D.R. Singh vs Union Of India & Others
2015 Latest Caselaw 2138 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 9
 
Case :- WRIT - A No. - 66943 of 2010
 

 
Petitioner :- D.R. Singh
 
Respondent :- Union Of India & Others
 
Counsel for Petitioner :- Praveen Kumar Srivastava,Akhil Ranjan,Ashok Khare
 
Counsel for Respondent :- A.S.G.I.,Anand Tiwari,Sanjeev Singh
 

 
Hon'ble Arun Tandon,J.

Hon'ble Ashwani Kumar Mishra,J.

Petitioner before this Court was employed with Union Bank of India and was posted at Meston Road branch at Kanpur at the relevant time. The petitioner was proceeded departmentally with the service of chargesheet dated 20.08.2009 alongwith statement of allegations and list of documents and witnesses relied upon in support of the charges.

The charge as alleged included indiscreet financing under the Housing Loan to the detriment of bank's interest by sanctioning /disbursing 63 housing loan to various borrowers for purchase of plots and construction of houses qua Arazi Lands at Taudakpur Village and its nearby areas without ensuring KYS norms of the applicants, for not visiting the residences/work places of the applicants, not obtaining status report from their existing bankers, not verifying the evidence for the assets reported in the statements of Assets for not conducting proper pre-sanction inspection lack of proper infrastructure like water supply in the report, engagement of same panel lawyer in all the cases. Stage-wise post sanction were also not conducted while disbursing the loan payment of fee to architect, period of re-payment was beyond the retirement of the borrowers existence of bill receipt with discrepancies qua the amount deposited as margin money to the borrowers construction being not commensurate with the amount disbursed in all the cases and the loans may become non performing assets in absence of valuable security to protect the loan amount disbursed and the bank had to suffer substantial loss etc.

Charge no. 2 was in respect of disbursement of loan to one Shri Amar Singh on 25.01.2005, money was permitted to be withdrawn after transferring to saving account No. 6801 standing in the name of Amar Singh on 19.05.2005, and 3rd June 2005, although, Amar Singh had expired on 16th April, 2005 resulting in fraud on the bank. Further disbursement was allowed without conducting stage-wise post sanction inspections to ensure end use of the funds. The account had turned NPA with effect from 31.07.2007 and the bank was exposed to serious financial loss in absence adequate security. Similarly in the matter of housing loan sanctioned to Shri Pratap Singh on 03.09.2004, it was alleged that the petitioner had not processed loan with due diligence resulting in fraud with the bank. He failed to identify on spot the land proposed to be purchased. The sale deed deposited with the bank to create security was non existence. Disbursement was allowed without conducting stage-wise inspection. The account become non performing with effect from 31.07.2007. Bank was exposed to serious financial loss in absence of primary security.

Since the petitioner did not accept the charges a departmental inquiry was ordered by the appointing authority. The inquiry Officer conducted the departmental inquiry as per the norms prescribed. Full and fair opportunity was offered to the petitioner, during the departmental inquiry. The inquiry officer submitted his finding dated 26.02.2010 and held that charges under Article 1 clause 4, 7, 10, 12, 13 and Article 2 clause A (i) (ii) B (ii) (iii) were proved conclusively against the delinquent employee so for as article I clauses xiv article II clause A (iii) and B (iv) were partly proved while allegations pertaining to article I clause (i) (ii) (iii) (iv) (v) (vii) (ix) and (xi) and article II clause B (i) were held to be not proved.

Copy of the inquiry report so received by the disciplinary authority was duly forwarded to the petitioner calling for his response to the finding recorded therein. The reply submitted by the petitioner to the inquiry report has been brought on record before us as annexure 8 to the present petition.

The disciplinary authority after considering the report of the inquiry authority, the explanation of the petitioner found that the charges were proved and the petitioner did deserve a major penalty of removal from service, which may not be a ban for future employment in terms of regulation 4 (1) of the Bank of India of the Employees Appeal Regulation 1976.

Not being satisfied with order dated 10th of May 2010, the petitioner filed an appeal before the next higher authority. The appeal came to be rejected under the order of the appellate Authority dated 09.09.2010. The appellate authority affirmed the finding recorded by the disciplinary authority on the merits of the charges, as well as on the quantum of punishment inflicted.

The petitioner not being satisfied with the order so passed by the disciplinary authority as well as appellate authority, has approached the writ court by means of the present writ petition.

Shri Ashok Khare assisted by Shri Praveen Kumar Srivastava on behalf of the petitioner submitted before us that the finding on the charges returned by the disciplinary authority, as affirmed by the appellate authority, are based on non consideration of the material and evidence available on record. For the purpose an attempt was made to take this Court through the various documentary evidence and the finding of the inquiry officer. It is also contended that in view of Regulation 6 (17) of the Bank of India Officer Employees Discipline and Appeal Regulation, 1976, after the employee had refused to lead evidence, it was the responsibility of the inquiry authority to have generally questioned the petitioner on the circumstance appearing against him in the evidence. It is his case that there has been non compliance of the said Regulation 16 (17) which is mandatory in nature and therefore the order of punishment cannot be illegally sustained. Reliance is placed upon the judgment of the Apex Court in the case of Moni Shanker Vs. Union of India reported in 2008 (3) SCC 484.

Lastly it is contended with reference to the supplementary affidavit filed today in this petition that under the Right to Information Act, the petitioner has been informed that the proposal of the disciplinary authority was forwarded to the Vigilance officer qua quantum of punishment to be inflicted upon the petitioner. The Vigilance department vide letter dated 26.04.2010, opined that the penalty of removal of service was more appropriate on the charges as proved. Accordingly, the disciplinary authority has permitted his discretion to be influenced by the opinion of the Vigilance officer. The recommendation of the vigilance officer was never disclosed to the petitioner, therefore, the punishment as inflicted would be vitiated due to violation of  principle of natural justice.

Counsel for the bank Shri Sanjeev Singh disputes the correctness of the stand taken on behalf of the petitioner. It is his case that the departmental inquiry was conducted in a most proper and fair manner, petitioner was afforded opportunity to examine the document proposed to be relied upon against him, the management witnesses were examined in his presence and the petitioner was afforded opportunity to cross-examine the management witness. It is stated after the evidence of the management was closed the inquiry officer called upon the petitioner to present his defence. The defence assistant representing the petitioner made a statement that he has no witness to produce and accordingly closed his case. Opportunity was afforded to the defence assistant to file written brief, within 7 days of the receipt of the written brief of the Presenting Officer. It is stated that the brief prepared by the Presenting Officer was handed over to the petitioner. He filed his written brief thereafter.

It is submitted that the charges as found proved against the employee establish that the finances of the bank had been put in jeopardy because of the acts/negligence on the part of the charged officer and the punishment as inflicted cannot be said to be shocking or  disproportionate to the charge as found proved. It is explained that there has been substantial compliance of clause 6 (17) of the Regulation inasmuch as opportunity was afforded to the employee to lead evidence in defence which he refused to do. It was stated on his behalf that the defence evidence be closed. It is submitted that no plea with regard to non compliance of Regulation 6 (17) was raised in the written brief submitted by the petitioner through defence assistant nor any such plea was raised in the appeal filed before the appellate authority. The petitioner cannot be permitted to challenge the order on the ground which was not stated before the disciplinary authority or before the appellate authority.

Shri Sanjeev Singh further explain to the Court that the opinion was sought by the disciplinary authority in the matter of punishment to be inflicted from the Vigilance officer as per internal guidelines. The charged employee has no role therein, nor he has any sight to object thereto, on the ground that the opinion of the vigilance department had not been made known to him. It is submitted that the disciplinary authority has considered all aspect of the matter and has found that the charges are found proved and did merit the punishment inflicted.

In order to satisfy ourselves as to whether the inquiry had been fair and proper against the petitioner, we required the counsel for the bank to produce the records of the inquiry proceeding. The records have been examined by us in the presence of the counsel for the parties.

We do find that after service of the charge memo detailed inquiry has taken place. Management witnesses were examined in the presence of the petitioner's defence assistant and the petitioner was afforded opportunity to cross-examine the witnesses. After the management witnesses had deposed the defence assistant was called upon by the inquiry officer to present his defence. He made a statement that he has no witness to produce and defence evidence be closed ( reference the proceedings dated 21.01.2010). After it, it does not lie in the mouth of the charged officer to contend before us that the inquiry officer had not called upon him to explain the circumstances against him, as required under Clause 6(17). In our opinion there has been substantial compliance of Regulation 6 (17) of the regulation in the facts of this case. Moreover, in his written brief before the disciplinary authority as also in the memo of appeal filed before the appellate authority the petitioner had not raised any ground with regard to the breach of the provisions of regulation 6(17) of the Regulations. Order passed by the disciplinary authority and the appellate authority need not be permitted to be questioned on the ground not raised before the authorities concern for the first time in writ jurisdiction under Article 266 of the Constitution of India.

So far as the opinion of the vigilance officer having not been communicated we find substance in the plea raised on behalf of the bank, that opinion of the vigilance department is obtained as an internal procedure of the bank. The petitioner employee has no say in the matter nor he can add anything in that respect and non supply of the report of the vigilance officer to the petitioner, cannot be said to be fatal, as punishment has been legally inflicted. We find from the charges proved that the interest of the bank has been compromised by the petitioner. The accounts had become non performing thereby causing financial loss to the bank because of the act and omission on the part of the petitioner.

In these circumstance the punishment of removal from services cannot be said to be shockingly disproportionate. The judgment of the Apex Court in State Bank of India Vs. D.C. Aggarwal reported in AIR 1993 Supreme Court 1197 is clearly distinguishable in the facts of this case. In the case before the Apex Court the vigilance officer had examined the inquiry report and had on recorded his own findings on the charges and therefore the Apex Court had held that non supply of the vigilance report would be fatal. The other judgment which has been relied upon by the counsel for the petitioner, in the case of Oriental Bank of Commerce Vs. S.S. Sheokand and Another reported in (2014) 5 SCC 172 is based on the judgment of the Apex Court in the case of State Bank of India (supra).

In the facts of these case we have found that the finding of guilt was returned by the Inquiry Officer and Disciplinary authority which has not been interfered with nor any finding was returned by the vigilance officer. He only opined that the punishment of removal from service would be more appropriate.

We may record that there is absolutely no averment that the decision of the disciplinary enquiry was influenced in any manner because of the report of the vigilance department and that he has not applied his independent mind while taking the decision. For the reasons recorded above we find no substance in this petition. It is accordingly dismissed.

Order Date :- 4.9.2015

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