Jharkhand High Court
Swapan Bhattacharya vs Bank Of India on 2 August, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 889 of 2019
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Swapan Bhattacharya, aged about 66 years, son of Late
Satya Ranjan Bhattacharya, resident of B/2, Param
Enclave, Basant Vihar, Road No. 1B, Harmu Housing
Colony, P.O & P.S. Argora, District Ranchi; presently
resident of 203, Devi Enclave, Devi Mandap Road, Piska
More, Behind Devi Mandir, Hehal, P.O. - Hehal, P.S. -
Sukhdeonagar, District - Ranchi, Jharkhand.
... ... Petitioner/ Appellant
Versus
1.Bank of India.
2.The General Manager-cum-Reviewing Authority, Bank
of India, Star House/C-5, 'G' Block, Bandra-Kurla
Complex, Bandra (East), Mumbai-51.
3.The Zonal Manager-cum-Appellate Authority,
Hazaribag Zone, Bank of India, Hazaribag, P.O., P.S.
Hazaribag Town, District Hazaribag.
4.The Chief Manager-cum-Disciplinary Authority,
Hazaribagh Zone, Bank of India, Hazribagh, P.O., P.S.
Hazaribag Town, District Hazaribag.
...Respondents/ Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. Rahul Kumar, Advocate
For the Respondents : Mr. A. Allam, Sr. Advocate
Mr. Faisal Alam, Advocate
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ORAL JUDGMENT
Order No. 6: Dated 2nd August, 2022 I.A. No. 968 of 2020 The present Interlocutory Application has been filed for condonation of delay of 131 days in filing the instant appeal.
2. No counter affidavit to the Interlocutory Application has been filed on behalf of respondents.
3. Heard learned counsel appearing for the parties.
4. Having regard to the averments made in this application, we are of the view that the appellant was prevented by sufficient cause from preferring the appeal within the period of limitation.
5. Accordingly, I.A. No. 968 of 2020 is allowed and delay of 131 days in preferring the appeal is condoned. L.P.A. No. 889 of 2019
6. The instant intra-court appeal, under clause 10 of the Letters Patent, has been preferred against the order/judgment dated 09.08.2019 passed by learned Single Judge of this Court in W.P. (S) No. 3802 of 2005 whereby and whereunder writ petition has been dismissed denying to interfere with the punishment order dated 30.12.2003 and appellate order dated 25.07.2004 as also review order dated 21.04.2005. -3-
7. The brief facts of the case, as per pleadings made in the writ petition, read as hereunder:
The petitioner, while working as Manager, Bank of India at Balsagra Branch, Hazaribagh Zone was charged for the act of misconduct alleged to have been committed during tenure of his service from 15.05.1999 to 05.07.2001 as Manager, Balasagra Branch Hazaribagh, for which altogether seven charges were framed against the petitioner which reads as under :-
"Article No.1:- Sanctioned and disbursed overdraft/loan against fake LIC policies and failed to follow Bank's rule for financing overdraft/loan against LIC policies.
Article No.2 Sanctioned Kishan Credit Car (KCC) by violating Bank's norms in as much as land holding certificate from concerned competent authority were not obtained.
Article No.3 :- Disbursed the vehicle loan for purchase of car by debiting loan without sanctioned by the competent authority.
Article No.4 :- Sanctioned and disbursed Tractor Loan by violating Bank's norms.
Article No.5 Financed 46 accounts as detailed out in statement of allegation in gross violation of -4- Bank's norms regarding service area without obtaining prior permission from controlling office or without obtaining NOC.
Article No.6 Paid Rs. 72000/- by debiting tractor loan.
Article No. 7:- Financed 6 tractor accounts by obtaining fake/forged land possession certificate/charge creation certificate without verification of land records."
Thereafter, enquiry was made against the petitioner, in which the petitioner appeared and defended his case denying allegations leveled against him. However, the enquiry officer, after appreciating the materials produced before him found the charges proved except charge no. 6 and submitted enquiry report before the disciplinary authority, who accepted the same and imposed the punishment vide order dated 30.12.2003. Against the order passed by the disciplinary authority, the petitioner preferred appeal before the appellate authority, which was dismissed vide order dated 25.07.2004. Thereafter, the petitioner preferred review petition which was also rejected vide order dated 21.04.2005.
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Being aggrieved with the orders passed by the administrative authorities the petitioner invoked the jurisdiction of this Court under Article 226 of the Constitution of India by filing writ petition being W.P. (S) No. 3802 of 2005, on the ground of violation of principles of natural justice alleging inter alia that in the enquiry proceeding the enquiry officer has not given proper opportunity to the petitioner to adduce his evidence and further before imposing the impugned order of punishment, the petitioner was not served with second show cause notice. The respondents-Bank appeared and filed counter affidavit stating that in the enquiry proceeding the petitioner was given ample opportunity to defend his case and further before passing final order of punishment, the petitioner was called for by way of second show cause to place his case, whereupon he filed representation and the disciplinary authority considering the same passed the order of punishment.
The learned Single Judge, considering the materials available before him hold that the enquiry was conducted observing the principle of audi alteram partem and the petitioner was provided full opportunity to defend his case at every stage, did not interfere with -6- the order passed by the administrative authorities, which is the subject matter of present intra court appeal.
8. Mr. Rahul Kumar, learned counsel appearing for the appellant-petitioner assailing the order passed by the learned Single Judge, has submitted that in the enquiry proceeding the principles of natural justice has not been followed. Further, the enquiry officer has not considered the defense put forth in course of enquiry and the petitioner was not served with second show cause notice before imposing the punishment but the learned Single Judge without appreciating these facts has dismissed the writ petition, therefore, the order passed by the learned Single Judge requires interference by this Court.
9. Mr. A. Allam, learned senior counsel assisted by Mr. Faisal Alam, learned counsel for the respondents- Bank has submitted that there is no irregularity in the order passed by the disciplinary authority taking into consideration the nature of allegation leveled against him, which was found proved in the full-fledged enquiry proceeding.
According to him, in the enquiry proceeding the principles of natural justice was followed. In the enquiry proceeding, the petitioner participated and put forth his -7- defense but the enquiry officer has found the charges proved against him and thereafter the finding so recorded was forwarded before the disciplinary authority, which having been accepted the order of punishment was passed vide order dated 30.12.2003, against which, the petitioner preferred appeal, which was rejected vide appellate order dated 25.07.2004. The appellant-petitioner referred review petition which was also rejected vide order dated 21.04.2005. Therefore, it is incorrect on the part of petitioner to say that there was violation of principles of natural justice in conducting the departmental proceeding.
It has further been submitted that since writ petitioner was working in Bank and as such he ought to have performed his duty with utmost sincerity and with due honesty but he has discharged his duty in a very casual and negligent manner putting the bank in financial loss, therefore, he was charge-sheeted by framing the charge, which having been found to be proved, the order of punishment was passed by the disciplinary authority.
The learned Single Judge, taking into consideration these aspects of the matter as also considering the power and scope of judicial review in the -8- matter of imposing punishment by the administrative authorities by initiating disciplinary proceeding since is lest to be interfered with, refused to interfere with the order passed by the administrative authorities, requires no interference by this Court.
10. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by learned Single Judge.
11. The fact, which in not in dispute in this case, is that the writ petitioner while discharging his duty as Manager, Bank of India at Balasagra Branch, Hazaribagh, a departmental proceeding was initiated against him on the basis of charges framed against him, as mentioned in 'Memo of Article of Charges' alleged to have been committed during tenure of his service from 15.5.1999 to 5.7.2001 as Manager, Balasagra Branch Hazaribagh, description of which has been mentioned in the preceding paragraph. The writ petitioner participated in the proceeding and defended his case. However, the enquiry officer found the charges leveled against the petitioner proved except charge no. 6. The enquiry officer forwarded the enquiry report to the disciplinary authority, which was accepted by him and thereafter order of punishment was passed, against -9- which the petitioner preferred appeal as also review which was rejected vide order dated 25.07.2004 and 21.04.2005 respectively.
12. The writ petitioner has raised the issue of violation of principles of natural justice stating that no second show cause notice was served upon him before passing the impugned order of punishment, but, it appears from the record that the petitioner had participated in the enquiry proceeding and defended himself by denying the allegation leveled against him and he has also examined the witness and also cross-examined the witness of the respondents-bank. The enquiry officer, on consideration of the oral as well as documentary evidence, has found the charges proved against the petitioner save and except charge no. 6. It appears from the enquiry report that the petitioner has participated at length in the enquiry proceeding and as such according to considered view of this Court it is incorrect on the part of writ petitioner to raise the issue of violation of principles of natural justice.
13. So far as second ground that second show cause notice was not issued to him is also contrary to the material available on record since second show cause notice was issued by the disciplinary authority before
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passing the order of punishment which the petitioner responded and after consideration of the response of the petitioner the order of punishment was passed by the disciplinary authority, therefore, such argument is also having no force rather the same is contrary to the material available on record.
14. This Court, having discussed the factual aspects discussed as above, has scrutinized the order passed by the learned Single Judge and found therefrom that the learned Single Judge has considered the fact about observance of principles of natural justice, which strictly has been followed, as would appear from the material available on record as also the second ground as has been taken on behalf of petitioner that the second show cause notice was never served upon him, the learned Single Judge has considered the aforesaid fact and held from the materials available that second show cause notice was served upon petitioner which was replied by him and after considering the fact about observance of natural justice in the enquiry proceeding and charge having been proved has declined to interfere with the impugned order passed by the administrative authorities.
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15. The position of law is well settled with respect to scope of judicial review of the order of disciplinary authority under Article 226 of the Constitution of India, as has been held by Hon'ble Supreme Court in the judgment rendered in Union of India & Ors Vs. P. Gunasekaran as reported [AIR 2015 SC 545] wherein at paragraph 13, the following guidelines has been laid down for interference in the decision taken by the disciplinary authority and not to interfere with the decision, which reads hereunder as:
"13.Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly
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arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience."
The Hon'ble Apex Court in Central Industrial Security Force and Ors. vs. Abrar Ali [AIR (2017) SC 200], has laid down the guidelines at paragraph 8 for interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding, which is quoted herein below:
"8.Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that
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the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to re-appreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6), this Court held as follows:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.
Since none of the grounds as enumerated in the aforesaid judgment showing interference with the decision of the punishment passed by the disciplinary
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authority has been made out, this Court is of the view that this Court in exercise of power under Article 226 of the Constitution of India cannot interfere with the order passed by the administrative authorities.
16. It also requires to refer herein the judicial pronouncement of the Hon'ble Apex Court on the issue of quantum of punishment dealing with the case of the employees working in the financial institutions like the bank, holding therein that the bankers are supposed to perform their duty with utmost sincerity and integrity and they are to be treated differently to the other civil servants on the ground that they are dealing with the public money.
Reference in this regard be made to the judgment rendered in Chairman and Managing Director, United Commercial Bank & Ors. Vs. P.C. Kakkar, [(2003) 4 SCC 364], which reads as hereunder:
"14.A bank officer is required to exercise higher standards of honesty and integrity. He deals with the money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik [(1996) 9 SCC 69 : 1996 SCC (L&S) 1194] it is
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no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court."
Further, the Hon'ble Apex Court in the judgment rendered in State Bank of India & Ors Vs. S.N. Goyal [(2008) 8 SCC 92] has been pleased to hold at paragraph 41 as under:
"41. At the relevant point of time the respondent was functioning as a Branch Manager. A bank survives on the trust of its clientele and constituents. The position of the Manager of a bank is a matter of great trust. The employees of the bank in particular the Manager are expected to act with absolute integrity and honesty in handling the funds of the customers/borrowers of the bank. Any misappropriation, even temporary, of the funds of the bank or its customers/borrowers constitutes a serious misconduct, inviting severe punishment. When a borrower makes any payment towards a loan, the Manager of the bank receiving such amount is required to credit it immediately to the borrower's account. If the matter is to be viewed lightly or leniently it will encourage other bank employees to indulge in such activities thereby undermining the entire banking system. The request for reducing the punishment is misconceived and rejected."
17. This Court, therefore, taking into consideration the limited scope of judicial review with respect to
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decision passed by the administrative authorities in a departmental proceeding as also considering the nature of allegation which is serious in nature and is not expected from the bankers which ultimately caused loss to the people at general, and applying the principle laid down in the cases referred hereinabove if the learned Single Judge has not interfered with the impugned order, which according to our considered view cannot be said to suffer from any error.
Further, since the petitioner was working in bank and as has been held by Hon'ble Apex Court in the case of Chairman and Managing Director, United Commercial Bank & Ors. Vs. P.C. Kakkar (supra) that a bank officer is required to exercise higher standards of honesty and integrity as he deals with the money of the depositors and the customers, this Court is of the view that the impugned order passed by the administrative authorities suffers from no error. The learned Single Judge taking into consideration the facts in entirety and the scope of judicial review in exercise of power conferred under Article 226 of the Constitution of India, according to our considered view, is correct in not interfering with the orders passed by the administrative authorities as impugned.
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18. In the result, the instant appeal fails and is dismissed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Alankar/ A.F.R.