High Court
Case Details
WP(C) 1723/2009 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (CAV) In this petition under article 226 of the Constitution of India, petitioner has challenged the legality and validity of the order dated 04-03-20 08 passed by the Zonal Manager, UCO Bank, Zonal Office, Jorhat as the disciplina ry authority imposing the penalty of removal from service on the petitioner. 2. Case of the petitioner is that while he was serving as MMGS-II i n the Mukalmua Branch of UCO Bank, he was served with a show-cause notice dated 12-09-2006 issued by the disciplinary authority proposing to hold a disciplinary enquiry under Regulation 6 of the UCO Bank Officer Employees (Discipline and Ap peal) Regulations, 1976 on the charges mentioned therein. The charges pertain to various acts, omissions and commissions allegedly committed by the petitioner i n the sanctioning and disbursement of loans while serving as Assistant Manager o f the Itanagar Branch. When he was transferred from Itanagar Branch to Mukalmua Branch, he had transferred the four loans accounts sanctioned and disbursed by h im while functioning at the Itanagar Branch, to the Mukalmua Branch without auth ority with an intent to cover up the irregularities. 3. Petitioner submitted his written statement dated 27-09-2006 deny ing all the allegations and requested the authority to exonerate him from the ch arges. 4. The written statement of the petitioner was considered by the di sciplinary authority but the same was not found satisfactory. It was, therefore, decided to hold an enquiry and for this, an Enquiry Officer was appointed. At t he conclusion of the enquiry, the Presenting Officer submitted written brief on behalf of the management. Likewise, a written brief was submitted by the defence representative on behalf of the petitioner. 5. Enquiry Officer submitted a detailed report dated 08-09-2007 to the disciplinary authority wherein out of the five charges, Charge Nos. 2, 3 and 4 were held proved. 6. The disciplinary authority vide the forwarding letter dated 18-0 9-2007 forwarded the report of the Enquiry Officer to the petitioner, who submit ted his representation on the enquiry report on 05-10-2007. Thereafter, the disciplinary authority passed final order dated 7. 04-03-2008 imposing the following penalties for the charges proved i.e., Charge No.2 (proved) alification for future employment. Charge No.3 (proved) alification for future employment. Charge No.4 (proved) removal from service, which shall not be a disqu reduction to a lower grade i.e. from scale-II to removal from service, which shall not be a disqu --- --- --- scale-I at the basic pay of Rs.1382/- for a period of three years. It was stated that all the three penalties would have concurrent effect. It was also stated that since petitioner was under suspension, he would not be entitled to any benefit other than the subsistence allowance paid to him during the peri od he remained under suspension. 8. Though petitioner filed an appeal against the order of penalty, no decision was taken thereon. Aggrieved, he has filed the present writ petition . 9. Contention of the petitioner is that the management failed to pr ove charge No.2 against the petitioner. Stand of the petitioner was that he was not the authority to sanction the loans in question. Petitioner had sought for c ertain documents to substantiate his stand but the Presenting Officer failed to produce those documents. Enquiry Officer erroneously put the onus on the petitio ner. Disciplinary authority failed to consider this aspect of the matter. Docume nts such as the LIC policies furnished by the loan applicants were scrutinized a nd verified by various authorities before sanctioning of the loans. Only after t he Senior Manager had signed the sanctioning forms, petitioner disbursed the loa n amounts. There was also no evidence to show that petitioner had transferred th e four loan accounts from Itanagar Branch to Mukalmua Branch. Further contention of the petitioner is that charge No.4 was not specific. Therefore, it is a case of no evidence.
Legal Reasoning
10. Respondents have filed a common affidavit. It is stated that pet itioner while serving as Assistant Manager of Mangaldoi Branch had in connivance with fraudsters sanctioned a loan against security of LIC policies belonging to one Narruddin Ali. He was arrested by the Mangaldoi police on an FIR filed by t he said Narruddin Ali and was in police custody for the period from 16-09-2005 t o 18-10-2005. In so far the disciplinary proceeding is concerned, it is stated t hat the Enquiry Officer had conducted the enquiry giving reasonable opportunity to the petitioner. Enquiry Officer in his enquiry report found charge Nos. 2, 3 and 4 out of the five charges to have been proved. Copy of the enquiry report wa s duly served on the petitioner, who submitted his representation on the enquiry report. After due consideration, order of penalty dated 04-03-2008 was passed. Petitioner had filed appeal against the order of penalty. Appellate authority du ly considered the same but rejected the appeal vide his order dated 11-06-2009. All the contentions raised by the petitioner have been denied. Punishment impose d is justified and calls for no interference.
Legal Reasoning
11. nd Mr. P.C. Goswami, learned Counsel for the respondents. Heard Mr. A.M. Bujarbaruah, learned Counsel for the petitioner a 12. Mr. Bujarbaruah, learned Counsel for the petitioner submits that as per report of the Enquiry Officer, which was accepted by the disciplinary au thority, charge Nos. 1 and 5 were not proved but charge Nos.2,3 and 4 were prove d. Charge Nos. 1 and 2 are inter-related. When charge No.1 was held not proved, charge No.2 cannot stand independent of charge No.1. Therefore, it cannot be sai d that charge No.2 stood proved. He submits that petitioner had not sanctioned a ny loan but had only disbursed those loans which were sanctioned. Bank authority failed to produce the sanction orders. He did not sanction any loan at Mukalmua . At Mandaldoi also he had only disbursed what was sanctioned. He, therefore, su bmits that in this background, imposition of the penalty of removal from service is not justified. 13. Mr. P.C. Goswami, learned Counsel appearing for the respondents on the other hand submits that the charges against the petitioner were quite ser ious. His written statement in defence was duly considered but could not be acce pted. Accordingly, enquiry was ordered. In the enquiry, Presenting Officer was a ppointed to represent the management whereas petitioner was represented by a def ence representative. During the enquiry proceeding, reasonable and adequate oppo rtunity was given to the petitioner to put up his defence. On completion of the enquiry, report of enquiry was submitted by the Enquiry Officer to the disciplin ary authority. Three out of the five charges were held proved. Disciplinary auth ority on due consideration agreed with the findings of the Enquiry Officer and i mposed the penalty of removal from service on the petitioner. Appeal submitted b y the petitioner against the order of penalty was rejected by the appellate auth ority by a reasoned order by taking all relevant factors into consideration. As there is no violation of the principles of natural justice and a fair procedure was followed while conducting the disciplinary proceeding, no interference is ca lled for. Punishment imposed on the petitioner cannot also be said to be disprop ortionate, excessive or shocking to the judicial conscience. He, therefore, see ks dismissal of the writ petition. Mr. Goswami, learned Counsel for the responde nts has also produced the record of the enquiry. 14. In his brief reply, Mr. Bujarbaruah, learned Counsel for the pet itioner submits that even though in a disciplinary proceeding, the standard of p roof is not as strict as in a criminal trial or even in a civil proceeding, yet the charge has to be proved. In this case, on the basis of the available materia ls, charge Nos. 2, 3 and 4 cannot be said to have been proved. He further submit s that no disciplinary proceeding was drawn up against the Senior Manager. In su ch circumstances, Court should intervene in the matter and quash the penalty imp osed. 15. ecord produced. Submissions made have been considered. I have also perused the r Before proceeding further, the charges framed against the petiti 16. oner may be noted. The following were the charges framed against the petitioner: - (cid:28)1. Sri Sailendranath Kakati while functioning as Asstt. Manager at Itanagar Bra nch had sanctioned and disbursed (4) four loans against the purported assignment LICI policies which were found to be fake on verification of the status of the policies from LIC of India, North Lakhimpur Branch where from the subject LIC Po licies have purportedly been issued. Thus Sri S N Kakati had failed to discharge his duties with utmost integrity, honesty and failed to take all possible steps to protect the interest of the Bank, which is violative of Regulation 3 of UCO Bank Officer Employees (Conduct) Regulation 1976 as amended. 2. Sri Sailendranath Kakati had sanctioned and disbursed four loans against secu rity of LIC policies without having any delegated power by grossly abusing his o fficial capacity in absence of permanent Sr. Manager which is violative of Regul ation 3 of UCO Bank Officer Employees’ (Conduct) Regulation 1976 as amended. 3. Sri Sailendranath Kakati had transferred all the four loan a/cs sanctioned an d disbursed by him to Mukalmua Branch where he had been transferred from Itanaga r Branch without the concurrence / prior approval from the Regional Office Jorha t and thus Sri Sailendranath Kakati had acted in a manner unbecoming of a bank o fficer which is violative of Regulation 3 of UCO Bank Officer Employees’ (Conduc t) Regulation 1976 as amended. 4. Sri Sailendranath Kakati while functioning as Asstt. Manager at Mangaldoi bra nch and looking after the Advance Portfolios had processed as many as 24 loan a/ cs in a very irregular way and had signed the loan disbursement vouchers of all the 24 borrowal a/cs and thus he failed to ensure and protect the interest of th e Bank which is violative of Regulation 3 of UCO Bank Officer Employees’ (Conduc t) Regulation 1976 as amended. 5. Sri Sailendranath Kakati while discharging duties as Asstt. Manager at Mangal doi Branch had in connivance with fraudsters sanctioned a loan against security of a LIC Policy belonging to one Nuruddin Ali and Sri Sailendranath Kakati had b een arrested by Mangaldoi Police on the basis of a complaint lodged by Nuruddin Ali, and was under Police and Judicial custody from 16-09-2005 to 18-10-2005. Th us Sri Sailendranath Kakati had acted in a manner that has tamished the image of the Bank before the public. He had committed breach of faith in performance of his duties which is violative of Regulation 3 of UCO Bank Officer Employees’ (Co nduct) Regulation 1976 as amended. (cid:29) While charge No.1 relates to sanctioning and disbursement of fou 17. r loans by the petitioner against fake LIC polices while functioning as Assistan t Manager at Itanagar Branch, the second charge relates to sanctioning and disbu rsement of the said four loans by the petitioner in the absence of permanent Sen ior Manager without having any delegated power, by grossly misusing his official capacity. Related to the second charge is charge No.3 whereby petitioner was c harged with transferring the above four loan accounts from Itanagar Branch to Mu kalmua Branch when he was transferred to Mukalmua Branch without concurrence / p rior approval from the Regional office at Jorhat. 18. roved, charge Nos.2 and 3 were held proved. As already noticed above, while charge No.1 was held to be not p 19. The Enquiry Officer while dealing with the above two charges not ed that sanction advice dated 19-02-2004 in the case of Shri Kamal Nath, who was one of the loanees, was issued by the petitioner when the Senior Manager was pr esent though he had no authority to do so. Sanction advice to another loan appli cant was not available. The defence could not produce any relevant record to sho w that these two loans were sanctioned by the Senior Manager. The defence could not produce the loan applications in respect of the four loan accounts duly appr oved by the Senior Manager. The loans were disbursed when the Senior Manager was absent. The Enquiry Officer finally held that there were gross irregularities i n processing, sanctioning and disbursing the said loans by the petitioner, who s howed scant regard to the laid down rules and procedure of the Bank. Thus, charg e Nos. 2 was held proved. Regarding charge No.3, which dealt with transfer of th e four loans accounts from Itanagar Branch to Mukalmua Branch, the Enquiry Offic er noted that for such transfer of loan account, permission / concurrence of hig her authority was required. Additionally, the Manager is also required to assess the suitability and desirability of transferring such loan accounts. Petitioner neither referred the matter to the Regional Office at Jorhat nor made the above assessment. The Enquiry Officer further observed that the loanees hailed from p laces like Harmoti and Gopalpur of Lakhimpur district of Assam whereas the Mukal mua Branch is situated in Nalbari district, which is far away from the residence of the loanees. Therefore, there could be no valid justification for transfer o f such loan accounts. In such circumstances, the Enquiry Officer had drawn the i nference that since petitioner was involved in granting the four loans, he trans ferred the said loan accounts to Mukalmua Branch where he was posted to cover up the irregularities in the sanctioning and disbursement of the said loan amounts . Thus, charge No.3 was held to have been proved. 20. The disciplinary authority in his order dated 04-03-2008 examine d the materials produced at the enquiry proceedings, the report of the Enquiry O fficer and representation of the petitioner on the enquiry report. He held that the enquiry proceedings were conducted in conformity with the laid down procedur e and the petitioner was given all reasonable opportunity to put up his defence. He concluded that the petitioner had failed to take all possible steps to ensur e and protect the interest of the Bank and had acted in a manner which was unbec oming of a Bank Officer. For this two charges, the disciplinary authority impose d the penalty of removal from service. 21. Since against charge No.4, which though proved, a lesser punishm ent was proposed by the disciplinary authority, in view of the more severe penal ty of removal from service being imposed in respect of charge Nos. 2 and 3, the said penalty of reduction to lower grade would have no effect. In such circumsta nces, I am of the view that deliberation on charge No.4 may not be necessary. At the appellate stage, the appellate authority considered the f 22. indings as regards charge Nos. 2, 3 and 4. Relevant portion of the appellate ord er dated 11-06-2009 dealing with charge Nos. 2 and 3 are as under:- (cid:28)1.Shri Kakati has admitted that he had disbursed the said 4 loans against LIC p olicies. His submission that since the Senior Manager was present on the date an d signed two demand drafts issued for the disbursement, therefore, he was aware of the disbursement is not tenable because defence could not produce any evidenc e/voucher, which contained the signature of the Senior Manager having sanctioned the loans. His claim that once Senior Manager signed the drafts issued on accou nt of disbursement, his consent for sanction and disbursement was implied, is no t maintainable because Bank has system and procedures in place as to how the loa ns be sanctioned at the branch level. He was expected to obtain sanction of Seni or Manager on each of the loan proposal processed by him before making disbursem ent. Therefore, I am of the view that Shri Kakati has abused his official capaci ty. 2. As regards obtaining permission to transfer loan accounts from one branch to other branch, the contention of Shri Kakati that the responsibility lies on the transferring branch and for which he should not be blamed is not maintainable be cause while forwarding the applications of the borrowers for seeking transfer of the loan accounts to Mukalmua branch, which is far away from the recorded addre ss of the borrowers, he did not refer the matter to the controlling office as pe r rules. I am of the view that since, Shri Kakati was involved in the irregulari ties in those four loan accounts, therefore, to cover up the irregularities, he got the accounts transferred to Mukalmua branch, where he had been transferred. Therefore, I consider that Shri Kakati had acted in a manner unbecoming of a ban k officer. (cid:29) 23. Thus, I find that the respondents had followed the due procedure while conducting the disciplinary proceeding against the petitioner and he was given reasonable and adequate opportunity to defend himself. Charge Nos. 2 and 3 are quite grave and those have been proved in a regular disciplinary proceeding . In the circumstances of the case, the punishment imposed cannot also be said t o be disproportionate or shocking to the judicial conscience. Charge No.2 is a s eparate charge, independent of charge No.1, which has been proved. Non-initiatio n of disciplinary proceeding against the Senior Manager would not absolve the pe titioner of his misconduct. 24. ion, which is accordingly dismissed. For all the aforesaid reasons, I find no merit in the writ petit 25. No cost. 26. pondents is returned back. Record produced by Mr. P.C. Goswami, learned Counsel for the res