Chinmoy Bhattacharyya vs Bangiya Gramin Vikash Bank & Ors
2023 Latest Caselaw 6305 Cal

                                 1




              IN THE HIGH COURT AT CALCUTTA

           (CONSTITUTIONAL WRIT JURISDICTION)

                        APPELLATE SIDE

Present:

The Hon'ble Justice Partha Sarathi Chatterjee



                        WPA 16304 of 2017

                      Chinmoy Bhattacharyya
                              -Vs.-
              Bangiya Gramin Vikash Bank & Ors.



For the Petitioner        : Mr. Indranath Mitra
                           Mr. Neil Basu

For the Respondents        :Md. Mokaram Hossain

Mr. K.P. Mukherjee Mr. Sandipan Maity

Heard on : 18.08.2023

Judgment on : 20.09.2023

Partha Sarathi Chatterjee, J:-

1. By taking out this writ petition, the petitioner questions the

sustainability of the charge-sheet dated 25th November, 2013,

the order of punishment dated 11th October, 2014, the order

dated 6th April, 2015 passed by the appellate authority and the

petitioner also prayed for release of his retirement benefits

together with interest.

2. Just five days before the date of superannuation i.e. 30th

November, 2013, while the petitioner was officiating the post of

the Bank Manager of Bangiya Gramin Vikash Bank (in short,

the bank) at its Nodakhali Branch, a charge sheet vide. dated

25th November, 2013 was issued against the petitioner bringing

as many as seven charges against him which are as follows :

"i) committing acts detrimental to the interest of the bank, ii) sanctioning and disbursing loans violating the norms/lending policy of the bank, iii) exposing the bank to huge financial loss, iv) discharging the official duties in negligent and casual manner, v) committing breach of trust, vi) committing acts of suppression of facts & vii) committing breach of discipline."

3. The sub and substance of the allegations levelled against the

petitioner was that while working as the Branch Manager at

Nodakhali Branch, the petitioner granted loan of Rs. 1.66

Crores to 20 nos. of borrowers without involving the second

officer of the bank, without following lending policy and

withoutmaking verification of - i) the working capital and the

financial statement of the borrowers; ii) basing upon the

unstamped and incomplete documents; iii) without getting the

assets of the borrowers insured. It was further alleged therein

that the petitioner did not realize the processing charge in

respect of one loan account. Due to such lapse on the part of the

petitioner, 4 loan accounts involving 35.86 lakh had slipped to

sticky accounts as on 18.11.2013. The petitioner granted loan of

Rs. 19.11 lakh to 21 borrowers flouting the instructions

contained in the letter dated 05.03.2008 and hence, the

petitioner violated the regulation nos. 18 and 20 of the Bangiya

Gramin Vikash Bank (Officers and Employees) Service

Regulations, 2010 (in short, the Service Regulations).

4. On 10th December, 2013, the petitioner submitted his reply to

the charge sheet denying the allegations levelled against him.

By a letter dated 24th January, 2014 the petitioner was

informed that his reply to the charge sheet was found

unsatisfactory and the presenting officer and the enquiry officer

were appointed.

5. The enquiry officer informed that preliminary enquiry will be

held on 12th March, 2014 at 10 am at Nodakhali Branch. The

persons adduced evidence on behalf of the management. The

enquiry proceeding was conducted on diverse dates. The

presenting officer and the delinquent exchanged their

respective briefs. Under a covering letter dated 7th July, 2014,

the Disciplinary Authority and the General Manager of the

bank communicated the report of the enquiry officer to the

petitioner.

6. The petitioner submitted his response to the findings of the

enquiry officer on 28th July, 2014. The Chief Manager of the

bank under his covering letter dated 11.10.2014 forwarded a

copy of the order of punishment of removal from service

vide.dated 11.10.2014. The petitioner preferred statutory

appeal assailing the order of punishment but the appeal fails

and the order of punishment was affirmed by an order dated

06.04.2015. In such chronological events, the petitioner has

been constrained to prefer this writ petition. Despite direction,

none of the parties hereto has filed affidavit.

7. Mr. Mitra, learned advocate appearing for the petitioner

contends that just five days before the retirement with a pre-

determined mind the disciplinary proceedings was

contemplated against the petitioner. He vociferously contends

that the proceedings was continued and concluded in violation

of principles of natural justice and the punishment was

awarded. He submits that the delinquent was never placed

under the suspension and even the delinquent was allowed to

retire. In that event, it was not open to the disciplinary

authority to invoke the regulation no. 45 of the Service

Regulations, 2010 to continue the proceeding against a retired

employee.

8. He strenuously argues that on perusal of the particulars of loan

accounts it will be explicit that most of the Non Performance

Assets (in short, NPA) became standard i.e. operative. He

contends that to expand the business of the bank, a Branch

Manager is obligated to sanction loans but presently, it has

been a regular phenomenon of the bank that as and when some

loan accounts slip to NPA, the branch manager is forced to face

such sort of proceeding.

9. Mr. Mitra contends that charges brought against the petitioner

are vague and non-specific. He submits that petitioner was

charged of being instrumental in exposing the bank to huge

financial loss but nowhere the quantum of loss was disclosed.

He argues that it has not been disclosed anywhere which

lending policy and which rules and/or norms had been violated

and which fact or facts were suppressed. He claims that the

petitioner is victim of office politics.

10. He arduously argues that there was no enclosure with the

charge sheet. No list of witnesses and list of documents had

been supplied to the petitioner and the photocopies of some

documents were admitted in evidence but without

authentication and without any verification. He submits that

the petitioner's reply to the charge sheet was held to be

unsatisfactory though no reason was assigned. He further

submits that on the first day of the enquiry proceeding, the

petitioner found that two persons were present to adduce

evidence as management witnesses but the petitioner had never

intimated that such persons would depose against him. The

copies of the documents used against him were handed over just

on the date of enquiry. The recording of proceeding has not been

provided to the petitioner.

11. He further contends that report of the enquiry office is cryptic.

According to him the enquiry officer is bound to return reasoned

finding after analyzing evidence but from the enquiry report, it

would be explicit that the enquiry officer submitted his report

in mechanical manner holding that charges levelled against the

petitioner stood proved and as such, the findings of the enquiry

officer cannot be sustained.He contends that the disciplinary

authority inflicted punishment upon the petitioner on a new

charge i.e. moral turpitude and hence, the disciplinary

authority disagreed with the findings of the enquiry officer and

in that circumstances the disciplinary authority were required

to give an opportunity to defend but no such opportunity was

afforded to the petitioner. To buttress his argument he places

reliance upon the judgments delivered in cases of Rup Singh

Negi vs. Punjab National Bank & ors. reported in (2009) 2 SCC

570, State of UP &Ors. vs. Saraj Kumar Sinha, reported in

(2010) 2 SCC 772 and Anil Kumar vs. Presiding Officer & Ors.

reported in AIR 1985 SC 1121.

12. Per contra, Mr. Hossain, learned advocate representing the

bank submits that as per clause 3 of the Regulation no. 45 of

the Service Regulations, the bank can continue and conclude

disciplinary proceedings even after retirement of its employee.

He contends that the huge amount of loans of Rs.1.66 cores

were sanctioned by the petitioner in derogation of the

norms/lending policy of the bank and without making pre-

sanction verification of the essential documents. He submits

that although by an order the petitioner was prohibited from

sanctioning any loan on or after 6th September, 2013 but the

petitioner sanctioned loan even after 7th September, 2013.

Drawing my attention to page 97 of the writ petition, he

contends that the petitioners have virtually admitted the

allegations of misconduct levelled against him. He cites a

decision rendered by the Hon'ble Supreme Court in case of V.K.

Bahadur -vs- State Bank of India, reported in 2000 (2) LLJ 76

for the proposition that even if there is no peculiarly loss, yet

the bank authority can initiate disciplinary proceedings against

the erring official and if the allegation of misconduct is proved,

the bank can remove such employee from service. He contends

that there were no procedural irregularities in conducting the

disciplinary proceeding and no rule or regulation has been

violated. He asserts that in the banking business, absolute

devotion, diligence, integrity and honesty needs to be preserved

by every bank employee otherwise the confidence of the

public/depositors would be impaired. He submits that in cases

of financial irregularity committed by a bank employee there

cannot be any punishment other than dismissal and/or removal

from service. To lend support to his contentions, he

placesreliance upon the judgments delivered in cases of

Pankajesh vs. Tusli Gramin Bank & Anr. reported in AIR 1997

SC 2654, Ram Pratap Sonkar vs. Chairman and Managing

Directed from Allahabad reported in 2000 (2) LLJ 382 and one

judgment passed by the Hon'ble Supreme Court of India in

appeal (Civil No. 4243/4244 of 2004) (State Bank of India &

Ors. vs. S. N. Goyal).

13. Indisputably, the charge must be specific and not vague. In the

case at hand, the charges were sought to be supported by

statement of allegations. In the charge sheet, the documents

marked as 'A' (particulars of loan accounts), 'B' and 'C' and the

list of documents and witnesses were shown to have been

annexed but Mr. Mitra claims that no annexure of the charge

sheet was provided to the delinquent. Such submissions of Mr.

Mitra have not been disputed on behalf of the bank and no

document has been placed to show that particular of loans, list

of documents and witnesses were provided to the petitioner

along with the charge-sheet.

14. Procedural fairness in a departmental enquiry mandatorily

requires proper disclosure of materials sought to be used

against the delinquent. It is axiomatic that non-disclosure of

particulars of evidence and non-supply of the documentsto the

delinquent employee would amount to violation of natural

justice and the omission to disclose the list of witnesses and list

of documents and failure 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.

15. It is well-acclaimed principle that an Enquiry Officer is a quasi-

judicial authority and function of an Enquiry Officer is quasi-

judicial in nature. An enquiry has to be conducted fairly,

objectively and not subjectively. A finding of the enquiry officer

should not be perverse or unreasonable nor should the same be

based on conjectures and surmises. The enquiry officer must

record reasons for arriving at the findings of fact in the context

of statute defining the misconduct. The enquiry must return a

reasoned findings to show how the charges levelled against the

delinquent stood proved. The purpose of enquiry is not somehow

to establish the charge levelled against the delinquent but to

unearth the truth.

16. Suffice it to note that the enquiry officer had submitted a two-

page report. In the enquiry report, it was mentioned that on

12.3.2014, the documents were handed over to the delinquent

and then, it was claimed that allegations were discussed and

the charged employee was given opportunity to verify the

documents and delinquent could not disown the evidence and

hence, hearing summery argument and on scrutiny of the

documents, the enquiry officer came to a conclusion which reads

thus:

' the CO had been negligent in performing his duties and responsibilities at the time of Sanctioning the proposals without pre-sanction inspection, invalid

(blank)documentation, causing suppression of facts and violating the norms/lending of the Bank as well as exposing Bank to huge financial loss which as a whole sustainable the facts of committing misconduct by the CSO as has been envisaged by the Chare-Sheet.'

17. The charges levelled against the delinquent officer must be

found to have been proved. The disciplinary proceeding is quasi

criminal in nature and the standard of proof is preponderance

of probability. It is mandatory requirement that the enquiry

officer upon appreciation of evidence must arrive at a

conclusion that there had been a preponderance of probability

to prove the charges on the basis of materials on record. The

enquiry officer must consider the relevant evidence and exclude

the irrelevant materials from his zone of consideration and he

shall not shift the burden of proof and his decision must be

informed with reason. In case of Roop Singh Negi -vs- Punjab

National Bank (supra), it was held that in disciplinary

proceeding, mere production of documents is not enough. The

contents documents are required to be proved. In the case at

hand, the documents had been admitted in evidence on mere

tendering and contents of the documents had not been proved.

18. There is no iota of doubt that the enquiry officer's finding is not

informed with the reason and no evidence has been scrutinized

to show how the allegation of misconduct stood proved and

documents have been admitted on mere tendering. The contents

of the documents have not been proved.

19. Mr. Hossaincontends that the petitioner had admitted his guilt.

On close scrutiny of the reply to the charge sheet, it would be

explicit that the petitioner stated that before disbursement of

any loan, he had duly filled in mortgage-document. Initially, he

would carrythe incomplete loan documents, which could not be

filled in due to pressure of work, to his residence to incorporate

the requisite information therein but the Regional Manager

asked him not to take those documents at home. He anticipated

that he could fill up those documents before his retirement but

during last 20 days of his service tenure, his access to the loan

documents were denied. In his reply to the enquiry report, the

petitioner stated that due to pressure of the work, he could not

fill up all the loan documents and some of the loan documents

were either incomplete or adequate and he had approached the

competent authority to afford him opportunity to fill up the

unfilled portions of the loan documents but in vain. The

petitioner expressed his opinion that these are curable defects

only.

20. It goes without saying that expression of opinion limited to the

context is not admission. The delinquent defended the charge

contending that before disbursement, he filled up mortgage-

documentsbut due to pressure of work, he couldnot fill up all

loan documents and during last 20 days of his service tenure,

his access to the loan documents were denied and hence, he

could not fill up the documents. Such stand cannot be stated to

be admission of guilt. He admitted that some of the loan

documents had not been filled up but he explained as to why

those documents could not be filled up.

21. The disciplinary authority observed that the petitioner has

admitted his guilt contending that 'there was inadequateness

and incompleteness in loan documents and said that incomplete

documents were not irredeemable. But the (CSO) in his written

submission, failed to explain rest of the findings of the Enquiry

Officer. I would be inferred that the CSO admitted the other

allegation/charges levelled against him and that he did not

have any explanation to offer in his defence.'

22. The disciplinary authority omitted to consider that the

delinquent defended the incompleteness of loan documents and

in his reply to the charge-sheet and the enquiry, the delinquent

has specifically denied all the other charges and gave

explanation. At the cost of reiteration, it is stated that the

burden lies upon the management to prove the allegation of

misconduct and the management cannot enjoy the privilege to

impose reverse onus upon the delinquent. The disciplinary

authority observed that CSO admitted that he had received the

letter dated 01.06.2013 whereby it was directed that his

discretionary power would be regulated in terms of the circular

dated 5.3.2008 and hence, he admitted that he had violated the

directives of the bank. Such findings of the disciplinary

authority speaks about the pre-conceived mind of the authority.

23. In the concluding part of the order of punishment, the

disciplinary authority observed as follows:

"I have carefully considered the above submission of CSO and find that the conduct of the CSO is contrary to honesty, modesty and good morals. Sri

Bhattacharya has failed to observe 'devotion of duty' and committed the offence involving moral turpitude. The expression 'moral turpitude' should be understood in the light of prevailing norms that is expected from a person. The term should be interpreted in a widest possible manner. In my opinion, there can be no scintilla of doubt that the case of Sri Bhattacharya definitely comes within the ambit of 'Moral Turpitude''.

24. No charges to the effect that i) the conduct of the delinquent was

contrary to honesty, modesty and good morals, ii) the delinquent

had failed to observe devotion of duty and iii) commission of

offence of 'moral turpitude', had been brought against the

delinquent. These are the new charges. Hence, it can be argued

that disciplinary authority had disagreed with the enquiry

officer. In case of Punjab National Bank &Ors. -vs- Kunj Behari

Mishra (supra), it was ruled that if disciplinary disagrees with

the findings of the enquiry officer, he must give an opportunity

of hearing to the delinquent but no opportunity has been

afforded to the delinquent. I may fruitfully refer the case of S.P.

Malhotra -vs- Punjab National Bank, reported in AIR 2013 SC

3739, wherein it was held that disciplinary authority is bound

to record reasons for disagreeing with findings of enquiry officer

and to supply a copy thereof to the delinquent and non-

furnishing copy of recorded reasons for disagreement from

enquiry report prejudices delinquent and in that event, the

consequential order of punishment would stand vitiated.

25. Indisputably, neither the enquiry officer in his report nor the

disciplinary in his order has discussed and/or analyzed the

evidence to show how the allegations stood proved which lead to

an irresistible conclusion that findings of both the enquiry

officer and disciplinary authority are perverse i.e. based on no

evidence. No list of documents and list of witnesses had been

provided to the petitioner. The enquiry officer did not scrutinize

the evidence and the enquiry report is not informed with

reason. The enquiry officer and the disciplinary authority

misinterpreted the statements of the delinquent and held those

statements to be his admission of guilt. The disciplinary

authority has misplaced the burden upon the petitioner and

imposed a reverse onus upon the petitioner and the disciplinary

introduced new charges but no opportunity was afforded to the

petitioner to defend such charges.

26. Both the enquiry officer and the disciplinary bypassed the

issues namely, i) as to whether the bank had suffered any

pecuniary loss or not and ii) as to whether due to

incompleteness of the loan documents, the loans were left

unsecured or not! To fill up this lacuna, Mr. Hossain cited the

decision of V.K. Bahadur (supra) to contend that even if there

was no actual loss of the bank, the employee can be held guilty

of misconduct. Such submission of Mr. Hossain indicates that

there was no pecuniary loss of the bank and nowhere, it has

been claimed that the loan or loans sanctioned by the petitioner

became unsecured.

27. If an eagle's eye is kept on the records and a strict view is

applied then at best it can argued that some loan documents

were not filled up by the delinquent and loan or loans was or

were granted by his after 6.9.2013 but for this reasons, the

bank has not suffered any pecuniary loss and no loan has been

left unsecured but an employee,who had rendered his service to

the bank for decades,has been removed after his retirement and

his entire retirement benefits have been forfeited. It goes

without saying that punishment must be commensurate and/or

proportionate to the misconduct. I am of the view that doctrine

of proportionality has not been followed in awarding

punishment. The punishment is shockingly disproportionate.

After almost 10 years, it would not be apposite to relegate the

matter to the authority to fill the lacuna and award fresh

punishment particularly in a case where it has been held that

the charge sheet and the enquiry cannot be sustained and

principles of natural justice have been violated in conducting

the disciplinary proceeding.

28. There is no iota of doubt regarding binding effect of the

judgments relied upon by Mr. Hossain but those are

distinguishable on facts.

29. In view of the foregoing analysis, I have no qualm to hold that

the charge sheet, the enquiry report, the order of punishment

and the order of the appellate authority cannot be sustained.

30. In view thereof, the charge sheetdated 25th November, 2013, the

enquiry report, the order of punishment dated 11th October,

2014, the order of Appellate Authority dated 6th April, 2015 are

set aside. The respondent no. 2 is directed to disburse all

retirement benefits to the petitioner within four weeks from the

date of receipt of a copy of this order.

31. With these observation and order, the writ petitionerbeing

WPA 16304 of 2017 stands disposed of, however, without any

order as to the costs.

32. 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.

33. 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.)