IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13138 of 2001 Date of decision: 19.02.2010 Satpal Singh ….Petitioner versus The Chandigarh State Cooperative Bank Limited and another. .…Respondents II. Civil Writ Petition No.1242 of 2004 Satpal Singh ….Petitioner versus The Chandigarh State Cooperative Bank Limited and another. .…Respondents III. Civil Writ Petition No.13883 of 2001 Jog Singh ….Petitioner versus The Chandigarh State Cooperative Bank Limited and another. .…Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. R.K.Malik, Senior Advocate with Mr. Vishal Malik, Advocate, for the petitioner (in CWP No.13138 of 2001). Mr. Manjit Singh Khera, Senior Advocate with Mr.Dharminder Singh, Advocate and Mr. Balbir Singh Sevak, Advocate, for the petitioner (in CWP No.13883 of 2001). Mr.Ravinder Malik (Ravi), Advocate, for the petitioner (in CWP No.1242 of 2004) Mr. K.K.Gupta, Advocate, for the respondents. ----- Civil Writ Petition No.13138 of 2001 - 2 - 1. Whether reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the reporters or not? Yes. 3. Whether the judgment should be reported in the digest? Yes. ---- K.Kannan, J. I. The scope of litigation 1. The petitioners in Civil Writ Petition No.13138 of 2001 and Civil Writ Petition No.1242 of 2004 were Senior Accountants and the petitioner in Civil Writ Petition No.13883 of 2001 was a Deputy Manager working in Chandigarh State Cooperative Bank Limited at the relevant time when they had been held guilty of actions in issue of loans to M/s Punwire/PMCL, sister companies registered under the Companies Act and operating outside the jurisdiction of the Bank, by flouting the Bank rules in awarding to the Companies term loans without any security or requisite sanctions. 2. The officers, had been placed under suspension and an enquiry ordered under Section 50 of the Punjab Cooperative Societies Act of 1961. There was a preliminary report finding that there had been gross irregularity in extending loans without securities, when all that had been authorized was an investment to a tune of Rs.1 crore in M/s Punwire/PMCL. The enquiry initially had not placed anyone particular person as responsible for the irregularity. However, all the petitioners had been charge-sheeted departmentally, imputing them with charge of investment of over Rs.11 crores with M/s Punwire/PMCL without proper approval of the competent authorities, namely, the Managing Director and Board of Directors of the Bank. The charges included that although the vouchers of the Bank showed as though investments had been made, Civil Writ Petition No.13138 of 2001 - 3 - actually short term loans had been advanced and without any tangible security/guarantee. The transactions having been loans, they ought to have been put through Loan Sub Committee for sanction and such sanction had also not been obtained. The cause for action against the petitioners was aggravated by the fact that M/s Punwire/PMCL had failed to return the amounts involving the Bank in huge losses and the action of the petitioners constituted a very serious irregularity and liable for being proceeded against under Rule 9 of the Service Rules of the Bank. II. The contentions in defence by the delinquent officers 3. The principal contention in defence by all the petitioners was that they had themselves no serious role to play and it was elicited in the statutory enquiry as well as in the proceedings of the Enquiry Officer that the Branch Manager of the Bank and the still higher authorities were alone responsible for the investment decisions and they held mere cheque signing powers and they had no involvement in the actual decisions of advancing the loans to M/s Punwire/PMCL. The next line of defence was that the Enquiry Officer’s report itself had not been given to the petitioners and there was a gross prejudice in the administrator prejudging the issue by issuing show cause notices against punishment on a conclusion reached already that the report of the Enquiry Officer was required to be accepted. The third line of contention was that the Administrator was acting at the behest of the Registrar without applying his own independent mind and by carrying out merely the directions of the Registrar, a statutory right of appeal, which was provided against a Civil Writ Petition No.13138 of 2001 - 4 - decision of the Board to the Registrar was lost and, therefore, there was substantial prejudice also on that score. III. Factual consideration of whether the petitioners were guilty of charges 4. On the first contention that the petitioners were not in any way responsible for the misconduct attributed to them that they had been merely empowered to sign cheques, carries no conviction. Senior Accountant or a Deputy Manager cannot be a mere machine signing out cheques and he is bound to ensure, as contended by the counsel for the respondent that the cheques are issued for purposes which are lawful. It is not denied by any of the petitioners that the sanction had been granted by the Board of Directors only for investments to a tune of Rs.1 crore with M/s Punwire/PMCL and as responsible officers, they ought to have known that investment was different from a short term loan as the charge-sheet revealed. The vouchers accompanying the cheques had been shown as though they were being issued for investments with M/s Punwire/PMCL but actually along with the vouchers were also loan agreements showing that the amounts had been advanced periodically on various dates totaling to Rs.11 crores. The cheque signing authorities ought to have drawn the cheques only for the purpose for which the vouchers had been prepared. There was an obvious mismatch between what was stated in the vouchers as investments and what accompanied the documents showing the transaction as short term loans. The learned counsel appearing for the respondent pointed out that the loans could be advanced only on the recommendations by Loan Sub Committee and proper demand promissory notes with security must have also been Civil Writ Petition No.13138 of 2001 - 5 - obtained before loans were disbursed. None of such procedures had been followed and, therefore, it was purely a case of actions of the petitioners done in gross negligence and in brazen violation of the authority vested in them. The learned counsel for the respondent would state that it was not as if the Manager of the Bank himself had not been proceeded with. Since the Manager had been on deputation to the Bank, information for taking appropriate action had been given to the parent institution from which the officer had come on deputation and the Manager was also proceeded with by a CBI investigation that resulted in conviction and the Manager was also undergoing imprisonment for the criminal acts alleged and proved against him, apart from a departmental action by the parent authority. IV. Statutory enquiry under Section 50 of Punjab Cooperative Societies Act was general but individual enquiry after charge- sheet proved misconduct 5. The findings of the Enquiry Officer were sought to be discounted by the fact that a statutory enquiry conducted by the Director Public Relations, Shri Vivek Atray merely showed that between 14.09.1998 to 07.10.1998 a sum of Rs.11 crores had been issued to M/s Punwire/PMCL and that at the relevant time, amounts had been advanced without following the proper procedure of taking enough security to safeguards the interest of the Bank, without in any way implicating the petitioners. Though the investments which had been authorized by the Board of Directors had been made on short term loan basis in utter disregard of the loan down policy, as conveyed to the Bank by the Investment Cell, Department of Finance, Government of Punjab, the officer Shri Vivek Civil Writ Petition No.13138 of 2001 - 6 - Atray had stated that it was not possible to pinpoint the individual who made the decision to invest the funds and it was only the Ex-Managing Director Mr.Jagtar Singh and Ex-General Manager Vinod Sharma, who were the decision making authorities at the time when the decision was made. The enquiry also concluded that the involvement of the Directors or the Ex-Chairman Shri Gulab Singh could not be ascertained due to lack of evidence. The learned counsel appearing for the petitioners relied on this statutory enquiry report as clearly showing that the principal decision makers were only Shri Jagtar Singh and Vinod Sharma and the petitioners, who were mere subordinates, could not be held guilty. 6. In my view, such a contention is not possible, for, the report of the Enquiry Officer under a statutory enquiry under Section 50, is completely different from an enquiry which is specifically constituted when charge-sheets had been served on the petitioners and an enquiry was concluded by Shri P.K. Prashar, Superintendent D.C. Office when all the charges attributed to the petitioners had been proved. The charge- sheet was very clear about how when the authorization had been with reference to investments upto Rs.1 crore, the petitioners had issued cheques for Rs.11 crores on vouchers which were made to appear as though they were investments but actually accompanied by loan agreements to the tune of about Rs.11 crores that had not even assured that any security was obtained for such short term loans nor had they seen whether there were appropriate approvals form the Loan Sub Committees before the amounts could be disbursed by issuing of cheques Civil Writ Petition No.13138 of 2001 - 7 - to the drawee. The negligence and a brazen violation of the Bank regulations are beyond doubt and it is absolutely irrelevant that the preliminary enquiry under Section 50 did not track the guilt of the petitioners. At that stage of statutory enquiry, what was necessary to be seen was only whether the amounts had been advanced to the tune of Rs.11 crores had been properly done or whether there were any serious violations of the Bank rules and lending policies. The statutory enquiry gave such a prima facie basis and the enquiry after the charge-sheet by another officer clearly nailed down the guilt of the petitioners. V. Effect of non-supply of findings of enquiry officer along with show cause notice against punishment, when no prejudice is shown and when the decision to punish itself was taken only subsequent to service of enquiry report and after considering the replies 7. The challenge of the finding of the enquiry report itself is not that the enquiry was not properly conducted and the inferences drawn by the Enquiry Officer were wrongly made. The attack was not primarily on the finding of the Enquiry Officer but in the manner it was conveyed to the petitioners along with show cause notice proposing a punishment of dismissal, accepting the finding of the Enquiry Officer. According to the learned counsel appearing for the petitioners, the Administrator replaced the Board of Directors when it was superseded and he was bound to exercise his powers independently of any direction from the Registrar. In this case, the Registrar had actually considered the enquiry reports and had directed by his letter dated 19.06.2001 that the Administrator should take immediate action against the officials with a major penalty recommended against them. This communication from the Registrar Civil Writ Petition No.13138 of 2001 - 8 - gave no room to the Administrator to exercise an independent decision or examine objectively the reply to the show cause notices issued by the Administrator. This objection by the petitioners though seemingly formidable is, in my view, without any substance in the manner in which the enquiry report was communicated to the petitioners before the actual punishment had been awarded to the petitioners. 8. The enquiry report dated 10.05.2001 is fairly elaborate and it examines in great length as to how each one of the petitioners had been clearly responsible for flouting of the banking norms and issuing to M/s Punwire/PMCL cheques which could not have been issued to them without proper loan documents and without proper authorization through appropriate authorities. The Administrator has stated that he has examined the reports of the Enquiry Officer and he has also observed that he found no reason to differ with the findings of the Enquiry Officer when he served the notices to the petitioners on 13.07.2001. The following factors should be noticed which will show that no prejudice had been caused to the petitioners:- (i) The enquiry reports had also been forwarded to the petitioners. In the reply to the show cause notices sent by the petitioner all that the petitioners have contended is that the statutory enquiry conducted by Shri Vivek Atray had specifically stated that it was not possible to pinpoint the persons responsible for the financial irregularities and, therefore, the Enquiry Officer could not have found them guilty. (ii) None of the petitioners ever objected on the ground that the notice itself was an expression of a pre-determined decision and that it left no scope for the petitioners to explain their innocence. (iii) None of the petitioners had even pleaded that they had been Civil Writ Petition No.13138 of 2001 - 9 - put to any prejudice by the fact that the enquiry report had not been served on them before the show cause notice against punishment was served. 9. The issue whether the non-serving of an Enquiry Officer’s report when the disciplinary authority was not taking a different view from the Enquiry Officer has come up for consideration before a Constitution Bench in ECIL Versus B.Karunakar-1993(4) SCC 727. The decision was also subsequently explained by the Hon’ble Supreme Court in Haryana Financial Corporation Versus Kailash Chander Ahuja-2008 (9) SCC 31. The latter judgment explained: “21. From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer’s report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside.” ........ “23. The High Court, unfortunately, failed to appreciate and apply in its proper perspective the ratio laid down in B. Karunakar, though the High Court was conscious of the controversy before it. The Court also noted the submission of the Corporation that there was “no whisper” in the writ petition showing any prejudice to the delinquent as required by Civil Writ Petition No.13138 of 2001 - 10 - B. Karunakar, but allowed the writ petition and set aside the order of punishment observing that in such cases, prejudice is “writ large”. “24. In our considered view, the High Court was wrong in making the above observation and virtually in ignoring the ratio of B. Karunakar that prejudice should be shown by the delinquent. To repeat, in B. Karunakar, this Court stated: (SCC p.757, para 30) “30. (v) … Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case.” “31. At the same time, however, effect of violation of the rule of audi alteram partem has to be considered. Even if hearing is not afforded to the person who is sought to be affected or penalised, can it not be argued that “notice would have served no purpose” or “hearing could not have made difference” or “the person could not have offered any defence whatsoever”. In this connection, it is interesting to note that under the English law, it was held few years before that non- compliance with principles of natural justice would make the order null and void and no further inquiry was necessary.” ............. “36. The recent trend, however, is of “prejudice”. Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant.” ................ “39. In B. Karunakar this Court considered several cases and held that it was only if the court/tribunal finds that the furnishing of the report “would have made a difference” to the result in the case that it should set aside the order of punishment. The law laid down in B. Karunakar was reiterated Civil Writ Petition No.13138 of 2001 - 11 - and followed in subsequent cases also (vide State Bank of Patiala v. S.K. Sharma, M.C. Mehta v. Union of India).” ........... “44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show “prejudice”. Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.” 10. By a reference to the decisions of the Hon’ble Supreme Court in B. Karunakar as well as in Haryana Financial Corporation, it leaves us with no doubt that by the only fact that the Enquiry Officer’s report had been furnished to the petitioners only at the time of serving show cause notice proposing punishment, cannot vitiate the ultimate decision taken, so long as the petitioners have not been denied an opportunity to show that the findings of the Enquiry Officer were not correct or that any prejudice had occurred to the petitioners by the fact that they were forwarded only along with the show cause notice for punishment. The ultimate order meting out the punishment to the petitioners had been passed only after receiving the reply to the show cause notices when the Administrator has passed an extensive order dealing with everyone of the objections raised by the petitioners (emphasis). The Civil Writ Petition No.13138 of 2001 - 12 - ultimate order of the Administrator passed on 24.08.2001 could be paraphrased as under:- (a) The complaint of bias by R.K.Prashar, the Enquiry Officer has no basis; (b) The alleged preparation of vouchers and the verbal orders of the General Manager Vinod Sharma had not been established; (c) There was no approval on file regarding the investment of funds with M/s Punwire/PMCL either by the General Manager or by the Managing Director; (d) The resolution passed by the Board of Directors in its meeting held on 14.09.1998 and the advice received from the Investment Cell of the Finance Department, Government of Punjab nowhere authorized any of the petitioners to make investment of funds by preparing vouchers and drafts; (e) The preparation of vouchers and drafts in the absence of specific approval of competent authorities and in the absence of documents, had been made in brazen violation of authority, when instead of putting up the references from the Investment Cell to higher authorities for obtaining orders, had merely prepared vouchers and made possible the withdrawal of large funds. 11. The orders of the Administrator deal with each one of the contentions taken through respective replies of the petitioners and are not merely repetitive of what were stated in the show cause notices proposing the punishment. In other words, the orders of dismissal passed by the impugned proceedings dated 24.08.2001 have been made after due consideration of the responses from the delinquents and they are not the result of an expression of a pre-determined mind. The learned counsel appearing for the petitioners referred to the decisions of this Court in Civil Writ Petition No.6241 of 2005 titled Pawan Kumar Versus State of Haryana and others, dated 25.04.2005 that when a show cause notice Civil Writ Petition No.13138 of 2001 - 13 - was to precede the decision to terminate the services, a decision taken by the Director before the Block Education Officer, who had issued a show cause notice when in clear breach of rules of natural justice. This decision has been rendered before the decision of the Hon’ble Supreme Court in Haryana Financial Corporation referred to above and the latter decision of the Hon’ble Supreme Court squarely governs the issue. The learned counsel also refers to the decision in Ramesh Kumar Versus State of Haryana in Civil Writ Petition No.17710 of 2005, dated 15.05.2006 for the effect to non-furnishing of Enquiry Officer’s report. The said decision also has been rendered in the context of a case where the Enquiry Officer’s report itself had not been sent to the delinquents. After referring to the decision of the Hon’ble Supreme Court in Mohd. Ramzan Khan and B.Karunakar, the Division Bench had quashed the proceedings and directed the disciplinary authority to conduct the enquiry, on the basis of objections received after the Enquiry Officer’s report had been served on the delinquents. The prejudice that was found by the Division Bench was that the Enquiry Officer’s report had not been served at all on the petitioners. In this case along with the show cause notice, the Enquiry Officer’s report had also been sent and the ultimate orders of punishment had been made only after considering the replies of the delinquent to the Enquiry Officer’s report. Even the decision in Ramesh Kumar (supra) must only be understood in the context as to how the Constitution Bench has been understood and explained by the Hon’ble Supreme Court itself in Haryana Financial Corporation. In my view, therefore, no prejudice could be attributed by the fact that the Civil Writ Petition No.13138 of 2001 - 14 - enquiry report had not been served even before the show cause notice to punishment was served. VI. No right of appeal against the decision of Administrator 12. The issue that shall still fall for consideration is whether by the fact that the Registrar had examined the Enquiry Officer’s report and has provisionally concluded an Enquiry Officer’s report was correct, the petitioners were put to any hardship in being denied an opportunity to prefer a statutory appeal to the Registrar as contended by the learned counsel for the petitioners. This argument is made in the context the Punjab State Cooperative Financing Institutions Service (Common Cadre) Rules that against a decision of the Administrative Committee or Board imposing penalty under Rule 1.5, an appeal shall lie to the Registrar, Cooperative Societies. The learned counsel appearing for the respondent points out that the Administrator, who is appointed by the Registrar after the Board of Directors is superseded by virtue of Section 27 of the Punjab Cooperative Societies Act of 1961 is bound to act under the control of the Registrar and carry out such directions as made from time to time give and shall have powers to perform all or any of the functions of the Committee or of any officer of the Society and take all such actions as may be required in the interest of the Society. This power which the Administrator exercises under Section 27(3) of the Punjab Cooperative Societies Act of 1961 enjoins the Administrator to communicate even the report of the Enquiry Officer and by forwarding the report to the Registrar, the Administrator was merely acting under the mandate of law. The Common Cadre Rules which provide for an appeal Civil Writ Petition No.13138 of 2001 - 15 - against the decision of the