The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.21592 of 2022 (This is an application under Article 226 and 227 of the Constitution of India) Niladri Besra …. Petitioner -versus- Regional Branch Manager, Utkal Grameen Bank, Bolangir and another …. Opposite Party For Petitioner For Opp. Party : :
Legal Reasoning
Mr.B.B.Routray. Advocate Mr. Saswat Das, Additional Govt. Advocate CORAM: JUSTICE A.K. MOHAPATRA JUDGMENT Date of hearing : 21.03.2023 | Date of Judgment : 31.03.2023 A.K. Mohapatra, J. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Mr.B.B.Routray, learned counsel for the Petitioner and Sri C.A.Rao, learned Senior Advocate appearing for the Opposite Party-Bank // 2 // along with Mr.Sarat Kumar Behera. Perused the Writ Petition as well as the Counter Affidavit filed on behalf of Opposite Party Nos.1 & 2. 3. By filing the present Writ Petition, the Petitioner seeks to challenge the issuance of a show cause notice dated 17.06.2022 under Annexure-2 to the Writ Petition issued by the appointing authority and Chairman, Utkal Grameen Bank to the Petitioner thereby calling upon the Petitioner to show cause against the proposed punishment to be imposed by the appointing authority in a Departmental Proceeding against the Petitioner. On further perusal of the notice under Annexure-6, it is revealed that the appointing authority has proposed to impose the following punishments; i) dismissal from service with immediate effect; ii) the period of suspension will be treated as such; iii) The Bank reserves its right to proceed further basing on the outcome of Court case. 4. The factual background leading to filing of the present Writ Petition, bereft of all unnecessary details, is that an F.I.R. was lodged against the Petitioner vide Sinapali P.S.Case no.108 of 2020 for alleged commission of offences under section 309,34 of the Indian Penal Code which was initiated on the allegation of one Rabindranath Mohapatra, working as Regional Manager, Utkal Grameen Branch, Bolangir, who had submitted a report that // 3 // the Petitioner along with another who was working as Office Assistant in the Nilji Branch of the Bank misappropriated a sum of Rs.10,41,000/- from the bank. 5. The Opposite Party no.1 wrote a letter to the Branch Manager, Nilji Branch to explain regarding the irregularity committed in the Bank during incumbency of the Petitioner as the Branch Manger during the period from 08.03.2019 to 30.06.2020 vide his letter dated 17.08.2020. In reply to the said letter dated 17.08.2020 the Petitioner had submitted his reply before the Opposite Party No.1 stating therein that he will submit his explanation after receipt of the documents from the Bank and further due to his ill health he is not in a position to submit his reply to the show cause. He has also prayed for an opportunity to regularise the discrepancy found on the bank records. In reply to the aforesaid letter dated 21.09.2020 of the Petitioner, the Petitioner was granted one month time to submit his explanation by 21.10.2020 failing which it will be construed that the Petitioner has no reply. 6. Thereafter, the General Manager, vide his letter dated 02.07.2021 communicated the Memorandum of charges with the statement of imputation vide letter dated 19.05.2021. Since the Petitioner did not submit his defence within the stipulated time, he was advised to submit his reply by granting him further 7 days time. Accordingly, the Petitioner submitted his // 4 // reply on 10.07.2022 stating therein that due to his illness and loss of memory some more time be allowed to him to submit his reply to the charges. On completion of enquiry, the Presenting Officer on 25.02.2022 submitted the prosecution brief/written argument in support of the charges against the Petitioner. 7. While the matter stood thus, the Opposite Party No.1 issued a show cause to the Petitioner with the proposed penalty on 27.06.2022 under Annexure-6. In the said show cause notice, it was stated by the appointing authority that after conclusion of the enquiry and after going through the reply submitted by the Petitioner and on perusal of the record, documentary evidence and findings of the Enquiry authority, the Disciplinary authority found the Petitioner guilty of the charges and accordingly, it was held that the Petitioner has violated Regulations 17,18, 20 and 39 of Utkal Grameen Bank (Offices and Employees) Service Regulation, 2012 as amended upto the year 2013. Therefore, the Opposite Party No.1 being the appointing authority proposed imposition of penalty and the Petitioner was issued with impugned show cause notice under Annexure-6 dated 27.06.2022. 8. Mr.Routray, learned counsel for the Petitioner at the outset submitted that the show cause notice dated 27.06.2022 under Annexure-6 is self explanatory and that the Opposite Parties are bent upon to impose the proposed penalty without affording an opportunity of hearing to the // 5 // Petitioner. It was further submitted by the learned counsel for the Petitioner that before even the penalty could be imposed on the Petitioner, the Opposite Parties have made up their mind to impose such penalty on the Petitioner which is in violation of Articles-14 and 16 of the Constitution of India. In such view of the matter, learned counsel for the Petitioner further contended that the issuance of show cause notice under Annexure-6 has become a mere formality and as such the impugned notice under Annexure-6 is illegal, arbitrary and as such liable to be set aside. 9. Mr.C.A.Rao, learned senior counsel appearing for the Opposite Party Bank on the other hand submitted that the Petitioner, who was a Scale-II Officer of the Bank was posted as a Branch Manager of Nilji branch for the relevant period. The Petitioner was due to retire from Bank service on attaining the age of superannuation on 30.06.2020. Thereafter it was detected, on verification by the successor of the Petitioner, that there is shortage of cash to the tune of Rs.10,41,703/- in the Bank cash balance. The physical cash verification was not tallying with the figure shown in the record. Despite detection of such shortage of cash, the Petitioner did not take any action to reconcile the matter with the physical cash balance. Accordingly, an F.I.R. was lodged against the Petitioner. In addition to the criminal case a disciplinary proceeding was initiated against the Petitioner. // 6 // 10. It is submitted by Mr.C.A.Rao, senior counsel that pursuant to the
Decision
show cause notice dated 27.06.2022 under Annexure-6 to the Writ Petition, the Petitioner has already submitted his reply. Therefore, the learned senior counsel further contended that by filing the present Writ Petition, the Petitioner has made an attempt to linger the proceeding unnecessarily. It was also contended that the proceeding has been initiated and continuing against the Petitioner by following the Rules of the Bank scrupulously. He also contended that the Petitioner has not pointed out any violation of Rules in his Writ Petition. As such it was argued by the learned senior counsel that the scope of interference by this court in a second show cause notice issued to the Petitioner, proposing the penalty, which is likely to be imposed on the Petitioner, is very limited. Unless the Petitioner admits that the authority has not followed the procedure and in the process have violated some of the Rules, Regulation to be followed in course of disciplinary proceeding, this Court should not interfere with the second show cause notice. Accordingly, it was prayed by the learned senior counsel that the Writ Petition is devoid of merit and as such the same should be dismissed. 11. On perusal of the record, this Court observed that a coordinate Bench of this Court vide order dated 30.08.2022 issued notice in the Writ Petition. While issuing notice, vide interim order dated 30.08.2022 passed in I.A.No.12151 of 2022 the coordinate Bench was also pleased to pass an interim order to the effect that no further action be taken against the // 7 // Petitioner pursuant to the impugned show cause notice issued on 27.06.2022 under Annexure-6 till the next date. Thereafter pursuant to the notice, the Opposite Parties appeared through Mr.C.A.Rao, learned senior counsel. Thereafter a Counter Affidavit has also been filed refuting the allegation made by the Petitioner in his writ Petition. 12. Having heard learned counsel for the Petitioner and the learned senior counsel for the Opposite Parties and upon a careful consideration of the pleadings as well as the contentions raised by the learned counsel for the respective parties and after going through the materials placed before this Court for consideration, this Court is of the considered view that the Petitioner has failed to make out any case for this Court to interfere with the second show cause notice under Annexue-6 to the Writ Petition. However, considering the submissions of the learned counsel for the Petitioner that he was not given enough opportunity to submit any effective reply to the show cause notice dated 27.06.2022 under Annexure-6, this Court deems it proper to grant another opportunity to the Petitioner to submit his reply to the show cause notice under annexure-6. Accordingly, the present Writ Petition is being disposed of with a direction to the Petitioner to submit his reply to the show cause along with supporting documents, if any within a period of two weeks from today before the Opposite Party No.1. In the event such a reply is filed by the Petitioner, the opposite Party No.1 shall do well to consider the grounds raised by the // 8 // Petitioner in his reply strictly in accordance with law and by taking into consideration the relevant Rules applicable to the facts of the present case. Further, the Opposite Party no.1 is also directed to take a decision within a period of six weeks from the date of filing of the reply as has been directed herein above. The decision so taken be communicated to the Petitioner within two weeks from the date of taking such decision. 13. With the aforesaid observation/direction, the Writ Petition stands disposed of. Judge Orissa High Court, Cuttack The 31st of March, 2023/ RKS ( A.K. Mohapatra )