SBCWP NO.2301/95. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.2301/1995. Radhey Shyam Sharma Versus Jaipur Zila Bhumi Vikas Bank Ltd. & Ors. Date of order:- August 18, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri N.K. Joshi for the petitioner. Shri Ashok Pareek for the respondents. ***** BY THE COURT:- Reportable This writ petition has been filed by the petitioner assailing the order dated 27/9/1994 by which, he was removed from service in disciplinary proceedings. 2) Factual matrix of the case is that petitioner was appointed on the post of LDC with respondents Jaipur Zila Bhumi Vikas Bank Ltd. On 10/1/1968. He was initially promoted on the post of UDC and thereafter as Branch SBCWP NO.2301/95. 2 Secretary. While petitioner was working as Branch Secretary, he came across certain irregular disbursement of loans. He on his own made certain enquiries and wrote a confidential letter to the respondent, Secretary of the Bank on 14/5/1993 informing that although record of pump sets have been shown to be installed and loan thereagainst sanctioned but actually no such installation took place and yet loans were advanced to certain farmers and that Loan Valuation Officer was responsible for giving the verify report. Petitioner went to the extent of even lodging an FIR with the Police Station Dausa on 30/5/1993. Petitioner himself was served with the charge sheet on 26/3/1993 on as many as three charges. Charge No.1 was for negligence in discharge of duties. Charge No.2 was for cheating the bank and the farmers in collusion with the supplier of the pump sets and thereafter causing pecuniary loss to the petitioner. Charge No.3 was for making false verification. Petitioner filed SBCWP NO.2301/95. 3 reply to the charge sheet on 9/7/1993. Respondents appointed enquiry officer who called upon the petitioner to appear before him on 26/4/1994. Petitioner was allowed to inspect the documents. Enquiry officer then held proceedings on 5/7/1994 and on that very day, the entire proceedings were concluded. Petitioner was later served with the show cause notice dated 10/9/1994 along with enquiry report proving all the three charges against him. Petitioner submitted his representation on 27/9/1994 with which he also placed copies of the circulars dated 12/8/1986 issued by the Managing Director of the Jaipur Zila Bhumi Vikas Bank Ltd. and also circular dated 18/5/1992 issued by the Secretary of the respondent bank on the fact that notification of installment of diesel pump sets have to be made by the Loan Valuation Officer and not by the executive officer. Finally, thereafter, impugned order of penalty dated 27/9/1994 which was communicated to the petitioner on 30/9/1994 SBCWP NO.2301/95. 4 removing the petitioner from service. Since the petitioner has crossed the age of superannuation, he be held entitled to consequential benefits including retiral benefits. 3) Shri N.K. Joshi, learned counsel for the petitioner submitted that verification was to be made by the Loan Valuation Officer, which in the present case was Hotilal Nagar. In any case, learned counsel submitted that charge against the petitioner has not been proved as per the procedure prescribed in the Jaipur Zila Sahakari Bank Service Rules. Rule 23 provides the procedure in holding the departmental proceedings, according to which, the departmental enquiry shall be allowed for principles of natural justice in which the department was first required to produce its evidence and then opportunity was required to be given to the delinquent to cross-examine the witnesses produced by the department and thereafter the delinquent was required to produce his evidence and thereafter, SBCWP NO.2301/95. 5 representative of the department would examine such witnesses and thereafter the enquiry report was to be submitted. Learned counsel submitted that the enquiry officer in the present case as has been appointed was an Advocate. He called upon the petitioner firstly on 26/4/1994 for the purpose of inspecting the documents and thereafter fixed the enquiry on 4/7/1994, on which date, certain queries were put to him and his answers thereto were noted down. Thereafter, the enquiry was completed. Petitioner was never informed as to in what manner the statement of the present officer was recorded. In fact, learned counsel submitted that statement of Ramnath Sharma, the Presenting Officer was recorded, with whom the petitioner was never confronted and he was never afforded an opportunity of cross examination as a witness. It was further argued that the presenting officer should not himself be examined as a witness for the department. Principles of natural justice SBCWP NO.2301/95. 6 were thus given a complete go-bye. Statement of such presenting officer was recorded behind the back of the petitioner. No other evidence was produced inasmuch as, no witnesses who had any knowledge or was associated with the disbursement of loan was produced with the malafide allegation. Not a single statement of any one of the farmers to whom loan was sanctioned was recorded. In the present case, learned counsel submitted that Shri Ramnath Sharma, the Presenting Officer was not working in the Bank at Dausa in which petitioner was working and he had no knowledge of the events of the enquiry. No employee working at Dausa Branch was produced in evidence. Enquiry Officer has played the role of a prosecutor. Enquiry officer put certain questions to the petitioner being statement on record in the manner which was not required to be recorded. 4) Learned counsel further argued that Hotiram Nagar, who was working as Loan Valuation Officer was also served with the SBCWP NO.2301/95. 7 charge sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. Charges against him were found proved in which ultimately, the disciplinary authority vide order dated 21/2/1997 awarded him penalty of stoppage of five annual grade increments with cumulative effect. Petitioner has thus been discriminated against even in the matter of quantum of penalty. Learned counsel also referred to the format of certificate of installment, letter of satisfaction to be signed by the agriculturists in witness of two persons, receipt produced by the agriculturists and authorization letter to be signed by the agriculturists and argued that is on condition of this, that payment was realised to the petitioner. It is therefore prayed that the writ petition be allowed. 5) Shri Ashok Pareek, learned counsel appearing for the respondents has opposed the writ petition and argued that the basic charge that has been found proved against the SBCWP NO.2301/95. 8 petitioner is that he made payment of the loan to the farmers without verifying the installment of diesel pump sets and without satisfying himself that the payment has actually been made to the farmers. Learned counsel relied on the circulars dated 12/8/1986 issued by the Managing Director of the Jaipur Zila Bhumi Vikas Bank Ltd. and 18/5/1992 of the Secretary and argued that the bank itself in the aforesaid circulars directed for such verification. First circular dated 12/8/1986 provides that the payment of the loans should be realised to the firm supplying the diesel pump sets within one week from the date of verification thereof. By the subsequent circular dated 18/5/1992, it was directed that verification shall be made only by Supervisor/Loan Valuation Officer and not by the Secretary of the bank. It was further directed that the payment would be made by the same authority, who makes verification with the result that such of the Secretary, was who did not obey SBCWP NO.2301/95. 9 the instructions, would be dealt with in disciplinary proceedings. 6) Shri Ashok Pareek, learned counsel for the respondents has further argued that even if petitioner lodged the FIR, he could not be absolved of his liability. Loan amount of all these cases were disbursed because petitioner failed to seriously discharge his duties. He did not satisfy himself about the fact that payment was being disbursed in genuine cases where the diesel pump sets were installed and the farmers were beneficiaries of the loan. Learned counsel submitted that the enquiry was conducted strictly in accordance with the bank rules and the petitioner was granted full opportunity to defend himself. The documents required by him were supplied for inspection and petitioner was allowed to take extract of the documents. Petitioner was also given opportunity to appoint his defence nominee. It is denied that the statement of Ramnath Sharma was not recorded in the presence of the petitioner. SBCWP NO.2301/95. 10 Learned counsel also argued that Shri Hotilal Nagar, Loan Evaluation Officer alone was not responsible for the lapses which happened in the branch office of which the petitioner was Incharge. It was the duty of the petitioner to watch each and every activity of the branch in regard to disbursement of the loan. If Shri Hotilal Nagar Inspector was awarded the lesser penalty, that could not be any reason to assail the impugned-orders as bad in law. Learned counsel submitted that the petitioner was afforded opportunity to cross examine witness Ramnath Sharma but since he could not adduce evidence, such opportunity was not granted to him. Principles of natural justice were fully adhered to. It is, therefore, prayed that the writ petition be dismissed. 7) I have given my anxious consideration to the rival submissions of the parties and perused the documents produced on record. 8) Copy of the enquiry report on the basis of which, the disciplinary authority SBCWP NO.2301/95. 11 has passed the order of penalty is on record. Perusal of the enquiry report shows that the charge against the petitioner has been found proved solely on the basis of the written statement produced by the presenting officer. No other witness was produced by the respondent bank before the disciplinary authority. Record of the enquiry was produced by the learned counsel appearing for the respondents for perusal of the court which contains two written statements produced by the presenting officer before the enquiry officer. Proceedings that are available in the enquiry file clearly shows that 26/4/1994 was the first date fixed on which petitioner was allowed to inspect the record and the matter was deferred on prayer of the presenting officer for producing list of documents and evidence. 9 & 10/5/1994 were the next dates but it appears that the matter was not taken up thereafter on those dates. Enquiry officer then took up the matter on 17/6/1994 by issuing notice to the present SBCWP NO.2301/95. 12 officer and the delinquent. On 17/6/1994 itself, another order was drawn showing that the presenting officer has produced certain documents which were taken on record. Matter was then taken up on 4/7/1994 on which date also, presenting officer produced certain documents which were taken on record. Oral documents of the petitioner and the presenting officer were taken note of. It is not evident from the order sheet drawn on 4/7/1994, whether or not statement of presenting officer was recorded on day. Written statement of Ramnath Sharma in fact is hand written one and a half page statement, which is signed by him but not dated. Enquiry officer in his hand has made an endorsement on that statement to the effect that “kept in record” which is dated 4/7/1994. Obviously, such written statement was obtained by the enquiry officer from the presenting officer behind the back of the petitioner. In the first page, presenting officer could not himself be examined as a SBCWP NO.2301/95. 13 witness and secondly even if it is accepted that he could be allowed to appear as witness before the enquiry officer, his statement ought to be recorded in the presence of the petitioner. Then, the proceedings should have been recorded by the enquiry officer. Thirdly, petitioner ought to have been afforded opportunity to cross-examine him. Enquiry proceedings in the present case have thus been held in complete violation of the basic requirement of principle of natural justice. Howsoever, may be the gravity of the charge, charge has to be accepted as proved only if the findings to that effect are recorded in a lawfully conducted enquiry as envisaged in Rule 23 of the Bank Rules. 9) In view of the fact that the enquiry in the present case was neither held in conformity with the rules nor in keeping with the principles of natural justice, I need not go into other arguments that verification of the installment was not even part of the duty of the petitioner and Shri Hotilal Nagar was SBCWP NO.2301/95. 14 awarded lesser penalty. 10) The writ petition deserves to be allowed on the first argument. In the result, the writ petition is allowed. The impugned-order of penalty dated 27/9/1994 (Ann.10) is quashed and set-aside. Petitioner is held entitled to all consequential benefits including retiral benefits. Payment of his salary as well as other retiral dues and consequential benefits be made to the petitioner within a period of three months from the date copy of this order is supplied to the respondents. (MOHAMMAD RAFIQ), J. anil