Calcutta High Court
Dipankar Sengupta And Anr. vs United Bank Of India And Ors. on 11 March, 1998
Equivalent citations: [1998(79)FLR212], (1999)ILLJ208CAL
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. These two appeals filed by the writ petitioners in the aforementioned cases although arose out of an order of the learned trial Judge refusing to pass an interim order, with the consent of the learned Counsel for the parties the writ petitions and the appeals were heard together.
2. The writ petitioners Dipankar Sengupta and Chittaranjan Samanta were posted as Assistant Manager and Deputy General Manager. Both the Writ Petitioners were charge-sheeted in January, 1991 for commission of alleged misconduct, which is to the following effect:
Articles of Charge No. 1During your tenure as Deputy Manager (Advance) of Calcutta Branch, you had processed, jointly with the Asstt. Manager (Advance), proposal for sanction of Bills Discount Limits of Rs. 25.00 lacs each to 18 companies which are directly or indirectly associated/connected with Hemraj Mahabir Prasad (HMP) Group enjoying substantial credit facilities with the Bank, as per An-nexure 'A' hereto. While processing the above proposals, you had failed to adhere to the usual banking norms and Head Office guidelines/instructions and the credit appraisal was inadequate and perfunctory.
You had also recommended the above proposals for sanction by the Chief Manager, knowing it fully well that the sanction of the above credit limits to the aforesaid parties was beyond his discretionary powers in terms of Head Office Circular No.CM/DIS/062/189/PM-78/88 dated October 25, 1988.
Besides you had failed to secure compliance with the stipulations mentioned in the processing notes and to incorporate in the sanction letters the clauses requiring submission of statements of stocks and book debts by the borrowing companies.
Thus, you had failed to discharge your duties with utmost integrity, devotion and diligence and thereby committed a misconduct within the meaning of Regulation 3(1) read with Regulation 24 of the UBI Officer Employees' (Conduct) Regulations, 1976.Articles of Charge No. 2
During your tenure as Deputy Manager (Advance), Calcutta Branch, you had failed to notice through inspection of the units and by making proper enquiries about their business activities that the bills discounted under the B/D limits sanctioned to them as shown in Annexure 'A' hereto, purporting to represent trade transactions, were prima facie in the nature of accommodation bills.
Thus, you had acted in a manner which was unbecoming of an officer employee of the Bank and thereby committed a misconduct within the meaning of Regulation 3(1) read with UBI Officer Employees' (Conduct) Regulations, 1976.Articles of Charge No. 3
During your tenure as Deputy Manager (Advance), Calcutta Branch, you had recommended clean overdrafts of Rs. 25.00 lacs in the current deposit accounts of each of the 12 companies mentioned in Annexure 'B' hereto, knowing fully well that the Chief Manager (in scale IV) of the Branch was not empowered to sanction such overdrafts in terms of H.O. Circular No.O & M/DIS/ 062/189/OM-78/88 dated October 25, 1988. These overdrafts were allowed without obtaining any documents and R.B.I. Cheques/pay orders for Rs. 25.00 lacs each were issued in favour of Indian Bank.
The unauthorised overdrafts so allowed by the Chief Manager at your recommendation were subsequently adjusted on different dates by discounting bills (which were prima facie in the nature of accommodation bills) under the B/D limits sanctioned to the above companies.
In addition to the above, you did not ensure the end-use of funds lent to the aforesaid companies.
Thus, you had failed to discharge your duties with utmost integrity, devotion and diligence and acted in a manner prejudicial to the interest of the bank and thereby contravened Regulation 3(1) of the UBI Officer Employees' (Conduct) Regulations, 1976.Articles of Charge No. 4
During your tenure as Dy. Manager (Advance), Calcutta Branch, you had processed, jointly with the Asstt. Manager (Advance) a proposal for a Bills Discount (D.A.Bills) limit of Rs.40.00 lacs favouring Crystal Traders Pvt. Ltd. and recommended it for sanction by the Senior Chief Manager of the Branch, knowing fully well that sanction of the Credit limit to the above company, which is directly or indirectly associated/connected with the HMP Group enjoying substantial credit facilities with the Bank, was beyond the discretionary power of the Senior Chief Manager.
You had failed to notice through inspection of the unit and by making proper enquiries about its business activities that the bills discounted under the above limit, purporting to represent trade transactions, were prima facie in the nature of accommodation bills.
Although as per terms of sanction, funds were to be released to the extent of Rs. 20.00 lacs within 90 days and the balance amount under the sanctioned limit was to be released thereafter only on satisfactory performance, you had on April 10, 1989 recommended availment of the balance amount of Rs.20.00 lacs of the limit (after release of Rs.20.00 lacs on March 9, 1989 and March 10, 1989) in violation of the terms of sanction and the same was allowed by the Senior Chief Manager on your recommendation.
Besides the above, you did not obtain an Auditor's Certificate in support of the company having raised its paid-up capital from the meagre Rs. 200/- to Rs. 5.00 lacs and unsecured loans upto Rs. 19.00 lacs before release of fund, as per terms of sanction and also failed to maintain the stipulated margin of 25% in the said account.
Thus, you had acted in a manner prejudicial to the interest of the Bank and thereby committed a misconduct within the meaning of Regulation 3(1) read with Regulation 24 of UBI Officer Employees' (Conduct) Regulations, 1976.Articles of Charge No. 5
During your tenure as Deputy Manager (Advance), Calcutta Branch you had processed, jointly with the Assistant Manager (Advance), a proposal for a Cash Credit facility in favour of M/s. Sixteen Belvedere (India) Pvt. Ltd. and recommended for sanction of a limit of Rs. 45.00 lacs by the Senior Chief Manager, knowing fully well that sanction of the credit limit to the aforesaid company, which is directly or indirectly associated/connected with the HMP Group enjoying substantial credit facilities with the Bank, was beyond the discretionary power of the Senior Chief Manager.
While processing the above proposal, you failed to make a proper assessment of the need based requirement of the party and did not carry out a pre-sanction inspection of the unit.
You had failed to secure compliance with the terms of sanction, such as, insurance of stocks, submission of stock statements by the borrower at monthly intervals and matching contribution by the borrower proportionately with the release of Bank's fund. Besides, you had allowed drawings in the account on some occasions far in excess of the available drawing power.
Thus, you acted in a manner prejudicial to the interest of the Bank and thereby committed a misconduct within the meaning of Regulation 3(1) read with Regulation 24 of UBI Officer Employees' (Conduct) Regulations, 1976."
3. The petitioners filed a written statement denying the charges levelled against them. An Enquiry Officer was appointed to enquire into the said charges. After holding enquiry, enquiry report dated February 27, 1992 was submitted which is contained in Annexure 'E' to the writ application. It appears from the enquiry report that both in relation to Dipankar Sengupta and Chittaranjan Samanta, he found most of the charges as not proved. It was further found that there was no evidence of motive or mala fide on the part of the writ petitioners with regard to their conduct. However, they were found to be guilty in respect of certain procedural and supervisory lapses.
4. The writ petitioners upon receipt of copies of the said enquiry report, submitted their representations. The disciplinary authority purported to be agreeing with the findings of enquiry officer held that the petitioners are guilty of the charges levelled against them and imposed a major penalty of reduction of basic pay by two stages lower in their existing pay in the time scale with immediate effect by an order dated August 20, 1992.
5. The petitioners filed the writ application, inter alia for the following reliefs :
"(a) A Writ of and/or in the nature of mandamus do issue commanding the respondents to forthwith cancel, withdraw and/or rescind the purported charge sheet being No. ZO/CAL-1/DSG-DIR/368/91 dated January 10/12, 1991, enquiry report dated February 27, 1992 issued by the Disciplinary Authority as well as the purported order of punishment being No. ZO/CAL-1/ DSG/DIR/11798/92 dated August 20,1992.
(b) A writ of and/or in the nature of mandamus do issue directing and/or commanding the respondents to act and/or proceed in accordance with law and not to give any effect or further effect and/or to proceed or further proceed on the basis of and/or pursuant to the purported charge sheet being No.ZO/CAL-1/DSG- DIR/368/91 dated January 10/12, 1991, enquiry report dated February 27, 1992 and the purported order of punishment being No.ZO/CAL-l/DSG/DIR/11798/92 dated August 20, 1992 in any manner whatsoever;
(c) A writ of and/or in the nature of prohibition do issue prohibiting the respondents from giving any effect or further effect to the purported order being No.ZO/CAL-1/DSG/DIR/l 1798/92 dated August 20, 1992 being Annexure-E hereto in any manner whatsoever."
6. Mr. Pranab Kumar Chottopadhyay, the learned counsel appearing on behalf of the appellants has raised a short question in support of these writ petitions. The learned counsel has taken us through the enquiry report and submitted that from a perusal thereof it would appear that the petitioners had merely been found guilty of not being more prudent in recommending the cases of overdraft in respect of certain customers. The learned counsel pointed out that the writ petitioners were merely recommending authorities, whereas it was for the sanctioning authority to sanction the loan who must have done the same upon application of his mind and in exercise of his powers and duties. It was submitted that the impugned order has been passed at the instance of the Central Vigilance Commission which is bad in law. The learned counsel has further pointed out that an error of judgment on the part of a person or lack of efficiency cannot be said to be a misconduct. It has been pointed out that the Bank did not suffer any pecuniary loss because of the alleged misconduct of the petitioners. The learned counsel in support of his aforementioned contentions relied upon the decision in Union of India and Ors. v. J. Ahmed, (1979-II-LLJ-14) (SC) and Virendra Prasad v. Union of India and Ors. (1987-I-LLJ-260) (Cal). It has further been submitted that an order passed at the instance of the Central Vigilance Commission is bad in law and in support of his aforementioned contention reliance had been placed on Nagaraj Shivarao Karjagi v. Syndicate Bank, Head Office (1992-II-LLJ-149) (SC). The learned counsel submits that in the facts and circumstances of this case the major punishment imposed by the petitioner is excessive and disproportionate to the alleged misconduct committed by them. It has further been pointed out that hi the case of Chittaranjan Samanta, the Disciplinary Authority had found him guilty in respect of alleged misconduct in respect whereof no charge was framed.
7. Mr. R.N.Majumdar, the learned counsel appearing on behalf of the respondent bank, on the other hand, submitted that if a person exercises his function in excess of his jurisdiction, he would be committing a misconduct and in support of his aforementioned contention reliance has been placed on Disciplinary Authority-Cum Regional Manager v, Nikunja Bihari Patnaik 1996 73 FLR 1252.
8. The learned counsel submits that all the employees of the Bank have a public duty to perform and in support of the said contention reliance has been placed on Tarachand Vyas v. Chairman and Disciplinary Authority and Ors. (1997-II-LLJ-26) (SC). The learned counsel submits that the impugned punishment cannot be held to be excessive keeping in view the fact that the petitioners had been found to be guilty of some charges. As regard the contention of the writ petitioners to the effect that the impugned punishment had been effected in the light of the recommendations of the Central Vigilance Commission, our attention has been drawn to Regulation 19 of the United Bank of India Officer and Employees' (Discipline and Appeal) Regulations, 1976, for the purpose of showing that the Disciplinary Authority was bound to consult the Central Vigilance Commission at every stage of the disciplinary pro-ceedings. (hereinafter referred to as the Discipline Regulations)
9. Learned counsel further contends relying an or on the basis of various decisions that consultation with Vigilance Commission itself will not vitiate the proceedings. In support of the said submission, reliance has been placed in the case of Sunil Kumar Banerjee v. State of W.B. and Ors. , S.P. Agarwal v. Delhi Municipal Corporation and Ors. (1997-1-LLJ-285) (Del) and Ram Kumar v. State of Haryana (1987-II-LLJ-504) (SC). Learned counsel submits that from a perusal of the enquiry report it would appear that at least some charges were found to have been proved by the Enquiry Officer. Learned counsel further submits that the word 'misconduct' is a generic term, and in support of his aforementioned contention, reliance has been placed in the case of Bhagwat Parshad v. I.G. of Police .
10. Learned counsel further submits on the basis of the decisions of the Apex Court referred to hereinbefore that the power of judicial review of this Court is a limited one. It has been submitted on the basis of the decisions in the Disciplinary Authority-cum-Regional Manager Central Bank of India and Ors. v. Nikunja Bihari Patnaik (supra), that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India, cannot act as a Court of appeal. Reliance in this connection has been placed in State ofAndhra Pradesh v. C. Venkata Rao (1976-I-LLJ-21) (SC). It has further been submitted that the punishment imposed upon the writ petitioners cannot be said to be so disproportionate so as to shock the conscience of this Court, and in support of his aforementioned contention reliance has been placed in the case of B. C. Chaturvedi v. Union of India and Ors. (1996-I-LLJ-1231)(SC).
11. It has not been disputed that the petitioners being Deputy General Managers were only recommending authorities. It is further admitted that the sanctioning authority was a higher authority and the said authority was required to sanction the amount of loan to the companies or the parties. It is farther admitted that the departmental proceedings against the sanctioning authority is still pending. It is further admitted that no case has been made out as against the writ petitioners that such recommendations had been made for any extraneous consideration or money consideration or such recommendations were made with any ill motive or malafide. It is further not disputed that the 18 companies said to be connected with Hemraj Mahabir Prasad Group had been enjoying the substantial credit facilities with the Bank.
12. The entire charges levelled as against the writ petitioners would show that they were charged for failure to adhere to the usual banking norms as also failure to discharge their duties with utmost integrity, devotion and diligence. The petitioners had also been charged with acting in a manner which was unbecoming of an officer of the Bank.
13. The Enquiry Officer upon analysing the evidence held that the allegations that advances were made to the 19 companies belonging to H.M.P. group is not sustainable and thus, the finding on the main issue so far as Charge No. 1 is concerned, went against the Bank. It has been held that there was no violation of the guidelines contained in Exbt. Section 25 and the Charge Officer No. 2 had necessary discretionary powers upto Rs. 40 lacs during the relevant times in respect of sanction of B/D limits, the said charge was, therefore, not established. As regards the imputation that the credit appraisal done by C.O. 3 was inadequate and perfunctory, it was held that there is some substance in the argument of the defence that their credit appraisal was within realistic limit. All the relevant factors were taken into consideration by the Enquiry Officer in arriving at the said finding. It was, however, held that the evidence on record would indicate that proper attention was not paid while processing the case primarily in respect of the anomaly between date of application and date of incorporation but the working capital requirement has been arrived at by taking into account reduced sales figures and also the assets and liabilities as seen from projected balance sheet.
14. However, in respect of M/s.Arjun Properties, it has been found that as the said company was functioning from 1983, it would have been proper for the Charge Officer to have called for audited financial statements like balance sheet, profit & loss accounts and to this extent the petitioner's action in the matter of M/s. Arjun Properties was faulty.
15. It has been found that the inspection register would show that the inspection details had not been produced. Ultimately, it was held :
"Considering the fact that most of the companies were relatively new units incorporated and taking up a new line of business activity, it would have been prudent on the part of Asstt. Manager and Dy.Manager to have taken pre-sanction inspection at least in some cases or immediately after sanction was issued. This has not been done and therefore this is also a procedural lapse."
16. On the question of not listing out of the terms and conditions it has been held that the said charge has not been substantiated. Thus, except in the case of some lapses in respect of M/s.Arjun Properties, the petitioners were found not guilty of any other charges. As regards Charge No.2 a contention to the effect was made on behalf of the petitioners that it would not be correct to conclude that trade transaction was not genuine and, therefore, bills discounted were in the nature of accommodation bills cannot be said to be unreasonable. The enquiry officer held:
"In any case, adequate funds were generated in their accounts late which also support the defence case. It is also not the case of the prosecution that the accounts were opened without proper introduction. Therefore, the charge against C.O. is not sustainable and hence this article of charge held not proved."
17. As regard Charge No. 4 it was held that so far as the charge bills discounted in the case of 2 companies were in the nature of accommodation bills, it was held that part of the charge was not established. On the issue of end use of the funds were required for their urgent commitment of working capital, the benefit of doubt may go to CO but despite the same, the enquiry officer held :
"However, the main charge that clean OD were proposed by CO to his Chief Manager, stands established against him. Therefore, this article of charge is held partly established."
18. The said finding does not appear to be a finding of guilt as against the petitioners inasmuch as the petitioners were not held guilty of committing any act with mala fide or ill motive. They had merely proposed to the Chief Manager. Such proposal by itself cannot be a misconduct unless it is shown that the same had been done either without any authority or with some ill motive. As regard Charge No. 4 it was held that there was no evidence in relation thereto and thus, the first imputation that the petitioner had recommended a proposal for BD limit of Rs. 48 lakhs in favour of M/s.Crystal for sanction by CO-1 which was beyond the discretionary power, is not maintainable and hence held not established. It has further been held that Presenting Officer has not adduced any other evidence to establish the charge that trade transactions of M/s. Crystal Traders were not genuine, or that the bills discounted were in the nature of accommodation bills, stands not established. The other imputation regarding release of entire funds of Rs.20 lacs had also been held to be not established. With regard to the allegation of not obtaining of Auditor's certificate it has merely been held :
"As Dy. Manager in the Advances Deptt. CO should have taken timely follow up action, including inspection of the premises so as to avoid the irregularities in the account. This is a supervisory lapse on his part."
19. On that ground alone Article 4of the charge was said to stand partly proved against the C.O. to the extent of supervisory lapse.
20. The first imputation of Article 5 of the charges, a benefit of doubt had been given in favour of the petitioner. It has, however, been held that the petitioner had not obtained all the documents as stipulated in the processing note and sanction from the party and avoid irregularities in the account despite the fact that all outstanding balance stands liquidated. The Enquiry Officer concluded by saying:
"The assessment of evidence on record, has, therefore, established the imputations of supervisory lapses, particularly in the matter of proper follow up with regard to the operations in the account and obtaining relevant documents as stipulated in the sanction. Thus, article of charge is held partly proved.
To sum up, the evidence on record in respect of 5 articles of charges against CO, has established certain procedural and supervisory lapses on the part of CO., including poor follow up action with the borrowers on operation of the accounts. However, there is no evidence of motive of mala fide on his part in regard to his conduct.
Findings:
Article I - Partly established. Article II - Not established. Article III - Partly established. Article IV - Partly established. Article V - Partly established."
21. It is, therefore, evident that although the enquiry officer had recorded that the charges had been partly established, in fact, the petitioner had substantially been exonerated from all the charges except lapses of certain procedural aspects or supervisory duty. Such lapses, even according to the enquiry officer, was not done with any ill motive or mala fide on his part. As indicated hereinbefore, upon receipt of the enquiry report, the petitioners filed their representation contending that even those findings which had been made against the petitioners by the enquiry officer are not correct. Curiously enough the disciplinary authority in terms of its letter dated August 20, 1992 set out the charges levelled against the petitioners in verbatim and held:
"The nature of misconduct committed and the charges put against you at the enquiry proceedings force my opinion to inflict 'Major Penalty' as contained in Regulation 4 of UBI Officer Employees' (Discipline & Appeal) Regulation, 1970.
In terms of Regulation 7(3) of the UBI Officer Employees' (Discipline & Appeal) Regulations, 1970 I hereby issue upon you the major penalty of reduction of your basic pay by two stages lower in your existing pay in the time scale with immediate effect.'
22. It is now well settled that when a disciplinary authority agrees with the findings of the enquiry officer, he need not assign any reason but in the instant case the main charges as against the petitioners had not been proved. He did not consider the said aspect of the matter at all. He also failed to take into consideration the representation of the petitioner and by setting out all the charges levelled against him found him guilty thereupon without considering the effect and purport of the findings to the enquiry officer which clearly shows a total non- application of mind on the part of the disciplinary authority. Although no detailed reason was required to be assigned by the disciplinary authority while imposing penalty, the order of punishment passed by him should indicate that he had applied his mind. He evidently failed to do so. There cannot, therefore, be any doubt whatsoever that the said authority failed to pose unto himself the correct question as to whether on the basis of the findings of the enquiry officer particularly in absence of any ill motive or mala fide, the charged officers could be found to be guilty of the charges keeping in view the fact that they were merely the recommending officers and not the sanctioning officer and in any event whether they deserved any major punishment.
23. Non-application of mind on the part of the disciplinary authority is also borne out from the fact that even if the petitioner had not been found guilty in respect of charge No. 2, the said charge has been taken into consideration for the purpose of imposing the penalty.
24. Such procedural or supervisory lapses by itself may not be a misconduct.
25. In Union of India and Ors. v. J. Ahmed (supra) it has been held at p. 18:
"It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character or personal ability would not constitute misconduct for the purpose of disciplinary proceedings."
It has further been held :
"The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:
'Misconduct' means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Utkal Machinery Ltd. v. Workman, Miss Shanti Patnaik (1966-I-LLJ-398) (SC), in the absence of Standing Orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S.Govinda Menon v. Union of India (1967-II-LLJ-249) (SC), the manner in which a member of the service discharged his quasi-judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta (1963-I-LLJ-679), wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence."
26. In Virendra Prasad v. Union of India and Ors. (supra), it has been held at p. 264:
"'Misconduct' in common parlance means bad conduct and some sort of an ill motive or bad motive is an essential ingredient in imputing misconduct on to an individual. Mere error of judgment or a mere negligent way of dealing in the matter cannot by itself be termed to be misconduct. It must be coupled with such other act or acts by which motive would be apparent either expressly or even be inferred by implication. Habitual acts of negligence, however, can be termed to be a misconduct and gross negligence also falls within the same category."
27. The word 'misconduct' has not been defined in the Appeal Regulations, 1976. However, Clause 24 of the United Bank of India Officer Employees' (Conduct) Regulations, 1976, provide that a breach of any of the provisions of these Regulations shall be deemed to constitute a misconduct punishable under the United Bank of India (Discipline and Appeal) Regulations, 1976.
28. There cannot be any doubt whatsoever that the word 'misconduct is a generic term. However, in the instant case, the writ petitioners had not been charged with commission of any specific misconduct in terms of the Conduct Regulations. Be that as it may, the question which arises for consideration in these matters are as noticed hereinbefore is as to whether the writ petitioners can be said to have committed any misconduct on the basis of the findings of the Enquiry Officer. Having gone through the report of the Enquiry Officer, and keeping in view the decisions of the Apex Court in Union of India v. J. Ahmed (supra), and Virendra Prasad v. Union of India and Ors. (supra), we are of the opinion that in terms of the findings arrived at by the Enquiry Officer himself, the alleged procedural lapses and lack of supervision and/or failure on the part of one of the petitioners to pursue the matter cannot come within the purview of the word 'misconduct'. In the case of Dr. Chittaranjan Samanta, the charged officer was also allegedly charged that he had allowed overdrawing during the period mentioned therein, to which the writ petitioner replied in his representation, that since the charge therein has also an element of supervisory lapse the said has no bearing as the same had not been included in the charge sheet, charge of supervisory lapse may be dropped. It appears from the records that this aspect of the matter had not been considered by the disciplinary authority.
29. There is another aspect of the matter. The respondent had not denied that in the matter of imposition of penalty, the disciplinary authority was guided by the directions of the Central Vigilance Commission.
30. Mr. Majumdar has placed before us Vigilance Manual for the purpose of showing as to how the Central Vigilance Commission was constituted and the powers and functions thereof. Regulation 19 of the Discipline Regulation inter alia provides for consultation with Central Vigilance Commission only if the misconduct alleged involves 'vigilance angle'.
In Sunil Kumar Banerjee (supra), the Apex Court held :
"We do not also think that the disciplinary authority committed any serious or material irregularity in consulting the Vigilance Commissioner, even assuming that it was so done. The conclusion of the Disciplinary authority was not based on the advice tendered by the Vigilance Commissioner hut was arrived at independently, on the basis of the charge, the relevant material placed before the Enquiry Officer in support of the charges, and the defence of the delinquent officer. In fact the final conclusions of the disciplinary authority on the several charges are so much at variance with the opinion of the Vigilance Commissioner that it is impossible to say that the disciplinary authority's mind was in any manner influenced by the advice tendered by the Vigilance Commissioner. We think that if the disciplinary authority arrived at its own conclusion on the material available to it, its findings and decision cannot be said to be tainted with any illegality merely because the disciplinary authority consulted the Vigilance Commissioner and obtained his views on the very same material. One of the submissions of the appellant was that a copy of the report of the Vigilance Commissioner should have been made available to him when he was called upon to show cause why the punishment of reduction in rank should not be imposed upon him. We do not see any justification for the insistent request made by the appellant to the disciplinary authority that the report of the Vigilance Commissioner should be made available to him. In the preliminary findings of the disciplinary authority which were communicated to the appellant there was no reference to the views of the Vigilance Commissioner. The findings which were communicated to the appellant were those of the disciplinary authority and it was wholly unnecessary for the disciplinary authority to furnish the appellant with a copy of the report of the Vigilance Commissioner when the findings communicated to the appellant were those of the disciplinary authority and not of the Vigilance Commission, That the preliminary findings of the disciplinary authority happened to coincide with the views of the Vigilance Commission is neither here nor there."
The aforementioned decision itself shows that the disciplinary authority has to arrive at its own conclusion on material available to it and mere consultation would not vitiate the same. What, therefore, is required of the disciplinary authority is application of his own mind. He, in view of the aforementioned decision itself, was required to apply his mind firstly as to whether Regulation 19 can he said to have any application whatsoever in view of the findings of the enquiry officer, in as much as, he appears to have consulted the Vigilance Commission upon obtaining the enquiry report, and further more, when he had the opportunity to go through the same. There is nothing to show on the face of the impugned order of punishment that he had considered this aspect of the matter. In S.P. Agarwal v. Delhi Municipal Corporation (supra), a learned single Judge of Delhi High Court also held that the disciplinary authority is supposed to make up its own mind by appreciation of fact and evidence on record which may be co-related to the advice of the Central Vigilance Commission. In that decision itself, which is a case of like nature, it appears that the disciplinary authority did not apply its mind. Furthermore, the disciplinary proceedings, although technically do not come to an end unless the delinquent officer is either exonerated or inflicted with punishment, there cannot be any doubt that Regulation 19 of the Appeal Regulations must be construed strictly, and in that view of the matter, keeping in view the findings of the enquiry officer, we are of the opinion that the disciplinary authority could not have consulted the Central Vigilance Commission. In Ramkumar v. State of Haryana (supra), the Apex Court was dealing with a matter under the Industrial Disputes Act. The Apex Court has laid down the law in the following terms at p. 505-506:
"In view of the contents of the impugned order, it is difficult to say that the punishing authority had not applied his mind to the case before terminating the services of the appellant. The punishing authority has placed reliance upon the report of the Enquiry Officer which means that he has not only agreed with the findings of the Enquiry Officer, but also has accepted the reasons given by him for the findings. In our opinion, when the punishing authority agrees with the findings of the Enquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to again discuss evidence and come to the same findings as that of the Enquiry Officer and give the same reasons for the findings. We are unable to accept the contention made on behalf of the appellant that the impugned order of termination is vitiated as it is a non-speaking order and does not contain any reason. When by the impugned order the punishing authority has accepted the findings of the Enquiry Officer and the reasons given by him, the question of non-compliance with the principles of natural justice does not arise. It is also incorrect to say that the impugned order is not a speaking order."
31. The aforementioned decision runs counter to the argument of Mr. Majumdar. Although in the order impugned in the writ application, the disciplinary authority has stated about his agreement, evidently by quoting charges as against the delinquent officer in verbatim, it is apparent that he had not applied his mind on the findings arrived at by the enquiry officer. It may be placed on record that the Enquiry Officer was Commissioner of Departmental Enquiry from Central Vigilance Commission itself, and in that view of the matter, it was obligatory on the part of the disciplinary authority to read his findings carefully.
32. Regulation 19 upon which reliance has been placed by Mr.Majumdar would clearly go to show that consultation with Central Vigilance Commission is necessary only if the matter has vigilance angle. The word 'vigilance angle' must be construed as having the same meaning as understood in common parlance. There is nothing to show that the writ petitioner was charged with taking bribe or amassing wealth disproportionate to his known source of income. In fact, as noticed hereinbefore, the enquiry officer has found that there is no evidence to show that the petitioner had acted mala fide or with ill motive. In this view of the matter, no consultation could have been made (assuming that the said provision is intra vires) as there did not exist any vigilance angle.
33. In Nagaraj Shivarao Karjagi v. Syndicate Bank, Head Office Manipal and Anr, (supra) it has been held at p. 151:
"These Regulations have been framed under Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. They were framed by the Board of Directors of the Syndicate Bank in consultation with the Reserve Bank of India and with the previous sanction of the Central Government. Regulation 4 prescribes penalties for acts of misconduct. Regulation 5 specifies the authority to institute disciplinary proceeding and impose penalties. Regulation 6 lays down procedure for imposing major penalties and Regulation 7 provides for action on the inquiry report. Regulation 7 confers power to the disciplinary authority either to agree or disagree with the findings of the inquiry authority on any article of charge. The disciplinary authority may reach its own conclusion on the material on record and impose any penalty prescribed under Regulation 4. Or if it is of the opinion that no penalty should be imposed on the delinquent officer, it may pass an order exonerating the delinquent officer. Regulation 17 provides for appeals against the order imposing any of the penalties specified in Regulation 4. The appellate authority has been given the power to pass any order of penalty or remitting the case to the disciplinary authority or to any other authority for fresh disposal. Regulation 19 provides for consultation with the Central Vigilance Commission. It states that 'the Bank shall consult the Central Vigilance Commission wherever necessary, in respect of all disciplinary cases having a 'vigilance angle'. There, is no other regulation requiring consultation with Central Vigilance Commission, or providing that the advice given by the Commission is binding on the punishing authorities."
34. The decision cited by Mr.Majumdar in Nikunja Bihari Patnaik (supra) is misplaced. In that case it has been held that the petitioners were guilty of commission of misconduct despite various warnings.
35. In Tara Chand Vyas v. Chairman & Disciplinary Authority and Ors. (supra) the Apex Court merely held that misconduct of a bank employee has to be considered with reference to the reason for nationalisation of the bank so as to enable the State to effectuate socio-economic justice and public interest. It was observed that every Employee/Officer in the Bank should strive to see that the banking operations or services are rendered in the best interest of the system and the society so as to effectuate the object of nationalisation. Nothing has been shown before this Court that by reason of any act on the part of the petitioners, the object of nationalisation has been frustrated or the petitioners had acted in a manner which is against the public interest.
36. The submission of Mr.Majumdar to the effect that the operative portions of each of the charges would show that there has been a violation of Conduct Rules, is stated to be rejected. In view of the findings of the enquiry officer, it cannot be said, in view of the decisions of the Apex Court in J.Ahmed (supra) and Virendra Kumar (supra) that the writ petitioners have committed a misconduct.
37. At the cost of repetition, it may be noticed that in Virendra Prasad (supra) it has clearly been stated that some sort of ill motive or bad motive is an essential ingredient in imputing misconduct unto an individual. Such is not the case here. There cannot be any doubt whatsoever that this Court has a limited role to play in the disciplinary proceedings. This Court must confine its jurisdiction of judicial review only in cases of illegality, irrationality or procedural impropriety, but it is also to be borne in mind that a fair procedure is an integral part of the service jurisprudence in the matter of holding departmental proceedings as against a delinquent employee. Once the Court comes to the conclusion that the findings arrived at by the enquiry officer even if given face value and are taken to be correct in their entirety, do not constitute a misconduct or the disciplinary authority is found guilty of a total non-application of mind, the Court can exercise its jurisdiction under Article 226 of the Constitution of India. In the instant case, the disciplinary authority has totally failed to apply its mind on the materials on record. In view of the decision in Ram Kumar (supra), itself, the disciplinary authority could not have based his finding and imposed a punishment upon the delinquent officer without applying his mind to the fact of the matter, and in particular the findings of the enquiry officer. The very fact that he had merely reproduced the charges go to show total non- application of mind on his part, and in that view of the matter, we are of the opinion that the impugned orders cannot be sustained.
38. It is further a trite law that an authority empowered to pass an administrative order which causes a civil or evil consequence against another, must pose unto himself the correct question so as to enable himself to be acquainted with the relevant facts, failing which such action must be held to be a misdirection in law. It is further well known that an authority must not base its decision on any irrelevant matters not germane for the purpose of arriving at a fair decision, and must confine its decision on the relevant facts. The order of the disciplinary authority does not satisfy the aforementioned requirements.
39. The writ petitions are thus allowed and the impugned orders dated August 19, 1992 and August 20, 1992 respectively are, therefore, set aside.
Both the appeals are disposed of with the aforementioned observations and directions.
Prayer for stay of operation of the judgment is considered and refused.
D.B. Dutta, J.
I agree.