Patna High Court
Manik Vedsen vs The State Of Bihar & Ors on 24 August, 2010
Author: V.N.Sinha
Bench: V.N. Sinha
CIVIL WRIT JURISDICTION CASE No.9392 OF 1996
(In the matter of an application under Article 226 of the Constitution of India.)
MANIK VEDSEN, SON OF LATE SRI RAJESHWAR PRASAD SINHA, RESIDENT OF
FRASER ROAD, P.S.- KOTWALI, DISTRICT- PATNA AT PRESENT- ASSISTANT
GENERAL MANAGER, BIHAR STATE FINANCIAL CORPORATION, FRASER ROAD,
PATNA. :---- PETITIONER.
Versus
1. THE STATE OF BIHAR THROUGH THE SECRETARY, DEPARTMENT OF
INDUSTRIES, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA.
2. DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF
BIHAR THROUGH ITS ADDL. SECRETARY, SECRETARIAT, PATNA.
3. DEPARTMENT OF INDUSTRIES, GOVERNMENT OF BIHAR THROUGH ITS
ADDITIONAL SECRETARY, SECRETARIAT, PATNA.
4. BIHAR STATE FINANCIAL CORPORATION, FRASER ROAD, PATNA THROUGH ITS
MANAGING DIRECTOR.
5. SRI ASHOK KUMAR SINGH, IAS, MANAGING DIRECTOR,BIHAR STATE FINANCIAL
CORPORATION, FRASER ROAD, PATNA.
6. SRI RAMANAND PRASAD SINGH, OFFICER-ON-SPECIAL DUTY, BIHAR STATE
FINANCIAL CORPORATION, FRASER ROAD, PATNA :--- RESPONDENTS.
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For The Petitioner : M/S ANIL KUMAR SINHA, SUBHASH CHANDRA BOSE & MR.
MRITUNJAY KUMAR, ADVOCATES.
For The Respondents : MR. M.K.THAKUR, ADVOCATES.
PRESENT
THE HON'BLE MR. JUSTICE V.N. SINHA
V.N.Sinha,J. Petitioner at the relevant time served as
Assistant General Manager, Disbursement in the
Bihar State Financial Corporation (hereinafter
referred to as the "Corporation"). Initially this
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writ petition was filed questioning the validity of
the notification of the State Government dated
17.6.1996, Annexure-4, whereunder Respondent
No. 6 was appointed as Officer-on-Special Duty
in the Corporation. In the writ petition further
challenge is made to the office order bearing
Memo No. 120 dated 18.7.1996, Annexure-5
passed by the Managing Director of the
Corporation appointing Respondent No. 6 as the
Enquiry Officer and Sri P.K. Jha, Deputy
Manager as the Presenting Officer with direction
to conclude the departmental proceeding
initiated against the petitioner vide charge-sheet
dated 2.4.1993.
2. It is submitted in the writ petition that
the State Government had no power to appoint
Respondent No. 6 as Officer-on-Special Duty in
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the Corporation and the Managing Director was
not competent to direct continuation of the
departmental proceeding against the petitioner
as under orders dated 23.3.1994 passed in
C.W.J.C.No. 4203 of 1993, Annexure-1 the
Division Bench of the High Court was pleased to
direct that the Board of Directors in the case of
the petitioner may exercise the power of the
disciplinary authority and pass appropriate order
in accordance with law as petitioner alleged mala
fide against the Managing Director. According to
the petitioner the decision to continue the
disciplinary proceeding against the petitioner in
the light of the orders of the High Court dated 8th
February, 1996 passed in C.W.J.C.No. 3861 of
1994, Annexure-2 ought to have been taken by
the Board of Directors and not by the Managing
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Director. Aforesaid contention was raised by the
petitioner before the Managing Director under his
representation dated 29.8.1996, Annexure-6 but
the same was rejected by the Managing Director
under orders dated 30.8.1996, Annexure-7.
During the pendency of the instant writ petition
the proceeding initiated under office order dated
18.7.1996, Annexure-5 was not stayed and
petitioner participated in the proceeding after
rejection of his objection to continue the
proceeding under orders dated 30.8.1996,
Annexure-7 pursuant to notice dated 21.9.1996,
18.10.1996, 2.11.1996, Annexures 8,9 and 10
and requested the Enquiry Officer, Respondent
No. 6 under letter dated 9.12.1996, Annexure-14
to furnish him the relevant files and other
documents detailed in the letter so as to enable
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him to rely on the documents called for under
letter dated 9.12.1996, Annexure-14 in support
of his plea raised in the written statement
already filed on 9th June, 1994 in compliance of
the orders of the High Court in L.P.A.No. 434 of
1996 as also to supplement the contents of his
written statement. The documents asked for have
been detailed in paragraph-1 of the letter dated
9.12.1996, Annexure-14 and in paragraphs 4
and 5 of the letter dated 9.12.1996, Annexure-14
request has been made that the documents
asked for are required by the petitioner for
supplementing the written statement disputing
the contents of the report of the sub-committee
of the Board of Directors and findings contained
in the Enquiry Report of Sri P.K.Sinha, Ex O.S.D.
of the Corporation relied in support of the
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charges. In paragraph-6 of the said letter dated
9.12.1996, Annexure-14 request was made to
ensure presence of the witnesses, namely, the
officers including the three earlier Managing
Director(s) who served the Corporation at the
relevant time as their presence in the enquiry is
required for establishing the defence of the
petitioner that the recommendation made by the
petitioner for release of the amount in favour of
M/s Biscay Data Products Pvt. Ltd. was not
contrary to the prevailing norms of release as
release was recommended following the
disbursement norms of the Corporation in case
of joint financing following the decision of the
lead institution, BICICO, as was done in the case
of M/s Bihar Gases, Jasidih and M/s Arnil
Electronics, Patna without receipt of the report
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from the Branch.
3. In paragraph 7 of the letter dated
9.12.1996, Annexure-14 request was made to
pass orders for payment of the arrears of salary
for the period 2.4.1993 to 23.3.1994 and
28.6.1994 till 19.3.1996 in compliance of the
orders of the High Court in L.P.A.No. 434 of 1996
as the payment was required by the petitioner for
meeting his livelihood and legal expenses. List of
witnesses appended with the letter dated
9.12.1996, Annexure-14 indicate that petitioner
desired to examine three past Managing
Directors of the Corporation who could throw
light on the defence of the petitioner as also
testify that the charges levelled against him were
misconceived. The Enquiry Officer did not comply
with the request of the petitioner to furnish him
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the copy of the documents called for under letter
dated 9.12.1996, Annexure-14 and published
notice dated 3.1.1997, Annexure- 15 in the
newspaper indicating that petitioner is not
participating in the enquiry proceeding and if he
fails to appear in the proceeding on 8.1.1997, the
next date fixed in the enquiry, the enquiry shall
proceed ex parte. Petitioner being aggrieved by
the conduct of the Enquiry Officer filed
representation dated 6.1.1997 raising six
grounds in support of his prayer to change the
Enquiry Officer as according to the petitioner
appointment of Sri R.P.Singh as Officer-on-
Special Duty in the Corporation was in teeth of
Section 23 of the State Financial Corporation
Act, 1951 and that Sri R.P.Singh had no
jurisdiction to direct him to join the Shahabad
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Branch of the Corporation vide his letter dated
21.8.1996 and that he was damaging the
reputation of the petitioner by publishing notice
in the local newspaper although petitioner always
responded to the notice served on him through
Special Messenger on 12.12.1996 and
18.12.1996 including the notice dated 3.1.1997.
Further on the ground that Sri R.P.Singh
refused to order the management of the
Corporation to supply the copies of the
documents which were necessary for the
petitioner to establish his defence. Also on the
ground that Sri R.P.Singh by his repeated letters
disclosed his mind and preference to hold ex
parte enquiry against the petitioner. Further on
the ground that Sri R.P.Singh has intentionally
not taken any action to ensure payment of the
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arrears of salary/subsistence allowance due to
the petitioner as also ignored the orders of the
High Court passed in L.P.A.No. 434 of 1996 for
payment of arrears of salary to the petitioner
thereby depriving the petitioner the adequate
opportunity to defend himself. The Managing
Director of the Corporation under letter dated
6.1.1997 was also requested by the petitioner to
ensure payment of arrears of salary to him so as
to enable him to defend himself in the enquiry
proceeding. The Managing Director, however, did
not consider either to replace the Enquiry Officer,
Respondent No. 6 or to pass orders for payment
of arrears of salary to the petitioner so as to
enable him to defend himself in the enquiry
proceeding and under letter dated 6.1.1997,
Annexure-16 informed the petitioner that on
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verification of facts he was satisfied that the
Conducting Officer Sri R.P.Singh does not have
any bias or ill will against the petitioner. In
compliance of the notice dated 3.1.1997,
Annexure-15 petitioner appeared before the
Enquiry Officer on 8.1.1997 and requested the
Enquiry Officer to make available the copies of
the relevant papers and documents for
establishing his defence. The Enquiry Officer in
response to the request directed the Presenting
Officer to make available the papers and
documents asked for by the petitioner by
17.1.1997. On 17.1.1997 the Presenting Officer
produced certain files on which he relied to prove
the charges against the petitioner. No specific
document from the file was, however, produced
and exhibited in the proceeding. The petitioner
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was asked to go through the file produced.
Petitioner, however, objected to the manner of
production of evidence in the enquiry where the
charged officer had to investigate and disclose
the documents which were to be relied upon
against him. Petitioner, however, under protest
went through the files and to his amazement
found large number of pages from the note-sheet
side as also from the correspondence side of the
file missing and the file(s) produced appeared to
have been tampered with and fabricated. One file
produced by the Presenting Officer did not bear
any number and its authenticity was doubtful.
The fact that files produced by the Presenting
Officer were not in order was brought to the
notice of the Enquiry Officer. As regards
summoning of the witnesses as per the list
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furnished under letter dated 9.12.1996,
Annexure-14 it was observed by the Conducting
Officer that stage for summoning the witnesses
in the enquiry has not yet come. Even on the
next date fixed the documents were not produced
and subsequently the proceeding was adjourned
to 22.1.1997 when the Enquiry Officer was not
available as he was on leave. On the next date
fixed i.e. 24.1.1997 the Presenting Officer was
once again directed to make available the
relevant papers by 29.1.1997 and the proceeding
was adjourned to 4.2.1997. On 29.1.1997
petitioner having perused the files produced by
the Presenting Officer under his letter dated
1.2.1997 informed the Enquiry Officer the
omissions/discrepancies noticed by him in the
documents/files produced as also the fact that it
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was difficult for him to memorize the facts by
perusal of the files and that the files were not in
proper shape with large number of sheets
missing and extra sheets inserted without being
numbered as also interpolation made and
requested the Enquiry Officer to make available
the photo copy of the file(s) produced for
inspection by the petitioner including the file of
M/s Polytex Corporation not produced so far. On
4.2.1997 as well during the enquiry proceeding
aforesaid facts were placed before the Conducting
Officer who ordered for production of the file
concerning M/s Polytex Corporation and guard
file of standing orders, office orders etc. and the
proceeding was adjourned to 19.2.1997. On
7.2.1997 petitioner approached the Presenting
Officer to make available the file of M/s Polytex
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Corporation and the guard-file of the standing
office orders but the Presenting Officer did not
make available those files and petitioner was
asked to come on 13.2.1997. On that date also
skeleton file(s) said to have been maintained by
the Managing Director (Cell) was shown to the
petitioner. In the file(s) shown to the petitioner
number of standing/office orders were found
missing. The relevant papers and documents
asked for by the petitioner were not shown to
him. Petitioner brought these facts to the notice
of the Enquiry Officer under his letter dated
18.2.1997, Annexure-17. The contents of the
letter of the petitioner dated 18.2.1997 was
considered by the Enquiry Officer on 19.2.1997
who asked for the comment of the Presenting
Officer over the letter of the petitioner dated
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18.2.1997 whereafter the Presenting Officer
informed the Conducting Officer that no further
document(s)/material(s) is available in
connection with the charges levelled against the
petitioner and that the original file of M/s Polytex
Corporation is not available in the office and the
branch file was shown to the petitioner. Further
on the petitioner's request for being informed
about the norms of the Corporation which he is
alleged to have violated petitioner was told that
the norms are available in the 1981 compendium
of the standing orders but the Presenting Officer
could not pinpoint the specific standing order
which was violated by the petitioner. The
Conducting Officer under his letter dated
19.2.1997, Annexure-18 informed the petitioner
that the matter shall be finally heard on
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26.2.1997 and he may file further show-cause if
any by 26.2.1997 and appear before the
Conducting Officer on that date. Proceeding,
however, could not be conducted on 26.2.1997
as petitioner suffered head injury and the
proceeding was adjourned to 6.3.1997 on the
basis of the intimation dated 26.2.1997 received
by the Conducting Officer about the injury
suffered by the petitioner under letter dated
26.2.1997. Under letter dated 5.3.1997,
Annexure-19 petitioner once again informed the
Conducting Officer that no papers or documents
were produced in support of the charge that he
violated the set norms. He also informed the
Conducting Officer that the other
contemporaneous documents as listed by the
petitioner in his letter dated 18.2.1997,
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Annexure-17 were never made available. The file
of M/s Biscay Data Products Pvt. Ltd. was
produced in a tampered and fabricated condition.
The petitioner also requested the Conducting
Officer to ensure production of the documents as
also to summon the witnesses named in his
letter dated 9.12.1996, Annexure-14 as also for
payment of his salary. Petitioner went through
the proceedings dated 6.3.1997 and found
misleading statements regarding production of
available documents/files recorded therein
whereafter petitioner immediately pointed out
that the files/documents referred to in the
proceedings were never produced by the
Presenting Officer. The Conducting Officer,
however, proceeded with the proceeding on the
next date i.e. 11.3.1997 as on that date the
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Presenting Officer produced sanction order in
respect of M/s Biscay Data Products Pvt. Ltd.
but the documents asked for by the petitioner
were not produced. On 14.3.1997 the
Conducting Officer observed that he has taken
note of the statement made by the Presenting
Officer on different dates which shall be
considered in the Enquiry Report. Petitioner
under letter dated 20.3.1997, Annexure-20 again
brought to the notice of the Enquiry Officer that
the Presenting Officer has neither produced the
documents requested for by the petitioner nor he
has made available the witnesses. In paragraph-
30 of the interlocutory application petitioner has
asserted that neither the documents asked for by
him nor the witnesses summoned by him were
produced before the Conducting Officer. It is also
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asserted by the petitioner that the statement of
the Presenting Officer said to have been recorded
by the Conducting Officer was never shown to
him. Further pressure was mounted on the
petitioner that the proceeding has to be
completed within the time fixed by the High
Court and the petitioner should cooperate in
concluding the proceeding and under letter dated
31.3.1997, petitioner was informed that final
hearing could be done on 4.4.1997 in response
whereto petitioner filed his written submission on
4.4.1997 which is contained in Annexure-21
series.
4. The Enquiry Officer submitted his
report dated 24.4.1997 which was served on the
petitioner by the Managing Director under letter
dated 30.4.1997, Annexure-22 inviting the
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petitioner to submit his comments on the
findings recorded by the Enquiry Officer.
Petitioner having perused the Enquiry Report
noticed that Conducting Officer recorded the
statement of the Presenting Officer as also
conducted ex parte enquiry on the same charges
on 14.11.1996, requested the Managing Director
under letter dated 13.5.1997, Annexure-23 to
furnish a copy of the ex parte enquiry proceeding
taken against him on 14.11.1996 along with the
copy of the statement of the Presenting Officer
recorded by the Conducting Officer with further
request that he shall furnish his reaction to the
findings recorded in the Enquiry Report after
receipt of the statement of the Presenting Officer
and ex parte proceeding taken against him on
14.11.1996. The Managing Director under letter
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dated 31.5.1997, Annexure-24 informed the
petitioner that pursuant to ex parte enquiry held
on 14.11.1996 the Conducting Officer directed
that the records be put up for dictating the report
but in the meantime order of the High Court
passed in L.P.A.No. 434 of 1996 was received and
in the light of the orders of the High Court the
report was not dictated and the proceedings were
reopened by the Conducting Officer. As regards
the statement of the Presenting Officer, the
Managing Director informed the petitioner that
there is no recorded statement of the Presenting
Officer available in the file. Petitioner thereafter
requested for inspection of the records of the
proceeding and found that the records did not
contain any document/exhibit or even extracts
from the file. Petitioner, accordingly, brought
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aforesaid omissions in the conduction of the
proceeding to the notice of the Managing Director
under his letter dated 11.6.1997 but the
Managing Director without even making any
reference to the letter of the petitioner dated
11.6.1997 under letter dated 16.6.1997 asked
the petitioner to submit his reaction/comment to
the Enquiry Report dated 24.4.1997 latest by
30.6.1997. Copy of the letter of the petitioner
dated 11.6.1997 and of the Managing Director
dated 16.6.1997 is contained in Annexure-25
series. Petitioner submitted his comment to the
findings recorded in the Enquiry Report under
his letter dated 30.6.1997, Annexure-26. Perusal
of the letter dated 30.6.1997 would indicate that
the petitioner assailed the findings of the Enquiry
Officer in 12 pages under four heads i.e.
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(a). Preliminary objection to holding of the
enquiry
(b). Denial of adequate opportunity to
defend
(c). Perverse findings recorded by the
Conducting Officer.
(d). Enquiry Report not faithful.
and supported his contention with nine
annexures from page-13 to 49. The Board of
Directors considered the comment of the
petitioner dated 30.6.1997, Annexure-26 in its
meeting held on 30.7.1997 in the light of the
findings recorded by the Conducting Officer
along with the letter of resignation of the
petitioner dated 9.12.1996, Annexure-13 and
resolved not to accept his resignation and to
award punishment of compulsory retirement to
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the petitioner. The resolution of the Board of
Directors was communicated to the petitioner by
the Managing Director under Memo No. 1187
dated 6.8.1997, Annexure-27.
5. It is submitted on behalf of the
petitioner that the Board of Directors while
considering the comment of the petitioner dated
30.6.1997, Annexure-26 did not notice any of the
four submissions raised under the heading (a).
Preliminary objection to holding of the enquiry,
(b). Denial of adequate opportunity to defend (c).
Perverse findings recorded by the Conducting
Officer, (d). Enquiry Report not faithful, and
proceeded to resolve that petitioner be awarded
the punishment of compulsory retirement. It is
further submitted that failure to record reasons
in support of the resolution to punish the
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petitioner itself is a good ground to set aside the
order dated 6.8.1997, Annexure-27.
6. It is further submitted that on merits
as well findings recorded in the Enquiry Report is
fit to be set aside as petitioner was not given copy
of the documents asked for as also on the ground
that the witnesses were not produced, as was
requested for by the petitioner under letter dated
9.12.1996, Annexure-14 inspite of repeated
request to furnish those documents and to
produce the witnesses for examination, as is
evident from his request contained in letters
dated 18.2.1997, Annexure-17 referred to in the
different paragraphs of the Interlocutory
Application, so as to enable the petitioner to
refute Charge Nos. 1 and 2 levelled against him
that he (petitioner) violated the set norms of
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release while examining the proposal of Assistant
Manager (Processing Officer) and recommended
release of Rs. 19.33 lacs in favour of M/s Biscay
Data Products Pvt. Ltd. to the General Manager
and to further establish that release was
recommended by the petitioner as per the
prevailing disbursement norms of the
Corporation in case of joint financing in the light
of the decision of the lead institution, BICICO to
release the amount, as was done in the case of
M/s Bihar Gases Jasidih and M/s Arnil
Electronics, Patna where the release was made
by the head office without seeking report from
the Branch Manager. In this connection
petitioner placed reliance on the note of the then
Managing Director Sri Pratyush Sinha, I.A.S. who
approved his recommendation to release the
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amount in favour of M/s Biscay Data products
Pvt. Ltd. before the Enquiry Officer but the
Enquiry Officer inspite of having taken note of
the notes of Sri Pratyush Sinha neither
considered the same nor called Sri Pratyush
Sinha to record his evidence in the proceeding
inspite of request of the petitioner to confirm the
prevailing practice and disbursement norms from
Sri Sinha. The Enquiry Officer having considered
the defence of the petitioner furnished against
charge no. 3 concluded that petitioner did not
make recommendation for release in favour of a
fake machine supplier, as is alleged against him
in Charge No.-3. In this connection Enquiry
Officer himself found on the basis of the report of
the sub-committee of the Board of Directors that
M/s Tirupati Associates, Calcutta is not a fake
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firm but proceeded to hold that the petitioner
wrongly recommended release of Rs. 5.46 lacs in
favour of M/s Tirupati Associates, Calcutta to the
General Manager without any physical
verification of the arrival of machines at the site
and that the name of M/s Tirupati Associates,
Calcutta was not included in the list of approved
supplier. It is submitted that the charge being
that petitioner recommended for release in favour
of fake machine supplier but the finding recorded
by the Enquiry Officer is contrary to the charge,
as such, could not have been relied upon. With
reference to charge no. 5 it is submitted that
petitioner never directed for handing over of the
cheque to the promoter instead of machine
supplier M/s Tirupati Associates, Calcutta, as
has been alleged in Charge No.5. In this
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connection it is pointed out that after approval of
the proposal to release the amount in favour of
the machine supplier by the Managing Director
to release the amount the file directly goes to the
Accounts Section from the office of the Managing
Director and cheques are handed over by the
personnel of the Accounts Section to the
recipient and petitioner had no role to play in
handing over of the cheque.
7. As regards charge no.6 it is stated that
the change of machine supplier from M/s Zenith
Electro System (P) Ltd. to M/s D.C.M. Data
Products (P) Ltd. was recommended by the
petitioner in the year 1981-82 which was also
approved by the General Manager as by then the
instructions of the year 1989 had not come into
existence.
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8. As regards Charge No. 7 it is submitted
that the file containing the approval of the
Managing Director was directly sent to the
Accounts Section and it was the responsibility of
the Accounts Section to satisfy itself about
compliance of the conditions subject to which
release was approved before releasing the
amount.
9. As regards Charge No. 8 it is submitted
that the same is consequential and does not
appear to have been proved in view of the stand
of the petitioner taken in connection with Charge
Nos. 1 to 7.
10. It is further submitted that during the
conduction of the proceeding petitioner remained
under suspension until 8.4.1996 but was not
paid subsistence allowance. Even after release
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from suspension he was not paid salary and,
thus, was not allowed adequate opportunity to
defend himself. Learned counsel for the
petitioner further submitted that the charges
levelled against the petitioner are stale as the
allegations are of the year 1981-82 and the draft
charge-sheet was served on the petitioner for the
first time on 2.4.1993 i.e. after more than 10
years and appreciating such delay this Court
while setting aside the dismissal order under
judgment dated 8.2.1996 , Annexure-2 observed
that in case respondents decide to continue with
the departmental proceeding against the
petitioner liberty is granted to the petitioner to
urge the points raised in the petition in future
which are not decided under judgment dated 8th
February, 1996, Annexure-2.
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11. Counsel for the respondents opposed
the submissions and submitted that true it is
that the charges levelled against the petitioner is
of the year 1981-82 but petitioner was issued
notice dated 25.1.1990 even prior to service of
the draft charge and appreciating such fact the
Division Bench of this Court under orders dated
23.3.1994, paragraph 24, Annexure-1 permitted
the enquiry to proceed and as the matter has
remained pending all along since the service of
the draft charge in the year 1993 this Court
under orders dated 8.2.1996, Annexure-2
granted the respondents liberty to continue with
the proceeding and the Division Bench under
orders dated 28.11.1996, Annexure-11 directed
the petitioner to file show-cause reply to the
charge-sheet/draft charges, this Court may not
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quash the proceeding on the ground that the
charges are stale. As regards the submission that
petitioner was not paid subsistence allowance
until March, 1996 and salary from April, 1996
until the date of the impugned order it is
submitted that after the suspension of the
petitioner was revoked in compliance of the
orders of the Division Bench passed in L.P.A.No.
434 of 1996 petitioner was transferred to Ara
Branch Office but as the petitioner did not join
the transferred post he could not be paid his
salary. This Court may not draw any adverse
inference on account of failure of the petitioner to
receive salary. Petitioner having failed to join the
transferred post was not paid his salary. On the
merits of the charges, learned counsel for the
Corporation submitted that the Enquiry Report is
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very exhaustive and the Enquiry Officer has
found that petitioner violated the terms of the
sanction order and the agreement signed by and
between the Corporation and the promoter of
M/s Biscay Data products Pvt. Ltd., as such, this
Court should not interfere in the matter. In
support of the submissions made above learned
counsel for the Corporation relied on the
judgment of the learned Single Judge in the case
of Alok Kumar Verma Vs. Bihar State Financial
Corporation, reported in 2010 (1) PLJR 820 and
Division Bench judgment in the case of Brij
Bihari Singh Vs. The Bihar State Financial
Corporation, Patna through its Managing
Director & Ors, reported in 2007 (4) PLJR 607.
From perusal of the judgment of the learned
Single Judge in the case of Alok Kumar Verma
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(Supra) it appears that petitioner of the said case
was served with supplementary charge-sheet on
his failure to join the transferred post despite the
two orders of the High Court directing him to join
his place of posting by specified date but Sri
Verma continued to ignore the direction to join
the transferred post and he was punished for his
failure to obey the transfer order. Case of Brij
Bihari Singh (Supra) is also distinguishable on
facts as in paragraph-8 of the said judgment the
Court having considered the materials on record
concluded that appellant did not try even to
explain the endorsement for release of the
amount. In the instant case the Enquiry Officer
himself recorded a finding that there was no
ulterior motive of the petitioner behind the
release of fund to the promoter. In the
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circumstances, reliance placed by the learned
counsel for the Corporation on the aforesaid two
judgments, according to this Court, is misplaced.
12. Preliminary objection of the petitioner
to the office order of the Managing Director dated
18.7.1996, Annexure-5 appointing Sri R.P.Singh,
I.A.S., Respondent No. 6 as Enquiry Officer to
continue the departmental proceeding against
him on the basis of the draft charges dated
2.4.1993 and the order dated 30.8.1996,
Annexure-7 on the ground that such proceeding
was continued without the approval of the Board
of Directors as was directed by the Division
Bench of this Court under judgment dated 23rd
March, 1994, Annexure-1 does not appear to be
correct in view of the order of the High Court
dated 28.11.1996 passed in L.P.A.No. 434 of
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1996, Annexure-11, whereunder the Division
Bench directed the Enquiry Officer to conclude
the enquiry positively within four months from
the date of receipt of the order dated 28.11.1996
with further observation that if the petitioner is
desirous he can file a show-cause within 15 days
from 28.11.1996 and in case no show-cause is
filed, the Enquiry Officer was directed to
conclude the proceeding even without the benefit
of the show-cause filed by the petitioner on the
basis of the relevant materials already on record.
In view of the order of the Division Bench of the
High Court dated 28.11.1996, Annexure-11
directing the Enquiry Officer to conclude the
proceeding initiated by the Managing Director
under office order dated 18.7.1996, Annexure-5
does not appear to be contrary to the earlier
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decision of the Division Bench dated 23.3.1994,
Annexure-1, in the circumstances, there is no
merit in the preliminary objection raised by the
petitioner to the conduction of the proceeding by
the Enquiry Officer on the basis of draft charges.
13. The other submission raised by the
counsel for the petitioner that the draft charge-
sheet dated 2.4.1993 containing the allegations
levelled against the petitioner that during the
financial year 1981-82 petitioner recommended
for release of the sanctioned amount violating the
set norms of the Corporation are stale should be
quashed on the ground of being stale also
appears to be misconceived as the Division
Bench of this Court having noticed the contents
of the charge-sheet and the fact that petitioner
was issued notice dated 25.1.1990 even prior to
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service of the draft charge in paragraph 24 of the
judgment dated 23.3.1994, Annexure-1
permitted the enquiry to proceed and as the
matter remained pending all along since the
service of the draft charge in the year 1993
another Division Bench of the High Court under
orders dated 28.11.1996 passed in L.P.A. No.
434 of 1996, Annexure-11 directed the Enquiry
Officer to conclude the proceeding within four
months, as such, it is not possible for this Court
to hold that the charges are stale since the
matter remained under consideration all along
with effect from 25.1.1990, the date on which
first notice was issued to the petitioner and
thereafter as per the liberty granted by the two
Division Bench of the High Court under orders
dated 23rd March,1994, Annexure-1 and
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28.11.1996, Annexure-11 the proceeding has
been conducted.
14. In response to the allegation set out in
the draft charge-sheet petitioner under his letter
dated 09.12.1996, Annexure-14 and 18.2.1997,
Annexure-17 requested the Enquiry Officer to
direct the Presenting Officer to produce the
documents and the witnesses mentioned in the
two letters so as to enable the petitioner to refute
the gravamen of the charge that he
recommended release of the sanctioned amount
in favour of M/s Biscay Data Products Pvt. Ltd.
to the General Manager violating the set norms
as also to further enable him to establish that
the recommendation was made by the petitioner
as per the prevailing disbursement norms of the
Corporation in case of joint financing in the light
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of the decision of the lead institution BICICO to
release the amount, as was done in the case of
M/s Bihar Gases, Jasidih and M/s Arnil
Electronics, Patna where the release was made
by the head office without seeking report from
the Branch Manager. In this connection,
petitioner placed reliance on the note of the then
Managing Director Sri Pratyush Sinha, I.A.S.,
who had approved the recommendation made by
the petitioner to the General Manager to release
the amount in favour of M/s Biscay Data
Products Pvt. Ltd. The Enquiry Officer in the
Enquiry Report has taken note of the notes of Sri
Pratyush Sinha at internal page 9-10 of the
report but failed to consider the same nor did he
examine Sri Pratyush Sinha in the proceeding so
as to confirm from him that at the relevant time
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no clear-cut instruction existed in the
Corporation on disbursement of loans which was
still more vague in respect of joint financing and
according to Sri Sinha the decision taken by the
lead institution was normally followed by the
other institution and seldom if ever a cross
verification was carried out, once the lead
institution had decided to disburse the loan. Sri
Sinha having perused the file maintained in the
case of M/s Biscay Data Products Pvt. Ltd.
observed in his notes that the Corporation
followed the lead given by BICICO and the
decision to disburse the amount was taken at the
level of the General Manager and/or the
Managing Director. In my opinion, on account of
failure of the Enquiry Officer to consider the
notes of Sri Pratyush Sinha that clear cut
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instruction did not then exist in the Corporation
on disbursement of loans and as per practice
evolved in the case of joint financing the decision
taken by the lead institution was normally being
followed by the other institution and seldom if
ever a cross verification was carried out, once the
lead institution had decided to disburse the loan
and the fact that disbursement in the case of
M/s Biscay Data Products Pvt. Ltd. was made
after the decision was taken at the level of the
General Manager and/or the Managing Director
the finding of the Enquiry Officer to hold the
petitioner guilty of charge nos. 1,2 that he
violated the set norms in making
recommendation to the General Manager for
disbursement of the sanctioned amount in favour
of M/s Biscay Data Products Pvt. Ltd. appears to
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be misconceived.
15. The Enquiry Officer having considered
the defence of the petitioner submitted in
response to charge no. 3 concluded that
petitioner did not make any recommendation for
release in favour of a fake machine supplier as is
alleged against him in charge no. 3 since M/s
Tirupati Associates, Calcutta is not a fake firm as
has been found in the report of the sub-
committee of the Board of Directors but contrary
to the charge Enquiry Officer proceeded to hold
that petitioner wrongly recommended release of
Rs. 5.46 lacs in favour of M/s Tirupati
Associates, Calcutta to the General Manager
without any physical verification of the arrival of
the machines at the sites and that M/s Tirupati
Associates, Calcutta was not included in the list
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of approved supplier. Aforesaid findings that
petitioner wrongly recommended in favour of M/s
Tirupati Associates, Calcutta without seeking
verification of the arrival of the machines at the
sites and that the said firm was not included in
the list of approved machine supplier being not
the charge cannot be relied upon to establish
charge no.3, as such, the finding of guilt
recorded by the Enquiry Officer in regard to
charge no. 3 also appears to be misconceived.
16. Finding of the Enquiry Officer as
regards charge no. 5 that petitioner directed for
handing over of the cheque to the promoter
instead of machine supplier M/s Tirupati
Associates, Calcutta also appears to be
misconceived as after approval of the proposal to
release the amount in favour of the machine
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supplier by the General Manager and/or
Managing Director to release the amount the file
directly goes to the Accounts Section from the
office of the Managing Director and cheques are
handed over by the personnel of the Accounts
Section to the recipient and Assistant General
Manager, Disbursement (petitioner) had no role
to play in handing over of the cheque.
17. Finding of the Enquiry Officer as
regards charge no. 6 that petitioner
recommended for change of the machine supplier
from M/s Zenith Electro System (P) Ltd. to M/s
D.C.M. Data Products (P) Ltd. also appears to be
vitiated as such recommendation of the
petitioner was made in the year 1981-82 and was
also approved by the General Manager as by then
the instructions of the year 1989 had not come
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into existence.
18. The finding of the Enquiry Officer as
regards charge no. 7 also appears to be vitiated
as the said finding has been recorded without
appreciating the fact that after approval of the
disbursement proposal file is directly sent to the
Accounts Section and it is the responsibility of
the Accounts Section to satisfy itself about
compliance of the conditions subject to which
release was approved before releasing the
amount. Charge No. 8 being consequential is also
not made out against the petitioner in view of the
findings contained in paragraphs 14 to 18.
19. Failure of the Corporation to pay
subsistence allowance to the petitioner until
suspension of the petitioner was revoked in
compliance of the orders of the High Court dated
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28.11.1996 passed in L.P.A. No. 434 of 1996,
Annexure-11 and salary with effect from April
1996 till the date of issue of the impugned order
of compulsory retirement dated 6.8.1997,
Annexure-27 has also vitiated the proceeding as
during the said period petitioner had no funds to
support himself and he has been requesting the
Conducting Officer time and again under his
letter dated 9.12.1996, Annexure-13,14,
18.2.1997, Annexure-17, 5.3.1997, Annexure-
19, 27.3.1997, Annexure-21 series to ensure
payment but neither the Enquiry Officer nor the
Managing Director ever paid any heed to the
request of the petitioner for release of his
subsistence allowance, salary and thereby in the
opinion of this Court he was not allowed
adequate opportunity to contest the proceeding.
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The submission of the counsel for the
Corporation that after release of the petitioner
from suspension he was transferred to the
Branch office of the Corporation at Arrah but he
did not submit his joining, as such, was not paid
the subsistence allowance, salary also does not
appear to be correct. In case petitioner had
refused to join the transferred post the
authorities were required to have given him
supplementary charge-sheet alleging his failure
to join the transferred post at Arrah with
instruction that until he joins at Arrah he shall
not be entitled to be paid any salary.
Supplementary charge-sheet alleging non-joining
at Arrah having not been given to the petitioner,
in my opinion, learned counsel for the
Corporation is not right in submitting that
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petitioner was not paid arrears of subsistence
allowance, salary during the period of conduction
of the proceeding for his failure to join the
transferred post at Arrah.
20. Had the aspects taken note by this
Court in paragraphs 14 to 19 above been
considered by the Board of Directors while
considering the second show-cause reply filed by
the petitioner, Annexure-26 together with the
fact that the Enquiry Officer while holding the
petitioner guilty of the charges levelled against
him did not consider the notes of Sri Pratyush
Sinha, I.A.S. that "clear-cut written instruction
did not then exist in the Corporation on
disbursement of loans and as per practices
evolved in the case of joint financing the decision
taken by the lead institution was normally being
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followed by the other institution and seldom if
ever a cross verification was carried out, once the
lead institution had decided to disburse the loan"
as was done in the case of M/s Bihar Gases,
Jasidih and Arnil Electronics, Patna with
objectivity and in right perspective as also
considered the fact that Enquiry Officer did not
examine the three Managing Directors requested
to be examined by the petitioner under his letter
dated 9.12.1996, Annexure-14 the occasion to
punish the petitioner of the charges levelled
against him may not have arisen and petitioner
would have been saved of the ignominy which he
had to undergo from the date he was served with
the initial notice dated 25.1.1990 and the draft
charge-sheet dated 2.4.1993 as also the order
dated 18.7.1996, Annexure-5 and notice dated
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21.9.1996, 3.1.1997, Annexure-8, 15 in the newspaper.
21. For the reasons aforementioned I set aside the impugned order of punishment dated 6.8.1997, Annexure-27 with cost which is assessed at Rs. 5,000/-. Petitioner be paid arrears of salary for the suspension period as also until the date of his superannuation as during the pendency of the writ petition he has attained the age of superannuation as early as possible, in any case within a period of two months from the date of receipt of a copy of this order before the Managing Director of the Corporation.
22. The writ application is, accordingly, allowed.
(V.N.Sinha,J.) The Patna High Court The 24 day of August,2010 A.F.R./P.K.P.
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