OM PRAKASH AGRAWAL Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The petitioner has preferred the present writ petition praying for the following reliefs:-

(2.) Brief facts of the case are that the petitioner while rendering his services on the post of Senior Branch Manager was attached with Head Office, Bilaspur. On 15.4.2006 Lakhan Lal Kaushik and Baldau Prasad made a written complaint to the respondent no.3 alleging that though at any point of time they have not taken any agricultural loan in their name from the respondent bank Ratanpur Branch, but they have been served with demand notice for repayment of agricultural loan, upon which preliminary enquiry was conducted and Shri K. K. Dubey, Senior Branch Manager, Masturi was appointed as Enquiry Officer, who vide its letter dated 18.04.2006 directed the petitioner and Shri R.S. Kaushik, Senior Supervisor (attach) with Head Officer, Bilaspur to submit their explanation. The Enquiry Officer recorded the statements of Laxmi Prasad Yadav and Vijendra Singh Thakur, as there were direct allegations of fraud and cheating against the said Laxmi Prasad and Vijendra Singh Thakur. The Enquiry Officer recorded the finding that the petitioner has committed grave error in discharging its duties in relation to the bogus loan proceedings. It was also alleged that the bank officials were involved with the outsiders in the sanction and distribution of bogus loan and forwarded its Preliminary Enquiry Report dated 4.5.2006 to the respondent No.4. The respondent no.4 in the light of enquiry report firstly placed the petitioner under suspension vide order dated 8.5.2006 and subsequently on 19.6.2006 issued a charge sheet framing the charge against the petitioner that he has committed gross negligence in discharging his duty with respect to the sanction of the loan to the fake borrowers, therefore recovery of the bank has severely been affected and due to the conduct of the petitioner, the institution suffered with gross financial loss, therefore, why the same may not be recovered from the petitioner. The aforesaid conduct of the petitioner is punishable under section 57 (1) of Bank Service Rules. The respondent no.4 proposed the punishment for the aforesaid charges as termination from service. Thereafter Petitioner was directed to submit his reply within 7 days from the date of receipt of the charge sheet failing which ex parte proceedings will be drawn for termination of petitioner's service. The petitioner on 19.8.2006 replied to the charges framed against him. Thereafter the respondent no.3 vide its order dated 20.9.2006 appointed the respondent no.4 as Enquiry Officer who vide memo dated 5.10.2006 directed the petitioner to remain present before him on 10.10.2006 at 1.00 for Departmental Enquiry, in reply thereto petitioner vide application dated 10.10.2006 brought into the kind notice of the Enquiry Officer that as per the rules and regulations the competent authority should have appointed the Enquiry Officer by name and designation and also to appoint the Presenting Officer and such appointment order should have been sent to all the concerned persons and he has not received any such order issued as per the provisions contained in the Service Rules. Thereafter the respondent no.3 rectified its mistake and vide order dated 18.10.2006 appointed Shri D.R.Thakur, Chief Executive Officer as Enquiry Officer and Shri U.R.Yadav, Incharge of Establishment Section as Presenting Officer. The petitioner on attaining the age of superannuation service on 31.10.2006 retired from service. The Enquiry Officer vide its letters dated 23.2.2007, 16.3.2007, 29.3.2007 and 17.4.2007 fixed the date, time and place of hearing of the Departmental enquiry, however all these notices were delivered to the petitioner too late, therefore the petitioner could not appear in the departmental enquiry proceedings. The respondent no.3 vide its order dated 11.8.2007 appointed Shri K.K. Jain, C.E.O. as Enquiry Officer instead of Shri D.R. Thakur and likewise Shri K.K.Dubey, Establishment Section Incharge appointed as Presenting Officer instead of U.R. Yadav. The Enquiry Officer vide its letter dated 29.1.2008 fixed the date, time and place for hearing on 18.2.2008 Monday at 12.30 p.m. at Head Office Bilaspur. The petitioner immediately after receipt of the aforesaid letter, vide Annexure P-14 application dated 14.2.2008 brought into the kind notice of the respondent no.4/Enquiry Officer that he has not received any order as cited in the letter regarding appointing of Enquiry Officer, therefore he is unable to appear before him. The respondent no.4 instead to make available the concerned order of appointment of E.O. and Presenting Officer, forfeited the opportunity of submitting reply and initiated ex- parte proceedings against the petitioner. The petitioner in response to letter Annexure P-16 dated 12.3.2008 wrote an application to the respondent no.4 stating therein that there is no provision with regard to contemplating the Departmental Enquiry against the retired employee, therefore the directives/guidelines issued by the Registrar, Societies, according to which fundamental rules of Government employees will be applicable and it is compulsory for obtaining prior permission from the competent authority for initiation of D.E. against the retired employee, are required to be followed and therefore departmental enquiry conducted against him is not in accordance with rules and also not justified. The Staff Sub Committee without due appreciation and marshaling of the material/evidence available on record to its true perspective manner and also without looking into the fact that the D.E. was conducted ex-parte against the petitioner and no opportunity was afforded to adduce evidence as well as to cross examine the witnesses and also without appreciating the fact that there was no intimation to the petitioner about appointment of the E.O. and P.O. vide its resolution no.1 taken a decision that the whole recovery of the bogus distribution of loan shall be recovered from the retrial dues of the petitioner and even thereafter if any recovery still remains, he may be noticed to deposit the same within a period of one month failing which legal proceedings will be drawn for recovery of the remaining sum, which is illegal and arbitrary, against which the present writ petition has been preferred by the petitioner.

(3.) Learned counsel for the petitioners submits that the impugned order (Annexure P-1) suffers with illegalities and material irregularities, therefore the same deserves to be set aside. The impugned decision of Staff Sub Committee of recovery of the entire bogus loan with penal interest from the retrial dues of the petitioner is not only harsh but also punitive in nature. The entire ex-parte proceedings of Departmental Enquiry is illegal, arbitrary and bad in eye of law as well as without jurisdiction. As per fundamental rules, before initiation of Departmental Enquiry against the retired employee, prior permission has to be taken from the competent authority and in absence of such permission, the whole D.E. proceedings are illegal and deserves to be declared as null and void. The entire Preliminary Enquiry as well as the Departmental Enquiry as conducted by the Enquiry Officer is not in accordance with the provision of Service Rules as well as the rules applicable thereto. The respondent no.3 firstly vide order dated 20.6.06 Annexure P-6 appointed Chief Executive Officer as Enquiry Officer and vide order dated 18.10.2006 Annexure P-8 appointed Shri D. R. Thakur, CEO as Enquiry Officer, Shri U.R. Yadav as Presenting Officer and vide order Annexure P-13 dated 11.8.2007 appointed Shri K.K. Jain, CEO as E.O. and Shri K.K. Dubey as Presenting Officer and vide order dated 28.12.2007 appointed Shri D.R. Thakur as E.O. and Shri K.K. Dubey as Presenting Officer which has not been communicated to the petitioner, as such whole proceedings is vitiated. The respondent no.3 with malafide intention to harass and humiliate the honest employee of the bank and to cause injustice spent one and half year period in appointing the Enquiry Officer and Presenting Officer, as such inordinate delay caused in conducting the departmental enquiry which is also against the rules of natural justice. The respondents have failed to appreciate that the fake borrowers along with their loan application form submitted the original revenue documents relating to agriculture land, but a fake person who produced the original revenue documents and remain present in the entire valuation proceedings and the villagers present at the time of spot inspection etc with him shown him to be a genuine person, therefore question does not arise to suspect the borrower as fake borrower. There is a provision in the Bank Adhiniyam that even if unfortunately a fake person succeeded in getting bogus loan, the entire bogus loan ought to have been recovered from him on the basis of affidavit sworn by him therefore even if by mistake the bogus loan sanctioned and distributed by the bank, there will be no financial harm to the bank as the recovery of the loan could be recovered from the fake person. The respondent no.3 in the instant fake loan also charge sheeted Shri R.S. Kaushik, Supervisor and imposed the punishment of termination of service and also recovery of the entire bogus loan with penal interest from his dues, as such the respondent no.3 is recovering the bogus loan just more than double rather than the actual loan disbursed to the fake borrowers leaving the fake borrowers free from the recovery. The respondent bank attached the tractor and trolley from the possession of the fake borrowers in connection bogus loan. The respondent no.3 nowhere disclosed the actual recovery of the fake loan though it ought to have specifically disclosed. He further submits that Ро opportunity to crossexamines the witnesses has been afforded to the petitioner. Th proper notice was not served upon the petitioner for hearing of the department enquiry and without giving final show cause notice and opportunity of hearing, the order is illegal, arbitrary and an abuse of the process of law. The principle of natural justice has been followed in the Preliminary, Departmental Enquiry as well as in passing the impugned order. Reliance has been placed on the judgments rendered by the Hon'ble Supreme Court in the matter of Bhagirathi Jena vs Board of Directors, OSFC and others, reported in (1999) 3 SCC 666, Punjab State Power Corporation Limited, Patiala and others vs Atma Singh Grewal, reported in (2014) 13 SCC 666 and this Court's order dated 25.07.2019 passed in WPS No.4149/2009, parties being R. S. Kaushik vs The State of Chhattisgarh and others.