SWAPAN BHATTACHARYA Vs. BANK OF INDIA

JUDGEMENT

(1.) Heard the learned counsel for the parties.

(2.) Mr. Anil Kumar learned Sr. Counsel for the petitioner submits that the petitioner was working and posted as Manager of Bank of India at Balsagra Branch, Hazaribagh Zone. He was charged for the act of misconduct alleged to have been committed during tenure of his service from 15.5.1999 to 5.7.2001 as Manager, Balasagra Branch Hazaribagh. Altogether seven charges were brought against the petitioner which are as under :-

(3.) Mr.Anil Kumar , learned Sr. Counsel, for the petitioner at the very outset submits that the charge sheet is on the basis of certain Rules and Regulations framed by the Bank, which has not been provided to the petitioner and inspite of the order of this court, the said Rules and Regulations have not been brought on record by the Respondents-Bank. He submits that in view of that, charges are not sustainable, as the petitioner was not knowing as to what rules an regulations he had violated for which chargesheet in question has been issued to him. He further submits that after submissions of the chargesheet, the petitioner made reply in respect of the chargesheet provided to him and thereafter enquiry was conducted by the Respondents -Bank vide order dated 20.2.2003 and to the effect Enquiry Officer was appointed and after concluding the enquiry, enquiry report was submitted on 20.8.2003 wherein charge against this petitioner has been proved except charge no. 6 which has not been proved. Mr. Kumar further submits that so far as the charge nos. 1,4 and 7 are concerned, they are identical and same in nature, but the respondents with oblique motive divided the charges into three parts and according to him, this was done, so that the highest punishment could be awarded to the petitioner for identical charges. He further submits that MW 1,2 and 3 deposition has not been taken into consideration by the Enquiry Officer who supported the case of the petitioner. He further submits that in view of the deposition of MW 1,2 and 3 it has been proved that there is no substantiate loss to the Bank .Mr. Kumar submits that the impugned order of punishment dated 30.12. 2003 has been issued by the respondent authorities in violation of principles of natural justice as the respondents authorities have not given second show cause notice before awarding punishment to the petitioner and as such on this ground also , the impugned order of punishment is liable to be set aside. He further submits that the Enquiry Officer has also not given proper opportunity to the petitioner in adducing his evidence, which would be evident from the written statement filed by the petitioner before the Enquiry Officer .He further submits that the charges levelled against the petitioner is for non-following the Bank's Rule of Financial over draft/loan against LIC Policies and other irregularities with respect to certain accounts, but from the enquiry report and the impugned order of punishment, it will appear that nowhere it has been mentioned by the Enquiry Officer or the Disciplinary Authority the petitioner violated the rules while granting overdraft/loan to the different loanees and in absence of the specific rules, it cannot be said that the petitioner had violated the same and therefore, the charges made against the petitioner is absolutely vague and findings given by the Inquiry Officer and the Disciplinary Authority are perverse. He further submits that the petitioner has also submitted a reply dated 28.8.2003 to the Disciplinary Authority upon the enquiry report, which was given to the petitioner but the same has not been taken into consideration and as such, the impugned order passed by the Disciplinary Authority is perverse. He further submits that three witnesses have been examined on the side of the Bank and they have supported the case of the petitioner and the same has not been taken into consideration by the Bank Authority. He further submits that non-available of the specific rules relating to the sanction of over draft/loan and the matter respect to the other charges, it cannot be said that the interest of Bank has been jeopardized because of the action on the part of the petitioner when all the accounts have been closed after making payment by the loanees and as such the findngs given by the Disciplinary Authority for removal of the petitioner from the service is illegal, arbitrary and without jurisdiction. He further submits that so far as charge no. 3 is concerned, that has been partly substantiated and charge no. 6 was not substantiated. He further submits that inspite of that, the petitioner has been awarded most of highest punishment i.e. removal from service which shows that the charges levelled against the petitioner does not commensurate with the punishment awarded which is harsh in nature. He brought the enquiry report before this court which is annexed as annexure-2 to the writ petition and submitted that investigation report of Mr. Bhairo Singh, investigation report of Mr. Aminulah and relevant position of Bank's internal Audit Report of the year 2001 were demanded to produce during the departmental proceding on behalf of the petitioner which was disallowed by the Enquiry Officer on the ground that the documents demanded by the petitioner having no direct reference in the chargesheet. Referring to the arguments about the report of the Investigating Officer which was very much relevant for the petitioner to prove his innocence and that has not been done in this case and the learned counsel submits that the inquiry report is vitiated. He further submits that the Enquiry Officer has considered the LIC certificate as genuine, whereas there was no requirement of taking, such LIC Policy. The Enquiry Officer has came to the conclusion that it is contravention of the bank rules and it was done to accommodate the borrowers. He submits that to ensure 100% collateral security the petitioner has taken LIC Policy as security. He further submits that the enquiry officer has taken note of the fact that MW 2 in ES-4 stated that the certificates and assignments were apparently genuine but on verification all the policies, except one, were found genuine. He further submits that MW1 and MW 2 confirmed that 4 out of 5 accounts were closed prior to investigation and there is meager balance in the remaining account of Maqbool Ansari. He further submits that creation of certificate by BDO and Circle Inspector were found to be correct by the Enquiry Officer. He further submits that with regard to charge of Article -2 the petitioner relied on the practice followed by the Branch and the fact that 6 out of 9 accounts are closed. This finding of the Enquiry Officer is again vitiated as it is the practice in the bank and predecessor of the petitioner had also followed that precedent and there is no illegality if the petitioner accommodated on that precedent. He further submits that finding of the Enquiry Officer to the effect that fake LIC policies, which were not taken, are not substantiated by any evidence. He further submits that in the enquiry report it has come that 12 accounts were closed and repayment was regular in these accounts and inspite of that , Enquiry Officer has come to the conclusion that charge against the petitioner is proved. After submission of the Enquiry report, the petitioner was served second show cause which he replied.