The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.773 of 2006 (In the matter of an application Under Articles 226 & 227 of the Constitution of India) Nimain Charan Raj …. Petitioner Odisha Gramya Bank, Bhubaneswar and others …. Opposite Parties -versus- For Petitioner : Mr. S.K. Samantaray, Advocate : Mr. D.K. Panda, Advocate For Opposite Parties CORAM: JUSTICE G. SATAPATHY DATE OF HEARING & JUDGMENT:14.11.2024(ORAL) G. Satapathy, J. 1. This writ petition under Articles 226 & 227 of the Constitution of India by the Petitioner, an employee of erstwhile Cuttack Gramya Bank is directed against the penalty of dismissal from service as imposed on him in Departmental Proceeding under Annexure-1 and
Legal Reasoning
confirmed by the Appellate Authority under Annexure-2. By Annexure-1, the Chairman-cum-Disciplinary Authority on proof of charge against the Petitioner has imposed the penalty of dismissal from service and W.P.(C) No.773 of 2006 Page 1 of 12 lowering his pay to initial basic pay in conformity with Regulation 38(I)(b)(v) and Regulation 38(I)(b)(ii) of Cuttack Gramya Bank(Officers and Employees) Service Regulations, 2001 (in short the “Service Regulation”). The aforesaid penalty was confirmed by the appellate Authority-cum-Chairman Appellate Board under Annexure-2. 2. The facts in precise are the Petitioner who was an Officer of the Cuttack Gramya Bank joined the service as Manager of Patilo Branch at the relevant time when he was suspended by the Chairman by an order dated 22.10.2003 under Regulation 45 of the Service Regulation. Accordingly, on 12.01.2004, a charge sheet was served on the Petitioner containing three charges and the Petitioner was asked to submit his show cause. In response to the show cause, the Petitioner filed his show cause, but being dissatisfied, an Enquiry Officer was appointed and the Departmental Proceeding commenced against the Petitioner which culminated in submission of the enquiry report in which the Petitioner was found guilty of the three charges served on him and thereafter, a second show cause was issued to him, to which the W.P.(C) No.773 of 2006 Page 2 of 12 Delinquent-Petitioner gave his reply. However, being dissatisfied with reply to the second show cause, the authority concerned i.e. Chairman and Disciplinary Authority by Annexure-1 imposed the penalty of dismissal of the Petitioner from service on proof of charge Nos. 1 and 2 and also imposed the penalty of lowering his pay to initial basic pay scale on proof of charge No.3. 2.1 Against the aforesaid penalty, the Petitioner thereafter preferred an appeal before the Appellate Authority which came to be dismissed under Annexure-2. In this situation, the Petitioner finding no way out approached this Court in the writ petition by pleading inter-alia that his dismissal of service is illegal, arbitrary, unsustainable and against weight of the evidence and thereby liable to be interfered with. 3.
Legal Reasoning
In the course of hearing, Mr. S.K. Samantaray, learned counsel for the Petitioner submits that the charges brought against the Petitioner even if considered to have been proved does not cause loss to the Bank and thereby, the punishment of the Petitioner from dismissal of service is not only shockingly disproportionate, but also unsustainable and excessive. He further submits that W.P.(C) No.773 of 2006 Page 3 of 12 although the Petitioner has been charged for sanctioning loan to him and some relatives, but no loss has been sustained by the Bank because all the loan account has been closed properly with recovery of the loan amount, however, the disciplinary authority ignoring these facts and the past good conduct of the Petitioner has imposed the penalty of dismissal of service on him which is not only shockingly disproportionate, but also not commensurate to the gravity of charge as established against him. Mr. Samantaray, further submits that so far the charge leveled against the Petitioner has not been proved in the standard of proof of preponderance of probability and although, the Petitioner is found to be innocent, he was illegally punished in Departmental Proceeding and the Petitioner is right now jobless since 2004 without any further employment causing serious hardships to him and his family members. Mr. Samantaray, under aforesaid submissions prays to allow
Decision
the writ petition by at least interfering with the penalty so that the Petitioner can avail the financial benefit for the past service rendered by him to survive in the present days’ cost of living. W.P.(C) No.773 of 2006 Page 4 of 12 4. On the other hand, Mr. Dinesh Panda, learned counsel appearing on behalf of the Bank vehemently submits that not only the charge against the Petitioner has been well established, but also the penalty is commensurate to the delinquency of the Petitioner. He further submits that the conduct of the Petitioner is such that it has lost the trust and confidence of the Bank as well as the trust of the People because the customers of the Bank are the sufferer for the misconduct committed by the Petitioner which itself has direct bearing on the business of the Bank and, therefore, the punishment should not be interfered with lightly. Mr. Panda further submits that in a writ petition against the order passed in Departmental Proceeding, the writ Court should not appreciate the evidence and cannot substitute its own finding by resorting to appreciation of evidence. In order to buttress his submission, Mr. Panda relies upon the decision in Union of India and others v. P. Gunasekaran; AIR (2015) SC 545. On the aforesaid submissions, Mr. Panda, accordingly, prays to dismiss the writ petition. W.P.(C) No.773 of 2006 Page 5 of 12 5. After having bestowed an anxious and careful consideration to the rival submission upon perusal of the record, it appears that the Petitioner has been served with a charge sheet with following three charges under Annexure- 11:- “1. As mentioned in Allegation No.1 Sri Raj with a malafide intention of acquiring a Car for himself by utilizing the Government subsidy and in exercise of his delegated authority otherwise, has sanctioned and disbursed a loan of Rs.3,13,000/- (Rupees three lakh thirteen thousand only) under IRDP Group Finance Scheme. The ulterior motive and evil design of Sri Raj are further manifested from the power of attorney he got executed by the partners in favour of his wife Smt. Sunanda Raj to manage the Car at taking Jagatsinghpur. Shri Raj advantage of innocence and ignorance of the poor IRDP beneficiaries of the group deprived them of the benefit of subsidy linked loan scheme and acted against the policy of the Government, by debarring the beneficiaries for his from personal gain. Sri Raj has tarnished the image of the bank and also exposed the bank to serious legal complicacies in future which is unbecoming of an Officer employee of the bank. their economic upliftment thus Hence, Sri Raj did not discharge his duties honestly and faithfully and thereby committed breach of Regulations 17 & 19 of Cuttack Gramya and Employees Service Regulation 2000. Bank Officers 2. Sri Raj has sanctioned loans in favour of close friends/relatives of the staff members of the bank as mentioned in allegation No.2 from without permission obtaining W.P.(C) No.773 of 2006 Page 6 of 12 Competent Authorities. Thus he violated the rules of the bank and acted otherwise in performing his official duties which is violative of Regulations 17 and 19 of Cuttack Gramya Bank Officers and Employees Service Regulation 2000. 3. Shri Raj has sanctioned and disbursed multiple loans to particular borrowers/family without proper appraisal and without ascertaining the credit worthiness of the borrowers as mentioned in Allegation No.3 as a result of which the accounts have become NPA and the bank suffered huge financial loss. Thus Sri Raj failed to discharge his duties with utmost honesty, integrity, devotion and diligence which violated Regulations 17 and 19 of Cuttack Gramya Bank Officers and Employees Service Regulation 2000.” 6. A perusal of the enquiry report on the face of the imputation of the charges, it appears that the enquiry report does not call for any interference in view of the fact that the charge has been established against the Petitioner since the documents proved in the Departmental enquiry clearly go to show that the Delinquent-Petitioner had sanctioned loan to him and his relatives in violation of the statutory rules of the Bank and the Petitioner has been rightly found guilty in the Departmental Proceeding. Further, this Court reminds itself to the principle settled by the Apex Court in P. Gunasekaran (supra), wherein the Apex Court at W.P.(C) No.773 of 2006 Page 7 of 12 paragraph-13 has laid down the scope of the High Court in interfering in the Departmental Proceeding on following grounds:- “13. Xx xx xx. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously evidence which admitted influenced the finding; i. the finding of fact is based on no evidence. inadmissible Under Article the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; 226/227 of W.P.(C) No.773 of 2006 Page 8 of 12 (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go punishment unless conscience.” into the proportionality of its it shocks 7. True it is that the scope of judicial review against an order of departmental proceeding is very limited and a well accepted proposition. The High Court in exercise of power Under Articles 226 & 227 of the Constitution of India cannot re-appreciate the evidence to substitute its own view, unless the findings arrived at in the Departmental Proceeding is without any evidence or no evidence or the finding is so palpably erroneous in which no prudent man can accept such finding. The situation in this case is not like this because the Enquiring Officer has recorded the reasoning while finding the Petitioner guilty of the charges which was subsequently scrutinized and confirmed by the Disciplinary Authority while imposing the punishment. Further, the findings in the domestic enquiry and penalty on the Petitioner have W.P.(C) No.773 of 2006 Page 9 of 12 also been assailed in appeal in which such penalty and findings have been confirmed and therefore, this Court has very little scope to interfere with such finding. 8. It is trite law that the Court in exercise of power of judicial review can interfere with the penalty imposed against the delinquent employee, if the same is shockingly disproportionate and shakes the conscience of the Court. In examining the penalty imposed against the Petitioner, it can be said that the Bank has not suffered any loss because the loan amount has been recovered as found from the record. It is also not in dispute that in sanctioning the loan in violation of the Bank guidelines definitely makes the the Petitioner to lose the faith and confidence of the Bank, so also its trust. It is also equally important that the authority of the Bank has to discharge his duty with utmost honesty, integrity, dedication and devotion because not only the faith of general people rest on the Bank, but also their trust remains with it. Once the Bank loses the trust and faith of the general public, it would lose its business as well as identity so also its face before the Public. At the same time, it is to be considered as to how a person, who has family members, would W.P.(C) No.773 of 2006 Page 10 of 12 survive in case his service is taken away suddenly by way of dismissing from service inasmuch as, in that situation, the delinquent employee would be nowhere and the consequence that would be fall on him on sudden losing he job would be unimaginable. The plight of the delinquent employee has to be considered in the aforesaid backdrop the trust and confidence of the Bank. 9. In this case, it is admitted fact that the Bank has not sustained any loss, of course, the conduct of the delinquent Petitioner was not appreciable, much less un- acceptable, however, taking into account his past service record in which the Petitioner has not been stated to have any adverse report against him in conducting the business of the Bank and considering the charges in the aforesaid circumstance together with the penalty that has been imposed against the delinquent employee and further the fact that the delinquent employee is without any job, since the date of his dismissal from service in the year 2004, it would be just and proper that the punishment of “dismissal from service” be converted to “compulsory retirement” inasmuch as in that event, the Petitioner may receive some financial benefit for the past W.P.(C) No.773 of 2006 Page 11 of 12 service rendered by him to the Bank. The punishment of dismissal of service as imposed against the Delinquent Petitioner is really disproportionate and not commensurate to the misconduct committed by him and as established, but truly the punishment of dismissal of the petitioner from service is shockingly disproportionate which prompts this Court to interfere with the penalty imposed against the petitioner. 10. In the result, the writ petition stands allowed in part, but in the circumstance, there is no order as to costs. Accordingly, the penalty of the writ petitioner “dismissal from service” is converted to “compulsory retirement”. (G. Satapathy) Judge Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 15-Nov-2024 13:06:47 Orissa High Court, Cuttack, Dated the 14th of November, 2024/Priyajit W.P.(C) No.773 of 2006 Page 12 of 12