IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1039 of 2009 1. The Central Bank Of India, through its Chairman-cum-Managing Director Central Office, Chandermukhi, Nariman Point, Mumbai-400021. 2. The Chairman-cum-Managing Director Central Office, Chandermukhi, Nariman Point, Mumbai-400021. 3. The Chief Vigilance Officer, Central Bank of India, Central Office, Chandermukhi, Nariman Point, Mumbai- 400021. 4. The Zonal Manager, Central Bank of India, Zonal Office, Mauryalok Complex, B-Block, 2nd Floor, Dak Bunglaw Road, Patna-800001. 5. The Assistant General Manager, Central Bank of India, Regional Office, P. B. No. 89, Yatinchandra Road, Lalpur, Ranchi. 6. Shri S. C. Shukla, Assistant General Manager-cum- Disciplinary Authority, Central Bank of India, Regional Office, 73, Hazratganj, Lucknow. 7. The Regional Manager, Central Bank of India, Regional Office, Rameshwar Sinha Path, Bisar Talab, Gaya- 823001. … Respondents-Appellants Versus Byas Muni Ojha, son of late Suraj Nath Ojha, (substituted by his Legal heirs) resident of village and P.O. Bara Singhanpura, District- Buxar. … (Petitioner) Respondent. -------- For the appellants : Mr. Bimlendu Mishra, Adv. For the respondents : Mr. Chittaranjan Sinha, Sr. Adv. : Mr. Dhruba Mukherjee, Adv. ----------- 2. 15.02.2010 I. A. No. 1021 of 2010. Having heard learned counsel for the parties, as also taking into account the facts mentioned in this application this Court would allow the substitution of respondent-writ-petitioner who is said to have died on 8.10.2009 leaving behind his wife, two daughters and one son as legal heirs named in paragraph 6 of this application in place of respondent-writ petitioner in this memo of appeal. I. A. No. 1021 of 2010 is accordingly allowed with 2 a direction to make necessary correction in the cage-column of the memo of appeal. L. P. A. No. 1039 of 2009 On merit we have heard learned counsel for the parties and would find that there would be hardly any scope for us to take a different view to the one taken by the learned Single Judge while allowing the writ petition while quashing the order of punishment of compulsory retirement of the Respondent-writ petitioner specially in view of the changed circumstances where the employee- the original writ petitioner had died during the pendency of this appeal. It is to be noted that original respondent-writ petitioner was subjected to a departmental proceeding by a memo of charge dated 3rd April 2000 containing seven articles of charges. In the departmental proceeding an enquiry report was submitted exonerating the original respondent-writ petitioner in respect of all of them on 14.9.2002 but before a final order could be passed a decision was taken by the appellant-Bank by order dated 4.8.2003 to hold a de novo enquiry. On the basis of the de novo enquiry a fresh enquiry report was recorded exonerating him again for certain charges and the original respondent-writ petitioner was given a copy thereof on 29.1.2004 whereafter the order of 3 punishment dated 16.4.2004 was passed against him inflicting punishment of compulsory retirement taking into account even those charges which were not found to have been proved in the departmental enquiry. The appeal filed by the original respondent-writ petitioner had also been rejected on 22.12.2004 whereafter the writ petition, CWJC No. 5288 of 2005 was filed by him and the same was allowed by this court on 8.1.2008 by quashing the order of punishment as also appellate order and remitting the matter back from the stage of submission of enquiry report. It appears that thereafter the respondent-writ petitioner was given a fresh show-cause notice dated 17.6.2008 stating therein that:- “…I have gone through the findings of IA dtd. 09.10.2003 and do not concur with the findings of IA in respect of following charges: Charge No.1(a), Charge No.2, Charge No.4, Charge No.5 and Charge No.7. My observations in the matter are given hereunder: Charge No.1(a) On perusal of ME-5 which contains various documents pertaining to CC A/C of M/s. Vivek Gramin Sadhan, where 3 cheques and corresponding DD vouchers are found. MW-1 in his deposition on EPP-10 has confirmed the details of these cheques, which are given hereunder for issuing the DDs. (i) Ch. No. 000001 Dated 28.11.97 for Rs. 259332/-. (ii) Ch. No. 000003 Dated 12.12.97 for Rs. 259020/-. (iii) Ch. No. 000005 Dated 07.04.98 for Rs. 150300/-. All the above Cheques were presented for issuing Demand Draft No. 5/05 for Rs. 150000/-, DD No. 1903 for Rs. 258814/- and DD No. 1804 for Rs. 258502/- in favour of Bharat Petroleum Corporation Ltd. 4 A/C. Vishwanath Service Station, Whereas the limit of Rs. 5.00 lacs was sanctioned to M/S. Vivek Gramin Sadhan, who is dealer of products of Hindustan Petroleum Corporation Ltd. The DDs were issued debiting CC A/c. M/s. Vivek Gramin Sadhan. Thus, the transaction indicates that M/s. Vishwanath Service Station was accommodated through CC A/C M/s. Vivek Gramin Sadhan. The CSO knowingly allowed such accommodation, which is the violation of laid down norms of the Bank. Hence, I find Charge No. 1(a) as proved. Charge No.2 (a) As per ME-8, a term loan of Rs. 457500/- was sanctioned to Sri Ripusudan Singh S/O Late Radha Raman Singh for purchase of Hot Mixing Plant on 26.08.98. The equitable mortgage was created on the landed property of Sri Akhileshwar Prasad Singh vide Khata No. 156, Plot No. 485, 499, thana No. 560, Nawadih Road, Aurangabad. As per DE- 9, Equitable Mortgage of property stands in the name of Sri Akhileshwar Pd. Singh and four others. Thus, it is observed that EM was created by Sri Akhileshwar Pd. Singh only while the property was in the name of five persons. As per sanction advice it is found that no liquid security was obtained in this case. (b) The term loan of Rs. 337500/- was sanctioned to Sri Ajitabh Singh on 05.09.98 for purchase of Road roller as per quotation of M/s. Bachhan Construction Equipment, New Delhi dated 09.04.98 for Rs. 450000/-. The equitable mortgage was created by Sri Sidhi Singh (one of the guarantors of Sri Ajitabh Singh) on his landed property From ME-8 it is found that the above term loan was sanctioned without appraisal/processing and economic viability study of the project. IA has found no charges are fully proved, while on account of above I find Charge No.2 as Partially proved. Charge No.4 (a) As per ME-13, C/D A/c. No. 271 of M/s. Agrawala & Co. was given false credit entries on 22.05.98, 17.06.98 for Rs. 100000/- each and on 21.09.98 two entries of Rs. 100000/- 5 each. The credit balance of the a/c was reduced by Rs. 2.00 lacs on 18.09.98 by showing C/B in the ledger (a/c). Thus, Rs. 2.00 lacs was adjusted on 18.09.98, it shows that the correction of two fake entries for entries dated 22.05.98 and 17.06.98 of Rs. 1.00 lac each was made on 18.09.98 by correcting the ledger balance Rs. 380211.45 to Rs. 180211.45. It is found from the statement of A/c (ME-13) that against the fake credit entries the account was debited and withdrawals were allowed as under against the inflated balance: Date Amount Ch. No. Ch. Dated Withdrawn by 1. 25.05.98 80000/- 000438 25.05.98 Cash 2. 18.06.98 100000/- 000441 18.06.98 Cash 3. 21.09.98 368500/- 000446 29.08.98 DD issued Thus, the CSO allowed withdrawal against fake credit. In respect of two fake credit entries of Rs. 1.00 lac each on 21.09.98 (ME-13) the corresponding debit was made on 27.01.99 in C/D A/C M/s. P.K. Enterprises as per ME-14 Hence, I find Charge as proved. (b) The Charge is directly related to Charge No. 4(a) above, in which the two debit entries of Rs. 1.00 lacs each vide Ch. No. 1451 and 1456 dated 04.05.98 and 17.06.98 respectively favouring Agarwala & Co. had been passed/debited on 27.01.99 (ME-14) in the CD A/C P.K.Enterptises but the respective credits were given on 22.05.98 and 17.06.98 respectively in the a/c of M/s Agrawala & CO (ME-13). As Per ME-14, statement of A/c of P. K. Enterprises had no sufficient balance to be debited for Ch. No. 1451 dtd. 4.5.98 and 1456 dated 17.06.98 for Rs. 1.00 lac each. Thus, I find Charge as Proved. (c) The false credit entry of Rs. 20000/- was made in the CD A/c No. 16 of M/s Kishan Pump Centre on 09.06.97 (MEX-15) and a cheque was passed against the enhanced false credit balance of Rs. 21000/- on 10.07.97. Thus, the CSO allowed debit against the fake credit entry. Hence, the Charge is proved. (d) As per MEX-16 the credit balance in the C/D A/c M/s. Sweta Dresses as 14.04.98 is Rs. 1460/- and on 15.04.98 the CSO debited a Cheque for Rs. 80000/- in the a/c. creating a debit 6 balance of Rs. 78540/-. The CSO had not transferred the C/D a/c to CC ledger nor marked the CC limit on the CD ledger. This shows negligence and wrong intention on the part of the CSO. (e) The two fake credit entries of Rs. 63742/- each on 06.07.98 and 13.07.98 in the C/D a/c M/s Appu Traders were made and against the enhanced credit balance debits were allowed showing clean OD in the a/c. (ME-17). The account had been rectified on 19.09.98 and 29.12.98. Thus, the CSO allowed undue favour and TOD to the party, which is against the laid down norms of the Bank. Hence, I find the charge as proved. Charge No.5 The CSO discounted a withdrawal slip for Rs. 2000/- on 24.02.97 drawn on Bikramganj branch (MEX-12). As per deposition of MW-1 on EPP-18, when the payment was not received the CSO had debited his HSS A/c. 778 with Aurangabad branch. The interest of Rs. 131/- has also been paid on 12.12.2003 after a long period by Sri Ojha (DE- 22). Hence the charge is proved. Charge No.7 The CSO allowed sanction of OD limit of Rs. 90000/- to M/s Kitab Ghar on 05.01.96 against security of Rs. 1.00 lacs (ME-10). The account was frequently overdrawn beyond the sufficient security. As per ME-10 debits were allowed to the tune of Rs. 263374/- as on 28.09.98 against the limit of Rs. 90000/- which is against the laid down norms of the Bank. Hence, I find the Charge as Proved. Sri Ojha is hereby advised to submit his written submission on the findings of IA and my observations as above within 7 days of receipt of this letter, failing which it will be construed that he has nothing to submit and accordingly final order will be passed by me.” (underlined by us for emphasis) The original respondent- writ petitioner had thereafter filed his show-cause reply and was also given an 7 opportunity of personal hearing before the Disciplinary Authority on 11.8.2008 whereafter the order of punishment was passed on 9.9.2008 again inflicting the same punishment of compulsory retirement in terms of Regulation 4(h) of Central Bank of India Officer Employees’ (Discipline & Appeal) Regulation, 1976 amended upto date. Further it was held that original respondent- writ petitioner will not get any payment from 16.4.2004 to 7.1.2008 i.e. the period from the date of earlier order of his compulsory retirement till the order of this court in CWJC No. 5288 of 2005. The said order was therefore again assailed in the connected writ application CWJC No. 4627 of 2009 and this court after making a detailed analysis has quashed the order of punishment by holding as follows:- “ …Thus the law of the land is that where the Enquiry Officer is differing from the Disciplinary Authority is to decide about guilt of a person, before he does so he has to make available the report to the delinquent officer and give an opportunity in this regards to defend himself. Then we come to the case of Punjab National Bank and Ors Versus Kunj Behari Misra (supra) where similar regulations were under consideration. In that case the Apex Court clearly held that both before the charges were held to be substituted by the Disciplinary Authority and before Punishment was decided to be imposed, the delinquent is required to be heard. In other words, there have to be notices at two stages before punishment can be imposed. I can do no better then quote from the Judgement of the Apex Court in the case of Law Nigam Versus Chairman and MD, ITI Ltd 8 (Supra) which has referred to the two earlier cases and held as under: “ The conclusion of the High Court was contrary to the constitution view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Therefore, the employee would again have to be served with a notice relating to the punishment proposed.” Here in this case the facts would undisputedly show that not only the Disciplinary Authority prejudged the issue, he issued only one notice holding petitioner guilty and then straightway proceed to impose penalty. This is in gross violation of the procedure established by law in this regard as noted above. Here I may note that even in cases where the Disciplinary Authority choses to accept the adverse enquiry report he, as per the law laid down in the case of Managing Director ECIL (Supra), is required to grant opportunity to the delinquent officer to show that the enquiry report is wrong and only after consideration thereof the punishment imposed after fresh show cause in that regards. Thus there is to be two notices here again. I have thus no hesitation in setting aside the impugned order as contained in Annexure-1 being order dated 06.09.2008 as communicated to the petitioner on 09.09.2008. The result will be that petitioner would be deem not to have been compulsorily retired and will be entitled to all consequential benefits as if he continues in regular service till his superannuation. 9 The writ petition thus stands allowed. “ Mr. Bimlendu Mishra, learned counsel for the appellants-Bank has further contended that learned Single Judge has failed to take into account that when in inter party order, this Court in its order dated 8.1.2008 in C.W.J.C. No. 5288 of 2005 had directed the Bank only to give a show-cause notice disclosing the reasons for difference of opinion with the report of the enquiry officer and that was also done, there would be no occasion to hold the same to be bad and consequently the order passed by the learned singe Judge is not sustainable. In this context, he has also referred to regulations 7(2) and submitted that the same was followed in letter and spirit and accordingly the same required no interference by this Court. Mr. Chittaranjan Sinha, learned senior counsel representing the interesting the respondent original writ petitioner would submit that there was a complete misconception in the mind of the authority of the Bank as with regard to scope of the order of this court dated 8.1.2008 in CWJC No. 5228 of 2005. He would submit that in terms of the aforesaid order of this court as also the judgement of the Apex Court in the case of Punjab National Bank & Ors vs. Kunj Bihari Mishra, reported in 1998 (7) SCC 84, the Bank was first 10 required to give notice and an opportunity to show-cause as to why the findings recorded in favour of the original respondent- writ petitioner by the enquiry officer should not be reversed on the basis of tentative reasons / findings of the Disciplinary Authority. Mr. Sinha, would also submit that as the Disciplinary Authority had however straightway proceeded to hold that respondent- writ petitioner guilty for each of the charge in the show-cause notice itself, which by itself had not only reflected to the closed and prejudiced mind of the Disciplinary Authority but also the violation of the specific directions of this court. He would, therefore submit that the impugned order passed by learned single Judge noticing this aspect of the matter would require no interference in the appeal filed by the Bank. This Court is of the view that either the authorities of the Bank do not understand the law on the subject or are so rigid in their approach and pre-occupied with their notion that whatever charges are framed by them they are so sacrosanct that they must be always deemed to be proved against the delinquent employee of the Bank. The findings recorded by the Enquiry Officer exonerating an employee in a departmental proceeding is definitely not final and would never be binding on the Disciplinary Authority but then if such 11 exonerating finding is recorded by the Enquiry Officer and the Disciplinary Authority differs with the same he will have to record his tentative reasons for such disagreement and convey the same to the delinquent for the purpose of filing his show- cause reply as to why the findings recorded in his favour be not displaced for the reasons mentioned in the show-cause notice by Disciplinary Authority. That is how this Court even in the earlier round of litigation had clarified the scope of judgment of the Apex Court in the case of Kunj Bihari Mishra (supra). In fact a similar argument made before us was also advanced by Mr. Mishra, who had then also appeared in CWJC No. 5288 of 2005 by placing reliance on regulation 7(2). On that occasion this court had explained the scope of regulation 7(2) and (3) and had held that :- “…..From a bare perusal of the aforementioned portion of the Regulation it is self evident that they prescribe the procedure to be taken in respect of disciplinary proceeding upon receipt of enquiry report in course of passing a final order. These Regulations in fact do not envisage as to what is to be done in the event the findings in the enquiry report favour of the delinquent is sought to be disagreed by the disciplinary authority. In fact they do not rule out expressly issuance of notice and/or opportunity of hearing in case Disciplinary Authority disagrees with the finding of the Enquiry Officer on any article of charge. The non-issuance of notice and/or non-affording of an opportunity of hearing in such case where the Enquiry Officer exonerated delinquent 12 employee by recorded finding in his favour ,in fact itself amounts to breach of principle of natural justice because Disciplinary Authority in such case would really take delinquent by surprise by holding him guilty without telling him that he had intended to differ with the finding of the Enquiry Officer and /or was going to punish him even in respect of those charges for which he had been exonerated by the Enquiry Officer….” It was only thereafter this Court had also gone into the ratio of the judgment of Apex Court in the case of Kunj Bihari Mishra (supra) by holding that “…..It is in this background that one has to also appreciate the binding precedent of Kunj Bihari Mishra (supra) where the Supreme Court has held that the principle of natural justice has to be invariably followed and an opportunity by way of notice/hearing has to be given in all such cases where the disciplinary authority chooses to differ with the findings of Enquiry Officer and proposes to pass an order of punishment. Thus, in my considered opinion even when Regulation 7(3) does not provide for issuance of notice to delinquent in case Disciplinary Authority chooses to differ with the finding of the Enquiry Officer for the purpose of holding charge to have been proved for the purpose of inflicting punishment, such provision of notice and/or opportunity of hearing has to be read in the aforementioned Regulation. In that view of the matter, the submission on behalf of the counsel for the Bank that the impugned order is justified in terms of the Regulations 7 (2) and (3) is fit to be rejected….” It is really unfortunate that Bank having been given sufficient leverage, despite the fact that the original respondent- writ petitioner suffering from last eight years, had still remitted 13 the matter to the Bank for proceeding from the stage of submission of enquiry report by giving following directions: “……..Consequently the order of punishment dated 16.4.2004 as well as the appellate order dated 22.12.2004 are held to be bad and are hereby quashed. As a result of quashing of the two impugned orders the petitioner shall be reinstated in service and will be required to be paid his salary from the date of this order i.e.8.1.2008. The Disciplinary Authority will thereafter examine as to whether there is any necessity to inflict any punishment on the petitioner in view of the fact there are material on record to show that the Competent Authority of the Bank had initially decided to inflict a minor punishment on those charges which have been found only partly proved by the Enquiry Officer being charge no. 1(b),2(b),3,4, & 5 . The disciplinary authority in fact is said to have inflicted a major punishment by way of compulsory retirement only on the dictate of vigilance Wing of the Bank. However it is well settled by now in a series of judgments of the Apex Court that the quantum of punishment must be commensurate to the nature of misconduct and thus the disciplinary authority must take his own independent decision in this regard. If however, the Competent Authority of the Bank decides to inflict punishment on the petitioner he will be required to issue first a show cause notice giving grounds and materials on the basis of which he intends to differ with the finding of the Enquiry Officer. It is made clear that no new material will however be taken into consideration by the Disciplinary Authority. In any event the petitioner must be given an opportunity to show cause as to why finding recorded in his favour by the Enquiry Officer should not be reversed on the basis of tentative reasons/finding of the Disciplinary Authority. It is only after the petitioner’s explanation is examined , that the authority will proceed and pass an order in terms of directions in the judgment of the Apex court in case of Kunj Bihari Mishra (supra).The Disciplinary Authority thus is required to proceed from the stage of submission of enquiry 14 report i.e. stage on which such proceeding was lying on 22.8.03.Even in case, Disciplinary Authority decides to proceed against the petitioner by way of inflicting minor punishment even then the petitioner will be given a show cause notice indicating the grounds on the basis of which such minor punishment is sought to be inflicted. Till a final decision in the disciplinary proceeding is taken the petitioner will continue to get salary from the date of this order dated 8.1.2008 but the decision on his arrears of salary for the period l6.4.04 to 7.1.08 during which he was out of service on account of impugned orders, shall await the result of the decision in the Disciplinary proceedings…..” If the Bank therefore has either purposely or even otherwise not chosen to follow the specific directions of this court in the order dated 8.1.2008 in CWJC No. 5288 of 2005 and has acted contrary to the directions given by the Apex Court in the case of Kunj Bihari Mishra (supra), it has to thank its own stars. This Court, therefore, is fully satisfied that the learned single Judge has rightly set aside the impugned order as it was based on a pre-conceived notion of the authorities of the Bank. In the normal circumstances, probably the Bank could have been given yet another opportunity to proceed in the terms of judgment of the Apex Court in the case of Kunj Bihari Mishra (supra) and the directions of this Court in the order dated 8.1.2008 in CWJC No. 5288 of 2005, but now when original respondent- writ petitioner has bid bye to this world 15 leaving his dependent family members including substituted writ petitioners with sufficient agonies, we