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2020 Supreme(Cal) 288
IN THE HIGH COURT OF CALCUTTA
Amrita Sinha, J.
Swapan Kumar Saha - Appellant
Versus
Bangiya Gramin Vikash Bank And Others - Respondents
Writ Petition No. 15456 (W) of 2016
Decided On : 13-05-2020
Debabrata Saha Roy, Advocate, Indranath Mitra, Advocate, Neil Basu, Advocate, Soumya Majumder, Advocate, Victor Chatterjee, Advocate
The court upheld the penalty of removal from service and ruled that the Bank was entitled to forfeit the gratuity as a consequence of the penalty, irrespective of whether the Bank sustained any financial loss. The court also held that the service regulation permitted continuation of the disciplinary proceeding even after retirement.
Headnote:
Penalty - Disciplinary Proceedings - BGVB Service Regulations, 2010 - Regulation 2(g), 39, 45(3), 45(4), 45(4), 49, 50, 72 - The court upheld the penalty of removal from service imposed on a Scale-II officer by the General Manager, who was the designated disciplinary authority at the time of the final order. The court found that the petitioner was made aware of the substituted disciplinary and appellate authority and had the opportunity to defend himself. The court also held that the Bank was entitled to forfeit the gratuity as a consequence of the penalty of removal from service, irrespective of whether the Bank sustained any financial loss. The court further ruled that the petitioner's plea that the penalty of removal from service cannot be imposed on a superannuated officer was not valid, as the service regulation permitted continuation of the disciplinary proceeding even after retirement.
Fact of the Case:
The petitioner, a Scale-II officer of BGVB, was penalized with removal from service for borrowing money in his official capacity and failing to repay it, as well as for unauthorized use of official resources for personal gain. The petitioner challenged the penalty, alleging violation of natural justice and lack of jurisdiction of the disciplinary authority.
Finding of the Court:
The court found that the penalty of removal from service imposed by the General Manager was valid and upheld the penalty. The court also granted the petitioner the opportunity to avail the statutory remedy by preferring an appeal before the appellate authority.
Issues: Violation of natural justice, lack of jurisdiction of the disciplinary authority, forfeiture of gratuity, imposition of penalty on a superannuated officer
Ratio Decidendi: The court ruled that the petitioner was made aware of the substituted disciplinary and appellate authority and had the opportunity to defend himself. The court also held that the Bank was entitled to forfeit the gratuity as a consequence of the penalty of removal from service, irrespective of whether the Bank sustained any financial loss. The court further ruled that the petitioner's plea that the penalty of removal from service cannot be imposed on a superannuated officer was not valid, as the service regulation permitted continuation of the disciplinary proceeding even after retirement.
Final Decision: The court upheld the penalty of removal from service imposed on the petitioner and granted the petitioner the opportunity to avail the statutory remedy by preferring an appeal before the appellate authority.
JUDGMENT
Amrita Sinha, J. - The petitioner was a Scale -II officer (Branch Manager) of the Bangiya Gramin Vikash Bank (BGVB for short). He is aggrieved by the penalty imposed upon him by the disciplinary authority vide order dated 5th May, 2016 removing him from service and for non payment of his retiral dues.
2. By a notice dated 6th April, 2010 the petitioner was directed to show cause why disciplinary action would not be initiated against him for violation of the Service Regulations. The petitioner failed to reply to the said show cause. A further letter was issued to him on 1st May, 2010 but the petitioner did not comply with the same. A reminder dated 14th July, 2010 was issued which was also not responded to by the petitioner.
3. The Bank concluded that the petitioner did not have any defence and a charge sheet was issued to him on 26th October, 2010 by the Chairman of the Bank directing him to reply to the allegations made therein within a period of ten days. The allegation was that in July, 2008 the petitioner borrowed a sum of Rs. 4,33,000/- in the capacity of Branch Manager from a borrower of that branch and assured him to return the said money within a month. In spite of repeated persuasions, he failed to repay the borrowed amount.
4. It was further alleged that on 12th January, 2010 he used the official pad, signature and official seal by abusing his official capacity and gave an unauthorised guarantee for his personal gain. According to BGVB the same amounted to gross misconduct.
5. Due to the misdeeds of the petitioner the Bank suffered a decree from the Consumer Disputes Redressal Forum, Naida in a proceeding filed by one of the customers of BGVB and the petitioner was directed to make good the loss of Rs. 1,08,000/- (one lac eight thousand only) that was suffered by the Bank.
6. By a letter dated 26th August, 2011 the prayer of the petitioner to refund the aforesaid sum of Rs. 1,08,000/- only in six equal monthly instalments, each of Rs. 18,000/- only was allowed by the Senior Manager of the Bank. The aforesaid amount of Rs. 18,000/- only was deducted from the salary of the petitioner on and from September, 2011.
7. Thereafter, several irregularities of the petitioner were detected and a fresh charge sheet was issued to the petitioner on 8th September, 2011. The petitioner was directed to reply within ten days. Not being satisfied with the reply forwarded by the petitioner a departmental proceeding was initiated against him. A Presenting Officer and an Inquiry Officer was engaged.
8. The petitioner was granted the opportunity to avail the assistance of a defence representative. Though the petitioner proposed the name of his defence representative but neither he nor his defence representative participated in the enquiry proceeding. An enquiry report was submitted by the Inquiry Officer holding the petitioner guilty. The enquiry proceeding and the enquiry report was duly forwarded to the petitioner for submission of his reply. The petitioner objected to the said enquiry report as the same was forwarded to him by the General Manager in the capacity of the disciplinary authority.
9. According to the petitioner on 3rd May, 2013 the General Manager was not competent to act as the disciplinary authority in case of the petitioner. As per law, on 3rd May, 2013 the Chairman was the competent disciplinary authority. The General Manager being junior to the Chairman was not empowered to act as the disciplinary authority. The petitioner raised an objection that as the General Manager was an officer subordinate to his appointing authority accordingly he was not entitled to act as his disciplinary authority. The petitioner prayed for exoneration from the charges levelled against him.
10. The petitioner retired from service on attaining his normal age of superannuation on 28th February, 2015. On his retirement pension has been paid to him, but his other retiral dues have been withheld.
11. The petitioner challenged the issuance
