A N CHAUDHARY Vs. DISTRICT COOPERATIVE BANK LTD

JUDGEMENT

(1.) PRESENT writ petition has been filed, questioning the validity of decision dated 10.11.2001 (Annexure-11 to the writ petition), taken by the respondent Bank, proceeding to dispense with the services of the petitioner. Brief background of the case is that petitioner had been performing and discharging duties as cashier/clerk at District Cooperative Bank Ltd. with effect from 24.11.1979 pursuant to appointment letter dated 20.11.1979. The Bank in question came out with a scheme for distribution of loan in respect of consumer durable loans advanced by the Bank during the years 1992-93 and 1993-94. The loans are said to have been advanced to 26 employees of different State Government Departments, viz., (i) Office of the Executive Engineer, Survey, P.W.D. (ii) Office of the Executive Engineer, Rural Engineering Service, (iii) District Horticulture Officer and (iv) Inspection of Railway Tracks, Central railway, Jhansi. As the loans were advanced to non-existent incumbents in the said establishments, an F.I.R. giving rise to case crime No.440 of 1996 under Sections 419, 420, 467, 468, 471 and 409 I.P.C. was lodged by the Branch Manager against the petitioner and various other incumbents on 20.09.1996. Petitioner was arrested in the said criminal case and was subsequently enlarged on bail. He was placed under suspension and charge sheet was issued to him on 25.03.1998. Charges levelled against the petitioner were as follows: (i) Petitioner along with Branch Manager had approved loans to 23 borrowers Loan outstanding Rs.690253. (ii) Loans given to Bogus borrowers. (iii) Circular regarding distribution of Loans was not followed. (iv) Loans distributed without filling the pre-requisites. (v) Violated departmental guidelines while loans were distributed. (vi) Violated the provisions of Regulation No.63.66 (i) 66 (iii-B) 66 (iii-C) U.P. Cooperative Societies Employees Service Regulations. After service of charge-sheet, petitioner submitted reply on 27.03.1998 and requested that for the facts stated in the reply, notice issued to him be discharged and the petitioner be reinstated back in service. Inquiry Officer after receipt of the reply informed the petitioner that it was charge sheet and not show cause notice and as such the petitioner was asked to submit his reply to the charge sheet dated 25.03.1998 within 15 days, so that further follow-up action may be taken. After receipt of letter dated 07.04.1998 and 09.05.1998, petitioner requested that the documents which had been mentioned in the letter dated 09.05.1998 be supplied to him, and then requisite reply would be given to the charge sheet. Thereafter on 04.06.1998 letter was written giving reference of the letter dated 09.05.1998, informing that the documents asked for cannot be supplied, however, the same may be inspected in the office on any working day and then reply may be submitted within seven days. Petitioner on 07.06.1998 proceeded to mention that the documents as had been asked for by letter dated 09.05.1998 have not been supplied for, as such said documents be supplied only then reply would be given to the charge- sheet. As per the report of the Inquiry Officer thereafter on 10.09.1998, letter was sent to the petitioner, mentioning therein that the documents which were being asked for may be perused in the office. The petitioner thereafter did not submit any reply, and the Inquiry Officer proceeded to conclude the enquiry and submitted report on 10.07.1998 holding the petitioner guilty of the charges. After receipt of report of the Inquiry Officer, show cause notice was issued to the petitioner on 23.06/2001, and thereafter another letter was issued asking the petitioner to submit reply. Petitioner, thereafter submitted reply on 16.08.2001 before the Sanchalak Mandal. Petitioner was even afforded opportunity of hearing on 31.08.2001, and then Sanchalak Mandal took decision to dispense with the services of the petitioner. Said resolution was forwarded to the U.P. Cooperative Institutional Service Board, Lucknow and the same was accorded approval on 03.11.2001. At this juncture present writ petition has been filed, questioning the validity of the decision of dispensation from service. Counter affidavit has been filed on behalf of the respondent Bank, and therein plea has been sought to be taken that the petitioner's functioning was not only receiving cash and maintaining account book. In fact he had other clerical responsibility also, but he did not perform the same diligently and fictitious loans had been sanctioned under the signature of the petitioner as well as the Branch Manager. Details have also been furnished in regard to 44 forged and illegally sanctioned loans, wherein Rs.9,12,361/- had been advanced by way of loan to incumbents who were not at all in existence. It has been stated that the petitioner submitted reply to the charge sheet and the charges were fully substantiated by documentary evidence, and enquiry being conducted in consonance with the provisions as contained under Regulation 85 of the U.P. Cooperative Societies Employees Service Regulations, 1975, the impugned order warrants no interference. Rejoinder affidavit has been filed, disputing the averments mentioned in the counter affidavit and reiterating those mentioned in the writ petition. Supplementary affidavit has also been filed appending therewith copy of the report of the Inquiry Officer. After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties. Sri P.K. Ganguli, learned counsel for the petitioner, contended with vehemence that in the present case Inquiry Officer had not conducted any inquiry, inasmuch as at no point of time before proceeding to submit report any date, time or place had been fixed for the purposes of holding inquiry and substantiating the charges levelled against the petitioner, and this is a case of no inquiry, as such writ petition deserves to be allowed. Countering the said submission, Sri Nripendra Mishra, Advocate, appearing for the respondent-Bank, on the other hand, contended that against the petitioner there were serious charges of embezzlement and diversion of fund, and the petitioner admittedly had not submitted any reply and the said factual facts have note even been disputed before this Court, as such this Court in exercise of its authority of judicial review should not interfere in the matter, and writ petition deserves to be dismissed. After respective arguments have been advanced, the factual position which emerges in the present case is that the petitioner had been performing and discharging duties as cashier/clerk at District Cooperative Bank Ltd. with effect from 24.11.1979 pursuant to appointment letter dated 20.11.1979. The Bank in question came out with a scheme for distribution of loan in respect of consumer durable loans advanced by the Bank during the years 1992-93 and 1993-94. Said loans were said to have been advanced to 26 employees of different State Government Departments, viz., (i) Office of the Executive Engineer, Survey, P.W.D. (ii) Office of the Executive Engineer, Rural Engineering Service, (iii) District Horticulture Officer and (iv) Inspection of Railway Tracks, Central railway, Jhansi. As the loans were advanced to non-existent incumbents in the said establishments, an F.I.R. giving rise to case crime No.440 of 1996 under Sections 419, 420, 467, 468, 471 and 409 I.P.C. was lodged by the Branch Manager against the petitioner and various other incumbents on 20.09.1996. Petitioner was arrested in the said criminal case and was subsequently enlarged on bail. He was placed under suspension and charge sheet was issued to him on 25.03.1998. After service of charge-sheet, petitioner submitted reply on 27.03.1998 and requested that for the facts stated in the reply notice issued to him was liable to be discharged and the petitioner was entitled to be reinstated back in service. Inquiry Officer after receipt of the reply informed the petitioner that it was charge sheet and not show cause notice and as such the petitioner was asked to submit his reply to the charge sheet dated 25.03.1998 within 15 days, so that further follow-up action may be taken. Petitioner after receipt of letter dated 07.04.1998 and 09.05.1998, petitioner requested that the documents which had been mentioned in the letter dated 09.05.1998 be supplied, and then requisite reply would be given to the charge sheet. Thereafter on 04.06.1998 giving reference of the letter dated 09.05.1998, the documents asked for cannot be supplied, however, the same may be inspected in the office on any working day and then reply may be submitted within seven days. Petitioner on 07.06.1998 proceeded to mention that the documents as had been asked for by letter dated 09.05.1998 have not been supplied for, as such said documents be supplied only then reply would be given to the charge- sheet. As per the report of the Inquiry Officer thereafter on 10.09.1998, letter was sent to the petitioner,mentioning therein that the documents which were being asked for may be perused in the office. The petitioner thereafter did not submit any reply, and the Inquiry Officer proceeded to conclude the enquiry and submitted report on 10.07.1998 holding the petitioner guilty of the charges. After report of the Inquiry Officer show cause notice was issued to the petitioner on 23.06/2001, and thereafter another letter was issued asking the petitioner to submit reply. Petitioner, thereafter submitted reply on 16.08.2001 before the Sanchalak Mandal. Petitioner was even afforded opportunity of hearing on 31.08.2001, and then Sanchalak Mandal took decision to dispense with the services of the petitioner. Said resolution was forwarded to the U.P. Cooperative Institutional Service Board, Lucknow and the same was accorded approval on 03.11.2001. Report of the Inquiry officer clearly reflects that as the petitioner had not submitted reply, which he was asked for, whereas requisite documents were supplied to him on 04.06.1998, Report of the Inquiry Officer reflects that he has taken note of the charges, reply submitted to the charge-sheet and then his conclusion qua the said charges. It is writ apparent that in the present case after 04.06.1998 at no point of time any date, time or place has been fixed for holding enquiry for bringing the charges home. this position has been accepted by the Bank, and it has been sought to be contended that charges were based on documentary evidence, and as such the conclusions arrived at are not liable to be interfered with. The fact of the matter is that in the present case, Inquiry Officer has not conducted any inquiry, as after giving time to file reply, at no point of time any date, time or place was fixed by him for holding inquiry. Thus, this is a case of no inquiry. At this juncture the view point of this Court is being looked into. Division Bench of this Court in the case of Sharad Kumar Verma v. State of U.P. and others (2006) 110 FLR 630, has taken the view that even if it is accepted that petitioner was given adequate opportunity to inspect record, the present inquiry proceeding cannot be sustained as admittedly after submission of reply to the charge sheet,Inquiry Officer did not give any opportunity to the petitioner to participate in the inquiry nor fixed any date. Further it has been held that charges unless proved, can not form basis of any punishment, and in this background, disciplinary proceedings are vitiated. Paragraphs 9, 10, 11 and 12 of the judgment being relevant are being quoted below: "9 Even if it is accepted that the petitioner was given adequate opportunity to inspect record, the present enquiry proceeding cannot be sustained, as, admittedly after submission of reply to the charge sheet, the enquiry officer did not give any opportunity to the petitioner to participate in the inquiry nor fixed any date for leading evidence either to the department or to the delinquent officer. In fact, the requests dated 12.10.1998 and 26.10.1998 (annexures-5 and 6) have not at all been considered and the representation dated 6.6.2000 (Annexure-7) has been taken as reply to the charge sheet by the enquiry officer. This fact is evident from the averments made in para 19 of the counter affidavit. The State admits that the enquiry officer did not fix any date, time or place for holding the enquiry or for adducing evidence and the petitioner was also not called by him to participate in the enquiry after submission of reply to the charge-sheet but defends the order by emphatically asserting that since the charges were based on documents, no oral enquiry was needed. The argument is that charges stood roved by documentary evidence, which were available with the enquiry officer and, therefor,e no illegality has been committed, if the petitioner was not called for any oral hearing and no oral evidence was led. In support of the submission, it has also been argued that the petitioner 9n his reply dated 6.6.2000 has only payed that an impartial enquiry report be submitted and had not asked for any personal hearing or opportunity to adduce evidence. 10. This question has come up before this Court very often and the Court had been explaining in all the cases of departmental proceeding s that if the delinquent denies the charges then whether he asks for personal hearing or opportunity to participate in the proceedings or not, it is the bounden duty of the enquiry officer to afford such an opportunity. The enquiry officer requires that the charges levelled against the delinquent officer should stand proved on the basis of the material on record and the necessary evidence, which may be oral or documentary or both. The delinquent has not participated in the enquiry despite the opportunity being given is a separate issue but where no opportunity is afforded, the enquiry stands vitiated. The petitioner submitted his reply to the charge-sheet on 12.10.1998 and 21.10.1998 and in both the replies, he did not accept the charges but expressed his inability to give complete answer in t he absence of the documents being supplied. In the representation dated 6.6.2000 again the petitioner raised the same plea and prayed that impartial enquiry report be submitted. The aforesaid request including the representation of the petitioner by no stretch of imagination can constitute an admission on his part to the charges levelled nor would mean that he has agreed for submitting of the enquiry report without associating the petitioner and without giving opportunity to lead evidence. 11. In departmental proceedings,the charges unless proved cannot from the basis of any punishment. The standard of proof is different as against the required standard in the case of a criminal trial but the charges levelled must stand proved on the basis of the relevant material. The moment charge is required to be proved, the necessity would arise for adducing evidence,which may be documentary or oral or both. The burden to prove charges lies upon the departmental, therefore, the department owes its liability first to adduce evidence and take steps for proving the charge. It is after this stage that the delinquent would be required to rebut the evidence adduced an also to cross examine the witnesses produced or to nullify the documentary evidence by adducing such evidence, as may be necessary and may be available or to show the unworthiness of the documents which are sought to be relied upon but this can only be done if the enquiry officer does not fixes a date for adducing evidence and not otherwise. Merely because the delinquent did not say so in so many words about his participation in the enquiry despite the charges not being admitted to him and they having been denied, the enquiry officer does not stand absolve of his legal obligation of holding enquiry in the manner prescribed. It is to be kept in mind that denial of charges and admission of the charges cannot be taken on the same footing. There may be a case where the delinquent denies the charges specifically and there may be a case where the delinquent does not refer to the charge but does not admit the charge and in such a case also the enquiry officer would be under legal obligation to hold the enquiry to see that the charges are proved or not. It is only where in a case the delinquent admits the charge, the department may not lead any evidence before the enquiry officer and the charge can be taken to be proved, as the facts admitted need not be proved. 12. In the instant case, admittedly the aforesaid procedure was not followed an d that at no point of time the petitioner was associated with the enquiry and, therefore, he could not get any opportunity to rebut the documentary evidence, which was relied upon nor was in a position to adduce any evidence in rebuttal. The entire proceedings was thus conducted in violation of the principles of natural justice. The charges thus cannot be said to be proved against the petitioner and the enquiry stands vitiated on this ground alone." Sri Nirpendra Mishra, Advocate, appearing for the Bank, has placed reliance on following judgments: (1) Nahar Singh vs. Food Corporation of India and others, (2008) 5 SCC, 209 (2) Haryana Financial Corporation and another vs. Kailash Chandra Ahuja, (2008) 9 SCC, 31 (3) P.D. Agrawal vs. State Bank of India and others, (2006) 8 SCC, 776 (4) UCO Bank and another vs. Rajinder Lal Capoor, (2007) 6 SCC, 694 (5) Commissioiner of Police and others vs. Syed Hussain, (2006) 3 SCC, 173 (6) State Bank of Pariala and others vs. S.K. Sharma, (1996) 5 SCC, 364 (7) Viveka Nand Sethi vs. Chairman J and K Bank Ltd. and others (2005) SCC 337 (8) Karnataka State Road Transport Corporation and another vs. S.G. Kotiurappa (2005) 3 SCC 409 (9) Bank of India and others vs. T. Jogram (2007) 7 SCC 236 (10) State Bank of India and others vs. Ramesh Dinkar Punde (2006) 3 UPLBEC 2472 (11) Virendra Kumar Bharadwaj vs. Syndicate Bank and others, (2006) 3 UPLBEC 2472 (12) Shiv Chandra Nigam vs. District Magistrate/Collector Banda and others, 2003 (6) AWC 2.1 (NOC) (A) All these judgments, which have been cited for, will not at all come to rescue of the respondent Bank, as in all these cases regular departmental enquiry had been held by the Inquiry Officer, wherein full opportunity had been provided to the delinquents and thereafter opinion had been formed qua their guilt, whereas, here fact of the present case is that Inquiry officer has not conducted any inquiry and based on the reply submitted by the petitioner opinion has been formed holding the petitioner guilty of the charges, and as such ratio of law laid down in the aforesaid judgments are not at all applicable and attracted to the facts of the present case. Learned Counsel for respondent Bank thereafter has cited following cases: (1) Ramesh Chandra Sharma vs. M/S Punjab National Bank and others, (2006) 2 UPLBEC 1307 (2) Santosh Kumar Awasthi vs. U.P. Cooperative Institutional Service Board, U.P. Lucknow and others, Civil Misc. Writ Petition No.41167 of 2003, decided on 13.03.2008 (3) Subhash Chandra Sharma vs. Managing Director and another (2000) 1 UPLBEC 541 (4) Rajendra Prasad Tripathi vs. State of U.P. and others 2004 (4) AWC 3536 (5) Radhey Shyam Shukla vs. Administrative Committee, Cooperative Bank Centralized Service and others, Civil Misc. Writ Petition No.1136 (SB) of 2000 (6) Jiya Lal vs. U.P. State Food and Essential Commodities Corporation Ltd. and others, 2009 (2) ADJ 230 (DB) (LB) Placing reliance on the aforesaid judgments, it has been contended that where charges are sought to be proved by documentary evidence, it is not necessary to hold enquiry to prove charges by oral evidence. All these judgments deal with the burden of proof, and here the said question has not yet arisen, as no date, time or place was fixed for holding inquiry, and while concluding the said proceedings, opportunity will have to be afforded to bring evidence, if any, to rebut the charges. In the present case, date time or place has never been fixed, as such order impugned cannot be sustained. Consequently, writ petition succeeds and is allowed. The impugned order dated 10.11.2001 (Annexure- 11 to the writ petition) is hereby quashed and set aside and the matter is remitted back to the respondent Bank for undertaking the disciplinary proceedings from the stage from where reply is to be submitted by the petitioner, and then disciplinary proceedings be concluded within three months from the date of receipt of certified copy of this judgment. No order as to costs.