Murari Sarkar vs Union Of India And Ors
2023 Latest Caselaw 2313 Cal

                                        1


                      IN THE HIGH COURT AT CALCUTTA

                       (Civil Appellate Jurisdiction)

                             APPELLATE SIDE

Present:

The Hon'ble Justice Subrata Talukdar

And
The Hon'ble Justice Supratim Bhattacharya

                             FMA 373 of 2022

                                   With
                               CAN 2 of 2021

                               Murari Sarkar

                                    Vs.

                          Union of India and Ors.



For the Appellant    : Mr. Durgadas Purkayastha

                      Mr. J. H. Mallick

                      Mr. Sagar Chowdhury

For the Respondents : Mr. Soumya Mazumdar

Mr. Santosh Kr. Roy

Ms. Sannoyee Chakraborty

Heard On : 28.11.2022

Judgement Delivered On : 05.04.2023

THE COURT:- The instant appeal has been preferred against the Judgment

and Order passed by the Hon'ble Single Bench on 16.04.2021 in the writ

petition being no. WPA 21237 of 2010.

By the impugned Judgment and Order the Hon'ble Single Bench was

pleased to dismiss the said writ petition praying for reinstating the appellant/

writ petitioner in service with back wages and with all consequential benefits

by cancelling the Order of dismissal of the writ petitioner from service.

The fact of the present case is that the writ petitioner was initially

appointed as a Clerk in the Bank of Baroda in the year 1980 and thereafter

was promoted to the post of Junior Manager (Grade-I Officer) in the year 2006.

On 05.05.2008 a show-cause notice was served upon the writ petitioner by the

Dy. General Manager in-charge of the Zone of the said Bank alleging

misappropriation of fund. The writ petitioner replied to the show-cause notice

on 07.07.2008 denying all the allegations. Thereafter, the Disciplinary

Authority issued Memo. of charge-sheet on 25.08.2008 and the writ petitioner

thereafter submitted a written statement against the charge-sheet denying all

the allegations. After receipt of the written statement, the enquiry authority

directed the writ petitioner to appear before it. On 31.03.2009 the Disciplinary

Authority issued order of major penalty by way of dismissing the petitioner

from his service with effect from the date of receipt of the said order. Being

aggrieved the writ petitioner filed an appeal before the Appellate Authority

which was ultimately dismissed. As such, the instant writ petition has been

filed.

The Learned Counsel appearing on behalf of the appellant/ writ

petitioner has submitted that the enquiry proceedings do not show that the

Bank of Baroda sustained any monetary loss. He has further submitted that

there is no iota of evidence to the effect that the appellant/writ petitioner has

misappropriated fund or deceived anybody. He further submitted that at the

highest the actions of the appellant/writ petitioner might be of irregularities in

CBS transactions. He has further submitted that the charges levelled against

the appellant/ writ petitioner is devoid of particulars and has been issued by

incompetent authorities. As such, the punishment inflicted upon the

appellant/writ petitioner is not at all sustainable.

The Learned Counsel has further submitted that the charge-sheet dated

25.08.2008 was not approved by the competent authority at any stage. He has

further submitted that Regulation 5(1) of the Bank of Baroda Officer

Employees' (Discipline and Appeal) Regulations 1976 lays down that the

Managing Director or any other authority empowered by him by general or

special order may institute or direct the Disciplinary Authority to institute

disciplinary proceedings against an officer/employee of the Bank, which has

not taken place in the instant case. He has further submitted that as per

service jurisprudence, departmental proceeding cannot be initiated in absence

of a complaint or allegation and in the instant case there was no complaint or

allegation against the appellant/ writ petitioner. It has also been contended

that the disciplinary proceeding was not conducted in accordance with law. It

has further been submitted that the allegations in respect of the irregularities

in the CBS transactions mentioned in the Memorandum of Charge issued by

the General Manager of the Bank are the same as those mentioned in the show

cause notice issued by the Dy. General Manager of the Bank and both the

aforesaid Memorandum of Charge and the Show Cause cannot be proceeded

with simultaneously. It has also been submitted that the major penalty which

has been inflicted upon the appellant/ writ petitioner ought not to have been

imposed without holding a proper and complete enquiry. Banking upon the

aforementioned submissions, Learned Counsel has prayed for allowing the

instant appeal.

The Learned Counsel appearing on behalf of the Bank of Baroda during

his elaborate submissions has stated that the charge sheet was issued by the

General Manager of the Bank and the said disciplinary proceeding could not

have been initiated without the order or direction of the Managing Director of

the said Bank. He has further submitted that Regulation 5(2) of the

Regulations 1976 empowers the Disciplinary Authority to institute the

disciplinary proceedings and there is no hard and fast rule that only the

Managing Director should pass an order or direction to initiate disciplinary

proceeding. The Learned Counsel has further submitted that the appellant/writ

petitioner was given reasonable opportunity to represent his case before the

Enquiry Officer. It has further been submitted that the incumbent had

admitted the allegations against himself. It has further been submitted that the

Appellate Authority independently scrutinized the materials on record and

thereafter passed the order of punishment. Stressing upon the aforementioned

facts, the Learned Counsel appearing on behalf of the respondents prays for

rejection of the instant appeal.

From the contentions of the parties it reveals that the appellant has come

with the plea that the procedure which was followed by the Bank of Baroda as

regards the disciplinary proceeding and which ultimately resulted in his

dismissal from service of the Bank was not in accordance with law and natural

justice.

From the facts and circumstances of the case it reveals that the Bank of

Baroda served the suspension order on the 27th day of March, 2008 and

thereafter, on the 5th day of May, 2008 the Dy. General Manager in-charge of

the Zone in respect of the Bank of Baroda issued a show cause letter

containing four allegations, in respect to which the appellant/writ petitioner

denied all the four allegations. Being not satisfied with the aforementioned

reply, the Disciplinary Authority initiated disciplinary proceedings against the

appellant/ writ petitioner by issuing Memorandum-cum-Articles-of Charge on

the 25th day of August, 2008 containing five charges accompanied by a

statement of allegations. The appellant/writ petitioner had replied to the same

on the 17th of September, 2008.

Thereafter, the said Bank appointed an inquiry officer to hold a

preliminary inquiry and during the preliminary inquiry the appellant denied all

the allegations brought against him as a result of which a full-fledged

departmental inquiry was initiated.

The said Bank appointed a Presenting Officer on their behalf, while the

appellant/writ petitioner appointed one Tridibesh Prasad Nanda, a Manager of

the said Bank to represent him in the departmental proceeding as a Defence

Representative.

It also reveals that several witnesses, who were/are employees of the

Bank, were examined on behalf of the Bank and they have been cross-

examined by the said defence representative. The appellant/writ petitioner was

also examined.

The Enquiry Officer submitted his Report on the 29th day of January,

2009 and had come to the conclusion that four charges have been proved.

Ultimately, on the 31st day of March, 2009 the Disciplinary Authority

issued the order of dismissal of the appellant/writ petitioner from service by

passing the following order:

"Mr. Murari Sarkar is hereby dismissed from service of the Bank,

which shall ordinarily be a disqualification for future employment

with effect from the date of receipt of this order. ....."

Thereafter, the appellant/writ petitioner applied before the Appellate

Authority and the Appellate Authority on the 27th day of June, 2009 affirmed

the order of dismissal of the appellant/writ petitioner from service but modified

the order of the Disciplinary Authority to the extent of "removal from Bank's

service which shall not ordinarily be disqualification for future employment".

Now judicially reviewing the impugned Judgement and Order passed by

the Hon'ble Single Bench, this Court finds that relying on several judgements

of the Hon'ble Apex Court the Hon'ble Single Bench has come to the conclusion

that "judicial review is not an appeal from a decision but review of the manner in

which the decision has been made. The Court in its power of judicial review does

not act as appellate authority to re-appreciate the evidence and to arrive at its

own independent finding on the evidence. Court may interfere where the

authority held the proceedings against the delinquent officer in a manner

inconsistent with the rules of natural justice or in violation of statutory rules

prescribing the mode of inquiry or where the conclusion of finding reached by the

disciplinary authority is based on no evidence."

The impugned Judgement and Order has dealt with the suspension order

dated the 27th day of March, 2008 issued by the General Manager of the said

Bank. Regulation 5(1) of the Bank of Baroda Officer Employees' (Discipline and

Appeal) Regulations, 1976 states that "the Managing Director or any other

authority empowered by him by general or special order may institute or direct

the disciplinary authority to institute the disciplinary proceeding against an

officer employee of the Bank". Therefore, in this instant case the General

Manager was the competent authority to issue the suspension order.

It also reveals that on the 5th day of May, 2008 the Dy. General Manager

in-charge of the Zone, being the authorized officer, issued a show-cause notice

to the petitioner clearly indicating the facts leading to the charges. As per

Regulation 5(1) of the said Regulations the Dy. General Manager was the

competent authority to issue the show-cause notice being the authorized

officer. The said show-cause notice was served upon the appellant/writ

petitioner and the said appellant/writ petitioner replied to the said show-cause

notice on the 7th day of July, 2008. Through the said reply no objection was

raised by the writ petitioner to its validity. In view thereof, contention of the

writ petitioner raised subsequently cannot be considered.

Issuance of Articles of Charges and the statement of allegations by the

General Manager as the Disciplinary Authority is in accordance with the

regulations of the said Bank.

The appellant/writ petitioner received the Memorandum dated the 25th

day of August, 2008 with its annexure being the Articles of charges and

statement of allegations and thereafter, the appellant/writ petitioner replied to

the same on the 17th of September, 2008, which shows that the appellant/writ

petitioner understood the charges. The point of vagueness of charges which

has been raised now by the appellant/writ petitioner cannot be accepted being

an afterthought.

As regards to non-mentioning of the petitioner's reply in the said Memo.,

at the highest the same can be an irregularity and not an illegality which does

not vitiate the disciplinary proceeding and such has also been dealt with by the

impugned judgement.

The appointment of an Enquiry Officer and a Presenting Officer was also

in terms of the said Regulations.

Preliminary hearing of the case on the 27th day of September, 2008 was

duly communicated to the appellant/ writ petitioner by the Enquiry Officer and

was attended by the appellant/writ petitioner.

Thereafter, on the 30th day of September, 2008, the appellant/writ

petitioner appointed his defence representative to defend his case and the

defence representative had cross-examined all the witnesses who were

examined.

On the 16th day of December, 2008 the statement of the presenting

officer was made over to the petitioner and in respect of which the appellant/

writ petitioner had filed his written argument through the defence

representative and after considering such written submissions the Enquiry

Officer prepared and submitted his Report before the Disciplinary Authority on

the 29th day of January, 2009. The said inquiry report was made over to the

appellant/ writ petitioner for his response thereto. The inquiry report did not

provide any specific punishment, so it cannot be said that the inquiry officer

exceeded his jurisdiction.

On the 12th day of February, 2009 the appellant/ writ petitioner had

submitted a letter requesting the Disciplinary Authority to treat him

sympathetically. Therefore, even the appellant / writ petitioner had virtually

admitted the allegations levelled against him and had expressed his repentance

which does not go in favour of the challenge which has been raised at a

subsequent stage by the appellant/writ petitioner. Thereafter, the Disciplinary

Authority came to the conclusion that the charges being serious in nature and

the actions of the writ petitioner being derogatory, prejudicial and detrimental

to the interests of the said Bank, has imposed major penalty as per Regulation

5(3) read with Regulation 4 and 7 of the said Regulations.

Against the aforementioned penalty imposed by the Disciplinary

Authority the appellant/ writ petitioner preferred an appeal on the 6th day of

May, 2009. Thereafter, the Appellate Authority modified the order of the

Disciplinary Authority after considering the charges and findings of the

Disciplinary Authority and also the Grounds of Appeal.

Through the impugned judgement it has been stated that the

Disciplinary Authority has concurred with the findings of the Enquiry Authority

and the Appellate Authority after scrutinizing the materials and taking into

consideration the order of the Disciplinary Authority has passed its order

independently. Relying on the concurrent findings by the Disciplinary Authority

and also the Appellate Authority in respect to the charges brought against the

writ petitioner being proved, the Hon'ble Single Bench has found no scope for

interference in exercise of its powers under Article 226 of the Constitution of

India.

In addition to the above, it is to be categorically mentioned that the

charges leveled against the incumbent, i.e., the appellant/writ petitioner have

not been challenged either during the stages of the disciplinary proceeding or

during the conduct of proceedings by the Bank authority. On the contrary

through the replies dated 29-03.2008 and 17-09-2008, the appellant/writ

petitioner has admitted the charges brought against him and has time and

again requested for sympathetic treatment.

In this regard the Judgement passed by the Hon'ble Apex Court reported

in (1996) 4 SCC 708 is being relied upon wherein it is stated as follows:

"we find that the legal position is well settled that it is not necessary that the authority competent to impose the penalty must initiate the disciplinary proceedings and that the proceedings can be initiated by any superior authority who can be held to be the controlling authority who may be an officer subordinate to the appointing authority. ...."

From the above discussion it is clear that the proceedings adopted by the

Bank of Baroda were in accordance with its service regulations. Furthermore,

the participation of the writ petitioner at all stages of the proceeding upto the

stage of the Appellate Authority prove compliance with the principles of

natural justice.

It is also trite in law that when the disciplinary proceeding suffers from

no procedural infirmity, the Court under Article 226 of the Constitution of

India will be slow in exercising jurisdiction. This principle is reported in (1984)

1 SCC 43 of which Paragraphs 34 and 36 read as follows:

"34. .... As we have set out hereinbefore, indeed he had accepted the factual basis of the allegations. We have set out hereinbefore in extenso the portions where he had actually admitted the factual basis of these allegations against him, where he has not questioned the veracity of the witness of the facts or credibility of the witnesses or credibility of the entries on records. Indeed he has given explanation namely, he was over-worked, he had consulted his superiors and sought their guidance, his conduct has not actually, according to him

caused any financial risk or damage to the Bank concerned. Therefore, in our opinion, in the manner in which the investigation was carried out as a result of which action has been taken against him cannot be condemned as bad being in violation of the principles of natural justice.

Had he, however, denied any of the facts or had questioned the credibility of the persons who had given information against him, then different considerations would have applied and in those circumstances, refusal to give an opportunity to cross-examine the persons giving information against him or to lead evidence on his own part to rebut the facts would have been necessary and denial of such opportunity would have been fatal. But such is not the case here as we have mentioned hereinbefore.

36. We may also mention that the appellant has contended that there is no evidence that the appellant has actually defrauded the Bank or actual loss or damage has been caused to the Bank or actual risk has been incurred by the Bank. That is true. But the charge against the appellant was that he had so conducted himself which exposed the Bank to grave risk and for which his explanation was not accepted, after considering his explanation and after personal hearing reasonably an opinion may be formed that his conduct was such that defrauding of the Bank might have been caused. These were the charges against him and these are the charges upon which he was accused. Therefore, whether actual loss or damage had been caused or not, is, in our opinion, immaterial. In that view of the matter, we are of the opinion that the arguments on this aspect of the matter on behalf of the appellant cannot be accepted. In that view of the matter, it is not necessary to express any opinion on the question whether these rules under which the enquiry was conducted were statutory rules or not and as such whether the appellant has any statutory remedy against the orders impugned.

45. ... The facts of the instant case are, however, different. It has to be emphasised that the appellant was not charged for defrauding the Bank. He was charged mainly for the conduct which suggested that he acted improperly and in violation of the principles on which sound banking business should be conducted. The charge against the appellant was that he had acted in violation of procedure of the Bank, he had disregarded all safeguards in sanctioning the overdrafts, encashing bills and his conduct had exposed the bank to grave risks and that he had flagrantly violated the bank rules and instructions with a view to cover up attempts to misappropriate bank's money after defrauding the bank. Whether actual misappropriation had been

caused or bank defrauded or not were not relevant in respect of the charges against him."

From the aforesaid discussion, this Court finds no infirmity in the

Judgement and Order of the Hon'ble Single Bench. Hence the Order impugned

dated the 16th of April 2021 deserves no interference.

FMA 373 of 2022 with CAN 2 of 2021 stands accordingly dismissed.

Parties shall be entitled to act on the basis of the server copy of the judgment and order placed on the official website of the Court.

Urgent Xerox certified photo copies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.

    (Supratim Bhattacharya, J.)                     (Subrata Talukdar, J.)