Rabi Lochan Ghosh vs Paschim Banga Gramin Bank & Ors
2023 Latest Caselaw 4391 Cal

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              IN THE HIGH COURT AT CALCUTTA

           (CONSTITUTIONAL WRIT JURISDICTION)

                      APPELLATE SIDE

Present:

The Hon'ble Justice Partha Sarathi Chatterjee



                     WPA 10127 of 2019

                     Rabi Lochan Ghosh
                            -Vs.-
              Paschim Banga Gramin Bank & Ors.



For the Petitioner        : Mr. Debabrata Saha Roy

                            Mr. Indranath Mitra

                            Mr. Subhankar Das

                           Mr. Neil Basu



For the Respondent No.1    : Mr. Baidurya Ghoshal



Heard on                   : 05.07.2023

Judgment on                : 20.07.2023
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Partha Sarathi Chatterjee, J:- In invocation of the extra-

ordinary jurisdiction of this court under Article 226 of the

Constitution of India, the writ petitioner has called in question

the    sustainability    of    the    charge-sheet       vide.     no.

PGDB/HO/CM/95/12-13           dated   04.10.2012   and     order    of

punishment dated 19.03.2014, both passed by the Chairman &

Competent Authority, Paschim Banga Gramin Bank (in short,

PBGB).


      Facts

as unfurled in the writ petition are that the petitioner

joined as Filed Supervisor in Howrah Gramin Bank on 15.1.1985

and on 1.12.1990, he was promoted to the post of Scale-I Officer

and subsequently, he was further promoted to Scale-II Officer.

Howrah Gramin Bank, Burdwan Gramin Bank and

Mayurakshi Gramin Bank were constituted under the Regional

Rural Bank Act, 1976 and by virtue of a notification vide. dated

26.2.2007, issued by the Ministry of Finance, Department of

Economic Affairs ( Banking Divn.), aforesaid three banks were

amalgamated to a single bank, namely, PBGB and the service

conditions of the Officers and employees of the PBGB were

governed by the Paschim Banga Gramin Bank (Officers and

Employees) Service Regulations, 2010.

While the writ petitioner was rending his service as Scale-II

officer at Moloypur Branch, on 22.8.12 at night, one incident of

theft/burglary took place in that branch and on receipt of such

information, he rushed to the branch and upon instruction of his

superior officers, he lodged an F.I.R. which gave rise to Arambagh

P.S. Case no. 595/12 dated 23.8.2012 under Sections 457/380

IPC.

On 25.8.2012, the Chairman concerned by issuing one

show cause notice sought for explanation for retention of excess

cash in Moloypur Branch and the writ petitioner submitted his

explanation on 10.09.2012 but by passing an order dated

01.01.2012, the petitioner was placed under suspension.

Under a memo. vide. no. 04.10.2012, a charge-sheet

containing statement of allegations and articles of charges was

issued holding that the explanation and/or reply dated 10.9.2012

was not found satisfactory. The petitioner submitted reply to the

charge-sheet on 11.10.2012.

On 7.12.2012, 11(eleven) numbers of document were

admitted in evidence as Management Exhibits (in short, ME).

Although, the Presenting Officer did not produce document no.

11, yet the document no. 11 had been marked as ME-11 and on

perusal of the recording of proceedings, the petitioner came to

learn that those documents had not been authenticated and/or

verified by the respective authors of the documents and on

10.1.2013, the Presenting Officer concerned tendered 13

numbers of documents and in the same manner, those 13

numbers of documents were accepted as evidence and marked as

ME 12 to ME 25 and after examination of Management witness (

MW-1) was over , he was recalled and re-examined without leave

of the Enquiry Officer.

However, the Enquiry Officer submitted his report on

9.2.2013 and on receipt of such report, the petitioner submitted

his representation on 27.2.2013 but under a covering letter dated

19.3.2013, an order of punishment dated 19.3.2013 passed by

the Chairman & Competent Authority, PBGB was served upon

the petitioner. By the order of punishment, the basic pay of the

petitioner was reduced by three stages in the time scale of pay of

Rs. 31,500/- to Rs. 28,900/- till retirement with further direction

that he will not earn any increment of pay during such period of

reduction. The petitioner preferred statutory appeal against the

order of punishment but the same was dismissed and the order

of punishment was upheld. On 28.11.2014, the writ petitioner

demitted his office on attaining the age of superannuation.

Record reveals that answering respondents filed exception

to the writ petition but the writ petitioner did not file any

response to that exception.

Questioning the defensibility of the charge-sheet and the

order of punishment, Mr. Mitra being led by Mr. Saha Roy,

learned advocate representing the writ petitioner argues that no

list of documents and no list of witnesses have been disclosed in

the charge-sheet. During domestic enquiry, documents have been

admitted as evidence without authentication and/or verification

made by the authors of the document and even without

ascertaining the relevancy and admissibility of those documents.

According to Mr. Mitra, to recall and re-examine any witness after

his examination is over, permission of the Enquiry Officer is

required to be taken but in the case at hand, no such permission

has been sought for. He argues that the Enquiry Officer is quasi-

judicial authority and he is to return his findings based on

evidence and his report and/or findings must be informed with

reason since reason is heart-throb of any findings. He asserts

that the Enquiry Officer has not returned any reasoned findings.

He asserts that the PBGB, for having insurance policy to

indemnify the loss suffered by the bank due to the like incidents

of theft, burglary etc., has not suffered any pecuniary loss. He

submits that the charge-sheet and the order of punishment

cannot be sustained. To invigorate his submission, he placed

reliance upon the judgments delivered in cases of Rup Singh Negi

-vs- Punjab National Bank reported in (2009)2 SCC 570 , Union of

India & Ors. -vs- Prakash Kumar Tandon reported in (2009) 2

SCC 541 and Eastern Coal Fields Ltd. -vs- Noren Kora reported in

(2008) 2 WBLR (Cal) 373(DB).

In response, Mr. Ghoshal, learned advocate appearing for

the response submits that writ petitioner was in habit of

retention of excess cash. He claims that not only on a single

occasion on 22.8.2012, but he retained cash beyond permissible

limit for the considerable period of time in 2012 and since, he

retained excess cash , bank suffered financial loss to the tune of

Rs.31,56,640/- on account of theft/burglary occurred on

22.8.2012. He contends that the appellate authority by passing a

reasoned order has dealt with all the issues raised by the

petitioner. He submits that there is no scope to interfere with the

charge-sheet and the order of punishment.

In a domestic enquiry fairness in the procedure is a part of

the principles of natural justice. It is apposite to refer the

judgment of Sawai Singh v. State of Rajasthan reported in (1986)

3 SCC 454 wherein it was observed that it is not possible to lay

down any rigid rules of the principles of natural justice which

depends on the facts and circumstances of each case but the

concept of fair play in action is the basis.

Procedural fairness in a departmental enquiry demands

proper disclosure of materials to be used against the delinquent.

There are repetitive pronouncements on the proposition that non-

disclosure and non-supply of the documents to the delinquent

employee would amount to violation of natural justice and if it is

found that the documents are voluminous and it is impracticable

to supply the copies to the delinquent, the disciplinary authority

must afford an opportunity to the charged employee to inspect

the documents and the omission to supply the documents or to

afford an opportunity to inspect the document, as the case may

be, would vitiate the entire decision making process and/or the

disciplinary proceeding.

Indisputably, from the charge-sheet issued against the

petitioner it would be explicit that no list of documents and list of

witnesses were disclosed. On cursory glance at the record of

enquiry of proceedings, it would be discernible that the

Presenting Officer adduced oral testimony of only one witness.

On the first date of enquiry, before handing over any documents

to the charged employee, ten numbers of document were

admitted in evidence and marked as ME 1 to ME 10 and then list

of those documents was provided to delinquent and the record of

proceedings postulates that on the second date of enquiry,

charged employee was handed over some documents. On the 3rd

day of the enquiry proceeding, further 14 (fourteen) numbers of

document were accepted as evidence and exhibited as ME 12 to

ME-25. The delinquent employee raised objection against

acceptance of those documents as evidence but no whisper has

been made regarding such objection rather since the presenting

officer had claimed those documents are relevant, the Enquiry

Officer has accepted those documents as evidence without

passing any reasoned order justifying the acceptance of those

documents as evidence. Documents have been accepted as

evidence on mere tendering without making any enquiry as to the

relevancy and admissibility of those documents. ME-11 has not

been produced claiming that the same was not traceable.

It is axiomatic that an Enquiry Officer is a quasi judicial

authority and function of an Enquiry Officer is quasi judicial in

nature and the Enquiry Officer should perform his functions

fairly and reasonably. [See, the case of Roop Kumar Negi (supra)

and also the case of Prakash Kumar Tandon(supra)]. It is long

standing proposition that an enquiry has to be conducted fairly,

objectively and not subjectively and a finding of the Enquiry

Officer should not perverse or unreasonable, nor should the same

be based on conjectures and surmises and the Enquiry Officer

must record reasons for arriving at the finding of fact in the

context of statute defining the misconduct. Purpose of enquiry is

not somehow to establish the charge levelled against the

delinquent but to unearth the truth.

It is the trite law that court should not re-appreciate and re-

appraise the evidence led before the Enquiry Officer and examine

the findings recorded by the Enquiry Officer as a court of appeal

and the scope of judicial review must confine to the decision

making process. Now, only to ascertain as to whether enquiry

report contains reasons for reaching the conclusion that charges

framed against the delinquent stood proved, if report of the

Enquiry Officer is looked into, it would be explicit that findings of

the Enquiry Officer is not supported with reason and just after

narrating the events occurred in the proceeding, he abruptly

jumped to the conclusion and evidence had not been appreciated

to show how the allegations of misconduct stood proved. On

perusal of the Enquiry Report, it can be argued that the tenor of

the Enquiry Report demonstrates that Enquiry Officer was

predetermined to find the delinquent guilty.

So, in view of the preceding analysis, it is clear as day that

there was no proper initiation of the disciplinary proceeding. By

issuing show cause notice, the delinquent was asked to show

cause as to why disciplinary proceeding would not be initiated

against him but before taking decision whether or not the

explanation was satisfactory, the charged employee was placed

under suspension which speaks about the pre-determined mind

of the disciplinary authority. No list of document and list of

witness were disclosed in the charge-sheet and although some

documents have been used against the delinquent but those

documents have not been supplied to the changed employee

beforehand and the findings of the Enquiry Officer is not

informed with the reason and evidence has not been appreciated

and documents have been accepted as evidence on mere

tendering. So, disciplinary proceeding was not conducted fairly

and it can be conferred that for these reasons, the delinquent

was prejudiced. The foundation the disciplinary proceeding

initiated against the delinquent is fragile and hence, edifice

cannot stand thereon.

In view of such sequence of fact and enunciation of

aforesaid settled principle law, I have no qualm to hold that

charge-sheet issued against the delinquent is liable to be

quashed and the consequential proceeding stands vitiated and

the order of punishment is also liable to be annihilated.

Ex consequenti, the charge-sheet vide. dated 04.10.2012

and the order of punishment dated 19.03.2014 are quashed. The

respondent no.2 is directed to release the consequential benefits

to the writ petitioner positively within 4(four) weeks from the date

of communication of this order.

With the above observations and order, the writ petition is

being WPA 10127 of 2019 stands thus disposed of, however,

without any order as to the costs.

Parties shall be entitled to act on the basis of a server copy

of this Judgement and Order placed on the official website of the

Court.

Urgent Xerox certified photocopies of this judgment, if

applied for, be given to the parties upon compliance of the

requisite formalities.

(Partha Sarathi Chatterjee, J.)