Orissa High Court

Nimain Charan Raj vs Odisha Gramya Bank on 14 November, 2024

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                   W.P.(C) No.773 of 2006

  (In the matter of an application Under Articles 226 & 227
  of the Constitution of India)

   Nimain Charan Raj                     ....      Petitioner
                      -versus-
   Odisha Gramya Bank,                   ....       Opposite
   Bhubaneswar and others                          Parties


   For Petitioner      :    Mr. S.K. Samantaray, Advocate

   For Opposite        : Mr. D.K. Panda, Advocate
   Parties


       CORAM:
                   JUSTICE G. SATAPATHY

    DATE OF HEARING & JUDGMENT:14.11.2024(ORAL)

G. Satapathy, J.

1. This writ petition under Articles 226 & 227 of

the Constitution of India by the Petitioner, an employee of

erstwhile Cuttack Gramya Bank is directed against the

penalty of dismissal from service as imposed on him in

Departmental Proceeding under Annexure-1 and

confirmed by the Appellate Authority under Annexure-2.

By Annexure-1, the Chairman-cum-Disciplinary

Authority on proof of charge against the Petitioner has

imposed the penalty of dismissal from service and

lowering his pay to initial basic pay in conformity with

Regulation 38(I)(b)(v) and Regulation 38(I)(b)(ii) of

Cuttack Gramya Bank(Officers and Employees) Service

Regulations, 2001 (in short the "Service Regulation"). The

aforesaid penalty was confirmed by the appellate

Authority-cum-Chairman Appellate Board under

Annexure-2.

2. The facts in precise are the Petitioner who was

an Officer of the Cuttack Gramya Bank joined the service

as Manager of Patilo Branch at the relevant time when he

was suspended by the Chairman by an order dated

22.10.2003 under Regulation 45 of the Service

Regulation. Accordingly, on 12.01.2004, a charge sheet

was served on the Petitioner containing three charges and

the Petitioner was asked to submit his show cause. In

response to the show cause, the Petitioner filed his show

cause, but being dissatisfied, an Enquiry Officer was

appointed and the Departmental Proceeding commenced

against the Petitioner which culminated in submission of

the enquiry report in which the Petitioner was found

guilty of the three charges served on him and thereafter,

a second show cause was issued to him, to which the

Delinquent-Petitioner gave his reply. However, being

dissatisfied with reply to the second show cause, the

authority concerned i.e. Chairman and Disciplinary

Authority by Annexure-1 imposed the penalty of dismissal

of the Petitioner from service on proof of charge Nos. 1

and 2 and also imposed the penalty of lowering his pay to

initial basic pay scale on proof of charge No.3.

2.1 Against the aforesaid penalty, the Petitioner

thereafter preferred an appeal before the Appellate

Authority which came to be dismissed under Annexure-2.

In this situation, the Petitioner finding no way out

approached this Court in the writ petition by pleading

inter-alia that his dismissal of service is illegal, arbitrary,

unsustainable and against weight of the evidence and

thereby liable to be interfered with.

3. In the course of hearing, Mr. S.K. Samantaray,

learned counsel for the Petitioner submits that the

charges brought against the Petitioner even if considered

to have been proved does not cause loss to the Bank and

thereby, the punishment of the Petitioner from dismissal

of service is not only shockingly disproportionate, but also

unsustainable and excessive. He further submits that

although the Petitioner has been charged for sanctioning

loan to him and some relatives, but no loss has been

sustained by the Bank because all the loan account has

been closed properly with recovery of the loan amount,

however, the disciplinary authority ignoring these facts

and the past good conduct of the Petitioner has imposed

the penalty of dismissal of service on him which is not

only shockingly disproportionate, but also not

commensurate to the gravity of charge as established

against him. Mr. Samantaray, further submits that so far

the charge leveled against the Petitioner has not been

proved in the standard of proof of preponderance of

probability and although, the Petitioner is found to be

innocent, he was illegally punished in Departmental

Proceeding and the Petitioner is right now jobless since

2004 without any further employment causing serious

hardships to him and his family members. Mr.

Samantaray, under aforesaid submissions prays to allow

the writ petition by at least interfering with the penalty so

that the Petitioner can avail the financial benefit for the

past service rendered by him to survive in the present

days' cost of living.

4. On the other hand, Mr. Dinesh Panda, learned

counsel appearing on behalf of the Bank vehemently

submits that not only the charge against the Petitioner

has been well established, but also the penalty is

commensurate to the delinquency of the Petitioner. He

further submits that the conduct of the Petitioner is such

that it has lost the trust and confidence of the Bank as

well as the trust of the People because the customers of

the Bank are the sufferer for the misconduct committed

by the Petitioner which itself has direct bearing on the

business of the Bank and, therefore, the punishment

should not be interfered with lightly. Mr. Panda further

submits that in a writ petition against the order passed in

Departmental Proceeding, the writ Court should not

appreciate the evidence and cannot substitute its own

finding by resorting to appreciation of evidence. In order

to buttress his submission, Mr. Panda relies upon the

decision in Union of India and others v. P.

Gunasekaran; AIR (2015) SC 545. On the aforesaid

submissions, Mr. Panda, accordingly, prays to dismiss the

writ petition.

5. After having bestowed an anxious and careful

consideration to the rival submission upon perusal of the

record, it appears that the Petitioner has been served

with a charge sheet with following three charges under

Annexure- 11:-

"1. As mentioned in Allegation No.1 Sri Raj with a malafide intention of acquiring a Car for himself by utilizing the Government subsidy and in exercise of his delegated authority otherwise, has sanctioned and disbursed a loan of Rs.3,13,000/- (Rupees three lakh thirteen thousand only) under IRDP Group Finance Scheme. The ulterior motive and evil design of Sri Raj are further manifested from the power of attorney he got executed by the partners in favour of his wife Smt. Sunanda Raj to manage the Car at Jagatsinghpur. Shri Raj thus taking advantage of innocence and ignorance of the poor IRDP beneficiaries of the group deprived them of the benefit of subsidy linked loan scheme and acted against the policy of the Government, by debarring the beneficiaries from their economic upliftment for his personal gain. Sri Raj has tarnished the image of the bank and also exposed the bank to serious legal complicacies in future which is unbecoming of an Officer employee of the bank.

Hence, Sri Raj did not discharge his duties honestly and faithfully and thereby committed breach of Regulations 17 & 19 of Cuttack Gramya Bank Officers and Employees Service Regulation 2000.

2. Sri Raj has sanctioned loans in favour of close friends/relatives of the staff members of the bank as mentioned in allegation No.2 without obtaining permission from

Competent Authorities. Thus he violated the rules of the bank and acted otherwise in performing his official duties which is violative of Regulations 17 and 19 of Cuttack Gramya Bank Officers and Employees Service Regulation 2000.

3. Shri Raj has sanctioned and disbursed multiple loans to particular borrowers/family without proper appraisal and without ascertaining the credit worthiness of the borrowers as mentioned in Allegation No.3 as a result of which the accounts have become NPA and the bank suffered huge financial loss. Thus Sri Raj failed to discharge his duties with utmost honesty, integrity, devotion and diligence which violated Regulations 17 and 19 of Cuttack Gramya Bank Officers and Employees Service Regulation 2000."

6. A perusal of the enquiry report on the face of

the imputation of the charges, it appears that the enquiry

report does not call for any interference in view of the

fact that the charge has been established against the

Petitioner since the documents proved in the

Departmental enquiry clearly go to show that the

Delinquent-Petitioner had sanctioned loan to him and his

relatives in violation of the statutory rules of the Bank

and the Petitioner has been rightly found guilty in the

Departmental Proceeding. Further, this Court reminds

itself to the principle settled by the Apex Court in P.

Gunasekaran (supra), wherein the Apex Court at

paragraph-13 has laid down the scope of the High Court

in interfering in the Departmental Proceeding on following

grounds:-

"13. Xx xx xx. 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 Articles 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 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;

(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."

7. True it is that the scope of judicial review

against an order of departmental proceeding is very

limited and a well accepted proposition. The High Court in

exercise of power Under Articles 226 & 227 of the

Constitution of India cannot re-appreciate the evidence to

substitute its own view, unless the findings arrived at in

the Departmental Proceeding is without any evidence or

no evidence or the finding is so palpably erroneous in

which no prudent man can accept such finding. The

situation in this case is not like this because the Enquiring

Officer has recorded the reasoning while finding the

Petitioner guilty of the charges which was subsequently

scrutinized and confirmed by the Disciplinary Authority

while imposing the punishment. Further, the findings in

the domestic enquiry and penalty on the Petitioner have

also been assailed in appeal in which such penalty and

findings have been confirmed and therefore, this Court

has very little scope to interfere with such finding.

8. It is trite law that the Court in exercise of power

of judicial review can interfere with the penalty imposed

against the delinquent employee, if the same is

shockingly disproportionate and shakes the conscience of

the Court. In examining the penalty imposed against the

Petitioner, it can be said that the Bank has not suffered

any loss because the loan amount has been recovered as

found from the record. It is also not in dispute that in

sanctioning the loan in violation of the Bank guidelines

definitely makes the the Petitioner to lose the faith and

confidence of the Bank, so also its trust. It is also equally

important that the authority of the Bank has to discharge

his duty with utmost honesty, integrity, dedication and

devotion because not only the faith of general people rest

on the Bank, but also their trust remains with it. Once the

Bank loses the trust and faith of the general public, it

would lose its business as well as identity so also its face

before the Public. At the same time, it is to be considered

as to how a person, who has family members, would

survive in case his service is taken away suddenly by way

of dismissing from service inasmuch as, in that situation,

the delinquent employee would be nowhere and the

consequence that would be fall on him on sudden losing

he job would be unimaginable. The plight of the

delinquent employee has to be considered in the

aforesaid backdrop the trust and confidence of the Bank.

9. In this case, it is admitted fact that the Bank

has not sustained any loss, of course, the conduct of the

delinquent Petitioner was not appreciable, much less un-

acceptable, however, taking into account his past service

record in which the Petitioner has not been stated to have

any adverse report against him in conducting the

business of the Bank and considering the charges in the

aforesaid circumstance together with the penalty that has

been imposed against the delinquent employee and

further the fact that the delinquent employee is without

any job, since the date of his dismissal from service in the

year 2004, it would be just and proper that the

punishment of "dismissal from service" be converted to

"compulsory retirement" inasmuch as in that event, the

Petitioner may receive some financial benefit for the past