Calcutta High Court (Appellete Side)
Dinabandhu Mandal vs Paschim Banga Gramin Bank & Ors on 6 September, 2019
Author: Md. Nizamuddin
Bench: Md. Nizamuddin
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Mr. Justice Md. Nizamuddin
W.P. No. 11850 (W) of 2013
Dinabandhu Mandal
Vs.
Paschim Banga Gramin Bank & Ors.
For the Petitioner :- Mr. Debabarata Saha Roy, Adv.
Mr. Indranil Mitra, Adv.
Mr. Subhankar Das, Adv.
Mr. Neil Basu, Adv.
For the Respondent No. 1 :- Mr. C.R. Bakshi, Adv.
Judgement On :- 06.09.2019
MD. NIZAMUDDIN, J.
Heard learned Advocates appearing for the Parties. This Writ Petition has been filed challenging the impugned order dated 30th January, 2013 passed by the respondents/authorities concerned.
It appears from an earlier order of the Division Bench of this Court passed in FMA No. 1085 of 2009 dated 1st March, 2011 filed by the petitioner herein against the same charge-sheet and initiation of disciplinary proceeding. Some of the relevant portions of the said judgment which would reflect the background of this case are as follows:
"................There is a chequered history of this case. Initially the petitioner assailed the order of the disciplinary authority confirmed by the appellate authority, in the writ application, being W.P. 18187(W) of 1 2005. By the judgement and order dated 11th August, 2006 Tapen Sen, J. allowed the writ application to the extent of quashing the impugned order passed by the appellate authority as well as disciplinary authority and remanded the matter back for consideration of the issue by the 14 disciplinary authority afresh in accordance with law. In the said judgement, the question of bias against the Enquiry Officer, as was pleaded in the writ application, was rejected by holding, inter alia, that the Enquiry officer was not biased. Liberty granted to challenge the report of the Enquiry officer on other points. The disciplinary authority after taking note of the report of the Enquiry Officer, passed an order of punishment on complying with the necessary formalities of issuance of show cause notice. Challenging the punishment imposed by the disciplinary authority, a fresh writ application was moved. The judgement as passed therein is the subject matter of challenge before us.
It is settled legal position of law that the judicial review of any disciplinary proceeding could be done if it is a case of breach of natural justice or breach of the statutory provision of law, but no writ is maintainable, assailing the factual findings of the Enquiry Officer vis-à-vis the charge and other co-related documents as relied 2 upon by the Enquiry Officer and also by the disciplinary authority. Domain to consider the factual matrix of the issue as to whether Enquiry Officer came to a proper finding and thereafter the disciplinary authority whether was justified to pass any order of punishment in disciplinary proceeding on said factual parameters, is the appellate authority under the statute. The writ application as filed earlier for the breach of natural justice and for breach of statutory rules and regulations, as already observed, was 15 considered by the learned trial Judge, by holding, inter alia, that there was no such breach of the principle of natural justice and no breach of any statutory rules and regulations. It appears from the records that though initially when the charge memo was served, the delinquent could not submit his show cause due to fact that relevant documents allegedly were not supplied by the employer, but subsequently when the proceeding actually initiated, all documents were served except three documents out of total 53 documents and written brief was submitted by the delinquent before the Presiding Officer. He participated in the disciplinary proceeding, crossexamined witnesses and placed his documentary evidence. Those points have been discussed by the learned trial Judge in the judgement under appeal. Having regard to such, the 3 learned trial Judge came to a conclusion that there was no breach of natural justice.
We are also not finding any merit in the submission made by the appellant, assailing the order of the learned trial Judge, before us on the point that there was breach of natural justice in the departmental proceeding which culminated to an order of punishment passed by the disciplinary authority. On that score, we are not entertaining the appeal, but since the factual matrix of the case, namely, whether on the basis of the report of the Enquiry Officer, disciplinary authority was justified to impose punishment, would be only considered by the appellate 16 authority in statutory appeal, we are allowing that point for adjudication in the event appeal is preferred by the delinquent for which he is granted liberty to file appeal.
It is made clear that in the event any appeal is filed within a month from this date, delay in filing the appeal to be condoned by the appellate authority and appeal to be considered upon hearing the writ petitioner/appellant/delinquent.
It is expected that the said statutory appeal to be disposed of within a period of six months from the date of submission of the appeal. It is made clear that the question of breach of natural justice having 4 been adjudicated by us, the appellate authority will not decide that question further. So far as the breach of natural justice is concerned, we are of the view that there was no breach of natural justice.
Learned Advocate for the appellant practically in this appeal intended to consider the factual matrix regarding the findings of the Enquiry Officer vis-à-vis the charge memo and the deposition as made by the defence and the documents as placed and relied upon.
We are not inclined to decide that question in the writ jurisdiction. As already observed, that point to be decided by the appellate authority in accordance with law.".......................
Challenging the aforesaid order of the Division Bench, the petitioner had filed Special Leave Petition being SLP (Civil) No. 18781/2011 before the Hon'ble Supreme Court and by a judgment and order dated 25th July, 2011, the Hon'ble Supreme Court was pleased to dismiss the same by recording as follows:
"Upon hearing counsel the Court made the following ORDER Having failed to convince the learned Single Judge and the Division Bench of the Calcutta High Court to mollify the order of punishment passed by the disciplinary authority, the petitioner has filed this 5 petition under Article 136 of the Constitution of India.
A perusal of the record show that while he was working as Senior Manager in Bikihakola Branch of respondent no. 1- Bank, the petitioner was placed under suspension and a departmental inquiry was initiated against him on the following allegations:
"1. Shri Dinabandhu Mondal sanctioned and disbursed loans on diverse dates to one Shri Prasanta Roy against the security of fake KVPs fraudulently with intent to cause wrongful gain to the borrower and wrongful loss to the Bank. The details of the loans are given below:
Sl No. Name & Address of Limit Loan A/c Nature of Security Mode of the borrower sanctioned/d No. disbursement isbursed (Rs.) and dated 1 Sri Prasanta Roy 4,70,250/- KVP-08 KVP Nos. 35BB Paid in Cash
i)P25, C.I.T. Road, dated 929901 to 35BB Kolkata- 10 19.03.2002 929942 and 35BB
ii)35, Kashinath 929944 to 35BB Chatterjee Lane, 930000 of Rs.
Sibpur, Howrah-2 5000/- each.
2 Sri Prasanta Roy 2,13,750/- KVP-09 KVP Nos. 35BB Paid in Cash
i)P25, C.I.T. Road, dated 929801 to 35BB
Kolkata- 10 19.03.2002 929845 of
ii)35, Kashinath Rs.5000/- each.
Chatterjee Lane, Total amount Rs.
Sibpur, Howrah-2 2,25,000/- Regd.
No. 722 dated
12.02.99
3 Sri Prasanta Roy 4,75,000/- KVP-10 KVP Nos. 35BB Paid in Cash
i)P25, C.I.T. Road, dated 958901 to 35BB
Kolkata- 10 13.04.2002 95900 of Rs.5000/-
ii)35, Kashinath each. Total amount
Chatterjee Lane, Rs. 5,00,000/-
Sibpur, Howrah-2 Regd. No. 280
dated 30.06.99
4 Sri Prasanta Roy 4,75,000/- KVP-11 KVP Nos. 35BB Paid in Cash
i)P25, C.I.T. Road, dated 958401 to 35BB9
Kolkata- 10 13.04.2002 58500 of Rs.5000/-
ii)35, Kashinath each. Total amount
Chatterjee Lane, Rs. 5,00,000/-
Sibpur, Howrah-2 Regd. No. 282
dated 01.07.99
2. Shri Dinabandhu Mondal sanctioned and disbursed loan of Rs. 16.34 lac as mentioned above without following the prescribed procedures as mentioned below:
a. Shri Dinabandhu Mondal did not obtain independent written confirmation about the 6 genuineness of the certificates/securities from Intally Post Office (Issuing Authority) being sanctioning the advance.
b. Shri Dinabandhu Mondal did not send the letter seeking confirmation directly to Intally Post Office and did not receive the related information directly.
3. Shri Dinabandhu Mondal neither sent any officer, nor personally got the genuineness verified and got the pledge noted thereon from the concerned authority in gross disregard and defiance of the stipulated guideless and on the contrary he engaged third party for this purpose.
4. Shri Dinabandhu Mondal, before sanctioning the loan to Shri Prasanta Roy against the fake KVPs, sought certain clarifications/instructions from Area Office, Howrah on 15.03.2002. But before receipt of the sanction from the Competent Authority as contained in Head Officer letter No. HGB/CARM/BKH/835/02 dated 20.03.2002 regarding disbursement of the loan, he disbursed the loan with malafide intention.
5. Shri Dinabandhu Mondal did not comply with the instructions as contained in Head Office Letter No. HGB/CARM/BKH/835/02 dated 20.03.2002 regarding disbursement of the loan.
6. Shri Dinabandhu Mondal, subsequently sanctioned and disbursed loans to Shri Prasanta Roy on 13.04.2002 in utter violation of the prescribed guidelines/instructions of the Bank as communicated from time to time.
7. Shri Dinabandhu Mondal had sanctioned and disbursed loans to the above borrower exceeding his lending powers delegated as per Head Office Circular No. HGB/PDCR/62/2002; PDCR/CR/27/2002 dated 13.10.2000.
8. Shri Dinabandhu Mondal by his wrongful acts had facilitated perpetration of fraud to the determent of the Bank's interest and thus had acted in a manner, which tarnished the image of the Bank before public and exposed the Bank to serve financial risks and losses."
After conducting inquiry, the enquiry officer submitted report with the finding that allegation Nos. 5 and 6 were proved, 7 allegation Nos. 2,3,4 and 7 were partially proved and allegation Nos. 1 and 8 were not proved against the petitioner. The disciplinary authority did not agree with the enquiry officer and held that all the allegations levelled against the petitioner have been proved and accordingly passed the order of punishment.
The appeal preferred by the petitioner against the order of punishment was dismissed by the Appellate Authority, but Writ Petition No. 18187 of 2005 filed by him was allowed by the learned Single Judge of the High Court on the ground that the disciplinary authority had not assigned reasons for its disagreement with the enquiry officer and opportunity was not given to the petitioner to represent against the reasons for disagreement. However, liberty was given to the disciplinary authority to pass fresh order in accordance with law.
In compliance of the direction given by the High Court, the disciplinary authority re- considered the inquiry report and the defence of the petitioner and passed detailed order running into about 36 pages and imposed five penalties by declaring that allegation nos. 1 to 5 have been fully proved against the petitioner.
8
The petitioner challenged the second order of punishment in Writ Petition No. 22490 of 2006, but could not convince the learned Single Judge to nullify the same on the ground of alleged violation of the rules of natural justice. The Division Bench of the High Court dismissed the appeal filed by the petitioner and approved the order passed by the learned Single Judge.
We have heard learned counsel for the petitioner and perused the record and are convinced that the learned Single Judge and the Division Bench of the High Court did not commit any error by refusing to entertain the petitioner's challenge to the order of punishment passed by the disciplinary authority which had recorded cogent reasons for expressing its disagreement with the finding recorded by the enquiry officer on some of the allegation.
Learned counsel for the petitioner could not put forward any tangible argument to show that the so-called
violation of the rules of natural justice had prejudice the defence of his client.
Therefore, we are inclined to agree with the High Court that the technical breach of the rules of natural justice did not warrant annulment of the order of punishment.
The allegations found proved against the petitioner who was holding the post of 9 Senior Manager of the bank were extremely serious and there is no scope for judicial review of the discretion exercised by the disciplinary authority to punish him.
With the above observations, the special leave petition is dismissed."
The petitioner after the dismissal of the aforesaid Special Leave Petition filed an appeal before the statutory appellate authority on the basis of the aforesaid order of the Division Bench of this Court dated 1st March, 2011 in F.M.A. No. 1085 of 2009 wherein liberty was granted to the petitioner to file appeal before the statutory appellate authority with the limited scope of adjudication only on the punishment on the basis of the report of the enquiry officer and disciplinary authority in the case.
The statutory appellate authority disposed the said appeal by passing the impugned order dated 30th January, 2013 after discussing elaborately on each of the allegations of the petitioner. Details of punishment recorded by the Appellate Authority is as follows:
".............. After taking into consideration the entire proceedings being the Appellate Authority under the Chairmanship of Shri C.K. Mukherjee, Nominee Director, Sponsor Bank, the Appellate Authority give the following order which the Board felt would meet the end of justice in the instant case:
Charge No. Findings of DA Penalty(ies) awarded by Order of the Appellate DA Authority Charge Proved Reduction from Middle Reduction from Middle No.1 Management Grade Scale- Management Grade Scale-
II to Junior Management II to Junior Management Grade Scale-I with basic Grade Scale-I with basic salary being fixed at Rs. salary being fixed at Rs. 18,240/-. Next increment 18,240/-. Next increment to Sri Mondal shall fall to Sri Mandal shall fall due 10 due one year after date of one year after date of this this order subject to usual order subject to usual service conditions. service conditions. Charge Proved Reduction from Middle Reduction from Middle No.2 Management Grade Scale- Management Grade Scale-
II to Junior Management II to Junior Management Grade Scale-I with basic Grade Scale-I with basic salary being fixed at Rs. salary being fixed at Rs. 18,240/-. Next increment 18,240/-. Next increment to Sri Mondal shall fall to Sri Mondal shall fall due due one year after date of one year after date of this this order subject to usual order subject to usual service conditions. service conditions. Charge Proved Sri Mandal would be Sri Mandal would be No.3 debarred from taking debarred from taking part in any promotion part in any promotion process which starts on process which starts on or before 31.12.2009. or before 31.12.2009. Charge No. Proved Recovery of the sum of Recovery of the sum of Rs. 4 Rs. 16,34,000/- (Rs. 16,34,000/- (Rs. Sixteen Sixteen lac thirty four lac thirty four thousand thousand only) which is only) which is the the pecuniary loss pecuniary loss caused to caused to the Bank, in the Bank, in instalments instalments of Rs. 8000/- of Rs. 8000/- (Rupees (Rupees Eight thousand Eight thousand only) from only) from his monthly his monthly emoluments emoluments or from such or from such other other amounts as may be amounts as may be due to due to him from the him from the Bank.
Bank. Residual amount, Residual amount, if any, if any, remaining remaining unrecovered unrecovered from the from the terminal benefits terminal benefits of Sri of Sri Mandal.
Mandal.
Charge No. Proved Recovery of the sum of Rs. Recovery of the sum of Rs. 5 16,34,000/- (Rs. Sixteen 16,34,000/- (Rs. Sixteen lac thirty four thousand lac thirty four thousand only) which is the only) which is the pecuniary loss caused to pecuniary loss caused to the Bank, in instalments the Bank, in instalments of of Rs. 8000/- (Rs. Eight Rs. 8000/- (Rs. Eight 11 thousand only) from his thousand only) from his monthly emoluments or monthly emoluments or from such other amounts from such other amounts as may be due to him as may be due to him from from the Bank. Residual the Bank. Residual amount, if any, remaining amount, if any, remaining unrecovered from the unrecovered from the terminal benefits of Sri terminal benefits of Sri Mandal. Mandal.
The above penalties shall run concurrently. The period spent by Sri Mandal under suspension will be treated as not spent on duty and no other amounts would be payable to him except the amounts that have already been paid to him during such suspension."..........
On perusal of the aforesaid judgment of the Division Bench of this Court and judgment of the Hon'ble Supreme Court, it is crystal clear that no scope of interference in the impugned disciplinary proceeding in any manner has been left for this Court and legality and validity of the charge-sheet and the whole disciplinary proceeding including the issue of violation of principles of natural justice has been finally adjudicated and holding the petitioner guilty in the aforesaid disciplinary proceeding has already been upheld by the Hon'ble Supreme Court.
In spite of the final adjudication on the aforesaid issues raised by the petitioner in earlier Writ Petitions, petitioner has again raised the same issues in this Writ Petition. According to me, there is no scope for adjudication on the said issues raised by the petitioner in this Writ Petition and the same cannot be re-adjudicated. At the time of hearing apart from the issues involved in earlier Writ Petitions which were before the Division Bench of this Court and the Hon'ble Supreme Court, in addition to those issues, petitioner has raised the issue of quantum of punishment and contended that punishments imposed are contrary to Rule 38 of the Howrah Gramin Bank Staff Service Regulations, 2000 taking the ground that in the case of petitioner multiple punishments 12 have been imposed which includes both minor penalties and major penalties which the respondent authorities have no jurisdiction to impose but petitioner could not show from the said regulations to establish that there is any specific statutory bar under the said regulations to impose both minor and major penalties at the same time even if there are multiple offences of different nature and it also failed to show that this ground was taken by the petitioner before the statutory Appellate Authority. Considering these facts I am of the view that this ground of the petitioner is not sustainable in law.
Petitioner has also challenged the quantum of punishment by contending that it is disproportionate to the nature of misconduct. In this regard law is well settled by the Hon'ble Supreme Court in number of decisions that unless penalty imposed by the authorities is highly disproportionate to the nature of misconduct or it shocks its conscience no Court should interfere with the order of punishment in a disciplinary proceeding.
Considering the facts and circumstances as appears from record and discussion made above, I do not find any reason to interfere with the impugned order and accordingly Writ Petition W.P. No. 11850 (W) 2013 is dismissed.
There is no order as to costs.
Urgent certified photocopy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(MD. NIZAMUDDIN, J.) 13