Phanibhushan Chakraborty vs Bangiya Gramin Vikash Bank & Ors
2023 Latest Caselaw 6303 Cal

                                       1




               IN THE HIGH COURT AT CALCUTTA

           (CONSTITUTIONAL WRIT JURISDICTION)

                           APPELLATE SIDE

Present:

The Hon'ble Justice Partha Sarathi Chatterjee



                            WPA 13167 of 2019

                     Phanibhushan Chakraborty
                               -Vs.-
                Bangiya Gramin Vikash Bank & Ors.



For the Petitioner        : Mr. Indranath Mitra


For the Respondents        :Md. Mokaram Hossain

Mr. Sandipan Maity

Heard on : 31.08.2023

Judgment on : 20.09.2023

Partha Sarathi Chatterjee, J.:-

1. In invocation of the jurisdiction of the Court under Article 226 of the

Constitution of India, the petitioner questions the defensibility of the charge

sheet dated 13.05.2011 issued against him in contemplation of a disciplinary

proceeding, the enquiry report dated 28.12.2012, the order of punishment dated

23.09.2015 and the order of the appellate authority dated 13.06.2016.

2. Sans unnecessary details, the facts as frescoed in the writ petition are that

a charge sheet vide.dated 13.05.2011 was issued by the Disciplinary Authority

& Chairman, Bangiya Gramin Vikash Bank (hereinafter referred to as the

bank) against the petitioner while he was discharging his function as the Senior

Manager (Scale-III Officer) at Malda Regional Office of the bank. No list of

witnesses and list of documents were disclosed in the charge sheet.

3. The petitioner submitted his reply to the charge sheet vide.his letter

dated 16.06.2011. By a letter dated 24.11.2011, the Chairman intimated the

petitioner that his reply was found unsatisfactory and appointed the presenting

officer. By the said letter, the officer who was not in higher scale of pay to the

petitioner was appointed as the enquiry officer in derogation of the Regulation

no. 41 of the Service Regulations, 2010 and the enquiry officer initiated the

enquiry proceeding. By a letter dated 5.9.2011, the petitioner raised this issue

before the Disciplinary Authority. Ultimately, by a letter dated 9.12.2011, the

earlier enquiry officer was changed and the Branch Manager, Jangipur Branch

of the bank was appointed as the enquiry officer.

4. The names of two witnesses and a list of nine documents were disclosed to

the petitioner on 31.01.2012. The enquiry proceeding was conducted on diverse

dates. The presenting officer and the delinquent exchanged their respective

briefs. Under a covering letter dated 28.12.2012, the findings of the enquiry

officer was forwarded to the petitioner. The petitioner submitted his response to

that findings. The General Manager (Vigilance) under his covering letter dated

17.08.2013 communicated the order of punishment dated 17.08.2013 passed by

the Chairman & Disciplinary Authority.

5. The petitioner preferred statutory appeal but the appeal was dismissed

affirming the order of punishment by passing a one-page order. Challenging

the order of punishment and the order of the appellate authority, the petitioner

preferred a writ petitioner vide. W.P. No. 11773 (W) of 2014 which was disposed

of by a Coordinate Bench of this court on 22.04.2014 by setting aside the order

of the Appellate Authority and directing the Appellant Authority to hear out

the appeal afresh and pass a reasoned order within the time stipulated therein.

6. Assailing the order dated 22.03.2014, the petitioner preferred an appeal

being A.S.T. no. 188 of 2014 and along with the appeal, an application for stay

of operation of the order dated 22.3.2014 being ASTA 137 of 2014 was also

preferred. The appeal and the connected application were disposed of by a

Hon'ble Division Bench of this Court headed by the Hon'ble Justice Nishita

Mhatre (as Her Ladyship then was) on 04.08.2015 by setting aside the order of

punishment and the order of the Appellate Authority. The disciplinary

authority was directed to pass appropriate order after considering the enquiry

report, record of enquiry proceeding, materials produced at the time of enquiry

and the objection raised by the delinquent and direction was given to disburse

admitted retiral dues in favour of the petitioner.

7. In compliance with the order dated 4.8.2015, the Chairman & Disciplinary

Authority passed the order of punishment afresh on 23.9.2015 but the same

punishment was inflicted giving retrospective effect from 17.08.2013. The

petitioner preferred statutory appeal against the order of punishment dated

23.09.2015 but by the appeal was dismissed and the order of punishment was

upheld by an order dated 13.06.2016.

8. In such conspectus, the petitioner has been constrained to prefer this writ

petitioner assailing the charge-sheet, enquiry report, the order of punishment

dated 23.09.2015 and the order of appellate authority dated 13.06.2016. Despite

direction, neither of the parties has filed any affidavit.

9. Mr. Mitra, learned advocate for the petitioner vociferously contends that a

disciplinary proceeding was contemplated against the petitioner on some

stereo-typed allegations with a pre-determined mind. He strenuously contends

that it has become a regular phenomenon of the bank to initiate such sort of

disciplinary proceeding and by hook and cook to hold that the allegations stand

proved. He further contends that in the given case, after conclusion of

disciplinary proceeding, the punishment of 'reversion of petitioner from the post

of Scale-III officer to Scale-II officer with retention of PFP and stagnation of

increment with cumulative effect‟, was awarded. The petitioner preferred

statutory appeal but the appeal failed. The Hon'ble Division Bench was pleased

to set aside the order of punishment and order of the Appellate Authority and

direct the Disciplinary authority to pass appropriate order after considering the

Enquiry Report, the materials produced at the time of enquiry and objections

raised by the petitioner during the enquiry. He submits that in the guise of

compliance with the order of the Hon'ble Division Bench by jugglery of words,

the same order of punishment has been passed on 23.09.2015 but with

retrospective effect from 17.8.2013 without considering the materials, as

directed. According to Mr. Mitra, an order of punishment cannot be passed with

retrospective effect and in support of his such contention, he cites a decision

rendered by a Hon'ble Single Bench of the Hon'ble High Court at Patna in case

of Raj Kishore Sinha -vs- The State of Bihar & Ors. , reported in 2018 SCC

OnLine Pat 825.

10. Mr. Mitra further argues that the petitioner has been allowed to retire

from service but the petitioner was not placed under suspension and hence,

such disciplinary proceeding cannot be continued after retirement of the

delinquent. He arduously contends that order of punishment of reversion and/or

reduction in post, grade or stage can only be passed while the delinquent is in

service. To invigorate his submissions, he places reliance upon a judgments

delivered in case of D.K. Agrawal -vs- Council of the Institute of Chartered

Accountants of India, reported in 2021 SCC OnLine SC 903.

11. Mr. Hossain, learned advocate for the bank submits that as per

Regulation no. 45(3) of the Service Regulations, 2010, a disciplinary proceeding

can be continued and concluded against one employee of the bank even after his

retirement from service. He contends that principles of natural justices and

mandates of the Service Regulations were followed in conducting the

disciplinary and the order of punishment has been passed as per the direction

of the Hon'ble Division Bench and the Appellate Authority has also passed a

reasoned order and hence, both the orders for not having any infirmity do not

warrant interference. To embolden his submission, he places reliance upon the

judgments delivered in cases of J. D. Jain -vs- Management of State Bank of

India & Anr., reported in (1982)1 SCC 143, High Court of Judicature at

Bombay -vs- Shashikant S. Patil, reported in 1999 Supp1BomCR 918 & Govt.

of A.P. & Ors. -vs- Mohd. Nasrullah Khan, reported in (2006) 2 SCC 373.

12. While disposing of the appeal along with its connected application being

A.S.T. 188 of 2014 and A.S.T.A. no. 137 of 2014 respectively on 04.08.2015, the

Hon'ble Division Bench was pleased to set aside the order of the punishment

dated 17.8.2013 and the order of the Appellate Authority dated 10.05.2014 and

pass following order :

"...The Disciplinary Authority will consider the Enquiry Report, Enquiry Proceedings, other material produced at the enquiry and the objections raised by the appellant in his letter to the Disciplinary Authority dated 16th January, 2014.

The Disciplinary will pass appropriate orders after considering all the aforesaid material within four weeks from today. The order shall be communicated immediately to the appellant.

We have been informed that the appellant has retired from service. All the admitted retiral dues must be paid in accordance with law to him at the earliest..."

13. Hence, the pivotal question falls for consideration before this court is

whether or not the Disciplinary Authority had passed an appropriate order

after considering the Enquiry Proceedings, the Enquiry Report, other

materials produced at the enquiry and the objections raised by the appellant

in his letter to the Disciplinary Authority dated 16th January, 2014.

14. Before giving judicial answer to the query, let me look into the materials

referred in the order of the Hon'ble Division Bench and the order of

punishment dated 23.09.2015.

15. In the charge sheet, it was alleged that the petitioner had acted in

contravention of Regulations 18 and 20 of the Bangiya Gramin Vikash Bank

(Officers and Employees) Service Regulations, 2010 (in short, the Service

Regulations, 2010). In the concluding part of the charge sheet, five charges

were brought against the petitioner, namely, 'i) Committing acts detrimental

to the interest of the Bank ; ii) Sanction and disbursement of loans violating

Rules, Norms and Lending Policy of the Bank; iii) Exposing the Bank to

financial loss; iv) Doing acts in negligent and suppressive manner & v)

Committing breach of trust‟.

16. In the statements of allegations, 12 nos. of allegations were levelled

against the petitioner. The sum and substance of such allegations is as

follows:

'that the petitioner sanctioned and disbursed 8 nos. of loans of Rs. 59.45 lakhs under Govt. Sponsored Programme without observing lending policy, without obtaining proper documents including deed of Hypothecation from the borrowers. The petitioner sanctioned and disbursed loan of Rs.3.5 lakhs to one Anuradha Naskar in violation of the guidelines, adjusted margin money of Rs. 3 lakhs without observing the prescribed time limit and account was closed when the borrower credited Rs. 51510/- and loan documents were concealed. The petitioner allowed diversion of working capital fund without ensuring the end use of bank‟s fund. He sanctioned and disbursed multiple credit facilities to a particular family violating Group Exposures Norms and circular dated 10.4.2007. The petitioner sanctioned three credit facilities to one Rafiqul Islam and Anowara Bibi of Rs. 29.16 lakhs without mentioning the fact of earlier credit

facility. The petitioner sanctioned 6 nos. of loans under the head, Sagar Trade Credit without proper documentation as per circular no. 23.08.2004 .The petitioner granted loan of Rs. 10 lakhs to one Saktipada Mondal without involving the loan official and he did not report about aforesaid 22 loans to his next higher authority and except one loan all the loans sanctioned by the petitioner during his tenure as Branch Manager of Fatepur Branch had slipped to NPA and hence, bank suffered loss of Rs. 150.73 lacks.'

17. The enquiry proceeding, which was commenced on 9.8.2011, was

concluded on 14.7.2012. Though two persons were named as management

witnesses but none was produced to adduce oral accounts. The copies of

11(eleven) numbers of documents namely, the special investigation report

submitted by the official of head office, snap inspection report of the official of

the head office, statement dated 16.02.2011 made by the BM of Fatepur Brach,

five circulars dated 23.08.2004, 10.01.2007, 20.02.2009, 09.07.2009 &

18.01.2009, all loan documents & Ledger Sheets except the loan documents of

A/c, no. SSI/K/166/07, some vouchers and despatch register and peon book,

were admitted in evidence.

18. During enquiry proceeding, placing their reliance upon peon book and

despatch register, the CSO and his DR claimed that DP statements were

despatched in due times. One copy styled as 'Summary Observation' was

handed over to the CSO. In relation to such copy of the document, the CSO

claimed that from such document it was proved that DP statement were sent

and CSO dealt with all the allegations brought against him. He denied and

disputes all the allegations levelled against him.

19. In the written argument, it was, inter alia, contended by the Presenting

Officer (in short, the PO) that neither the CSO nor his DR could refute or ever

disagree with the documents produced by the management on the strength of

any reasonable document, logical evidence or argumentative presentation for

the sake of their defence. 'Although, in a few occasions during the enquiry

proceedings, both of them verbally contradicted with some of the arguments

placed from management side, but those did not seem to be rationally

supportive of any significance. All the allegations & charges were established

by dint of proper of proper evidences, reasons and argument'. The PO argued

that 'the CSO of his DR verified all the documents but they could not disown

the alleged lapses when the documentary evidences were shown. The CSO/DR

could hardly produce any pertinent record/document to defend/contradict the

allegations and charges.Bank‟s circulars, norms and lending policy were not

adhered to and hence, the accounts turned to NPA that led the bank to suffer

huge financial loss in practical view‟.

20. The delinquent, in his written argument, took the stand that in the

process of sanction and disbursement of loans, all the officers involved in the

process were responsible but the discipline proceeding has been initiated only

against the petitioner with ulterior motive and a pre-conceived mind. He

stated that the EDP training were given to the borrowers. All the units were

registered under KVIC norms. Margin money had been released by the

competent authority upon completion of requisite formalities. Non-filing/part-

filing/incomplete filing of loan documents is a general phenomenon of almost

all branches and such things occur due to shortage of manpower and these are

rectified subsequently. Regarding disbursement of cash credit loan before the

Term Loan, he submitted that he disbursed such loan as per norms. He

categorically stated that the mortgages which were taken by another branch

were not defective but in the letter of communication of the mortgagee branch,

there were defects for which he cannot be held responsible. Regarding

adjustment of margin money before lock-in-period, he stated that since 'Win-

Banker Software' did not support, the margin money were carrying interest.

The borrowers raised objections and hence, to solve the problem, reversible

accounting procedure was adopted and neither the bank nor the borrowers

had suffered any loss. Regarding the allegation of disbursement of term loan

in cash without taking no vouchers, he stated that since vouchers were not

available in the branch, loans were disbursed on production of money receipts

issued against purchase of fixed assets. He specifically contended that post-

disbursement inspection was done by him jointly with field officer. He refuted

the allegations that truck of Rafikul Islam was not registered by producing the

copies of the document relating to the vehicle. By giving details of the

accounts, he refuted the claims that the loan accounts were slipped to NPA.

21. The enquiry officer in his report observed that the documents, which were

admitted in evidence, were handed over to the delinquent. The enquiry officer

detailed the incidents of all dates of hearing. He reported that on 14.7.2012,

the charge-sheeted officer (in short, CSO) sought for some documents but

those documents, in his view, were irrelevant. The EO enumerated the

argument of the delinquent and then observed that „after verifying the contents

of the documents and after considering the facts that CSO and his DR could

not logically oppose/object the alleged irregularities‟. The enquiry officer

observed that 'CSO could not lawfully disown his alleged lapses after the

documentary evidences were shown to him. The CSO verified the documents

but the CSO/DR failed to defend himself. The CSO or his DR could hardly

produce any pertinent record/document either to defend or contradict the

allegations and the charges contained in the charge sheet‟.

22. The enquiry officer just reiterated the statements made by the PO in his

written argument even using the same words. The enquiry report clearly

demonstrates that the enquiry officer imposed a reverse onus upon the

delinquent. There is no scope to deny that the burden lies upon the

management to prove the allegations levelled against the delinquent. It goes

without saying that the enquiry officer is a quasi-judicial authority and he

discharges quasi-judicial function. Hence, 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. The Enquiry Officer must record reasons for

arriving at the finding of fact in the context of statute defining the misconduct.

The report of the enquiry officer must be informed with reason having

indication how the allegations levelled against the delinquent stood proved.

23. In the letter dated 16.01.2014, the delinquent categorically stated that

the enquiry officer did not deal with 12 no. of allegations and the averments

made by him in his summary argument. By producing documents, he proved

that the allegation nos. 1,2, 4 & 6 were vague. No reason was assigned as to

why the enquiry officer did not accept statements of the delinquent. Regarding

allegation no. 3, he stated that the loan officer singed the loan documents but

despite being named as management witnesses, the loan officer did not

depose. Regarding allegation nos. 5 to 11, the delinquent claimed that by

producing documents he proved that the allegations were vague and regarding

allegation nos. 12, he stated that most of loans became standard i.e. operative

as on 31.03.2012.

24. Now, let me scrutinize the order of punishment dated 23.09.2015

paragraph-wise. On studied scrutiny of that order, it transpires that the

contents of the charge sheet and the letter of the delinquent 16.01.2013 were

reproduced in verbatim. The Disciplinary Authority negated the claim of the

delinquent to the effect that before initiation of disciplinary proceeding

against an officer or an employee of bank, the procedures prescribed in the

circular of NABARD dated 20.6.1987 were required to be followed mandatorily

and opined that NABARD guidelines were issued only for guidance of the

bank. The Disciplinary Authority opined that the preliminary inquiry report

did not form part of the evidence and the enquiry officer did not rely upon the

same to return his findings and hence, the bank was not obligated to disclose

the same to the delinquent. The Disciplinary authority observed that barring

the privileged and irrelevant documents, the relevant documents were

provided to the delinquent. The delinquent verified the documents with the

originals and since the delinquent did not question the genuineness of the

documents, the authors of the documents had not been examined.

25. The Disciplinary Authority observed that the enquiry officer elaborately

considered and/or dealt with the charges levelled against the charged officer,

the PO had established all the allegations/charges independently through

documents which the EO concurred after application of his mind and hence,

the Disciplinary Authority expressed his agreement with the reasons and

conclusion assigned and arrived at by the EO and he opined that the

delinquent had acted beyond his authority in breach of Bank's Regulation,

while sanctioning and dealing with the impugned loan cases and in some

cases, the delinquent had abused his official position and extended undue

favour to various borrowers.

26. The circular of NABARD has not been produced by either of the parties.

Admittedly, no notice had ever been issued asking the delinquent to show

cause as to why the disciplinary proceeding would not be initiated against him

on allegations of certain misconduct. The enquiry report reveals that

preliminary inquiry was conducted and the management based on such report.

No list of witnesses and list of documents had been disclosed in the charge

sheet. The officer who was not in higher scale of pay that the petitioner was

appointed enquiry officer and he commenced the enquiry proceeding. Duly

filled in questionnaire of the Branch Manager (BM) of Fotepur Branch was

relied upon but no opportunity was afforded to the delinquent to cross-

examine the BM.

27. The enquiry officer, as observed earlier, has just echoed the view of the PO

to the effect that after verifying the documents, the delinquent could not

logically oppose/object the alleged irregularities and lawfully disown his

alleged lapses and the delinquent failed to produce any documents to defend

himself. So, the enquiry officer has imposed reverse onus upon the delinquent.

28. The enquiry officer in the same tune of the PO stated that all circulars

and documents were supplied to the CSO and opportunities were afforded to

him to inspect the document but after verifying the documents, the CSO could

not logically disown the allegations. The disciplinary authority in a

mechanical manner claimed that the PO had established the charge and the

enquiry officer elaborately considered and/or dealt with the charges levelled

against the charged officer and hence, he concurred with the findings of the

enquiry officer.

29. The specific grievances ventilated by the delinquent that the enquiry

officer did not make discussion allegation-wise and did not assign any reason

as to why he had accept the submission of the PO and rejected the argument

of the delinquent.

30. Nowhere either in the enquiry report or in the order of the punishment the

particulars of the circular, norms and lending policy were detailed and/or

disclosed which the managements claimed to have been violated by the

delinquent. No reason has been assigned to show how the allegation regarding

adjustment of margin money, diversion of working capital fund, disbursement

of multiple credit facilities to a particular family (particular of that family not

disclose), disbursement of loan to Shaktipada Mondal without involving the

loan official, omission to report to next higher authority about 22 loans and

responsibility of the delinquent regarding NPA stood proved and why the

contention canvassed by the delinquent on these allegations were not

accepted. In the order of the punishment dated 23.0.2015, there is noreflection

that the materials referred in the order of the Hon'ble Division Bench were

considered by the Disciplinary authority.

31. Hence, there must be an irresistible conclusion that the Disciplinary

Authority has mechanically observed and ordered that that the enquiry officer

elaborately considered and/or dealt with the charges and PO had established

the charges and hence, he concurred with the findings of the enquiry officer.

32. The disciplinary proceeding is quasi-criminal in nature and the enquiry

officer and the disciplinary authority are quasi-judicial authorities.

Admittedly, standard of proof in disciplinary proceeding is preponderance of

probability but after analysing the evidence, the enquiry officer is to return

his findings how the charges levelled against the delinquent have been proved

to be probable.

33. In every order passed by any authority, there must be some reasons which

will indicate the application of mind of such authority to the matters in issue,

materials on record, submission of affected persons etc. An order of

punishment not only affect the employee only but also his entire family. An

employee or an accused should not be left with a feeling that he has not got

justice and his grievances have been left untouched.

34. Suffice it to observe that in the given case, the enquiry officer has not

make any discussion allegation-wise and the disciplinary authority has

tactfully avoided such aspects. Hence, it is quite vivid and luminescent that

the disciplinary authority did not pass appropriate order after considering the

materials referred in the order of the Hon'ble Division Bench. The order of the

punishment dated 23.09.2015 is nothing but an old wine in new bottle with

slight modification regarding the date of effect thereto.

35. There is no scintilla of doubt regarding binding effect of the principles laid

down in the judgments relied upon by Mr. Hossain but those are

distinguishable on facts.

36. In view thereof, the enquiry report and the order of the punishment dated

23.09.2015 are set aside. Since the order of punishment has been set aside,

the order of appellate authority being the consequential order cannot stand

and hence, the order of appellant authority is also set aside. The disciplinary

proceeding was initiated in 2011 and the petitioner has retired from service

almost 8 years back and hence, at such distance of time it would not be

apposite to ask the enquiry officer and the disciplinary authority to submit

fresh report and pass the order of punishment afresh respectively. In

consequence, the disciplinary proceeding contemplated against the petitioner

stands quashed.

37. With these observation and order the writ petitionbeing WPA 13167 of

2019 stands disposed of, however, without any order as to the costs.

38. 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.

39. 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.)