Calcutta High Court (Appellete Side)
Tanumoy Basu vs The United Bank Of India & Ors on 29 September, 2014
Author: Samapti Chatterjee
Bench: Pranab Kumar Chattopadhyay, Samapti Chatterjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Samapti Chatterjee
A.S.T. No.202 of 2014
With
A.S.T.A No.147 of 2014
Tanumoy Basu
Versus
The United Bank of India & Ors
And
A.S.T. No.217 of 2014
With
A.S.T.A. No.189 of 2014
United Bank of India & Ors
Versus
Tanumoy Basu.
For the Appellant in A.S.T. No.217 of 2014 : Mr. Subir Sanyal
Ms. Sumouli Sarkar
For the Respondent No.1 : Mr. Debabrata Saha Roy
Mr. Indranath Mitra
Mr. Pingal Bhattacharyya
For the Appellant in A.S.T. No. 202 of 2014 : Mr. Debabrata Saha Roy
Mr. Indranath Mitra
Mr. Pingal Bhattacharyya
For the Respondent Bank : Mr. Subir Sanyal
Ms. Sumouli Sarkar
Heard On : 01.08.2014.
Judgment on : 29.09.2014.
Samapti Chatterjee, J.
The appeal being No. A.S.T No. 202 of 2014 preferred by the writ petitioner (hereinafter referred to as "appellant/writ petitioner") and the appeal being No. A.S.T. No.217 of 2014 preferred by the United Bank of India and the connected applications were heard analogously as both the appeals arise out of the same judgment and order passed by a learned Judge of this Court on 30th April 2014.
The appellant/writ petitioner was an officer of the United Bank of India (hereinafter referred to as "UBI"). He is a renowned footballer and was appointed in the said Bank for his achievement in the field of football as a football player. The appellant/writ petitioner was placed under suspension with immediate effect pending departmental inquiry and its final decision, in terms of Regulation 12 (1) (a) of the United Bank of India Officer Employees' (Discipline & Appeal) Regulation, 1976 (hereinafter referred to as the Disciplinary and Appellate Regulation 1976) by the office order dated 30th June, 2004 issued by the Deputy General Manager (Personnel) & competent authority.
On 23rd November, 2004 charge-sheet was issued to the appellant/writ petitioner under Regulation 6 of the Disciplinary and Appeal Regulation 1976 asking the said appellant/writ petitioner to submit his written statement of defense, if any, within 10 days from the date of receipt of the said charge-sheet. The articles of charge made against the appellant/writ petitioner are as follows:
During the tenure of your service as officer at Security Department, Head Office of the Bank from 29.01.2003 to 07.06.2004, you had failed to take all possible steps to ensure and protect the interest of the Bank and discharge your duties with utmost integrity, honesty, devotion and diligence and acted in contravention of Regulation 3(1) read with Regulation 24 of United Bank of India Officer Employees' (Conduct) Regulations 1976 and in that you had misappropriated an amount aggregating Rs.3,85,642/- by way of short deposit of Road Tax against Bank's vehicles to the tune of Rs.1,60,762/- on 26 occasions as per Annexure-I and by way of non-
deposition of Rs.2,24,880/- on 27 occasions as per Annexure-II against the withdrawals made by you for renewal of Tax Tokens. You had also utilized the amount withdrawn but deposited at a late date as per Annexure-VI for your personal gain and purposes. By your above acts of misappropriation of funds and manipulation of records the Bank has been exposed to financial loss to the tune of Rs.1,44,972/- plus applicable upto date interest thereon and the amount of interest on Rs.2,40,670/- (recovered from you) for the period the Bank was out of fund.
The appellant/writ petitioner on 7th December 2014 submitted his written reply against the charge-sheet stating inter alia that due to his total involvement with football, he had very little knowledge in respect of the works of the bank as a result whereof certain irregularities might have occurred which were beyond his control and for that reason he expressed his regrets. The appellant/writ petitioner further submitted that alleged lapses, if any, were unintentional, and due to lack of knowledge in banking activities. The appellant/writ petitioner prayed for condonation of the unintentional lapses, if any, done by him. Being dissatisfied with the aforesaid written submission of the appellant/writ petitioner, the disciplinary authority on 16th December 2004 appointed Enquiry officer and Presenting Officer to conduct the enquiry proceeding.
Thereafter, on 31st January 2005, the disciplinary authority made an amendment to the charge-sheet dated 23rd November 2004. On 10th January, 2005 the departmental enquiry in respect of the charges levelled against the appellant/writ petitioner and mentioned in the charge-sheet dated 23rd November, 2004 was initiated. Thereafter, the enquiry continued till 7th march, 2005 taking into consideration both of the charge-sheets dated 23rd November 2004 and amended charge-sheet dated 31st January, 2005. The appellant/writ petitioner participated in the said enquiry proceeding.
By a Memo dated 24th March, 2005 the disciplinary authority forwarded a copy of the Report of the Enquiry Officer and asked the appellant/writ petitioner to submit reply.
The appellant/writ petitioner by letter dated 16th April, 2005 denied the conclusion arrived at by the Enquiry Officer and also expressed his eagerness to meet up the financial loss that have been incurred by the said bank by depositing the amount of Rs.1,44,972/-
along with interest @ 9 per cent and thereafter the appellant/writ petitioner was permitted to deposit the aforesaid amount and accordingly the appellant/writ petitioner deposited Rs.1,55,589/- vide pay order dated 22nd April, 2005.
Thereafter, the disciplinary authority upon considering the enquiry report and other related papers, documents and submissions in respect of charge-sheet dated 23rd November, 2004 and also the amended charge-sheet dated 31st January, 2005 came to the conclusion that the charges levelled against the appellant/writ petitioner were proved beyond doubt. Accordingly, the disciplinary authority by the order dated 11th May, 2005 dismissed the appellant/writ petitioner from service with immediate effect. Challenging the aforesaid order of dismissal, the appellant/writ petitioner preferred an appeal before the Appellate Authority, inter alia, on the ground that the disciplinary authority failed to consider the written submission of the appellant/writ petitioner at the time of considering the enquiry report in an appropriate manner. The appellant/writ petitioner further submitted that the disciplinary authority had proceeded with biased and closed mind and did not assign any reason while accepting the enquiry report and awarding punishment.
The Appellate Authority by the order dated 2nd September, 2005 held that there was no cogent reason for reduction/modification of the quantum of punishment imposed on the appellant/writ petitioner and confirmed the punishment awarded by the disciplinary authority. The appellant/writ petitioner thereafter, filed the writ petition challenging the order of dismissal passed by the disciplinary authority and the subsequent order passed by the Appellate Authority affirming the said order of the disciplinary authority.
The said writ petition was allowed in part by the learned Single Judge by the judgment and order dated 30th April, 2014 thus allowing the prayers ( c ) (d) and (e) of the writ petition and also directing the bank authorities to initiate departmental proceedings afresh from the point of enquiry upon providing subsistence allowance to the appellant /writ petitioner including arrears. Learned court further directed that such proceedings must be commenced within 4 weeks from the date of communication of that order.
The said prayers (c), (d) and (e) of the writ petition are set out hereunder :-
c. "A writ in the nature of mandamus directing the respondent authorities to cancel, rescind and/or set aside the enquiry report communicated by a memo under ref. no.
HGLRO/CRM/Vig/TB/11745/05 dated 24th March, 2005, issued by the Chief Regional Manager and Disciplinary Authority, United Bank of India;
d. A writ in the nature of mandamus directing the respondent authorities to cancel, rescind and/or set aside the memo under ref. no.
HGLRO/CRM/VIG/TB/1104/2005 dated 11th May, 2005 by the Chief Regional Manager and Disciplinary Authority, United Bank of India, thereby concurring with the findings of the Enquiry Officer and dismissing the petitioner from the bank's service with immediate effect which shall ordinarily be disqualification from future employment;
e. A writ in the nature of mandamus directing the respondent authorities of the State to cancel, rescind and/or set aside the order of the Appellate Authority and Deputy General Manager (Risk Management and Recovery) communicated by the memo under ref. no.
PD/DIR/1173/APL-TB/4641-2005 dated 2nd September, 2005 issued by the Chief Manager (D & I R), United Bank of India without any further delay and to reinstate the petitioner to his service".
The appellant/writ petitioner preferred the appeal assailing those part of the order dated 30th April, 2014 whereby the learned Single Judge directed the respondent bank to initiate departmental proceedings afresh from the point of enquiry and also filed stay application in connection with the said appeal.
The respondent bank also preferred an appeal challenging the said judgment and order dated 30th April 2014 whereby the learned Single Judge allowed the prayers (c), (d) and (e) of the writ petition and also filed stay application in connection with the said appeal.
The appellant/writ petitioner herein challenged the impugned Judgment and order on the ground that the charges mentioned in the purported charge-sheet dated 23rd November, 2004 and subsequent amended charge-sheet dated 31st January, 2005 have become stale charges after 10 years and bank authority should not be directed to initiate departmental proceedings afresh since the opinion of the management witnesses relied on by the bank management would not be available now for examination as well as for cross-examination.
Mr. Saha Roy, learned Advocate appearing for the appellant/writ petitioner contended that after 10 years from the date of issuance of charge-sheet it would be virtually impossible on the part of the appellant/writ petitioner as well as on the part of the management to recollect the memory of the occurrence and evidence adduced in the said proceedings.
Mr. Saha Roy further submitted that the huge documentary evidences relied on by the management could not be fortified by the respective signatories of the documents and also by the management witnesses after lapse of long 10 years period.
Mr. Saha Roy further pointed out that the bank did not suffer any pecuniary loss as the entire money was refunded by the appellant/writ petitioner with interest as claimed by the Bank.
Mr. Saha Roy also pointed out that resumption of departmental proceedings on the basis of 10 years old and stale charges is not sustainable. In support of the aforesaid contentions Mr. Saha Roy referred to and relied on the judgment of Supreme Court reported in (2010) 2 SCC 497 (G. Vallikumari Vs. Andhra Education Society & Ors). In Para -22 of the aforesaid judgment Hon'ble Supreme Court held:-
"Para-22................................................ if an order passed by the Disciplinary Authority is annulled on a technical ground, the authority concerned is free to pass fresh order but, at the same time, the Court declined to give such liberty to the administration on the ground that a period of 15 years had elapsed since the framing of charge".
Mr. Saha Roy further relied on another judgment of the Supreme Court reported in AIR 1990 SC 1308 Para-4 (State of Madhya Pradesh Vs. Bani Singh & Another) wherein the Hon'ble Supreme Court held:-
"Para-4.................................................. ................................................................ There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage.................................".
Mr. Saha Roy referred to and relied on another decision of the Supreme Court reported in (2005) 6 SCC 636 Para-5 (P.V. Mahadevan vs. Managing Director, T.N. Housing Board) as follows :
"Para 5. .........The Tribunal, however, held that the memo dated 31-7-1995 related to incidents that happened ten years or more prior to the date of the memo and that there was absolutely no explanation by the Government for this inordinate delay in framing the charges and conducting the enquiry against the respondent and that there was no justification on the part of the State now conduction the enquiry against the respondent in respect of the incidents at this late stage................"
"19. .............This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31-7-1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27-10-1995 and 1-6-1996.
Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed."
He also relied on another decision of the Supreme Court reported in (2006) 5 SCC 88 (M.V. Bijlani vs. Union of India) Para 17 where the Hon'ble Supreme Court held that there is no satisfactory explanation for the inordinate delay in issuing the charge memo. Therefore, the Court was also of the view that it would be unfair to permit the departmental enquiry to be proceeded with at this state.
Ms. Sumouli Sarkar, representing the United Bank of India authorities submitted that the appellant/writ petitioner failed to urge before the disciplinary authority as well as the appellate authority that the charges were not based on statement of allegations.
Learned counsel of the Bank further submitted that points which were not urged before the disciplinary authority and the appellate authority, could not be urged for the first time before the Appeal Court at the time of hearing. In support of the aforesaid contention learned counsel of the Bank relied on the decision of the Supreme Court reported in (2009) 3 SCC 97 Para 13 (Ex-Constable Ramvir Singh Vs. Union of India and Others). The said learned counsel of the Bank also relied on another decision of the Supreme Court reported in (2005) 7 SCC 190 Para 33 (Ishwar Dutt Vs. Land Acquisition Collector and Another).
Learned counsel of the Bank further contended that after careful perusal of all related papers and documents as well as the Enquiry Report submitted by the Enquiry Officer, the disciplinary authority passed the order and it is not required to give detailed reasons in the said order.
The learned counsel of the Bank however, submitted that brief reason is sufficient to prove the application of mind on the part of the concerned disciplinary authority. The learned counsel of the Bank further submitted that the appellant/writ petitioner never alleged any violation of the principle of natural justice. The learned counsel of the respondent Bank also submitted that charge proved by evidence does not require detailed reasons in support of the aforesaid documents. The learned counsel of the respondent Bank relied on a decision of the Supreme Court in the case of State of U. P. & Ors. Vs. Harendra Kumar, reported in (2004) 13 SCC 117 Para-8. The learned counsel of the respondent Bank specifically urged before this court that the order passed by the disciplinary authority has merged with the order passed by the Appellate Authority in the present case and therefore, any defect in the order of the disciplinary authority for non-assignment of the reasons was cured few to the reasons supplied by the Appellate Authority while affirming the order passed by the disciplinary authority. The learned counsel of the Bank referred to and relied on the following decisions of the Supreme Court in support of the arguments advanced on behalf of the said Bank.
1. Sharda Singh Vs. State of Uttar Pradesh and Ors., reported in (2009) 11 SCC 683 (Para 7 & 8).
2. Chandi Prasad and Others Vs. Jagdish Prasad and Ors., reported in (2004) 8 SCC 724 (Para 10, 22,-24, 28).
3. Devi Singh Vs. Board of Revenue for Rajasthan and Others with Mukandi and Others Vs. Board of Revenue for Rajasthan Ajmer and Another with Jagoo and Others Vs. Board of Revenue for Rajasthan Ajmer and Another, reported in (1994) 1 SCC 215 (Para 4).
There is no dispute that the appellant/writ petitioner on his own refunded the entire amount of Rs. 1,5,589/- along with interest @ 9% to compensate the loss incurred by the Bank Authority. The disciplinary authority was required to specifically decide whether the appellant/writ petitioner was merely negligent in discharging his duty and/or with a mala fide intention and ill motive caused financial loss to the Bank. The disciplinary authority did not decide whether the appellant/writ petitioner committed a misconduct for wrongful gain or for devotion in the football, he was negligent in discharging the duty as Bank Officer, as a result whereof mistakes were committed although the said appellant/writ petitioner admittedly paid price for such mistake and/or negligence by making payment of the entire amount claimed by the Bank with interest.
In any event, the disciplinary authority did not assign any reason in the final order of punishment and simply quoted few paragraphs from the chargesheets issued to the appellant/writ petitioner and also relied on the conclusions of the enquiry officer without considering the specific objections raised on behalf of the appellant/writ petitioner in written representations submitted before the disciplinary authority. The disciplinary authority did not assign any reason for rejecting the submissions of the appellant/writ petitioner mentioned in the written representation filed before the disciplinary authority. The disciplinary authority did not assign any reason for imposing punishment on the appellant/writ petitioner upon considering the written comments of the said appellant/writ petitioner on the report of the enquiry officer. The appellant/writ petitioner claimed that the alleged lapses on his part were unintentional and the irregularities committed by the said appellant/writ petitioner might have happened under the circumstances beyond his control for which the said appellant/writ petitioner should not be held responsible and guilty.
The disciplinary authority, however, did not deal with the aforesaid claim of the appellant/writ petitioner and mechanically held him guilty and dismissed him from service. Proportionality of punishment was also not taken up for consideration by the disciplinary authority. The appellant/writ petitioner herein preferred an appeal without knowing the reasons which found favour with the disciplinary authority for deciding against the appellant/writ petitioner herein. The appellant/writ petitioner had to prefer an appeal even without knowing the grounds which the disciplinary authority took into consideration for holding the appellant/writ petitioner guilty. The unreasoned order passed by the disciplinary authority cannot be sustained in the eye of law and the subsequent reasoned order of the Appellate Authority cannot cure the defects of the unreasoned order passed by the disciplinary authority.
The Supreme Court in the case of Orxy Fisheries Private Limited Vs. Union of India & Ors., reported in (2010) 13 SCC 427 Para-41 held:-
"Para - 41. In the instant case the appellate order contains reasons.
However, absence of reasons in the original order cannot be compensated by disclosure of reason in the appellate order".
The Hon'ble Supreme Court also observed in the case of Sant Lal Gupta & Ors. Vs. Modern Cooperative Group Housing Society Limited & Ors., reported in (2010) 13 SCC 336 Para-27 as under :-
"Para-27. ........................................ ..........................................................The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum.
Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected".
The aforesaid decision has been affirmed by the Hon'ble Supreme Court in a recent decision reported in (2012) 4 SCC 407 (Ravi Yashwant Bhoir Vs. District Collector, Raigad & Ors.) and as a matter of fact in Paragraph 44 of the aforesaid judgment, the Hon'ble Supreme Court specifically quoted Paragraph 27 from the judgment of Sant Lal Gupta & Ors. Vs. Modern Cooperative Group Housing Society Limited & Ors. (supra).
The learned Single Judge, upon considering various illegalities and/or irregularities in conducting enquiry proceeding and various irregular and illegal steps taken by the disciplinary authority including failure to disclose reasons, was pleased to quash the disciplinary proceedings on appropriate grounds.
We do not find any merit in the challenge thrown by the Bank Authorities in this regard. Therefore, considering the reasons mentioned hereinbefore, we are of the opinion that the appeal preferred by the Bank Authorities and the connected stay application are liable to be dismissed for want of merits and accordingly, we do so.
The appellant/writ petitioner preferring an appeal however, challenged the direction issued by the learned Single Judge allowing the Bank Authorities to initiate the departmental proceedings afresh from the point of enquiry on the ground that on the basis of 10 years' old and stale charges, Bank Management should not be allowed to initiate the departmental proceedings afresh since none of the management witnesses of the Bank is available for examination as well as cross- examination.
The learned counsel of the appellant/writ petitioner submitted that after 10 years from the date of issuance of the chargesheet, it would be practically impossible on the part of the appellant/writ petitioner to recollect the occurrence/incidents properly and to participate effectively in the enquiry proceedings. It has also been submitted on behalf of the appellant/writ petitioner that after lapse of more than 10 years, huge number of documents relied on by the Bank Management cannot be authenticated and verified by the concerned authors of the documents as well as by the management witnesses.
The learned counsel of the appellant/writ petitioner specifically urged before this court that since the Bank did not suffer any pecuniary loss as the entire money has also been refunded by the appellant/writ petitioner with interest, pursuant to the demand made by the Bank Authorities prior to the issuance of the order of punishment, there can be no valid reason to initiate departmental proceedings afresh specially on the basis of 10 years' old and stale charges. Ignoring the fact that the negligent act of a renowned football player did not constitute any misconduct in the facts of the present case. The judgment of the Supreme Court in the case of G. Vallikumari Vs. Andhra Education Society & Ors., reported in (2010) 2 SCC 497 relied on by the learned counsel of the appellant/writ petitioner is very much applicable in the facts of the present case.
Supdt. (Tech I) Central Excise Vs. Pratap Rai, reported in (1978) 3 SCC 113, it has been approved and mentioned in Paragraph 22 of the aforesaid judgment of the Hon'ble Supreme Court in the case of G. Vallikumari Vs. Andhra Education Society & Ors. (supra) which is set out hereunder :-
"Para-22. Supdt. (Tech I) Central Excise Vs. Pratap Rai, this Court held that if an order passed by the disciplinary authority is annulled on a technical ground, the authority concerned is free to pass fresh order but, at the same time, the Court declined to give such liberty to the administration on the ground that a period of 15 years had elapsed since the framing of charge."
Considering the aforesaid decisions of the Hon'ble Supreme Court and also considering the facts and circumstances of the case, we are also of the opinion that the Bank Authority should not be allowed to initiate departmental proceedings afresh at a belated stage specially when the appellant/writ petitioner refunded the entire amount as demanded by the Bank Authorities with interest prior to issuance of punishment with specific request to condone the negligent act, if any. We have also serious doubt, whether any misconduct has been committed by the appellant/writ petitioner in the facts of the present case since the Bank Authorities failed to substantiate that the appellant/writ petitioner with a mala fide intention and ill motive and specially for wrongful gain caused pecuniary loss to the Bank although as a matter of fact the Bank did not suffer any pecuniary loss.
For the aforementioned reasons, we are of the opinion that the learned Single Judge was not justified in allowing the Bank Authorities to initiate departmental proceedings afresh from the stage of enquiry without appreciating the long delay and stale charges. We, therefore, set aside the aforesaid direction issued by the learned Single Judge allowing the Bank Management to initiate departmental proceedings against the appellant/writ petitioner afresh and direct the Bank Management to reinstate the appellant/writ petitioner namely, Tanumoy Basu in service with all service benefits, as if the said appellant/writ petitioner was all along in services. However, the appellant/writ petitioner will not be entitled to receive any backwages in the facts of the present case.
With the aforesaid observations and directions, we allow the appeal and the connected stay application filed by the appellant/writ petitioner in AST No. 202 of 2014 with ASTA No. 147 of 2014 and dismiss the other appeal preferred by the Bank Management being AST No. 217 of 2014 with ASTA No. 189 of 2014.
In the facts of the present case, there will be, however, no order as to costs.
Let a Photostat plain copy of this judgment and order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocate of the parties on the usual undertaking.
[SAMAPTI CHATTERJEE, J.] [PRANAB KUMAR CHATTOPADHYAY, J] I agree.
[PRANAB KUMAR CHATTOPADHYAY, J.]