Calcutta High Court (Appellete Side)
Naba Kumar Ghosh vs The State Of West Bengal & Ors on 24 September, 2014
Author: R. K. Bag
Bench: Tapan Kumar Dutt, R. K. Bag
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Tapan Kumar Dutt,
And
Hon'ble Justice R. K. Bag,
F.M.A. 2833 of 2013
Naba Kumar Ghosh
V.
The State of West Bengal & Ors.
For the Appellant : Mr. Amales Roy,
Mr. Subhas Ch. Basu,
Mr. Ashis Kr. Dutta,
Mr. Sudipta Ghosh,
Mr. Dabarshi Dhar,
For the Respondent/ : Mr. Amitesh Banerjee,
Bank Mr. P. K. Srivastava,
Mr. P. Garai,
Ms. Rima Das,
Ms. A. Saha,
Heard on : 18.08.2014, 19.08.2014,
20.08.2014, 26.08.2014
27.08.2014.
Judgment on : 24.09.2014
R. K. Bag, J.
This appeal at the instance of the appellant/writ petitioner arises out of judgment and order dated 13th and 22nd August, 2012 passed in W.P. 21359 (W) of 2008, by which Learned Single Judge was pleased to dismiss the writ petition.
2. The appellant was a supervisor in the Hooghly Co-
operative Agriculture and Rural Development Bank Limited (hereinafter referred to as the respondent bank). One Shyamal Kanti Mondal alias Shyamal Mondal applied for sanction of loan from Haripal Branch of the respondent bank for establishment of his business for the purpose of manufacturing and repairing body of motor vehicles. The Bank Authority did not sanction the loan and as such the said Shyamal Kanti Mondal moved the High Court for direction to the Bank Authority for sanction of his loan. On 17.11.1998 the High Court passed order in a writ petition for consideration of the prayer of Shyamal Kanti Mondal for sanction of loan. On 25.06.1999 the Bank sanctioned a loan of Rs.8,00,000/- for the said business of Shyamal Kanti Mondal. The appellant joined the Haripal Branch of the respondent bank in the year 2000 by way of transfer as Supervisor. The appellant made an inspection of the proposed business site of Shyamal Kanti Mondal and submitted report on the basis of which the Chief Executive Officer of the respondent bank disbursed second instalment of loan of Rs.2,07,000/- for block capital and third instalment of loan of Rs.50,000/- for working capital on 15.12.2000 and also disbursed loan of Rs.1,10,000/- on 07.07.2001 by issuing cheque in favour of the loanee instead of the supplier. It was subsequently detected by the respondent bank that the appellant violated the procedure for disbursement of loan and thereby committed misconduct for which he was dismissed from service along with two other employees of the respondent bank. The penalty imposed on the appellant by the respondent bank was quashed by the High Court on 05.07.2005 in W.P. 8483 (W) of 2005. Thereafter, the Disciplinary Authority of the appellant started de novo disciplinary proceeding from the stage of charge sheet and imposed penalty of dismissal from service after conducting departmental enquiry. The appellant preferred appeal against the order of dismissal from service, but the Appellate Authority confirmed the order of dismissal passed by the Disciplinary Authority.
3. The order of the Appellate Authority passed on 29.04.2008 against the appellant was challenged by filing W.P.21359 (W) of 2008 and the said writ petition was dismissed by Learned Single Judge. The appellant has challenged the said order of dismissal of the writ petition in this appeal. Before considering the elaborate rival submissions made by Learned Counsels of both the parties, it is necessary to decide whether de novo disciplinary proceeding started against the appellant is sustainable in law. It is pertinent to quote the relevant portion of the order passed on 05.07.2005 in W.P.8483 (W) of 2005 by Learned Single Judge of this Court:
"In view of the submissions made, I direct the Disciplinary Authorities to proceed with the proceedings de novo from the charge sheet stage. Such proceedings shall be concluded within a period of four months from the date of communication of this order.
Since I have directed the Disciplinary Authorities to proceed de novo, the consequential orders passed after the stage of show cause are hereby quashed. The order of dismissal is also set aside and quashed."
4. Mr. Amales Roy, Learned Counsel for the appellant contends that in the instant case show cause was given to the appellant before issuing the charge sheet. He further contends that the High Court has quashed all the orders passed after the stage of show cause, which implies that the charge sheet issued against the appellant was also quashed and therefore the de novo departmental enquiry started on the basis of the earlier charge sheet cannot sustain in law. Mr. Roy has relied on the case of "Chairman-cum-Managing Director, Coal India Limited V. A Sinha and Ors." reported in (2011) 5 SCC 142 in support of his contention that the disciplinary proceeding commences only when the charge sheet is issued to the delinquent employee and the meaning of de novo enquiry is clearly spelt out as an enquiry on the basis of fresh charge sheet. However, Mr. Amitesh Banerjee, Learned Counsel appearing for the respondent bank has interpreted two paragraphs of the order passed by the High Court to the effect that in the instant case de novo departmental enquiry means departmental enquiry from the charge sheet stage i.e. on the basis of earlier charge sheet issued to the appellant.
5. On perusal of paragraphs 27, 28, 32 and 33 of the decision reported in (2011) 5 SCC 142 (Chairman-cum- Managing Director, Coal India Limited V. A Sinha and Ors.) it appears that the Supreme Court has laid down that the disciplinary proceeding commences only when the charge sheet is issued to the delinquent employee and when the High Court has given liberty to the Disciplinary Authority to hold de novo enquiry, the entire earlier proceeding including the charge sheet issued stood quashed and in such fact situation it is not permissible for the Disciplinary Authority to proceed on the basis of the charge sheet issued earlier. In the instant case, the High Court has directed the Disciplinary Authority to proceed with the departmental enquiry de novo from the charge sheet stage and to conclude the same within a period of four months from the date of communication of the order and at the same time the consequential orders passed by the Disciplinary Authority from the stage of show cause have been quashed. On an interpretation of the order passed by the High Court it is crystal clear that the orders passed by the Disciplinary Authority after the stage of the show cause have been quashed, but the charge sheet already issued to the appellant has not been quashed, particularly when the High Court has directed the Disciplinary Authority to proceed de novo from the charge sheet stage. In the reported decision the Apex Court has decided the meaning of de novo enquiry, but in the case at hand the High Court has directed not simply de novo enquiry, but de novo enquiry from the charge sheet stage and as such the ratio of the decision reported in (2011) 5 SCC 142 will not be applicable in the facts and circumstances of the present case. Accordingly, we hold that the respondent bank had the authority to start de novo departmental enquiry against the appellant on the basis of earlier charge sheet issued to the appellant.
6. Mr. Roy, Learned Counsel for the appellant has urged this court to consider that the charge against the appellant was defective on three counts: first, list of witnesses and list of documents were not disclosed in the charge sheet, secondly, there is anomaly in articles of charge and statement of imputation of misconduct, so far as the disbursement of loan and recommendation for disbursement of loan are concerned, and thirdly, the procedure for disbursement of loan was not part of the charge framed against the appellant. On the other hand, Mr. Banerjee, Learned Counsel for the respondent bank has referred to the provisions of Rule 48(f) of the West Bengal Co-operative Societies Rules, 1987 and submits that the only requirement of the Disciplinary Authority is to inform the delinquent employee of the charges against him and give him a reasonable opportunity of being heard in respect of those charges. Mr. Banerjee further submits that the appellant is well aware of the fact that he made recommendation for disbursement of loan to Shyamal Kanti Mondal without following the procedure laid down by the Bank and as such the anomalies pointed out in the charge cannot stand on the way of understanding the allegations disclosed in the articles of charge issued to the appellant.
7. Having heard Learned Counsels of both parties and on consideration of the materials on record we find that the appellant has disclosed in the reply to the charges that he has made recommendation for disbursement of loan after disclosing the fact that the machines have been supplied but not installed in the shed of the loanee and that the Chief Executive Officer of the Bank has disbursed the 2nd, 3rd and 4th instalment of the loan without following the procedure laid down by the Bank. Under such circumstances, we are of the view that the appellant was informed of the charges against him as laid down in Rule 48(f) of the West Bengal Co-operative Societies Rules, 1987 and as such we don't find any substance in the submission made on behalf of the appellant that the charge is defective.
8. The submission of Mr. Roy is that the appellant was not given reasonable opportunity of being heard by the Enquiry Officer and the principles of natural justice have been violated by the Enquiry Officer in conducting the departmental enquiry. Mr. Roy has elaborated his submission by stating that the documents produced by the Presenting Officer were not proved by adducing any oral evidence by any witness on behalf of the Disciplinary Authority. Even assuming that the Enquiry Officer proceeded ex parte due to absence of the appellant in course of the enquiry, the Enquiry Officer is duty bound to record the statement of the witnesses on behalf of the Disciplinary Authority for arriving at the conclusion that the charge has been established. The further submission of Mr. Roy is that the departmental enquiry is vitiated for violation of the procedure for holding departmental enquiry and for violation of the principles of natural justice in as much as the Enquiry Officer did not give the appellant any opportunity to cross-examine the Chief Executive Officer of the respondent bank. According to Mr. Roy, the findings of the Enquiry Officer are not based on evidence and as such the same findings must be struck down as perverse. Mr. Roy has relied on the following reported decisions in support of his above contentions: i) (2009) 2 SCC 570, ii) (2010) 2 SCC 772,
iii) (2006) 5 SCC 88, iv) (2006) 4 SCC 713, v) AIR 1962 SC 1348, vi) (1999) 2 SCC 10, vii) (2009) 2 SCC 541, VIII) (1986) Lab IC 1166, ix) AIR 1976 SC 2086.
9. Mr. Banerjee has contented that the Enquiry Officer was engaged from outside the Bank in order to maintain the impartiality and fairness in conducting the departmental enquiry. He submits that the Enquiry Officer has followed the principles of natural justice and even if there is violation of the principles of natural justice, the appellant has not been able to establish that he has been prejudiced by such violation of the principles of natural justice and as such the appellant is not entitled to get any relief in this regard. Mr. Banerjee also submits that the appellant was well aware of the fact of making recommendation for disbursement of loan in violation of the established procedure to be followed in this regard and in the background of this indisputable facts the writ court will not exercise the jurisdiction even if there is violation of the principles of natural justice. Mr. Banerjee has pointed out from the materials on record that there was no formal prayer of the appellant before the Enquiry Officer for examination of the Chief Executive Officer of the respondent bank and as such the plea of the appellant that the Enquiry Officer did not give him the opportunity to cross-examine the Chief Executive Officer cannot be accepted by the court. Mr. Banerjee has relied on the following decisions in support of his contention: i) (1980) 4 SCC 379, ii) (2000) 7 SCC 529 and iii) (2009) 10 SCC 32.
10. It appears from the materials on record that one retired Assistant Registrar of Co-operative Society was appointed as Enquiry Officer by the Disciplinary Authority in the meeting held on 02.08.2005. It is pertinent to point out that Board of Directors of the Co-operative Society is the Disciplinary Authority and the General Body of Members of the Co-operative Society is the Appellate Authority as laid down in clause 15(1) of the appendix to Chapter-VI of the West Bengal Co-operative Societies Rules, 1987. The procedure for conducting the departmental enquiry is laid down in Rule 48(f) of the West Bengal Co-operative Societies Rules, 1987 which is as follows: "To appoint, discharge or to dismiss or to remove employees of the society: provided that no employee of a Co-operative Society shall be dismissed or removed from service except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges, and where it is proposed, after such enquiry, to dismiss or remove him, until he has been given a reasonable opportunity of making representation on the penalty proposed." The law applicable to the appellant for the purpose of conducting departmental enquiry indicates that for imposition of major penalty of dismissal or removal from service he must be informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and after such enquiry a reasonable opportunity of making representation on the penalty proposed must be given.
11. It also appears from record that in this case the Enquiry Officer had to keep in mind the direction given by the High Court on 05.07.2005 in W.P. 8483 (W) of 2005 that the disciplinary proceeding must be concluded within a period of four months from the date of communication of the order. It appears from the memorandum dated 02.08.2005 by which the Enquiry Officer was communicated about his appointment by the Board of Directors of the Society that the Board of Directors of Society was aware of the order of the High Court before 09.07.2005. It also appears from the said memorandum dated 02.08.2005 that the Disciplinary Authority specifically asked the Enquiry Officer to complete the enquiry and to submit the report within 22.09.2005, so that the entire disciplinary proceeding may be concluded within the time frame given by the High Court. With the above factual position the Enquiry Officer was duty bound to complete the entire departmental enquiry within 22.09.2005. It is also relevant to point out that the Enquiry Officer conducted the departmental enquiry jointly against the appellant and two other employees of the respondent bank. The copy of orders passed by the Enquiry Officer in course of conducting the departmental enquiry indicate that on 16.08.2005 the appellant was absent and did not submit any reply to the charges, but prayed for time to give reply to the charges. On 30.08.2005 all the charged officers including the appellant were present and they were given opportunity to examine the documents in respect of the loan case of Shyamal Kanti Mondal to which they expressed their unwillingness and as such the verification of the documents in respect of the said loan case was dispensed with. On 09.09.2005 the reply to the charge given by the charged officers including the appellant was examined and on 12.09.2005 the copy of all relevant documents prayed by the appellant were handed over to the appellant and the next date was fixed on 15.09.2005 for oral evidence or submission to be made by the charged officers including the appellant. However, on 15.09.2005 the appellant was absent, nor did he pray for any adjournment of hearing before the Enquiry Officer. Since the Enquiry Officer was duty bound to submit the report on or before 22.09.2005 in order to conclude the disciplinary proceeding within a period of four months from the date of communication of the order of the High Court, the Enquiry Officer had to proceed ex parte and submit the report on 22.09.2005. The appellant was well aware that the disciplinary proceeding is to be concluded within a period of four months from the date of communication of the order of the High Court, but initially he prayed for adjournment of hearing without giving reply to the charges and thereafter he was absent from the enquiry without any reason. This conduct of the appellant must be kept in mind for consideration of the submission made on behalf of the appellant that the appellant was not given reasonable opportunity of hearing and the principles of natural justice were violated by the Enquiry Officer.
12. With the above background of conducting the enquiry we would like to consider the submissions made by Learned Counsels of both parties and the decisions on which they relied on. Relying on "Rup Singh Negi V. Punjab National Bank and Ors." reported in (2009) 2 SCC 570, Learned Counsel for the appellant contends that the documents relied on by the Enquiry Officer were not evidence as those documents were not proved by adducing oral evidence. In the above reported case, the Enquiry Officer relied on the first information report and other materials collected during police investigation without examination of any witness to prove those documents, whereas in the instant case, the appellant was given the opportunity to make verification of the documents of the loan case and the appellant refused to verify the same and those documents were not collected by the police in course of investigation and as such the ratio of the decision of the Supreme Court in "Rup Singh Neogi V. Punjab National Bank and Ors." reported in (2009) 2 SCC 570 will not be applicable in the facts of the present case.
13. Reliance was placed by Learned Counsel for the appellant on the case of "State of Uttar Pradesh V. Saroj Kumar Sinha" reported in (2010) 2 SCC 772 to advance the argument that even in case of ex parte hearing the Enquiry Officer is duty bound to record the statement of the witnesses in support of the charges framed against the appellant. In the above reported case, the peon of the respondent bank was dismissed from service on the charge of theft of Bank draft book. The peon was acquitted of the charge by the criminal court. The enquiry was started after acquittal by the criminal court and the peon was held guilty on the basis of his confessional statement before the police and F.I.R. lodged by the Bank Authority without proving those documents on the basis of which the peon was already acquitted of the charge by the criminal court. In the instant case, the Enquiry Officer relied on the documents which were initially offered to the appellant for verification and subsequently copy of the same were handed over to the appellant and the issue of verification of the document by the appellant was dispensed with when the appellant expressed his unwillingness to verify the same. Accordingly, the ratio of the decision of "State of Uttar Pradesh V. Saroj Kumar Sinha" reported in (2010) 2 SCC 772 will not be applicable in the facts of the present case.
14. In "M. V. Bijlani V. Union of India and Ors." reported in (2006) 5 SCC 88 the Supreme Court has laid down in paragraph 25 that the Enquiry Officer cannot enquire into the allegations with which the delinquent officer had not been charged with. Relying on the above decision Learned Counsel for the appellant submits that the inference of the Enquiry Officer about misutilisation and misappropriation of fund cannot sustain as no charge in this regard was framed in the charge sheet. On perusal of the articles of charge, it appears that there is specific charge of misappropriation and dishonesty in connection with the business and property of the Bank and as such the decision of the Supreme Court reported in (2006) 5 SCC 88 does not help the appellant, because in this case the Enquiry Officer conducted the enquiry into the allegation with which the appellant was charged. In "Narinder Mohan Arya V. United India Insurance Company Limited" reported in (2006) 4 SCC 713, the Supreme Court has laid down in paragraph 44 that the evidence adduced on behalf of the management must have nexus with the charges and mere ipse dixit on his part cannot be a substitute of evidence. Relying on the above decision, Mr. Roy contended that the Enquiry Officer held that the appellant violated the guidelines of the Apex Bank for disbursement of loan, but the allegation for violation of the guidelines was not mentioned in the charge. This contention on behalf of the appellant cannot be accepted, because the articles of charge and the statement of imputation of misconduct indicate that the appellant was informed of the irregularities committed by him in disbursement of the loan. Thus, it cannot be said in the facts and circumstances of the present case that the evidence considered by the Enquiry Officer has no nexus with the charge framed against the appellant. Accordingly, the decision of the Supreme Court reported in (2006) 4 SCC 713 is not relevant and helpful for the appellant in this case.
15. In "Imperial Tobacco Company of India Limited V. Its Workmen" reported in AIR 1962 SC 1348, the Supreme Court has held in paragraph 4 that the evidence should have been taken ex parte and the enquiry should have been completed even when the delinquent employee had withdrawn from the enquiry. Relying on the said reported decision, it is contended on behalf of the appellant that the Enquiry Officer did not ask the Presenting Officer to adduce oral evidence for the purpose of ex parte hearing and as such the Enquiry Officer did not follow the procedure of ex parte hearing to establish the charge against the appellant. In the reported case, it is held by the Supreme Court that the Enquiry Officer did not conduct the enquiry in the manner required by the standing orders issued by the employer, whereas in the instant case the only requirement of Rule 48(f) of the West Bengal Co-operative Societies Rules, 1987 is that the reasonable opportunity of hearing in respect of the charges must be given to the appellant. Since the appellant was absent from the enquiry on two consecutive dates without any reason and since the Enquiry Officer was duty bound to proceed for ex parte hearing in order to conclude the enquiry within 22.09.2005 for compliance with the direction given by the High Court, we are of the view that the appellant was given reasonable opportunity of hearing in respect of the charges framed against him. Since the appellant is governed by separate rules, the ratio of the decision reported in AIR 1962 SC 1348 cannot be made applicable in the facts of the present case.
16. In "Kuldeep Singh V. Commissioner of Police and Ors."
reported in (1999) 2 SCC 10 it is held by the Supreme Court in paragraph 32 that reasonable opportunity contemplated by Article 311(2) means hearing in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in presence of the delinquent who shall be given opportunity to cross-examine them. Relying on the above reported decision, it is contended on behalf of the appellant that the Presenting Officer did not examine any witness in the enquiry and the appellant was not given the opportunity to cross-examine any witness and as such the appellant did not get reasonable opportunity of hearing. The facts of "Kuldeep Singh V. Commissioner of Police and Ors." relate to the departmental enquiry under Delhi Police (Punishment and Appeal) Rules, 1980, where the provision is made under Rule 16(3) to bring the statement of witness on record without producing him at the domestic enquiry. This provision of Rule 16(3) of Delhi Police (Punishment and Appeal) Rules, 1980 was interpreted by the Supreme Court in the light of the provisions contained in Article 311(2) of the Constitution of India and in that connection the Supreme Court has laid down the proposition that all the witnesses in the departmental enquiry shall be examined in presence of the delinquent officer who shall be given opportunity to cross-examine them. In the instant case, there is no specific procedure laid down in the rules for the purpose of examination of the witnesses and as such the ratio of the decision of the case in "Kuldeep Singh V. Commissioner of Police and Ors." reported in (1999) 2 SCC 10 cannot be made applicable in the facts of the present case.
17. Relying on "Union of India and Ors. V. Prakash Kumar Tandon" reported in (2009) 2 SCC 541 and "Broja Ballav Ghose V. Union of India and Ors." reported in 1986 Lab I. C. 1166 and "State of Punjab V. Dewan Chuni Lal"
reported in AIR 1970 SC 2086, Mr. Roy has contended that the Enquiry Officer has blatantly violated the principles of natural justice without giving the appellant opportunity to cross-examine the Chief Executive Officer of the respondent bank. Mr. Roy has pointed out from the materials on record that the appellant recommended for the loan after disclosing the fact that the machines have been supplied but not installed in the shed constructed by the loanee, but the Chief Executive Officer of the respondent bank has disbursed the instalment of the loan knowing fully well that the previous loan amount has not been utilised and as such the appellant should have been given the opportunity to cross-examine the Chief Executive Officer for which the appellant has specifically stated in the reply submitted in response to the statement given by the Chief Executive Officer of the respondent bank. In this regard, Mr. Banerjee has specifically submitted that there was no formal prayer of the appellant before the Enquiry Officer for examination of the Chief Executive Officer of the respondent bank and as such the appellant cannot take the plea of violation of the principles of natural justice before this court. Mr. Banerjee has also pointed out from the materials on record that the appellant made recommendation for disbursement of loan even when he knew that the previous loan amount was not utilised by the loanee and that the appellant recommended for disbursement of both block capital of Rs.2,07,000/- and working capital of Rs.50,000/- and also for disbursement of Rs.1,10,000/- in favour of loanee instead of supplier of the materials in violation of the procedure for disbursement of loan. In "Union of India and Ors. V. Prakash Kumar Tandon" reported in (2009) 2 SCC 541, it is held by the Supreme Court in paragraph 15 that the Enquiry Officer must consider the application of the delinquent officer for summoning a witness and pass an order on the basis of the said application. In the instant case, the appellant did not submit any specific application before the Enquiry Officer for summoning the Chief Executive Officer in course of the enquiry. What transpires from record is that the appellant had withdrawn himself from the enquiry after obtaining copy of the documents and after expressing his unwillingness to verify the documents on which the Presenting Officer relied on to establish the charge. The disclosure of intention of the appellant to put a few questions to the Chief Executive Officer of the respondent bank in his reply in response to the statement of the Chief Executive Officer of the respondent bank, cannot be construed as an application of the appellant before the Enquiry Officer for summoning the Chief Executive Officer for cross- examination as contended on behalf of the appellant. Naturally, the ratio of the decision of "Union of India and Ors. V. Prakash Kumar Tandon" reported in (2009) 2 SCC 541 is not applicable in the facts of the present case.
18. In "Broja Ballav Ghose V. Union of India" reported in 1986 Lab. I. C. 1166, it is held by the Division Bench of our High Court in paragraph 6 that the principle of natural justice is violated when witnesses who would have proved or disproved the charge were held back from enquiry, though proposed to be examined. In the instant case, the Chief Executive Officer of the respondent bank was not held back from enquiry. It appears from the materials on record that the Chief Executive Officer expressed his willingness to be present in the enquiry, but the appellant was absent from the enquiry after obtaining the copy of the documents from the Enquiry Officer. So, the proposition of law laid down by the Division Bench of our High Court in the decision of "Broja Ballav Ghose V. Union of India" reported in 1986 Lab. I. C. 1166 will not be applicable in the present case.
19. In "State of Punjab V. Dewan Chuni Lal" reported in AIR 1970 SC 2086, it is held by the Apex Court in paragraph 25 that refusal of the right to examine witnesses amounted to denial of the reasonable opportunity of showing cause against the action. The contention on behalf of the appellant is that the denial of the opportunity to examine the Chief Executive Officer of the respondent bank amounted to denial of reasonable opportunity of hearing of the appellant. We have already pointed out that the appellant had withdrawn himself from the enquiry after obtaining copy of the documents from the Enquiry Officer and as such the appellant cannot take the plea that Enquiry Officer did not give him reasonable opportunity of hearing by not summoning the Chief Executive Officer of the respondent bank in the enquiry. So this decision of the Apex Court is not relevant for deciding the issue involved in this appeal.
20. Learned Counsel for the respondent bank submits that the writ petitioner has admitted the fact that he recommended for disbursement of the loan, though the previous loan was not utilized by the loanee in the block capital by installing the machines for the purpose of business in the proposed garage. In "S. L. Kapoor V. Jagmohan and Ors." reported in (1980) 4 SCC 379, it is held by the Supreme Court in paragraph 24 that the court may not issue its writ to compel the observance of natural justice where on the admitted or indisputable facts for which one conclusion is possible and under the law only one penalty is permissible. We have already observed that in this case the principles of natural justice have not been violated in conducting the departmental enquiry. However, in this case it may not be possible to draw only one conclusion and only one penalty from the materials on record so this decision of the Supreme Court is not relevant for deciding the issue involved in this appeal.
21. In "Aligarh Muslim University and Ors. V. Mansoor Ali Khan" reported in (2000) 7 SCC 529, it is held by the Supreme Court in paragraph 25 that the question of violation of the principles of natural justice ultimately depends on the facts of a particular case. In the facts situation of the present case we are of the view that the principles of natural justice have not been violated in conducting the departmental enquiry by the Enquiry Officer who was duty bound to conclude the enquiry within the time frame given by the High Court. In "Biecco Lawrie Limited and another V. State of West Bengal and another" reported in (2009) 10 SCC 32, it is held by the Supreme Court in paragraph 44 that the observance of the principles of natural justice would be merely a useless formality when the delinquent employee had admitted the charges against him. In the instant case, the appellant has not admitted the charges against him but he had withdrawn from the enquiry after the stage of receiving the copy of the documents and as such we have already held that the principles of natural justice have not been violated by the Enquiry Officer in conducting the enquiry. So, this decision of the Supreme Court is also not relevant for deciding the issue involved in this appeal.
22. Admittedly, the order of imposition of penalty on the appellant by the Disciplinary Authority was challenged before the Appellate Authority and the Appellate Authority affirmed the order of imposition of penalty by the Disciplinary Authority. Mr. Roy has contended that the Appellate Authority has not assigned reasons in the order when the appellant raised many objections against the order of the Disciplinary Authority and as such the order of the Appellate Authority is vitiated for non- application of mind. Mr. Roy has referred to the decisions reported in (2011) 1 WBLR (Cal) 801, (2006) 4 SCC 713, (2006) 11 SCC 147 in support of his above contention. On the other hand, Mr. Banerjee has referred to the decisions reported in AIR 1969 SC 414, AIR 1966 SC 1827, 1987 (Supp) SCC 582 in support of his contention that the Appellate Authority need not assign reasons for concurring with the views of the Disciplinary Authority. Mr. Banerjee has also relied upon the decision of the Apex Court reported in (1995) 6 SCC 749 to put forward the argument that the court will not exercise the power of judicial review when the conclusion of the Disciplinary Authority is based on some evidence and the principles of natural justice have been followed.
23. In "Ashim Kumar Sarkar V. Union of India and Ors."
reported in (2011) 1 WBLR (Cal) 801, it is laid down by the Division Bench of our High Court in paragraph 28 and 29 that the order of Disciplinary Authority will be vitiated for non-application of mind if the Disciplinary Authority does not deal with the objections raised by the delinquent employee against the findings of the Enquiry Officer and that the order of the Appellate Authority also will be vitiated for non-application of mind if the Appellate Authority rejects the appeal of the delinquent employee without recording independent findings at the time of accepting the findings of the Disciplinary Authority. In "Director (Marketing), Indian Oil Corporation Limited and another. V. Santosh Kumar"
reported in (2006) 11 SCC 147, the Supreme Court had set aside the order of both Appellate Authority and Disciplinary Authority and remitted the case of the delinquent employee for fresh disposal by the Disciplinary Authority on the ground that the order of dismissal passed by both the Disciplinary Authority and the Appellate Authority were vitiated for non-application of mind. In this reported case non-speaking order was passed both by the Disciplinary Authority and the Appellate Authority, whereas in the case at hand the speaking order was passed by the Disciplinary Authority, but the Appellate Authority did not assign specific reasons while concurring with the findings of the Disciplinary Authority and as such the ratio of the decision reported in (2006) 11 SCC 147 cannot be made applicable in the facts of the present case.
24. In "Narinder Mohan Arya V. United India Insurance Company Limited" reported in (2006) 4 SCC 713, it is held by the Supreme Court in paragraph 36 that the order of the Appellate Authority is vitiated for non- application of mind as the Appellate Authority did not assign reasons for consideration of the contentions raised by the delinquent employee. In the reported case the delinquent employee was governed by the provisions of General Insurance (Conduct, Discipline and Appeal) Rules, 1975 wherein the Appellate Authority was duty bound to consider whether the procedure laid down in the Rules have been complied with and whether the Enquiry Officer was justified in arriving at the finding and whether penalty imposed by the Disciplinary Authority was excessive. In the case at hand no such requirement of the Rules by which the appellant is governed is brought to our notice in course of hearing of the appeal. Accordingly, the ratio of the decision reported in (2006) 4 SCC 713 also cannot be made applicable in the facts of the present case.
25. In the case of "Som Datt Datta V. Union of India and Ors." reported in AIR 1969 SC 414, it is held by the Supreme Court in paragraph 10 that the authority confirming the decision of the Disciplinary Authority need not give any reasons in support of its decision unless there is any requirement imposed by the statute or statutory rules. However, this decision of the Supreme Court relates to Army Rules, 1954 and as such the said decision is not relevant for this appeal. In "State of Madras V. A. R. Srinivasan" reported in AIR 1966 SC 1827, it is decided by the Supreme Court in paragraph 15 that it is not obligatory on the part of the State Government to give reasons in support of the order imposing a penalty on the delinquent officer when the State Government has accepted the findings of the Tribunal. The Supreme Court has laid down in paragraph 8 of the decision of "Ram Kumar V. State of Haryana" reported in 1987(Supp) SCC 582 that it is not necessary for the Punishing Authority to give reasons for its findings when the Punishing Authority agrees with the findings of the Enquiry Officer and accepts the reasons given by him in support of such findings. This decision of the Supreme Court does not lay down the proposition with regard to assigning of reasons by the Appellate Authority, but the decision of the Supreme Court reported in AIR 1966 SC 1827 has laid down the proposition of law that the Appellate Authority need not give reasons for concurring with the findings of the Disciplinary Authority. In this case, the Appellate Authority did not give reasons for accepting the views of the Disciplinary Authority and the Rules by which the appellant is governed do not indicate that the Appellate Authority will have to give reasons for concurring with the views of the Disciplinary Authority. In view of the proposition of law laid down by the Supreme Court in the decision reported in AIR 1966 SC 1827 we are of the view that the order passed by the Appellate Authority is not vitiated for non-application of mind for not assigning reasons in accepting the views of the Disciplinary Authority as contended on behalf of the appellant.
26. The last submission of Mr. Roy is that the order of penalty of dismissal from service imposed on the appellant is not proportionate to the gravity of the misconduct. Mr. Roy has relied on the decision of "Bhagat Ram V. State of Himachal Pradesh" reported in (1983) 2 SCC 442 and the decision of "B. C. Chaturvedi V. Union of India and Ors." reported in (1995) 6 SCC 749 in support of his above contention. On the other hand, Mr. Banerjee has urged this court to consider that the appellant has made recommendation for disbursement of the loan in violation of the procedure followed by the Bank after submitting misleading report about utilisation of the previous instalments of loan received by the loanee and thereby the appellant has committed the misconduct of i) dishonesty in connection with the employer's business and vi) gross negligence of duty as laid down in clause 14 of the appendix to Chapter-VI of the West Bengal Co-operative Societies Rules, 1987 and as such the major penalty of dismissal from service is warranted in the facts of the present case. In "B. C. Chaturvedi V. Union of India and Ors." reported in (1995) 6 SCC 749, it is held by the Supreme Court in paragraph 18 as follows:
"The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the Disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support there of." The Apex Court has also laid down in paragraph 15 in the case of "Bhagat Ram V. State of Himachal Pradesh and Ors." reported in (1983) 2 SCC 442 that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of misconduct would be violative of Article 14 of the Constitution and the court in appropriate case may modify the order of penalty in order to shorten the litigation without remanding the case for fresh adjudication.
27. With the above proposition of law laid down by the Supreme Court in connection with imposition of penalty we would like to consider the circumstances culminating in the imposition of penalty of dismissal of the appellant from service. The loan of Rs.8,00,000/- was sanctioned in favour of the loanee by the respondent bank before joining of the appellant at Haripal Branch of the respondent bank. There was an order of the High Court for consideration of the application of the loanee for sanction of loan and thereby the loan was sanctioned in favour of the loanee. The first instalment of loan was disbursed in favour of the loanee before joining of the appellant in the Haripal Branch of the respondent bank. The appellant did not suppress the fact in his report as supervisor of the respondent bank that the machines were supplied to the loanee by the supplier, but the same were not installed because the shed constructed by the loanee was not as per specification and as such the loanee had undertaken to renovate the shed within a period of 15 days. However, the appellant was not the sole authority for disbursement of subsequent instalments of loan in favour of the loanee. It is true that the appellant had recommended for disbursement of the loan after disclosing the facts inspected by him at the site of the proposed place of business of the loanee and the Chief Executive Officer of the respondent bank ultimately disbursed the instalments of loan in favour of the loanee. There is no evidence of misappropriation of fund by the appellant. However, there was negligence of duty on the part of the appellant and the business of the respondent bank was jeopardized by the conduct of the appellant. On consideration of the above circumstances, we are of the view that the penalty of dismissal of the appellant from service is disproportionate to the gravity of the misconduct. The appellant is pursuing the litigation from the year 2005 and if the matter is remitted again to the Disciplinary Authority for reconsideration of the order of imposition of penalty on the appellant, it will prolong the litigation and cause injustice to the appellant. It is submitted from the Bar that the appellant has already reached the age of superannuation. Accordingly, in order to shorten the litigation and to give complete and effective justice to the parties we would like to impose lesser penalty of reduction to a lower time scale of pay as laid down in clause 14 (b)(v) of the appendix to Chapter-VI of the West Bengal Co-operative Societies Rules, 1987 by way of modification of the order of penalty of dismissal of the appellant from the service. This penalty will be effective from the date on which the order of penalty was originally imposed on the appellant by the Disciplinary Authority. The respondent bank is directed to give 50% of the back wages to which the appellant will be entitled after imposition of the above penalty from the date of imposition of penalty till the date of superannuation of the appellant. The order dated 13th and 22nd August, 2012 passed in W.P.21359(W) of 2008 is modified to the above extent. The appeal is allowed in part. There will be no order as to cost.
Urgent certified Photostat copy of the order, if applied for, be given to the parties on priority basis after compliance with necessary formalities.
(R. K. Bag, J.) I agree.
(Tapan Kumar Dutt, J.)