Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4486 of 2008 ====================================================== Jitendra Kumar Lal, son of Late Bijendra Narayan Lal, resident of Mohalla Azam Nagar, Police Station Azam Nagar, District Katihar .... .... Petitioner Versus 1. The State Bank Of India through its Chief General Manager, 7th Floor, Local Head Office, State Bank of India, West Gandhi Maidan, Patna. 2. The Dy. General Manager – cum - Appellate Authority State Bank of India, Zonal Office, Purnia 3. The Assistant General Manager – cum - Disciplinary Authority (Region – III), State Bank of India, Zonal Office, Purnia 4. The Chief Manager – cum – Enquiry Officer, State Bank of India, Katihar Branch 5. The Branch Manager, State Bank of India, Panighata Branch (under Zonal Office Purnia), District - Katihar 6. The Branch Manager, State Bank of India, Tribeniganj under Zonal Office, Purnia .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Aditya Narain Singh Mr. Kundan Kumar Sinha
Legal Reasoning
For the Respondents : Mr. Kaushlendra Kr.Sinha ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 10 09-09-2013 Heard Sri Aditya Narayan Singh, learned counsel for the petitioner and Sri Kaushlendra Kumar Sinha, learned counsel, who has appeared on behalf of all the respondents / State Bank of India (hereinafter referred to as “Bank”). The petitioner, in the present writ petition has prayed for quashing of an order dated 9.8.2007 passed by the Deputy General Manager /respondent no. 2 whereby the Deputy General Manager (appellate authority) modifying the punishment imposed against the petitioner in the departmental proceeding has ordered to bring Patna High Court CWJC No.4486 of 2008 (10) dt.09-09-2013 2/8 down the petitioner to lower stage in the scale of pay by two stages for six years during which period he will be debarred to earn any increment to pay. It was further clarified that after the said period he will earn future increments in his pay once during a year i.e. only one increment during a year. The petitioner has
Decision
further prayed for quashing of Annexure -2 to the writ petition i.e. order dated 22nd June, 2006, whereby the disciplinary authority i.e. Assistant General Manager ( Region III) has imposed penalty of bringing down petitioner to lower stage in the scale of pay by two stages for 15 years during which period the petitioner was refrained to earn any increment. Short fact of the case is that while the petitioner was posted as Senior Assistant , State Bank of India, Tribeniganj Branch, he was served with memo of charge vide Annexure - 4 to the writ petition. Two charges were framed against him. The charges were in relation to the period while petitioner was posted at Panighata Branch. The charges are as follows:- “(i) Shri Sanjay Kr. Das borrower under PMRY at the Branch deposited Rs. 7250/- in his loan A/c on 08.12.1997 and you gave counterfoil of the receipt in token of having received cash, duly signed / initialed by you. Shri Das has also another IRDP Loan A/c at the Branch. But the deposited amount was not credited in any of his Loan A/c. It is also alleged that you borrowed Rs. 15000/- from Shri Das which was not returned to him. Patna High Court CWJC No.4486 of 2008 (10) dt.09-09-2013 3/8 (ii) On 01.09.1998 you also received Rs. 40000/- in cash from Dilwar Hussain of Baghmara, PS Azamnagar for Village issuance of Fixed deposit receipt. The Branch Manager was not present at that time and signature of Shri Hussain was obtained by you on the relative form and voucher. You told him to come after two days to receive Fixed Deposit Receipt. When Shri Hussain came to collect the same you told him that you have spent the money for your personal need and promised him to return the money within a week. Later on you gave him two cheques of Rs. 21000/- each drawn on your account No. 20002. These cheques remained unpaid on account of insufficient balance in the account.” In the case conducting officer was appointed and after conducting thorough enquiry the enquiry officer submitted his report dated 26.1.2004. The enquiry report was submitted by one Sri S.N. Mishra, who was the conducting officer. The conducting officer in its enquiry report dated 26.1.2004 exonerated the petitioner from both the charges. Though enquiry report was submitted in the month of January, 2004, no decision was taken and after lapse of about 1½ year the petitioner was intimated regarding appointment of one Sri A.K. Verma, as new enquiry officer for conducting fresh enquiry. The petitioner thereafter raised objection regarding further enquiry. However, further enquiry was conducted and 2nd enquiry officer submitted his report showing that charge no. 1 was proved against the Patna High Court CWJC No.4486 of 2008 (10) dt.09-09-2013 4/8 petitioner. The 2nd enquiry report is dated 23.1.2006 i.e. Annexure – 5 to the writ petition. After receipt of 2nd enquiry report the petitioner was given second show cause notice, and finally, the disciplinary authority imposed punishment as indicated in preceeding paragraph. Thereafter, petitioner assailed the order before the appellate authority and appellate authority modified the order of punishment. Both the orders have been assailed in the present writ petition. Sri Singh, learned counsel for the petitioner at the very outset has argued that once the conducting officer had submitted enquiry report in the year 2004 itself whereby the petitioner was exonerated, there was no reason for the Bank to get the matter further inquired and appoint new conducting officer. He submits that as per provisions contained in 7th Bi-partite Settlement 2nd enquiry was not permissible. He has further drawn attention of this Court to 2nd enquiry report i.e. Annexure - 5 to the writ petition. He has specifically referred to findings recorded in Clause 4 at running page no. 48 of the brief. He submits that 2nd conducting officer has not conducted the enquiry independently, rather he has acted as if he was representative of the Bank. He highlights that while conducting further enquiry 2nd conducting officer had even visited Panighatta Branch to get some materials Patna High Court CWJC No.4486 of 2008 (10) dt.09-09-2013 5/8 to establish charges against the petitioner. According to learned counsel for the petitioner it was the job of the presenting officer to place entire material to prove charges against the petitioner before the conducting officer, it was not the duty of the conducting officer. In view of the fact that first enquiry officer had exonerated the petitioner from both the charges appointment of 2nd conducting officer and conduct of the 2nd conducting officer by way of visiting the Branch establishes the fact that Bank was adamant to inflict punishment on the petitioner one way or the other. He submits that facts enumerated hereinabove are sufficient to establish that departmental proceeding had not proceeded fairly and honestly against the petitioner, rather it was malicious and is liable to be set aside. Sri Kaushlendra Kumar Sinha, learned counsel for the Bank has opposed the prayer of the petitioner. He submits that regarding appointment of 2nd enquiry officer, there is no violation of any rule or provisions rather it was in accordance with the provisions contained in Vigilance Manual of the State Bank Of India. He while referring to Chapter X Clause 3.1 (ii) submits that even in case an inquiry is concluded and report is submitted for certain charges, in special circumstances further enquiry can be conducted by appointing new conducting officer. He has Patna High Court CWJC No.4486 of 2008 (10) dt.09-09-2013 6/8 specifically placed Chapter X 3.1 (ii) of the Vigilance Manual, which is quoted hereinbelow:- “When some of the charges are proved fully or partly by the IA in his report, the DA should consider the report in the first instance, and his difference of opinion, if any, giving reasons for such difference, should be conveyed to the CSO along with the copy of the Inquiry Report for obtaining his submission.” According to learned counsel for the Bank since there was already provision for conducting further enquiry by appointing new conducting officer, petitioner may not be allowed to assail the order of the disciplinary authority. He further submits that the disciplinary authority on receipt of 2nd enquiry report has passed a reasoned order. According to learned counsel for the Bank in the departmental proceeding no illegality or irregularity was committed, and as such, while exercising power of judicial review this court may not examine the case on merit. In any event, in the departmental proceeding the petitioner was granted full opportunity and thereafter order of punishment has been passed, which has been modified by the appellate authority. Besides hearing learned counsel for the parties, I have also perused the materials available on record. In the present case on aforesaid two charges petitioner was proceeded departmentally and first conducting officer was appointed who Patna High Court CWJC No.4486 of 2008 (10) dt.09-09-2013 7/8 submitted his report in the year 2004. During enquiry no charges could be proved , and as such, first enquiry officer recommended for exonerating the petitioner. The report was submitted in the month of January, 2004, and thereafter, no sincere efforts were taken by the disciplinary authority either to accept or to disagree with the enquiry report. However, after lapse of about 1 ½ year suddenly a decision was taken to get the matter enquired afresh and further enquiry officer was appointed. Even in view of provisions contained in Vigilance Manual certain time limit has been specified for taking decision in the departmental proceeding and also for taking step after receipt of the enquiry report. After receipt of the enquiry report even as per Chapter XIII 3 (13) of the Vigilance Manual there is time limit of 15 days. However, in the present case about 1 ½ year delay has occurred and thereafter new conducting officer was appointed. The appointment of new conducting officer after receipt of first enquiry report whereby petitioner was exonerated after such a long delay creates doubt in the mind of the court that the disciplinary authority was adamant to take certain action against the petitioner. The allegation of malafide is further corroborated from the conduct of 2nd conducting officer. The 2nd conducting officer during enquiry had visited Panighatta Branch to examine certain records. Patna High Court CWJC No.4486 of 2008 (10) dt.09-09-2013 8/8 Nothing has been stated in the enquiry report or even in the counter affidavit the reasons for the conducting officer for visiting the Branch for establishing the charge. In a departmental proceeding it is expected that the conducting officer will conduct enquiry independently and not like an agent of the employer. It is the duty of presenting officer to place all materials before the conducting officer so that a correct opinion may be recorded by conducting officer. The visit of 2nd conducting officer to the concerned Branch is sufficient to prove that departmental proceeding had not proceeded fairly against the petitioner. Accordingly, in view of the fact that petitioner was exonerated by first conducting officer and that report was kept pending for about 1 ½ year and the fact that 2nd enquiry officer has also not proceeded independently, rather acted like representative of the Bank, the court has got no option but to set aside the order of disciplinary authority as well as appellate authority. Accordingly, both the orders are hereby set aside and the writ petition stands allowed with consequential benefits. Praful/- (Rakesh Kumar, J)