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2017 DIGILAW 915 (GAU)

Rabin Chandra Sarma v. Central Bank of India

2017-07-13

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. K.A. Choudhury, learned counsel for the petitioner. Also heard Mr. M.K. Mishra, learned counsel for the respondent, Central Bank of India. The petitioner was working as the Branch Manager of the Bokulia Branch of the respondent Central Bank of India, which is located somewhere in the Karbi Anglong district of Assam. The petitioner states that the said Bokulia branch is located in an area where certain extremists elements are also in existence, which makes it difficult for a branch manager to function in a manner as may be desired by the management of the bank. 2. Be that as it may, the petitioner was issued with a show-cause notice dated 7.5.2007, wherein, four charges were brought against the petitioner. The first charge was that the petitioner while working as the branch manager of the aforesaid branch had violated/disobeyed the instruction of his higher authority in handling advance portfolio. The second charge was that the petitioner committed serious financial anomalies in sanctioning and disbursing loans in 173 CKCC account thereby jeopardizing the pecuniary interest of the bank, in a situation where his lending power were curtailed by the higher authority. The third charge was that the petitioner in order to conceal his mis-deeds/irregularities contained in the aforesaid CKCC account, did not report to his higher authority about such loans through periodical control returns, while the fourth charge was that the petitioner had acted illegally and unauthorizedly in sanctioning and disbursing the 173 CKCC loans. In the accompanying statement of imputation in respect of Charge No. 1, it is stated that while the petitioner was working as a branch manager, he had violated/disobeyed the instruction of his higher authority in allotting advance portfolio inasmuch as, by an earlier letter dated 23.09.2006, his lending power were restricted, but in spite of such restriction, he had sanctioned/enhanced loan amount of the said 173 CKCC account holders. 3. Charge No. 2 was sought to be justified in the statement of imputation by providing the details of 173 CKCC borrowing account holders, in respect of which the petitioner had disbursed the loan. Charge No. 3 was sought to be justified in the statement of imputation by stating that as per the rules, the petitioner was required to submit periodical control reports highlighting the sanction/disbursement of loans. Charge No. 3 was sought to be justified in the statement of imputation by stating that as per the rules, the petitioner was required to submit periodical control reports highlighting the sanction/disbursement of loans. While the fourth charge was sought to be justified in the statement of imputation by stating that the petitioner had acted illegally and unauthorizedly in disbursing the loans amounting to Rs. 42.05/- lacs, which was presumed to have caused pecuniary loss to the bank. 4. In reply, thereto, the petitioner in his written statement dated 25.05.2007 had stated that in respect of the Charge No. 1, he had renewed certain earlier loans, which were availed by the borrowers and it was not a fresh sanction and therefore, his act of giving renewals was not covered by the restriction imposed by the said letter dated 23.09.2006. In respect of the other charges, the petitioner had stated that before sanctioning the renewals, he had obtained land holding certificates and land valuation certificates from the Astt. Revenue Officer of the concerned circle and the loans were disbursed only after obtaining such information. 5. Subsequently, a supplementary charge-sheet dated 02.07.2007 was issued wherein, the first charge was that the petitioner had sanctioned a loan of Rs. 35,000/- to one Puspa Kalita against security of KVP of Rs. 50,000/- whereas, under the lending policy of the bank, the Branch Manager had no power to sanction such loan. The subsequent Charge No. 2 was that the demand loans against pension were disbursed by the petitioner by jeopardizing the pecuniary interest of the bank to the effect that two such borrowers were aged about 71 and 74 years respectively. Supplementary Charge No. 3 was against the disbursal of a loan amount of Rs. 1.50 lakh to one Arun Chandra Barik without any collateral security of LIC policy. The supplementary Charge No. 4 was that two loans disbursed by the petitioner amounting to Rs. 100000/- and 50,000/- respectively, were not being repaid by the concerned borrower. The supplementary Charge No. 5 was that a loan amount of Rs. 1,00,000/- was sanctioned and disbursed to one Bhaba Rajbongshi, by violating the lending policy of the bank to the effect that the said loan was granted under "Cent Rental Scheme" which was not applicable in a rural area, whereas the branch of the petitioner was located in a rural area. 6. 1,00,000/- was sanctioned and disbursed to one Bhaba Rajbongshi, by violating the lending policy of the bank to the effect that the said loan was granted under "Cent Rental Scheme" which was not applicable in a rural area, whereas the branch of the petitioner was located in a rural area. 6. Against the said supplementary charges also, the petitioner had his submitted written statement dated 30.07.2007. Regarding the first supplementary charge, the petitioner stated that the same was done pursuant to a telephonic permission from the Regional Manager, although due to work pressure, he could not get the papers ratified later on. With regard to Charge No. 2, the petitioner stated that he had obtained personal guarantee of the wife of borrower as well as another pensioner to protect the interest of the bank. With regard to Charge No. 3 the petitioner stated that he had taken the guarantee of a guarantor who was working in the same Bakulia Higher Secondary School as that of the borrower. With regard to supplementary Charge No. 4, he stated that in both the cases, the recovery was from the monthly salary of the concerned persons and the landlord of the bank premises was a guarantor for both the persons. As regards the supplementary Charge No. 5, the petitioner took the stand that the concerned borrower is the landlord of the premises, where the bank itself is located and therefore, any loan taken by him could easily have been recovered from the amount payable by the bank to the said landlord. 7. Based on the aforesaid charges, an enquiry was conducted. The findings of the Enquiry Officer merely provides that on the premises of the documentary evidences available with the bank authorities, it was established that the petitioner had indulged in sanctioning/disbursing the loans mentioned in the charges and therefore, the charges against the petitioner had been proved. It is noticeable that neither in the charges, nor the enquiry report, there is anything to indicate that the petitioner had indulged in any such activity, which had caused a pecuniary loss to the respondent bank. It is also taken note of that Charge-4 of the first show-cause notice dated 7.5.2007 itself stated that because of such activity of the petitioner as narrated in the charges, the bank presumes that there could be a pecuniary loss to the bank. It is also taken note of that Charge-4 of the first show-cause notice dated 7.5.2007 itself stated that because of such activity of the petitioner as narrated in the charges, the bank presumes that there could be a pecuniary loss to the bank. The said statement in the charge itself is also an indication that no such pecuniary loss was infact caused to the Bank. 8. In the aforesaid premises as no pecuniary loss was caused to the bank, all such charges leads to a conclusion that the petitioner had acted in a manner which can be understood to be irregular and not administratively desirable. 9. On the basis of the aforesaid findings of the Enquiry Officer, the impugned order dated 19.11.2007 was issued wherein, a punishment of dismissal from service was inflicted against the petitioner against all the charges. The order of the disciplinary authority inflicting the punishment of dismissal on the petitioner was also made on the premises that there was some kind of disobedience by the petitioner of the written instruction of the higher authority. The order of the Disciplinary Authority inflicting the punishment also does not indicate that the petitioner had either indulged in some kind of undue pecuniary benefit or that he actually caused any pecuniary loss to the bank. 10. In such view of the matter, the conclusion that the disciplinary authority had arrived that the petitioner had committed serious financial anomaly cannot be accepted. Financial anomaly is an anomaly which is understood to be an act by an employee of the bank either resulting in some undue pecuniary benefit to the employee or had caused financial manipulation of the bank, which had resulted in the bank suffering from some financial loss. 11. As already concluded hereinabove, even if the charges as well as the findings against the petitioner are taken to be true in its face value, there is no such indication either in the charge or in the enquiry report that the petitioner had indulged in any such undue act resulting in any financial loss to the bank by such act. As already concluded hereinabove, even if the charges as well as the findings against the petitioner are taken to be true in its face value, there is no such indication either in the charge or in the enquiry report that the petitioner had indulged in any such undue act resulting in any financial loss to the bank by such act. As the punishment of dismissal has been inflicted on the petitioner on the premises that the petitioner had committed financial anomalies, this Court is of the view that such conclusion of the respondent bank authorities to justify the punishment of dismissal from service is unreasonable and without there being any material basis for the same. 12. In view of such conclusion, this Court is of the view that the decision of the bank authorities to inflict the punishment of dismissal from service was a decision which a reasonable person could not have taken and as such, the said decision is in violation of one of the Wednesbury principles. 13. In this respect, the Hon'ble Supreme Court, in Om Kumar. v. Union of India reported in (2001) 2 SCC 386 in paragraph-71 was of the view that where an administrative decision relating to punishment in disciplinary cases is questioned as arbitrary under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority and the Court while reviewing the punishment is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment Paragraph-71 of the aforesaid judgment is as follows:- "Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as 'arbitrary' under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment." 14. In B.C. Chaturvedi v. Union of India reported in (1995) 6 SCC 749 , the Hon'ble Supreme Court was of the view that if the punishment imposed by the disciplinary authority shocks the conscience of the tribunal, it would be appropriately mould the relief, either directing the disciplinary authority to re-consider the penalty or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. Paragraph-18 of the judgment is quoted herein below:- "A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." 15. It the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." 15. In view of the aforesaid provisions of law as enunciated by the Hon'ble Supreme Court, coupled with the findings of this Court that there is no reasonable basis for the respondent bank to arrive a conclusion that the petitioner had caused serious financial irregularities, resulting in any dune financial benefit to himself or has caused any financial loss to the bank, this Court is of the view that the decision to the inflict punishment of dismissal from service is decision which a reasonable man could not have arrived at and the said is highly arbitrary and shocks the conscience of the Court. Dismissal from service is the ultimate punishment and therefore, inflicting the same for an act of not acting in the required administrative manner, but without causing any financial loss to the bank and without resulting in any undue financial gain to the dismissed employee would be a decision which a reasonable person could not have arrived at. 16. Accordingly, this matter is remanded back to the disciplinary authority of the respondent bank to take appropriate decision on the punishment to be inflicted on the petitioner, proportionate to his conduct that he had acted in a manner by which he had disobeyed the instruction of his higher authority but had not caused any financial loss to the bank nor the petitioner had indulged in any undue financial benefit for himself by doing such act. The said decision be taken by the bank within a period of 3 (three) months from today. Any decision taken by the respondent bank shall duly communicated to the petitioner. Any subsequent order to be passed by the disciplinary authority shall prevail over the earlier order of dismissal which has been impugned in this petition. In terms of the above, writ petition stands disposed of.