Abdul Rashid Regoo vs Chairman Jammu & Kashmir
2023 Latest Caselaw 617 j&K/2

       IN THE HIGH COURT OF JAMMU AND KASHMIR
                     AT SRINAGAR

                                            Reserved on: 16.05.2023
                                            Pronounced on: 19.05.2023

                          SWP No.868/2018

ABDUL RASHID REGOO                              ...PETITIONER(S)
      Through: - Ms. Asma Rashid, Advocate.
Vs.

CHAIRMAN JAMMU & KASHMIR
GRAMEEN BANK & OTHERS                          ...RESPONDENT(S)
      Through: - Mr. Shakir Haqani, Advocate.

CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                JUDGMENT

1) The petitioner was an officer of the respondent Bank and was

functioning as Branch Manager on substantive basis. He came to

superannuated on the said post on 30th April, 2013 having rendered about

30 years of service to the Bank. During his long tenure of service, the

petitioner was posted at Branch Office, Wailu Kralpora, where he had

advanced loan to a borrower, namely, Mohammad Abdullah Mir.

Similarly, while the petitioner was working in Branch Office at Younis

Wahiupora, he had advanced loan to one Nisar Ahmad Khan. Both the

loans had gone NPA because of negligence of the petitioner who had

failed to obtain necessary certificates of the vehicles from the Motor

Vehicles Department. The respondent Bank subjected the petitioner to

disciplinary proceedings. The disciplinary proceedings were initiated by

the respondent Bank at the time of his superannuation from service in

terms of Regulation 45 of the Officers and Employees Service

Regulations, 2010 ["the Regulations"]. The petitioner was released only

80% of his retiral benefits and 20% thereof was withheld. Feeling

aggrieved, petitioner filed SWP No.20/2016, which was contested by the

respondent Bank. The writ petition was disposed of by a Single Bench of

this Court vide order dated 9th, June, 2016, with a direction to the

respondents to release 20% of the retiral benefits withheld by them, within

a period of two weeks. The aforesaid judgment of the Single Bench was

challenged by the respondent Bank in LPASW No.151/2016, which was

disposed of by a Division Bench of this Court vide its order and judgment

dated 24th October, 2016. The Division Bench accepted the argument of

the respondent Bank that it had withheld 20% of the retiral benefits to

recover the loss sustained by the Bank and such action was permissible

under Clause (4) of Regulation 45. The Division Bench also took note of

the fact that the disciplinary proceedings initiated against the petitioner

stood concluded by passing of order dated 19th September, 2013,

whereunder the petitioner had been advised to obtain RC in the loan case

of Mr. Mohammad Abdullah Mir and also regularize the defaulted

accounts. As was provided by the disciplinary authority, the Bank had

reserved its right to proceed against the petitioner, if he failed to effect

recovery from borrowers. The Division Bench also took note of the

submission made by learned counsel appearing for the petitioner herein

agreeing to the proposal of the respondent Bank that the amount

recoverable from the petitioner would be determined only after extending

an opportunity of being heard to the petitioner.

2) In compliance to the judgment dated 24th October, 2016, passed by

the Division Bench, the respondent Bank put the petitioner to notice and

after hearing him passed the order dated 25th January, 2018, impugned in

this petition. The petitioner has been informed that because of his

negligence and dereliction of duty, he has subjected the Bank to the loss

of Rs.9,90,378/, which is recoverable from him. The petitioner has also

been assured that in the event any recovery being made in the two loan

accounts in future, the Bank shall explore the possibility to keep the

recovered amount as TDR under lien to the Bank till both the accounts are

fully adjusted. It is this order which is called in question by the petitioner

in this petition.

3) The impugned order has been assailed, inter alia, on the ground that

the same is illegal, arbitrary and passed in sharp contradiction of various

directions passed by this Court and that the petitioner was not afforded a

reasonable opportunity of being heard. The impugned order is also

challenged on the ground that the same suffers from total non-application

of mind, in that, one of the accounts in respect of Nisar Ahmad Khan had

since been settled and that aspect was not taken into consideration by the

competent authority. The petitioner further submits that there is no

material or evidence on record which would establish by any reasonable

probability that there was some negligence or remissness on the part of

the petitioner in extending loans to the above named two borrowers.

4) Per contra, the respondent Bank, in its reply affidavit, has taken a

brief stand that in view of the judgment dated 24th October, 2016 passed

by the Division Bench in LPSWA No.151/2016, the only question that

was left to be determined by the respondent Bank was to work out the

recoveries to be made from the petitioner after affording him an

opportunity of being heard. It is submitted that an adequate opportunity

was given to the petitioner and he was also given personal hearing. It is

only after the competent authority was satisfied that because of negligence

and dereliction of duty by the petitioner, the Bank had suffered a loss to

the tune of more than Rs.9.00 lacs, the impugned order was passed.

Making a reference to Regulation 45 of the Regulations, it is submitted

that the Bank has the power to direct its delinquent employees to make

good the loss caused to the Bank on account of their negligence or

dereliction of duty. It is submitted that the petitioner had failed to obtain

the requisite documents before advancement of the loan. Lastly, it is

argued on behalf of the respondent Bank that the negligence and

dereliction of duty by the petitioner stands already established in the

disciplinary proceedings conducted by the respondent Bank which have

got approval from the Division Bench and it is, therefore, not within the

province of Single Bench to reopen the issue.

5) Having heard learned counsel for the parties and perused the

material on record, I am of the considered opinion that the respondent

Bank having provided an adequate opportunity of being heard to the

petitioner has passed the impugned order which is perfectly legal and

unexceptionable in the facts and circumstances of the case. It is not in

dispute that for various acts of omission and commission committed by

the petitioner during his tenure as Branch Manager at Branch Office Wailu

Kralpora, and Branch Office, Younis Wahipora, he was charge sheeted

vide reference No.Dis/09-36 dated 16.09.2009. A full-fledged

departmental enquiry into the charges was conducted in which the

petitioner was given ample opportunity to defend himself. The Enquiry

Officer, on the basis of material on record, held the petitioner guilty of all

the charges. The Chairman of the Bank i.e., disciplinary authority

considered the enquiry report along with connected documents and while

agreeing with the findings of the Enquiry Officer, put the petitioner on

show cause notice as to why he be not held responsible for the loss caused

to the Bank on account of his acts of omission and commission proved

during the course of enquiry. The petitioner submitted reply to the show

cause notice and denied the allegations. He was also afforded personal

hearing by the competent authority and ultimately the disciplinary

authority vide order dated 19th September, 2013, finalized the disciplinary

proceedings against the petitioner on the assurance given by the petitioner

that in the days to come, he would ensure that NPA accounts are

regularized and deficient RCs obtained to safeguard interests of the

petitioner. Accordingly, the disciplinary authority, instead of imposing

any penalty upon the petitioner, advised him to obtain RC in the loan case

of Mr. Mohammad Abdullah Mir and also regularize the defaulted

accounts as mentioned in the report of the enquiry. The Bank, however,

reserved its right to proceed against the petitioner should he fail to recover

the amount from the defaulted borrowers. It may be further pointed out

that when the petitioner failed to fulfil his commitment, the respondent

Bank withheld 20% of his retiral benefits. This brought the petitioner

before this Court by way of SWP No.20/2016, which was disposed of by

a Single Bench of this Court vide order dated 9 th June, 2016. A direction

was issued to the respondents to release 20% of the retiral benefits

withheld by them within a period of two weeks. The judgment came to be

passed in favour of the petitioner on the ground that disciplinary authority

at the time of finalization of the disciplinary proceedings had not imposed

any such penalty upon the petitioner. This judgment was assailed by the

respondent Bank before the Division Bench in LPASW No.151/2016,

which was disposed of vide judgment dated 24th October, 2016. The

Division Bench taking note of the fact that the disciplinary authority while

finalizing the disciplinary proceedings had specifically reserved right to

the Bank to proceed against the petitioner if he failed to recover the

amount from the defaulted borrowers, did not give its imprimatur to the

observations of the Writ Court. The petitioner had, however, taken

exception to the aforesaid observations of the disciplinary authority by

submitting that there was no amount determined by the respondents as

could be recovered from him on account of his alleged default in

recovering the loan amount from the defaulted borrowers.

6) As is seen from the order of the Division Bench, the counsel

appearing on behalf of the respondent Bank submitted that the amount

recoverable from the petitioner would be determined after extending an

opportunity of hearing to the petitioner. To the aforesaid submission of

the learned counsel for the respondent Bank, counsel for the petitioner

agreed. It is with the agreement of both the parties, the LPA was disposed

of by granting liberty to the Bank to determine the amount recoverable

from the petitioner as per law within a period of two weeks.

7) In compliance to the Division Bench Judgement, the respondent

Bank put the petitioner to notice and determined the amount recoverable

from him. The decision taken by the respondent Bank determining the

recovery to be made from the petitioner was placed before the Division

Bench hearing contempt No.12/2017. The petitioner took a stand in the

contempt petition that the order of recovery was passed by the respondent

Bank without giving the petitioner any opportunity of being heard. The

Division Bench disposed of the contempt petition No.12/2017 by

directing the respondent Bank to give an opportunity to the petitioner

regarding determination of amount recoverable from him and then pass

fresh appropriate orders. It is in pursuance of the directions passed by the

Division Bench while disposing of contempt petition, the matter was yet

again considered by the respondent Bank. The petitioner was given

another opportunity to show cause as to why the recoveries be not made

from him for his acts of omission and commission resulting into financial

loss to the Bank. The petitioner was also provided a personal hearing in

the matter. The competent authority of the Bank after considering the

stand of the petitioner passed the impugned order and directed that an

amount of Rs.2,93,318/ being 20% of his retiral benefits be appropriated

in equal proportion towards the loan accounts of Mr. M. Abdullah (B.O

Wailu Kralpora) and account of Mr. Nisar Ahmad Khan (B.O Younis

Wahipora).

8) Learned counsel for the petitioner wanted this Court to go into the

legal validity of the disciplinary proceedings on various grounds but I am

afraid, in the face of Division Bench judgment passed in LPASW

No.151/2016, it is no more open to this Court to reopen disciplinary

proceedings. The Division Bench has not only accepted the disciplinary

proceedings conducted by the respondent Bank against the petitioner and

its outcome but has also narrowed down the controversy to the extent of

giving liberty to the respondent Bank to determine the amount recoverable

from the petitioner after affording an opportunity of being heard to him.

9) From a perusal of the record, it is abundantly clear that the

respondents gave an ample opportunity to the petitioner to put forth his

stand. He was given personal hearing in the matter. It is only after taking

note of the entire material on record and having regard to the explanation

tendered by the petitioner, the impugned order was passed. This Court

cannot sit in appeal over the impugned order passed by the respondent

Bank which is nothing but an outcome of disciplinary proceedings

conducted against the petitioner.

10) During the course of arguments, learned counsel for the petitioner

submitted that so far as the loan account of Nisar Ahmad Khan is

concerned, the same has been adjusted fully, in that, said Nisar Ahmad

Khan has deposited the entire loan amount. If that be the position, the

amount of withheld retiral benefits which has been proportionately

appropriated towards the loan account of Nisar Ahmad Khan needs to be

released in favour of the petitioner. This is, however, subject to

verification by the respondent Bank.

11) For the foregoing reasons, I find no merit in this petition, the same

is, accordingly, dismissed. The respondent Bank shall, however, verify the

fact as to whether loan of Mr. Nisar Ahmad Khan has been fully adjusted

and if it is so adjusted, it shall pass appropriate orders for release of the

proportionate amount out of the withheld amount of the petitioner

appropriated towards the account of Nisar Ahmad Khan.

(Sanjeev Kumar) Judge

Srinagar 19.05.2023 "Bhat Altaf, PS"

                   Whether the order is speaking:     Yes/No
                   Whether the order is reportable:   Yes/No