Hon'ble Manoj Misra,J.
1. We have heard Sri Manas Bhargava for the petitioner. Sri Nimai Das, appears for the respondents - Punjab & Sind Bank.
2. The petitioner has prayed for quashing the order dated 08.10.2009, passed by the Reviewing Authority (General Manager-P), the order dated 22.12.2006, passed by the Appellate Authority (Dy. General Manager-P), as well as final dismissal order dated 25.09.2006, passed by the Disciplinary Authority (Zonal Manager).
3. The petitioner, posted as Manager in Punjab & Sind Bank, Branch Office Gumti No. 5, Kanpur, was charged with following allegations:-
"1. Shri Gursharan Singh Duggal did not comply the indispensable requirements enumerated at point number five, nine and ten of the sanction letter No.31, 2005-06 dated 26.09.2005 of the loan of Dr. Atul Kapoor.
(a) He failed to obtain Annexure-I, and Annexure-II in terms of Law Cir. No. 126 dated 04.12.2002 from borrower and guarantor.
(b) He failed to ensure before releasing the loan that trained technical staff is available at Hospital to operate the machine and after sales service is available for which banks loan has been granted.
(c) He failed to obtain the Original bills/payment receipts of machines and also failed to get the hypothecated machines comprehensively insured, putting banks' fund endanger as advised vide clause number ten of Zonal Office, Lucknow sanction No. 31/2005-06 dated 26.09.2005.
Then he put the Banks interest in jeopardize.
2. That Shri Gursharan Singh Duggal, asked the borrower to deposit processing fee @ 3 % of the loan amount at the time of documentation, which was duly handed over by the borrower (as reported by the borrower) in cash to him. Whereas processing fee to the tune of Rs.3,750.00 was also debited to the said loan account on 30.09.2005. On demand of the receipt by the borrower on account of 3 % processing fee, the money was returned back to the borrower, informing that no processing charges are required to be paid. This clearly substantiate that he had vested interest in receiving the processing fee @ 3 % of the loan amount in cash and thus he defamed the Banks' image."
4. The petitioner submitted his defence to the allegations that the documents submitted as DEx- 4 to 9 and 11, in compliance of the indispensable requirements enumerated at point numbers five, nine and ten of the sanction letter No. 31, 2005-06 dated 26.09.2005, were obtained by him, and were already present in the branch. They were found in some misc. files. The availability of technical staff for inspection of the machines was the responsibility of the borrower, and was to be verified by the Branch Manager of the Bank, who was the releasing authority of the loan, and he should have complied with the indispensable requirement before releasing the loan.
5. The Disciplinary Authority found that allegation Nos. 1 (a) and 1 (b) were duly proved, whereas as allegation No. 1 (c), for failing to get the hypothecated machines insured, was not proved.
6. The punishment order of Disciplinary Authority, shows that the required documents DEx-4 to 9 and 11, were subsequently found and placed in the branch, to which the Presenting Officer argued that after receiving the charge sheet, on 23.11.2005, the charged officer probably obtained all these documents and got them placed in the branch afterwards, as and when it was feasible.
7. With regard to allegation No.2, the Disciplinary Authority has found them to be proved from the report of the enquiry officer, without producing Dr. Atul Kapoor who made a complaint to the bank, for charging of processing fee in cash. The allegation was sought to be proved by referring to the honour, repute and eminence of Dr. Kapoor.
8. The findings of the Disciplinary Authority on the proof of allegations against the petitioner are quoted as below:-
"The criminal proceedings are conducted in accordance with proof of the offence as per the evidence defined under the provisions of Indian Evidence Act, 1872. The enquiry in departmental proceeding relates to conduct of breach of duty for his misconduct under the relevant rules and regulations and two enquiries can always yield different results. Hence, CSO's reliance on his being absolved by the police in the case due to lack of evidence is no proof of this innocence. Dr. Atul Kapoor the man of honour, repute and eminence who had no ill ill against the CSO and there was no gain in any sort to him in informing the Bank about the alleged misconduct and tone & tenor of the letter dated 22.11.2005 do not give us a clue to disbelieve him, the information given by him to the General Manager (Vigilance) strikes at the root of the honesty and integrity of the CSO and such instances betrays the confidence reposed by the customers and the public in banking institutions.
Hence the receipt of the processing fee in cash by the CSO when processing fee to the tune of Rs.3750.00 was also debited to the said loan account on 30.09.2005 and returning it back on being asked to submit receipt for the same substantiate his vested interest and malafide intentions thereby defaming the Bank.
The letter dated 22.11.2005, is written by an eminent & highly respectable person of society whose credentials are beyond doubt. The said letter of the borrower is very specific and unambiguous about the involvement of the CSO and contains on instance of serous misconduct committed by him. Further, in the letter Dr. Atul Kapoor has apparently avoided giving it a nature of complaint, which shows that he bore no grudge against the employee.
Moreover, the facts that he addressed and delivered the letter personally to no less than the General Manager (Vigilance) put this question of veracity of the facts beyond the pale of any doubt. It has been firmly established by the P.O that the CSO was acting as Manager Credit at Branch Office Gumti No. 5, Kanpur and hence it is CSO who received the cash, to which I concur. Moreover, the ingredients of the letter dated 2.12.2005, written by the then Zonal Manager, Shri Saktokh Singh to the General Manager (Vigilance), intimating about receipt of approx. Rs.45,000.00 from the C.S.O. by Dr. Atul Kapoor, as informed to him by Shri S.K. Jain, Director of our Bank, a highly respectable person of repute and eminence whose veracity we have no reason to doubt, further corroborates and lends credence to the contents of letter dated 22.11.2005 of Dr. Atul Kapoor.
It mostly frequently happens that in many cases as they occur in practice no direct proof that the accused actually committed the crime/misdeed is or can be given, the man who is charged with theft is rarely seen to break the house or take the goods and in case of murder it rarely happens that the eye of any witness sees the fatal blow struck but the circumstances connected with it lead to result in conclusion. Only because there is no documentary evidence/witness to the alleged misconduct, it would be utter travesty of justice to surmise that no such incidence took place.
Keeping the facts and circumstances above, the inquiring authority is inclined to opine that the charge levelled against the CSO in terms of allegation # 2 of the charge sheet under reference is proved. The inquiry authority has proved this allegation for which I concur."
9. The Reviewing Authority and the Appellate Authority have mechanically dismissed the appeal accepting the proof of charges by the Disciplinary Authority. In his order dated 22.12.2006, the Appellate Authority ( Dy. General Manager - P) observed as follows:-
"I being Appellate Authority have perused and examined the complete record of the case and have carefully considered the findings of the inquiry and the contentions raised by the appellant in his appeal. I don't find any merits to interfere with the penalty award to the appellant by the Disciplinary Authority. The penalty awarded by the D.A., is in conformity with the irregularities committed by the appellant. Hence, the appeal is rejected."
10. The Reviewing Authority (General Manager -P), rejected the review petition of the petitioner with following observations:-
"I, being Reviewing Authority, have perused the relevant record of the case and have considered the contentions raised by the petitioner. The petitioner has contended that the Enquiry Officer called him the Credit Manager, who processed the said loan. However, on going through the Enquiry Report, it is noted that the contention is wrong. The Enquiry Officer had nowhere referred the petitioner as processor of the above mentioned loan. The loan was processed at Zonal Office and was disbursed at the branch, where the petitioner was looking after the Credit Portfolio of the Branch and this was firmly established by the Presenting Officer. It is true that the bank had not allotted him the designation of Manager Credit. However, the borrower, Dr. Atul Kapoor, a reputed and eminent person addressed and delivered the letter, dated 22.11.05, to the General Manager (Vigilance), informing that the misconduct was committed by the Petitioner at the time of documentation at BO Gumti No.5, Kanpur, Mere addressing as Manager (Credit) by Dr. Atul Kapoor would not mean that the Petitioner has not committed the misconduct. By addressing so, the doctor was pointing to/naming the petitioner, who was dealing with disbursement of loan. This is established in the enquiry that the Petitioner committed the misconduct, as alleged against him.
Further, the Petitioner has relied on the Police Report dated 07.03.06, wherein the Police closed the case. What all to be seen is in the perspective of disciplinary action. Hence, the closure of case by Policy would not necessarily lead to the conclusion that he Petitioner is absolved of the misconduct. The misconducts committed by the Petitioner have been proved in the enquiry and are evident from the record. I concur with the findings made by the Disciplinary Authority. It is also observed that the Enquiry Officer has rightly held the allegation of taking and returning money as proved on the basis of letter dated 22.11.05 of Dr. Atrul Kapoor. The letter of the borrower is very specific and points towards the serious misconduct committed by the Petitioner. The letter dated 02.12.05 of Zonal Manager, Lucknow further corroborates the contents of letter written by Dr. Atul Kapoor.
I observe that the Disciplinary Authority has passed the order after consideration of documents on records. It has rightly been concluded that the petitioner did not discharge the duties with honesty, devotion and diligence. The petitioner has not brought out any new or mitigating facts in the petition and I find no merits in the contentions raised in the Review Petition. The Petition does not merit any relief. Hence rejected."
11. Learned counsel for the petitioner submits that in his complaint Dr. Atul Kapoor did not state that he had himself given processing fee in cash to the petitioner - Manager (Credit) at Gumti No. 5. In his letter dated 22.11.2005, Dr. Atul Kapoor has stated that at the time of documentation, his finance department informed him that processing fees of 3 % was required to be paid, which was given in cash to the Manager (Credit) at Gumit No.5, Branch. After some time, when the account was reconciled and receipt and supporting documents were desired from the Bank, the money was returned back with the information that no processing charges are required to be paid. The letter/complaint of Dr. Atul Kapoor, which was made the basis for the charge/allegation is quoted as under:-
2. At the time of documentation, my finance department was informed that processing fees of 3 % was required to be paid which was given in cash to the Manager (Credit) at Gumti No. 5 Branch. After some time when the account was reconciled and receipt and supporting documents were desired from the Bank, the money was returned back last week with the information that no processing charges are required to be paid.
Assuring you of my cooperation always, Thanking you, Yours sincerely, Dr. Atul Kapoor"
12. Learned counsel for the petitioner states that the petitioner had ensured entire documentation including Annexure-I, and Annexure-II in terms of Loan Circular No. 126 dated 04.12.2002, from borrower and guarantor, and as per the case own case of the Bank, it was found in the records of the bank. The petitioner could not have placed these documents in the file afterwards, when he was under suspension. The enquiry officer as well as the disciplinary authority did not care to look into the documents and had found that the allegations No. 1 (a) and 1 (b) were established. So far as allegation No.2 is concerned, it is submitted that there was no complaint made by Dr. Atul Kapoor that he or any person has paid any cash to the petitioner, and in any case Dr. Kapoor or any one from his staff was neither summoned nor examined in the disciplinary proceedings. The allegations were sought to have been proved only on the basis of reputation of Dr. Kapoor, and his intimation to the bank, even without looking into the allegations made by him.
13. Sri Nimai Das submits that the petitioner did not ensure documentation of Annexures-I and Annexure-II in terms of Loan Circular no. 126 dated 4.12.2002 from the borrower and guarantor. He also did not ensure whether machine was operating, and after-sales-service was available. He collected the processing fee of Rs.3,750/- in cash, from the borrower and the same was also debited in the loan account, and on demand of receipt by the borrower, the same was returned back to the borrower. These facts established that the petitioner was not discharging his duties with honesty, devotion and diligence, and has committed misconduct, and the order of dismissal passed by the authority was just, legal and proper.
14. We have gone through the records, and do find that any of the two charges were proved against the petitioner. The documents in terms of Circular No. 126 dated 4.12.2002, were found in the records of the bank. The petitioner could not have got them executed from the complainant after he was placed under suspension. No explanation was given by the presenting officer, as to how these documents could have been executed, and inserted in the records of the bank. We also find that there was no complaint made by Dr. Atul Kapoor that the financed equipments were not functioning.
15. The petitioner was serving as Manager Credit. He was not responsible for the functioning of the equipments. The borrower was required to arrange for the technical staff to the satisfaction of the Branch Manager of the bank for the functioning of equipments. In any case, the equipments could not have been insured unless and until the insurance company found the equipments working. The charge of failure to insure the equipment, was not proved against the petitioner.
16. In respect of the collection of processing fee in cash, we find that Dr. Atul Kapoor, did not make any complaint to the effect that the processing fee was not deposited. The presenting officer took up a plea that the processing fee has to be debited from the account, and was not be charged by accepting cash. The charge of payment of the amount in cash, could only be proved by a person who alleges that the money was given to the petitioner. Dr. Atul Kapoor or any person of his staff was not produced. The reputation of Dr. Kapoor and the intimation given by him orally to one of the Directors of the Bank Sri S.K. Jain was treated to be sufficient to prove the charge against the petitioner. It was observed that Dr. Atul Kapoor and Sri S.K. Jain are highly respectable persons of repute and eminence whose veracity is not open to doubt and further corroborates and lends credence to the contents of letter dated 22.11.2005 of Dr. Atul Kapoor.
17. We are unable to appreciate, how the reputation of Dr. Kapoor can be a ground to prove the charge against an officer of the bank. The petitioner has been dismissed from service on a complaint, which was not proved on record. Dr. Kapoor may have been an eminent Doctor, but on a complaint by him alone of paying an amount in cash, which was ultimately on his own admission was returned back to him, could not a ground to dismiss a senior officer of the bank. The charges levelled against an employee were required to be proved by cogent and reliable evidence and not by reputation of the complainant. We find substance in the submission of the learned counsel for the petitioner that both the charges were not proved against the petitioner.
18. The Zonal Manager, as Disciplinary Authority, has given very interesting reason for not summoning Dr. Atul Kapoor. He compared the complaint, for proving of the charge, to a criminal case, without realizing that in the court of law, charge of theft cannot be proved, except by reliable evidence. Dr. Atul Kapoor was neither summoned nor examined to prove that he or his staff had given processing charge in cash to the petitioner. The delivery of the letter by him to the General Manger (Vigilance) was found by the Disciplinary Authority to be sufficient to prove the facts beyond any pale of doubt. Further the complaint made by Dr. Atul Kapoor to Sri S.K. Jain, Director of the Bank, itself could be treated to be sufficient to prove the charge against the petitioner unless Dr. Kapoor was examined to corroborate his statement. We thus find that none of the charges were proved against the petitioner, for which he has been punished with extreme penalty of dismissal which shall ordinary be a disqualification for future employment under clause 4 (J) of Punjab & Sind Bank Officer Employees (Discipline & Appeal) (Amendment) Regulation, 1997.
19. In the present case, we also do not find it necessary to remand the matter for fresh enquiry inasmuch as documents executed by the borrower and guarantor were ultimately found in the records of the bank, and that in the complaint made by Dr. Atul Kappor he had clearly stated that the money was returned back to him after reconciliation of his account.
20. The writ petition is allowed. The order dated 08.10.2009, passed by the Reviewing Authority (General Manager-P), the order dated 22.12.2006, passed by the Appellate Authority (Dy. General Manager-P), as well as final dismissal order dated 25.09.2006, passed by the Disciplinary Authority (Zonal Manager) are set aside. The petitioner shall be reinstated in service with all consequential benefits except payment of arrears of salary for the period between date of dismissal and date of reinstatement which shall be @ 50 % of the pay and allowances.
Order Date :- 6.2.2012 nethra