ticket money, ought to have been examined in the enquiry. 17. Ex-Constable Ramvir Singh (Supra) has been referred to so as to emphasis that the plea not raised in the departmental enquiry cannot be raised for the first time in the writ petition. The decision has been pressed into service to counter the argument advanced on behalf of the petitioner that he was not allowed to inspect the documents and also to cross examine the witnesses. Referring to the records of the enquiry, it was submitted that the delinquent who was also assisted by his defence representative never raised any such plea during the course of enquiry. In Nand Kishore Shukla and another (Supra) the Apex Court was concerned with the scope of judicial review in the matter of imposition of punishment on proven misconduct. Holding that the High Court should not have interfered with the order of removal imposed on the delinquent, it was observed that that the High Court ought not to have made such interference on the mere ground that it was doubtful as to whether the disciplinary authority could have passed the order of removal only on the basis of a single charge. In Biren Borah (Supra) also this Court dealing with the plea of imposition of disproportionate punishment (removal) held that when the delinquent involved in the said case had tried to defraud the bank for his personal gain, it was immaterial whether the bank in fact had suffered any financial loss or not and consequently upheld the penalty of removal from service. 18. 18. In the instant case, the admitted fact is that the Charge No.5 relating to illegal gratification was leveled against the petitioner on the basis of some statements collected from the representatives of some Self Help Groups. The allegation of illegal gratifications is in Charge Nos. 5 and 6. Altogether 09(nine) SHG’s are mentioned in the said charge with the allegation that the petitioner accepted illegal gratification in the form of money from them. As will be evident from the charge itself (quoted above) the charge is vague and indefinite in absence of disclosure of any material particulars. While mentioning the amounts against each one of the SHG’s which the petitioner allegedly took as a bribe, no particulars as to when the said incident(s) took place and through whom were mentioned. In reply to the charges, the petitioner while referring to his 23 years of unblemished service, categorically denied the charge of taking illegal gratification with the specific plea that the complaint allegedly lodged by the said SHG’s were manufactured documents and after thought in order to malign him. 19. In paragraph-11 of the writ petition, the petitioner has stated that the alleged incident had no basis in absence of any complaint at any point of time by anyone of the SHG’s to the respondent bank and/or police. It was only after about two years of the alleged incident, the charge was leveled against the petitioner and as the Enquiry Proceeding would reveal on the basis of statements obtained from the representatives of the SHG’s by visiting their places. Those representatives were never examined in the enquiry. Had they been examined to substantiate their statements leveling allegation of illegal gratification against the petitioner, he could have cross examined them. 20. On perusal of the enquiry proceeding file, it appears that one Sri Promod Ch Sarma, an Officer of the respondent bank was directed to obtain statements of the representatives of the SHG’s, who in turn, visited the SHG’s and obtained their statements without being addressed to anyone in which they stated about the purported illegal gratification taken by the petitioner from them. Said Sri Sarma, the officer of the Bank as recorded in the enquiry proceeding, had gone to the SHG’s accompanied by MW-1 and MW-2. Admittedly such complaints were lodged after two years of the alleged incident i.e. on 24.10.2006. Said Sri Sarma, the officer of the Bank as recorded in the enquiry proceeding, had gone to the SHG’s accompanied by MW-1 and MW-2. Admittedly such complaints were lodged after two years of the alleged incident i.e. on 24.10.2006. The statements were obtained by visiting the Self Help Groups. The Self Help Groups of their own did not lodge any complaint, but were obtained by said Sri Promod Ch Sarma by visiting their places. On perusal of their statements, ME-27/1; ME-27/2; ME-29; ME-30; ME-31; ME-32, ME-33; ME-34/1; ME-34/2; ME-35; ME-36/1; ME-36/2 etc, there is absolutely nothing to show any particulars as to how, when and in what manner, the petitioner had taken the illegal gratification from them. 21. Some of the above referred statements although have referred to the incident as of 2004, but they have furnished their statements after more than two years thereafter on 23.10.2006 and 24.10.2006. Thus, the statements were obtained by said Sri Promod Ch Sarma on 23.10.2006 and 24.10.2006 and all the statements are to the effect that the petitioner took illegal gratification from them for sanctioning the loans. Based on such statement, without any reference to any proceeding and furnished to Sri Sarma, a Bank Officer on his visit to the Self Help Groups, the petitioner has been held to be guilty of Charge No.5, that too without affording him the opportunity to cross examine those witnesses. 22. Thus, here is a case in which the authority obtained some statements attributing fault on the part of the petitioner and made use of the same without affording the petitioner with the opportunity to cross examine those statement makers. Interestingly those statement makers did not raise any grievance against the petitioner nor did lodge any complaint with the bank authority or the police regarding any illegal gratification demanded by the petitioner from them. It was only on the instance of Sri Promod Ch Sarma, a Bank Officer, they made their statements and the petitioner was penalized on the basis of those statements and in the process, he was not even afforded with the opportunity to cross examine them. 23. It was only on the instance of Sri Promod Ch Sarma, a Bank Officer, they made their statements and the petitioner was penalized on the basis of those statements and in the process, he was not even afforded with the opportunity to cross examine them. 23. In the enquiry proceeding, when the Charge No.5 was discussed in reference to statements of the representatives of SHG’s, the defence representative categorically raised the issue of delay in making the statements with the argument that merely on the basis of such statements and that too after two years of the transactions amounted to hearsay evidence. It was specifically argued that such statements were manufactured documents and after thought only to malign the petitioner. 24. The above fact will have to be considered in reference to the enquiry proceeding during which upon raising of the objection by the petitioner, the Presenting Officer requested the Enquiry Officer to grant time to produce the statement makers as management witnesses. Accordingly, the Enquiry proceeding was adjourned to 28.12.2009. On the next date of enquiry proceeding, the management only produced the MW-1 and MW-2 in whose presence the statements were allegedly recorded. However, those statement makers were never produced. Those, two witnesses i.e. MW-1 and MW-2 in their statements only stated that the statements of the representatives of the Self Help Groups were recorded by said Sri Promod Ch Sarma, visiting the Self Help Groups. Even said Sri Promod Ch Sarma was also not examined by the management, who had recorded the statements. While cross examining the MW’s, the defence representative specifically asked them as to why all the statements were made on 23rd and 24th October, 2006, to which the reply was that those statements were made on visit of the bank official Sri Promod Ch Sarma. MW-2 in his statement stated that he was asked to accompany Sri Promod Ch Sarma and accordingly he did. 25. If the MW-1 and MW-2 were aware of bribes being taken by the petitioner, it is not understood as to what prevented them from lodging any complaint with the bank authority. As repeatedly contended by the petitioner, there could not have been any occasion for the bank authority/disciplinary authority to send its official, namely, Sri Promod Ch Sarma to the Self Help Groups to obtain their statements and that too behind the back of the petitioner. As repeatedly contended by the petitioner, there could not have been any occasion for the bank authority/disciplinary authority to send its official, namely, Sri Promod Ch Sarma to the Self Help Groups to obtain their statements and that too behind the back of the petitioner. Not only that he was also not even provided with the opportunity to cross examine those statement makers including the statement recorder namely Sri Promod Ch Sarma. 26. In view of the above, it is my considered opinion that the Enquiry Officer could not have held the petitioner guilty of Charge Nos. 5 and 6. This is precise is the reason as to why in his finding the Enquiry Officer has also referred to the news papers reports, authenticity of which was never verified. Moreover, the said news paper reports were of 28.08.2006, after more than two years of the alleged incident. 27. In Commissioner of Police, Delhi –vs- Jai Bhagwan, reported in (2011) 6 SCC 376 , the Apex Court being confronted with the sustainability or otherwise of the penalty of dismissal from service of a police constable, who was charge sheeted for gross misconduct for demanding illegal gratification, held that non examination of the complainant, who had made the allegation of demanding illegal gratification during departmental proceeding resulted in denial of opportunity of cross examination to the delinquent leading to violation of the principle of natural justice. 28. In the instant case, the whole basis of holding the charge of illegal gratification against the petitioner is the alleged statements made by the representatives of the Self Help Groups. They did not lodge any complaint when the purported illegal gratification was demanded by the petitioner. It was long two years thereafter, a bank official visited those Self Help Groups and obtained their statements on plain papers purportedly in presence of MW-1 and Mw-2, one of which was not a bank employee. Those statements were made the foundation towards holding the petitioner guilty of charge Nos. 5 and 6, but in the process the petitioner was not provided with the opportunity to cross examine those statement makers including the statement recorder. Nothing is discernible as to in what circumstances those statements were obtained and in what context. Those statements were made the foundation towards holding the petitioner guilty of charge Nos. 5 and 6, but in the process the petitioner was not provided with the opportunity to cross examine those statement makers including the statement recorder. Nothing is discernible as to in what circumstances those statements were obtained and in what context. It is in this connection, the petitioner has specifically contended that those statements were obtained as an afterthought and by way of procuring evidence against the petitioner just to malign him. It is in this context, the petitioner has also referred to his 23 years of unblemished service career. 29. Once it is held that the Charge Nos. 5 and 6 cannot be said to have been established in the enquiry, the other aspects of the matter which would require consideration is as to whether on the basis of some of the elements of the other charges referred to above said to have been established against the petitioner can lead to the imposition of major penalty of compulsory retirement. It is also to be seen as to whether those elements are separable from the definite article of charges leveled against the petitioner. It will be pertinent to mention here that during the course of argument, the issue that centered around was that leaving aside the other charges held not to have been established in the enquiry except some of the elements thereto, whether on the basis of the Charge Nos. 5 and 6 said to have been established in the enquiry, the petitioner could have been imposed with the penalty of compulsory retirement. Once it is held that the Charge Nos. 5 and 6 could not have been held to be established in absence of the opportunity to cross examine the allegation makers and recorder, solely on the basis of only those elements, the petitioner cannot be imposed with the extreme penalty of compulsory retirement. 30. In my considered opinion, once it is held that there was violation of the principles of natural justice, which resulted in serious prejudice to the defence of the petitioner and consequently the charge Nos. 5 and 6 could not have been held to be established, the compulsory retirement imposed on the petitioner vide Annexure-9 order dated 22.02.2011 must be interfered with, which I accordingly do. 5 and 6 could not have been held to be established, the compulsory retirement imposed on the petitioner vide Annexure-9 order dated 22.02.2011 must be interfered with, which I accordingly do. However, while doing so, the following options are kept open for the disciplinary authority:- (i) To consider as to whether on the basis of the elements discussed above and referable to the definite article of charges (Refer para 11, 12 and 13 above) said to have been established in the enquiry require to impose any minor penalty on the petitioner; (ii) It will be open for the disciplinary authority to start the enquiry de-novo from the stage of furnishing the copies of the statements of the representatives of the Self Help Groups and then to allow him to cross examine those witnesses. 31. With the above options to the respondent bank, I set aside the impugned order of penalty imposed on the petitioner vide Annexure-9 order dated 22.02.2011. The petitioner shall stand reinstated in service forthwith without back wages, but his pay shall be fixed notionally. Such reinstatement of the petitioner in service, however, will be subject to the further proceeding and/or order, if any, which might be initiated de-novo/passed by the disciplinary authority. 32. The writ petition is allowed to the extent indicated above, without however, any order as to costs.