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2003 Supreme(Guj) 673
Gujarat High Court
Judgename :P.B.MAJMUDAR
UTTAMCHAND J.SHAH - Appellant
Versus
DENA BANK - Respondent
S.C.A. 2370 of 1984
Decided On : 12/09/2003
Headnote:(a) Service and Employment - Departmental Enquiry - Penalty - Misconduct - It is not in dispute that petitioner had acted beyond his powers in the matter of disbursement of the loans - It is misconduct according to the Regulations of the Bank - Finding is based on evidence and disciplinary authority has committed no mistake in accepting the said finding and imposing penalty of withholding one increment without cumulative effect - Bank has taken a charitable view in imposing the said penalty, therefore, no interference is called for - Dena Bank Officers (Service) Regulations, 1976 - Regulations 7(3) & 17.
The finding of the Enquiry Officer is, therefore, based on the evidence on record and, as such, it is not in dispute that the petitioner had acted beyond his powers in the matter of disbursement of the loans. Whether the bank has suffered a financial loss or not, is a different matter altogether, but, it is certain that the petitioner had not acted vigilantly in connection with the sanction and disbursement of the loans. The petitioner, who was serving as a Branch Manger, was supposed to know the procedure and his own jurisdictional limits, upto which he can sanction loans.
The Disciplinary Authority has agreed with the said finding and has taken a very liberal view in the matter, by imposing a penalty of withholding of one annual increment of pay without cumulative effect. The Appellate Authority has also considered the said aspect, which Court has referred earlier in this judgment. Considering the aforesaid aspect of the matter, and considering the finding of the Enquiry Officer, as well as considering the order of the appellate authority, in Court view, it cannot be said that the petitioner has not committed any misconduct or that it is not a case of misconduct as per the Regulations of the Bank. The case of the petitioner squarely falls within the ambit of committing an act, prejudicial to the interest of the bank, exposing or likely to expose the Bank to the risk of heavy financial loss. The contention of Mr. Raval that this is not a case of `misconduct, as defined under the Regulations of the Bank, cannot be believed.
[Para 9]
Similarly, the argument that this is a case of No Evidence, cannot be believed. As such, it is not in dispute that the petitioner had sanctioned the loan beyond his powers. Simply because thereafter, he had sought some clarification can never be said to be a ground available to the petitioner, by which he can come out from the charge of so-called negligence, while acting as a responsible Officer of the Bank. In a departmental enquiry, even if there is some evidence on record, the order of the disciplinary authority cannot be set aside by the Court. In a given case, even if two views are possible, that is also no ground for setting at naught the decision of the Disciplinary Authority. However, in the instant case, the charge levelled against the petitioner is appropriately proved by the evidence on record.
[Para 10]
So far as the facts of the present case are concerned, Court has already dealt with the same and Court has also dealt with the finding of the Enquiry Officer. Considering the nature of misconduct alleged against the petitioner and considering the report of the Enquiry Officer, which is, ultimately, accepted by the Disciplinary Authority, and considering the reasoning of the Appellate Authority, in Courts view, it cannot be said that the petitioner has not committed any act of misconduct as per the disciplinary Rules of the Bank, nor can it be said that it is a case of No Evidence or that the finding of the Enquiry Officer is perverse in any manner. As pointed out earlier, the petitioner had sanctioned the loan, which was beyond his power. It is a different thing that the Bank was able to recover the entire amount of loan, but, because of the aforesaid rash act of the petitioner, the respondent-Bank was certainly exposed to the risk of heavy financial loss. From the facts of the case, it is clear that there was likelihood or apprehension of financial loss to the bank. As a responsible Bank Officer, it was the duty of the petitioner to act with caution and care, especially when he was dealing with the public money. The Court, therefore, does not find any infirmity in the decision of the Disciplinary Authority in any manner.
[Para 11]
(b) Constitution of India, 1950 - Art. 226 - Penalty - Double Jeopardy - Punishment of withholding of promotions and also of one increment does not constitute double jeopardy because order of penalty imposed does not order withholding of promotion - It is in fact consequence of penalty of withholding of one increment.
As regards the contention that the punishment of withholding of promotion as well as inflicting of punishment of withholding of one increment would be a double jeopardy is concerned, Court does not find any substance in the same. There is no order of penalty imposed against the petitioner, by which his promotion is withheld. As a matter of fact, it is a consequence of imposing a penalty of withholding of one increment, which disentitled the petitioner for promotion as per the Regulations.
[Para 12]
(c) Dena Bank Officers (Service) Regulations, 1976 - Regulation 17 - Promotion Policy framed under - Paragraphs 3.8 & 3.9 - Promotion - Admissibility - Petitioner is not entitled to promotion during the period he undergoes punishment - When disciplinary proceeding was pending he was entitled to take part in promotion as in the case, but he cannot claim benefit of promotion if found guilty - His case is required to be reconsidered as and when DPC meets and that too after the period of one year - No fault as such committed by respondent Bank in not promoting petitioner.
As per the Paragraph 3.8, the petitioner, naturally, is not entitled to promotion during the period he undergoes the punishment. This is not a case, wherein the petitioner is totally exonerated in the disciplinary action or subjected to a penalty of censure or caution. In such eventuality, the petitioner was required to be promoted from the date on which he was found fit for promotion by giving retrospective effect. When the Disciplinary Proceedings were pending against the delinquent, such Officer is allowed to take part in the promotion process, with a view to seeing that in case he is exonerated or subjected to some caution or censure, naturally, he can be given the benefit of such promotion and, therefore, for that reason, if he is allowed to participate in the promotion process, he cannot be given such benefit even if, ultimately, he is found guilty and is subjected to any penalty. As per Paragraph 3.9, if the petitioner was, ultimately, exonerated, naturally, he could have been given promotion from the date on which the promotion would have been otherwise effected but for the disciplinary action. Simply because his promotion was withheld in view of the departmental proceedings, it cannot be said that the petitioner was subjected to any prejudicial treatment. In view of the penalty imposed on him, naturally, he was not entitled to such promotion during the period he undergoes the penalty. Considering the said aspect, since the petitioner is not exonerated in the enquiry, nor is he subjected to any penalty, like censure or caution, he cannot get benefit of promotion with retrospective effect, i.e., from the date on which he was found fit by the D.P.C. As the said process was undertaken at the time when the disciplinary proceedings were already pending, in view of the aforesaid provisions and in view of the penalty of withholding of one increment for one year, the case of the petitioner is required to be reconsidered as and when D.P.C. meets, wherein the petitioner can again take part in promotion process, after undergoing the said penalty of withholding of increment for a period of one year and not before that. In view of the aforesaid promotion policy of the Bank, Court does not find any substance in the argument of Advocate that the petitioner was required to be promoted with retrospective effect, on the expiry of the punishment imposed on him.
[Para 13]
( 1 ) IN the present petition, which is pending before this Court practically since two decades, the challenge is against the order passed by the Disciplinary Authority of the respondent-Bank against the petitioner, imposing a penalty of withholding of one increment without cumulative effect. The petitioner has also challenged the action of the Management in not giving him benefit of promotion with retrospective effect, i. e. with effect from 1st June, 1982. The petitioner has also challenged paragraphs 3. 8 and 3. 9 of the Promotion Policy framed by the Bank, under Regulation 17 of the Dena Bank Officers (Service) Regulations, 1976, on the ground that the same is unconstitutional and arbitrary. The petitioner has also challenged the finding of the Enquiry Officer, by which the Enquiry Officer found that the petitioner has committed misconduct.
( 2 ) THE facts leading to the present petition are as under :-AT the relevant time, the petitioner was serving as Branch Manager of Dena Bank at Sihori, District : Banaskantha. The petitioner was subjected to charge sheet dated 10th April, 1981. As per the charge sheet, following charges were levelled against the petitioner :- (i) Lack of honesty, integrity, diligence in discharge of duties, exposing or likely to expose the Bank to the risk of heavy financial loss, and / or (ii) committing act/s prejudicial to the interest of the Bank exposing or likely to expose the Bank to the risk of heavy financial loss. The allegation against the petitioner is that while he was working as Branch Manager, at Sihori Branch during the year 1978, he sanctioned term loans for purchasing second hand truck/s as well as for the purchase of diesel jeeps. The petitioner has sanctioned such loans unauthorisedly, violating the discretionary powers vested in him as Branch Manager c Grade Branch. Particulars of the aforesaid loans sanctioned by the petitioner are annexed along with the petition at Annexure a to the petition, at page 32. The respondent-bank, thereafter, appointed the Enquiry Officer and regular departmental enquiry was conducted against the petitioner. After considering the say of the petitioner and after considering the evidence on record, the Enquiry Officer came to the conclusion that the petitioner has exceeded the authority vested in him and moreover, his explanation, as offered in the arguments, to have been confused with the writing of the Discretionary Powers Booklet, as discussed in the report, would mean his deficiency in understanding, which is not expected of a Branch Manager. As per the finding of the Enquiry Officer, which is at page 45 in the compilation, the Enquiry Officer found that the charges levelled against the petitioner do not establish lack of honesty or integrity on the part of the petitioner, but it can be summarised that the petitioner was not diligent in discharge of his duties and had the loan amounts been not repaid, the bank would have been exposed to financial loss, but, since the advances are recovered in full, the Bank is not put to any financial loss, and, as per the opinion of the Enquiry Officer, the charges levelled against the petitioner be viewed liberally.
( 3 ) AS stated earlier, the enquiry was initiated against the petitioner in connection with his duty as a Branch Manager and he had sanctioned certain loans unauthorisedly. After considering various documents and after considering the evidence of the witnesses, the Enquiry Officer has specifically come to the conclusion that the delinquent could not establish the fact that he was vested with discretionary powers for sanction of loan to the parties mentioned in the chargesheet issued to him, though, of course, the Enquiry Officer came to the conclusion that all the loan amounts, referred to in the chargesheet, have been fully repaid.
( 4 ) DURING the departmental proceedings, the petitioner took the defence that, by oversight, he had sanctioned the said loan and that there was no mens
