VIKRAMADITYA PRASAD, J. - (1.) THIS writ application under Article 226 of the Constitution has been filed for quashing a portion of the order by which the petitioner has been awarded the punishment as contained in Annexure 3 and the order as contained in Annexure 6 whereby the punishment of compulsory retirement was awarded and also for restraining the respondents from acting in pursuance of the impugned order.
(2.) UNDISPUTEDLY , the respondent No. 1, Indian Overseas Bank, is a Government Company and a State within the meaning of Article 12 of the Constitution and the petitioner was working as Assistant Manager (Agriculture) in their Branch at Malda. His nature of job was of the routine field visit and identification of the borrowers and technical feasibility of the project given to the Bank for finances. As averred by the petitioner, he was not assigned to do any general work in the said Branch and he was never a loan sanctioning authority as the loans were sanctioned by the Senior Managers and the petitioner had issued some bank cheques as per instructions of the Senior Manager which were encashed in the absence of the petitioner in that Branch. Thereafter, the petitioner was transferred to Dakra Branch and served a chargesheet -cum -suspension order on the allegation that while he was functioning as an Assistant Manager (Agriculture) at Maldah Branch, certain acts of commission or omission were reported which might amount to misconduct, vide Annexure 4. The petitioner submitted a detailed reply to the charge, pleaded not guilty and denied the charges. Then a detailed enquiry in terms of Banks Regulations was initiated and concluded on 22.8.1996. The Enquiry Officer submitted his report, a copy of which was served upon the petitioner. The petitioner submitted a show cause against the enquiry report contending the findings of the Enquiry Officer, which is stated in detail in Annexure 2. Then the respondent No. 2, though he was not the appointing authority, issued Annexure 3, which is an office order, holding the petitioner guilty of all the charges and awarded a penalty of removal from service under Rule 4(g) of the Indian Overseas Bank Officers (Discipline, Appeal) Regulation (hereinafter called as Regulation). Then the petitioner preferred an appeal before the respondent No. 2 on 23.7.1997 and the petitioner listed specific grounds in the memo of appeal, vide Annexure 4. The petitioner also prayed before the respondent No. 2 to grant a personal hearing along with his defence -representative. The respondent No. 2 granted the same at Chennai but deprived the petitioner of an opportunity to represent his case along with his defence -representative and by his order dated 6.1.1998 forwarded to the petitioner through the Branch Manager, Dakra, on 24.2.1998, the respondent No. 2 allowed the petitioners appeal in part and changed the penalty from Rule 4(g) to Rule 4(f) as described in the Regulation, vide Annexure 5. Annexure 6 is the amended regulations. According to the petitioner, the impugned order is vitiated because the imputation Nos. (6) and (4) were never termed to be any violation and any conduct regulation and therefore, the same cannot be misconduct, warranting the order of punishment. With regard to the imputation Nos. (1) and (2), it was the case of the petitioner that the work of passing of vouchers and general accounting was never assigned to the petitioner and was assigned to the General Officer, therefore, the petitioner cannot be held guilty warranting the order of punishment. The General Manager PAD is the appointing authority and therefore, the original order of punishment dated 21.6.1997 passed by the Deputy General Manager is without jurisdiction and is, therefore, illegal and cannot be allowed to be sustained. The respondents appeared, contested the case and according to them, though the petitioner was recruited as Specialised Officer (Agriculture), but in the appointment letter, it was stated that, "Although you are appointed as Agricultural Officer, now you are also liable to be given any other officers assignment in the bank as it may be necessary" and on the basis of the terms contained in the appointment letter, the petitioner cannot claim that his work was confined only to routine field visits and identification and assessment of technical feasibility of the project given to the bank for finances. It is admitted that the petitioner was assigned to do other nature of general work in the Branch, vide Annexure F. It is further pleaded that on 12.9.1992, the petitioner had unauthorisedly and wrongfully debited a sum of Rs. 61,000/ - from 60 small loan accounts and sum of Rs. 1,15,667/ - from 109 Agricultural Loan Accounts with the narration "Margin money/ excess subsidy" but neither any margin money/subsidy was credited at all to the respective accounts by that time. These unauthorised credits were utilised by the petitioner to give wrong credit to various small loan accounts of borrowers and thereby the petitioner caused undue pecuniary loss to the Bank. Besides, the petitioner made fictitious credit entries without date and voucher in 60 small loan accounts amounting to Rs. 61,600/ - and in 64 agricultural loan accounts amount to Rs. 48,600/ -without receiving any funds by the Bank. An allegation was also levelled against the petitioner that one Shri Shambhu Rabidas was his intermediatory. It was also stated that the petitioner had credited Rs. 11,000/ - and 34,000/ - on 3.6.1993 and 4.6.1993, respectively in his own account and further another credit of Rs. 24,300/ -dated 1.6.1992 were drawn on various date by Marar Branch to the debit of one Smt. Sheela Prasad and thus, the petitioner had entered into illegal crediting of accounts in his accounts and also to help another persons without any authority.
(3.) THE admitted position is that the petitioner had been given full opportunity to defend himself and as per his own statement, he presented himself at every level, i.e. before the Enquiry Officer and before the Appellate Authority. Of course, before the appellate authority, his prayer to appear along with defence -representative was disallowed. The question is whether disallowing of presenting a defence -representative was violative of the principles of natural justice or violation of any provisions of the Regulation. The reply of the respondents on this point is in paragraph No. 18 of the counter -affidavit where they have said that the appellate authority allowed him personal hearing (this is an admitted fact) and the appellate authority had asked him certain questions (since he had appeared, this cannot be disputed).;