Letters Patent Appeal No.473 Of 2007 ***** Against the judgment and order dated 5th April, 2007 passed by the learned Single Judge in CWJC No. 3706/2001. ***** SHEO NATH PRASAD---------------------------------------Appellant Versus UTTAR BIHAR KSHETRIYA GRAMIN BANK, MUZAFFARPUR AND OTHERS----------------------- Respondents ***** For the appellant:- Mr. Chandrashekhar, Sr. Advocate with Mr. Rana Randhir Singh, Advocate. For the respondents:- Mr. Ajay Kumar Sinha, Advocate. ***** P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH AND THE HON'BLE MR. JUSTICE C.M.PRASAD Barin Ghosh and C.M. Prasad, JJ.- Heard learned counsel for the parties. A charge sheet issued in a disciplinary proceeding resulted in an enquiry. The enquiry was held ex parte after the Enquiry Officer refused to allow the delinquent to engage his defence counsel. The enquiry report was accepted, whereupon an order of dismissal was passed. After having had lost in the departmental appeal, the delinquent approached the Writ Court. Before the Writ Court, the delinquent contended that the departmental proceedings since the stage of enquiry are vitiated inasmuch as there was denial of natural justice. It was contended that the Enquiry Officer did not permit the delinquent to defend himself and that the disciplinary authority refused to produce relevant documents, as were sought for by the delinquent, to prove his innocence. The Writ Court upon considering the rival contentions of the parties refused to interfere 2 and, accordingly, dismissed the writ petition. The delinquent is, therefore, before us in the present appeal. Two days we have heard the counsel for the parties. Infraction of principles of natural justice at times goes to the root and vitiates the proceedings at and from the stage of infraction. In the instant case, there were two highlighted infractions of natural justice, namely, refusal to permit the delinquent to engage his defence counsel and, secondly, refusal on the part of the disciplinary authority to produce relevant documents, which were in its custody, which could prove innocence of the delinquent. There is no dispute that these infractions were made. The question is whether in the facts and circumstances of this case these infraction could go to the root of the matter vitiating the proceedings from the stage of infraction. After a show cause was issued calling upon the delinquent to show cause why, in the facts and circumstances as indicated in the show cause, a disciplinary proceeding shall not be initiated against the delinquent, the delinquent gave a reply to the show cause. Subsequent thereto a disciplinary proceeding was initiated against the delinquent by issuing a charge sheet. The charge sheet contained three charges. The first of them was that the delinquent in breach of the instructions not to lend more than 75% of the amount of a deposit to the deposit-holder took loans against his personal deposits from different Branches of the Bank on different dates and, on none of the occasions crossed the limit of 75% of the deposit, but the aggregate of such loans crossed well over the whole 3 value of such deposits. It was contended that the same was facilitated, because the delinquent in his capacity as the Branch Manager from where at least one of those loans had been obtained by him did not record the lien of the Bank over those deposits, and thereby kept in dark the other Branches that there exists a prior loan in relation to the self-same deposit. The second charge was almost identical except that the loans, being the subject matter of the second charge, were obtained by customers of the Bank, but in similar fashion, when also lien of the Bank over the deposits had not been marked and loan amounts were transferred to the personal account of the delinquent in order to enable him to utilize the amounts of such loans. The charge sheet contained also another charge, but inasmuch as the same has not been proved, we have not applied our mind to that. In his two replies to the charge sheet the delinquent dealt with in extenso the third charge, which did not stand proved. In relation to the first and the second charges, the delinquent did not dispute the facts constituting the said charges, but stated that the amounts of loan which were thus obtained have been duly refunded, to which there is no dispute. The delinquent further contended that for the reasons indicated in his replies to the charge sheet, he needed money and, accordingly, took loans in such fashion. Subsequent thereto an Enquiry Officer enquired into the charges. Before the Enquiry Officer the delinquent contended, as appears from the enquiry report and to which no contrary assertion has been made by the delinquent, that the loans so obtained were 4 approved or permitted by the Regional Officer. He, however, did not disclose any evidence to support the said contention and at the same time did not call any regional officer to depose. The delinquent at the same time wanted to appoint a Clerk in the employment of the Bank to act as his defence counsel and, accordingly, made a request therefor. The request was turned down on the plea that in a disciplinary proceeding of an Officer of the Bank, a Clerk of the Bank cannot act as defence counsel. The delinquent then made a request to appoint another person, who was a retired Bank Officer. Since the person concerned had retired from the Bank, he was not allowed to act as defence counsel. Lastly, the delinquent requested for allowing him to engage an Officer of the Bank as his defence counsel, but the said request was not acceded to since the Officer concerned then was under suspension, which fact had not been disputed by the delinquent. In course of enquiry, the delinquent also asked for supply of internal audit reports for the relevant period, when such loans were obtained. Those were not produced. In consequence of refusal to permit the delinquent to engage his chosen defence counsel, there cannot be any dispute that the delinquent was put to a disadvantageous position and he was thereby prevented to effectively defend himself. There is no dispute that the grounds upon which the requests of the delinquent to engage his defence counsel were refused, were not available in terms of the Rules governing the subject disciplinary proceedings. The whole question, however, still remains whether such disadvantageous 5 position caused any prejudice to the delinquent. The prejudice, if any, on the pleas taken in the charge sheet and the replies thereto, was preventing the delinquent in establishing that he needed the subject loans for the reasons mentioned in his replies. In the circumstances, law would require that the same should be treated to have been proved in favour of the delinquent and against the Bank. At the same time, the delinquent asked for but was refused production of relevant audit reports and, accordingly, the conclusion would be that, if those reports had been produced, the same would have suggested that the audit never objected to the subject loans. The question is whether on these parameters, the delinquent could establish his defence? If the defence is that he needed loans for the reasons indicated in his reply and, as regards those loans, no audit objection was lodged, a reasonable person would conclude that the defence succeeds. However, if none of these two elements has anything to do with the defence to the charges, then, of course, the two infractions, mentioned above, would not go to the root of the matter and, accordingly, would not vitiate the proceedings. The charge was not embezzlement of money of the Bank. The charge was that an Officer of the Bank acted for his own personal gain in a manner not permissible, i.e. withdrawing money more than the security as and by way of loan for meeting his personal needs. The charge was touching the integrity of the delinquent as the Manager of the Bank. Need of money by the delinquent would not justify the manner in which the same was taken by the delinquent. Therefore, 6 the one and the only logical conclusion would be that infraction of natural justice, as complained of, did not go to the root of the matter vitiating the proceedings. That is also the reason furnished by the learned Single Judge in support of the judgment and order under appeal. While a right to appeal was granted by the Rules, the appellate authority was made oblige to consider not only the case of the appellant but also proportionality of the punishment. Word “consider” used in the Rules connotes a legal obligation to consider and, accordingly, it must be manifest on record that consideration has been made. The appellate authority although has recorded that it has considered the appeal and found no merit therein but did not indicate the reasons in support thereof. The delinquent is also aggrieved thereby. In a given case, if two or more than two views are possible and, if an authority obliged to consider, has not expressed its views, it can always be contended that the authority concerned has failed to discharge its legal obligation. Therefore, we have to see whether in the background of the present case there could be any other view than holding that the charges stand proved and the charges are such that the same require an order of dismissal. For the reasons already indicated above and particularly in view of the defence taken, the charge stood proved from the very beginning, when the replies to the charge sheet were given by the delinquent. 7 The question is whether if the charges, as stand proved, could there be any other view than dismissal of the delinquent? The delinquent was the Manager of the Bank and in such capacity he was the custodian of moneys belonging to the Bank as deposited with it by the public. The delinquent having had acted in such manner clearly indicated that he breached the trust that was reposed upon him by the Bank. The moment a trustee breaches the trust, he ceases to continue to hold the trust reposed upon him. In cases of this nature, where the trust is founded on fiduciary capacity of the trustee, the trusteeship can be brought to an end only by removal of the trustee and by no other means. Accordingly, since there cannot be any other view than the view taken, non-speaking by the appellate authority did not vitiate the order of the appellate authority. We, accordingly, dismiss the appeal. No order as to costs. ( Barin Ghosh, J. ) ( C.M. Prasad, J. ) Patna High Court. The 11th September, 2008. AFR / DK.