ANIL KUMAR AGRAWAL V. UNION OF INDIA THRU SECY. FINANCE BANKING AND OTHERS

WRIA/52935/2005

AI Insights

The case revolves around disciplinary actions taken against Anil Kumar Agrawal, a bank employee, by the Bank of Baroda. Agrawal was accused of gross misconduct for availing a loan without having the necessary deposit to secure it, which he allegedly used to purchase NSCs for tax savings. The disciplinary authority found him guilty based on an inquiry report, which was contested by Agrawal. He argued that the loan was sanctioned by the Branch Manager, not him, and that he had repaid the loan in full. The court examined the evidence and found that the charges were not proven, particularly noting the absence of evidence of collusion with the Branch Manager and the lack of a prescribed punishment for the alleged misconduct.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 722140 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 03-03-2020
• Assessment Year: misc
• Other Referred Cases: State Bank of India and other vs. T. J. Paul, 1999 (3) JT 385, Vijay Singh Vs. State of U.P. and others, JT 2012 (4) SC 105
• Laws Referred To: Bipartite Settlement-para 19.5 (j), Union of India vs. H. C. Goel, AIR 1964 SC 364
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SSC; ASHOK TRIVEDI
• Assessee Lawyers: POOJA AGARWAL; S N DUBEY; SHASHI NANDAN
• Keywords: Departmental Enquiry; Disciplinary Proceedings; Gross Misconduct; Loan sanction; Punishment Imposition
• Section: 19.5(j)

Judgement Text

"Court No. - 34 Case :- WRIT - A No. - 52935 of 2005 Petitioner :- Anil Kumar Agrawal Respondent :- Union Of India Through Secretary Finance Banking And Others Counsel for Petitioner :- Pooja Agarwal, S.N. Dubey, Shashi Nandan Counsel for Respondent :- S.S.C., Ashok Trivedi Hon'ble Sudhir Agarwal,J. 1. Heard Sri S. N. Dubey, learned counsel for petitioner and learned Standing Counsel for respondent. 2. Writ petition is directed against order dated 23.09.2004 (Annexure- 10 to the writ petition) passed by Disciplinary Authority/Regional Manager, Bank of Baroda and order dated 12.04.2005 (Annexure-12 to the writ petition) passed by Deputy General Manager, Bank of Baroda. 3. Facts in brief giving rise to this petition are that petitioner was served with a charge sheet dated 19.09.2003 containing following charges: “While working as award staff at Budh Bazaar Branch, Station Road, Moradabad it is reported against you as under : “You have availed a loan of Rs.20,000/- on 28.3.2001 through loan against bank's own deposit a/c despite the fact that you were not having any DFR/deposit to avail this facility or to secure the loan. This loan was managed to be sanctioned by you for purchasing the NSCs to save Income Tax. Thus you enjoyed undue accommodation at the cost of bank's fund for your personal gain.” Your above acts, if proved, would amount to 'GROSS MISCONDUCT' under the Bipartite Settlement-para 19.5 (j). The Bank therefore charge you as under : 1. You did acts prejudicial to the interest of the bank. 2. You did acts of wrongful gain to yourself.” (emphasis added) 4. Charge sheet dated 19.09.2003 did not mention any evidence sought to be relied in support of charge. Petitioner submitted reply -2- denying aforesaid charges stating that entire principal and interest of the loan amount has been paid and nothing is now due, therefore, petitioner has not committed any misconduct whatsoever. He has also stated that loan was sanctioned by competent authority i.e. Branch Manager and hence there is no misconduct on the part of petitioner and charge that petitioner has managed sanction of loan, is false, inasmuch as, loan sanctioning authority i.e. the Branch Manager, was a Senior Officer and not in the control of petitioner 5. Sri R. K. Thakkar, Senior Manager posted at Zonal Office, Bareilly was appointed as Enquiry Officer. He submitted inquiry report dated 09.03.2004 holding charges proved. Copy of report was furnished to petitioner giving opportunity to submit representation vide letter dated 26.03.2004 issued by Disciplinary Authority/Assistant General Manager, Agra Region. Petitioner submitted representation/reply dated 24.04.2004. Thereafter, provisional order was issued by Disciplinary Authority proposing punishment of bringing down to lower stage by two increments on Charge-1 and withdrawal of Head Cashier allowance permanently on Charge-2. Disciplinary Authority issued show cause notice of proposed punishment dated 02.09.2004 and petitioner was required to submit reply to said show cause notice. He submitted reply. Punishment order therein was passed on 23.09.2004 imposing following punishments : “Charge no.1: Bringing down to lower stage by 2 increments. Charge no.2:Withdrawal of Head Cashier Allowance permanently.” 6. Thereagainst, petitioner preferred an appeal vide memo of appeal dated 01.11.2004 and same has been rejected vide order dated 12.04.2005 (Annexure-12 to the writ petition). 7. It is contended that during course of oral enquiry no evidence was placed before Enquiry Officer except one Mr. O. P. Rathi was examined as Management Witness. It is only the petitioner who had submitted documents and produced his witnesses Mr. S. C. Aggarwal and Mr. Anil -3- Aggarwal (i.e. petitioner himself) who were examined as Defence Witnesses-1 and 2 respectively. 8. Enquiry Officer in order to hold petitioner guilty, has given following reasons : “1. CSE himself a senior employee must be aware that third party loan to staff is not permissible. 2. The purpose of raising of LABOD to avail third party loan for purchasing of NSCs is not of such compelling reason. 3. Rate of interest payable on LABOD comes to 17 % (16 % payable on FDR+ 1 % spread) as against accrued income % 12.5 % from NSCs. 4. Deposition of MW-1 that CSE himself conceded that later has not executed any loan documents.” 9. It is contended with respect to aforesaid charges levelled against petitioner that he himself was not the sanctioning authority and loan was sanctioned by Branch Manager, and same cannot be construed as a misconduct under Standing Orders/Regulations applicable to employees of bank in question. Therefore, entire proceedings are wholly vitiated in law. Learned counsel for petitioner drew my attention to charge sheet as well as Enquiry Officer's report and punishment order to show that bank has not been able to show as to how petitioner acted adversely to the interest of bank and did anything himself for his personal gain and aforesaid allegations do not amount to a misconduct. It is further contended that in any case, loan was sanctioned by Branch Manager, who was not a witness in departmental enquiry and no collusion of petitioner has been shown or proved, still Enquiry Officer in his report has held that petitioner must have been in collusion with Branch Manager and this finding is without any evidence. Departmental Enquiry alleged to have been conducted against Branch Manager was neither communicated to petitioner, nor any such enquiry was ever conducted in presence of petitioner and findings of collusion/connivance with said Branch Manager recorded by Enquiry Officer is totally without any evidence and entire proceedings are vitiated in law. -4- 10. Learned counsel for bank in question could not dispute that entire amount of loan sanctioned to petitioner, along with interest, is paid and noting is due. No default in said payment has also been pointed out. It is also not disputed that there was no evidence in departmental enquiry of petitioner to show alleged collusion/connivance of petitioner with Branch Manager, who has sanctioned loan to petitioner. There was not even a charge to this extent in the charge sheet. 11. In these circumstances, findings recorded by Enquiry Officer that sanction of loan by Branch Manager in favour of petitioner must have been due to collusion/connivance with petitioner, is wholly without any evidence and vitiated in law. A Constitution Bench of Supreme Court in Union of India vs. H. C. Goel, AIR 1964 SC 364, has clearly held that even in a departmental enquiry no one can be punished unless charge is proved based on evidence and suspicion howsoever high, cannot be treated to be a proof. Court has said that mere suspicion should not be allowed to take place of proof even in domestic enquiries. 12. In the present case, once finding of alleged collusion/connivance disappears, then nothing remains to hold petitioner guilty of charges levelled against him. In these circumstances, neither punishment order can be sustained nor the appellate order. 13. It is further contended that punishment of withdrawal of Head Cashier allowance is not a punishment prescribed in Rules, hence, aforesaid punishment is illegal and without jurisdiction. 14. When questioned, learned counsel for bank could not dispute that no such punishment is prescribed in the relevant Standing Orders/Rules applicable to bank in regard to disciplinary proceedings of employees like petitioner. Now it is well settled that punishment not prescribed under provisions dealing with departmental enquiry cannot be imposed. 15. In State Bank of India and other vs. T. J. Paul, 1999 (3) JT 385 and Vijay Singh Vs. State of U.P. and others, JT 2012 (4) SC 105, Court has said that punishment not prescribed in Rules cannot be imposed -5- upon a delinquent employee as a result of departmental enquiry. Court in para 11 of the judgment in Vijay Singh (supra) said : “11. The issue involved herein is required to be examined from another angle also. Holding departmental proceedings and recording a finding of guilt against any delinquent and imposing the punishment for the same is a quasi-judicial function and not administrative one. (Vide : Bachhittar Singh v. State of Punjab and Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Mohd. Yunus Khan v. State of U.P. and others, (2010) 10 SCC 539; and Chairman-cum- Managing Director, Coal India Ltd. And others v. Ananta Saha and others, (2011) 5 SCC 142). Imposing the punishment for a proved delinquency is regulated and controlled by the statutory rules. Therefore, while performing the quasi-judicial functions, the authority is not permitted to ignore the statutory rules under which punishment is to be imposed. The disciplinary authority is bound to give strict adherence to the said rules. Thus, the order of punishment being outside the purview of the statutory rules is a nullity and cannot be enforced against the appellant.” (emphasis added) 16. For this reason, impugned order of punishment cannot be sustained in respect of Charge-2. 17. In the result, writ petition is allowed. Impugned orders dated 23.09.2004 and 12.04.2005 are hereby set aside. Petitioner shall be entitled to all consequential benefits. Order Date : 03.03.2020 Manish Himwan "