Hon'ble Pankaj Naqvi,J.
(Delivered by Hon'ble Pankaj Naqvi,J.) Heard Sri R.S. Mishra, learned counsel for the petitioner and Sri Amrish Sahai, learned counsel for the respondents.
1. The petitioner has challenged the correctness/legality of the order dated 8.11.2005 (Annexure-10 to the writ petition) wherein the petitioner has inflicted a punishment of degradation towards lower stage in his incremental scale by 13 increments and the order dated 21.3.2006 wherein the appellate authority has reduced the aforesaid punishment from 13 increments to 8 increments.
2. The petitioner was working as an officer in Bareilly Kshetriya Gramin Bank, a sponsored bank in District Bareilly which is now known as Baroda Western U.P. Gramin Bank (herein referred as Bank).
3. On 21.6.2005 statement of allegations on which article of charges were based were served on the petitioner, wherein it was alleged, that the petitioner while working as an officer at Aonla Branch during the period 16.2.1999 to 5.6.2002 was entrusted:-
1. The task of conducting pre sanction survey in respect of application dated 27.12.2001 (in which contents were filled by you) submitted by one Mr. Rajinder Prasad S/o Sri Ram Dutt Sharma was entrusted with you by the Branch Manager of our Aonla branch. The survey was carried out by you on 20.12.2001 and you inter alia certified as under:-
i)the applicant Mr. Rajinder Prasad has a land holding of 32 bigha (5.04 acres) identified by Khatauni No. 32, 224, 219, 124, 198, 213, 214, 215, 216, 217 and 254 and accordingly affixed your signatures on these khataunis where as the said khataunis were fake documents.
ii)Applicant is properly identified by you and you are satisfied that he is honest.
iii)Other particulars given in said application are correct.
It was on above basis and on basis of your recommendations, the Branch Manager sanctioned a facility of Rs. 45000 under the KCC scheme to Mr. Rajinder Prasad (borrower) and as stipulated in the sanction letter dated 20.12.2001 the above mentioned 32 bigha land (which was surveyed by you) was mortgaged to the bank on 27.12.2001.
The above said loan account had to be classified as NPA on April 2004 and the branch initiated recovery proceedings under UP Agriculture Credit Act 1973 on 8.10.2004.
It has now been established that the aforesaid borrower actually owned Approx. 7 ½ bigha of land (0.471 hectare) and to following extent findings of your pre sanction survey were incorrect and lead the Branch Manager to sanction and disburse facilities:
beyond the entitlement of the applicant under the KCC scheme on the basis of mortgage of land measuring 32 bighas where as the bank had a security to the extent of approx. 7 ½ bigha of land thereby rendering the advance to be unsecured to that extent.
To an applicant who was not an honest person as observed by you as applicant had induced the bank to sanction loan of a larger amount on the basis of land which he did not own.
The survey conducted by you was deficient and the authorities who relied on the same made a decision to lend money to the applicant which turned out to be detrimental to the interests of the bank.
2. As per records of Tehsildar Aonla, on 01.11.2002 the title of land measuring 0.471 hectare which was owned by aforesaid borrower and which was mortgaged to our bank on 27.12.2001 was transferred to you for a consideration of Rs. 86500.
the loan granted above said was still outstanding in the name of the borrower when the title was transferred in your name.
You had specific and public notice that the land you purchased was mortgaged to the bank in respect of a loan where you had done the survey.
The property on which bank had a specific charge was purchased by you without seeking prior permission of the bank.
The purchase of above said property was not reported by you in your Asset and Liability Statements as on 31.03.2003 and 31.03.2004 and when the matter has came into the notice of bank and your explanation was sought vide HO letter No. HO:VIG:26:260 dated 01.06.2005, you have submitted that you have erroneously omitted to mention the acquisition of land vide your letter dated 03.06.2005 addressed to the undersigned.
In Asset & Liability Statement as on 31.03.2005 you have incorporated that you purchased the above property from borrower in 2002 for a consideration of Rs. One lac approximately.
Thus from the stage of survey till purchase of land (mortgaged to the bank) by you from the borrower of the bank various acts of omission and commission have been made by you for personal gains and also to defraud the bank and harm it's financial interests.
3. The task of conducting pre sanction survey in respect of applications dated 23.10.2001 (in which contents were filled by you) submitted by Mr. Bhoorey Lal S/o Sri Sukh Lal & Sri Ram Nath S/o Sri Sukh Lal R/o Vill. Kharagpur was entrusted with you by the Branch Manager of our Aonla branch. The surveys were carried out by you on 24.10.2001 at 3.30 p.m. and you inter alia certified as under:
It was on above basis and on basis of your recommendations the Branch Manager sanctioned a facility of Rs. 45000 under the KCC scheme of the bank to each of them and as stipulated in the sanction, the above mentioned 2.404 hectares (approx. 37 bigha) land in each case was mortgaged to the bank on 29.10.2001.
The above said loan accounts had to be classified as NPA on April 2004 and the branch initiated recovery proceedings under UP Agriculture Credit Act 1973 on 8.10.2004.
It has now been established that the aforesaid Sri Bhoorey Lal S/o Sukh Lal and Sri Ram Nath S/o Sri Sukh Lal actually owned 0.242 hectare land in each case and to following extent findings of pre sanction survey conducted by you are incorrect and lead the Branch Manager to sanction and disburse facilities beyond the entitlement of the applicants under the KCC scheme on the basis of mortgage of land measuring 2.404 hectares (approx. 37 bigha) where as the bank had a security to the extent of 0.242 hectares land thereby rendering the advance to be unsecured to that extent in each account.
To applicants who were not an honest persons as observed by you as applicants had induced the bank to sanction loan of a larger amounts on the basis of land which they did not own.
The surveys conducted by you were deficient and the authorities who relied on the same made a decision to lend money to applicants which turned out to be detrimental to the interests of the bank as the aggregate outstanding balance in these two Non Performing accounts as on date is Rs. 116,940/- + interest since NPA remains to be applied and recovered.
4. The petitioner by means of letter dated 27.7.2005 apprised the Chairman/Disciplinary Authority of the bank that pursuant to the earlier letter dated 7.7.2005 he had sought for xerox copies of the documents which had formed the basis for the issuance of the charge-sheet and that ignoring the request made by the petitioner, he has only been supplied with few Khasras and Khataunies. Accordingly a reply was submitted by the petitioner in the letter dated 27.7.2005 itself denying the 3 charges. During the course of enquiry the Bank had relied on the following 14 documents in support of the charges. i. Documents pertaining to loan applicant, Rajendra Prasad (M.D. 1 to M.D. 29), ii. Relevant extracts of Khatauni for the Fasli year 1407-1412 (M.D. 30 to M.D. 48), iii. to v. Assets and liabilities statements of petitioner (M.D. 49 to 51), vi. Documents pertaining to Bhoore Lal (M.D. 52 to M.D. 72), vii. Documents pertaining to Ramnath (M.D. 73 to M.D. 93), viii. Details of N.P.A. (M.D. 94), ix. Recovery certificates of Bhoore Lal and Ramnath (M.D. 95 to M.D. 96), x. Loan account of Ramnath (M.D. 97), xi. Loan account of Bhoore Lal (M.D. 98), xii. Khatauni for the agricultural year 1407-1412 of Khasara no. 746, 857, 958 and 1049 (M.D. 99), xiii. Copy of circular no. 1998/21/128 dated 10.10.2000, xiv. Letter of Charged Officer dated 3.6.2005.
5. Petitioner submitted his documents in defence before the Inquiry Officer and thereafter the Inquiry Officer submitted his report on 6.10.2005 holding the petitioner guilty of charges before the respondent no. 3 and accordingly respondent no. 3 issued a show cause notice dated 21.10.2005 to the petitioner against the imposition of proposed penalty of degradation towards lower stage in incremental scale by 13 increments and also as to why proceedings for recovery of the loss caused to the bank, to the tune of Rs. 1,16,940/- plus interest be not recovered from his salary at the rate of Rs. 3,000/- per month plus interest. In response to the aforesaid show cause notice dated 21.10.2005, the petitioner submitted his reply on 25.10.2005. In the said reply it was stated that the principles of natural justice have not been complied with in the alleged inquiry conducted against the petitioner and that ignoring the defence submitted by the petitioner and also in the absence of the documents sought for by the petitioner, respondent no. 3 has proceeded to pass an order of punishment on 8.11.2005. Against the order of punishment dated 8.11.2005 petitioner filed an appeal before respondent no. 2 and the same was rejected in the meeting of the Board dated 13.3.2006 and the decision thereof was communicated to the petitioner vide letter dated 21.3.2006 wherein loss of 13 increments have been reduced to 8 increments, hence the present writ petition.
6. A counter affidavit has been filed on behalf of the respondent-Bank wherein it is stated that the inquiry proceedings have been conducted in consonance with the principles of natural justice and that the petitioner was given full opportunity to meet the allegations levelled against him and that considering the nature of charge levelled against the petitioner, the loss of trust and confidence of the bank in the petitioner is writ large.
7. The submission of learned counsel for the petitioner is that the inquiry proceedings have been carried out in violation of the principles of natural justice and the documents which were forming the basis of the charge-sheet had not been supplied to the petitioner, despite request made by him, and therefore, the outcome of the inquiry proceedings, stands vitiated in law. He further submits that the punishment so awarded is disproportionate to the nature of the charge levelled against the petitioner.
8. On the other hand learned counsel for the respondent-bank contended, that adequate opportunity conforming to the principles of natural justice was provided to the petitioner including the furnishing of the documents which were forming the basis of the charge-sheet and therefore, this court should dismiss the writ petition. Learned counsel for the Bank further submits that on the facts of the present case it can not be contended that the punishment so awarded is disproportionate to the nature of charge.
9. Before the court proceeds to examine the issue to consider the effect of non furnishing of the documents forming the basis of the charge-sheet, or as a part of defence, it would be apt to set forth the judicial pronouncements laid down in this behalf.
10. The Hon'ble Apex Court in a judgment reported in 1996 (5) SCC, State of Tamilnadu Vs. Thiru K.V. Perumal and others held that the test to be applied in this behalf has been set out by the Apex Court in the case of State Bank of Patiala Vs. S.K. Sharma (1996) 3 SCC 364 and thus it is the duty of every delinquent to point out how each and every document was relevant to the charge or to the inquiry being held against him and whether and how its non supply has prejudiced his case and equally, it is the duty of the Tribunal to record a finding whether any relevant document was not supplied and whether such non supply has prejudiced the delinquent case.
11. Similarly in 2002 (3) SCC 443 State of U.P. and others Vs. Ramesh Chandra Mangalik and relying upon the aforesaid decision of the Hon'ble Apex Court and the case of State of Tamilnadu Vs. Thiru K.V. Perumal it was reiterated that it is for the delinquent to show the relevant document, a copy of which he insisted to supply to him and that prejudice caused by non supply of document has also to be examined.
12. Once against the Apex Court in a decision reported in 2006 (3) SCC 150 held in paragraph 18 as under:
"In our view, non supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straight jacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice."
13. Yet another judgment reported in 2011 (2) SCC 316 State Bank of India and others Vs. Bidyut Kumar Mittra, the Hon'ble Supreme Court referred to the aforesaid S.K. Sharma's case and placed reliance in paragraph 37 and 38 of the judgment which reads as under:
"33.(3)....Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except in cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice viz. Whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively."
"In the present case, we have noticed above that the respondent did not even care to submit the list of documents within the stipulated time. Further, he did not even care to specify the relevance of the documents sought to be requisitioned. In our opinion, the appellant Bank has not transgressed any of the principles laid down in the aforesaid judgment whilst conducing and concluding the departmental proceedings against the respondent. Therefore, the aforesaid observations in S.K. Sharma case are of no avail to the respondent.
14. Thus from a conspectus of the aforesaid judgments, the position which emerges is that before an enquiry/punishment can be faulted on the ground of non supply of a document which is either forming the basis of a charge-sheet or forming a part of defence, it has to be clearly stated by the delinquent at the stage of inquiry proceedings as regards the relevance thereof. He will have to demonstrate as to how and why the document called for is relevant and germane to the charge levelled against him and that in case the same is not furnished, then how he would be prejudiced. All this can be ascertained from the materials on record filed before the inquiry officer.
15. Viewed against the aforesaid backdrop, the court finds that at no stage of the proceedings before the Inquiry Officer the petitioner has cared to disclose the relevance and significance of the documents sought for and excess of which was denied. Even otherwise, petitioner has not disclosed what possible prejudice he could have suffered in case the document sought for was not furnished to him and therefore, in these circumstances the court has no option but to infer that the documents being claimed by the petitioner were such which had no relevance or a material bearing in relation to the charge that was levelled against the petitioner and therefore, the petitioner was not prejudiced in any manner.
16. From perusal of the order-sheet maintained by the Inquiry Officer and a copy of which has been filed as Annexure-5 to the writ petition, it transpires that on 12.8.2005, the presenting officer had filed a list of documents which was taken on record and another list of documents was filed by the presenting officer on 25.8.2005 (wrongly written as 25.10.2005) which also included the documents which were filed on 12.8.2005 so as to make one comprehensive list of documents on behalf of the bank. On 25.10.2005 the only objection that was raised on behalf of the delinquent was that a second list of documents is not maintainable and therefore, no further list of documents be taken. On 25.10.2005 itself the Inquiry Officer directed that one list of documents be also furnished to the delinquent and that he be also permitted to compare with the set of documents filed before the Inquiry Officer. Petitioner has no where pleaded that the said list of documents which was directed to be served upon him vide order of Inquiry Officer dated 25.10.2005 was never served. Even otherwise, we find that Inquiry Officer vide his order dated 2.9.2005 has given cogent reasons for non supply of those documents which were desired by the delinquent.
17. Accordingly, we do not find any procedural impropriety in the inquiry proceedings resulting in miscarriage of justice because of non supply of relevant documents.
18. Before parting with the case we can not loose sight of the fact that the petitioner being an officer of the bank was entrusted with duties which reposed trust and confidence and by the overt act of the petitioner, the interest of the bank has been severely prejudiced but yet the bank has shown magnanimity by inflicting a lesser punishment than the one which is ordinarily inflicted in such matters and therefore, it can not be contended by the petitioner that the punishment so imposed is disproportionate to the nature of charge proved.
19. The writ petition fails and is hereby dismissed. No order as to costs.
Dt/- 24.2.2012 Masarrat