Debajyoti Roy vs Bangiya Gramin Vikash Bank & Ors
2023 Latest Caselaw 5452 Cal

Form No.J(2)

                IN THE HIGH COURT AT CALCUTTA
               CONSTITUTIONAL WRIT JURISDICTION
                        APPELLATE SIDE

Present :
THE HON'BLE JUSTICE RAJA BASU CHOWDHURY


                          WPA 26870 of 2013
                                with
                          WPA 2654 of 2013

                           Debajyoti Roy
                              Versus
                 Bangiya Gramin Vikash Bank & Ors.


For the petitioner            :        Mr. Debabrata Saha Roy
                                       Mr. Indranath Mitra
                                       Mr. Subhankar Das
                                       Mr. Neil Basu

For the respondents           :        Mr. Md. Mokaram Hossain

Heard on                      :        23.08.2023

Judgment on                   :        23.08.2023



Raja Basu Chowdhury, J:

1. The petitioner claims that he was appointed and had joined as

Scale-I officer in the Gour Gramin Bank on 13th December, 1985.

Subsequently, he was promoted to the post of a Scale-II officer in the

year 2004. While working at the said bank, by a notification dated

21st February, 2007, the Government of India, Ministry of Finance,

Department of Economic Affairs (Banking Division) amalgamated 5

(five) regional rural banks, sponsored by the UBI which, inter alia,

included the Gour Gramin Bank. Consequent upon the aforesaid

notification and the amalgamation as aforesaid, the service of the

petitioner stood transferred and was governed by the Bangiya

Gramin Vikash Bank (respondent no. 1 herein), and the service

conditions of the petitioner stood governed in terms of the service

regulations of Bangiya Gramin Vikash Bank (Officers and

Employees) Service Regulations, 2010 (hereinafter referred to as the

"2010 Regulation").

2. While in employment, the petitioner had been served with a charge

sheet dated 3rd December, 2012, and was called upon to respond to

the same, within the time specified therein. It was further recorded

in the charge sheet that in the event the petitioner fails to respond,

it shall be presumed that he has no reply to offer and the

Bank/respondent no. 1 shall proceed to take action against the

petitioner as they deem fit.

3. Upon receipt of such letter, the petitioner by a communication in

writing dated 15th December, 2012 had requested the Disciplinary

Authority to grant him some more time to respond to the

chargesheet. Such request was, however, not acceded to by the

Disciplinary Authority. Since then, by a letter dated 3rd January,

2013 the petitioner had requested for disclosure of certain

documents for him to appropriately respond to the charges. In

response to the petitioner's communication, by letter dated 4th

January, 2013, the General Manager (Vigilance) of the respondent

no. 1, while offering the petitioner, inspection of the documents

enclosed to the charge sheet, informed that the response of the

petitioner should reach by 31st January, 2013. Being aggrieved, inter

alia, by the failure on the part of the respondents to make available

copies of the documents as sought for, a writ application being WPA

2654 of 2013 was filed before this Hon'ble Court. On contested

hearing, by an order dated 12th April, 2013, a Coordinate Bench of

this Hon'ble Court, while extending the time for the petitioner to

respond to the charges by a period of two weeks, without prejudice

to his rights and contentions raised in the writ application, and

while directing exchange of affidavits granted liberty to the

respondents to proceed with the departmental enquiry so initiated

against the petitioner. It was, however, made clear in the aforesaid

order that no final order shall be passed without the leave of the

Court.

4. The petitioner had since, within the time specified in the order

passed by the Coordinate Bench of this Hon'ble Court as aforesaid,

responded to the charge sheet whereupon, by a communication in

writing dated 16th May, 2023 issued by the General Manager of the

respondent no. 1, while acting as the Disciplinary Authority of the

petitioner informed the petitioner of his decision to hold a

disciplinary enquiry against him in respect of the charges, as the

petitioner's response was found to be unsatisfactory. Since, the

aforesaid letter was issued by the General Manager claiming himself

to be the Disciplinary Authority of the petitioner, the petitioner

questioning his authority to act as the Disciplinary Authority had

written a letter to the Chairman of the respondent no.1 on 27 th May,

2013. In response to the petitioner's communication, the Chairman

by a letter, which according to the petitioner was wrongly dated as

13th May, 2013, had clarified that the General Manager is the

Competent Authority to deal with and exercise disciplinary actions

in respect of and up to officer scale-II, in terms of the amended

provisions of the 2010 Regulation, amendment whereof had been

approved by the Board of Directors of the Bank and formalities

complied with on 10th January, 2013.

5. Challenging the aforesaid letter and the authority of the General

Manager to exercise powers of a Disciplinary Authority, the

petitioner had filed another writ application being WPA 26870 of

2013. Since, the issue as regards giving effect to the amended

provisions of the Discipline and Appeal Rules had cropped up, a

Coordinate Bench of this Court on 23rd September, 2013, while

directing the production of cause papers of WPA 2654 of 2013,

directed the respondents to obtain instructions as to whether

changes effected in the Discipline and Appeal Rules, had been

published in the Official Gazette upon vetting by the ministry of law

and justice.

6. From the records, it would appear that the aforesaid writ

applications were not considered by this Court until 10 th July, 2014,

when an adjournment was sought for on behalf of the petitioner.

Still later, on 8th August, 2023 when the aforesaid writ applications

came up for consideration, since, the respondents were not

represented, this Court had directed the petitioner to serve a notice

on the learned advocate representing the respondents and the

matter was adjourned till 22nd August, 2023. On 22nd August, 2023,

when the aforesaid writ applications came up for consideration, the

respondents again remained unrepresented. The factum of service of

notice as directed, would corroborate from the affidavit of service

affirmed by the petitioner on 22nd August, 2023.

7. Although, both the aforesaid writ applications were taken up for

hearing together, however, after hearing the petitioner, on 22 nd

August 2023, the matters were adjourned.

8. Today, the writ applications have come up for further consideration.

Mr. Saha Roy, learned advocate appearing for the petitioner, by

placing reliance on the 2010 Regulation, submits that the same was

framed by the Board of Directors of the respondent no.1 in exercise

of powers vested in them by Section 30 of the Regional Rural Banks

Act, 1976 and was published in the Official Gazette on 15 th

November, 2010. By referring to Regulation 2(g) of the 2010

Regulation, it is submitted that the Competent Authority, has been

defined to mean and include the 'Chairman' in respect of officer, and

'General Manager' in respect of employee. By placing reliance on

Regulation 39 of the 2010 Regulation, he submits that in the event

major penalties are to be inflicted, no order imposing such penalty

specified in the said Regulation shall be made, except by an order in

writing signed by the Competent Authority, and no such order shall

be passed without the charge or charges being framed in writing and

given to the officer and after holding the enquiry, by giving the

officer concerned a reasonable opportunity to answer the charges

and to defend himself.

9. Mr. Saha Roy has also placed before this Court, the provisions

relating to delegation of power by the Competent Authority. By

placing reliance on the aforesaid regulation, it is submitted that the

General Manager could not have exercised powers of a Disciplinary

Authority of the petitioner. It is submitted that the letter dated 3rd

December, 2012 not only disclosed the charges levelled against the

petitioner but also required the petitioner to respond to the same for

the authorities to take appropriate action. At that stage, no decision

had been taken by the respondent no. 2 to hold an enquiry against

the petitioner. It was only upon receipt of the petitioner's response

that a decision was required to be taken by the Disciplinary

Authority to either, hold an enquiry against the petitioner or to drop

the charges. In this case, such decision had been taken by a person

who is incompetent to exercise such authority.

10. Although, the Chairman, by its communication in writing dated

13th May, 2013 had purported to, inter alia, claim that the General

Manager had been conferred with the authority to act as a

Disciplinary Authority by reasons of the amendment to the 2010

Regulation, yet according to Mr. Saha Roy, the amendment could

not have been given effect to before the same was gazetted. Since,

the amended Regulation was only published in the Official Gazette

on 20th November, 2013, no effect thereof could be given prior

thereto. Having regard to the aforesaid, it is submitted that since, a

decision to hold an enquiry against the petitioner was taken by a

person who was incompetent to take the same, the entire enquiry

proceeding stands vitiated.

11. In support of his contention, he has placed reliance on the

following judgments of the Hon'ble Supreme Court:-

 A. K. Roy and Another v. State of Punjab and Others, reported in (1986) 4 SCC 326  G. Vallikumari v. Andhra Education Society and Others, reported in (2010) 2 SCC 497  Joint Action Committee of Air Line Pilots' Association of India (ALPAI) and Others v. Director General of Civil Aviation and Others, reported in (2011) 5 SCC 435

12. It is still further submitted that although, despite direction of this

Court on 12th April, 2013 no affidavit-in-opposition has been filed,

the respondents, however, while acting on the basis of the said

order, had continued with the enquiry against the petitioner.

Despite, the Hon'ble Court specifically restraining the respondents

from passing the final order, the respondents had, in utter violation

thereof, purported to dismiss the petitioner from service by passing

the final order dated 5th November, 2014, issued by the General

Manager of the respondent no1.

13. It is only upon the petitioner citing the order passed by the Co-

ordinate Bench of this Hon'ble Court on 12th April, 2013, that the

authorities, permitted the petitioner to continue in service. The

petitioner is not aware whether the final order dated 5th November,

2014 has actually been recalled. Copies of the aforesaid letter dated

5th November 2014, under cover whereof the final order dated 5th

November 2014 was served, as relied on by the petitioner is taken

on record. It is submitted that subsequently by issuing a

communication in writing dated 1st October, 2022, which was

followed by another communication in writing dated 16th March,

2023, the petitioner had been informed by the General Manager of

the respondent no. 1 that although, the enquiry had been completed

on 5th November, 2014, yet the final order could not executed due to

intervention of the High Court in WPA 2654 of 2013 and the

direction dated 12th April, 2013. Having regard to the same, the

petitioner has been informed that in conformity with Regulation

45(3)&(4) of the 2010 Regulation with the subsequent amendment of

2013, the petitioner shall cease to be in service with effect from 31st

March, 2023. However, the disciplinary proceeding having been

initiated against him, the same shall continue as if he is in service

till the final verdict is passed by the Hon'ble High Court in WPA

2654 of 2013.

14. By referring to the aforesaid documents which are also taken on

record, he submits that despite the order passed by this Court on

12th April, 2013, the respondents have passed the final order and

are awaiting final outcome of this proceedings for execution thereof.

In the facts as stated, he submits that since, the proceeding stands

vitiated by reasons of the General Manager exceeding his authority

in assuming the mantel of the Disciplinary Authority of the

petitioner, the entire proceeding should be declared non est and be

set aside.

15. Per contra, Mr. Hossain, learned advocate appearing for the

respondent/Bank, who is present today submits that the interim

order should be vacated and the respondents should be permitted to

pass a final order in this matter. He submits that the 2010

Regulation has already been amended and the same had been

gazetted on 20th November, 2013. There is no irregularity on the

part of the General Manager in claiming himself to be the

Disciplinary Authority of the petitioner and/or in passing the final

order. He, however, submits that he should be given further

opportunity to respond.

16. Heard the learned advocates appearing for the respective parties

and considered the materials on record.

17. In this case, I find that the petitioner has been served with a

charge sheet, whereby the following charges have been levelled

against him for having contravened Regulations 18 and 20 of the

2010 Regulations. Particulars of the charges are extracted

hereinbelow:

"i) Doing acts detrimental to the interest of the Bank.

ii) Sanctioning and disbursing of loans violating the Norms/Lending Policy of the Bank.

iii) Exposing the Bank to huge financial loss.

                        iv) Abusing your      official position for your
                           personal gain.

v) Discharging your official duties in negligent and casual manner.

vi) Committing breach of trust.

vii) Committing breach of discipline."

18. It is noticed that the petitioner was afforded an opportunity to

respond to the allegations within the time specified therein.

However, action in that regard was proposed to be taken upon

receipt of such response. The said letter had been issued by the

Chairman of the respondent no. 1 in his capacity as a Disciplinary

Authority of the petitioner. As such, there cannot be any irregularity

in initiation of disciplinary proceedings. It, however, appears that

the subsequent communication had been issued by the General

Manager (Vigilance). Being aggrieved, inter alia, with the failure on

the part of the respondents to supply the petitioner with relevant

documents, a writ application has been filed. However, pursuant to

the order dated 12th April, 2013, the petitioner appears to have

responded to the charge sheet, by addressing the letter to the

Chairman of the respondent no. 1, in his capacity as the

Disciplinary Authority of the petitioner.

19. The petitioner is aggrieved by the decision taken by the General

Manager by his letter dated 16th May, 2015 of having found the

response given by the petitioner to be unsatisfactory and to hold an

enquiry against the petitioner. I find that the charge sheet had been

issued in terms of 2010 Regulation. It would also appear from the

said 2010 Regulation that the Competent Authority, who has been

defined in the said Regulation, is alone competent and is authorised

to proceed against a delinquent, who may be an officer or an

employee of the Bank. Regulation 2(g) of the 2010 Regulation defines

the Competent Authority, which means and includes the 'Chairman'

in respect of officer, and 'General Manager' in respect of employee.

Having regard to the aforesaid 2010 Regulation, it can be concluded

that it is the Chairman who as the Competent Authority, alone, was

authorised to act as the Disciplinary Authority of the petitioner.

Although, the Chairman by issuing a clarification dated 13th May,

2013, had purported to claim that the General Manager had been

conferred with the authority to act as a Disciplinary Authority of the

officers of the Bank on the basis of the amendment to the 2010

Regulation, which had been approved by the Board of Directors of

the Bank and formalities complied with on 10 th January, 2013, yet

the said amendment appears to have been published in the Official

Gazette on 20th November, 2013.

20. From a perusal of the copy of said Regulation of 2010 as

produced by the petitioner, it would appear that the same had been

framed in exercise of powers conferred by Section 30 of the Regional

Rural Bank Act, 1976 after consultation with the United Bank of

India, the National Bank for Agriculture and Rural Development and

with the previous sanction of the Central Government.

21. Regulation 1(2) of the said Regulation of 2010 provides that the

same shall come into force on the date of its publication in the

Official Gazette. The said Regulation of 2010 appears to have been

published in the Gazette of India on 15th November, 2010. Having

regard to the aforesaid, for the aforesaid amendment to take effect,

the same had to be published in the Official Gazette.

22. As would appear from the order dated 23rd September, 2013, the

Coordinate Bench of this Hon'ble Court, had called upon the

respondent/Bank to obtain instruction as to whether the changes

effected in the Discipline and Appeal Rules had been published in

the Official Gazette. The respondent/Bank, despite being aware of

the aforesaid situation, permitted the proceedings to continue. No

affidavit-in-opposition in either of the writ applications has been

filed. I find that the Hon'ble Supreme Court in the case of A. K. Roy

and Anr. (Supra), in paragraph 10 of its judgment has specifically

observed as follows:-

"10 .........................................

Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other modes of performance are necessarily forbidden. The intention of the legislature in enacting Section 20(1) was to confer a power on the authorities specified

therein which power had to be exercised in the manner provided and not otherwise."

23. A similar view has been taken by the Hon'ble Supreme Court in

the case of Joint Action Committee of Air Line Pilots'

Association of India (ALPAI) and Others (Supra), in paragraph 27.

The same is reproduced hereinbelow:

"27. Similar view has been reiterated by this Court in Commr. of Police v. Gordhandas Bhanji [1951 SCC 1088 : AIR 1952 SC 16] , Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia [(2004) 2 SCC 65 : AIR 2004 SC 1159] and Pancham Chand v. State of H.P. [(2008) 7 SCC 117 : AIR 2008 SC 1888] observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme."

24. Having regard to the aforesaid, since, the Chairman of the

respondent no.1, at the relevant point of time when the charge-sheet

was issued and when the reply to the charge-sheet was received by

the authorities, was the only authority vested with the power to act

as a Disciplinary Authority of the petitioner, no person other than

the Chairman could have taken a decision to continue with the

disciplinary proceeding by holding an enquiry against the petitioner.

In the facts as noted above, the satisfaction of the General Manager

to hold an enquiry against the petitioner cannot be said to be the

satisfaction of the Chairman, within the meaning of the 2010

Regulation. Although, the Chairman of the respondent no.1 had

attempted to clarify the decision taken by the General Manager, inter

alia, by contending that by reasons of the amendment of the 2010

Regulation, the General Manager had been authorized to exercise

the powers of Disciplinary Authority, I am afraid the same is

unacceptable as the same also does not comply with Regulation 1(2)

of the said amended Regulation which specifically mandates that the

aforesaid amendment shall come into force on the date of

publication in the Official Gazette. I find that by the Gazette

Notification dated 20th November, 2013, the Bangiya Gramin Vikash

Bank Service (Amendment) Regulations, 2013 were published.

25. Having regard to the same, it cannot be said that the aforesaid

amendment could be made applicable prior to publication of such

Regulations in the Gazette of India. The amended regulation also

does not provide that the aforesaid amendment shall come into

effect retrospectively. Having regard to the same, the aforesaid

amendment cannot come in aid of the respondents to justify the

decision taken by the General Manager of the respondent no. 1 as

regards satisfaction of the Disciplinary Authority to hold an enquiry

against the petitioner. Since, the satisfaction to hold an enquiry goes

to the very root of the matter, all consequential steps taken by the

respondents cannot also be sustained. In any event, no final order

could have been passed without the leave of this Court.

26. In the conspectus of facts as noted above, the final order and the

disciplinary proceeding from the stage of satisfaction to hold the

enquiry by the General Manager, by issuance of the letter dated 16th

May, 2013 stand quashed and set aside.

27. Although, Mr. Saha Roy, by placing reliance on the judgment

delivered by the Hon'ble Supreme Court in the case of State of A.P.

v. N. Radhakishan, reported in (1998) 4 SCC 154, in particular on

paragraph 19 thereof, submits that after a prolonged delay, no

enquiry proceeding can be continued against the petitioner, the facts

in this case are different. In this case admittedly, the General

Manager on an erroneous premise had taken the decision to hold

the enquiry, though the charge sheet was issued by the Chairman.

As such the initiation of the proceeding cannot be said to be bad or

non est. Further the writ applications were pending for almost a

decade. It is not a case of delay in concluding the enquiry. In this

case the enquiry was concluded on 5th November, 2014, but for the

subsisting interim order, no final order could be given effect.

28. In the given facts as aforesaid, I am of the view that since, the

aforesaid disciplinary proceeding has been set aside from the stage

of satisfaction of the Disciplinary Authority to proceed against the

petitioner, an opportunity should be afforded to the respondents to

re-consider the said issue from such stage and if after re-

consideration of such issue the Chairman is of the view that the

enquiry can be proceeded with against the petitioner, in such event

the entire disciplinary proceeding should be completed within a

period of three (3) months from the date of communication of this

order.

29. In the event, no final decision is taken by the Competent

Authority or the disciplinary proceeding is not concluded within the

time specified hereinabove, the petitioner shall be disbursed his

entire retiral dues and the disciplinary proceeding shall be declared

as closed. Needless to note since, the disciplinary proceeding had

been initiated in terms of the 2010 Regulation, all decisions as

regards satisfaction of the Disciplinary Authority to continue with

the disciplinary proceeding by holding an enquiry against the

petitioner must be taken by the Chairman of the respondent no. 1.

30. With the above directions and observations, the writ applications

being WPA 26870 of 2013 & WPA 2654 of 2013 are accordingly

disposed of.

31. There shall be no order as to costs.

32. All parties shall act on the basis of the server copies of the order

duly downloaded from this Court's official website.

(Raja Basu Chowdhury, J.)

Saswata Assistant Registrar (Court)