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2019 DIGILAW 2224 (ALL)

A. M. Kulshrestha v. Union Bank of India

2019-09-20

SAURABH SHYAM SHAMSHERY, SHASHI KANT GUPTA

body2019
JUDGMENT : Shashi Kant Gupta and Saurabh Shyam Shamshery, JJ. 1. This appeal has been filed against the judgment and order dated 26.7.2019 passed by learned Single Judge in Writ Petition (A) No. 10800 of 2019 which was filed, inter alia, for a direction in the nature of certiorari quashing the charge-sheet dated 10.6.2019 issued by Disciplinary Authority/Executive Director, Union Bank of India and for treating the case of the petitioner for payment of pension under the Union Bank of India Employees Pension Regulation, 1995, and to pay the pension and other post retrial dues to the petitioner. 2. By the impugned order dated 26.7.2019, the learned Single Judge has dismissed the writ petition holding that no ground is made out to quash the charge-sheet. However, the Single Judge directed that the disciplinary authority to make all efforts and conclude the enquiry at the earliest, preferably, within a period of three months from the date of submission of certified copy of this order, provided the petitioner cooperates in the matter. 3. The facts as narrated in the affidavit filed in support of the stay application are summarized as follows: 4. The appellant at the relevant point of time was posted as Regional Head of Regional Office, Meerut and Head of Regional Level Credit Committee-1, Meerut. The allegation, inter alia, against the appellant is that while as Head of the said Regional Office, he adopted a very casual approach while sanctioning credit proposals in 16 accounts sent by Mid-corporate Ghaziabad Branch. He did not ensure strict adherence to the guidelines and policies of the Bank. Huge limits were sanctioned to newly incorporated firms without ensuring that proper due diligence by the branch/processing officers. Limits were sanctioned to family members for similar business activities. It is also alleged that frequent ad-hocs were sanctioned in the account and roll-over of limits were allowed despite explicit instructions of FGMO, Lucknow to desist from the same. No action was taken against the Branch officials for transgressing their delegated authority by allowing ad-hoc in the accounts at their level, rather their action was subsequently ratified. 5. Respondent No. 1, Managing Director and CEO, Union Bank of India by order dated 21.8.2018 suspended the appellant stating that certain serious acts of omission and commission have been reported on the part of the appellant during his tenure as Regional Head, Meerut. 6. 5. Respondent No. 1, Managing Director and CEO, Union Bank of India by order dated 21.8.2018 suspended the appellant stating that certain serious acts of omission and commission have been reported on the part of the appellant during his tenure as Regional Head, Meerut. 6. The aforesaid suspension order was challenged by the appellant before this Court by means of a Writ Petition (A) No. 6976 of 2019. Consequently, the writ petition was allowed and the suspension order of the appellant dated 21.8.2018 was set aside by this Court by order dated 20.6.2019 due to delay in serving charge-sheet on the petitioner. While disposing of the said writ petition, the respondent-bank was set at liberty to initiate any proceeding that it may deem fit and post the petitioner wherever it deems fit till the superannuation of the appellant on 30.6.2019. For ready reference, operative portion of the order dated 20.6.2019 is quoted hereinbelow: "Considering the averments made at the Bar by Sri Rakesh Pande, Senior Advocate, assisted by Sri Manoj Kumar Tiwari, learned Counsel for the petitioner and Sri Vivek Ratan Agrawal, learned Counsel for the respondents, this Court is of the view that continuing the suspension since 21.8.2018 without even initiating or serving charge-sheet for almost a year and that too at the fag end of the career of the petitioner is wholly arbitrary and illegal. The power of suspension vested with the bank cannot be exercised to delay and deny the justice to the Officer Employee as has been done by the Bank in the present case. It is well-settled that suspension can only be in pursuance of the final order that he will pass in the disciplinary proceedings which have not even been initiated in the present case as such the continued suspension for almost about ten months is liable to be set aside. Consequently, the order dated 21.8.2018 is set aside. However, the respondent-bank is free to initiate any proceedings that it may deem fit and the respondent-bank is also at the liberty to post the petitioner wherever it deems fit till the superannuation on 30.6.2019. The writ petition succeeds and is disposed off in terms of the directions quoted above." 7. Consequently, the order dated 21.8.2018 is set aside. However, the respondent-bank is free to initiate any proceedings that it may deem fit and the respondent-bank is also at the liberty to post the petitioner wherever it deems fit till the superannuation on 30.6.2019. The writ petition succeeds and is disposed off in terms of the directions quoted above." 7. It has come on record that this Court in the said writ petition had directed the Executive Director to file his personal affidavit, following which, the respondent No. 5, Shri Gopal Singh Gosain in his capacity as Executive Director had filed an affidavit dated 13.6.2019 stating in paragraph 27 that charge-sheet has not been issued to the appellant-petitioner since reply from the Central Vigilance Commission was awaited and charge-sheet would be issued only after receipt of said advice. In paragraph 27 of the said affidavit, it was mentioned as follows: "27. That on receipt of the advice of CVC, the respondent bank shall be soon issuing Articles of Charge/Chargesheet to the petitioner alongwith other concerned officials who are found to be involved in the matter." 8. The contention of the learned Counsel for the appellant is that even though in the personal affidavit dated 13.6.2019, it was mentioned that on receipt of the advice from the Central Vigilance Commission (in short "CVC"), the respondent-bank shall issue articles of charge/charge-sheet against the petitioner but soon thereafter charge-sheet dated 10.6.2019 was issued against the appellant without awaiting for the advice of CVC. Thus, according to the appellant, the issuance of charge-sheet without the advice of the CVC is not maintainable and is liable to be quashed. According to learned Counsel for the appellant, this Court was also misled by the bank. In support of his contention, he has also referred to the Rule 19 of the Union of India Officer Employees' (Discipline and Appeal) Regulations, 1976 (in short "the Regulation"). For ready reference, the aforesaid Rule 19 of the Regulation is quoted hereinbelow: "Rule 19. Consultation with Central Vigilance Commission: The Bank shall consult the Central Vigilance Commission wherever necessary, in respect of all disciplinary cases having a vigilance angle." 9. For ready reference, the aforesaid Rule 19 of the Regulation is quoted hereinbelow: "Rule 19. Consultation with Central Vigilance Commission: The Bank shall consult the Central Vigilance Commission wherever necessary, in respect of all disciplinary cases having a vigilance angle." 9. Per contra, Sri Vivek Ratan Agrawal, learned Counsel for the respondent Bank has supported the impugned order passed by the learned Single Judge and stated that serious allegations of financial fraud has been made against the appellant and other bank officials involving huge amount to the tune of Rs. 273/- crores. It is further submitted that charge-sheet has already been issued and the disciplinary enquiry is to be concluded as per the direction of the learned Single Judge within three months. While referring to the Rule 19 of the Regulation, he stated that the provision of Rule 19 is not mandatory in nature instead it is directory. A perusal of the Rule 19 of the Regulation clearly indicates that consultation with the Central Vigilance Commission is advisory in nature. It is further submitted that the Bank cannot wait for the advice of the CVC ad infinitum keeping the disciplinary enquiry in abeyance. He further stated that huge amount of public money to the tune of Rs. 273/- crores is involved in the matter and the appellant alongwith other officials are responsible for causing huge loss to the Bank, as such, they are to be taken to task. 10. Heard Sri Rakesh Pande, learned Senior Advocate assisted by Ms. Vishakha Pande, learned Counsel for the petitioner, Sri Vivek Ratan Agrawal, learned Counsel for the Bank and perused the record. 11. Admittedly, charge-sheet has already been served on the petitioner and the learned Single Judge has already directed the disciplinary authority to conclude the enquiry preferably within a period of three months from the date of submission of a certified copy of this order, provided the petitioner cooperates. 12. The contention of the learned Counsel for the appellant is that the action of the respondent-Bank suffers from legal malice. 12. The contention of the learned Counsel for the appellant is that the action of the respondent-Bank suffers from legal malice. Once an affidavit dated 13.6.2019 is filed by the Executive Director of the Bank before this Court specifically stating in Paragraph 27 of his affidavit that respondent bank shall issue Articles of Charge/charge-sheet to the petitioner-appellant alongwith other concerned officials who are found to be involved in the matter after receipt of the advice of CVC, the charge-sheet could not have been served on the appellant on 18.6.2019 without receiving any advice from the CVC. 13. While dealing with this issue, learned Single Judge in the order dated 26.7.2019, inter alia, observed as follows: "With regard to the first submission of learned Counsel for the petitioner that correct facts were not disclosed before this Court in the previous round of litigation by the disciplinary authority i.e., the Executive Director of the Bank, suffice it to note that the charge-sheet was though prepared on 10.6.2019 but it was not served on the petitioner by 13.6.2019 when affidavit was filed by the Executive Director before this Court. Further he only stated that the charge-sheet will soon be issued to the petitioner on receipt of the advice of C.V.C. Admittedly, charge-sheet was served on the petitioner on 18.6.2019. Only conclusion, thus, can be drawn is that it was under preparation when affidavit was filed on 13.6.2019, there was, thus, no misstatement or concealment on the part of the deponent which would prejudice the petitioner." 14. Learned Single Judge has given cogent and convincing reasons while dealing with this aspect of the matter. The bank cannot wait ad infinitum for the advice of the CVC. Merely because there was an inaction on the part of the CVC, the disciplinary proceedings cannot be frustrated when huge sum of public money to the tune of Rs. 273/- crores is involved particularly when the petitioner was to retire on 30.6.2019. The delinquent officials cannot be allowed to go scot free. The charge-sheet issued against the appellant cannot be quashed merely on the ground that some averment was made in paragraph 27 of the affidavit by the Executive Director. 15. 273/- crores is involved particularly when the petitioner was to retire on 30.6.2019. The delinquent officials cannot be allowed to go scot free. The charge-sheet issued against the appellant cannot be quashed merely on the ground that some averment was made in paragraph 27 of the affidavit by the Executive Director. 15. Next submission of the learned Counsel for the appellant is that the provision of Rule 19 of the Regulation is mandatory in nature and without the receipt of the advice from the CVC, charge-sheet could have been served. 16. A perusal of the record shows that issuance of the charge-sheet was delayed merely on the ground that advice was awaited from the CVC. Learned Single Judge has also dealt this argument at length and in its order dated 26.7.2019, inter alia, observed as follows: "As far as the submission of learned Senior Advocate for the petitioner that Rule 19 of the Regulations, 1976 is mandatory and without receipt of advice of C.V.C., it was not open for the disciplinary authority to proceed in the departmental enquiry, the rule itself negates the said submission. The words used in the rules are "Consultation with Central Vigilance Commission". That means to seek advice, to proceed in the matter of disciplinary enquiry initiated against a Government servant against' whom charges of corruption are levelled. The Central Vigilance Commission is not an investigating agency rather it is an apex body of the Government of India created to address corrupt practices within the Government. It has been given statutory force by the Parliament being autonomous body charged with monitoring of vigilance activity under the Central Government of India, advising various authorities in Central Government Organisations in planning, executing, reviewing and reforming their vigilance work. With this objective, the guidelines have been framed by the Central Vigilance Commission. A bare reading of the guidelines indicates that they are advisory. The role of the Central Vigilance Commission in the instant matter, is to advice the bank to guide, to make enquiry from all angles. The opening paragraph of the guidelines contained in Chapter VII relating to disciplinary proceeding and suspension itself indicates that it has no say in the disciplinary enquiry. As per Clause 7.1.2, the procedure for departmental disciplinary proceeding is governed by the rules applicable to the Government servant. The role of Central Vigilance Commission is, thus, advisory in the matter. The opening paragraph of the guidelines contained in Chapter VII relating to disciplinary proceeding and suspension itself indicates that it has no say in the disciplinary enquiry. As per Clause 7.1.2, the procedure for departmental disciplinary proceeding is governed by the rules applicable to the Government servant. The role of Central Vigilance Commission is, thus, advisory in the matter. Moreover, under the Central Vigilance Commission Act, 2003, the inquiries made by the Central Vigilance Commission is with regard to the offence under the Prevention of Corruption Act, 1988 and offence with which a public servant in sub-section (2) may, under the Code of Criminal Procedure, 1973, be charged at the same trial; like an investigating agency, which cannot have any bearing on the disciplinary proceedings. Even otherwise, in case of report of C.V.C. is received during the enquiry and an additional charge is to be framed, the petitioner will get opportunity. It appears that the bank had approached the Central Vigilance Commission for seeking first stage advice after suspension of the petitioner on the allegations of fraud in disbursement of loan. No response was received for a period of approximately 10 months. The petitioner was reinstated under the directions of this Court on account of continuance under suspension for a long time without initiation of disciplinary proceeding. It was, however, kept open by this Court to continue the departmental enquiry. The charge-sheet was served on the petitioner on 18.6.2019, no reply has been submitted by him till date." 17. Learned Single Judge while considering the aforesaid issue has given a cogent, convincing and satisfactory reasons for discarding the submissions of the learned Counsel for the appellant. In the circumstances, Rule 19 of the Regulation cannot be said to be mandatory in nature. Role of the CVC in the instant case is to advice the bank to guide, to make enquiry from all angles. Learned Single Judge has rightly observed that in case the report of the CVC is received during the enquiry and additional charge is to be framed, the petitioner will get an opportunity. 18. No other point has been pressed before us by the learned Counsel for the appellant. 19. In the result, we do not see any illegality or even irregularity in the impugned order passed by the learned Single Judge. 20. The appeal lacks merit and is hereby dismissed.