Bali Ram Prasad Singh vs The G.M.(H.R.) Cum Reviewing A

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13029 of 2009 ====================================================== Bali Ram Prasad Singh, son of Sri Ram Pravesh Singh, resident of vilalge - Nisi, P.S. - Bakhtiyarpur, district - Patna. ... ... Petitioner Versus 1. The General Manager (H.R.) Cum Reviewing Authority Bank of India, Express Tawer, Nariman Point, Post Box No. 11646, Mumbai-21. 2. The Assistant General Manager-cum-Appellate Authority, Bank of India, Chanakya Place, Birchand Patel Marg, Patna, Bihar. The Chief Manager-cum-the Disciplinary Authority, Bank of India, Patna Zone, Chanakya Place, Birchand Patel Marg, Patna, Bihar. ... ... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Chandra Bhushan Singh For the Respondent/s : Mr. Ajay Kumar Sinha ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD C.A.V. JUDGMENT Date : 27-11-2018

The present writ application has been preferred

invoking extraordinary writ jurisdiction of this court for the

following reliefs:

"(A) For issuance as "Mandamus" of an

appropriate writ/order or direction to the

respondents for quashing the dismissal order

of petitioner by respondents-authorities (i)

Penalty order Ref. No. ZO/C.M./DA/VIG-166/22

dated 30.06.2008 of Respondent no. 3 as

Annexure-5. (ii) Ref. No.ZO/PAT/A/VIG-166/349

dated 16.12.2008 Appellate order or

Respondent No. 2 as Annexure-5(A) and (iii)

Ref. No. PAK, RA-070 dated 20.05.009 Review

order of Respondent no. 1 as Annexure-5(b) Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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are illegal, arbitrary and malafide.

(B) For issuance as 'Certiorari' of an

appropriate writ/order or direction to the

Respondents for reinstate the petitioner on

their post with due promotion and other

consequential benefits which is entitled as per

Rule of the Bank.

(C)For issuance of appropriate writ/order or

direction to the Respondents to restrain from

the violation of Article 20(3), 14 and 16 of the

Constitution of India and Sections 101 and

102 of the Indian Evidence Act, 1872.

(D) For issuance of appropriate writ/order or

direction to the respondents as required at

the time of hearing and other reliefs as sought

of judicature with cost."

Facts of the case

I. It is the case of the petitioner that while

he was posted as Manager in in Kushila Branch under the

then Gaya region in the Bank of India (hereinafter referred

to as the "respondent-Bank"), a F.I.R. came to be lodged on

16.08.2000 against the petitioner and others alleging

financial irregularities committed by the petitioner. The

said case being Magadh University P.S. Case No. 51/2000

was investigated but according to the petitioner since no

material could be collected against him to connect him Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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with the offence alleged in the F.I.R., he was exonerated by

the investigating agency. Annexure-1 to the writ

application is the report-2 of the Superintendent of Police,

Gaya and Annexure-1(A) is the supervision note dated

24.08.2000, 31.08.2000. In the writ application though the

Annexure-1 and 1(A) are said to be the photocopies of the

F.I.R. and the charge-sheet, but as stated above, the two

Annexures referred above are different from what have

been described in the body of the writ application.

II. Petitioner was suspended during the

ongoing investigation and a departmental proceeding was

initiated against him. He was served with a memorandum

enclosing articles of charges dated 16.11.2000 (Annexure-2

to the writ application). Altogether IX (nine) charges were

levelled against the petitioner. The petitioner was

exonerated from charge no. III, VII, VIII and IX as those were

not proved. Charge no. I, II, IV, V & VI for which the

petitioner was found guilty are stated hereunder for a ready

reference:

"Article-I

You had sanctioned and disbursed loans under

crop loans, IRDP and PMRY loans without

property applications, without identifying the

borrowers, without obtaining property security

documents and the loan amounts were

disbursed through bogus firms and thus Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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fraudulently misappropriated Bank's funds to the

extent of Rs. 15015 lacs exposing the Bank to

serious loss. The quotations and bills obtained in

these accounts are without any dates and no pre

or post-sanction inspections were conducted.

There were unauthenticated alterations of the

activities and amount in the IRDP loan

applications. In 6 accounts, no documents were

traceable. The details of these 42 loan accounts

along with the irregularities committed by you

and the financial loss or Rs. 5,15,988.00 plus

uncharged interest suffered by the Bank are

given in Annexure-"A" in the Statement of

Allegations.

Article-II

You had sanctioned and disbursed loans in 8

accounts without opening the accounts in the

ledger in violation of Bank's norms and

procedures as given in Annexure "B" in the

Statement of Allegations. You had sanctioned

and disbursed loans in 21 accounts, where only

the first postings were made in the ledger and

subsequent vouchers, including second

disbursements, interest amount, insurance

premium were not posted in the ledger. Thus,

you had disbursed amount aggregating to Rs. Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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3,33,410/- without maintain proper records in

utter disregard of the Bank's norms and

procedures resulting in financial loss of Rs.

3,33,410.00 plus uncharged interest to the Bank

as per the details given in Annexure "B" and "C"

in the Statement of Allegations.

Article-IV

You had sanctioned and disbursed loans of Rs.

12,000/- each in 3 loan accounts by crediting

50% of the loan amount in S.B. Account of the

borrowers, which was subsequently withdrawn

and deposited back in the loan accounts

immediately after the disbursement and 50% of

the loan amount was disbursed to non-existent

supplier and thus fraudulently misappropriated

the loan amount and subsidy claimed in the said

accounts. In these accounts, goods were not

supplied to the borrowers and the bills were that

of non-existent firm resulting in financial loss of

Rs. 23,220/- plus uncharged interest to the Bank.

The details of these accounts are given in

Annexure "D" in the Statement of Allegations.

Article-V

You had in connivance with one Shri Yogendra

Prasad, middleman, who is also a bogus supplier

and having a non-existent firm in the name of Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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M/s. Mehta Traders, sanctioned and disbursed

loans aggregating Rs. 1,52,082.00 in 9 loan

accounts under the IRDP Scheme despite the

fact that none of these applications was

forwarded by Block Authorities and without

carrying pre-sanction and post-sanction

inspection, as per the details given in Annexure

"B" in Statement of Allegations. In all the

aforesaid accounts bills of non-existent bogus

firm, M/s. Mehta Traders, were kept on Branch

records, no assets were supplied to the

borrowers and the same borrowers were given

cash as part of the loan amount and thus

fraudulently misappropriated the Bank's funds

resulting in financial loss of Rs. 1,52,082/- plus

uncharged interest to the Bank. In some of the

aforesaid accounts, the loans were sanctioned

and disbursed to different persons other than the

persons for whom the applications were

forwarded by the Block Authorities.

Article-VI

You had sancationed a PMRY loan of Rs. 95,000/-

on 29.07.1998 to Smt. Siya Devi, wife of Shri

Yogendra Prasad, even though she was not

entitled for the said loan. You had mentioned her

age as 33 years in CBD-23 to bring it within the Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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maximum age limit of 35 years applicable in

PMRY scheme. The purpose of the loan was

altered on the application from Manihari to Khad

and the amount was disbursed to non-existent

firm, M/s Mehta Traders. You failed to conduct

post-sanction inspection and failed to ensure

proper end-use of the funds. There is an

outstanding of Rs. 113118/- as on 2.9.2000

exposing the Bank to financial loss of Rs.

1,13,118/- plus uncharged interest."

In the background of the aforesaid

allegations, the petitioner was charged for

committing acts in breach of Regulation 3(I) and

23(II) and (V) of the Bank of India Officer

Employees (Conduct) Regulations, 1976

(hereinafter referred to as the "Regulations,

1976"). The petitioner was charged of

committing misconduct under Regulation 24 of

the Regulations 1976. The relevant provisions of

the Regulations, 1976 are quoted hereunder: -

"Regulation 3(i)

"Every Officer employee shall at all times to

take all possible steps to ensure and protect

the interest of the bank and discharge his

duties with utmost integrity, honesty, devotion

and diligence and do nothing which is Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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unbecoming of a Bank Officer."

Regulation 23(ii)

"not under the influence of intoxicating drink

or drug during the course of his duty and also

take due care that the performance of his

duties at any time is not affected in any way

by the influence of such drink or drug."

Regulation (v)

"not use any intoxicating drink or drug in

excess."

Regulation 24

"A breach of any of the provisions of these

regulations shall be deemed to constitute a

misconduct punishable under the Bank of

India Officer Employees (Discipline & Appeal)

Regulations, 1976."

In course of departmental inquiry, the petitioner

was given an opportunity to engage his defence

representative and to participate in the inquiry proceedings

which he accordingly did. On conclusion of the inquiry, a

copy of the inquiry report dated 27.04.2001 was duly

served upon the petitioner and he was called upon to

submit his representation on the findings of the inquiry. The

petitioner had submitted his response in form of second

show cause reply on 07.07.2001 but without considering

the same the disciplinary authority passed order of penalty Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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dated 10.07.2001. The petitioner carried a departmental

appeal against the order dated 10.07.2001, but ultimately

failed, thereupon he moved this court in CWJC No.

5468/2005 which was ultimately allowed on 21.05.2001.

The penalty order dated 10.07.2001 and the appellate

order arising from the same were set aside by the learned

writ court and the disciplinary authority was given liberty to

pass a fresh order within one month from the date of

receipt/production of a copy of the order. A copy of the

order dated 21.05.2008 passed in CWJC No. 5468/2005 is

Annexure-4(A) of the writ application.

The disciplinary authority passed a fresh penalty

order dated 30.06.2008 (Annexure-5 to the writ

application). The disciplinary authority dealt with the

contentions of the petitioner as contained in his

representation dated 07.07.2001, and rejected the

contentions of the petitioner for the reasons stated in

various sub-paragraphs of paragraph-'7' of the penalty

order dated 30.06.2008. The disciplinary authority held that

the reasoned findings recorded by the inquiry authority

needs no interference and as the charges against the

petitioner vide charge no. I, II, IV, V and VI have been

proved, considering the gravity of the charges it will be in

the ends of justice to impose the consolidated penalty

of dismissal from bank's service which shall

ordinarily be a disqualification for future Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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employment. The concluding part of the order passed by

the disciplinary authority reads as under: -

" Shri B.R.P. Singh, Staff Officer, Koshila Branch be and is hereby awarded the major penalty of "Dismissal which shall ordinarily be a disqualification for future employment" in terms of Regulation 4(j) of Bank of India Officer Employees' (Discipline & Appeal) Regulations, 1976, for the acts of misconduct as enumerated in the Articles of Charge issued under cover of Memorandum dated 16.11.2000

, held as proved in the departmental inquiry. It is further directed that since Shri Singh has been dismissed from Bank service he shall not earn any arrears of salary for the period between the date of earlier dismissal i.e. 10.07.2001 to till date except the Subsistence Allowance in accordance with law from 21.05.2008 to till date in terms of the Order dated 21.05.2008 of the Hon'ble High Court, Patna. ....."

The petitioner preferred a departmental

appeal against the penalty order dated 30.06.2008, but

failed to succeed. The appellate order dated 16.12.2008 is

Annexure-5(A) to the writ application. The appellate Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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authority has recorded that he did not find any merit in the

contentions raised by the petitioner. According to the

appellate authority, the order of the disciplinary authority is

speaking in nature and has analysed the various aspects

while recording the penalty. In ultimate analysis, the

appellate authority found that the allegations against the

petitioner are factual which calls for imposition of major

penalty and there was no justifiable ground to interfere with

the penalty order. The petitioner thereafter preferred a

review before the General Manager (HR) but the Reviewing

Authority rejected the same after holding that "upon

perusal of the records it is observed that the inquiry

has been held in accordance with the principle of

nature justice and there is no infirmity observed in

the same. .........."

It is the aforesaid orders of penalty, appellate

order and the order of the reviewing authority which are

under challenged in the present writ application.

Stand of the Respondent Nos. 1 to 3

The respondent Bank has sought to contest

the writ application by filing a counter affidavit and two

subsequent supplementary counter affidavits. It is their

stand that the all concerned authorities of the Bank have

considered the charges which have been proved against

the petitioner and according to them it required a major

penalty to be imposed upon the petitioner for financial Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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misconduct and jeopardizing the interest of the Bank. It is

their stand that the banking institution is running on the

trust and faith of the customers, therefore, to avoid any

distrust and loss of faith of the customers, it is necessary

that the person against whom charge of financial

irregularity is proved is not retained in service. The

respondent Bank has enclosed the copy of the inquiry

report (Annexure-A to the counter affidavit) in which the

Inquiry Officer has dealt with the charges with reference to

the case of the defence. The Inquiry Authority has

discussed the deposition of the witnesses produced on

behalf of the defence and the documents brought on record

as Exhibit-D-1 to D-36.

The Inquiry Officer has also considered the

document brought by the defence saying that the 12

persons who had earlier complained against the petitioner

regarding non-receipt of goods, loan amount had now

claimed that they had received the goods and loan amount.

The Inquiry Officer found that out of 12 persons, 11 were

illiterate whose LTI were shown without there being any

verification and none of these 12 persons could depose as

defence witnesses, moreover the Presenting Officer on

behalf of the Management Bank had challenged the

genuinety/authenticity and veracity of these documents.

The Inquiry Officer has also considered the 89

documents submitted on behalf of the management of the Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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Bank and then discussed the oral evidence of the four

management witnesses out of whom one Chandra Bhushan

Kumar Singh, PMRY loanee (MW4) was declared hostile.

During the hearing of the writ application vide

order dated 30.01.2018 this court directed the respondent

Bank to file a specific supplementary affidavit on the status

of the accounts at the time of drawing of charges against

the petitioner and the facts as to whether those accounts

which is part of charge no. 1, were bad accounts and had

been declared NPA? In response to the said order the

respondent Bank has filed the supplementary counter

affidavit in which while enclosing copies of some

documents as daily ordersheet of the inquiry proceeding

from 23.001.2001 to 25.01.2001 (Annexure-B series),

copies of statements of complainant/borrowers (Annexure-C

series)/Exhibit-77(b) and copy of the list of accounts of the

borrowers classified as NPA (Annexure-D series), the

respondent Bank has also informed this court that since the

matter is too old, the concerned file could not be located. It

is stated in the said supplementary affidavit that with the

introduction of computerization based system many of the

accounts were closed due to writting off, hence details are

difficult to be ascertained.

In the second supplementary counter affidavit,

the Bank has placed on record a copy of the investigation

report dated 26.09.2000 for the purpose of ascertaining the Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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allegations the investigation was conducted prior to

drawing the Articles of Charges.

Submissions on behalf of the petitioner

In course of argument, learned counsel for the

petitioner has assailed the order of penalty and other

impugned orders alleging that a fair procedure was not

adopted in course of inquiry. It is his submission that the

management of the Bank had failed to produce any single

borrower as a witness before the Inquiry Officer to support

the allegations and the borrower Shri Chandra Bhushan

Kumar Singh who was produced as management witness

no. 4 when denied the allegations made against the

petitioner, he was declared hostile. It is submitted that the

major punishment of dismissal from service has been

imposed only on the basis of the evidence of the

management witnesses namely, Shri S.K. Sharma,

Manager, Koshila Branch (MW1) and Shri S.H. Kajal, Officer,

Bodh Gaya Branch (MW2).

It is also the submission of the petitioner that

no financial loss has taken place in this case and due to

shortage of staff in the branch office the petitioner was not

able to complete the entire documents and later on during

the suspension period the petitioner was not allowed to

enter in the Bank premises, therefore he was unable to

complete the documentation. He has sought to explain the

shortcomings in the documentation in the following words: -

Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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(i) Photograph of Smt. Nirmala Devi (M-32) is

available in her S/B Account also in the

crop loan;

(ii) Existence of firm M/s Maa Tara Traders,

B.K. Enterprises and M.K. Traders as also

the disbursements made to them have

been proved by the documents produced

on behalf of the defence. It has been

found that the these firms have been

maintaining their accounts in the State

Bank of India, Gaya and Allahabad Bank

at Gaya;

(iii) The Bank has wrongly shown a likely loss

of Rs. 15.15 lacs and Rs. 5,15,988.00

without there being any document to

prove the same.

The petitioner has denied the charges it is

submitted that the Inquiry Officer could not appreciate that

the borrower M/s Sonam Devi and Mr. R. Das had already

deposited the amount and that there was no any complaint

by any of the borrowers. It is submitted that even Jago

Manjhi (borrower) denied in writing about the allegations

against the petitioner. The petitioner has relied upon the

judgment of the Hon'ble Supreme Court in the case of

Union of India and Another Vs. B.C. Chaturvedi

reported in 1995 (6) SCC 750 to submit that the power of Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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the Hon'ble High Court under Article 226 is in the nature of

a plenary jurisdiction and has got inherent power to do

'complete justice' between the parties and where

punishment/penalty imposed by the disciplinary/appellate

authority in departmental inquiry against a public servant is

disproportionately excessive so as to shock the judicial

conscience, High Court can modify the punishment/penalty

by moulding the relief to avoid possible infringement of

Article 40.

Further reliance has also been placed on a Single

Judge judgment of this Court in the case of Aman Kumar

Vs. The Chairman, Uttar Bihar Gramin Bank & Ors.

reported in 2018(1) PLJR 95 (HC), wherein the learned

coordinate Bench of this court relied upon the Constitution

Bench judgment of the Hon'ble Supreme Court in the case

of Union of India Vs. H.C. Goel reported in AIR 1964 SC

364 and judgment of the Hon'ble Supreme Court in the

case of Kuldeep Singh Vs. Commissioner of Police &

Ors. reported in (1999) 2 SCC 10 and took a view that the

findings recorded in a domestic inquiry can be categorized

as perversed if it is shown that such findings are not

supported by any evidence on record or are not based on

the evidence adduced by the parties or no reasonable

person could have come to those findings on the basis of

that evidence. It is submitted that in the case of Kuldeep

Singh (Supra) the Hon'ble Apex Court has held that the Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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witnesses whose statements are relied on must be

produced in course of departmental inquiry.

Submissions on behalf of the management Bank

The management Bank has contested the

submissions of the petitioner. It is submitted that the

charges against the petitioner were serious in nature, he

had indulged in financial irregularities which are

completely unbecoming for a Bank Officer. Learned counsel

submits that in the present case the petitioner being the

Branch Manager had acted in reckless manner ignoring the

interest of the Bank. The petitioner had sanctioned and

disbursed the loan amount through a middle man and

through bogus suppliers, even without pre-appraisal of loan

proposal and by making alteration in purpose of loan

without there being any such mandate of the borrowers.

According to the Bank, in many loan accounts 50% of the

loan amount was credited in the S/B account of the

borrowers, which is impermissible particularly in IRDP and

PMRY loans, rest 50% were credited to bogus suppliers and

the articles were shown to have been supplied through

those bogus suppliers. It is submitted that no procedural

irregularity could be found in the conduct of inquiry

proceeding, in the present case. It is submitted that there

is no error in decision making process, and, therefore, the

concurrent findings present in the present case need not

be interfered with.

Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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The management Bank has relied upon the

judgment of the Hon'ble Supreme Court in the case of

State Bank of India & Ors. vs. Ramesh Dinkar Punde

reported in 2006(7) SCC 212 to contend that the High

Court in exercise of its power under Article 226 of the

Constitution of India is not supposed to make re-

appreciation of evidence or substitute its views and would

not be justified in interfering with the findings of the facts.

Learned counsel submits that in the present case the facts

which have crystalised in course of Inquiry clearly show

that the petitioner had indulged in disbursement of crop

loans under IRDP and PMRY schemes without proper

application form, without identifying the borrowers and

without obtaining proper security documents and

disbursed the amount through bogus firms.

The respondent Bank has relied upon the

judgment of the Hon'ble Supreme Court in the case of

Disciplinary Authority-cum-Regional Manager & Ors.

Vs. Nikunja Bihari Patnaik reported in 1996 (9) SCC 69

to contend that no defence is available to the employee of

a Bank to show that there was no loss or profit resulted in a

case when it has been found that the employee had acted

without authority. Examining the word "misconduct" in the

light of Regulation 24 of the Regulations 1976 in the said

case, the Hon'ble Supreme Court held that Regulation 3

requires every officer/employee of the Bank to take all Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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possible steps to protect the interest of the Bank and to

discharge his duty with utmost integrity, honesty, devotion

and diligence and to do nothing which is unbecoming of a

Bank Officer. It requires the officer/employee to maintain

good conduct and discipline and to act to the best of his

judgment in performance of his official duties or in exercise

of the powers conferred upon him, breach of Regulation '3'

has been held "misconduct" within the meaning of

Regulation 24.

In the aforementioned background, learned

counsel representing the respondent Bank has prayed for

dismissal of the writ application.

Findings

In the present case it is apparent from the

allegations present in the Articles of Charges that the major

penalty proceeding was initiated against the petitioner for

his alleged acts of misconduct while working as Manager of

the Koshila Branch of the Bank. He was posted in the

Branch w.e.f. 05.06.1998 till the date of his suspension vide

order dated 27.09.2000. The charges against the petitioner

included a charge that he had sanctioned and disbursed

loans under crop loan, IRDP and PMRY loans without proper

applications, without identifying the borrowers, without

obtaining security documents and the loan amount were

disbursed through bogus firms and thus fraudulently

misappropriated the Bank's funds to the tune of Rs. 15.15 Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

20/27

Lacs and thereby exposing the Bank to serious loss. The

quotations and bills obtained in these accounts were

without any dates and no pre and post inspections were

conducted. There were unauthenticated alterations of the

activities and amount in IRDP loan applications. In six

accounts, no documents were traceable. Annexure-A

enclosed with the statement of allegations is the detail of

the 42 loan accounts wherein a financial loss of Rs.

5,15,988.00 plus uncharged interest suffered by the Bank

have been provided.

The petitioner had allegedly

sanctioned and disbursed loans in its account

without opening the accounts in ledger in

violation of Banks norms and procedures. He

had sanctioned and disbursed loans in 21 loan

accounts, where the first posting was made in

the ledger but the subsequent vouchers,

including second disbursements, interest

amount, insurance premium were not posted in

the ledger. A perusal of the Inquiry report would

show that the Inquiry Officer has looked into

various exhibits M-1 to M-42 and after going

through the same, gave his observations and

held that in all crop loan accounts mentioned in

his report the signature/LTI, documents are

completely blank. In PMRY account documents Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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are blank. The pre-sanction inspection reports

are also not available in most of the accounts.

Bills, money receipts, quotations were undated.

MW-1, Sri S.K. Sharma had confirmed during his

deposition that documents were kept blank and the

security documents were missing. The Inquiry Officer found

that the defence had neither contradicted this nor it gave

any explanation in this connection. The Inquiry Officer was,

therefore, satisfied that the proper applications were not

obtained, borrowers were not properly identified and proper

security documents were not obtained.

As regards the disbursements to three firms (i)

M/s M.K. Traders (ii) M/s Maa Tara Traders (iii) M/s B.K.

Enterprises and (iv) M/s Mehta Traders, the management

witnesses stated that they tried to locate the shops of M/s

Maa Tara Traders and B.K. Enterprises, but they could not

locate the shops at the address given in the quotations.

After going through the defence documents in form of the

statement of current account of the firms and their

registration certificates, the Inquiry Officer held that even

though mere Bank accounts/copy of registration cannot be

taken as a full proof of the existence of the firm but keeping

in view the statement of the defence witnesses it is proved

that the firms were in existence, but then the Inquiry Officer

held that "however it is very difficult to believe that

one firm can supply everything from Kirana items to Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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boring plant items, machines, thela etc. ...."

Regarding an unauthenticated

alterations of activities on account the Inquiry

Officer found that on Exhibit-M1 to M42, barring

one or two documents there is cutting in activity

and loan amount. He has referred Exhibit-M-1,

M-2, M-21, M-22, M-23 and M-24.

The submission of the defence that posting of

vouchers, opening of accounts etc. are the duties of clerk,

the Inquiry Officer has rightly held that it is the prime duty

of the Branch Manager to ensure that these are properly

opened and posted in ledgers, proper security documents

are taken and filled in.

Regarding Charge No. II, the Inquiry Officer found

that the management had produced certain vouchers such

as Exhibit M-78 and M-82 to prove the non-posting of

second and subsequent debits. In course of inquiry, the

petitioner himself admitted that six accounts (not eight

accounts) were not opened in ledgers. He had also

admitted that in certain accounts which China Paswan,

Kailash Manjhi, Sheela Devi etc. debits were not made in

their accounts, but he tried to pass on his responsibility on

his Clerk. In my opinion, the Inquiry Officer rightly

concluded that it is the primary duty of the Manager to see

that each loan account is properly opened in ledger and

amounts are debited.

Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

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On going through the findings of the Inquiry

Officer, I noticed that the Inquiry Officer has applied his

mind to the entire materials available on the record, has

discussed the various exhibits of the managements as well

as defence and then recorded his observations with regard

to the proof of charges. So far as procedural aspects are

concerned, it is not in dispute that the petitioner was given

an opportunity to engage his defence representative and

had been allowed to participate in the inquiry. No violation

of principles of natural justice or violation of the principles

of fairness in holding the departmental inquiry could be

noticed by this court.

The petitioner has given much emphasis on his

argument that the management of the Bank failed to

produce a single witness in course of the departmental

proceeding and the only borrower who could be produced

on behalf of the management was Shri Chandra Bhushan

Kumar Singh (MW-4) who became hostile. In this connection

I would agree with the view taken by the disciplinary

authority in the penalty order dated 30.06.2008, wherein

he has negatived the contention of the petitioner on this

issue by saying that the pre-recorded statements of the

borrowers presented by the Presenting Officer were

produced in the inquiry and it's authenticity was certified

by the management witnesses before whom the same were

taken. These witnesses i.e. MW1 and MW3 were produced Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

24/27

in the inquiry for examination and cross-examination by the

management and the defence respectively.

On the contrary the retraction statements of the

borrowers presented by the defence was simply produced

before the inquiry authority after the inquiry was concluded

and not through any witness. The said prerecorded

statements produced by the defence were purportedly

bearing the thumb impression of the borrowers without any

authentication or name of witness before whom the same

were taken. It is on this ground it has been held that the

defence has got the opportunity to examine the

authenticity/genuineness of the documents produced by

the Presenting Officer through MW1 and MW3, which the

defence did not avail for the reasons best known to them.

In the case of Nand Kishore Prasad Vs. State

of Bihar reported in 1978 (3) SCC 366 = AIR 1978 SC

1277; which has been discussed by learned Single Judge of

this court in Aman Kumar (Supra), it was held that the

disciplinary proceedings are in the nature of a quasi judicial

character, and therefore the tribunal being a quasi judicial

authority may arrive at its conclusion on the basis of some

evidence which means such evidence which have some

degree of definiteness, points towards the guilt of the

delinquent and does not leave the matter in a suspicious

state as mere suspicion cannot take the place of proof in a

domestic inquiry. It is only when the findings recorded in a Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

25/27

domestic inquiry are not supported by any evidence on

record or are not based on the evidence adduced by the

parties or no reasonable person could have come to those

findings on the basis of that evidence, the findings recorded

in domestic inquiry can be characterized as perverse.

In the present case, the materials in form of

several management exhibits and the oral evidence of the

management witnesses are clearly indicating towards the

reasonableness on the part of the inquiry officer in arriving

at the findings recorded in the Inquiry report. It cannot be

said that the findings of the Inquiry Officer are perversed.

This court would remind itself with the judgment of the

Hon'ble Supreme Court rendered in the case of State Bank

of India and Others (Supra) wherein it has been held

that it was impermissible for the High Court to reappreciate

evidence which have been considered by the Inquiry

Officer. The jurisdiction of the High Court is circumscribed

and confined to correct the errors of law of procedural

errors, if any, resulting in manifest miscarriage of justice or

violation of principles of natural justice. Similarly, this court

would take note of the judgment of the Hon'ble Apex Court

in the case of Union of India Vs. Sardar Bahadur

reported in (1972) 2 SCR 218 wherein it has been held

that "a disciplinary proceeding is not a criminal trial. The

standard proof required is that of preponderance of

probability and not proof beyond reasonable Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

26/27

doubt.............."

In the case of Chairman & Managing Director,

United Commercial Bank and Others Vs. P.C. Kakkar

reported in 2003 (4) SCC 364; the Hon'ble Supreme Court

held that "a Bank Officer is required to exercise higher

standards of honestly and integrity. He deals with money of

the depositors and the customers. Every officer/employee

of the Bank is required to take all possible steps to protect

the interest of the Bank and to discharge his duty with

utmost integrity, honestly, devotion and diligence and to do

nothing which is unbecoming of a Bank Officer. Good

conduct and discipline are inseparable from the functioning

of the every officer/employee of the Bank. ....."

In the case of Disciplinary Authority-cum-

Regional Manager Vs. Nikunja Kumari Patnaik

(supra) the Hon'ble Apex Court has held that "It is 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 once authority is by itself a breach

of discipline and is a misconduct........."

This court has also noticed that right from the

Disciplinary Authority till the Reviewing Authority, all have

applied their mind to the contention of the petitioner and Patna High Court CWJC No.13029 of 2009 dt.27-11-2018

27/27

then passed their respective orders based on reasons.

In view of the scope and ambit within which this

court can examine the correctness of the impugned orders,

this court does not find any reason to take a different view

and replace it over and above the views of the Disciplinary

Authority, the Appellate Authority and the Reviewing

Authority of the respondent Bank.

This writ application thus fails and is accordingly

dismissed. No order as to cost.

(Rajeev Ranjan Prasad, J.) Rajeev/-

AFR/NAFR AFR CAV DATE 01.11.2018 Uploading Date 27.11.2018 Transmission Date NA