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2016 DIGILAW 814 (CAL)

Nibir Chand Karan v. Paschim Banga Gramin Bank

2016-10-05

DEBI PROSAD DEY

body2016
Debi Prosad Dey, J. : 1. This writ petition has been filed by the petitioner, who is an employee of the Paschim Banga Gramin Bank, praying for issuance of direction for setting aside the order impugned passed by the Chairman and Disciplinary Authority(Competent Authority) in his letter being no. PBGB/HO/CM/37/2011-12 dated 26/07/2011 being annexure P-5 and the report of the enquiry proceedings submitted by the enquiry officer dated 02.03.2011 communicated to the petitioner by letter no. PBOB/HO/CN/06/2011-12 dated 04.05.2011 of the Chairman of the Disciplinary Authority being annexure no. P3 along with the order of appellate authority vide annexure P-7. 2. The petitioner is an employee of Paschim Banga Gramin bank and has been serving in the post of officer, Paschim Banga Gramin Bank, Hatbasudevpur branch at the time of filing the writ petition. The petitioner joined in service in Howrah Gramin Bank on the 22nd Day of September, 1986 and thereafter he was promoted as branch manager on 07.01.1987. The petitioner thereafter served the bank in its various branches and ultimately promoted to grade of officer MMG-II on and from 1.7.2000 and assumed charge of the office as branch manager of Nizbalia Branch in the district of Howrah. The petitioner was served with a charge sheet by letter no. PBOB/HO/CM/157/2007-08 dated 27.01.2009 along with statement of allegations. The petitioner duly submitted written statement against such charge sheet and enquiry officer was appointed to conduct the disciplinary proceedings against the petitioner. 3. On receipt of the report from the enquiry officer, the chairman and disciplinary authority sought for the petitioners comments against the report of enquiry officers. The chairman and disciplinary authority after considering the report of enquiry officer as well as the reply of the petitioner has imposed the major penalty against your petitioner as follows:- (a) As against Charge No.1 Reduction to lower grade/Post i.e. OJM Scale with initial basic Pay. (b) As against Charge No.2 Reduction to lower grade/Post i.e. OJM, Scale with initial Basic pay. 4. It is needless to say that the petitioner was found guilty in both the charges by the enquiry officer and the chairman and disciplinary authority accordingly imposed punishment upon the petitioner taking into consideration the reply submitted by the petitioner. (b) As against Charge No.2 Reduction to lower grade/Post i.e. OJM, Scale with initial Basic pay. 4. It is needless to say that the petitioner was found guilty in both the charges by the enquiry officer and the chairman and disciplinary authority accordingly imposed punishment upon the petitioner taking into consideration the reply submitted by the petitioner. The case of the petitioner is that the enquiring authority has failed to appreciate the evidence on record and the submissions of the writ petitioner in respect of the article of charges and thereby erroneously found the writ petitioner guilty of both the charges. The further case of the petitioner is that the charges against the petitioner were not conclusively proved and thereby the enquiry officer could not appreciate the case of the petitioner in its true perspective. 5. Being aggrieved by and dissatisfied with the order of the chairman and disciplinary authority(competent authority) which was communicated to the petitioner, an appeal under regulation 49 of the Paschim Banga Gramin bank(officers and employees) service regulations 2010 was preferred before the appellate authority(Board of directors of the Paschim Banga Gramin Bank). The appellate authority after the lapse of 10 months and on consideration of the present status of the related accounts took a lenient view in the matter and the penalty imposed was reduced as follows:- Charge No.1 – The penalty which was awarded by the Competent Authority which was a reduction to a lower grade/post i.e. OJM Scale with initial basic pay was reduced by the Appellate Authority to reduction in Basic Pay to initial Basic Pay of MMGS-II i.e. Rs.19,400/- Charge No.2 – The penalty which was awarded by the Competent Authority which was a reduction to a lower grade/post i.e. OJM Scale with initial basic pay was reduced by the Appellate Authority to reduction in Basic Pay to initial Basic Pay of MMGS-II i.e. Rs.19,400/- 6. In the order it was stated that the above penalties shall run concurrently and will be effective from the date of the order i.e. 20/06/2012. 7. According to the petitioner the appellate authority reviewing the petitioners case failed to consider that the disciplinary authority had failed to assign appropriate reasons for imposing the penalty upon your petitioner and the penalty imposed by the appellate authority was disproportionate to the allegations levelled against the petitioner. 7. According to the petitioner the appellate authority reviewing the petitioners case failed to consider that the disciplinary authority had failed to assign appropriate reasons for imposing the penalty upon your petitioner and the penalty imposed by the appellate authority was disproportionate to the allegations levelled against the petitioner. The appellate authority ought to have exonerated the petitioner instead of reducing the punishment imposed upon the petitioner. 8. The specific challenge against such orders of the disciplinary authority as well as the appellate authority is that the charges levelled against the petitioner relate to cases of the period 2002 to 2006 but the case of the petitioner has been reviewed on the basis of the service regulations(2007), which is not justifiable and permissible under the law. 9. Respondent no.1 and 2 have contested the writ petition by filing affidavit in opposition wherein and whereby the respondents have denied the contentions of the petitioner on the following grounds. The Paschim Banga Gramin Banks is the amalgamated name of three Gramin Banks namely, Howrah Gramin Bank, Bardhaman Gramin Bank and Mayurakshi Gramin Bank (amalgamation having taken place in February, 2007). The petitioner is an officer of the Respondent bank. He was an officer of erstwhile Howrah Gramin Bank, now amalgamated with the respondent bank. 10. While working as a Branch Manager of Howrah Branch of erstwhile Howrah Gramin Bank(now Paschim Banga Gramin Bank) from 11.11.2002 to 04.07.2006 he had committed several omission and commission in the advance portfolio of the bank for which the respective Disciplinary Authority(Competent Authority) had issued Statement of Allegations and Articles of Charge on 27.01.2009(wrongly dated as 27.01.2008). It was alleged in the said charge sheet that the petitioner acted in violation of Regulation 17 and Regulation 19 of the Paschim Banga Gramin Bank(officer and Employees) Service Regulation, 2007. 11. Regulation 17 and Regulation 19 of the aforesaid Regulation read as under: 17. Liability to abide by the regulations and orders:-Every officers or employees of the bank shall conform to and abide by these Regulations, and shall observe, comply with an obey all orders and directions which may, from time to time, be given to him by any persons under whose jurisdiction, superintendence or control be may, for the time being be placed. 19. 19. Obligations to promote the Bank’s interest:-Every officers or employees shall serve the bank honestly and faithfully, and shall use his utmost endeavour to promote the interests of the bank and shall show courtesy and attention in all transactions and dealings with officers of government, the bank’s constituents and customers. 12. The aforesaid regulation was substituted by Paschim Banga Gramin Bank(Officers and Employees) Service Regulations, 2010. The 2010 Regulation came into effect from the 11th October, 2010. 13. In the 2010 Regulation, the Regulation 17 of the 2007 Regulation is renumbered as 18 and Regulation 19 of the 2007 Regulation is renumbered as Regulation 20, the contents remaining the same. 14. Regulation 77(2) of Paschim Banga Gramin Bank(Officer and Employees) Service Regulations 2010 read as under: 77(2) Repeal and Savings: Notwithstanding such repeal any order made or action taken under the provisions so repealed shall be deemed to have been made or taken under the provisions of these regulations. 15. The petitioner had offered his statement of defence vide his letter dated 28.02.2009 wherein he did neither admit the allegations of charges nor deny them specifically. Accordingly, the Disciplinary Authority (Competent Authority) had decided to proceed with the departmental enquiry by appointing an Enquiry Officer. The petitioner duly participated in the inquiry proceedings with his defence representative. 16. The Enquiry officer had submitted his Enquiry Report dated 02.03.2011 to the Disciplinary Authority(Competent Authority) holding both the charges as proved. 17. The Disciplinary Authority(competent Authority) sent a copy of the Enquiry Report to the petitioner vide his letter dated 04.05.2011 with an advice to him to send his comment if any, on the Enquiry report, to the Disciplinary Authority(competent Authority). 18. The petitioner sent his comment on the Enquiry Report to the Disciplinary Authority(Competent Authority) vide his letter dated 16.05.2011. 19. The Disciplinary Authority(competent Authority) duly considered the comments offered by the petitioner vide his letter dated 16.05.2011 and passed the final order on 26.07.2011. 20. The Disciplinary Authority(competent Authority) agreed with the findings of the Enquiry officer and held both charges Nos. 1 and 2 as proved and imposed the following penalty on the petitioner – Charge No. Findings Penalty Charge no.1 Proved Reduction to a lower grade Post i.e. OJM Scale with Initial basic pay. Charge no.2 Proved Reduction to a lower grade/Post i.e. OJM Scale With initial basic pay. 21. 1 and 2 as proved and imposed the following penalty on the petitioner – Charge No. Findings Penalty Charge no.1 Proved Reduction to a lower grade Post i.e. OJM Scale with Initial basic pay. Charge no.2 Proved Reduction to a lower grade/Post i.e. OJM Scale With initial basic pay. 21. The above penalties shall run concurrently and operative from the date of this order. 22. Being dissatisfied with the order of the Disciplinary Authority, the petitioner preferred an appeal before the Appellate Authority(being the Board of Directors of the Respondent Banks) which is undated. The same was received by the Bank on 10.08.2011. 23. In the appeal the petitioner had made attempt to justify his action in respect of certain advances. The petitioner also indicated in his appeal that the Enquiry Officer did not consider the defence of the petitioner in the enquiry but he did not refer to any concrete materials on record in this regard in support of his claim. The petitioner also indicated in his appeal that the evidence produced by the presenting officer did not conclusively prove the charges. 24. The Appellate Authority, being the Board of Directors of the bank (exclusive of the Chairman who passed the final order dated 26.07.2011 as competent Authority) considered the appeal of the petitioner after collecting the present status of the related accounts and substantially reduced the penalty imposed by the competent Authority as under:- Charge No. Findings of Competent Authority Penalty owned by competent Authority Order of Appellate Authority Charge no.1 Proved Reduction Reduction To a lower Grade/post i.e. OJM Scale with initial basic pay. in Basic pay to initial basic pay of MMGS II i.e. Rs.19400/- Charge No.2 Proved Reduction Reduction To a lower Grade/post i.e. OJM Scale with Initial basic Pay. in basic pay to initial basic pay of MMGS II i.e. Rs.19400/- 25. Learned Advocate appearing on behalf of the petitioner contended that the entire procedure of drawing of disciplinary proceeding and subsequent disposal of appeal by the appellate authority is bad in law since article of charge is for violation of the regulation 17 and 19 of the Paschim Banga Gramin Bank(officer and employees) service regulation of 2007(annexure P1) but the penalties were imposed upon the petitioner in terms of Paschim Banga Gramin Bank(officer and employees) service regulation of 2010. 26. 26. The second branch of argument of the petitioner is that the penalty imposed upon the petitioner is shockingly disproportionate to the charges levelled against the petitioner and accordingly the order passed by the Disciplinary authority as well as the appellate authority ought to be set aside. 27. Lastly it has been submitted that the bank authorities did not suffer any financial loss and the entire procedure of drawing up disciplinary proceeding is based on surmise and conjecture. The Disciplinary authority as well as the appellate authority have failed to consider that the bank did not suffer any financial loss and the petitioner was not in active control of the day to day activities of the bank so that the petitioner be held responsible for disbursement of such loan or for crediting any amount to the sticky holder of loan amount. 28. The regulation of Paschim Banga Gramin Bank(officer and employees) 2007 have been given effect to when such regulations were repealed and such retrospective effect of the aforesaid regulation has rendered the entire procedure of imposition of such penalty upon the petitioner bad in law. 29. Learned Advocate appearing on behalf of the petitioner vehemently contended that the punishment imposed upon the petitioner is not only harsh but shockingly disproportionate to the allegations levelled against the petitioner. 30 Learned Advocate for the petitioner has relied on the decision of our High Court in writ petition no.2712(W) of 2010 (Rathin Ghosh Vs. West Bengal State Electricity Distribution Company Ltd. & Ors.), W.P. 21400(w) of 2012 (Ashok Kumar Vs. Industrial Development Bank of India Ltd. And Ors.), W.P. 17933(W) of 2011(Ashok Kumar Sinha Vs. Allahabad Bank and Others). 31. Learned Advocate for the respondent no. 1 and 2 however contended that the petitioner was assisted by a competent person of his choice during the proceedings before the Disciplinary Authority and all such points were raised by the petitioner before the Disciplinary authority as well as before the appellate authority. 32. It is submitted that sufficient opportunities were given to the petitioner to defend his case and after hearing both sides and after giving further chance of hearing with regard to the decision of the enquiry officer the disciplinary authority being satisfied about the allegations levelled against the petitioner was justified in holding the petitioner guilty and thereby imposing penalty upon the petitioner. The rule of natural justice has been properly followed by the disciplinary authority and the petitioner has never raised any plea of violation of natural justice during the hearing of the proceeding before disciplinary authority as well as before the appellate authority. 33. Learned Advocate for the respondents contended that the petitioner acted in violation of the regulation 17 and regulation 19 of the Paschim Banga Gramin Bank(officer and employees) service regulation 2007 and thereby the concerned bank has suffered sufficient financial loss at least extending up to Rs. 27.22 lakhs. The petitioner could not discharge his duties in terms of the aforesaid regulation causing financial loss to the bank and accordingly, the disciplinary authority was justified in imposing such penalty upon the petitioner. 34. The appellate authority however took a lenient view and reduced the penalty considering the subsequent status of the financial loss actually suffered by the bank. 35. Learned advocate for the respondents contended that the service of the petitioner has subsequently been terminated by awarding punishment of compulsory retirement in a separate proceeding against the petitioner and the petitioner has challenged the said punishment in W.P. 2771(W) of 2015 (Nibir Chand Karan Vs. Paschim Banga Gramin Bank & Ors.) pending before another Bench of this Court and the petitioner has also pleaded in paragraph 54 at page 29 of such writ petition to the effect that the instant writ application has become infructuous. 36. Learned Advocate for the respondent further contended that in absence of any violation of natural justice and in absence of any patent illegality in the disciplinary proceeding or in absence of any specific case that any document has been erroneously admitted or has not been admitted, the writ Court cannot reappreciate the evidence produced before the disciplinary authority and cannot go into the adequacy or reliability of the evidence and cannot even correct the error of fact however grave it may appear to be. 37. Learned advocate for the respondents contended that the writ court also cannot go into the proportionality of punishment unless it shocks the conscience of the Court relying on the decision reported in 2015 LAB.I.C.268(Supreme Court) (Union of India and Ors. Vs. P. Gunasekaran). 38. It is evident from the documents vide annexure P-7 that the bank suffered financial loss in the form of non-performing assets involving Rs.27.22 lakhs. Vs. P. Gunasekaran). 38. It is evident from the documents vide annexure P-7 that the bank suffered financial loss in the form of non-performing assets involving Rs.27.22 lakhs. The appellate authority took stock of the situation by calling for the present status of the assets /transactions conducted by the petitioner at the time of disposal of such appeal and after considering the entire facts and circumstances took a lenient view in the matter and reduced the punishment of the petitioner to the basic pay scale of the selfsame cadre without reducing him to the next below cadre. That sufficiently goes to show that the penalty was imposed upon the petitioner taking into consideration the financial loss suffered by the bank. The only point of law in disposal of the disciplinary proceeding by the disciplinary authority as well as the appellate authority as has been raised by the petitioner is that the regulations 17 and 19 of Paschim Banga Gramin Bank (officer and employees) service regulation 2007 have been given retrospective effect when such regulations were repealed and accordingly imposition of penalty by the regulation of 2010 is bad in law. 39. Admittedly regulation 17 and 19 of Paschim Banga Gramin Bank(officer and employees) service regulation 2007 have been renumbered as regulation 18 and 20 in Paschim Banga Gramin Bank(officers and employees) service regulation 2010. Regulation 77(2) of Paschim Banga Gramin Bank(officers and employees) service regulation 2010 provides that notwithstanding such repeal any order made or action taken under the provisions so repealed shall be deemed to have been made or taken under the provisions of this regulations. 40. Therefore, on the strength of such repealing clause violation of regulation 17 and 19 Paschim Banga Gramin Bank (officer and employees) service regulation of 2007 can safely be dealt with by the subsequent regulation on the basis of regulation 77 (2) of 2010. In view of settled position of law the contention of learned advocate for the petitioner on that score cannot be acceded to. 41. The writ court cannot usurp the jurisdiction of the appellate authority against the decision of the disciplinary authority unless the procedure adopted by the disciplinary authority is patently illegal and contrary to the principle of natural justice. In view of settled position of law the contention of learned advocate for the petitioner on that score cannot be acceded to. 41. The writ court cannot usurp the jurisdiction of the appellate authority against the decision of the disciplinary authority unless the procedure adopted by the disciplinary authority is patently illegal and contrary to the principle of natural justice. I am constraint to hold that the petitioner has failed to show any such violation of natural justice in the disposal of the disciplinary proceeding by the competent authority as well as by the appellate authority. 42. In the case of Ashok Kumar Vs. Industrial Development Bank of India Ltd. & Ors. W.P. 21400(W) of 2012 the service of the petitioner was terminated on the ground of unauthorised extension of leave. The facts and circumstances of the said case are not similar to the present case. In no stretch of imagination it can be said that the punishment imposed upon the petitioner is shockingly disproportionate to the charge levelled against him. 43. In Rathin Ghosh Vs. West Bengal State Electricity Distribution Company Limited & Ors. W.P. 2712(W) of 2010 the integrity of the petitioner was challenged only on the ground that the air fare of the petitioner was borne by SML and accordingly the service of the petitioner was terminated. This Court held that the disciplinary proceeding was conducted in arbitrary manner and the punishment for dismissal of service as well as withholding of pension and gratuity in absence of any finding of sufferance of any pecuniary loss to West Bengal State Electricity Distribution Company Limited is illegal. 44. Learned Advocate for the respondent however could not produce the copy of writ petition no.2771(W) of 2015 in support of his contention that this writ petition has been described as infructuous in para 54 at page 29 of such writ petition and accordingly I refrain from making any comment on such submission of learned advocate for the respondents. 45. The contention of the petitioner appears to be devoid of merit in view of the discussions made herein- above and in view of the settled principle of law as enunciated by the Hon’ble Supreme Court in the decision reported in 2015 LAB.I.C.268(Supreme Court) (Union of India and Ors. Vs. P. Gunasekaran). 46. In the premises set forth above I find no merit in the writ petition. 47. Vs. P. Gunasekaran). 46. In the premises set forth above I find no merit in the writ petition. 47. The writ petition is devoid of merit and is accordingly dismissed. 48. No order as to costs. 19. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible