Jharkhand High Court
Canara Bank vs Pravir Sharan on 30 January, 2023
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 27 of 2018
1. Canara Bank, Govt. of India under taking through its Managing Director
having its Head Office at 112 J.C. road Bangalore (Karnataka)-560002,
P.O. J.C. Road, P.S.-Silver Jubili Park.
2. Chairman-cum-Managing Director Canara Bank having its Head Office at
112 J.C. road Bangalore (Karnataka)-560002, P.O. J.C. Road, P.S.-Silver
Jubili Park.
3. Executive Director, Canara Bank its Head Office at 112 J.C. road
Bangalore (Karnataka)-560002, P.O. J.C. Road, P.S.-Silver Jubili Park.
4. General Manager, Canara Bank Personnel Wing, having its Head Office at
112 J.C. road Bangalore (Karnataka)-560002, P.O. J.C. Road, P.S.-Silver
Jubili Park.
5. Regional Manager, Canara Bank, Regional Office, Kadru By Pass Road,
Doranda, P.S. & P.S. Doranda, Dist.-Ranchi.
... ... Appellants/Respondents
Versus
Pravir Sharan, Son of Late Laxmi Kant Sharan, Resident of D-13,
Geetanjali Complex, Kadma P.O. and P.S. Kadma Town, Jamshedpur,
Dist.-East Singhbhum.
... ... Respondent/Petitioner
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
-------
For the Appellants : Mr. Pratyush Kumar, Advocate
For the Respondent : Mr. J.P. Jha, Sr. Advocate
Mr. Sunil Kumar Sinha, Advocate
----------------------------
CAV/Reserved on 19.01.2023 Pronounced/Delivered on 30.01.2023
Per Sujit Narayan Prasad, J.
1. This appeal under Clause 10 of the Letters Patent is directed against the
order/judgment dated 24.11.2017 passed by learned Single Judge of this
Court in W.P.(S) No. 999 of 2011, whereby and whereunder, the order of
punishment as contained in Annexure-4 dated 29.09.2007 passed by the
original authority; order of appellate authority as contained in Annexure-6
dated 09.04.2010 and; the order of reviewing authority as contained in
Annexure-10 dated 31.01.2011, have been quashed and set aside by
[2]
remitting the matter before the disciplinary authority for taking a decision
afresh on the quantum of punishment.
2. The brief facts as per the pleading which require to be enumerated herein
read as under:
It is the case of the writ petitioner that considering his past
service, he was given out of turn promotion and was posted at the new SSI
Branch of Canara Bank, Adityapur, Jamshedpur. He was given target and
was directed to take immediate steps to achieve the target vide letter as
contained in Ref. No. PRD/AFPS/76/2004-05 RNP dated 10.03.2005
issued by the Regional Office, under the signature of Assistant General
Manager. According to the writ petitioner, he has successfully achieved the
target given by the Regional Office in which the Management of Canara
Bank congratulated him as would be evident from the appreciation letter
issued by the Management.
It is the further case of the writ petitioner that a regular
inspection of Adityapur Branch was made and in the said inspection,
certain technical lapses were found and accordingly, the writ petitioner was
asked to explain and reply to the same which was submitted by the writ
petitioner vide his explanation dated 08.03.2006. The Management having
not been satisfied with the explanation had put the writ petitioner under
suspension and a chargesheet was issued to him vide chargesheet dated
03.05.2006. The writ petitioner has submitted his explanation to the
charges levelled against him but the disciplinary authority having not been
satisfied with the explanation has decided to initiate a departmental
proceeding. An enquiry officer was appointed and the writ petitioner has
[3]
fully participated in the departmental proceeding and placed his defence to
the charges levelled against him.
The enquiry officer, after considering the evidences and
documents, and other material on record found the writ petitioner not guilty
of most of the charges but found him guilty of committing technical fault in
sanctioning the loan to the borrowers in order to achieve the target given by
the Bank.
The disciplinary authority, after receipt of the copy of the
enquiry report, has issued second show cause notice which had been
responded by the writ petitioner. The said explanation having not been
found to be satisfactory, the order of punishment for compulsory retirement
in view of the provision under Regularion 4(h) of the Canara Bank Officer
Employee's (Discipline and Appeal) Regulation, 1976 has been passed on
29.09.2007.
The writ petitioner being aggrieved with the said order, has
challenged the same before this Court by filing writ petitioner being
W.P.(S) No. 3845 of 2008. The writ petitioner, however, during pendency
of the aforesaid writ petition has preferred departmental appeal and the co-
ordinate learned Single Judge of this Court while disposing of the aforesaid
writ petition on 12.11.2009 has directed the appellate authority to dispose
of the appeal within a period of four months from the date of presentation
of the order.
The appellate authority, in compliance of the aforesaid order, has
modified the order of punishment of compulsory retirement to the order of
reduction to a lower grade, i.e., MMG Scale-III to JMG Scale-I and basic
[4]
pay scale has been fixed at Rs. 18,240/- and further punishment has been
imposed by debarring him from promotion for a period of two years from
the date of order and interregnum period, i.e., from the date of compulsory
retirement, the date of joining shall not be reckoned for any purposes and
the period of suspension shall not be treated on duty. The order of the
appellate authority was communicated to the General Manager vide
reference letter dated 09.04.2010.
The writ petitioner, thereafter, has joined his service of the Bank
on 29.04.2010 and on the same date filed an application to reconsider the
order of reducing scale and also for considering the period of suspension
and the period of compulsory retirement to the date of reinstatement to be
treated as a regular service for the purpose of all service benefits. However,
no response was received and the writ petitioner again filed a writ petition
being W.P.(S) No. 999 of 2011 challenging the order by which he has been
reduced to lower grade, i.e., from MMG Scale-III to JMG Scale-I and
debarment from promotion for a period of two years.
Learned Single Judge after taking into consideration the ground
raised on behalf of the respondent-Bank has disposed of the writ petition by
quashing the order dated 29.09.2007; 09.04.2010 and; 31.01.2011 passed
by the original authority; appellate authority and; reviewing authority,
respectively and has remitted the matter to the disciplinary authority for
taking a decision afresh on the quantum of punishment, which is the
subject matter of the instant intra-court appeal.
3. Mr. Pratyush Kumar, learned counsel for the appellant-Bank has submitted
that the order passed by the learned Single Judge suffers from patent
illegality which according to him has been passed without taking into
[5]
consideration the limited scope of the High Court in exercising the power
of Article 226 of the Constitution of India to show interference in the
decision taken by the administrative authority in the departmental
proceeding.
It has been submitted by referring to the nature of allegation that
the allegation is serious in nature as would appear from the memorandum
of charge wherein several charges have been levelled, whereby and
whereunder it has been alleged about commission of irregularities in
sanctioning the loan. The nature of irregularity would be evident from the
imputation of charge wherein it has been alleged that the loans have been
sanctioned by way of granting cash credit facility but without ensuring
availability/delivery of machinery. The stocks available are not sufficient to
cover the liability so far as it relates to the loan sanctioned in favour of the
Indica Composite Private Limited and as such, irregularity has been
committed in sanctioning the loan pertaining to different consumers.
4. The writ petitioner has been asked to respond in defence to the allegation
imputed against him in the memorandum of charge and the enquiry officer
has found the charge proved so far as it relates to commission of
irregularity in sanctioning the loan without supported by the proper
documents. The report of the enquiry officer has been accepted by the
disciplinary authority and thereafter, after issuing the show cause notice the
order of punishment of compulsory retirement has been passed, however,
the said order was subsequently been recalled and the writ petitioner was
reinstated in service by imposing punishment of reduction to a lower grade,
i.e., from MMG Scale-III to JMG Scale-I as also debarment for promotion
for two years.
[6]
5. The contention has been raised that when the enquiry officer has found the
charge proved and there is no procedure lapses rather the writ petitioner
was given due opportunity in course of enquiry, as such, in that
circumstances, there was no occasion to interfere with the impugned order
as has been interfered by the learned Single Judge by passing the impugned
order.
Further contention has been raised that the learned Single Judge
while quashing the impugned order of punishment has remitted the matter
for taking a decision afresh on the quantum of punishment but the learned
Single Judge has not recorded any reason that how the order of punishment
has been considered to be disproportionate taking the nature of charge, as
such, the order impugned suffers from patent illegality and is not
sustainable in the eyes of law.
6. Mr. J.P. Jha, learned senior counsel for the writ petitioner-respondent has
taken the ground that the said irregularity has been committed by the writ
petitioner only for the purpose of achieving the target as per the
instructions of the higher authority and when the target was achieved, the
same was appreciated by the higher authority by issuing appreciation letter
and even then if the departmental proceeding has been initiated which
culminated into the order of punishment, the same cannot be said to be
justified.
7. We have heard the learned counsel for the parties, perused the documents
available on record as also the finding recorded by the learned Single Judge
in the impugned order.
[7]
8. The undisputed fact in this case is that the writ petitioner while working as
Senior Manager at SSI Branch, Adityapur, Jamshedpur has sanctioned the
loan with respect to borrowers and as per the allegation levelled in the
memorandum of charge the procedure has not been followed which ought
to have been followed prior to sanctioning the loan, i.e., partnership letter
which ought to have been signed by all the partners as per the guidelines of
the Bank, the same has not been found to be signed by all the partners.
Likewise, allegation has been levelled that while sanctioning the loan, there
is no proper documentation and even the collateral security has not been
kept. It has also been found that the collateral security has also been found
to be fake in some cases.
9. It is evident from the material available on record that some of the charges
have been found to be proved and some of the charges have not been found
to be proved, extract of which reads as under:
CHARGES PROVED PARTLY PROVED NOT PROVED
CHARGE I APPRAISAL PART.
(M/S NAG AUTO DOCUMENTATION
TESTING STATION) PART.
DISBURSEMENT
PART.
FOLLOW UP PART.
UNIT VISIT.
CHARGE II APPRAISAL PART. DOCUMENTATION
Except point 8. PART.
(M/S VIJAY FOOD
PRODUCTS) DISBURSEMENT FOLLOW UP PART.
PART.
UNIT VISIT.
CHARGE III DISBURSEMENT APPRAISAL PART. DOCUMENTATION
PART. PART.
(M/S INDICA
COMPOSITE PVT FOLLOW UP PART.
LTD)
UNIT VISIT.
[8]
CHARGE IV DISBURSEMENT APPRAISAL PART.
PART.
(M/S BANT DOCUMENTATION
ENTERPRISE) FOLLOW UP PART. PART.
UNIT VISIT.
CHARGE V UNIT VISIT. APPRAISAL PART.
(M/S MAHANAGAR DOCUMENTATION
FORGING & PART.
CASTINGS (P) LTD)
DISBURSEMENT
PART.
FOLLOW UP PART.
CHARGE VI 1.M/S AUTO 1. M/S SANJAY
THERMAL. KUMAR - CHARGE
WAS NOT
2. M/S KUMAR POLY PROCEEDED BY PO.
UDYOG.
2. M/S TURNO INDIA
3. M/S TIPL. PVT. LTD.
4. M/S PRAGATI 3. M/S INDUSTRIAL
UDYOG. ENTERPRISES.
5. M/S PERFECT 4. M/S SHIVANI
ELECTRICALS. STEEL.
6. M/S VIVEK BODY 5. M/S TURNING
BUILDING & POINT.
COMPANY.
6. M/S CLEAN-N-
7. M/S V K CHEM
CHEMICAL
INDUSTRIES.
8. M/S GAYATRI
UDYOG.
9. M/S PASARI
STEELS PVT, LTD.
10. M/S
ASSOCIATED
ENGINEERING
CONCERN.
11. M/S KING
MINERALS.
12. M/S SABERA
ENTERPRISES.
[9]
13. M/S P C
ENTERPRISES.
14. M/S RAJ AUTO &
ENGINEERING
INDUSTRY.
15. M/S SRI SAI
ENGINEERING &
MANUFACTURING
WORKS.
16. M/S BIKASH
INDUSTRIES.
CHARGE VII 1. M/S MAA AMBEY 1. M/S FABRIC 1. M/S N K PLASTICS.
BRICKS. INDIA.
2. M/S DURGA
2. M/S ALP COLOUR 2. M/S S.K.M ENTERPRISES.
LAB. MINERALS.
3. M/S ASHA
3. M/S JYOTI CERRO 3. M/S HUNDRU AUTOMOBILES.
RUBBER. MILK FOOD PVT.
LTD.
4. M/S R.C.SATI
ENTERPRISES. 4. M/S USHA
ENGINEERING
5. M/S RANI SATI WORKS.
PIPE INDUSTRY. 5. M/S PAWAN
AUTO.
6. M/S PRAKASH
SHELLAC FACTORY. 6. M/S JAI GURU
RICE MILL.
7. M/S KUMAR POLY
UDYOG
The enquiry officer has forwarded the report before the
disciplinary authority and the disciplinary authority on its acceptance has
issued second show cause notice. The writ petitioner has responded to the
same and on being found dis-satisfactory the order of punishment of
compulsory retirement was passed vide order dated 29.09.2007.
The writ petitioner challenged the aforesaid order by filing writ
petition being W.P.(S) No. 3845 of 2008 and while the same was pending,
an appeal was preferred and the writ petition was disposed of by directing
the appellate authority to decide the appeal within stipulated period.
[10]
The appellate authority decided the appeal by quashing the order
of compulsory retirement and converted it to the order of reduction by
reverting the writ petitioner from MMG Scale-III to JMG Scale-I as also
with a direction of debarring the writ petitioner from promotion for two
years.
10. The writ petitioner being aggrieved with the said order has filed review
petition before the appellate authority and simultaneously filed W.P.(S) No.
5293 of 2010 in which the learned Single Judge disposed of the writ
petition directing the reviewing authority to decide the review petition
within the stipulated period. In pursuance of the order passed by the
learned Single Judge, the review petition was rejected finding no reason to
interfere with the same. The writ petitioner being aggrieved with the
aforesaid orders, filed writ petition being W.P.(S) No. 999 of 2011 which
has been disposed of vide order dated 24.11.2017 quashing the order of
original authority, appellate authority as also the reviewing authority,
which is the subject matter of the instant intra-court appeal.
11. The issue of jurisdiction of the High Court is the primary objection which
has been raised on behalf of the appellant-Bank. It has been contended that
the scope of High Court to exercise the power conferred under Article 226
of the Constitution of India is very limited so far the power of judicial
review is concerned.
While on the other hand, the learned counsel for the writ
petitioner has contended that it is a case in such a nature where interference
is required by the High Court in exercise of power of judicial review and
considering the facts of the case, if the learned Single Judge has quashed
the impugned orders remitting the matter before the authority for taking
[11]
decision afresh on the quantum of punishment, the same cannot be said to
be suffer from error.
12. This Court, before appreciating the aforesaid argument, deems it fit and
proper to refer the judicial pronouncement of showing interference by the
High Court in exercise of power conferred under Article 226 of the
Constitution of India in the matter of order passed by the administrative
authority in the disciplinary authority. Reference in this regard be made to
the judgment rendered by the Hon'ble Apex Court in Union of India Vs. P.
Gunasekaran, AIR 2015 SC 545, in particular to paragraph 13, laying
down following guidelines which are self explanatory:
"13. Despite the well-settled position, it is painfully disturbing to note that
the High Court has acted as an appellate authority in the disciplinary
proceedings, re-appreciating even the evidence before the enquiry officer.
The finding on Charge No. 1 was accepted by the disciplinary authority
and was also endorsed by the Central Administrative Tribunal. In
disciplinary proceedings, the High Court is not and cannot act as a second
court of first appeal. The High Court, in exercise of its powers under
Article 226/227 of the Constitution of India, shall not venture into
reappreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that
behalf;
c. there is violation of the principles of natural justice in conducting the
proceedings;
d. the authorities have disabled themselves from reaching a fair
conclusion by some considerations extraneous to the evidence and
merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant
or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and
capricious that no reasonable person could ever have arrived at such
conclusion;
g. the disciplinary authority had erroneously failed to admit the
admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible
evidence which influenced the finding;
i. the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High Court shall
not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has
been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
[12]
(v) interfere, if there be some legal evidence on which findings can be
based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its
conscience."
The Hon'ble Apex Court in Management of State Bank of
India vs. Smita Sharad Deshmukh and Anr., (2017) 4 SCC 75, has laid
down that it is equally settled position of law that the High Court sitting
under Article 226 of the Constitution of India can certainly interfere with
the quantum of punishment, if it is found disproportionate to the gravity of
offence.
The Hon'ble Apex Court in Central Industrial Security Force
and Ors. vs. Abrar Ali, AIR (2017) SC 200, has laid down following
guidelines at paragraph 8 for interference by the High Court in the matter
of punishment imposed on conclusion of the departmental proceeding,
which is quoted herein below:
"8.Contrary to findings of the Disciplinary Authority, the High Court
accepted the version of the Respondent that he fell ill and was being
treated by a local doctor without assigning any reasons. It was held by the
Disciplinary Authority that the Unit had better medical facilities which
could have been availed by the Respondent if he was really suffering from
illness. It was further held that the delinquent did not produce any
evidence of treatment by a local doctor. The High Court should not have
entered into the arena of facts which tantamounts to reappreciation of
evidence. It is settled law that re-appreciation of evidence is not
permissible in the exercise of jurisdiction under Article 226 of the
Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand
Nalwaiya, reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6),
this Court held as follows:
"7. It is now well settled that the courts will not act as an appellate court
and reassess the evidence led in the domestic inquiry, nor interfere on the
ground that another view is possible on the material on record. If the
inquiry has been fairly and properly held and the findings are based on
evidence, the question of adequacy of the evidence or the reliable nature of
the evidence will not be grounds for interfering with the findings in
departmental enquiries. Therefore, courts will not interfere with findings
of fact recorded in departmental enquiries, except where such findings are
based on no evidence or where they are clearly perverse. The test to find
out perversity is to see whether a tribunal acting reasonably could have
arrived at such conclusion or finding, on the material on record. The
courts will however interfere with the findings in disciplinary matters, if
principles of natural justice or statutory regulations have been violated or
if the order is found to be arbitrary, capricious, mala fide or based on
extraneous considerations.
[13]
In Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC
610 this Court held as follows:
"12. Despite the well-settled position, it is painfully disturbing to note that the
High Court has acted as an appellate authority in the disciplinary proceedings,
reappreciating even the evidence before the inquiry officer. The finding on
Charge I was accepted by the disciplinary authority and was also endorsed by
the Central Administrative Tribunal. In disciplinary proceedings, the High
Court is not and cannot act as a second court of first appeal. The High Court, in
exercise of its powers under Article 226/227 of the Constitution of India, shall
not venture into re-appreciation of the evidence. The High Court can only see
whether:
(a) the inquiry is held by a competent authority;
(b) the inquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the
proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by
some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or
extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious
that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible
and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence
which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the inquiry, in case the same has been
conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
It is equally settled that in the departmental proceeding, the
opportunity of hearing is required to be provided to the delinquent
employee and if no such opportunity has been provided, certainly, the order
of punishment will stand vitiated.
13. It is evident that the guidelines have been formulated by the Hon'ble Apex
Court as referred hereinabove, whereby and whereunder, the High Court is
to exercise the power of judicial review in showing interference with the
order passed on conclusion of departmental proceeding only on following
grounds, i.e.,
[14]
a. the enquiry is held according to the procedure prescribed in that behalf;
b. there is violation of the principles of natural justice in conducting the
proceedings;
c. the authorities have disabled themselves from reaching a fair conclusion
by some considerations extraneous to the evidence and merits of the
case;
d. the authorities have allowed themselves to be influenced by irrelevant or
extraneous considerations;
e. the conclusion, on the very face of it, is so wholly arbitrary and
capricious that no reasonable person could ever have arrived at such
conclusion;
f. the disciplinary authority had erroneously failed to admit the admissible
and material evidence;
g. the disciplinary authority had erroneously admitted inadmissible
evidence which influenced the finding;
h. the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High
Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been
conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be
based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its
conscience."
14. It is, thus, evident that the Hon'ble Apex Court has formulated the
guidelines, as such, the power of judicial review is only to be exercised
showing interference with the order passed in departmental proceeding by
the administrative authority only if such ground is available otherwise not.
15. One of the guideline is that interference can also be shown in exercise of
power of judicial review if the order is found to be disproportionate to the
[15]
charges levelled against the delinquent employee as has been held by the
Hon'ble Apex Court in Union of India Vs. P. Gunasekaran (supra);
Management of State Bank of India vs. Smita Sharad Deshmukh and
Anr. (supra); Central Industrial Security Force and Ors. vs. Abrar Ali
(supra).
16. It also requires to refer herein that while interfering with the order of
punishment on the ground of quantum, the same can only be passed if the
conscience of the court shocks and in that circumstances, the requirement
of law is that the court is to assign the reason that what led the court to
come to the conclusion that how the conscience of the court is shocked
holding the order to be disproportionate. Reference in this regard be made
to the judgment rendered by the Hon'ble Apex Court in Dev Singh vs.
Punjab Tourism Development Corporation and Anr., (2003) 8 SCC 9,
paragraph-6 of the said judgment reads as under:
"6. A perusal of the above judgments clearly shows that a court sitting in
appeal against a punishment imposed in the disciplinary proceedings will
not normally substitute its own conclusion on penalty, however, if the
punishment imposed by the disciplinary authority or the appellate authority
shocks the conscience of the court, then the court would appropriately
mould the relief either by directing the disciplinary/appropriate authority to
reconsider the penalty imposed or to shorten the litigation it may make an
exception in rare cases and impose appropriate punishment with cogent
reasons in support thereof. It is also clear from the abovenoted judgments of
this Court, if the punishment imposed by the disciplinary authority is totally
disproportionate to the misconduct proved against the delinquent officer,
then the court would interfere in such a case."
17. This Court has proceeded to examine the legality and propriety of the order
passed by the learned Single Judge on the basis of the position of law as
has been referred hereinabove as settled by the Hon'ble Apex Court. The
fact which is not in dispute, as per the material available on record, is that
the writ petitioner while working as Scale-III Manager under the appellant-
Bank was having with the power to sanction the loans and he in order to
achieve the target, as per the instructions of the higher authority of the
[16]
Bank, has committed some irregularity as has been admitted by the learned
senior counsel appearing on behalf of the writ petitioner in this proceeding.
18. The Bank has conducted internal audit based upon the irregularities
committed by the writ petitioner and the disciplinary authority on
consideration of the finding of the audit has sought for explanation from
the writ petitioner but the explanation furnished by the writ petitioner was
found to be not satisfactory, therefore, the respondent-Bank has decided to
initiate a departmental proceeding by appointing an enquiry officer.
The writ petitioner has defended himself at length against the
charges but some of the charges have been found to be proved and some of
the charges have not been found to be proved as would be evident from the
extract of the charges quoted and referred above in the form of tabular
chart.
19. This Court has considered the nature of charges which has been found to be
proved by the enquiry officer and has found therefrom that the charges
pertains to commission of not observing the procedure laid down prior to
sanctioning the loan by not protecting the account by the proper
documentation and the adequate collateral security and in some cases even
the collateral security has been found to be fake.
It is also evident from the charges have been proved wherein it
has come that the writ petitioner has exceeded his jurisdiction in
sanctioning the loans.
20. This Court on the basis of the proved charge and considering its nature, is
required to consider as to whether in the facts and circumstances of the
case, there is any procedural lapses in course of conducting the
[17]
departmental proceeding as also the interference shown by the High Court
in exercise of power of judicial review under Article 226 of the
Constitution of India is justified by remitting it before the authority
concerned to take a fresh decision on the point of quantum of punishment.
21. So far as the interference shown with the impugned order is concerned, it is
not a case of the writ petitioner that he has not been provided with adequate
opportunity of hearing in course of enquiry, as such, there is no allegation
of non-observance of cardinal principle of natural justice rather he has been
provided with full opportunity to defend himself.
22. It is required to refer herein as per the material available on record that the
writ petitioner while working in the capacity of Scale-III Manager, is
required to follow such regulation while sanctioning the loan, i.e., proper
documentation and the loan is to be protected by adequate collateral
security. The sanctioning authority of the Bank is required to verify the
documents pertaining to collateral security even by visiting the site so as to
verify the genuineness of the property sought to be kept for the collateral
security.
23. It is evident from the charge that such accountability has not been verified
by the writ petitioner, therefore, the reply has not been found to be
satisfactory submitted by the writ petitioner to that effect which led the
enquiry officer to prove the charge.
24. It also requires to be refer herein that the writ petitioner, who is working in
the Bank, are dealing with public money and are required to discharge their
duty with more accountability and the accountability which he holds is
having more in comparison to the employees who are working in the civil
[18]
side, therefore, while dealing with the conduct of the irregularity in a
disciplinary proceeding utmost care is to be given as has been held by the
Hon'ble Apex Court in Chairman and Managing Director, United
Commercial Bank & Ors. Vs. P.C. Kakkar, (2003) 4 SCC 364, paragraph-
14 of the said judgment reads hereunder as:
"14. A bank officer is required to exercise higher standards of honesty and
integrity. He deals with the money of the depositors and the customers.
Every officer/employee of the bank is required to take all possible steps to
protect the interests of the bank and to discharge his duties with utmost
integrity, honesty, devotion and diligence and to do nothing which is
unbecoming of a bank officer. Good conduct and discipline are inseparable
from the functioning of every officer/employee of the bank. As was observed
by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja
Bihari Patnaik [(1996) 9 SCC 69 : 1996 SCC (L&S) 1194] it is no defence
available to say that there was no loss or profit resulted in case, when the
officer/employee acted without authority. The very discipline of an
organization more particularly a bank is dependent upon each of its officers
and officers acting and operating within their allotted sphere. Acting
beyond one's authority is by itself a breach of discipline and is a
misconduct. The charges against the employee were not casual in nature
and were serious. These aspects do not appear to have been kept in view by
the High Court."
It is evident from the aforesaid judgment as referred hereinabove
that while dealing with the conduct of the employees/officers working in
the bank it is required to take all possible steps to protect the interests of
the bank and to discharge his duties with utmost integrity, honesty,
devotion and diligence and to do nothing which is unbecoming of a bank
officer. Good conduct and discipline are inseparable from the functioning
of every officer/employee of the bank.
25. This Court, therefore, is of the view on the basis of material available on
record and as per the discussion made hereinabove that the case of the writ
petitioner is coming under the fold of guidelines as has been formulated by
the Hon'ble Apex Court in Union of India Vs. P. Gunasekaran (supra);
Management of State Bank of India vs. Smita Sharad Deshmukh and
Anr. (supra); Central Industrial Security Force and Ors. vs. Abrar Ali
(supra), therefore, the interference shown by the learned Single Judge with
[19]
the impugned orders, according to the considered view of this Court,
cannot be said to suffer from propriety.
Further, the learned Single Judge after quashing the impugned
orders has remitted the matter before the authority for taking a decision
afresh on the point of quantum of punishment. The principle of law is well
settled as has been settled by the Hon'ble Apex Court in Dev Singh vs.
Punjab Tourism Development Corporation and Anr. (supra) that the
Court is required to assign the reason of shocking the conscience.
26. The learned Single Judge while relegating the matter before the
disciplinary authority has given a finding that the order of compulsory
retirement is excessive as also the order of reversion. The relevant part of
the impugned order/judgment reads as under:
"...
There is no charge of misappropriation framed against the petitioner
and, therefore, findings recorded by the disciplinary authority that
punishment of compulsory retirement is unwarranted in the case, is
erroneous and, therefore, interference is required. Even in the present case,
admittedly though some charges were proved, many of the charges were not
proved and as such, even in the proved charge of misconduct, the penalty of
compulsory retirement is excessive and disproportionate and even the
consequent modification is excessive and disproportionate."
The question arises that when the order of compulsory retirement
has already been reversed by the appellate authority then where is the
requirement by the learned Single Judge to give its finding regarding the
proportion of the order of punishment of compulsory retirement. The
learned Single Judge has also given finding holding the punishment
reversion to be excessive but without assigning any reason as to what lead
the learned Single Judge shocking the conscience holding the order of
punishment of reversion to be excessive.
27. This Court considering the observation as has been made by the Hon'ble
Apex Court in the aforesaid judgments and after taking into consideration
[20]
the nature of allegation found to be proved by the enquiry officer, is of the
view that the writ petitioner being working as a Branch Head of the
concerned Branch is required to discharge his duty with good conduct and
discipline. Good conduct and discipline always means that the decision is
to be taken strictly in accordance with the rules/regulations and the
guidelines, more particularly, for the purpose of sanctioning of the loans. If
the loan will not be sanctioned strictly in accordance with the guidelines
applicable, there will be adverse consequence of non-recovery of the
sanctioned amount by way of loan. The purpose of framing guidelines is to
secure the public money in case of account having been found to be Non-
Performing Asset (NPA) by liquidating the collateral security, therefore,
guidelines speaks that there must be proper documentation in support of the
loan which is to be sanctioned so that in case of account having been found
to be under the category of NPA, the public money may be secured by
liquidating the property which has been kept by way of collateral security
but here, in the instant case, as has been found by the enquiry officer that
the writ petitioner has failed to discharge his duty while sanctioning the
loan and in complete deviation to the guidelines formulated by the Bank,
therefore, the same cannot be considered to be good conduct of the writ
petitioner and discharge of duty with utmost discipline.
28. The position of law is well settled that a thing is to be done strictly in
accordance with law and there cannot be any deviation otherwise there will
be no meaning of any rules and regulation as has been held by the Hon'ble
Apex Court in State of Uttar Pradesh vs. Singhara Singh and Ors.,
reported in AIR (1964) SC 358, wherein it has been held at paragraph 8 as
under:
[21]
"....its result is that if a statute has conferred a power to do an act and has
laid down the method in which that power has to be exercised, it necessarily
prohibits the doing of the act in any other manner than that which has been
prescribed. The principle behind the rule is that if this were not so, the
statutory provision might as well not have been enacted...."
Reference has also made to the judgment rendered by the
Hon'ble Apex Court in Babu Verghese and Ors. vs. Bar Council of Kerala
and Ors., reported in (1999) 3 SCC 422, wherein it has been held at
paragraphs 31 & 32 as under:
"31. It is the basic principle of law long settled that if the manner of doing a
particular act is prescribed under any statute, the act must be done in that
manner or not at all. The origin of this rule is traceable to the decision in
Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King
Emperor who stated as under: "[W]here 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."
32. This rule has since been approved by this Court in Rao Shiv Bahadur
Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These
cases were considered by a three-judge bench of this Court in State of U.P. v.
Singhara Singh and the rule laid down in Nazir Ahmad case was again
upheld. This rule has since been applied to the exercise of jurisdiction by
courts and has also been recognized as a statutory principle of
administrative law."
Reference to the judgment rendered by the Hon'ble Apex Court
also needs to be made in Commissioner of Income Tax, Mumbai vs.
Anjum M.H. Ghaswala & Ors., reported in (2002) 1 SCC 633, wherein it
has been held at paragraph 27 as under:
"..... it is a normal rule of consideration that when a statute vests certain
power in an authority to be exercised in a particular manner then the said
authority has to exercise it only in the manner provided in the statute
itself...."
Reference is also made to the judgment rendered by the Hon'ble
Apex Court in State of Jharkhand & Ors. vs. Ambay Cements & Anr.,
reported in (2005) 1 SCC 368, wherein it has been held at paragraph 26 as
under:
"....it is the cardinal rule of interpretation that where a statute provides that
a particular thing should be done, it should be done in the manner prescribed
[22]
and not in any other way. It is also settled rule of interpretation that where a
statute is penal in character, it must be strictly construed and followed....."
Reference is also made to the judgment rendered by the Hon'ble
Apex Court in Zuari Cement Ltd. vs. Regional Director ESIC Hyderabad
& Ors. (in Civil Appeal No.5138-40/2007), reported in (2015) 7 SCC 690,
wherein it has been held at paragraph 14 as under:
"14. As per the scheme of the Act, the appropriate Government alone could
grant or refuse exemption. When the statute prescribed the procedure for
grant or refusal of exemption from the operation of the Act, it is to be done in
that manner and not in any other manner. In State of Jharkhand v. Ambay
Cements, it was held that: (SCC p. 378, para 26)
26.... it is the cardinal rule of interpretation that where a statute provides
that a particular thing should be done, it should be done in the manner
prescribed and not in any other way."
Thus, it is, evident that the Hon'ble Apex Court has propounded
the law that if a thing is to be done as required to be done under the
statutory mandate, the same is to be done strictly in accordance with the
same, meaning thereby, there cannot be any deviation from the statutory
mandate.
29. It is equally settled that acting contrary to the guidelines formulated by the
Bank will be said to be acting beyond the authority which itself is a breach
of discipline and is a misconduct as the case herein is, where, the writ
petitioner as per the charge proved has acted beyond its authority since the
guidelines formulated for the purpose of sanctioning the loan has not been
followed by the writ petitioner.
30. This Court, after taking into consideration the aforesaid aspect of the matter
and considering the fact that the appellate authority has already taken a
lenient view by reversing the order of punishment of compulsory
retirement to that of reversion, as such, the same requires no interference
[23]
by this Court by taking into consideration the guidelines laid down by the
Hon'ble Apex Court in Union of India Vs. P. Gunasekaran (supra);
Management of State Bank of India vs. Smita Sharad Deshmukh and
Anr. (supra); Central Industrial Security Force and Ors. vs. Abrar Ali
(supra).
Since the case of the writ petitioner is not falling under the
categories as carved out by the Hon'ble Apex Court in the judgment
referred above, hence, it is not a case where the interference is to be shown
by the High Court in exercise of power of judicial review sitting under
Article 226 of the Constitution of India.
31. The learned Single Judge has failed to appreciate these aspects of the
matter while passing the order as has been referred hereinabove.
32. This Court, in the entirety of the facts and circumstances of the case, is of
the view that the order passed by the learned Single Judge cannot be said to
be sustainable in the eyes of law, as such, the instant appeal deserves to be
allowed.
33. Accordingly, the instant appeal is allowed.
34. In consequence thereof, the writ petition being W.P.(S) No. 999 of 2011
stands dismissed.
35. Pending interlocutory application(s), if any, also stands disposed of.
I agree (Sujit Narayan Prasad, J.)
(Subhash Chand, J.) (Subhash Chand, J.)
Saurabh /A.F.R.
