Shyamal Kumar Sarkar vs Bangiya Gramin Vikash Bank and Another

Jayanta Kumar Biswas, J.—The Petitioner in this Article 226 petition dated August 12, 1993 is questioning the decision of the Disciplinary Authority & Chairman, Gaur Gramin Bank (now Bangiya Gramin Vikash Bank) dated July 28, 1993, Annexure G at p.62, inflicting on him the following punishment:

Degradation to lower stage to the extent of seven increments in the incremental scale, Shri Shyamal Kr. Sarkar will be drawing his basic pay at Rs. 1000 p.m. with immediate effect. The date of next increment will fall due on June 1, 1994. You shall not be entitled to any pay and allowances during the period of your suspension save and except what have been paid to you as and by way of subsistence allowance.

The Petitioner was working as a junior clerk-cum-cashier in the bank. By issuing a charge-sheet dated April 6, 1992, Annexure C at p.24, the disciplinary proceedings were initiated. The charges were as follows:

(a) On October 28, 1991 a loan of Rs. 10,000 was disbursed by the Krishnapur Branch to Shri Jayanta Kumar Sarkar of village Buridaha, P.O. Diknagar, Distt. Malda for the purpose of hand pounding of rice. You, in collusion with Shri Madan Kumar Sarkar, Field Supervisor, Krishnapur Branch fraudulently encashed the amount of Rs. 10,000 and misappropriated the said amount of Rs. 10,000.

(b) On November 14, 1991 a loan of Rs. 8000 was disbursed to Shri Chamatkar Singha of village Imamnagar P.O. Katikender for the purpose of hand pounding of paddy. You, in collusion with Shri Madan Kumar Sarkar, Field Supervisor of Krishnapur Branch fraudulently encashed the said amount of Rs. 8,000 and misappropriated the same.

(c) During Rabi 1991-1992 season, a large number of crop loan were disbursed from Krishnapur Branch between the period from November 7, 1991 to November 20, 1991. You and Shri Madan Kumar Sarkar, Field Supervisor in collusion with Shri Shibapada Singha, Messenger of Krishnapur Branch, Shri Bistu Mondal of village Mahadebpur and Ganesh Adhikari of village Geradul took bribe from the borrowers (list annexed) for crediting the ARDR Relief to their loan a/cs and for facilitating their disbursement earlier.

(d) Shri Sushil Biswas of village Polladanga was informed by you that a sum of Rs. 1200 would be required for closing of his previous loan a/c and fresh loan would be arranged. Shri Sushil Biswas handed over to you Rs. 1200 but you supplied him a receipt for Rs. 692 only. Subsequently Shri Kartick Biswas elder brother of Shri Sushil Biswas came to Krishnapur Branch and asked you about the receipt for balance amount. But you did not say anything. Afterwards on the same day within half an hour you refunded Rs. 500 to Shri Kartick Biswas through Kartick Mondal of Polladanga village.

(e) On January 6, 1992 when the Branch Manager, Shri Samad Sarkar asked you to complete some arrear works, you misbehaved with the Branch Manager and the Field Supervisor, Shri Jakir Hossain and used filthy languages like "shala myanejeri phalachha, jutuo mere hadr bhenge debo" (Bengali writing transliterated).

(f) You provoked the local people and tried to create communal feelings against the present Branch Manager and Field Supervisor. On January 20, 1992 at the instance of you, Shri Shibapada Singha stuck posters spreading some communal propaganda against the Branch Manager & Field Supervisor on the walls of the ground floor of the branch.

The inquiry officer submitted his report dated May 31, 1993, Annexure E/1 at p.28. With respect to charges (a), (b), (d) and (f) the inquiry officer held as follows:

Charge No. (a)

... Considering the documentary evidences and observations/explanation of the charged employee it is considered insufficient to prove the charge of misappropriation of fund by the charged employee.

Charge No. (b)

... Considering the above mentioned evidences, I am in the opinion that the charge levelled against the charged employee of misappropriation of fund is not proved.

Charge No: (d)

... Considering the above mentioned evidence, I have come to conclusion that charge levelled against the charged employee is not proved

Charge No. (f)

... Considering the above mentioned evidence, I am in the opinion that, the charge leveled against the charged employee is not proved.

With respect to charges (c) and (e) the inquiry officer said and held as follows:

Charge No. (c)

To prove the charge No. (c), the Management had examined 4 (four) witnesses on October 31, 1992 (i) Bishnu Mondal (deposition, P-I), (ii) Ganesh Adhikary (deposition, P- 2), (iii) Gokul Krishna Roy (deposition, P-3) and (iv) Gourpada Das (deposition, P-4). The charged employee did not submit any evidence in his favour. The charged employee was also given opportunity to cross-examine the above witnesses which the Management produced before the enquiry to prove the charges but the charged employee did not avail the opportunity of cross-examination. Considering the above evidences, I am in the opinion that though there were no substantial evidences to prove the charge but the fact and circumstances of the case was such that it can be said that the charge leveled against the charged employee is proved beyond reasonable doubt.

Charge No. (e)

To prove the charge No. (e), the Management had examined one witness-Md. Zakir Hussain (deposition, P-6) on October 31, 1992 and the charged employee had cross-examined the said witness on March 1, 1993. The defense had not produced any evidence in his favour.

Considering the above evidence, I am in the opinion that the charge leveled against the charged employee is proved beyond doubt.

By a letter dated June 30, 1993, Annexure E at p. 32, the disciplinary authority informed the Petitioner that agreeing with the findings of the inquiry officer he was satisfied that charges (c) and (e) were established beyond any doubt. Proposing to inflict the punishment of "degradation to lower stage to the extent of seven incremental scale" the disciplinary authority gave the Petitioner an opportunity of submitting representation and also of personal hearing. A copy of the inquiry report was enclosed with the letter. Accordingly, the Petitioner submitted his written representation dated July 21, 1993, Annexure F at p. 34.

Then the disciplinary authority made the final order dated July 28, 1993 saying as follows:

Further to my letter bearing No. E-I-529/2203/1993 dated June 30, 1993 and the personal hearing granted to you on July 21, 1993 with regard to the proposed punishment, I have carefully considered your submissions in the back ground of the enquiry proceedings, connected papers and documents and enquiry report along with your past records. On due consideration, your submissions have not been found justifiable.

In view of the facts and circumstances of the case and the gravity of proved misconducts, I find that the proposed punishment has been just and proper and it cannot be reduced/amended.

Accordingly, I confirm the proposed punishment and the following punishment is hereby inflicted upon you with immediate effect.

Over the course of hearing counsel for the parties were given opportunity to consider the Supreme Court decision in Anil Kumar Vs. Presiding Officer and Others, . After considering the decision, Mr. Basu, counsel for the Petitioner, has submitted that the case of the Petitioner is squarely covered by the decision. On the other hand, Mr. Kundu, counsel for the bank, has submitted that in view of the seriousness of the charges concerned it will be appropriate to remit the matter to the disciplinary authority for making a fresh order.

Mr. Kundu, relying on the Supreme Court decision in Ajit Jain v. National Insurance Company Limited, (2003) 3 LLJ 558 SC has, however, found little to say in justification of the inquiry report and the impugned decision, both given without discussing the evidence that allegedly proved the charges (c) and (e). According to Mr. Kundu, as a matter of fact sufficient evidence was available in the records of the inquiry to hold that both the charges were established by the bank.

In Anil Kumar v. Presiding Officer and Ors. (supra), their Lordships of the Supreme Court said and held as follows Anil Kumar Vs. Presiding Officer and Others,

We have extracted the charges framed against the Appellant. We have also pointed out in clear terms the report of the Enquiry Officer. It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the Appellant did not appeal to him or was considered not creditworthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the Appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is supported by reasons....

Holding that the inquiry officer''s report was no report at all, their Lordships set aside the order terminating Anil Kumar''s service and directed his reinstatement in post with certain back-wages.

In this case it is evident from the inquiry officers report - relevant parts whereof have been quoted hereinbefore - that while the Inquiry officer concluded that not the evidence but the undisclosed facts and circumstances of the case proved charge (c) beyond reasonable doubt, without referring to the evidence and discussing how the evidence proved the allegations concerned, he again concluded that charge (e) stood proved beyond doubt. He did not apply his mind, discuss the evidence, give reasons in support of his conclusions. The report is no report in law,

The disciplinary authority did not record any independent findings, and it is evident from what he said in his letter dated June 30, 1993 giving the Petitioner opportunity of submitting representation against the proposed punishment. The disciplinary authority simply concurred with the findings of the inquiry officer. It shows that the disciplinary authority did not apply his independent mind as well.

In view of these facts and the law laid down by the Supreme Court in Anil Kumar v. Presiding Officer and Ors. (supra), I am of the view that both the impugned order and the inquiry report are liable to be set aside. I am unable to accept the contention that in view of what was said by the Supreme Court in Ajit Jain v. National Insurance Co. Ltd.. and Ors. (supra), the matter should be remitted to the disciplinary authority.

In Ajit Jain v. National Insurance Co. Ltd. and Ors. (supra) their Lordships of the Supreme Court accepted the submissions to relegate the parties to the appropriate stage of the departmental proceedings on the ground that order inflicting the punishment of dismissal was vitiated by infirmity that had crept in the departmental proceedings. But their Lordships ultimately did not relegate the parties to any stage of the departmental proceedings because Ajit was not in a position to take employment.

In the present situation, I am of the view that the matter cannot be remitted to the inquiry officer for submitting a fresh inquiry report. The inquiry report is dated May 31, 1993. The officer who conducted the inquiry is no longer available. There is no reason to permit the bank to conduct a fresh inquiry or to appoint a new inquiry officer to submit a fresh report on the basis of the evidence taken down by the inquiry officer who submitted the report dated May 31, 1993.

The matter cannot either be remitted to the disciplinary authority who concurred with the findings of the inquiry officer. His power to disagree with the findings of the inquiry officer and record his independent findings cannot be restored by a remand. Simply because according to the bank both the charges (c) and (e) are serious in nature, it cannot be permitted to punish the Petitioner by any means.

For these reasons, I allow the petition, set aside the impugned order dated July 28, 1993 and the inquiry report dated May 31, 1993. The bank is directed to give the Petitioner all benefits to which he would have been entitled in the absence of the punishment inflicted by the impugned order. This direction shall be complied with within four weeks from the date of communication of this order. The contempt rule is discharged. No costs. Certified Xerox.