Patna High Court
Upendra Kumar vs The Bihar State Financial Corporation ... on 21 July, 2006
Author: V.N. Sinha
Bench: V.N. Sinha
ORDER V.N. Sinha, J.
1. Heard Mr. Manik Ved Sen for the petitioner and Mr Rajesh Prasad Chaudhary for the Bihar State Financial Corporation and its functionaries.
2. The petitioner who earlier held the post of the Deputy Manager, Zone I in the Bihar State Financial Corporation (hereinafter referred to as the Corporation) is aggrieved by the office order No. 22/2001 02 bearing memo no 1114 dated 22.8.2001, Annexure 16 issued under the signature of the Managing Director of the Corporation, whereunder he has been dismissed from the service of the Corporation with immediate effect. He is further aggrieved by the minutes of the 4th meeting of the Board of Directors of the Corporation held on 30.9.2005 recorded in context of Agenda Item Nos. 12739 and 12983 dismissing his appeal against the aforesaid dismissal order which was duly communicated to him along with letter No. 2609 dated 20.10.2005 and is contained in Annexure 24 to the I.A.No. 5583 of 2005.
3. The petitioner having passed M.B.A. examination joined the Corporation on the recommendation of the Bureau of Public Enterprises, Government of B1har in the year 1982. Considering the satisfactory service rendered by him he was promoted to the post of the Deputy Manager in the year 1986 and posted in the Patliputra Branch of the Corporation where he was served chargesheet bearing memo No. 96-97/16 dated 8.4.1996, Annexure-1 alleging grave misconduct, negligence of duty, irresponsibility and acting in a manner detrimental to the interest of the Corporation in discharge of his duties as Deputy Manager of Patliputra branch of the Corporation since he failed to ensure compliance of the different standing orders referred to in the charagesheet while considering the case of M/s Electro Deals, Patna, Dayal Chemicals, Patna in the year 1989 for sanction/disbursement of loan causing loss to the Corporation of Rs. 6.17 lakhs and 10.26 lakhs on 28.2.96 Sri M.P. Mandiwal, A.G.M. was appointed the conducting officer and the petitioner was directed to file his show cause before Sri Mandiwal within three weeks from the date of receipt of the chargesheet. The said chargesheet is contained in Annexure-1. While proceedings initiated under chargesheet, Annexure-1 remained pending the petitioner was served with another chargesheet bearing memo No. 96-97/142 dated 26.7.1996, Annexure-2 in continuation of earlier chargesheet dated 8.4.96, Annexure-1 alleging gross misconduct, negligance of duties and acting in a manner detrimental to the interest of the Corporation as the Deputy Manager of the Patliputra Branch of the Corporation since he wrongly recommended release of Rs. 3.79 lakhs in favour of promoter M/s Maurya Electricals, Phulwarisharif, Patna without ascertaining genuineness and adequacy of advance paid to the machine supplier by the promotor thereby violated standing order No. 6/83-84 dated 8.10.1983 and causing huge loss to the Corporation to the tune of Rs. 12.01 lakhs. The subsequent chargesheet dated 27.7.96 called upon the petitioner to submit, his show cause before another conducting officer namely Sri R.P. Singh, the officer on special duty within three weeks from the date of service of the chargesheet. Perusal of the chargesheet dated 26.7.1996, Annexure-2 would further indicate that the evidence which the Corporation desired to rely in support of the charges was the branch office loan file of the promoter, standing order No. 6/83-84 and the statement dated 18.5.1996 of M/s Ajit Kumar Srivastava and Sunnat Kumar Sinha Partners of Machine supplier M/S Technical Febrico India, Patna. The petitioner assailed the initiation of the aforesaid two proceedings by filing C.W.J.C.No. 12710/1996 and prayed for stay of the departmental proceeding as on similar allegations police case was also lodged against the petitioner by the Corporation. During the pendency of the writ petition the conducting officer Sri R.P. Singh submitted his report dated 29.1.1997 which was forwarded to the petitioner under letter dated 1.2.1997, Annexure-4 calling for his comments on the findings reached by the conducting officer. Before either the petitioner could submit his comments in compliance of the directions contained in letter dated 1.2.1997 or any further action could be taken on the basis of the enquiry report dated 29.1.1997, C.W.J.C.No. 12710/96 was dismissed under order dated 30.6.1997, Annexure-3 with observation that the petitioner may file his written statement/show cause within a week, provided the proceeding is pending. It appears in the meanwhile the earlier enquiry officer Sri R.P. Singh was transferred and another enquiry officer namely Sir Ashok Kumar, A.G.M. was appointed enquiry officer under memo No. 1166 dated 2.8.1997, whereafter the new enquiry officer with reference to the order of this Court dated 30.6.1997, Annexure-3 and the instructions of the Managing Director of the Corporation issued letter dated 4.8.1997, Annexure-5 calling upon the petitioner to file his written show cause by 11.6.1997 falling which the enquiry shall proceed ex-parte. The petitioner instead of filing show cause before the enquiry officer in compliance of the directions contained in notice dated 4.8.97 requested the enquiry officer to stay the enquiry as he had filed L.P.A against the order dated 30.6.1997, Annexure 3. The L.P.A. was dismissed under order dated 21.10.1997 whereafter petitioner requested the conducting officer to allow him further time to file show cause so that he may peruse the original loan file of the Branch/Regional office as also the other connected papers. The conducting officer under letter dated 20/21.11.1997, Annexure-6 permitted the petitioner to make inspection of the files which he wanted to peruse with direction that he must file his written show cause and appear for personal hearing on 2.12.1997. It appears the petitioner instead of appearing for hearing in the departmental proceeding on 2.12.1997 vide his letter dated 2.12.1997, Annexure-7 requested for further 30 days time to peruse the branch office file and regional office files as also to consult his lawyer for preparing effective show cause reply. Sri Ashok Kumar, the conducting officer under his letter dated 4.12.1997, Annexure-8 rejected the request of the petitioner to grant 30 days time and fixed 11.12.1997 as the date for proceeding ex parte. Perusal of the aforesaid letter dated 4.12.1997, Annexure-8 clearly indicates that the conducting officer specifically rejected the plea of the petitioner for making available Regional office file of the promoter as the same was not the part of the memo of evidence as per chargesheet. He also specifically rejected the request for 30 days time to file show cause in view of the order of the High Court in the writ petition and the L.P.A. filed by the petitioner himself. The petitioner having received the order dated 4.12.1997 fixing the proceeding for ex parte hearing on 11.12.1997 as also holding that the Regional office file was not necessary in the proceeding again demanded various other documents including the R.O. file under request dated 5.12.1997, Annexure-9 which was again rejected under order dated 9.12.1997, Annexure-10 observing that the charges have not been framed on the basis of the records available in the Regional office file which is not even part of memo of evidence and is reportedly missing, as such, the request to make the same available is neither necessary nor feasible. The petitioner thereafter it appears prepared his show cause reply dated 11.12.1997, Annexure-11 and filed the same before the enquiry officer on the date fixed for ex-parte proceeding i.e. 11.12.1997, In the show cause, the petitioner denied the charges levelled against him as while making an application for release of fund the promoters had submitted a copy of the money receipt of supplier and a copy of draft/pay order purchased by the promoter in favour of the machine supplier and appreciating the contents of the aforesaid two documents pay order for release of fund was raised by the petitioner on anticipated security. In the show cause reply, the petitioner specifically requested the enquiry officer to ensure presence of the partners of the machine suppliers M/s Technological Febrico India, Patna namely A.K. Srivastava and S.K. Sinha whose statement dated 18.5.1996 was sought to be relied in the proceedings against the petitioner by the Corporation. It was further made clear in the show cause that the petitioner may also examine M/s A.K. Srivastava and S.K. Sinha as potential witnesses on his behalf. Perusal of the show cause reply indicates that on account of non availability of the Regional office file petitioner expressed his inability to ascertain the views of the Regional office as regards recommendations for release of amount of Rs. 3.79 lakhs to the promoter which seriously prejudiced his case. The presenting officer on the basis of the materials available in the branch office file including the notes of the petitioner dated 20.4.1989 whereunder the petitioner had recommended the release of Rs. 3.79 lakhs in favour of the promoter without checking books of accounts only on the basis of advance of Rs. 1.65 lakhs to the machine supplier that too by way of draft/cash submitted that the charges levelled against him under chargesheet dated 26.7.1996, Annexure-2 is proved as on account of recommendation made by the petitioner the Corporation has suffered lose to the tune of Rs. 12.01 lakhs. The Presenting officer, during conduction of the proceeding dated 11.12.1997, however, declined to examione M/s Ajit Kumar Srivastava and S.K. Sinha, paratners of machine cupplier namely Technical Febrico India, Patna whose statement dated 18.6.1996 was sought to be relied in support of the charge vide memo of evidence as according to the Presenting officer their examination was not at all necessary since the charages related to violation of the standing order No. 6/83-84 dated 8.10.1983 and in his opinion the proceeding should not travel beyond the contents of the standing order. No sooner the Presenting officer during the conductiuon of the proceeding dated 11.12.1997 made his intentions clear not to examine the aforesaid partners of the Machine supplier as witnesses in support of the charage the petitioner requested the enquiry officer to fix another date in the proceeding so as to enable him to examine the partners of the Machine supplier as also other witnesses in support of his defance case but when no such opportunity was allowed the petitioner in protest did not sign the proceeding although when the hearing had begun he had signed the attendance sheet. Statement to this effect is not only made in paragraphs 18, 19, 20, 21 and 22 of the writ petition but also in the enquiry report dated 14.1.1998, Annexure-23 that the petitioner refused to sign the minutes of the proceeding on the plea that for ascertaining the correctness or otherwise of the charge it was necessary to examine the partners of the machine supplier. The enquiry officer, however, overruled the aforesaid plea of the petitioner holding as follows:
No body prevented the proceedee in production of any evidence before the conducting officer to defend his case, which he did not do till the submission of enquiry report. It appears that the proceedee only intended to jeopardize the completion of enaquiry only on this alibi. Therefore, the Conducting officer is submitting his enquiry report on the basis of facts and materials available on record.
and thereafter proceeded to hold him guilty with reference to the notes/recommendation of the petitioner dated 20.4.1989, whereunder he recommended release of Rs. 3.79 lakhs in favour of the promoter without checking his Books of Account only on the basis of advance of Rs. 1.65 lakhs by way of draft/cash. While holding the petitioner guilty the enquiry officer categorically held that the stage was not ripe for recommending release on the ground of non fulfilment of the initial investment condition in as much as advance paid through cash and bearer bank draft is not acceptable unless confirmed by the Bank. While recording the aforesaid findings as it appears from the enquiry report itself the enquiry officer has heavily relied on the statement of the parteners of the machine supplier dated 18.5.1996 which is writ large in the discussions made in the enquiry report.
4. The enquiry report dated 14.1.1998, Annexure-13 was served on the petitioner under letter dated 12.2.1998, Annecxure-13 with direction to furnish his comments on the findings reached in the enquiry report dated 12.2.1998. The petitioner in compliance of the direction contained in letter dated 12.2.1998, Annexure-13 filed his comments in response to the findings recorded in the enquiry report dated 14.1.1998, Annexure-23 vide his comments dated 20.2.1998, Annexure-15 asserting that the enquiry report is fit to be rejected as thereunder findings have been reached without examining any witness as also without granting him opportunity to adduce the defance witnesses thereby violating the Principles of Natural Justice Infracting Articles 14 and 16 of the Constitution of India.
5. It appears the comments filed by the petitioner remained pending for about three years whereafter he was served with the dismissal order dated 22.8.2001, Annexure-16 holding him guilty of the charges levelled against him which was assailed by the petitioner by filing appeal on 8.10.2001 before the Board of Directors of the Corporation in terms of the provision contained in Regulation 40 of the Bihar State Financial Corporation (Staff Regulartions, 1965) on the ground that the dismissal order was not only without jurisdiction as Sri Subhash Sharma, the managing Director of the Corporation who passed the same had no competence to pass the same since he was not a regularly appointed M.D. of the Corporation and further on the ground that the dismissal of the petitioner was violative of the Principles of Natural justice not only at the stage of enquiry officer who did not permit examination of witnesses but also at the stage of disciplinary authority who passed the dismissal order without considering the points taken by the petitioner in his comments dated 20.2.1998 as also the points taken in the second show cause reply and in the memo of appeal itself the petitioner requested the Board of Directors of the Corporation to give him opportunity of personal hearing while considering the memo of appeal so that on merits also ha can satisfy that the recommendation to release the amount was wholly bonafide and not contrary to the instructions contained in standing order No. 6/83-84, When the appeal was not disposed of for about two years petitioner filed C.W.J.C. No. 2155 of 2003 assailing the dismissal order dated 22.8.2001, Annexure 16. During pendency of the appeal filed by the petitioner before the Board of Direcrtors, C.W.J.C.No. 2155/2003 was disposed of by this Court under order dated 6.12.2003, Annexure-19, the Court speaking through Chandramauli Kumar Prasad, J directed the appellate authority to dispose of the appeal within 4 months. In compliance of the said order the appellate authority considered the appeal in its meeting dated 16.7.2003 and rejected the same after due deliberation as is evident from the certified copy of the minutes of the proceedings dated 16.7.2003 which was communicated to the petitioner under memo No. 836 dated 16.7.2003, Annexure-20. The petitioner assailed the original order dated 22.8.2001 and the Appellate order dated 18.7.2003 by filing C.W.J.C. No. 8339 of 2003 which was allowed under order dated 5.12.2003, Annexure 21, and the Court speaking through R.S. Garg, J quashed the appellate order directing the Board of Directors to reconsider the appeal and pass a reasoned order. It appears in compliance of the directions of this Court dated 5.12.2003 the Board of Directors reconsidered the appeal of the petitioner in its meeting held on 13.0.2005 vide Agenda Item No. 12733 and 12983 and recorded the minutes dated 30.9.2005 which was duly communicated to the petitioner under letter No. 2609 dated 20.10.2005, Annexure-24. Perusal of the appellate order indicates that Sri Subhash Sharma, the then Managing Director who acted as disciplinary authority and passed the dismissal order had the necessary jurisdiction to pass the same since he was appointed by the State Government after due consultation with the Small Industrial Development Bank of India as is required under the State Financial Corporation Act and the plea that Sri Sharma had no jurisdiction to pass the dismissal of order was wholly devoid of merit. The request for personal hearing during the consideration of the appeal was also rejected noticing the facat that ample opportunity was given to the petitioner by the enquiry officer and no new facts/evidence could be adduced at the appellate stage. Plea of violation of Principles of Natural justice on account of non examination of the two partners of the machine supplier namely M/S A.K. Srivastava and A.K. Sinha witnesses named in the chargesheet itself was also rejected by the appellate authority holding that their examination was not relevant as the charges levelled against the petitioner was of violation of the standing order No. 6/8.10.1983. The assertion of the petitioner that the statements of the aforesaid two witnesses was relied upon by the enquiry officer in his enquiry report was also rejected as not correct. Besides on merits as well the Appellate authority was satisfied that the charges alleged against the petitioner has been proved as release of Rs. 3.79 lakhs was recommended without fulfiling the norms of initial contribution, examining the Books of Account as also without verifying the advance pales to the machine supplier.
6. The petitioner by filing the instant writ petition has assailed the two orders, the original order, Annexure-16 and the appellate order Annexurs-24 on the self same ground that the enquiry report is violative of the Principles of Natural justice as the enquiry officer never asked the presenting officer to produce the two chargesheet witnesses namely partners of the machine supplier as also did not give the petitioner opportunity to examine them as his own witnesses although specific request to that effect was made not only in the show cause reply dated 11.12.1997, Annexure-11 itself but also at the time of hearing when the presenting officer declined to produce them as witnesses in this connection, learned Counsel for the petitioner referred to the statement of fact recorded in the enquiry report itself that the petitioner refused to sign the minutes of the departmental proceeding dated 11.12.1997 in protest as according to him it was essential to verify the statement given by the two partners of the machine supplier dated 18.5.1996 by examining/cross examining them since their statement dated 18.5.1996 was contrary to records. Learned Counsel for the petitioner further submitted that if the Corporation was not interested in producing the two chargesheet witnesses then opportunity ought to have been given to him in the light of his request contained in the show cause itself by fixing a specific date for examination of defance witnesses. Admittedly, the enquiry officer never fixed any date for examination of defance witnesses. In the circumstances, according to the counsel for the petitioner the entire report and the proceeding taken thereafter is wholly vitiated and on this ground itself not only the enquiry report but the original order as also the appellate order should be quashed and the matter be remanded to the enquiry officer with direction in to fix the date for examination of the defance witnesses and thereafter to conclude the proceedings afresh. Learned Counsel with reference to the request of the petitioner as contained in leter dated 2.12.1997, Annexure-7 and the averments made in the show cause reply itself Annexure-11 has submitted that the failure of the Corporation to allow the petitioner opportunity to inspect Regional office file of the promoters has prejudiced his defance to a considerable extent. In support of the aforesaid contentions, learned Counsel for the petitioner has, relied on the judgments rendered in the case of State of M.P. v. C.S. Waishampayan reported in AIR 1961 SC 1623, paragraphs 9 and 10, State of U.P. and Anr. v. C.S. Sharma reported in AIR 1958 SC 153 State of T. Nadu v. Thiru K.V. Perumal and Ors. ,. Prakash v. Board of Directors, Mithila Khetriya Gram in Bank, Darbhanga and Ors. reported in 1936(1) PLJR 409, paragraphs 10 and 11, S.K. Verma v. State of Bihar and Ors. reported in 2000(1) PLJR 116 and Kumar Upendra Singh Parimar v. B.S.Co operative Land Development Bank Ltd and Ors. reported in 2000(3) PLJR 10.
7. On the other hand, learned Counsel for the Corporation has supported the Impugned order of dismissal as also the appellate order and has submitted that charges levelled against the petitioner that he recommended release of Rs. 3.79 lakhs in favour of the promoters without assertaining the genuineness of the advance led to violation of the standing order No. 6 /83-84 dated 8.10.1983 which was proved by the own admission of the petitioner in his notes dated 20.4.1989 which is reproduced in extenso in the enquiry report. In the circumstances according to him, it was absolutely not necessary to either examine the two chargesheet witnesses or to permit the petitioner to examine his own defence witness. He further submitted that the enquiry report having been accepted by the disciplinary authority no detailed dismissal order giving reasons was necessary as the reasons given in the enquiry report ipso facto becomes part of the dismissal order. He further pointed out that the appellate order contains detailed reasons and deal with all the points which have been raised by the petitioner and in the circumstances he submits that no interference is called for and the writ petition should be dismissed. In support of the aforesaid contentions learned Counsel for the Corporation has relied on a judgment rendered in the cases of National Fertilizers Ltd and Anr. v. P.K. Khanna and Divisional Manager, Plantation Division Andaman and Nicobar Islands v. Munnu Barrick and Ors. reported in SCC 2005(2) 237.
8. Having heard the counsel for the parties and having perused the two impugned orders, Annexures 16 and 24, two chargesheets Annexures 1 and 2, the memo of evidence appended thereto and the request of the petitioner contained in letter dated 2.12.1997, 5.12.1997, Annexures- 7 and 9 and reply thereto 4.12.1997, Annexure-8 and 9.12.1997 Annexure-10 and the show cause reply dated 11.12.1997 Annexure-11, I am of the view that the production of the Regional office file of the promoter for preparing and filing the show cause reply was not necessary as the same was not referred to in the memo of evidence appended to the chargesheet Annexure-2 and in the circumstances, request of the petitioner to peruse the same in my opinion was wholly unnecessary. In this connection it may be necessary to recall the observation made in the case of State of Tamil Nadu v. K.B. Perumal (Supra) that there is only duty to supply relevant documents and not each and every document asked for by the delinquent employee. The R.O. file was not referred to in the memo of evidence, as such, was not at all relevant. Request to produce the same was only an attempt to delay the departmental proceeding. So far the plea of the petitioner that he was not given opportunity to examine defance witness to establish that advance was paid to the machine supplier is concerned, I am of the view that from the enquiry report and the pleadings made in the writ petition in paragraphs 18 to 22 which has not been controverted in the counter affidavit of the Corporation I am satisfied that no opportunity at all was granted to the petitioner to examine his witnesses. In this connection, the petitioner lodged his protest during the proceedings itself when he refused to sign the minutes of the proceedings dated 11.12.1997 although in the beginning of proceedings he had signed the attendance sheet. In the circumstances, this Court has no option but to quash the enquiry report dated 14.1.1998 Annexure 23 the original order dated 22.8.2001 Annexure 16 and the appellate order dated 20.10.2005 Annexure 24 to the I.A. which is accordingly quashed and the matter is remanded back to the enquiry officer who should grant opportunity to the petitioner to examine his defancs witness(es) on day to day basis within a month from the date of receipt/production of a copy of this order whereafter the enquiry officer should submit his report within another three weeks and the disciplinary authority should pass appropriate final order in accordance with law within three months of the date of receipt of the report.
9. The arrears of salary for the period between the date of dismissal order, "Annexure-16 till the date of this order shall depend upon the result of the proceeding. So far current salary is concerned, the petitioner shall be entitled thereto as during the pendency of the proceeding earlier he was never placed under suspension.
10. The writ petition is disposed of with the aforesaid observations and directions. No cost.