Calcutta High Court (Appellete Side)
Sujit Kumar Sarkar vs Bangiya Grami Vikash Bank & Ors on 8 July, 2022
Court No. 22 IN THE HIGH COURT AT CALCUTTA
08.7.2022 Constitutional Writ Jurisdiction
(Item No. 2)
Appellate Side
(AB)
W.P.A. 4576 of 2018
Sujit Kumar Sarkar
VS
Bangiya Grami Vikash Bank & Ors.
Mr. Debabrata Saha Roy
Mr. Indranath Mitra
Mr. Subhankar Das
....... for the petitioner
Mr. Baidurya Ghosal
Ms. Avipsha Dutta Roy
...... for the respondents
This writ petition was filed assailing a direction
dated July 31, 2015 passed by the Chairman &
Disciplinary Authority of Bangiya Gramin Vikash Bank
(for short Bangiya Gramin Bank) for holding De Novo
Enquiry arising out of the charge sheet dated April 23,
2012 against the writ petitioner.
The writ petitioner at the relevant point of time was
working as a Branch Manager of Bangiya Gramin Vikash
Bank, Hatiara Branch and was designated as a Scale-II
Officer. An enquiry proceeding was initiated against the
petitioner alleging involvement in respect of a financial
defalcation which was actually caused by one Tapas
Mondal who was designated as a "Part Time Sweeper".
The enquiry proceeding was held in accordance with law
and the petitioner did not allege any procedural infirmity in
so far as the said enquiry proceeding was concerned. On
February 18, 2015 the enquiry report was filed and the
observation made therein against the petitioner is set out
herein below:
"The undersigned is of opinion is that due to
aforesaid unauthorized, negligent, reluctant
functioning and severe supervisory lapses at the part
of CSO as well as his over reliance and unjustified
faith on Sri Mondal, Rs.15,33,750/- (Rupees Fifteen
lac thirty three thousand seven hundred fifty) had
been siphoned out by Sri Mondal."
Subsequently for initiation of a necessary
disciplinary proceeding having found the petitioner guilty
in the enquiry proceeding, a reference was made under the
said enquiry report dated February 18, 2015, Annexure P-
19 to the writ petition, before the Disciplinary Authority.
Upon received the said reference arising out of the enquiry
proceeding the Chairman & Disciplinary Authority by its
impugned direction dated July 31, 2015, (Annexure P-21)
to the writ petition directed to hold a De Novo Enquiry with
the following observation:
"On perusal of the enquiry report dated
18.02.2015 submitted by the Enquiry Officer and your
submission dated 10.04.2015 in this regard, I was, on
application of mind came to the conclusion that the
proceeding conducted by the Enquiry Officer in this
case visa-a-vis his report in this regard was found
deficient. An opportunity has been given to you to
bring the domestic enquiry to its logical conclusion by
way of holding de-novo enquiry. Enquiry Officer &
Regional Manager, Murshidabad Region has been
directed to hold the de-novo enquiry vide letter dated
01.07.2015."
The said impugned direction dated July 31, 2015 is
under challenge.
Mr. Indranath Mitra, learned counsel appearing for
the petitioner referring to Bangiya Gramin Vikash Bank
(Officers and Employees) Service Regulation, 2010,
Annexure P-1 to the writ petition submitted that,
Regulation 2(g) defines "Competent Authority", means the
Chairman, in respect of Officer. He submitted that, the
petitioner being a Scale-II Officer was covered by this
Regulation of 2010. Subsequently with effect from
November 20, 2013 as was notified under the relevant
Gazette notification, Annexure P-15 to the writ petition, he
submitted that, the General Manager was designated as
"Competent Authority" for officer of Scale-II, of which cadre
the petitioner belonged to. Referring to the said Gazette
notification he submitted that, the said notification was
named as Bangiya Gramin Vikash Bank Service
(Amendment) Regulations, 2013 and the same had come
into force on the date of its publication in the official
Gazette, which was on November 20, 2013. In view of
operation of the said 2013 amended Regulation, he
submitted that, the reference of the Enquiry Officer
referring the issue before the Disciplinary Authority dated
February 18, 2015 was bad in law and consequently the
impugned decision dated July 31, 2015, Annexure P-21 to
the writ petition, issued by the Chairman and the
Disciplinary Authority was wholly without jurisdiction and
bad in law. He further submitted that, from a perusal of
the enquiry report it would appear the charges were not
proved against the petitioner.
He then submitted that, in view of the above, this
impugned decision of the Disciplinary Authority dated July
31, 2013 should be set aside, as on the relevant date the
Disciplinary Authority being the Chairman, was lacking
with inherent jurisdiction to take such decision.
It was submitted that, the Chairman & Disciplinary
authority when directed for holding de novo enquiry
proceeding, it seemed that he was not satisfied with the
result of the enquiry proceeding and he had a different
view altogether. In such case the Chairman & disciplinary
Authority was obliged to give his reasons for taking a
different view and the delinquent petitioner should have
been granted an opportunity to deal with such different
view of the Chairman & disciplinary Authority. By not
doing so he had also acted in an illegal and arbitrary
manner. The Chairman & Disciplinary Authority had no
power to direct to hold de novo enquiry proceeding
simplicitor without assigning any reason.
Mr. Mitra further submitted that De Novo Enquiry
means the entire earlier proceeding including charge sheet
issued earlier stood quashed. It was not permissible to
proceed against the delinquent on the basis of the charge
sheet issued earlier. In support, he relied upon a
judgment of the Hon'ble Supreme Court in the matter of
Chairman-Cum-Managing Director, Coal India Limited
And Others Vs. Ananta Saha And Others reported at
(2011) 5 Supreme Court Cases 142.
Mr. Baidurya Ghosal, learned counsel appearing for
the respondents Bank submitted that, the charge sheet
was issued on April 23, 2012 framing the charges against
the petitioner and the same was a continuous process.
Charges continued against the petitioner. He submitted
that, when the charge sheet was issued, the petitioner was
governed at the relevant point of time under the 2010
Regulation and not under the Amended 2013 Regulation.
Hence, he submitted that, the Chairman was the
appropriate authority with proper jurisdiction under the
said 2010 Regulation and the impugned decision dated
July 31, 2015 taken by the Chairman & Disciplinary
Authority was just, proper and lawful and there was no
flaw in it.
Mr. Ghosal, learned counsel further submitted that,
they were guided by the instruction of the Chief Vigilance
Officer issued from time to time. The relevant instruction
of the Chief Vigilance Officer was of June 19, 2015, where
under, the impugned decision was taken by the Chairman
& Disciplinary Authority dated July 31, 2015 for De Novo
Enquiry.
After considering the submissions made on behalf
of the parties and on perusal of materials on record, it is
clear to the mind of this Court that, since the reference to
the Disciplinary Authority was made on February 18, 2015
and the impugned direction was made on July 31, 2015
which were subsequent to the said 2013 Regulation, the
relevant Regulation applicable on the issue was the
amended Regulation of 2013 which defined the Competent
Authority being the General Manager for the post of Scale-I
and Scale-II Officer of the Bangiya Gramin Vikash Bank.
The petitioner admittedly belonged to the cadre of Scale-II
Officer and as such it was the General Manager who would
be the appropriate Disciplinary Authority and not the
Chairman. In so far as the instruction of the Chief
Vigilance Officer is concerned, as submitted on behalf of
the respondents, the same could at best be taken as an
administrative instruction which should not and cannot
prevail upon the statutory Regulation.
In so far as the submission of the petitioner that to
hold a De Novo Enquiry meaning the entire earlier
proceeding including the charge sheet issued earlier
should not be applicable, in the facts and situation of this
case.
Thus the ratio of the said judgment in the matter of
Ananta Saha (Supra) would not apply.
As informed by Mr. Mitra, learned counsel, the
petitioner had already been superannuated on February
28, 2018. He had received the pensionary benefits and his
own contribution on account of Provident Fund but in view
of the pendency of the said disciplinary proceeding he had
not received the other allied terminal benefits.
Be that as it may, since the Chairman did not have
the jurisdiction and authority to hold the relevant
Disciplinary Proceeding and to issue the said impugned
decision dated July 31, 2015 for holding De Novo Enquiry,
the said decision of the Chairman dated July 31, 2015,
Annexure P-21 to the writ petition stands set aside and
quashed. Consequently whatever steps had been taken
pursuant to the said decision to hold De Novo Enquiry also
stand set aside and quashed.
The Enquiry Officer/Authority will be free to
proceed by making reference of the issue before the
appropriate jurisdictional Disciplinary Authority in
accordance with law without any fetter.
It is, however, made clear that this Court has not
gone into the merits of the charges framed against the
petitioner or any observations made thereupon in any
manner whatsoever.
In the event, the matter is referred before the
appropriate jurisdictional Disciplinary Authority, the same
shall come to its logical conclusion upon following the
strict compliance of the legal procedure within a period of
six months from the date of reference.
On the above terms the writ petition being WPA
4576 of 2018 stands allowed. All connected applications
are also disposed of accordingly.
There shall, however, be no order as to costs.
Urgent certified photo copy of this order, if applied
for, be supplied to the parties expeditiously on compliance
of usual legal formalities.
(Aniruddha Roy, J.)
