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Article 226 in The Constitution Of India 1949
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Kolkata High Court (Appellete Side)
Dinabandhu Mandal vs Paschim Banga Gramin Bank & Ors. ... on 29 July, 2009
Author: S.P.Talukdar

N THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

Present:

The Hon'ble Justice S.P. Talukdar

W.P. No. 22490 (W) of 2006

Dinabandhu Mandal

Vs.

Paschim Banga Gramin Bank & Ors.

For the Petitioner: Mr. Kalyan Bandyopadhyay,

Mr. Debabrata Saha Roy,

Mr. Indranath Mitra,

Mr. K. K. Mukherjee.

For the respondent bank: Mr. Moloy Kr. Basu,

Mr. Chitta Ranjan Bakshi,

Mr. Subhasis Bakshi.

Judgment on : 29.07.2009.

S.P. Talukdar, J.: Challenging the final order passed by the Disciplinary Authority and the Chairman, HGB, vide reference No. HGB/PAD/VIZ/1885/2006 dated 18.10.2006, the petitioner approached this Court with an application under Article 226 of the Constitution. The petitioner also sought for cancellation of the order of punishment dated 5.10.2006 as well as the observation of the Disciplinary Authority on the findings of the Enquiry Officer dated 12.9.2006. By such application, the petitioner further sought for cancellation of the report of the Enquiry Officer dated 29.3.2005 and cancellation of the charge sheet dated 13.11.2003.

Grievances, as ventilated on behalf of the petitioner, may briefly be stated as follows:-

The petitioner joined as Probationary Officer in Howrah Gramin Bank on 18th August, 1986. By order dated 13th May, 2002, he was served with an order of suspension and this was in contemplation of disciplinary action against him for violation of the provisions of Howrah Gramin Bank Staff Service Regulation, 1983. The charges levelled against him included the allegation that he sanctioned and disbursed loans on diverse dates to one Sri Prasanta Roy against the security of fake KVPs fraudulently with intent to cause wrongful gain to the borrower and wrongful loss to the bank. He allegedly sanctioned and disbursed loan of Rs. 16.34 lakhs without following the prescribed procedures. He did not obtain independent written confirmation about the genuineness of the certificates/securities from Entally Post Office (Issuing Authority) before sanctioning the advance. He did not send the letter seeking the confirmation directly to the said post office nor did he receive the related information.

It was alleged that he did not send any Officer nor attempt to get the genuineness verified and this was in gross disregard and defiance of the stipulated guidelines. On the contrary, he engaged third party for this purpose. Before sanctioning the loan to Sri Prasanta Roy, he sought for certain clarifications/instructions from Area Office, Howrah on 15.3.2002. But before receipt of the sanction from the competent authority, he disbursed the loan with mala fide intention.

He did not comply with the instructions as contained in Head Office letter No. HGB/CARM/BKH/835/02 dated 20.3.2002 regarding disbursement of the loan. He sanctioned and disbursed loans to the said Prasanta Roy exceeding his lending powers delegated as per Head Office Circular dated 13.10.2000. His wrongful acts had facilitated perpetration of fraud to the detriment of the bank's interest. He, thus, acted in a manner, which tarnished the image of the bank before public and exposed the bank to severe financial risks and losses.

By letter dated 25.11.2003, the petitioner approached the respondent authority to give him an opportunity to go through the relevant records in order to enable him to prepare the statement of defence. There was no reply to the same. Petitioner, thus, could not file reply to the charge sheet. By order dated 23rd April, 2004, the High Court directed the authority concerned to conclude the disciplinary proceeding within a period of three months. One Sri Samar Kumar Halder was appointed Enquiry Officer on 27.4.2004 and he was asked to conclude the enquiry within a period of four weeks from the date of his appointment. By communication dated 13.5.2004, the petitioner was asked to appear before the Enquiry Officer on 24.5.2004. The petitioner responded to the same and sought for time in order to enable him to engage defence assistant. On 18.2.2005, the petitioner was instructed to submit written brief. He did so on 25.2.2005. The Enquiry Officer submitted his report on 23rd March, 2005. Enquiry report was handed over to the petitioner on 29th March, 2005. He submitted a reply thereto on 8.4.2005. On 25.4.2005, disciplinary authority passed final order. Since suspension order was withdrawn, the petitioner joined on 2nd May, 2005. The petitioner preferred appeal before the appellate authority on 20th May, 2005. Appellate Authority passed the order awarding further punishment on 16.8.2005. The Chairman communicated the order of the appellate authority and an amount of Rs. 8,000/- was directed to be deducted from petitioner's salary month by month. The petitioner filed a writ application on 13.9.2005. By order dated 11.8.2006, it was allowed and the order of the appellate authority as well as that of the disciplinary authority were set aside. On 12.9.2006, the disciplinary authority made observation on the findings of the Enquiry Officer. The petitioner was instructed to file written submission. The petitioner filed such written submission on 27.9.2006. On 5.10.2006, the proposed order of punishment was passed by the disciplinary authority with the instruction to appear for personal hearing on 12.10.2006. Disciplinary authority opined that final order would be given effect from October, 2006. Such order was served upon the petitioner on 11.10.2006. On 12.10.2006, he prayed for 15 days' time. The date of hearing was fixed on 18.10.2006. The authority concerned, thereafter, passed the final order of punishment. Inviting attention of the Court to the final order dated 18th October, 2006, it was submitted by Mr. Bandyopadhyay that the findings are in respect of the allegations and not against the charges levelled against the writ petitioner. He submitted that even in absence of any charge that the respondent bank suffered from any pecuniary loss, penalty was inflicted. It was repeatedly submitted on behalf of the writ petitioner that the concerned authorities dealt with the allegations without applying mind to the charges levelled. According to learned Counsel for the petitioner, proof of allegation is not proof of charge. The disciplinary proceeding as well as the action taken by the concerned authorities were also sought to be assailed on the ground that apart from the fact that there was no application of mind, there had been utter violation of the principles of natural justice. Referring to the communication dated 25.11.2003, being Annexure-'P-3', it was submitted that it was preposterous on the part of the concerned authority to refer to such communication as a 'written statement'. The writ petitioner raised objection regarding appointment of the Enquiry Officer. It was alleged that the Enquiry Officer so appointed dealt with the matter earlier in course of regular inspection held in February, 2002. This prompted the petitioner to raise objection regarding his appointment on the ground that such authority might have formed an opinion about the matter.

Referring to the documents as mentioned in Annexure'P-9', it was submitted that all those documents were placed by the Presenting Officer and were marked exhibits. The same were not proved nor even placed by the authors.

Attention of the Court was then invited to the list of witnesses. It was then submitted that only witness No. 2 was examined on the part of the authorities. In this context, Mr. Bandyopadhyay submitted that the documents, ME-1 to 53, were just presented and exhibited. It was submitted that it may be that the provisions of the Indian Evidence Act do not, strictly speaking, apply to a disciplinary proceeding but this does not give a blank cheque to the authority so as to take the stand that 'you are not to reason why, but to do and die'. It was submitted that quite unlike a criminal trial, there is no need for establishing charge beyond reasonable doubt but that does not necessarily indicate that the authority concerned can rely upon anything and everything and that too, in a manner which is not just and proper.

Referring to the fact that the right to employment comes within the expanded meaning of right to life as laid down in Article 21 of the Indian Constitution, it was submitted that the authority concerned cannot be permitted to tinker with such right according to its own whims.

No doubt, it is for the concerned authority to decide as to who would be the best witnesses in connection with an enquiry and how best such an enquiry would proceed but at a subsequent stage, such authority concerned cannot be permitted to withdraw some of the witnesses or choose not to examine them thereby causing prejudice to the employee/writ petitioner.

Mr. Bandyopadhyay, as learned Counsel for the petitioner, sought to assail the enquiry report on the ground that it is not a speaking report and the reasons had not been assigned. It was also contended that such report does not indicate consideration of the stand of the defence. It was stated that there had been no appreciation of evidence and the finding arrived at is perverse. He further submitted that the documents, as referred to, having not been proved, there remains nothing in the report.

In course of submission reference was made to the order passed by learned Single Bench of this Court in connection with W.P. No. 18187(W) of 2005. By order dated 11.8.2006, the writ application was allowed and the impugned orders, being Annexures-'P- 18' & 'P-21' to the said writ application were set aside. The matter was remanded to the disciplinary authority for passing a fresh order in accordance with law. Grievance was also raised regarding change of the Enquiry Officer but this enquiry did not find favour with the learned Court. The disciplinary authority in compliance with the direction passed by the learned writ Court, as referred to earlier, took up the entire matter for fresh consideration. Such disciplinary authority differed with the finding of the Enquiry Officer as regards allegation No. 1, allegation No. 4 and allegation No. 7 and concurred with the findings of the said Enquiry Officer as regards allegation No. 2, allegation No. 3, allegation No. 5 and allegation No. 6.

So far the allegation No. 8 is concerned, the disciplinary authority after analyzing the relevant facts and materials definitely concluded that such allegation had been proved. The disciplinary authority further observed that the acts as alleged definitely tarnished the image of the bank before public and exposed the bank to financial risk and losses. The writ petitioner in response to the said letter dated 12th of September, 2006 sent 'written submission' by communication dated 27th September, 2006. By letter dated 5th October, 2006, the authority concerned invited the writ petitioner for personal hearing on 12th October, 2006. The disciplinary authority passed the proposed final order dated 5th of October, 2006. The said report indicates that the disciplinary authority found that charge Nos. 1, 2, 3, 4 and 5 had all been proved. Penalties were accordingly awarded in respect of each of the said five charges. The final order was, thereafter, passed by the Chairman, HGB and disciplinary authority being dated 18th October, 2006.

On behalf of the petitioner, it was claimed that out of 11 Management Witnesses, only one witness deposed before the Enquiry Officer. According to learned Counsel for the petitioner, due to non-production of vital witnesses like Senior Superintendent of Post Offices, East Kolkata Division (MW-11), Assistant Sub-Post Master, Entally Sub-Post Office (MW-12), Sri Anindya Sikdar, General Manager, HGB (MW-8), Sri Bikash Roy, Area Manager, HGB (MW-9), Sri Tapas Kumar Sen, Sr. Manager, CARM Deptt., HGB (MW-10), the writ petitioner was put into serious prejudice. It was contended that the writ petitioner had been denied the opportunity to cross-examine those vital witnesses who alone could have projected a clear picture. The documents, which were exhibited in course of enquiry, were sought to be assailed on the ground that those were not legally proved and the authors of such documents having not been examined, the writ petitioner suffered prejudice. Mr. Bandyopadhyay, as learned Counsel for the writ petitioner, thus, submitted that the bank management in a vindictive and pre-determined manner proceeded against the writ petitioner and this could be reflected by its issuance of charge sheet without holding any preliminary enquiry. The petitioner having not been allowed to peruse the relevant documents and papers, there had been serious violation of the principles of natural justice. The charges framed against the writ petitioner had been branded as vague. It was submitted that the enquiry proceeding was conducted in a perfunctory manner and the authorities having placed reliance upon documents which were not admissible nor legally proved, the entire proceeding is liable to be quashed. It was categorically submitted that the respondent bank, by treating the allegations as charges, virtually acted in illegal and biased manner. It was also submitted that out of eight allegations, the Enquiry Officer came to a finding that only six allegations were proved.

In such backdrop, it was not proper on the part of the respondent authority to impose major punishment. The findings of the disciplinary authority were also assailed on the ground that those are based on extraneous consideration.

On behalf of the writ petitioner, reference was made to the decision of the Division Bench of this Court in the case between Syndicate Bank And Venkatarama Murlidhar Shenoy, as reported in 2004-III-LLJ, page-73. The learned Court in the said case took into consideration the fact that the respondent bank withheld the best evidence and this resulted in denial of an opportunity to the employee to absolve himself from the charges. Mr. Bandyopadhyay on behalf of the petitioner referring to the decision of the Apex Court in the case between Union of India Vs. H. C. Goel, as reported in AIR 1964 SC 364, submitted that 'it may be that the technical rules which govern criminal trials in Courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules.'

It was emphatically submitted that the show cause or the written submission made by the delinquent cannot be mere empty formality. While assailing the final order, it was submitted that how could there be three penalties i.e. how could he be debarred from participating in future promotion process and where is the charge of any loss suffered by the bank and if not, how could there be a question of recovery?

Mr. Bandyopadhyay also submitted that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the case to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State who are under an obligation to act fairly. In this context, he referred to the decision in the case between National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore & Ors., as reported in (1988) 1 SCC 626.

Raising grievance over failure on the part of the concerned authority to supply copies of documents, it was submitted by Mr. Bandyopadhyay that if charged employee is required to submit reply to charge sheet without having copies of the statements, he is deprived of opportunity of effective hearing. In this context, he referred to the decision in the case between State of U.P. Vs. Shatrughan Lal & Anr., as reported in (1998) 6 SCC 651. On behalf of the petitioner, Mr. Bandyopadhyay quite justifiably submitted that disciplinary proceedings being quasi-criminal in nature, there should be some evidence to prove the charge. Though proof beyond all reasonable doubt as required in criminal trial is not necessary in departmental proceedings, charges in said proceedings have to be proved by preponderance of probability. (Ref: M.V. Bijani Vs. Union of India & Ors., (2006) 5 SCC 88).

It was further submitted on behalf of the petitioner that the Officers of the postal department were not examined. Inviting attention of the Court to the decision of the Apex Court in the case between Hardwari Lal Vs. State of U.P. & Ors., as reported in AIR 2000 SC 277, it was submitted that non-examination of the complainant certainly caused prejudice to the petitioner and inevitably diluted the allegations made against him. Deriving inspiration from the decision in the case between M/s. Bareilly Electricity Supply Co. Ltd. Vs. The Workmen & Ors., as reported in 1971(2) SCC 617, it was submitted by Mr. Bandyopadhyay, as learned Counsel for the petitioner, that mere production of a document does not amount to proof and this is equally applicable where the provisions of the Evidence Act do not strictly speaking apply. This is required to be done in order to ensure compliance with the principles of natural justice. While raising strong objection regarding lack of effort on the part of the concerned authority in producing its witnesses, Mr. Bandyopadhyay referred to a Division Bench judgment of this Court in the case between Syndicate Bank And Venkatarama Murlidhar Shenoy, as reported in 2004-III-LLJ, page-73. It was categorically submitted that the respondent bank could not be permitted to withhold the best evidence. Reference was further made to the decision in the case between Anil Kumar Vs. Presiding Officer & Ors., as reported in (1985) 3 SCC 378. The Apex Court in the said case held that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the enquiry officer has a duty to act judicially. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma, it has to be held in accordance with the principles of natural justice. The minimum expectation is that the report must be a reasoned one. This, however, does not mean that the Court can enter into the adequacy or sufficiency of evidence.

In response to the grievance that the authority concerned was not justified in dealing with the allegations and thereby leaving the charges uncared for, it was submitted by Mr. Bose, appearing as learned Counsel for the respondent/bank that the charge sheet does not deserve to be read simpliciter. He contended that the statement of allegations as well as articles of charge are indistinguishably linked up and do form part of the charge sheet. Mr. Bose categorically submitted that the petitioner was given ample opportunity to defend himself. There could, thus, be no violation of the principles of natural justice. It was submitted that copies of entire documents could not be given since police authority seized some of them, but this was well taken care of. Except three documents which were not very relevant either, copies of all the documents were supplied to the petitioner before commencement of cross-examination of the witness.

It was submitted on behalf of the respondent bank that the charge against the writ petitioner is essentially that he granted loan of above Rs. 16 lakhs and such sanction was made without any authority and without any prior permission. It was contended that the writ petitioner was provided with copies of 50 documents out of total number of 53 documents. The remaining three were, in fact, not relevant either and those were like non- judicial stamp, despatch book, peon book. Such copies were supplied to the writ petitioner prior to cross-examination. Thus, according to Mr. Bose, there could be no question of any prejudice. It was then submitted that such loan was sanctioned on the basis of fake, false KVPs.

As regards the submission that the investigating authority should not have been made the Enquiry Officer, it was submitted that there could be no basis for any grievance in this regard. Mere fact that routine inspection was made by one, who was later made Enquiry Officer, really could not matter. As regards 'bias', Mr. Bose submitted that this aspect was agitated in connection with the earlier writ application but had since been settled. It cannot be raised. It was further contended that it could not be said that preliminary enquiry was held by the Enquiry Officer. What was done was mere routine inspection. It was also contended on behalf of the respondent authority that there is no explanation as to why did the writ petitioner approach this Court leaving aside the alternative efficacious remedy available to him.

On behalf of the respondent bank, it was also submitted that the witness was cross- examined for 14 days. As may as 1205 questions were put. While referring to this aspect, Mr. Bose expressed wonder while submitting that if this was not fair opportunity, what else it could be ?

Inviting attention of the Court to the extract of the proceedings held on 9th June, 2004 (page-155), it was submitted by Mr. Bose that the charged officer admitted the documents produced by the authority. It was then submitted that this clearly leaves no further scope for any confusion or controversy. As regards allegation of bias, it was submitted that how in that event the Enquiry Officer could have held in favour of the writ petitioner. It was also submitted that the charges are required to be taken in entirely and not in a segregated manner. According to the learned Counsel for the respondent bank since as Branch Manager, the writ petitioner did not take due care and thereby causing loss to the bank, the order for recovery was made following the Rules.

Deriving support and strength from the decision in the case of U.P. State Textile Corpn. Ltd. Vs. P.C. Chaturvedi & Ors., as reported in (2005) 8 SCC 211, it was submitted by Mr. Bose that the petitioner could not place any such convincing material so as to indicate that non-supply of three out of 53 documents, that too, irrelevant, could by any stretch of imagination cause any prejudice.

After taking into consideration the relevant facts and materials, this Court finds it extremely difficult, if not impossible, to accept the grievance that the writ petitioner had been denied reasonable opportunity to defend himself.

Mr. Bose relying upon the decision in the case between Russell V. Duke of Norfolk & Ors., as reported in 1949 All England Law Reports, submitted that it is not for this Court to intervene even assuming that the authority concerned dealt with the matter erroneously and in a mistaken manner. It cannot be disputed that this Court in exercise of its power of judicial review has a rather limited role to play. High Court in exercise of its power under Article 226 of the Constitution is not expected to function as a Court of appeal over the decision of the authorities holding a departmental enquiry. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent employee is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. (Ref: State of A.P. & Ors. Vs. S. Sree Rama Rao, Vol. 6 Supreme Court Service Rulings 641).

The principles of natural justice need to take into consideration as to whether any real prejudice has been caused to the complainant. It is well settled that the Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straitjacket formula. (Ref: P.D. Agrawal Vs. State Bank of India & Ors., (2007) 1 SCC (L&S) 43).

In the case between State Bank of Patiala Vs. S. K. Sharma, as reported in (1996) 3 SCC 364, the Apex Court clearly observed that 'justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counterproductive exercise.'

It cannot be disputed that principles of natural justice do not certainly demand dotting of every 'i' and cutting of every 't'.

The Apex Court in the case between The Chairman, Board of Mining Examination & Chief Inspector of Mines & Anr. Vs. Ramjee, as reported in (1977) 2 SCC 256, held :-

"Natural justice is no unruly hose, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt - that is the conscience of the matter.

The Court cannot look at law in the abstract or natural justice as a mere artifact. Nor can one fit into a rigid mould the concept of reasonable opportunity. Every miniscule violation does not spell illegality. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures."

Applying the legal principles, as referred to earlier, to the facts and circumstances of the present case, I find it extremely difficult to accept the contention that the writ petitioner had at all been denied reasonable opportunity to defend himself or that the principles of natural justice had not been duly complied with. This Court cannot also be casual in its approach when it is to deal with corruption and malpractices. We are otherwise living in an unjust class divided society. If the privileged minority fails to act properly, it is not for the underprivileged majority to suffer. As an officer of a Bank, the petitioner has serious responsibilities and he can't be permitted to be callous or corrupt. Learned Senior Counsel, Mr. Bose, quite rightly submitted that as a Manager of the Bank, the society could very well expect a more responsible attitude on the part of the writ petitioner. In State Bank of India & Ors. Vs. Ramesh Dinkar Punde, as reported in 2006 LAB. I.C. 4286, the Apex Court observed that a bank officer holds a position of trust where honesty and integrity are inbuilt requirements of functioning and it will not be proper to deal with the matter leniently. It needs to be emphasized that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer so that the confidence of the public/depositors is not impaired.

Considering all these facts and circumstances, I find it difficult to appreciate the grievances, as ventilated on behalf of the writ petitioner. In the considered opinion of this Court, the orders impugned do not suffer from any such impropriety or illegality, which can justify any interference by this Court.

Accordingly, the writ application being W.P. No. 22490 (W) of 2006 fails and be dismissed.

There is no order as to costs.

Xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.

(S.P. Talukdar, J.)