Gauhati High Court
Ranjit Kumar Das vs The Assam Financial Corporation And 4 ... on 16 June, 2022
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
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GAHC010140412017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5512/2017
RANJIT KUMAR DAS
S/O- LATE AMULYA PRASAD DAS, R/O- SATI JAYMATI ROAD, SABIPUL
NEAR RAM JANAKI MANDIR, P.O- REHABARI, GUWAHATI-8, DIST-
KAMRUPM, ASSAM
VERSUS
THE ASSAM FINANCIAL CORPORATION and 4 ORS.
REP. BY THE MANAGING DIRECTOR, HAVING ITS OFFICE AT MD. SHAH
ROAD, PALTAN BAZAR, GUWAHATI-8, KAMRUP, ASSAM
2:THE MANAGING DIRECTOR
ASSAM FINANCIAL CORPORATION
MD SHAH ROAD
PALTAN BAZAR
GUWAHATI-8
KAMRUP
ASSAM
3:THE DEPARTMENTAL PROMOTION COMMITTEE
REP. BY THE CHAIRMAN
ASSAM FINANCIAL CORPORATION
MD SHAH ROAD
PALTAN BAZAR
GUWAHATI-8
4:ENQUIRY OFFICER/COMMITTEE
APPOINTED BY MANAGING DIRECTOR UNDER REGULATION 413 OF
STAFF REGULATION
ASSAM FINANCIAL CORPORATION 1951 AS AMENDED
5:K M SAIKIA
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MANAGERCLPC
ASSAM FINANCIAL CORPORATION
MD SHAH ROAD
PALTAN BAZAR
GUWAHAT
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
For the Petitioner : Mr. D. Goswami.
Mr. K. Singha. ... Advocates.
For the respondent nos.1 to 4 : Mr. P.K. Kalita .... Sr. Advocate
Ms. T. Goswami .... Advocate
For the respondent no.5 : None appeared.
Date of hearing & Judgment : 16.06.2022
JUDGMENT AND ORDER
Heard Mr. D. Goswami, learned counsel for the petitioner. Also heard Mr. P.K Kalita, learned Senior Counsel assisted by Ms. T. Goswami, learned counsel appearing for the respondent nos.1 to 4. None appears for the respondent no.5, though this Court in its order dated 31.07.2019 had held that notice was deemed to be served upon the respondent no.5
2. The petitioner by way of this writ petition is challenging the office order dated 17.01.2017 issued by the Managing Director of the Assam Financial Corporation (AFC), by which the petitioner's penalty of Page No.# 3/10 permanent stoppage of increments has been modified to stoppage of two increments. The petitioner has also made a prayer to promote the petitioner to the post of Manager w.e.f. 03.06.2017, the date when the respondent no.5, who is junior to the petitioner had been promoted.
3. The brief facts of the case is that the Managing Director of the AFC issued a show-cause notice dated 12.10.2015 to the petitioner stating that the petitioner, while being the Manager-in-charge of AFC, Nalbari Branch, had taken bribes while sanction had been made for a laon amount of Rs.50,00,000/- by the Head Office, AFC in the name of M/s Diya Disa Associates, Barpeta. That, besides asking for various other amounts from M/s Diya Disa Associates, the petitioner also demanded Rs.25,000/- and costly branded liquor for his consumption and for distribution among the Head Office officials. Further, the Head Office had vide letter dated 17.03.2013 advised the petitioner not to entertain the loan proposal received from M/s Kalita Brick Industry, Nalbari. However, the petitioner had advised Shri S. Sarma, Inspecting Officer (Finance) on the body of the application of the borrower to carry out a detailed inspection of the unit and had accordingly instructed the said Sri S. Sarma to issue a loan application form to the applicant, i.e. M/s Kalita Brick Industry, Nalbari. As the petitioner was found to have committed the offence of mis-conduct and caused damage to the image of the Corporation, he was asked to show cause as to why disciplinary action should not be taken against him.
4. The petitioner submitted his reply dated 22.11.2015 to the show-
Page No.# 4/10 cause notice denying that he had taken any bribe or demanded any money from M/s Diya Disa Associates, Barpeta. However, with regard to the charge that he had been advised not to entertain the loan proposal from M/s Kalita Brick Industry, Nalbari, the petitioner in his reply did not deny the same and despite knowing that he was not to entertain the loan proposal, he had issued the loan application form to M/s Kalita Brick Industry, Nalbari.
5. A Disciplinary Proceeding was initiated against the petitioner and the Inquiry Officer came to a finding in his Inquiry Report that the charge of the petitioner having taken bribes and collected liquor from M/s Diya Disa Associates, Barpeta could not be proved. In respect of the loan proposal being submitted by M/s Kalita Brick Industry, Nalbari, the Inquiry Officer came to a finding that the petitioner did not obey the instructions of the superior authority and misutilized his official power when he received the proposal form from M/s Kalita Brick Industry, Nalbari for additional loan. The Disciplinary Authority thereafter issued order dated 23.05.2016 imposing the penalty of stoppage of increments under Regulation 41(1)(c) of Assam Financial Corporation (Amendment) Staff Regulation, 2007, which amounts to permanent stoppage of increments. The petitioner thereafter filed an appeal and the Appellate Authority vide office order dated 17.01.2017 modified the earlier penalty of permanent stoppage of increments to stoppage of two increments which were to fall due on 01.07.2016 and 01.07.2017.
6. The petitioner's counsel submits that though the petitioner had Page No.# 5/10 received the letter from the Head Office advising him not to entertain the loan proposal of M/s Kalita Brick Industry, Nalbari, the petitioner had given the loan application form, due to the fact that the Head Office had also written a letter dated 19.02.2013, asking the petitioner to send a detailed status report of the working, security and repayment position of M/s Kalita Brick Industry, Nalbari. Thus, the petitioner had directed that an enquiry should be conducted in terms of the Head Office letter dated 19.02.2013. Accordingly, on the belief that the Head Office was considering giving additional loan to M/s Kalita Brick Industry and as a promoter of the M/s Kalita Brick Industry had assured the officials of the Branch in which the petitioner was working that he would regularize the loan amount, the petitioner had given the promoter of M/s Kalita Brick Industry the loan application form. The petitioner's counsel also submits that the Inquiry Report was not provided to the petitioner, prior to the petitioner being imposed the penalty of permanent stoppage of increment, which was subsequently modified by the Appellate Authority to stoppage of two increments. He submits that due to the fact that no Inquiry Report was furnished to the petitioner, which is mandatory, the non-furnishing of the same rendered the penalty imposed upon the petitioner invalid, as the disciplinary proceedings had been vitiated.
7. The petitioner's counsel submits that the petitioner being senior to the respondent no.5 in the Grade of Assistant Manager (Technical), the petitioner could not have been superseded by the respondent no.5 for promotion to the post of Manager, vide the impugned order dated 03.06.2017. He accordingly submits that the petitioner should be promoted to the post of Manager w.e.f. 03.06.2017.
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8. Mr. P.K. Kalita, learned Senior Counsel for the respondent nos.1 to 4 submits that the petitioner had confessed to not paying heed to the advice sent by the Head Office (Corporation) not to entertain the loan proposal form of M/s Kalita Brick Industry. However, despite the said fact, the petitioner had issued a loan application form to M/s Kalita Brick Industry. He also submits that the said fact is not denied by the petitioner in his reply dated 22.11.2015 submitted in response to the show-cause notice dated 12.10.2015. He also submits that the petitioner in his letter dated 03.03.2016, which is addressed to the respondent no.2, wherein he had prayed for withdrawal of his suspension order, had categorically admitted to issuing the loan application form to M/s Kalita Brick Industry. He accordingly submits that no prejudice is caused to the petitioner by not submitting an Inquiry Report prior to the disciplinary authority taking a decision on the disciplinary proceedings. The learned Senior Counsel for the respondent nos.1 to 4 also submits as the petitioner was not found fit for promotion, he was not promoted to the post of Manager, though the case of the petitioner was also considered for promotion.
9. I have heard the learned counsels for the parties.
10. The pleadings and the averments made by the counsels for the parties clearly goes to show that the petitioner had been found guilty by the Inquiry Officer, with regard to entertaining the loan proposal made by M/s Kalita Brick Industry, by issuing him a loan application form, Page No.# 7/10 though he had been advised by the Head Office vide letter dated 17.01.2013 not to entertain the loan proposal of M/s Kalita Brick Industry. The said charge has not been denied by the petitioner in his reply dated 22.11.2015 to the show cause notice and letter dated 03.03.2016. As such, the Disciplinary Authority had thereafter imposed the penalty of permanent stoppage of increments. However, the Appellate Authority on appeal, modified the penalty of permanent stoppage of increment to stoppage of two increments.
11. In the case of Lalit Popli vs. Canara Bank reported in (2003) 3 SCC 583, the Apex Court has held that while exercising jurisdiction under Article 226 of the Constitution, the High Court does not act as an Appellate Authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice.
12. In the present case, the petitioner has been found guilty of entertaining the loan proposal of M/s Kalita Brick Industry, by issuing a loan application form, despite written advice given by the Head Office. The challenge made by the petitioner to the disciplinary proceedings is on the ground that no Inquiry Report was furnished to the petitioner, prior to the Disciplinary Authority taking a decision on the same and as such, the entire disciplinary proceeding was vitiated.
13. In the case of Managing Director, ECIL, Hyderabad vs. B. Karunakar, reported in (1993) 4 SCC 727, the Constitution Bench of the Page No.# 8/10 Apex Court has held that the doctrine of natural justice requires supply of a copy of the Inquiry Officer's report to the delinquent officer. It also held that non-supply of the inquiry report is a breach of natural justice. However, the Constitution Bench further held that it is equally clear that failure to supply the Inquiry Report to the delinquent employee would not ipso facto result in the proceedings being declared null and void and order of punishment non est ineffective. It is for the delinquent employee to plead and prove that non-supply of such report has caused prejudice and resulted in miscarriage of justice. The Constitution Bench thus held that if the delinquent employee is unable to satisfy the Court on that point, the order of punishment cannot be automatically set aside.
14. Thus, the question that is required to be decided is whether the non-supply of the Inquiry Report to the petitioner, in the facts and circumstances of this case, had caused any prejudice to the petitioner. One of the tests to determine whether any prejudice has been caused to the petitioner, would be to see whether the reply of the petitioner to the Inquiry Report would have been different, considering the stand taken by the petitioner in the writ petition and/or in the reply to the show cause notice.
15. In the present case, the petitioner has not denied the fact that the head office had given him an advice, vide letter dated 17.01.2013, not to entertain the loan proposal of M/s Kalita Brick Industry and despite the said fact being known to him, the petitioner had given a loan application Page No.# 9/10 form to the said M/s Kalita Brick Industry. This is clear from the reply submitted by the petitioner to the show cause notice, the letter dated 03.03.2016 and the stand taken by the petitioner in this writ petition. All the other charges with respect to M/s Diya Disa Associates have not been proved by the Inquiry Officer. As such, even if an Inquiry Report had been submitted to the petitioner, there would not have been any difference in the stand taken by the petitioner, if a representation had been submitted by him in reply to the Inquiry Report. Accordingly, this Court is of the view that no prejudice has been caused to the petitioner on account of non-furnishing of the Inquiry Report to him, with regard to disobeying the advice of the Head Office.
16. Accordingly, this Court is of the view that the Disciplinary Proceedings cannot be declared to be null and void, as there has been no miscarriage of justice due to non-supply of the Inquiry Report. The above being said, the prayer of the petitioner in this writ petition is to set aside the order dated 17.01.2017, whereby the petitioner had been imposed with the penalty of withholding of two increments. The petitioner has not prayed for setting aside the disciplinary proceedings or the findings of Enquiry Report. In the case of Bharat Amratlal Kothari vs Dosukhan Samad Khan Sindhi, reported in (2010) 1 SCC 234, the Supreme Court has held that High Courts should not grant a relief not prayed for under Article 226 of the Constitution.
17. With regard to the petitioner's prayer for promoting him to the post of Manager w.e.f. 03.06.2017, i.e. the date his junior was promoted to Page No.# 10/10 the post of Manager, this Court is of the view that the said prayer cannot be granted, as the petitioner has been imposed with permanent stoppage of increment vide office order dated 23.05.2016, which was modified by the Appellate Authority vide office order dated 17.01.2017 to stoppage of two increments which were due on 01.07.2016 and 01.07.2017, the import of which would mean the petitioner could not have been considered for promotion, as the petitioner was still undergoing the penalty/punishment when the respondent no.5 was promoted to the post of Manager.
18. In view of the reasons stated above, the writ petition stands dismissed.
JUDGE Comparing Assistant