1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 1733 of 2002 Sanat Kumar Vijjan ………..Petitioner Versus UCO Bank and others …..Respondents Present: Mr. R.K. Raizada, learned counsel for the petitioner. Mr. Rajendra Dobhal, learned Senior Counsel assisted by Mr. Manoj Sah, learned counsel for the respondents. Date of Decision: 17.09.2010 Coram : Hon’ble Tarun Agarwala, J. Hon’ble Sudhanshu Dhulia, J. Hon’ble Sudhanshu Dhulia, J This writ petition has been filed by the petitioner who is an employee of UCO Bank against the order of his removal from service passed by the Disciplinary Authority dated 27.12.2001 (Annexure No.1 to the writ petition) and the order dated 10.8.2002 passed by the General Manager (Operations-I) i.e. the Appellate Authority of the petitioner. The petitioner while working as a Branch Manager of Muzzafarabad Branch of UCO Bank had allegedly indulged in several acts of omission and commission for which a charge-sheet dated 4.8.1999 was served upon him. As per the charge-sheet dated 4.8.1999 six charges were levelled against the petitioner Sri Sanat Kumar Vijjan. The statement of charges are as follows :- “1. Sri Vijan granted and disbursed advances under State Sponsored Scheme in collusion with a broker Sri Raj Pal Singh. Some borrowers have not received full amount of loan and part amount were deducted while making payment to the beneficiary. 2. Sri Vijan sanctioned various loans in the name of Sri Raj Pal Singh (broker) and the members of his family viz. Kushpal Singh son, Saroj Bala wife and so on despite knowing the fact that they were willful defaulters. 3. Sri Vijan accepted bills/receipts issued by Sri Rajpal Singh (broker) or his sub-agent most of which were without date. Bills issued by Sri Raj Pal Singh (broker) was accepted by him knowing fully will that he is not dealing with such business. 4. Sri Vijan sanctioned and disbursed a loan of Rs.20,000/- on 28.1.87 to one Sri Anil Kumar S/o Rati Ram r/o Vill. Kandhla. But Pradhan of Vill. Kandhla has stated that he does not know any Anil Kumar of his Village. It means Sri Vijan did not conduct pre-sanction survey and granted loan to a fictitious man. 2 5. In some cases, Sri Vijan had obtained the recommendation of Chief Cashier for sanction of loans despite Regional Office, Bareilly’s instruction not to involved him in the process of sanctioning of advance. 6. Sri Vijan has unauthorized and fraudulently received an amount of Rs. 20,000/- against withdrawal of one Smt. Lokendra W/o Tej Pal on 3.2.1997 a loan of Rs.20,000/- for purchase of Sewing Machine etc, was sanctioned and disbursed on 3.2.1997.” The petitioner was given a copy of the above chargesheet and his reply was called and given by the petitioner. Since the reply submitted by the petitioner was not found satisfactory a departmental enquiry was ordered. The Disciplinary Authority appointed one Sri V.N. Nigam as Enquiry officer on 20.11.1999 and the Enquiry Officer in its report gave a finding that all the charges against the petitioner stand proved. The Disciplinary Authority while passing the disciplinary order had reduced the six charges to four charges, which are being reproduced as follows :- 1. Sri Vijan acted against the Rules and norms of the Bank as he granted and disbursed the loans through a broker Sri Rajpal Singh and family members of the broker. He accepted undated Bills/Receipts issued by the broker. He did not ensure that the assets are created out of the Bank’s finance because the borrower did not get th4e full amount. This is violation of Regulation 3(1) of UCO Bank Officer Employee(Conduct) Regulation 1976 as he did not take all possible steps to ensure and protect the interest of the Bank and discharge his duties with utmost integrity, devotion and diligence. 2. Sri Vijan did not conduct pre-sanction survey and thus, sanctioned and disbursed loan to one Sri Anil Kumar S/o Rati Ram, Village Kandhla whereas there is no Anil Kumar in this village, so Shir Vijan sanctioned and disbursed loan to a fictitious person. This is violation of Regulation of Regulation 1976 as he did not take all possible steps ensure and protect the interest of the Bank and discharge his duties with utmost devotion and diligence. 3. Sri Vijan acted against the norms of the Bank in as much as he obtained recommendations from the Chief Cashier for sanction of a loan. He flouted the instructions of Regional Office, Bareilly as he was instructed not to involve the Chief Cashier in the process of loan sanctioning. This is violation of Regulation 3(1) of UCO Bank Officer Employees (Conduct) Regulation 1976 as he did not take all possible steps to ensure and protect the interest of the Bank and discharge his duties with utmost devotion and diligence. 4. Shri Vijan received pecuniary benefit on 3.2.97 from one borrower Smt. Lokendra Who was disbursed the loan of Rs. 20,000/- for sewing machine etc. This is violation of Regulations 3 (I) of UCO Bank Officer Employees (Conduct) Regulation 1976 as he did not take all possible steps to ensure and protect the interest of the Bank and discharge his duties with utmost integrity, honesty, devotion and diligence.” 3 All these four charges stood proved against the petitioner and therefore for charge nos. 1 and 2 he was removed from service. This order was challenged by the petitioner in the appeal before the Appellate Authority. The Appellate Authority after considering the memo of appeal filed by the petitioner and after hearing the petitioner confirmed the order of the Disciplinary Authority. The order of the Appellate Authority is a speaking order whereby the charges and the findings against the petitioner on these charges have been elaborated and discussed and the evidence in support of it examined. There appears to be a total application of mind on the charges as well as on the finding on each of the charge by the Appellate Authority. Learned counsel for the petitioner Sri R.K. Raizada though has contended before this Court that the order of the Disciplinary Authority is not a reasoned order and there is no application of mind by the authority. He would argue that what has been stated in its order by the Disciplinary Authority is a simple narration of the charges followed by a one line order “that he agrees with the findings of the Enquiry Officer”. To be fair to the learned counsel for the petitioner his submission here are not entirely misplaced, though they are somewhat exaggerated. The Disciplinary Authority has considered all the aspect, yet while dealing with the each charges he has simply narrated the charges and then has stated that the Enquiry Officer held that such and such charges are proved against the petitioner and thus he concurs with the finding of the Enquiry Officer. However, the Disciplinary Authority has referred to the contents of the enquiry report and to the findings which have been made against the petitioner. It is true that the elaboration and the minute examination of the charges have not been made by the Disciplinary Authority. But then in a departmental proceeding elaborate explanation of charges and findings, as it happens in a regular court of law, are also not expected. The basic requirement of law and fair procedure appears to have been done. It would also be unfair for this Court to expect the standard of a regular court of law in a departmental proceeding. Therefore, though this submission of the learned counsel for the petitioner, at first blush, appears to be attractive, yet they are not entirely 4 well founded. Moreover, this anomaly, if any, has been met more than sufficiently by the order of the Appellate Authority. The Appellate Authority has examined each charge, discussed the findings against the petitioner on these charges, and subsequently came to a finding on these charges. It is not a mere repetition of what has already been said by the Disciplinary Authority but there is an independent application of mind by the Appellate Authority. Broadly speaking each of the charges and the finding on the charges as determined by the Disciplinary Authority and the Appellate Authority are as follows :- As far as charge no. 1 is concerned this charge has been framed on the basis of allegation nos. 1 to 3 levelled by the disciplinary authority against the petitioner. The appellate authority instead of giving any finding on this charge has given its finding on allegation nos. 1 to 3 separately which is as under :- “As regards allegation no. 1, the CSOE has submitted that the PO produced no evidence in respect any advance made by the CSOE through Raj Pal Singh, since no bills/vouchers signed by Sri Raj Pal Singh were produced. I do not accept this argument, because production of bill/vouchers signed by Sri Raj Pal Singh cannot be regarded as the only evidence to establish the allegation. During the course of enquiry, this allegation has been established through documentary as well as oral evidence. This CSOE has submitted that as the witnesses produced by the PO are defaulters whom the CSOE did not make fresh advance, they were antagonistic to the CSOE, as such, there depositions do not stand by merit. I feel that it is a cooked up story. I do not accept this argument. I hold that no supportive document as to there antagonism have been produced by the CSOE in the course of enquiry. The CSOE has pleaded that as he made follow up of R/C filed cases of Raj Pal Singh for which he was put to Tehsil Jail, so the CSOE could not utilized him as a broker. I find that the R/C case against Sri Raj Pal Singh was filed in 1994, whereas the CSOE joined Muzaffarabad Branch in November, 1996. He granted and disbursed advances, as cited by the PO in respect of allegations no. 1, in 1997, and Sri Raj Pal Singh was put in Tehsil Jail, in August, 1998. It appears from the documents that even after filing of R/C case against Sri Raj Pal Singh, the CSOE involved in the process of sanctioning / disbursing the loans. As Manager of the Branch the CSOE was duty-bound to follow up the R/C cases, the consequence of which was the imprisonment of Sri Raj Pal Singh. His collusion with Sri Raj Pal Singh is not denied only by the fact of the said imprisonment. He has argued that Sri Sharma Singh and Sri Tej Pal have given in writing they had received the full amount of loan. Their complaint before the EO have not been produced. But from the depositions of MW-2 and MW-3 in the Courts of inquiry, it is observed that they received the full 5 amount of loan on intervention of the regional Manager Bareilly after making complaints against CSOE. I hold that this allegation is proved. As regards allegation no. 2, the CSOE has submitted that the CSOE had not sanctioned any advance to Sri Raj Pal Singh or Smt Bala, W/o Shri Raj Pal Singh. But it is clear from the records that the CSOE sanctioned and disbursed advanc4e in the name of Sri Kushal Pal Singh, son of Sri Raj Pal Singh and Smt. Saroj Bala were willful defaulters and the integrity of Sri Kushal Pal Singh is doubtful, because the previous loans given by the predecessors of the CSOE had been recovered after filing recovery certificate to the District Authority. I hold this allegation as proved. As regards allegation no. 3, the CSOE has pleaded that in the inquiry the PO has not produced any bills/receipts issued by Sri Raj Pal Singh or his sub-agent, which have been accepted by the CSOE. But the letter No. BARER/SF/98/66 dated 22.4.1998 (ME 57/1- to ME 57/3) issued by the Regional manager, Bareilly, addressed to the CSOE cannot be ignored, since it is based on the report of the investigating inspecting officer. I find this allegation as established. I hold that disciplinary proceedings is not a criminal trial and the standard of proof required in a disciplinary inquiry is that of preponderance of probability and not proof beyond reasonable doubt.” Charge No. 2 is based on allegation no. 4 (already mentioned above) and the finding on this by the Appellate Authority is as under :- “As regards allegation no. 4, the CSOE has pleaded that Shri Anil Kumar is not a fictitious person. At the time of sanctioning the loan he was living in the village of Kandhla with his maternal uncle. His loan account was adjusted after appropriating the amount of Rs. 6147/- from his SB Account and a deposit of Rs. 6,000/- was made by the maternal uncle. I find that the CSOE has himself admitted that Shri Anil Kumar is not a permanent resident of village Kandhla. Moreover, the Block Office has informed the bank vide (ME-41) that they had not sponsored any application in the name of Shri Anil Kumar. The CSOE accepted ME-41 with a comment that the Block Officer might have issued the letter to save their skin. He further submitted that the loan was adjusted by Shri Nathula, maternal uncle of Shri Anil Kumar, without giving any reason as to why Shri Nathula adjusted that loan of Shri Anil Kumar. Moreover the defence witness (DW-II) submitted that the loan was adjusted partly be CSOE. I find that CSOE sanctioned the loan to a fictitious person and to conceal the fact, he adjusted the loan. I hold that this allegation stands proved.” So far as Charge No. 3 is concerned, the same is based on allegation no. 5 on which the Appellate Authority has given his finding as under :- “As regards allegation no.5, the CSOE has submitted that in the branch there were only two officers including the Chief Cashier. In the guidelines of the Bank there is no bar in respect of recommendation of 6 loan applications by the Chief Cashier. Moreover, the management has not produced single evidence to prove that the CSOE was ever instructed by the Regional Office, Bareilly not to involve the chief cashier in the process of sanctioning of loan applications. I do not agree with the submission of the CSOE that the branch had only two officers at the relevant point to time. I find from the document ME 56/1 that a Field Officer was tagged with the branch and the branch had not obtained pre sanction/recommendation from the Field Officer. From ME-54/I it is found that most of the advances under SCP are recommended by the Chief Cashier without the required pre sanction report. From ME 57/2, I find that the Regional Manager observed that the CSOE obtained the recommendation of the Chief Cashier despite instructions given to him not to involve the Chief Cashier in the process of sanctioning the loan. As such, I find that he violated the instructions of the Regional Office and also norms of the Head Office regarding pre sanction report. I hold that the allegation stands proved.” Charge No. 4 is based on allegation no. 6. The finding of the Appellate Authority on this reads as under :- “As regards allegation no. 6, the CSOE has argued that Shri Jagdish Chand, Chief Cashier of the Branch was antagonistic to him, Shri Chand made to false signatures of Tej Pal on ME-52 on a later date with another pen and ink and wrote narration that the money was given to the CSOE. I find from ME 52/1 the withdrawal slip for Rs. 20,000/- that there are four signatures of Shri Tej Pal and two thumb impressions of Smt. Lokendra on the reverse of the said withdrawal slip. There is also a remark, “payment handed over to Mr. S.K. Vijan, against PBA 10/263” with signature of the Chief Cashier. It is clear that the Chief Cashier cannot put the forged signature on the withdrawal slip, since he made the above written comment. There is no question of putting forged signatures by Shri Tej Pal because two signatures are normally required for payment of cash. Again, it is interesting to note that there are only two thumb impression of Smt. Lokendra. From the statements of loan account (ME-45 and ME-46) it is recorded that the loans were sanctioned and disbursed on 3.2.1997 for Rs. 18,000/- each and an amount of Rs. 10,000/- each has been credited on 8.5.99 as a repayment to the loan accounts. I also find that Tej Pal deposed in the course of enquiry that he has not received the full amount of loan sanctioned to his family. He also deposed that only due to the intervention of the Regional Manager, he received only Rs. 15,000/-. When a borrower has a complaint that he has not received the amount of loan fully, in normal prudence it cannot be accepted that he will repay the loan, and that too for Rs. 10,000/- each i.e. Rs. 20,000/-. In view of the oral and written evidence, I find that the payments made against the said withdrawal slip for Rs. 20,000/- was not received by Shri Tej Pal. To conceal the fact some person, other than Shri Tej Pal, deposited the amount of Rs. 10,000/- each with the said loan accounts on a subsequent date, and that too after issuance of letter dated 22.4.98 (ME-57) of the Regional Office seeking explanation from Shri Vijan for the alleged irregularities in the advance account. I do not find any reason to believe that the Chief Cashier received the amount against the said withdrawal slip. I hold that this allegation stands proved.” 7 This Court has perused the entire record of the case and has examined in great detail both the orders as referred above. One of the charges against the petitioner was that he had sanctioned loan to a fictitious person, namely, Sri Anil Kumar who is not a permanent resident of Village Kandhla. Moreover, the Block Officer of the concerned village had informed the bank that they have not sponsored any application in the name of Sri Anil Kumar. This charge stands categorically proved against the petitioner and on this there was not much defence given by the petitioner himself. Moreover there were other charges against the petitioner that he was disbursing loan in collusion with one broker, namely, Rajpal Singh and there is enough evidence on record to prove these charges as well. In a departmental enquiry it is not necessary that these charges have to be proved “beyond reasonable doubt”, as done in a regular court of law. In a departmental proceedings what is required is “preponderance of the possibility”. Preponderance of possibility is overwhelmingly against the petitioner. In this case a departmental enquiry has recorded its findings against the petitioner. Based on these findings punishment has been imposed against the petitioner by his Disciplinary Authority. The order has been upheld in the departmental appeal. In the absence of any challenge to the legality or fairness to the domestic enquiry, the Court would normally be reluctant to either interfere with the findings recorded by the Enquiry Officer or the punishment awarded by the Departmental Authority. In the present case there is no such challenge as such. The entire case of the petitioner is that the materials against the accused i.e. the petitioner were not examined in a manner they ought to have been done. As referred above, this submission of the petitioner is totally misconceived, as it has been repeatedly held by the Apex Court that in a departmental proceeding the standard of prove for examination are totally different than what they are in a regular court of law. The punishment to a delinquent officer, in a departmental proceeding would depend upon the preponderance of probabilities and not because the findings is beyond reasonable doubt against the delinquent officer, as in a regular court of law where the evidence has to be examined as per the 8 law in the Evidence Act. The Apex Court in the case of Maharashtra State Board of Secondary and Higher Education Vs. K.S. Gandhi and others (1991) 2 SCC 716 has stated : “The standard of proof is not proof beyond reasonable doubt “but” the preponderance of probabilities tending to draw an inference that the fact must be more probable.” Similarly in Divl. Controller, KSRTC (NWKRTC) V. A.T. Mane (2005) 3 SCC 254, it has been held by the Apex Court as under :- “9. From the above it is clear that once a domestic tribunal based on evidence comes to a particular conclusion, normally it is not open to the Appellate Tribunal and courts to substitute their subjective opinion in the place of the one arrived at by the domestic tribunal. In the present case, there is evidence of the inspector who checked the bus which establishes the misconduct of the respondent. The domestic tribunal accepted that evidence and found the respondent guilty. But the courts below misdirected themselves in insisting on the evidence of the ticketless passengers to reject the said finding which, in our opinion, as held by this Court in Rattan Singh is not a condition precedent. We may herein note that the judgment of this in Rattan Singh has since been followed by this Court in Devendra Swamy v. Karnataka SRTC.” This position was reiterated by the Apex Court in U.P.SRTC v. Vinod Kumar (2008) 1 SCC 115 as well as in West Bokaro Colliery (TISCO Ltd.) v. Ram Pravesh Singh (2008) 3 SCC 729. There is another aspect of this matter which must be taken into consideration by this Court before finally adjudicating upon the matter. The petitioner is a Branch Manager of a bank, who has a large number of fiscal and fiduciary responsibilities including disbursement of loan and managing cash of the bank. The nature of the job is such that it must rest largely on “trust”. Unfortunately, the petitioner has lost the trust of his employers. The serious nature of charges against the petitioner, and the overwhelming evidence against him on the charges is enough to invite the harsh punishment, which has been imposed upon the petitioner. The petitioner has lost his credibility for the Bank. It would indeed be a travesty of justice if any indulgence is shown to the petitioner, considering that he is working in a financial institution, where ‘trust’ 9 between an employee and employer should be the hallmark of relationship. This Court, therefore, finds no justification in interfering with the order of the two authorities below. There is no procedural irregularity. The charges against the petitioner are serious in nature and definitely invite the punishment which has been imposed upon the petitioner. The present Writ Petition is totally devoid of merit and is liable to be dismissed and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J) (Tarun Agarwala, J.) 17.09.2010 Avneet