Orissa High Court
Raghunath Das vs Odisha Gramya Bank on 15 September, 2017
Author: S. N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
O.J.C. No.1803 of 2000
In the matter of application under Articles 226 and 227 of the
Constitution of India.
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Raghunath Das ...... Petitioner
- Versus-
Odisha Gramya Bank ...... Opposite Party
For Petitioner :M/s. Abhiram Swain, S.C. Mohanty,
P.K.Mishra, N.C. Moharana, D.M.
Palatsingh, M/s. M.M. Basu, D. Dey.
For Opposite Party :M/s. J. Pattnaik, A.A. Das, R. Rath, B.
Mohanty, T.K. Patnaik, S. Das, P.K.
Nayak.
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 15.09.2017
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S. N. Prasad, J.This writ petition is for quashing the Annexure-1 dated 23.5.1989 under which charge has been leveled against the petitioner and show cause notice dated 7.10.1996 and the order of punishment dated 24.12.1996 by which the punishment of stoppage of five (5) increments with cumulative effect has been inflicted and the order passed by the appellate 2 authority dated 2.7.1997 by which the order of punishment passed by the disciplinary authority has been affirmed.
2. Case of the petitioner is that he while working as Branch Manager in the officer cadre under the opposite party was departmentally proceeded for commission of irregularities of sanction/disbursement of loan in favour of borrower and thereby it has been found that the petitioner has committed gross irregularities jeopardizing the interest of the Bank.
The petitioner was directed to participate in the enquiry, the enquiry officer has found the charges proved, thereafter the disciplinary authority has imposed punishment of stoppage five annual increments with cumulative effect against which the petitioner has approached the appellate authority who has declined to interfere with the decision of the disciplinary authority, the petitioner is before this Court by way of the instant writ petition, inter alia, on the ground that adequate and sufficient opportunity has not been provided by not supplying the relevant documents and the order passed by the disciplinary authority and appellate authority is without reasons.
3. Learned counsel for the Bank has submitted that the petitioner has been provided adequate and sufficient opportunity in course of enquiry but he himself has not chosen to avail the same and as such now he cannot 3 be said that the opportunity has not been provided. Her contention is that the requirement of law is to provide an opportunity but not insist upon the employee to avail the opportunity. It is upon the delinquent employee to avail or not, if he has not availed the opportunity, it cannot be said that the process of disciplinary proceeding suffers from irregularities.
So far as the second ground is concerned, she submits that there is well reasoned finding given by the enquiry officer and as such there is no requirement to give any reason by the disciplinary/appellate authority. In order to substantiate her argument, she has relied upon two judgments rendered by the Hon'ble Supreme Court; one in the case of Tara Chand Khatri vrs. Municipal Corporation of Delhi and others reported in (1977) 1 SCC 472 and another in the case of National Fertilizers Ltd. and another vrs. P.K. Khanna reported in (2005) 7 SCC 597.
4. Learned counsel for the petitioner, in response opposing the submission of learned counsel for the Bank, has submitted that it is not in dispute that the order is without any reason cannot be said to be an order in accordance with law. The discipline and appeal rule requires to the disciplinary authority to deal with the employee who is involved in the irregularities in commission of official duty, if the disciplinary authority himself has taken the duty to conduct the enquiry and thereafter pass an order, in that situation what learned counsel for the Bank is saying can be 4 said to be correct, but that is not the fact here. The fact herein is that the disciplinary authority was appointed and an enquiry officer who was conducted the enquiry and found the charges proved and thereafter forwarded the enquiry report to the disciplinary authority who on its acceptance, has issued second show cause notice along with copy of the enquiry report with the proposed punishment and as such the moment the show cause notice has been issued to the petitioner asking reply to him against the proposed punishment, it is requirement of the law that the disciplinary authority must consider it by applying its quasi-judicial mind but that has not been done herein, hence the order passed by the disciplinary authority cannot be said to be in accordance with law.
He further submits that the order without any reason is said to be in violation of principle of natural justice, since the defence which has been put by the delinquent employee before the disciplinary authority has not been taken into consideration at all.
He further submits that the opportunity to file reply to the second show cause notice is not a mere formality rather when any reply is being filed against proposed punishment it has to be considered and consideration means by applying quasi-judicial mind and it must be reflected in the order.
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He further submits that even the appellate authority has not passed the order after assigning the reason. He has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of State of U.P. and others vrs. Saroj Kumar Sinha which pertains to vitiation of the departmental proceeding in case of non-supply of the relevant documents and the judgment rendered in the case of State of Punjab and others vrs. Chamanlal Goyal reported in 1995 SCC (L & S) 541 i.e., in the context of serving the memo after delay of five years.
Heard the learned counsel for the parties and perused the document available on record.
5. The fact which is not in dispute that the petitioner while working as Scale-I Officer under the Bank was proceeded departmentally for commission of irregularities in the matter of sanction and disbursement of loan by framing different charges, the same are being reflected herein below:-
1. You have sanctioned the following loans without obtaining the recommendation/appraisals of Field Supervisor. Thus, you have violated the instruction contained in our circular No.77/81 dated 26.11.1981.
A/c. No. Loan Amount Date of Loan
Pumpset Loans 8/83 6000/- 8.6.1983
5/84 6000/- 19.11.84
2. You have mentioned to have sanctioned/disbursed a loan of Rs.2500/- to Baja Dei, W/O- Sani Sitha for Rice Processing Trade in the utilization certificate (signed by you on dt.15.03.1983) submitted to project officer, DRDA, Puri and claimed subsidy of Rs.833.30, whereas 6 you have sanctioned/disbursed loan of Rs.2000/- to Baja Dei for H.Y. Paddy on 21.2.83 (Ref:Loan No.Crop 8/83). Subsequently you have adjusted the subsidy of Rs.833/- in the said loan account on 18.08.83. Thus you have knowingly submitted a false certificate to DRDA, Puri for higher amount/different purpose and adjusted the subsidy in irregular manner.
3. You have claimed subsidy of Rs.666.66 in respect to Bata Krushna Ojha, S/o- Gandharb Ojha of Baradihi against loan maount of Rs.2000/- sanctioned/disbursed on 1.6.82 for carpentry trade through the utilization certificate submitted to Project Officer, DRDA, Puri signed by yopu on dt.19.7.82. But you have adjusted the subsidy of Rs.666/-
in Batelving Crop Loan Account (B.V. 44/82) dt. 1.6.82 of Satyananda Ojha, son of Gandharb Ojha of Baradihi on 18.8.83 against which the subsidy was not released.
Thus you have submitted a false certificate to DRDA, Puri and got the subsidy from DRDA through manipulation and allowed the subsidy benefit to an ineligible person.
4. You have shown claim of subsidy of Rs.700/- in favour of Surendranath Pradhan, S/o- Punananda Pradhan of Astarang against loan amount of Rs.2100/- sanctioned/disbursed on dt.10.2.83 for grocery (Small Business) in the Utilisation Certificate submitted to Project Officer, DRDA, Puri signed by you on 10.2.83 whereas you have adjusted the subsidy of Rs.700/- in the Batelvine loan account No.(B.V. 7/83 for Rs.2100/- dt.11.2.83 on dt.9.4.83. Thus you have submitted a false certificate to DRDA, Puri and adjusted the subsidy in an ineligible loan a/c. Further Sri Surendra Pradhan, S/O. Punananda Pradhan of Astaranga has denied to have executed any such loan document at Astarang Branch. He has also denied to have availed the loan. But you had submitted the utilization certificate to DRDA, Puri with a forged signature of Sri Surendra Pradha. Subsequently you habve influenced Sri Pradhan through undue methods and got his signature on relaltive vouchers of the loan a/c. Thus, you have got the above loan documents executed by some person other than Mr. Surendra Pradhan and go release of the Govt. subsidy by submitting false certificate. The amount has been misappropriated within your knowledge.
5. You have adjusted subnmisidy in seven crop loan a/cs (as per annexure) on receipt from Project Officer, DRDA, Puri by submitting false utilization certificate (regarding name of the trade of craft in the utilization certificates). The detail particulars in such cases are given in the annexure which may be treated as part of the Charge Sheet.
6. You have sanctioned/disbursed a Pisciculture loan No.6/85 of Rs.6200/- on 27.11.1985 to Sri Anath Charan Swain, S/o- Jogendranath Swain, Vill: Asan, PO: Alasahi before sanction of the same by Head Office. The above loan was sanctioned at Head Office 7 on 25.6.86 on the strength of proposal of Astarang Branch and the sanction letter was sent to your Branch vide letter No. Adv. 58/86 dt. 27.6.86. You have released the loan when the proposal was under
consideration of Head Office and you had no discretion. Thus knowingly you have released the loan by exceeding discretion (in violation of Chairman's Circular CH/15/83 dt. 7.9.83 and misled Head Office."
The petitioner after receipt of memorandum of charge has approached to the disciplinary authority for supplying relevant documents. According to the petitioner, the relevant documents has not been supplied and thereafter he was directed to participate in the enquiry proceeding. The disciplinary authority has thereafter posted enquiry for ex-parte hearing and found the charges proved against him.
6. It is evident from the enquiry report that the petitioner has been provided an opportunity to inspect the documents. The enquiry report has been forwarded to the disciplinary authority, he, on acceptance of finding, has issued second show cause notice along with the proposed punishment asking the petitioner to give reply against the finding of the enquiry officer, the petitioner has submitted his reply, the disciplinary authority has passed the order on 24.12.1996 whereby and where under the differing with the proposed punishment of reduction of basic scale of pay of Officer Junior Management Scale I of the Bank, punishment of stoppage of five(5) increments with cumulative effect has been inflicted.8
7. The petitioner has approached to the appellate authority, the appellate authority has declined to interfere with the order of punishment of the disciplinary authority.
The petitioner is before this Court against these orders on two grounds;-
(i) The grievance of the petitioner is that since adequate and sufficient opportunity has not been provided, as such the entire enquiry is vitiated and in consequence thereof the order of punishment is fit to be quashed.
(ii) The authorities both disciplinary as well as appellate have not passed the order with reasons.
8. This Court has thought it proper to deal with the second contention i.e. the order passed by the disciplinary authority as well as appellate authority is without any reason.
The judgment relied upon by the learned counsel for the Bank has been examined by this Court and found that the Case of Tara Chand Khatri (supra) is with the context to the fact and situation where it has been laid down that in the second show notice there is no requirement to give reason of acceptance of the finding of the enquiry report.
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9. But here in the instant case, it is not the case of the petitioner that the second show cause notice is not with the reason of acceptance rather the case herein is that he has not been provided with adequate and sufficient opportunity to defend himself, hence this judgment is not applicable to the facts and circumstances of this case, likewise the judgment rendered in the case of National Fertilizers Ltd. (supra) also in the context at the stage of second show cause notice. it is not in dispute in the settled proposition of law that when the disciplinary authority has not taken the duty of the enquiry officer rather delegated the power to different person and to conduct enquiry if found the charges proved, it is upon the disciplinary authority to accept the finding in case of charge having been found to be proved or differ with the finding in case of charge having not proved by the enquiry officer. In case of acceptance of the finding of the enquiry officer in case of charge having been proved, the requirement of law is to give second show cause notice along with proposed punishment enclosed with the copy of the enquiry report in order to provide an opportunity to give reply in defence against the finding of the enquiry officer. The disciplinary authority has resorted to this process but he has not considered the reply given by the second show cause notice.
10. It is evident from the face of the order dated 24.12.1996 wherein in one line order has passed by inflicting punishment of 10 stoppage of five (5) increments with cumulative effect. He has not considered the reply given by the petitioner in the show cause notice, it cannot be said that opportunity to file reply in pursuance of second show cause is mere formality rather it is for the purpose of consideration and consideration has got wide meaning. Consideration of the fact by applying its quasi judicial mind and be reflected in the order. Meaning of consideration has been dealt with in the judgment rendered by the Hon'ble Supreme Court in the case of Chairman, LIC of India vrs. A. Masilamani reported in (2013) 6 SCC 530 at para-11 which is being referred herein below:-
"11. The word "consider", is of great significance. Its dictionary meaning of the same is, "to think over", "to regard as", or "deem to be".
Hence, there is a clear connotation to the effect that, there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority, should reflect intense application of mind with reference to the material available on record. The order of the authority itself, should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority, and proceed to affirm its order."
Even the appellate authority has passed the order without assigning any reason of affirmation of the decision taken by the disciplinary authority. Order of the appellate authority does not suppose to pass detail reason but at least brief reasons must be there for affirming or differing with the decision of the disciplinary authority, 11 but when the order passed disciplinary authority itself is without reasons, the appellate authority is to consider the grounds raised in the memo of appeal, reference in this regard may be made to the judgment rendered by the Hon'ble Supreme Court in the case of Divisional Forest Officer, Kothagudem vrs. Madhusudan Rao reported in 2008 (3) SCC 469 at para-19, which is being reproduced herein below for ready reference:-
"19. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum."
It is also settled that the order without reason is said to be violation of principle of natural justice, reference in this regard may be made to the judgment rendered by the Hon'ble Supreme Court in the case of MMRDA Officers Associatioin Kedarnath Rao Ghorpade vrs. Mumbai Metropolitan Regional Development Authority and Another reported in (2005) 2 SCC 235, wherein the Lordships has been pleased to hold at paragraph-5, which is being reproduced herein below for ready reference;
"5. Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the 12 decision-taker to the controversy in question and the decision or conclusion arrived at."
Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The "inscrutable face of the sphinx" is ordinarily incongruous with the judicial or quasi-judicial performance.
In view of the facts stated herein above and for the reason that the order of disciplinary authority dated 24.12.1996 as well as order of appellate authority dated 2.7.1997 are without any reason.
On the bare reading of the orders, it is evident that the same are without reasons.
11. In view of entirety facts and circumstances the order dated 24.12.1996 and 2.7.1997 are not stand in accordance with law, accordingly the same are fit to be quashed, accordingly the same are quashed.
12. In the result, the disciplinary authority is directed to pass a fresh order on the basis of material available on record within 13 reasonable period preferably within eight weeks from the date of receipt of copy of this order.
The petitioner will be at liberty to approach the appellate authority against the order to be passed by the disciplinary authority, which shall be dealt with by him in accordance with law.
With the aforesaid observation and direction, the writ petition is disposed of.
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S. N. Prasad, J.
Orissa High Court, Cuttack, Dated the 15th September, 2017/RRJena