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Any act of the Respondend contrary to the procedure of law and prejudice to any party is liable tobe setaside

Diganta Paul ,
  12 June 2012       Share Bookmark

Court :
HIGH COURT OF DELHI
Brief :
The brief facts of the case are that the petitioner joined the services of the respondent bank as a clerk in December, 1969 and has arisen upto the position of Chief Manager of the bank. On 30.01.2007, respondent had served memorandum of even date signed by respondent No.2 and also served charge-sheet on the same date. However, same was received by the petitioner on 17.02.2007 alongwith the documents
Citation :
SP SHARMA ..... Petitioner Through: Mr.Barun Kumar Sinha & Ms.Pratibha Sinha, Advs. Versus STATE BANK OF BIKANER AND JAIPUR..... Respondent Through : Ms.Kittu Bajaj, Adv.

 

* IN THE HIGH COURT OF DELHI AT New Delhi

% Judgment delivered on: 14th May, 2012

+ W.P.(C) No.13764/2009

SP SHARMA ..... Petitioner

Through: Mr.Barun Kumar Sinha & Ms.Pratibha Sinha, Advs.

Versus

STATE BANK OF BIKANER AND JAIPUR..... Respondent

Through : Ms.Kittu Bajaj, Adv.

CORAM:

HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. In the order dated 25.04.2012, it was recorded by this Court as under:- “1. Vide instant petition, the petitioner has sought to issue writ of certiorari quashing the impugned orders dated 06.08.2008 whereby the disciplinary authority dismissed the petitioner from the services of the bank.

2. Also sought quashing of the order dated 30.07.2009 passed by the appellate authority whereby the appeal of the petitioner was dismissed.

3. The brief facts of the case are that the petitioner joined the services of the respondent bank as a clerk in December, 1969 and has arisen upto the position of Chief Manager of the bank.

4. On 30.01.2007, respondent had served memorandum of even date signed by respondent No.2 and also served charge-sheet on the same date. However, same was received by the petitioner on 17.02.2007 alongwith the documents.

5. Vide order dated 22.02.2007, respondent bank appointed Sh.S.S.Bohra, Assistant General Manager, Staff Training Centre, Bikaner as Inquiring Authority to start inquiry proceedings in both the charge-sheets pertaining to Chandni Chowk, Delhi and Belaganj, Agra, UP.

6. Thereafter on 15.03.2007, the Inquiry Officer started inquiry in the allegations made against the petitioner. After the full inquiry, the Inquiry Officer submitted his report to respondent No.2 vide letter dated 12.10.2007 alongwith the inquiry proceedings. The petitioner made detailed submissions to respondent No.2 (Disciplinary Authority) on 31.11.2007.

7. Vide impugned order dated 06.08.2008, the petitioner was dismissed. On 20.09.2008, the petitioner preferred statutory appeal, which was dismissed vide order dated 30.07.2009.

8. Being aggrieved, the petitioner has filed the present petition.

9. Mr.B.K. Sinha, learned counsel appearing on behalf petitioner submitted that the allegations against the petitioner as enumerated in the dismissal order dated 06.08.2008 are as under:- 3. The lapses found proved against you indicate that while working as Branch Manager at the Bank’s Belanganj Branch Agra during the period from 20.05.2002 to 22.05.2004, you committed serious acts of misconduct in loan and advances in as much as you:

(i) did not conduct purposeful pre-sanction inspections of the immovable properties which were proposed to be equitably mortgaged as security of the loans.

(ii) sanctioned on 11.03.2003 a Housing Loan for ` 8.00Lacs to Sh.Rakesh Kumar Sharma for purchase of a ready-built house but did not conduct purposeful pre-sanction inspection and failed to verify the antecedents of the borrower.

(iii) sanctioned on 01.03.2004 and 10.02.2004, two Mortgage Loans for `4.90Lacs & for ` 10.00Lacs to (i) Sh.Radhey Shyam, and (ii) Sh.Gajender Pal Sharma, respectively but falsely recorded the outcome of pre-sanction inspections in the Inspection Register that you had inspected the houses of the above mentioned borrowers.

(iv) sanctioned and disbursed Mortgage Loans to the various borrowers without obtaining Search-cum-Non-Encumbrance Certificates from an Advocate on the Bank’s approved panel.

(v) did not assess independently the value of the immovable properties mortgaged in various Mortgage Loan A/cs, by conducting personal inspections and confirming the same from the market sources before their sanction and disbursement. It was later revealed that the value of the properties was inflated by the Valuers in their Valuation Reports.

(vi) sanctioned and disbursed various loans but did not obtain complete chain of the Title Deeds from the owners of the immovable properties at the time of creating equitable mortgage.

(vii) sanctioned and disbursed Housing Loans to various borrowers but did not obtain completion letter/certificates from the concerned borrowers/ engineers regarding completion of these Housing Projects from the borrowers. Subsequently, it was found that these projects were incomplete.

(viii) sanctioned and disbursed Housing/Mortgage Loans to various borrowers but did not obtain the required number of Post- Dated Cheques (PDCs) from the concerned borrowers. You obtained only 8 to 10 pre-signed undated blank cheques from these borrowers.

(ix) unauthorisedly parted with a cheque No.387241, which was deposited by one of the co-borrowers alongwith 9 other pre-signed undated blank cheques in the Housing Loan Account No.51047371201 of Shri Naresh Mudgal and Smt.Anit Mudgal.

(x) sanctioned and disbursed Consumer Loans to various borrowers for purchase of Computers, without ensuring end-use of the Bank’s fund

(xi) unauthorisedly entrused the work of Dy Manager (Accounts) to Sh.Dhanna Ram who was already designated as Dy. Manager (P) at the branch of his Controlling Authority.

(xii) continued to sanction and disburse housing loans to various borrowers. You sanctioned and disbursed the same even though the Controlling Authority refrained you from making further finance under the housing loan scheme till rectification of the irregularities pointed out in the Special Audit Report dated 12.12.2003.

(xiii)On account of gross violation of the prescribed instructions as mentioned in point No.(i) to (xii) above, 13 accounts have became Non-Performing Assets and have become difficult for recovery. Thus, you exposed the bank to a likely financial loss of `59,24,245.88/-, as on 31.12.2006.”

10. Learned counsel further submitted that the Deputy General Manager of the respondent Bank sent a communication to the petitioner which was prepared on 09.02.2007, however dispatched on 17.02.2007, inter alia, reads as under:-

“Disciplinary Action against you We enclose copies of documents listed in the Memorandum of Charges bearing No.Satarkata/ Praka/2/496/2581 dated 29.01.2007.The Memorandum referred to above has already been delivered to you.”

11. He further submitted that the aforesaid letter though prepared on 09.02.2007, but dispatched on 17.02.2007 whereas the petitioner already superannuated on 31.01.2007. The show cause notice, dated 29.01.2007 served upon petitioner and directed to file the reply the same within ten days. Thereafter, reply on charge served on 17.02.2007, the same is evident from the letter dated 9/17.02.2007, mentioned above.

12. Learned counsel, appearing on behalf of petitioner, asserted that once the bank officer has retired from the services of the bank, the departmental inquiry cannot be initiated unless he is given notice to this effect before his retirement under regulation No.19(2) of the State Bank of Bikaner and Jaipur Bank (Officers) Regulation, 1979.

13. Learned counsel has drawn the attention of this Court to the internal noting of the bank dated 24.01.2007, which he obtained through RTI; however, same has not been communicated to the petitioner. The case of the bank is that vide communication dated 24.01.2007, it is established the petitioner committed some lapses while in service, thereafter, finally on 31.01.2007 on the date of superannuation, he was served with memorandum and the charge-sheet alongwith the documents relied upon by the bank.

14. Learned counsel has drawn the attention of this Court to page No.206, of the petition, which is the copy of the office note prepared by Sh.R.S.Rathore, Assistant General Manager (Vigilance) on 29.01.2007 sent through Chief Vigilance Officer to the Disciplinary Authority i.e. Chief General Manager. Learned counsel has pointed that if this note was prepared on 29.01.2007 by Assistant General Manager (Vigilance) then how it reaches on 27.01.20074 i.e. two days even prior to date of noting and same date i.e. 29.01.2007, it reaches to the Disciplinary Authority. Thus, it not only create doubt but also proves the manipulations made by the respondent.

15. Learned counsel further submits that nothing was communicated to the petitioner till he retired and only thereafter, they cooked up the story, prepared documents and served charge-sheet upon him after his superannuation, which is against the settled bank regulations.

16. Learned counsel submits that rule 19(2) of the State Bank of Bikaner and Jaipur Bank (Officers) Regulation, 1979, protects the petitioner and thereafter all the proceedings carried by the bank is totally illegal ab-initio. Therefore, consequent action i.e. dismissal from the service is also bad in law.

17. On merits, he further submitted that even the charges against the petitioner have been partially proved and the appellate authority in its order dated 30.07.2009 modified the charges against the petitioner; despite dismissed the appeal preferred by petitioner.

18. Learned counsel submitted that the charges against the petitioner are vague and imagination of the respondent and based on total manipulations. The charges must be clear and specific and if there is any violation of any law or rule, the department should clearly point out as to which of the rule has been violated.

19. Lastly, learned counsel has argued that even the quantum of punishment is shocking and excessive. Therefore, instant petition may be allowed.”

2. On the other hand, learned counsel for respondent referred to page No.122 of the present petition and submitted that the petitioner himself admitted in his communication dated 20.09.2008 made to appellate authority that the charge-sheet was served upon him only one hour before his retirement on reaching the age of the superannuation and the order of dismissal came after 20 months of his retirement.

3. However, I find in the communication dated 09/17.02.2007 it is stated that ‘find annexed the copyof the documents listed in the memorandum of charges bearing No.Satarkata/Praka/2/496/2581 dated 29.01.2007. The memorandum referred to above, has been delivered to him.

4. Therefore, learned counsel submits that the charge-sheet alongwith the documents, the petitioner received on the date of his superannuation; however, the list of witnesses plus some other documents, he received subsequently, vide communication dated 9.17.02.2007.

5. She further submitted that the Assistant General Manager (Vigilance) sent communication on 27.01.2007 itself & not on 29.01.2007. Therefore, there is no infirmity and it is not prepared in the back date.

6. I have heard both learned counsels appearing on behalf of the parties.

7. It is emerged from the petition and submissions of the learned counsels for parties that the communication dated 27.01.2007 in fact signed on 29.01.2007 by the Assistant General Manager (Vigilance) and sent through Chief Vigilance Officer to Chief General Manager. The signature of the Chief General Manager indicates that the said communication received on 29.01.2007 and the Chief Vigilance Officer received on 27.01.2007. Therefore, it is clarified by the communication dated 27.01.2007 by Deputy General Manager (Inspector) to Deputy General Manager, State Bank of Bikaner and Jaipur, Connaught Circus, New Delhi, as under:-

“The Dy. General Manager, State Bank of Bikaner & Jaipur, Connaught Circus Branch, New Delhi Insp/ Date : 27.01.2007 Dear Sir, STAFF SUPERVISING : SHRI S.P.SHARMA, SMGS-IV, P.F. A/C NO.4320: REITREMENT UNDER REGULATION 19(2) OF STATE BANK OF BIKANER AND JAIPUR (OFFICERS’) SERVICE REGULATIONS, 1979.

We enclose herewith a copy of the Personnel Administration Department letter No.PER/RET/ 4709 dated 27th January 2007 along with its enclosures contents of which are self-explanatory. Please arrange in initiate all necessary steps as advised in the said letter immediately under confirmation to us and also to Personnel Administration Department Head Office Jaipur. Meanwhile, please acknowledge receipt of this letter. Yours faithfully, (A.K.Gupta) Dy Gneral Manager (Inspection) Encl:

As above.”

 8. In the context of above letter, it is also clarified at page Nos.157 and 158 as under:-

10.CLEARANCE IN RESPECT OF DISCIPLINARY ACTION INCLUDING THOSE INVOLVING VIGILANCE ANGEL (PENDING/ CONTEMPLATED) INFORMATION UNDER THIS COLUMN SHOULD BE FURNISHED ON THE INFORMATION SOUGHT FROM DPD/VIGLANCE DEPARTMENT, HEAD OFFICE, JAIPUR Vigilance Deptt. – Vigilance Deptt. H.O. Jaipur vide letter No.Satarkata/ Praka/3/19/2404 dated 08.01.2007 has advised that Sh.S.P.Sharma has been found responsible for the alleged lapses committed by him in sanction and conduct of advances while functioning as Chief Manager, Belaganj, Agra branch ass per investigation conducted by them. The investigation report is being submitted by them to the GM (O) Sectt and Delhi Zone for further action (letter enclosed).

Disciplinary Procedure Deptt – No case of disciplinary action is pending / contemplated against Sh.S.P. Sharma as on date with D.P. Deptt vide their enclosed letter No.DPD/HO/2/1830 dated 09.01.2007.

REPORT FROM THE EARLIER ZONE/ DEPARTMENT FOR THE PERIOD OF LAST FIVE YERAS OR BETWEEN THE DATE OF LAST PROMOTION & DATE OF RETIREMENT. FURTHER IN RESPECT OF OFFICERS IN SMGS-IV AND ABVOE THE CLEARANCE SHOULD ALSOBE SOUGHT FROM DGM (CREDIT) & DGM (INSPECTION) AND CONSOLIDATED POSITION BE FURNISHED HEREUNDER

GM (O) Sectt and Delhi Zone have advised that an investigation against Shri S.P.Sharma is under process for the irregularities in sanction and conduct of loans at Belaganj, Agra branch and disciplinary action is also pending against Shri Sharma for the irregularities at Chandni Chowk, Delhi branch GM (O) Sectt letter No.GMOS / ADV dated 08.01.2007 and Delhi Zone letter No.DGM/DZ dated 08.01.2007 are enclosed. No case of disciplinary action is pending / contemplated against Sh.S.P. Sharma as advised by Jaipur Zone, Credit Deptt and Inspection Deptt. (List of letters enclosed.)

9. Learned counsel for respondent has raised the objection that the petitioner did not submit this case before the disciplinary authority or the appellate authority and same is causing any prejudice to him.

10. The fact remains that if any of the acts done by the respondent is contrary to the procedure and law, that can be raised at any stage. It has to be considered by the Court whether same causes any prejudice to any party or not.

11. From the above discussion, it is established that the respondent did not issue the charge-sheet with all relevant documents required under the law on the date of his retirement, therefore, all the action taken by respondent thereto are hereby set aside.

12. Consequently, the order dated 06.082008 and 30.07.2009 passed by the disciplinary authority and appellate authority respectively against the petitioner are hereby set side. All the monetary benefits in favour of petitioner shall follow and shall be calculated and released to him within a period of eight weeks from today.

13. Accordingly, instant petition is allowed.

14. No order as to costs.

SURESH KAIT, J


 
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