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2023 DIGILAW 1945 (ALL)

Pankajesh v. Chairman/ Appellate Authority

2023-08-11

VIVEK CHAUDHARY

body2023
JUDGMENT : 1. Present writ petition is filed by the petitioner challenging the order dated 07.09.2020 passed by the Disciplinary Authority whereby petitioner was dismissed and the order dated 15.06.2021 passed by the appellate authority whereby appeal of the petitioner against the punishment order was also rejected. 2. Facts of the case are that the petitioner was initially appointed as an Officer in Tulsi Gramin Bank (erstwhile Allahabad U.P. Gramin Bank and now Aryavart Bank since 01.04.2019) (hereinafter referred to as 'Bank') in the year 1983 and he was due to superannuate on 31.10.2018. While in service of the Bank, from 23.09.2010 till 10.01.2011, he worked in the capacity of Temporary Manager in Chakaundh Branch-Chitrakoot. On 11.01.2011, petitioner was posted as Permanent Manager in the same Branch till he was transferred on 20.07.2012. During his posting as Temporary Manager in the said Branch, some loans were sanctioned under a scheme sponsored by the National Scheduled Castes Finance & Development Corporation set up by the Government of India under the Ministry of Social Justice & Empowerment. 3. It is stated by the petitioner that as per the process prescribed, all the loans were recommended/approved by the Block Development Officer concerned and were also duly verified by the Bank and thereafter sanctioned. The beneficiaries of the said loans also purchased and received articles subjected to loans and recorded their satisfaction. The disbursement of loans was made as per the procedure prescribed by the Bank. The said loans were evaluated, sanctioned and disbursed and assets were created under the supervision of the Assistant Development Officer (Social Welfare), Pahari, Chitrakoot along with Sri Atmaram Gupta, who was the permanent officer posted in the Branch. The disbursement of loans was made as per the procedure and the said fact was duly reported by the petitioner to the competent authority by communications dated 17.02.2010, 30.03.2010 and 20.04.2010. The internal audit inspection of the Branch was also carried out by the Inspection Officer from 09.06.2010 to 14.06.2010. In the audit inspection report dated 15.06.2010, it was pointed out that disputed loans were sanctioned without approval of the Manager. 4. At the relevant time there were only two Officers posted in the said Branch namely Sri Atmaram Gupta as Evaluation Officer and the petitioner as the Temporary Manager (having no authorization to sanction the loan as per the Bank guidelines). 5. 4. At the relevant time there were only two Officers posted in the said Branch namely Sri Atmaram Gupta as Evaluation Officer and the petitioner as the Temporary Manager (having no authorization to sanction the loan as per the Bank guidelines). 5. Right after the aforesaid irregularities were pointed out in the inspection report dated 15.06.2010, Sri Atmaram Gupta was transferred to another Branch by order dated 19.07.2010, with clear instruction not to deal with any loan transactions. The irregularities pointed out in the inspection report were not rectified as per the Bank. Thereafter 08 further financial annual internal inspections were conducted by the Bank till 2018 and no irregularities were pointed out in the said inspections. Surprisingly, after 08 years of the aforesaid incident, which had occurred in the year 2010, petitioner was served with a show cause notice on 23.08.2018 with regard to irregularities in the said loan transactions. After issuance of the show cause notice again a special inspection was carried out with regard to 14 loans transactions mentioned in the show cause notice dated 23.08.2018. The said special inspection was conducted on 27.09.2018. 6. A charge sheet was issued by the respondent-Bank to the petitioner on 11.10.2018 which was served on 18.10.2018, i.e., just 12 days prior to the retirement of the petitioner, containing total 18 charges levelled against the petitioner. Out of the 18 charges, Charge nos. 1 to 14 are with regard to wrong information provided by the petitioner in his explanation letter dated 10.09.2018, allegedly written by him, with regard to loans sanctioned during his tenure at the Chakaundh branch in the year 2010. Charge No. 15 is with regard to dereliction of duty while sanctioning a loan which later turned N.P.A. and caused financial loss of Rs.43,924 to the respondent bank and Charge No. 16 is regarding misleading reports submitted by the petitioner to the Head Office and relate to different loans of the year 2010 having only variation of names of borrowers and the loan amounts etc. Charge No. 17 again refers to wrong information provided by the petitioner with regard to signature of the officer, who issued banker's cheque drafted on 25.03.2010 and 29.03.2010, in his letter dated 10.09.2018. Charge No. 17 again refers to wrong information provided by the petitioner with regard to signature of the officer, who issued banker's cheque drafted on 25.03.2010 and 29.03.2010, in his letter dated 10.09.2018. So far as the Charge no.18 is concerned, it alleged that the petitioner failed to follow the Bank guidelines during his tenure at the Chaukandh Branch, as an amount of Rs.1,07,302/- was incorrectly shown in Saving Bank Account of Sri Gulab Singh as Rs.2,07,302/- on 06.12.2005 and, thus, an excess amount of Rs.91,439/- was withdrawn by the account holder, causing financial loss of the said amount to the Bank. All of the 18 charges pertain to transactions that happened between 2005 to 2010 i.e., 8 years before the chargesheet was issued to the petitioner. 7. First submission made by learned counsel for the petitioner challenging the punishment order is that the incident is of the year 2010 and it was also always in the knowledge of the respondent-Bank. In fact, Sri Atmaram Gupta was transferred from the Bank by order dated 19.07.2010 with the instructions that he shall not be given any loan sanctioning authority. However, the charge sheet to the petitioner was issued on 11.10.2018 i.e. around 08 years after the incident took place and that too merely 12 days prior to retirement of the petitioner. Counsel for the petitioner relies upon Clause 1 of the Chapter-VII of the Bank Vigilance Manual wherein it is provided that no disciplinary action shall be taken against an official 4 years after the commission of the alleged act. Thus, the charge sheet is highly belated and, therefore, the entire proceedings are liable to be set aside. In support of his submission, counsel for the petitioner relies upon the judgments of Supreme Court in the cases of UCO Bank & Ors. vs. Rajendra Shankar Shukla; (2018) 14 SCC 92 and UCO Bank & Ors. vs. Prabhakar Sadashiv Karvade (2018) 14 SCC 98 , wherein departmental proceedings against the employee were set aside by the Supreme Court on the ground of there being inordinate delay between the alleged act and issuance of chargesheet. 8. In reply to the same, learned counsel for the respondent-Bank submits that a perusal of each and every charge shows that the charge sheet is issued on the basis of a reply submitted by the petitioner 10.09.2018. 8. In reply to the same, learned counsel for the respondent-Bank submits that a perusal of each and every charge shows that the charge sheet is issued on the basis of a reply submitted by the petitioner 10.09.2018. He further submits that the aforesaid judgments relied upon by the counsel for the petitioner stands overruled by a larger bench of the Supreme Court in the case of Mahanadi Coalfields Ltd. v. Rabindranath Choubey; (2020) 18 SCC 71 . 9. Learned counsel for the petitioner further disputes that petitioner never issued any explanation letter dated 10.09.2018 and also denied petitioner's signature on the same. He further submits that the charges in the charge sheet are vague and do not give any details whatsoever. Reliance is placed upon the language of the charges which merely state that the petitioner while working as Manager of the Branch - Chakaundh had given loans with regard to named persons and in the said references has made false and misleading report to the Head Office. He further adds that vague charges in the chargesheet are in itself a sufficient ground to set aside the whole proceeding. In support of his argument, learned counsel for the petitioner relies upon the judgment of the Supreme Court in the case of State of U.P. vs. Mohd. Sharif (dead) through L.Rs; AIR 1982 SC 937 . 10. Replying to the same, learned counsel for respondent submits that along with the charge sheet documents were annexed giving details in support of the charges levelled against the petitioner. In the said annexure with regard to charge nos. 1 to 14, it is specifically stated that in response to the Head Office letter dated 23.08.2018, a reply was submitted by the petitioner on 10.09.2018 which was vague and false. The said annexures also gave details of the different loan accounts and the amount sanctioned in the same. Thus, the same are sufficient details and it cannot be said that the charges are vague. With regard to charge no.15, it is stated that after the purchase of Buffalo neither any health certificate was issued nor the buffalo was insured. Further, no security on the loan amount of Rs.40,000/- was ever furnished and now the loan amount cannot be recovered and thus the Bank has suffered a loss of Rs.43,924/- against the amount as it stood on the date of the charge sheet. 11. Further, no security on the loan amount of Rs.40,000/- was ever furnished and now the loan amount cannot be recovered and thus the Bank has suffered a loss of Rs.43,924/- against the amount as it stood on the date of the charge sheet. 11. With regard to Charge no.16, details of the aforesaid loan amounts are provided and it is stated that the petitioner did not ask for any security for the loan disbursed by him and, thus, later the same turned as N.P.A. and are now causing loss to the Bank. With regard to Charge No.17, annexures again state that his explanation dated 10.09.2018 to the Bank's letter dated 23.08.2018 gives incorrect and false information and thus charge is made out. For Charge no.18, it gives details of amount incorrectly shown in the said saving Bank account of Sri Gulab Singh. 12. On the basis of the aforesaid, learned counsel for the respondent-Bank states that sufficient details are given in the charge sheet and the same is not delayed and the same is on the basis of communication dated 10.09.2018 given by the petitioner which itself is vague and false. Thus, he says that since the cause of action occurred in the year 2018, when incorrect reply was submitted by the petitioner, hence there is no delay in issuing the charge sheet. Learned counsel for the respondent-Bank further states that the letter dated 10.09.2018 is written by the petitioner himself and he is wrongly disputing the same. 13. A perusal of the inquiry report shows that Charge Nos. 1 to 14 are proved, charge No.15 is partly proved whereas petitioner is exonerated from charge No.16, charge No.17 is proved and Charge No. 18 is partly proved. 14. I have heard learned counsel for the parties and perused the records. 15. The first submissions of the petitioner is with regard to the delay in initiating the disciplinary proceedings against him. 16. It is not in dispute between the parties that all the loans were sanctioned in and other acts referred to in the charge sheet are of the year 2010 or prior in time. The charge sheet is issued to the petitioner on 11.10.2018, which was served upon him on 18.10.2018, while petitioner was due to retire on 31.10.2018. 16. It is not in dispute between the parties that all the loans were sanctioned in and other acts referred to in the charge sheet are of the year 2010 or prior in time. The charge sheet is issued to the petitioner on 11.10.2018, which was served upon him on 18.10.2018, while petitioner was due to retire on 31.10.2018. It has not been disputed by the respondent-Bank that from the year 2010 to the year 2018, regular annual financial inspections of the Branch were conducted. Thus, if there was any irregularity and illegality committed by the petitioner, it was always in the knowledge of the respondent-Bank. The respondent-Bank never took any step against the petitioner on the basis of any alleged illegality, even if they existed. The Bank cannot by calling explanation, by its letter dated 23.08.2018, can get over the delay of 08 years committed by it in initiating the departmental enquiry with regard to any illegality committed by the petitioner, by saying that in response thereto a response/letter dated 10.09.2018 was sent/submitted by the petitioner, which is false and vague and thus now the departmental proceedings are being initiated. All the charges relates to the loan granted under the Government scheme for the poor persons in the year 2010 and discrepancy in debiting a customer's account in the year 2005. 17. The explanation sought by communication dated 23.08.2018 is only with regard to the said loans of the year 2010 and discrepancy of the year 2005. There is no proper explanation for the delay of 08 years even in issuing a show cause notice to the petitioner and the admission that a show cause notice itself is issued after 08 years shows that there is inordinate delay. 18. Bank's Vigilance Manual has been prepared with an objective to streamline and standardize the process of disciplinary proceedings. Chapter-VII deals with "Processing of Investigation Report & Fixing Staff Accountability". Clause 1 thereof provides the time limit for initiation of disciplinary proceedings, it reads as follows:- "As per prevailing system, all borrowal/non-borrowal accounts are subjected to credit audit/inspection and they are kept under close scrutiny. This audit/inspection would scrutinise pre-sanction appraisal, documentation and disbursement of loans/advances and post sanction followup. Clause 1 thereof provides the time limit for initiation of disciplinary proceedings, it reads as follows:- "As per prevailing system, all borrowal/non-borrowal accounts are subjected to credit audit/inspection and they are kept under close scrutiny. This audit/inspection would scrutinise pre-sanction appraisal, documentation and disbursement of loans/advances and post sanction followup. If any irregularity is missed out by auditors/inspectors in the first audit/inspection, it is reasonable to expect that the remaining undetected irregularities will be detected in the 2nd audit/inspection and necessary disciplinary proceeding would be initiated against the concerned officials in the follow up action. Normally the second audit/inspection would be completed within 3-4 years. The CVC has accordingly approved the proposal that no disciplinary proceeding will ordinarily lie against any official for any lapse not detected within two successive internal regular audits/inspections of the same account or 4 years from the date of event, whichever is later. In case any irregularity is detected subsequent to the second audit/inspection, the auditors/inspectors concerned will be held accountable and be liable for disciplinary proceedings. However, this time limit will not apply to cases of (i) frauds, (ii) other criminal offences or (iii) cases where malafides are inferable." 19. Applicability of the Bank’s Vigilance Manual has not been disputed in the counter filed by the respondent Bank. During course of arguments, counsel for the Bank agrees that the same is applicable, however, he submits that the proceedings are initiated on the basis of false explanation dated 10.09.2018 submitted by the petitioner. 20. A perusal of the aforesaid shows that if any irregularity was found in the first audit/inspection and even if it is missed, it is reasonably expected that the same would be detected in the second audit/inspection. Thus, immediately after the second audit inspection necessary disciplinary proceedings are expected to be initiated against the concerned official in the follow up action. Such an exercise is normally completed within a period of 3-4 years. The C.V.C. accordingly approved that no disciplinary proceeding will ordinarily lie against any official for any lapse not detected within two successive internal regular audits/inspections of the same account or 4 years from the date of event, whichever is later. In case irregularities are detected subsequent to second audit/inspection, the auditors/inspectors concerned will be held accountable and liable for disciplinary proceedings. Only exception to the same are cases of fraud, other criminal offences or where malafides are inferable. 21. In case irregularities are detected subsequent to second audit/inspection, the auditors/inspectors concerned will be held accountable and liable for disciplinary proceedings. Only exception to the same are cases of fraud, other criminal offences or where malafides are inferable. 21. In the present case, it is not the case of the respondent-Bank that the irregularities were not detected in the audit inspections. Once they were detected, it was incumbent upon the Bank to forthwith proceed with the departmental proceedings. There is no case set up by the respondent-Bank that the present is a case of fraud or other criminal offences or where malafides are inferable. There is no case set up by the Bank that irregularities did not come in the knowledge of the Bank in time. There is a specific bar on initiating proceedings after four years of the incident. It is not open for the respondent-Bank to manipulate the said guidelines of C.V.C. which are binding upon the Bank, merely by issuing a show cause notice after a lapse of 08 years. Any show cause notice was also required to be issued by the Bank within the said period prescribed under the C.V.C. guidelines. Thus, the initiation of disciplinary proceeding is directly hit by the aforesaid guidelines. 22. Learned counsel for the respondent has placed reliance upon the judgment of the Supreme Court in the case of Mahanadi Coalfields (supra), that delay in issuing chargesheet cannot be a ground for quashing of the departmental proceedings. Relevant paragraph of the same reads as follows- "38. In UCO Bank v. Rajendra Shankar Shukla, (2018) 14 SCC 92 : (2018) 2 SCC (L&S) 625 this Court did not interfere on the ground that there was an enormous delay of about seven years in issuing a charge-sheet. Efficiency bar was permitted to be crossed during that period, and the employee was not paid the subsistence allowance or pension during the pendency of the disciplinary inquiry. It was observed that the employee was entitled to subsistence allowance during the inquiry. The decision of UCO Bank v. Prabhakar Sadashiv Karvade, (2018) 14 SCC 98 : (2018) 2 SCC (L&S) 630 was referred. An observation was made that punishment of dismissal could not have been imposed after superannuation, but the same could not be said to be the ratio of the decision. The decision of UCO Bank v. Prabhakar Sadashiv Karvade, (2018) 14 SCC 98 : (2018) 2 SCC (L&S) 630 was referred. An observation was made that punishment of dismissal could not have been imposed after superannuation, but the same could not be said to be the ratio of the decision. It was mainly for the reasons mentioned by this Court concerning delay, non-payment of subsistence allowance and the employee was deprived of meaningful participation under the departmental enquiry. After giving the aforesaid findings, it was not necessary to go into the aforesaid question. Thus, the opinion expressed as to the punishment of dismissal could not be said to be the ratio of the decision. The reliance was placed on UCO Bank v. Prabhakar Sadashiv Karvade, (2018) 14 SCC 98 : (2018) 2 SCC (L&S) 630. Though the decision of UCO Bank v. Rajinder Lal Capoor, (2007) 6 SCC 694 : (2007) 2 SCC (L&S) 550 was referred to by this Court, but it did not consider the effect of deeming fiction of continuance of inquiry and continuance of the employee in the service as pointed out above in the various decisions and it relied upon Regulation 48 providing for pecuniary loss caused to the bank. Whereas in Ramesh Chandra Sharma v. Punjab National Bank, (2007) 9 SCC 15 : (2008) 1 SCC (L&S) 337 it was held to the contrary that once the inquiry is initiated under Regulation 4 of the (Discipline & Appeal) Regulations, Regulation 48 of the Pension Regulations had no application, and order of dismissal was upheld. The decision in Ramesh Chandra Sharma v. Punjab National Bank, (2007) 9 SCC 15 : (2008) 1 SCC (L&S) 337 and other decisions which were binding upon the Division Bench were not considered. The decision in Ramesh Chandra Sharma v. Punjab National Bank, (2007) 9 SCC 15 : (2008) 1 SCC (L&S) 337 and other decisions which were binding upon the Division Bench were not considered. In the absence of consideration of the said decision and other decisions mentioned above in which it was held that legal fiction of deemed continuation has to be taken to a logical conclusion consequently, the observation made that after superannuation punishment of dismissal cannot be imposed in UCO Bank v. Rajendra Shankar Shukla, (2018) 14 SCC 92 : (2018) 2 SCC (L&S) 625, was not the ratio of decision, and the opinion expressed on the strength of the said decision in UCO Bank v. Prabhakar Sadashiv Karvade, (2018) 14 SCC 98 : (2018) 2 SCC (L&S) 630 suffers from infirmity and cannot prevail." (emphasis supplied) A perusal of the Judgment in the case of Mahanadi Coalfields (supra) as relied upon by the counsel for the respondent has only overruled Rajendra Shankar Shukla (supra) and Prabhakar Sadashiv Karvade (supra) insofar they have observed that punishment for removal cannot be passed after superannuation of the delinquent employee, otherwise the law regarding unexplained inordinate delay in initiating disciplinary proceedings still holds good. The law settled by the Supreme Court in this regard is that if in case there is inordinate delay, it shall be no more open for the respondent-department to proceed to initiate departmental proceedings. Respondent bank can not get over such an inordinate delay on the basis of an explanation letter, which the petitioner disputes is written by him, regarding events which happened atleast 8 years ago. 23. So far as reply letter dated 10.09.2018 is concerned, petitioner has specifically denied the same. Both the parties have submitted their hand writing expert reports. Their experts have given contradictory reports as the expert to the Bank states that signature of petitioner do match while that of the petitioner states that the signature of petitioner do not match. Thus, there was no conclusive evidence on record to show that the alleged signature claimed to be of the petitioner on communication dated 10.09.2018, match/tally with his original signature. This Court also by its order dated 07.10.2021 required the signature to be sent to forensic expert for verifying from the State forensic laboratory. 24. Thus, there was no conclusive evidence on record to show that the alleged signature claimed to be of the petitioner on communication dated 10.09.2018, match/tally with his original signature. This Court also by its order dated 07.10.2021 required the signature to be sent to forensic expert for verifying from the State forensic laboratory. 24. The finding regarding whether the signature on the letter dated 10.09.2018 is attributed to the petitioner is inconclusive and thus there could be no question of re-appreciation of the factual evidence available on record therefore, this Court is within its powers to get the same examined and give a finding on the same. The expert forensic report dated 12.02.2021 submitted under the directions of this Court also states that the signature of petitioner do not tally/match with the signature on the alleged document dated 10.09.2018. The same in itself sufficiently proves that the letter dated 10.09.2018 is not written by the petitioner. Thus, any incorrect statement in the said communication cannot be assigned to the petitioner and the departmental proceedings on the basis of the same cannot be initiated. Even otherwise, this Court has also inspected the specimen signature maintained by the Bank filed along with annexure no.10 of the writ petition (Page 81-B) and also Officers Authorized Signature Book of the Bank submitted by the Bank under seal cover with the signature on the said communication dated 10.09.2018, at Page 83 of the writ petition. The said communication dated 10.09.2018 runs into two pages and the first page of the same does not contain any signature. It is the second page of the said communication which contains alleged signature of the petitioner (at Page-83) and when the same is compared with the specimen signature maintained by the Bank and filed at Page 81-B, the same on the face of it do not tally at all. These are two different signatures. 25. Thus, this Court finds that communication dated 10.09.2018, on the basis of which the charge sheet is issued cannot stand. Thus, the Bank cannot even take any benefit of the said communication dated 10.09.2018 against the petitioner. 26. In light of the aforesaid, this petition is allowed. Impugned orders dated 07.09.2020 and order dated 15.06.2021 is set aside. 27. The Officers Authorized Signature Book of the Bank is also submitted by the Bank under the sealed cover of this Court. Thus, the Bank cannot even take any benefit of the said communication dated 10.09.2018 against the petitioner. 26. In light of the aforesaid, this petition is allowed. Impugned orders dated 07.09.2020 and order dated 15.06.2021 is set aside. 27. The Officers Authorized Signature Book of the Bank is also submitted by the Bank under the sealed cover of this Court. Let the original Book be returned to learned counsel for the respondent-Bank by the Registrar General of this Court.