Calcutta High Court (Appellete Side)
Dd vs M/S. Indian Bank & Ors on 21 July, 2015
Author: Arindam Sinha
Bench: Arindam Sinha
1
WP 14891 (W) 2009
21.07.2015
14 Sri Dilip Kumar Majumdar
dd Vs.
M/s. Indian Bank & Ors.
Mr. Dilip Kr. Majumdar
... ... For the petitioner (in person)
Mr. D.K. Ghosh
Mr. Ranjoy De
... ...For the respondent
The writ petitioner has appeared in person. He submits that 25 charges have been levelled against him of which the Inquiry Officer had found charge no. 23 not proved.
The Disciplinary Authority, however, observed that charge nos. 23 and 25 were not proved against the petitioner but the rest stood proved. The petitioner submitted the essence of these charges can be said to be reflected in charge nos. 5 and 9. Charge no. 5 is regarding alleged tardy action on the part of the petitioner acting as Branch Manager in causing enhancement of sanction to a customer of the Silchar Branch. That sanction was to be approved by the Circle Office, Guwahati. It was the complaint of the customer in closing the account that denial of enhancement in the sanction was the reason. The said customer thus went and obtained credit facilities from State Bank of India in Silchar. The charge includes an allegation that air tickets were purchased by such customer for the charged officer. The Disciplinary Authority had observed that illegal gratification and the charge itself were proved. The other charge being charge no. 9 is relating to his performance in sanctioning loans without authority, which loans were for amounts within his discretion to sanction, most of which became NPA as alleged by the management.
2The petitioner has challenged the charge sheet dated 1st November, 2004, the inquiry report dated 10th February, 2007, the order dated 17th July, 2007 made by the Disciplinary Authority, the appellate order dated 17th November, 2007 and the order dated 28th May, 2008 made by the Reviewing Authority. The Disciplinary Authority had awarded the major punishment of compulsory retirement to the petitioner. On 9th July, 2015 record in order was made of prima facie impression of court for the bank to dispel. The observations recorded are as follows:
"In charge no.5 it appears that the petitioner was held to have been guilty of not causing the sanction in time leading to loss of a customer's account. When the charge contains an allegation of gratification also held to have been proved, it is for the respondent Bank to demonstrate as to how a charged officer having held to have taken gratification for doing something, could be charged for not having done it, on the complaint of the disgruntled customer who alleged to have paid the gratification. The fact remains that the grant of enhancement sought was not within the powers of the charged officer. It appears to this Court that the exercise of charging the petitioner was pursuant to the complaint received from that disgruntled customer. These impressions formed by the Court, prima facie, are to be dispelled by the respondent Bank on the next date of hearing since adjournment has been sought on its behalf."
Mr. Ghosh, learned advocate appearing on behalf of the Bank submitted the scope of judicial review was limited. The Court in exercising writ jurisdiction would not go into the evidence or reappraise the same. All that Court would look into is whether the principles of natural justice were complied with in giving the charged officer ample opportunity to defend himself in the several stages of the disciplinary proceedings. He submitted every opportunity was given to the petitioner 3 in defending himself against the charges levelled, before the Disciplinary Authority, the Appellate Authority and the Reviewing Authority. Thus, he submitted, no inference was called for and the writ petition should be dismissed.
A supplementary affidavit was filed by the petitioner in page 169 of which is a copy of a note dated 3rd March, 2003 issued by the petitioner acting as Manager of the Silchar Branch of Indian Bank addressed to the Circle Office in Guwahati. By the said note the petitioner had informed the Circle Office that on the subject of proposal for enhancement of limit, Account M/s. Minakshi Remedies, as desired by the party the Branch had that day closed the Open Cash Credit Account as the party had moved to some other Bank. The next page in the said supplementary affidavit contains copy of an undated letter of complaint from the proprietress of the said firm. That letter refers, inter alia, to her having closed her account with the Silchar Branch of Indian Bank that day for it to be inferred such letter is also dated 3rd March, 2003. This inference on fact became necessary as there is no reference to such letter of complaint in the list of dates handed up on behalf of the Bank. It appears from the said list of dates that the petitioner on joining the service of the Bank in the year 1998 had received a promotion. The Bank, it appears, received this letter of complaint from M/s. Minakshi Remedies on or about 3rd March, 2003. The charge sheet was, thereafter, issued on 1st November, 2004 levelling charges against the petitioner. The charges levelled include alleged acts of misconduct committed by the petitioner as early as on 25th January, 2001.
The petitioner's grievance is of being victimized as a consequence of the said complaint lodged. This Court, therefore, perused the letter of complaint. The complainant, in particular with regard to the charge of gratification as held to have been proved against the petitioner, had 4 alleged, inter alia, the petitioner had demanded commission of Rs. 20,000/- in the matter of increase of the sanction limit sought by her. The complainant alleged to have purchased return air tickets from Silchar to Kolkata for the petitioner for a sum of Rs. 5,490/- by cheque dated 6th March, 2002. It appears from the materials on record that a sum of Rs. 5,000/- was paid by the petitioner to the complainant on 11th February, 2002 and a further sum of Rs. 490/- paid by cash on 27th February, 2002. However, the Inquiry Officer returned a finding of guilty against the petitioner for accepting the air tickets as illegal gratification which was upheld by the Disciplinary Authority. Such finding was based on rejection of the contention of repayment without any indication as to why then such money was paid by the petitioner to the complainant. This Court notices that no other sum was alleged to have been paid by the complainant to substantiate her allegation of the demand of Rs. 20,000/-.
The petitioner did not invite this Court to look into the evidence or the charges in detail except submitting that the essence of all those charges levelled consequent upon the complaint lodged by this disgruntled customer of the Bank, could be found in charges 5 and 9 as aforesaid. The observation of the Disciplinary Authority regarding charge no. 5 is reproduced below :-
"(i) From DEX 8/1 it is evident that Circle Office letter dt.
22.11.02 had been replied by CSO on 05.12.02 hence not proved.
(ii) From MEX 45/15 though it is evident that CSO has written to Circle Office on 24.02.03 for sending duplicate sanction adding two more conditions, having misplaced the same it is evident the sanction ticket was received by the branch but misplaced before communicating to the party. Hence non communication of sanction to the party is proved.
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(iii) From DEX 15/14 & 15/15 it is clear that CSO furnished opinion to SBI but there is no record/evidence to show that approval of Circle office was obtained. Hence not referring the matter to Circle Office is proved.
(iv) Since no record is available to show CSO replied Circle Office letter dt. 31.03.03, non replying CO letter is proved.
(v) CSO's air ticket to Kolkata amounting to Rs. 5490/- was paid by the party M/S Meenakshi Remedies through their cheque which amounts to illegal gratification. CSO's argument that he had paid cash of Rs. 5000/- in the account on 11.02.2002 (DEX 10/8A) is not proved beyond doubt since the purchase of air ticket in question is on 06.03.02 whereas the deposit of cash is on 11.02.2002 which cannot be construed as for same purpose. Hence it is substantiated that the air ticket was purchased by the party.
Hence I hold that point (i) is not proved whereas point (ii) to (v) stands proved."
Regarding charge no. 9 the submission of the petitioner and the observation of the Disciplinary Authority is required to be and is reproduced below :-
"CSO in his submission has stated that out of 175 loan accounts 50 were Govt. sponsored schemes, the application of which were appraised processed and forwarded by DIC. Almost 13 number of loan accounts were related to IBVL, IBCL which were given as per bank's norms. Almost 50 number term loan / OCC were given during his three years period as BM wherein proper application, required Balance sheet were taken. Presanction follow up was made. Defects pointed out in the earlier inspection reports were duly rectified and almost 15 term loan /OCC accounts were closed.6
Charges were framed on the basis of MEX 35 inspection report of inspector which cannot be considered as an exhibit in the absence of any supporting exhibits/documents.
Observation Large number of loans were sanctioned /disbursed in an area not coming within Service area approach and most of the accounts becoming NPA within a short period confirm that proper appraisal/assessment has not been done and scant regard was shown by CSO to the systems and procedures by indiscriminate lendings. Further sanctioning most of the loans for same activity to persons having no specific address obtaining quotation from one or two suppliers of same area, recommended by one of the supplier Sri Aparesh Kumar Dey Prop. Of M/s Sunrise Store and borrowers are difficult to be identified without the help of Sri Aparesh Kumar Dey confirms the sanction of loans with ulterior motive besides possibility of pecuniary gains to CSO. Hence I hold the charge as proved."
The petitioner had preferred an appeal. In the appellate order, also impugned herein, the charges and the submissions made by the petitioner in appeal were extensively recorded and the appeal disposed of in the manner as follows :-
"A perusal of the Charge sheet, PO' s findings, response of CSO, IA's findings, response of CSO and DA's order as also the appeal, reveal the following.
(1) The appellant categorically stated that he had been given adequate opportunity and that he is satisfied with the conduct of inquiry. He had not mentioned anything about non-submission of documents to him in the inquiry. (2) Production of witnesses in the inquiry is the prerogative of PO and CSO and witnesses were produced with the permission from IA. They were indeed cross examined also.
(3) Direct evidence on certain aspects was furnished through MW 2 & 3 as also corroborative evidence.
(4) The appellant has laid much emphasis on the mind of Circle Head, Gauhati. I for one cannot go into the same. However, the charge sheet having been framed under clause 3(1) of IBOE (conduct) Regulation and a reading of the entire text of the 7 relevant clause has to be taken into consideration. This clause speaks of integrity, honestly, devotion and diligence of the officer.
Hence I do not see any reason as to why DA cannot comment on moral turpitude. He is very much justified.
(5) As regards payment for Air tickets, PO produced direct evidence and defence in cross examination failed to shake the evidence." The Reviewing Authority did not find any ground to review or revise the punishment awarded.
From the aforesaid it appears to this Court that the departmental proceeding was initiated pursuant to unsubstantiated allegations made by a person against the petitioner, such person and her husband having been examined as management witnesses. On behalf of the bank the aforesaid prima facie impression of court in regard thereto could not be dispelled. No submission was made or document referred to show how or why the charges, except charge no.5, escaped detection earlier or whether the petitioner's performance was otherwise under scrutiny resulting in those charges being made when made, as a coincidence, thus appearing to have been pursuant to receipt of the said complaint. The order of the Appellate Authority records that the petitioner had laid much emphasis on the mind of the Circle Head, Guwahati in the matter of issuance of charge sheet which contention was not considered by that Authority. The petitioner's case in defence from the very beginning before the Authorities as well as in this Court has been one of having been victimized as a consequence of the complaint lodged against him. The charges brought subsequent to the complaint relate to misconduct of earlier years. From the order in appeal it appears the Appellate Authority abdicated its responsibility of adjudication on merits by confining itself to find on procedure. In these facts this Court is unable to sustain the order of the Disciplinary Authority and the orders consequent thereto.
The Disciplinary Authority is required to reconsider the enquiry report, the material that formed the basis of such report and give his 8 finding thereon. Such exercise must be done as expeditiously as possible in the interest of the Bank. The orders of the Disciplinary Authority and all consequent orders are set aside. The writ petition allowed to the extent aforesaid.
Urgent Photostat certified copy of this order, if applied for, be given to the learned advocates for the parties on usual undertakings.
(Arindam Sinha, J.) 9