ARINDAM MUKHERJEE,J. - (1.) The writ petitioner, Murari Sarkar has in this writ petition challenged the final order dated 27th June, 2009 passed by the Executive Director & the Appellate Authority in an appeal preferred by the writ petitioner under the provisions of the Bank of Baroda Officer Employees (Discipline & Appeal) Regulations 1976 (hereinafter referred to as the said regulation). The appeal was filed challenging the order of the Disciplinary Authority dated 31st March, 2009. In appeal the order of the Disciplinary Authority was partially modified.
(2.) The facts leading to the passing of the Appellate order as against the writ petitioner are as follows:- (a) Murari Sarkar, the writ petitioner while working as Junior Manager GR-I at Bank of Baroda (hereinafter referred to as the said bank ) and posted at its Burrabazar Branch was served with a suspension order on 27th March, 2008 in contemplation of a disciplinary proceeding under the provisions of the said regulation. The suspension was with immediate effect. (b) Thereafter on 5th May, 2008 the Deputy General Managerin-Charge of the Zone of the Bank of Baroda issued a show cause letter containing four (4) allegations to be replied within seven days from date of receipt thereof. This letter was replied by the writ petitioner denying all four allegations. The Disciplinary Authority, however, was not satisfied with the reply of the writ petitioner and as such a disciplinary proceeding was initiated against Mr. Sarkar by issuance of Memorandum on 25th August, 2008 accompanied by a Statement of Allegations and Articles of Charge. Four allegations and five articles of charges were framed against the writ petitioner in the letter dated 25th August, 2008. The writ petitioner replied to the same by his letter dated 17th September, 2008. (c) Mr. Prabhat Kumar Chatterjee, Senior Manager, ARM Branch of the said bank was appointed as the Inquiry Officer. The Inquiry Officer had set up a preliminary enquiry at 11 a.m. on 27th September, 2008 for appearance and hearing of the petitioner. At the preliminary hearing the writ petitioner denied all the allegations levelled against him and rejected the articles of charges framed which resulted in a full-fledged departmental enquiry proceedings. (d) On behalf of the bank, Sri T.K. Biswas was appointed as the Presenting Officer (in short P.O.). The said P.O. in the departmental enquiry submitted the documents on which the bank relied upon along with the list of witnesses. The writ petitioner appointed Tridibesh Prasad Nanda, a manager in the said bank as the Defence Representative (in short D.R.) to represent the petitioner at the departmental enquiry. (e) In course of the inquiry six witnesses Surajit Roy, Somnath Sen, Narendra Nath Dave, Subrata Chatterjee, Amit Das and Rabindra Nath Chatterjee were examined on behalf of the bank and cross-examined by DR on behalf of the writ petitioner. The witnesses were all employees of the bank who had worked or were working with the writ petitioner till his suspension in different branches of the said bank. The writ petitioner also got himself examined and filed his written submission. (f) The Inquiry Officer submitted his report on 29th January, 2009 holding that the four allegations of the charges have been proved against the writ petitioner. (g) On 31st March, 2009 the Disciplinary Authority issued an order of dismissal from service against the petitioner, the operative part whereof is as under; ORDER In exercise of powers conferred upon me by sub-Regulation 5(3) read with Regulations 4 and 7 of Bank of Baroda Officer Employees (Discipline and appeal) Regulations 1976, hereby order as follows: "MR. MURARI SARKAR IS HEREBY DISMISSED FROM SERVICE OF THE BANK, WHICH SHALL ORDINARILY BE A DISQUALIFICATION FOR FUTURE EMPLOYMENT WITH EFFECT FROM THE DATE OF RECEIPT OF THIS ORDER." FURTHER, THE SUSPENSION PERIOD OF MR. MURARI SARKAR TO BE TREATED AS PERIOD NOT SPENT ON DUTY AND HE WILL NOT BE ELIGIBLE FOR ANY BENEFITS DUE DURING THE SUSPENSION PERIOD. The said order was partially modified by the Appellate Authority on 27th June, 2009, the operative part whereof is as follows:- DECISION ON APPEAL Accordingly, in exercise of powers conferred upon me under Regulation 17 (ii) of Bank of Baroda Officer Employees (Discipline & Appeal) Regulation 1976, the penalty of Dismissal from Bank s service which shall ordinarily be a disqualification for future employment imposed by Disciplinary Authority on Mr. Murari Sarkar is hereby modified to. Removal from Bank s service which shall not ordinarily be disqualification for future employment . Further, there is no change in the treatment of period of suspension and it shall be treated as period not spent on duty. The order will be effective from the date of order of the Disciplinary Authority i.e. 31.03.2009.
(3.) Submission of the Writ Petitioner (i) The petitioner has alleged that neither the statement of allegations nor the articles of charges clearly specify as to the amount allegedly misappropriated by the petitioner. No complaint is there from any account holder about defalcation. In such circumstances the very basis of the formation of charges are vague. The petitioner alleges to have been victimized. The preliminary enquiry, according to the writ petitioner was conducted in a routine manner with the only intent to show compliance of natural justice. The letter proposing to hold disciplinary proceedings and the articles of charge, according to the petitioner has been framed mechanically, arbitrarily, illegally and without authority. (ii) The petitioner has also contended that as per rule 5(1) the Managing Director of the Bank is the sole authority to decide to institute any disciplinary proceedings and imposition of penalty against an officer-employee of the Bank. In absence of any such authority/direction, passed by the Managing Director of the Bank empowering the General Manager or Deputy General Manager by general or special order to institute a disciplinary proceedings in accordance with the rule 5 of the said regulation, the actions of the Deputy General Manager in respect of issuing show cause to initiate disciplinary action by the letter dated 5th May, 2008 and actions of the General Manager in issuing the memorandum of charge sheet vide order dated 25th August, 2008 are illegal, arbitrary, without jurisdiction and authority under law. (iii) The petitioner further says that the allegations as against the petitioner are that of irregularities and not of illegality. The transactions complained of were not mala fide or done with malintention. The transactions were done with the approval of the account holder who had become friendly with the petitioner. The petitioner also alleges that the letter of admission relied upon by the bank as against the petitioner is tainted with fraud committed by the Branch Manager who induced the petitioner to sign such letter. The petitioner says to be not bound by such admission. To support his contention, the petitioner refers to a Single Bench judgement and order of this Court dated 27th July, 2005 passed in W.P. No. 15110 (W) of 2004, Samarendra Nath Roy v. Chairman, Eastern & N.P. Railway Cooperative Bank Ltd. & Ors. (iv) The disciplinary proceedings according to the petitioner began with the issuance of charge-sheet and ended with the imposition of penalty by the Disciplinary Authority. At every stage the Disciplinary Authority was to ensure compliance of natural justice which was violated in the petitioner s case right from the beginning when the petitioner was denied the opportunity to appoint D.R. at the preliminary enquiry which was fixed hurriedly to cause in convenience to the petitioner. The departmental enquiry was also conducted in a hurried manner denying the petitioner proper opportunity to represent his case. The preliminary enquiry according to the petitioner should not have been proceeded with before finalisation of the list of prosecution witnesses. The list of witnesses from the bank s side ought to have been forwarded with the memo of charges. No report as to the findings of the preliminary enquiry was provided to the petitioner. (v) The Inquiry Officer by allowing the P.O. to examine witness and getting documents marked as Exhibit through them without there being a list of witnesses had exceeded his jurisdiction as also violated the principles of natural justice. (vi) The Disciplinary Authority according to the petitioner mechanically accepted the finding of the Inquiry Officer which was based on wrong premise without independent application of mind. The Disciplinary Authority, therefor, has acted wrongfully, arbitrarily and illegally. The order of the Disciplinary Authority was liable to be and should have been set aside. The Appellate Authority according to the petitioner committed the same error by simply concurring with the findings of the Disciplinary Authority without himself applying his independent judicial mind. The order of the Appellate Authority is, therefor, also liable to be and should be quashed and/or set aside. In this context, the petitioner has relied upon two judgements reported respectively in A. L. Kalra v. Project and Equipment Corporation of India Ltd. , 1984 AIR(SC) 1361(Para 13, 22, 26) and Ranjit Thakur v. Union of India and Others , 1987 4 SCC 611 ;