Calcutta High Court (Appellete Side)
Sri Samar Kumar Mukherjee vs State Bank Of India & Ors on 31 March, 2009
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P. No. 12542 (W) of 2007
C.A.N. No. 1184 of 2008
Sri Samar Kumar Mukherjee
Vs.
State Bank of India & Ors.
With
W.P. No. 12544 (W) of 2007
C.A.N. No. 1558 of 2008
Sri Rittick Kumar Nandy
Vs.
State Bank of India & Ors.
For the Petitioner: Mr. Kashi Kanta Moitra,
Mr. S. K. Halder,
Mr. A. K. Lahiri,
Mr. Muktakesh Das,
Mr. Alok Kr. Ghose,
Mr. Amal Kr. Ghosh.
For the respondents: Mr. S. K. Sinha,
Mr. A. Dasgupta, Mr. S. Pal Choudhuri.
Judgment on : 31.03.2009.
S.P. Talukdar, J.: The two writ applications involving similar facts and identical points of law were heard analogously in response to the submission made by learned Counsel for the parties.
Grievances of the writ petitioner in W.P. No. 12542 (W) of 2007 may briefly be stated as follows:-
The petitioner joined the State Bank of India as a Probationary Officer on 2nd of November, 1980. He was first promoted to the post of MMGS-II on 18th of April, 1989 w.e.f. 1.8.1986. He was next promoted to the post of MMGS-III on 21st January, 1996 w.e.f. 1st of November, 1991. This was followed by his promotion to the post of Senior Management, Grade Scale-IV on 21st December, 1996 and it was given effect from 1st of November, 1995. Petitioner again got promoted to the post of Senior Management, Grade- V on 1st November, 2002. He was transferred from Overseas Branch, Kolkata to Mid Corporate Regional Office, Kolkata on 3rd March, 2006. To his utter shock and surprise, he received an order of suspension dated 23rd March, 2006 issued by the disciplinary authority being the General Manager (Mid Corporate Group), State Bank of India. There were allegations of certain serious irregularities in connection with negotiation of export bills committed by the petitioner while working as Assistant General Manager. The said firm, Hindustan International, was having a current account at the Overseas Branch of the Bank in Kolkata and it did not enjoy any credit limits for negotiations/discounting of bills. A sum of Rs. 7, 68,00,000/- plus interest was due from Hindustan International. It was alleged in the suspension order that since the irregularities are 'grave and serious in nature', the authority decided to place the petitioner under suspension in terms of the provisions of Rule 68(1)(a) of State Bank of India Officers' Service Rules pending finalization of the disciplinary proceedings initiated against the petitioner. The petitioner was, thus, suspended from service with immediate effect. Within a few days thereafter i.e. on 29.6.2006, the residential flat of the petitioner was raided by officers of the Central Bureau of Investigation. They seized some articles like LIC documents, bank papers etc. But money or any document showing possession of disproportionate assets were found. CBI made an inventory of the goods. The petitioner as a result of such witch-hunt operation suffered enormous humiliation and harassment. The petitioner sought for permission for approaching this Court of justice. He submitted a representation before the Managing Director of the Bank. It was followed by submission of a reminder but there had been no response. More than 14 months have elapsed since issuance of suspension order but no charge sheet has been issued. Such indefinite prolongation of the petitioner's suffering and protraction of the suspension for indefinite period is in itself a punishment and the disciplinary authority having observed that irregularities committed by the petitioner were grave and serious in nature, it is a wonder that no follow up action has been taken by the bank authorities.
Under the extant service regulations and the vigilance manual, the respondent authorities, while intending and purporting to embark upon any disciplinary proceeding against an officer of the bank, first have to come to a decision as to whether the facts, on which the disciplinary authority will rely upon would constitute any misconduct or warrant issuance of a minor penalty charge sheet or a major penalty charge sheet. The order of suspension against the petitioner for an indefinite period without issuance of any minor penalty or major penalty charge sheet is grossly unfair and infractive of the service regulations and the vigilance manual and is in breach of Articles 14 and 21 of the Constitution of India. The petitioner was, thus, placed under suspension without any fact finding enquiry or preliminary enquiry. The petitioner had accorded administrative approval for discounting of bills to the concerned exporter on the basis of processing and recommendation made under the extant procedure by the subordinate officers of the bank. It is difficult to appreciate how the bank could now ignore such act of processing made by the other competent persons of the bank and single out the petitioner for his role. The petitioner was not in charge of recovery of loan in the transferred office. He recovered Rs. 55 lakhs towards liquidation of the overdues from the borrower and pursued the borrower to give collateral security and execute the loan documents. But in spite of that, the petitioner was served with the order of suspension. The bank has approached the learned Debts Recovery Tribunal for recovery of the dues from the borrower. This could only be made possible by the acts of the petitioner in chasing the party and getting the loan documents executed. Petitioner has acted all through in accordance with the rules and procedures framed by the bank in regard to discounting of LC-Bills and as such, issuance of the order of suspension is grossly unfair, unjustified and unconstitutional and is infractive of Articles 14 and 21 of the Constitution and the banking rules.
The petitioner, thus, approached this Court for grant of an order or injunction restraining the respondents from giving any effect or further effect to the impugned order of suspension dated March 23, 2006. The petitioner also sought for an order directing the respondents to cancel/rescind/withdraw and/or revoke the order of suspension. The petitioner further prayed for a direction upon the respondent authority to allow the petitioner to join his service forthwith as Assistant General Manager and Chief Operating Officer of Overseas Branch, Kolkata of State Bank of India.
Respondents Nos. 1 and 3 contested the case by filing Affidavit-in-Opposition thereby denying, inter alia, all the material allegations made by the petitioner.
It was alleged that the Overseas Branch of the State Bank of India is headed by a Deputy General Manager under the control of General Manager, Mid Corporate Group, being respondent No. 3. Under the administrative set up of Mid Corporate of Kolkata Region, there are, inter alia, Commercial Branch, Kolkata, Commercial Branch, Bhubaneshwar and the respective Deputy General Managers report to the General Manager who in turn reports to the Chief General Manager, Mid Corporate at Mumbai. The General Manager and the Chief General Manager have been impleaded as respondent Nos. 3 and 5 respectively. The said branch received one letter dated 13th February, 2006 from Oriental Bank of Commerce intimating that their customer M/s. Hindustan International, Proprietor Shri Gopinath Das, presented, prima facie, dubious documents under letter of credit dated 17th August, 2005 which had resulted in siphoning of huge funds. It was alleged that the opening of the account with their branch was introduced by the respondent No. 1 bank. On receipt of such letter, the Deputy General Manager of the Overseas Branch of the respondent No. 1 bank made an initial enquiry. It was found that the said proprietary concern was allowed to avail Foreign Bill Discounting Facilities backed by letter of credit from the said branch of respondent No. 1. It was found that in respect of one bill negotiated on 11th July, 2005, the outstanding was Rs. 3.73 crores and in respect of another bill negotiated on 2nd December, 2005 backed by letter of credit, the outstanding was Rs. 4.45 crores. The total overdues was an aggregate amount of Rs. 8.18 crores approximately besides interest. The said Deputy General Manager was not aware of the same and he was never informed by the petitioner about such negotiation of huge amount of bills backed by letter of credit. It was immediately brought to the notice of the Controlling Authority, the General Manager/respondent No. 3 by office note dated 28th February, 2006. Request was made for deputing an official from the Mid Corporate, Regional Office, Kolkata to conduct an enquiry in the matter. The G.M. (Mid Corporate), being the Controller of the branch in appreciation of the gravity of the matter initiated an enquiry and the matter was also referred to the Vigilance Department.
On enquiry it was revealed that one Sri Gopinath Das, being the proprietor of the Hindustan International, was maintaining a current account with the Overseas Branch at Kolkata of the respondent No. 1 bank. The said concern was engaged in export rice to Gulf Countries and USA. It did not enjoy any bill limit nor any other credit facilities with the respondent No. 1 bank. The branch, however, had discounted 4 nos. L/C backed export bills of the said concern, Hindustan International (hereinafter referred to as "HI"). The total outstanding dues as on that date was Rs. 8.18 crore (approx.). At the first stage of enquiry it came to notice that two bills for a bill amount of US$ 1.275 million and another bill amounting to US$ 1.00 million were returned unpaid. The processing officers of the bank pointed out several discrepancies while scrutinizing the bills. It was also pointed out that the drawer exporter was a non-borrower and as per bank's instruction, the bills cannot be negotiated. But negotiation of the bill for US Dollar 1.00 million (out of said 2 bills) was permitted by the petitioner being the Chief Operating Officer. There were several shortcomings in negotiating the said bill. It was found that the petitioner approved certain bills for negotiation without having any power to do so. Crystallization of some of the bills was deferred by the petitioner in some cases unusually for a long period. Deferment was made as many as five times. The petitioner approved the negotiation of some such bills by making payment in the current account of HI violating all extant instructions of the respondent bank and RBI. The petitioner failed to exercise caution when he was aware that certain payments were received by the bank from various sources, but not found the L/C Opening Banks indicating suspicion to the genuineness of the transaction. The new bills were allowed by the petitioner to be discounted while earlier bills were unpaid. Opinion reports on the drawees were not obtained. Regular limit for discounting against L/Cs were sanctioned with the result, the branch could not know the customer's financial strength. It could be found that the petitioner in some cases was authorizing the negotiation of the bills with discrepancies and in some cases the Chief Manager (Operation) was authorizing the negotiation. No control return to Higher Authority i.e. Deputy General Manager of the branch was submitted. The Chief General Manager of the Mid Corporate Group posted at Mumbai, being respondent No. 5 advised the respondent No.3 in his letter dated 8th March, 2006 that if investigation indicates that the transactions were of fraudulent nature, bank should follow the laid down system of reporting of fraud and submit flash report within two days. The respondent No. 3 informed the Chief General Manager (Mid Corporate) on 8th March, 2006 the development in the matter and also enclosed a flash report containing the several particulars in the matter of crystallization of export bill. He also reported that the matter has been referred to the Vigilance Department of the Local Head Office of respondent No. 1 Bank at Kolkata for investigation. While various other steps were being taken by the respondent authorities, the respondent No. 5 was informed by respondent No. 3 by letter dated 9th March, 2006 that the Customs Department have confirmed that the Shipping documents tendered were not genuine. The respondent No.1 bank reported about the perpetration of the fraud by HI to Reserve Bank of India in Form at FMR-1. The Deputy General Manager, Overseas Branch of respondent No.1 Bank by his letter dated 10th March, 2006 lodged complaint with the Central Bureau of Investigation, Bank Security and Fraud Cell, Kolkata, about the perpetration of fraud by M/s. Hindustan International.
The State Bank of India Officers' Service Rules, 1992 framed under the enabling provision of Section 43 of the State Bank of India Act, 1955 provided in Rule 68A as under
:-
"68A(1) An Officer may be placed under suspension by the Disciplinary Authority : [a] where disciplinary proceeding against him is contemplated or is pending; or [b] where a case against him in respect of any criminal offence is under investigation, inquiry or trial."
Respondent No. 3 being Controller of the Overseas Branch, Kolkata and also the Disciplinary Authority in relation to the petitioner, placed the petitioner under suspension under the said Rule 68A(1)(a) of the said Service Rules on 23rd March, 2006.
It was found that indiscriminate overdrawings were allowed on 198 occasions and such amount went up to Rs. 63.63 lakhs. Cash payment aggregating Rs. 8,32,50,000/- were allowed in the current account on different dates. When the bill Nos. LN0046682 and LN0046768 were due on 29th July, 2005 and 5th August, 2005 respectively and were not paid on due dates, an aggregate amount of Rs. 8,92,98,000/- (Cash Rs.6,20,00,000/- and Transfer Rs. 2,72,98,000/- ) was allowed to be withdrawn from the account without crystallizing the overdue bill and recovery of the amount from the current account of HI. The instruction given by respondent No. 3 by letter dated 2nd July, 2005 though received by the Overseas Bank, Kolkata on 6th July, 2005, the petitioner marked it to the Chief Manager (Operation), namely, Sri R. K. Nandy who is another officer involved in the fraud. The Central Bureau of Investigation initiated investigation and seized various documents and correspondences. The Deputy General Manager asked for an explanation by letter dated 2nd September, 2006. The petitioner duly responded to the same. The disciplinary authority of the petitioner being respondent No. 3 issued instruction for major penalty proceeding on 29th December, 2006. The Chief Vigilance Officer, Corporate Office of Mumbai accorded approval to treat the case under Vigilance Category and asked for to submit First Stage Reference papers in Vigilance Commission by its letter dated 8th August, 2006. The appointing authority of the petitioner i.e. the Chief General Manager, Mid Corporate Group, being respondent No. 5 herein, accorded sanction of prosecution on 27.12.2006 against the petitioner under Section 19(1)(c) of the Prevention of Corruption Act for the alleged acts of the petitioner while acting as Assistant General Manager and Chief Operating Officer of Overseas Branch of the respondent No. 1 bank constituting an offence punishable under Section 120B read with Sections 420, 467, 468, 471 and Section 13(2) of the P.C. Act of 1988 and substantive offences under Section 13(2) read with 13(1)(d) of the P.C. Act, 1988.
The Central Vigilance Commission tendered its first stage advice for major penalty proceeding against the petitioner vide its letter dated 1st of June, 2007. The respondent No. 3 being the disciplinary authority issued charge sheet to the petitioner under Rules of Disciplinary Proceeding for the irregularities and lapses committed by him. The suspension order was reviewed as on 31st December, 2006 and the competent authority after reconsideration decided to continue the same. The petitioner was advised about such review on 15th of May, 2007. It had been alleged that the writ petitioner had allowed clean overdrawings on 198 occasions between 18th January, 2005 and 27th February, 2006 far in excess of the sanctioned OD Limit of Rs. 18.00 lakhs. The overdrawing was allowed sometimes up to 63.63 lakhs. The petitioner had no authority to allow such overdrawing and he had not reported the same to the Branch Manager. The respondent categorically claimed that the charges against the writ petitioner are far too serious and as such, the action taken by the respondent authority does not deserve any interference. Charge sheet had been issued on 6th July, 2007. At no point of time there had been any violation of the bank's own regulations. There had been enough of materials before respondent No. 3 so as to contemplate disciplinary proceeding at the initial stage against the petitioner and looking at the interest of the public institution and gravity of the misconduct, the suspension order was issued by respondent No. 3. It had been emphatically denied that there was no material before the bank for passing an order of suspension and/or no prima facie case could be made out.
It was categorically denied by the respondents that the petitioner is entitled to any preliminary report. Respondent No. 3 had conducted enquiry by way of internal investigation but no preliminary enquiry in a formal manner was done. The petitioner was placed under suspension in contemplation of initiation of a disciplinary proceeding.
The respondents sought for dismissal of the writ application.
An application for amendment was filed and this Court by order dated 27th March, 2008 allowed the said amendment. The writ application was filed challenging the order of suspension. During the pendency of the case, the authority concerned filed charge sheet. With the filing of charge sheet, earlier order of suspension to a significant extent got merged with such subsequent filing of charge sheet. There could be no reason for not taking the subsequent event into consideration while deciding the present writ application.
Learned Senior Counsel, Mr. Kashi Kanta Moitra, appearing on behalf of the writ petitioner, first sought to assail the disciplinary proceeding under reference on the ground that it was initiated in violation of the statutory rules. It was submitted that charge sheet was required to be issued within eight weeks and having not been issued within such prescribed time, it is bad and the respondent authority cannot be permitted to proceed on its basis. Mr. Moitra then submitted that admittedly, the respondent authority had consultation with the Central Vigilance Commission and since, such authority acted as per advice of the Vigilance Commission, the proceeding is bad and it suffers from inherent deficiency. In this context, he referred to the doctrine of dictation.
Referring to the decision in the case of State of U.P. & Ors. Vs. Maharaja Dharmander Prasad Singh etc. And Lucknow Development Authority & Ors. Vs. Maharani Rajlaxmi Kumari Devi & Ors. etc., as reported in AIR 1989 SC 997, it was submitted that the authority cannot permit its decision to be influenced by the direction of others as this would amount to abdication and surrender of its discretion. The Apex Court in the said case held that in that event it would not be authority's discretion but that of someone else's. It was further held that "if an authority 'hands over its discretion to another body it would act ultra vires'. Such an interference by a person or body extraneous to the power would plainly be contrary to the nature of the power conferred upon the authority."
De Smith sums up the position thus :
"The relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it : it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conveniently be grouped in two main categories : failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive."
Learned Counsel for the respondent bank, however, categorically denied that the disciplinary proceeding was initiated being so advised by the Vigilance Commission or that it was done under dictation of an authority other than the appropriate authority of the respondent bank. It was submitted that an attempt has unnecessarily been made to complicate matters. Learned Counsel for the respondent bank submitted that this Court may not appreciate any attempt to read something more than what meets the eyes. The fact that some sort of an enquiry/investigation was done cannot be disputed and it is essential in order to initiate any proceeding. Without having a report from some sort of fact finding body, there could be no question of initiating any proceeding whatsoever. But that by itself does not make it the foundation or the basis. On behalf of the respondent bank, attention of the Court was invited to the gravity of the incident and the nature and extent of the alleged fraud. Interest of the bank, which deals with public money quite rightly prompted the concerned authority to refer the matter to the Vigilance Commission. It was essential on the part of the respondent bank to lodge complaint before the concerned police authority, thereby giving rise to a criminal prosecution.
But by no stretch of imagination, this could be described as an 'internal enquiry'. It also cannot be said that such a report was the foundation for initiating the disciplinary proceeding. Thus, it was emphatically submitted on behalf of the respondent bank, there can be no basis for assailing the disciplinary proceeding under reference in this case on the ground that it was initiated as per dictation of the Vigilance Authority.
In this context, it may be said that an authority cannot be expected to initiate any action without having any material before it. Such material also cannot fall from the heaven. It must exist before the eyes of the concerned authority and must be within its knowledge. It may be that such an existence sometime depends on a preliminary enquiry or investigation. It is required to be there in order to enable the concerned authority so as to form its opinion whether there could be any reason for proceeding. 'To proceed or not to proceed' reflects an unsettled state and this sort of indecision can only be effectively settled on application of mind on some existing materials. Such materials are naturally required to be placed before the appropriate authority and for this, some sort of an enquiry or investigation may very well be made. But it would not be proper to assail such exercise and then demand participation in the said process raising the plea of the principles of natural justice.
It was submitted on behalf of the petitioner that when a mandate is given in a Section requiring compliance within a particular period, the strict compliance thereof is required. In this context, reference was made to the decision of the Apex Court in the case of M/s. Girnar Traders Vs. State of Maharashtra & Ors., as reported in 2007 (6) Supreme 25. Learned Counsel for the respondent bank in this context submitted that there cannot be any quarrel with the aforesaid legal proposition.
On behalf of the respondent bank attention of the Court was invited to Section 43 of the State Bank of India Act, 1955 and then Rule 50 in Chapter XI of the State Bank of India Officers' Service Rules, 1992 which deals with Conduct, Discipline and Appeal. It was submitted that any violation of such Conduct Rule as mentioned therein would amount to misconduct. Attention of the Court was then invited to Rule 66 which clearly lays down that a breach of any of the provisions of these rules shall be deemed to constitute misconduct punishable under Rule 67. Rule 67 deals with the penalties both minor and major. Reference was thereafter made to Rule 68, which relates to decision to initiate and procedure for disciplinary action. It was further pointed out that the list of documents, which were sought to have been relied upon, were required to be furnished along with the charge sheet and documents were accordingly supplied to the charged officer.
Reference was also made to Rule 70, which clearly lays down that 'the Bank shall consult the Central Vigilance Commission, wherever necessary, in respect of all disciplinary cases having vigilance angle.' In such view of the matter, there could be very little justification for raising any grievance regarding the manner in which the disciplinary proceeding was initiated and it could not be said that such a proceeding by any means is affected by the doctrine of dictation. It was then submitted that the list of events would clearly indicate that there had been no unreasonable delay and wherever there had been any delay, there had been satisfactory reasons for the same and that had been explained as well.
Mr. Moitra in course of his submission sought to place reliance upon 'discipline and disciplinary proceedings' of Mr. V.K. Sharma. Learned Counsel for the respondent bank submitted that it is mere guideline without having any mandatory effect. It was further submitted that the Vigilance Manual does not have anything to do with a disciplinary enquiry and the Chapter IV therein relates to Central Bureau of Investigation. On behalf of the respondent bank, attention of the Court, however, was drawn to Chapter V of the said Manual, which relates to departmental investigation and then again Chapter VI which deals with departmental proceedings. It was then emphatically submitted that in major penalty proceedings, the charge sheet is required to be issued within one month from the date of CVO's/CVC's first stage advice. It was further submitted that nothing had been done in respect of the disciplinary proceeding initiated against the writ petitioner, which could even remotely cause any sort of prejudice.
It was emphatically submitted on behalf of the respondent bank that any failure to finalize charge sheet within a period of eight weeks from the stage, the action was contemplated could at best be taken as directory and when there is satisfactory explanation to the delay, there could be absolutely no justification for raising any grievance in that regard. On behalf of the respondent bank, it was further submitted that in the case under reference, there was only a basic enquiry in order to find out facts and advice of the CVC was sought for. At that stage, there is no provision for seeking any explanation and such an opportunity when offered to a charged employee could at best be a reflection of a gesture made by such authority.
Mr. Moitra referred to the decision in the case of H. K. Dogra Vs. Chief General Manager, State Bank of India & Anr., as reported in 1989 (2) SLR 122. In the said case, the Apex Court held that the report of vigilance department having been made the basis for issuing show cause notice for termination, there was need for supply of copy of the same. In absence of that, the dismissal order passed relying upon such report cannot be sustained.
In response to this, learned Counsel for the respondent bank submitted that the said case relates to punishment and does not have any relevance. It was further submitted that it was subsequently overturned by the Division Bench in the case of The State Bank of India & Anr. Vs. H. K. Dogra & Anr., as reported in 1995(5) SLR 358.
In course of submission reference was further made to the decision of the Apex Court in the case between SBI & Ors. Vs. D.C. Aggarwal & Anr., as reported in 1992 (5) SLR 598. In the said case, it was found that the report of the CVC having not been supplied to the respondent, it could not furnish basis for the order passed by the disciplinary authority. It was observed that law on natural justice is so well settled from series of decisions of the Court that it leaves one bewildered, at times, that such bodies like State Bank of India, who are assisted by hierarchy of law officers, commit such basic and fundamental procedural errors that Courts are left with no option except to set aside such orders. It was held that 'procedural fairness is as much essence of right and liberty as the substantive law itself'.
Learned Counsel for the respondent bank in order to respond to such challenge submitted that the facts of the case under reference and those of the present case are clearly distinguishable. It was emphatically submitted that in the present case enquiry has not been initiated as yet. The recommendation of the Vigilance authority prior to initiation of proceeding is different from any recommendation which is the basis of an order passed in a disciplinary proceeding.
Mr. Kashi Kanta Moitra sought to derive inspiration from the decision in the case of P V. Mahadevan Vs. Md. T. N. Housing Board, as reported in (2005) 6 SCC 636. The Apex Court in the said case also relied upon an earlier decision in the case of State of A.P. Vs. N. Radhakishan, (1998) 4 SCC 154.
In the case of P.V. Mahadevan (Supra), the Apex Court observed that the appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer. The Apex Court in the said case further observed that 'normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.
Learned Counsel for the respondent bank, however, submitted that such reference does not seem to have any relevance so far the present case is concerned, since the aforesaid observation was made in connection with a case where there had been delay of about 10 years.
Mr. Moitra then contended that the requirement of a reasonable opportunity cannot be satisfied unless the entire report of the enquiring officer including his views in the matter of punishment are disclosed to the delinquent. In this context, he sought to derive support and strength from the decision in the case of State of Gujarat Vs. R.C. Teredesai & Anr., as reported in AIR 1969 SC 1294. Learned Counsel for the respondent bank submitted that the said decision also cannot lend any support to the writ petitioner since in the present case, the enquiry has not even commenced.
Mr. Moitra then submitted that failure to rise to the expected level and efficiency in discharging professional duties cannot be regarded as misconduct treating such failure as negligent act in the conduct of the professional duties. Reference was made to the decision in the case of Council of the Institute of Chartered Accountants of India Vs. Somnath Basu, as reported in AIR 2007 Calcutta 29 in this context.
In the said case the views of the Hon'ble The Chief Justice Chakravartti, as observed in the case of S. Ganesan V. A. K. Joscelyne, AIR 1957 Calcutta 33, had been reproduced. The same are :
'I think the test must always be whether in addition to the failure to do the duty, partial or entire, which had happened, there had also been a failure to act honestly and reasonably'.
There can be no scope for any controversy in that regard and in fact, this is the settled position of law but so far the present case is concerned, the anxiety of the writ petitioner, as ventilated by learned Senior Counsel on his behalf, seems to be premature. Any detailed analysis in that regard, following the aforesaid settled legal position, may just amount to putting the cart before the horse.
Though reference was also made to the decision in the case of Committee of Management, Kisan Degree College Vs. Shambhu Saran Pandey & Ors., as reported in (1995) 1 SCC 404, I do not think that the factual backdrop of the present case has much similarity to that of the said case. There in the said case, the Apex Court held that where the delinquent, at the earliest sought for inspection of the documents mentioned in the charge sheet, opportunity for inspection should have been afforded prior to conducting the enquiry.
Learned Counsel for the respondent bank emphatically submitted that the earlier preliminary enquiry as made in this case was mere fact finding exercise and cannot be unreasonably attempted to be read as 'final enquiry'.
In the case of Steel Authority of India Ltd. Vs. Debasish Biswas, as reported in 2007 (2) CLJ 209, the Apex Court observed that it is well settled that whether a charge sheet in a given case is vague or not will depend on the facts and circumstances of each case. In the event, the charge sheet does not spell out the part played by the concerned employee with appropriate details and upon disclosing material particulars then the charges mentioned in the charge sheet are bound to be declared as vague.
According to Mr. Moitra there is need for taking judicial notice of the present plight of the officials of the bank who on one side desperately try to achieve target and on the other hand, they are made targets. Mr. Moitra sought to describe this position by submitting that the present petitioner also is a victim who got sandwiched between two forces, which were acting against one another. There may be force in the submission made by Mr. Moitra in this regard but within the scope and ambit of the present writ application and thereto, at this nascent stage of the disciplinary enquiry, I do not think that the said aspects deserve to be dealt with in any further details.
On behalf of the respondent bank, it was submitted that unless the High Court is satisfied that a show cause notice is totally non-est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all points as highlighted in the writ petition. It was further submitted that while passing interim orders, it is not necessary to elaborately deal with the merits, but it is certainly desirable and proper for the High Court to indicate the reasons which have weighed with it in granting such an extraordinary relief in the form of an interim protection. (Ref: Special Director & Anr. Vs. Mohd. Ghulam Ghouse & Anr., as reported in (2004) 3 SCC 440).
Learned Counsel for the respondent bank sought to strengthen the stand of the authority vis-a-vis the role of the Central Vigilance Commission by deriving support and strength from the decision of the Apex Court in the case of Nagaraj Shivarao Sarjagi Vs. Syndicate Bank, Head Office, Manipal & Anr., as reported in (1991) 3 SCC 219.
It is also the settled position of law that there is need for supply of copies of the documents which are to be relied upon. Only those documents on which reliance is placed need be supplied to the charged officer. Learned Counsel for the respondent bank in this context referred to the decision in the case of Pandit D. Aher Vs. State of Maharashtra, as reported in (2007) 1 SCC 445.
Attention of the Court was invited to the Apex Court decision in the case of Union of India & Anr. Vs. Kunisetty Satyanarayana, as reported in AIR 2007 SC 906. The Apex Court held :
"The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or charge sheet is that at that stage the writ petition may be held to be premature. A mere charge sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show cause notice or charge sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance."
It was categorically submitted by learned Counsel for the respondent bank that any interference of this Court at this stage is not at all called for. Referring to the decision of the Apex Court in the case of between Secretary to Government, Prohibition & Excise Department And L. Srinivasan, as reported in 11 LLJ, SC page-245, it was submitted that any manner of interference would virtually amount to exceeding the power of judicial review.
It cannot be disputed that the truth and correctness of the charges is not a matter for the Court to go into - more particularly at a stage prior to the conclusion of the disciplinary enquiry. The jurisdiction of the High Court under Article 226 of the Constitution i.e., the power of judicial review relates to examination of the procedural correctness of the decision-making process. (Ref:Transport Commissioner, Madras-5 Vs. A. Radha Krishna Moorthy, (1995) 1 SCC 332).
Learned Counsel for the respondent bank further submitted that no grievance should ordinarily be made even when no explanation is called for. Calling for an explanation can only be with a view to making an enquiry unnecessary, where the explanation is good but in many cases it would be open to the criticism that the defence of the workman was being fished out. (Ref: Firestone Tyre and Rubber Company Ltd. V. Their workman, 11 LLJ, SC page-715).
In the case of the State Bank of India & Anr. (Supra), it was held by the learned Division Bench of the Punjab and Haryana High Court that function of the vigilance commission is purely advisory in nature and it is not an appellate authority over the inquiry officer or the disciplinary authority and its views are not mandatory. Non-furnishing of copy of any communication to the delinquent officer cannot amount to violation of any rules of natural justice.
It was then submitted that any attempt to read mens rea in the alleged act of the writ petitioner would be an absurd proposition. Misconduct in the context of disciplinary proceeding means misbehaviour involving some form of guilty mind or mens rea. (Ref:
Union of India V. J. Ahmed, 11 LLJ, SC 14).
Learned Division Bench of this Court in the case of Dr. U. N. Biswas Vs. Union of India & Ors., as reported in 1998 (1) CLJ 505 dealt with the scope and ambit of 'misconduct' but the entire context being clearly and significantly different, the said case also is not dealt with in details.
It follows from the aforesaid discussion that the manner in which the initiation of a disciplinary proceeding against the writ petitioner has been sought to be assailed in the present case, does not seem to have any sound rational basis. As discussed earlier, the duty to file charge sheet within a period of eight weeks from the date of the decision is never intended to be mandatory. It is, however, necessary to ensure that there is no inordinate delay but in certain situations, some delay may be unavoidable. This by itself will not justify nipping the disciplinary proceeding in the bud. On perusal of relevant materials, this Court finds it difficult, if not impossible, to share the submission made by Mr. Moitra on behalf of the writ petitioner that since the charges are vague, the proceeding deserves to be quashed. In the present case, the charges cannot, by any stretch of imagination, be said to be vague. On the other hand, the charges are far too grave and serious, which certainly demand a thorough probe.
It is true that in exercise of the jurisdiction under Article 226 of the Constitution, this Court is not expected to act as a Court of appeal. Such jurisdiction is essentially exercised in order to weigh/measure the decision making process and it cannot be against the decision itself. Any finding of the disciplinary authority which is not based on facts or where there is consideration of a material which is not on record, such a proceeding can be assailed on the ground that it suffers from perversity. So far the present case is concerned, any detailed discussion in this regard at this stage is totally uncalled for. There may be scope even to assail the order of punishment when it is found to be shockingly disproportionate to the act of misconduct. As indicated earlier, this question does not arise at this stage.
Considering all such facts and circumstances, I find that the anxiety of the writ petitioner, as ventilated by learned Counsel, is premature. The materials on record do not give any scope for raising any grievance regarding non-compliance of any provision of law or violation of any statutory rule. So far, there is no material to the satisfaction of the judicial conscience of the Court to suggest that the initiation of the proceeding suffers from any violation of the principles of natural justice. No material could be shown so as to infer that the disciplinary proceeding has been initiated in a biased manner or that if suffers from any mala fide.
Since grievances raised on behalf of the petitioner in W.P. No. 12544 (W) of 2007 are similar to those as ventilated in W.P. No. 12542 (W) of 2007, the said case is also governed by this common judgment.
Accordingly, the present writ applications being W.P. No. 12542 (W) of 2007 and W.P. No. 12544 (W) of 2007 fail and be dismissed. Consequently, all the pending applications stand disposed. Interim order, if any, stands vacated.
There is no order as to costs.
Xerox certified copy of the judgment and order be supplied to the parties, if applied for, as expeditiously as possible.
(S.P. Talukdar, J.)