Sri N. Paul Vs. United Commercial Bank and ors. - Court Judgment

Maharaj Sinha, J.

1. Mr. N. Paul, the writ petitioner (the petitioner in short) initiated this writ proceeding way back in the year 1994, to be precise on 7th September, 1994, primarily challenging an order of punishment dated 2nd July 1994 passed by the Disciplinary Authority of the United Commercial Bank, the first respondent herein, apart from challenging the said order of punishment the petitioner also challenged the validity of two show-cause notices 5.11.1990 and 27.11.1991, the charge-sheet dated 20th November, 1992 issued against the petitioner, the enquiry report of the Enquiry Officer dated 27th January as well. At this stage, for the sake of convenience, only the concluding portion of the said order of punishment of the Disciplinary Authority is mentioned below:

Considering the above aspects and in exercise of the powers conferred upon me by UCO Bank Officer Employees' (Discipline and Appeal) Regulations, 1976, as amended, I hereby pass the following order in terms of Regulation 4 of the said regulation/s.

Charge No. 1. - approved - removal from service which shall not be a disquaification for future employment.

Charge No. 2. - approved - removal from service which shall not be a disqualification for future employment.

Charge No. 3 - approved - removal from service which shall not be a disqualification for future employment.

The above punishment will be effective from the date of service of this order upon Shri N. Paul.

Assistant General Manager

(Disciplinary Authority)

2. As I proceed to deal with the merits of the case of the petitioner or rather the merits of the respective cases of both the petitioner and the respondents herein, namely the United Commercial Bank, I would refer to the said show-cause notices, the charge sheet including the statement of allegations and of course the said order of the Disciplinary Authority dated 2nd July, 1994 in a little detail if necessary.

3. Although, as aforesaid, this writ proceeding was initiated way back in the month of September 1994 and though the direction for affidavits, it appears, was first given on 8th September, 1994, yet direction for affidavits had to be given again by the Court after expiry of about nine years from the date of initiation of this proceeding again on 17th July, 2003 and during this nine years the writ petition itself was dismissed for default on 16th January, 2001. However, the said order of dismissal was recalled and the writ petition was restored by an order of this Court dated 28th April, 2003. However, parties on the basis of the said direction dated 17th July, 2003 eventually exchanged or used their respective affidavits and only thereafter the writ petition was heard on merits.

4. I wonder why no steps or rather effective steps were taken by and or on behalf of the petitioner to ensure the early hearing of this writ petition when the petitioner invoked the writ jurisdiction of this Court having been seriously aggrieved and prejudiced by the said order of punishment against him whereby the petitioner lost his employment way back in the year 1994.

5. However, the case of the writ petitioner proceeds on the basis that he was initially appointed as a 'Probationary Officer' of the United Commercial Bank (the bank in short) on 12th November, 1971, thereafter he became a permanent employee of the Bank and received his first promotion on 1st July, 1983 to the post of Scale- III Officer. On 24th October, 1989 the petitioner was 'posted' at the Bhawanipur Branch of the Bank as Scale - III Officer and took charge of the said branch as the Manager thereof.

6. According to the petitioner, the petitioner was sent to the said branch at Bhawanipur by the management as the branch was in search of a fit person who could take charge of the branch as the said branch was running at a huge loss 'and its industrial relations were very disappointing due to the problems created by the staff members of the said branch which seriously affected the normal functioning of the said branch of the bank'.

7. In support of his case that the petitioner was 'posted' as the Manager of the said branch essentially for the purpose of its revival the petitioner made the following statements in the petition:

10. Your petitioner states that when the authorities of the Bank were in trouble regarding the problem of running the Bhowanipore Branch, the Divisional Manager by Ref No. COD./STATE/90/1542 dated 3.12.90 wrote to the Zonal Manager, West Bengal, inter alia, to the effect:

The General routine of the Branch was in shamble important basis returns like ACTI, IT 4, Balance Sheet were not forthcoming. The employees have been indulging in physical tussel frequently using abusive language to each other openly ignoring the minimum code of ethics and interest of the instition. The earlier Managers opted out to head office Inspection department for their own safety and mental peace. It was a difficult task for the Zonal Office to find out a suitable Manager for the said Branch. As such in the crucial juncture we persuaded Shri Paul to take charge of the Branch from a Scale -HI Manager, being a Scale-II Officer and another Scale-II Officer was provided (Jt. Manager) to function as second man in command. We assured Shri Paul to extend all support for restoration of discipline at the branch.11. Your petitioner states that after being satisfied with the performance of the petitioner as Branch Manager of the Bank at Bhowanipore Branch; Deputy General Manager by his letter No. WBZ/DGM/SEC/155/90, dated 8.12.90 highly praised the petitioner, inter alia, to the effect:The affairs of Bhowanipore Branch were in shambles. Shri Paul after taking over the charge of the Branch has improved the functioning of the Branch to a great extent. To be precise, he has achieved marked improvement in customer service and general house-keeping.

8. The petitioner after taking over the charge of the said branch as its Manager took all steps necessary to ensure the improvement of the branch as a whole and in particular to prevent the branch from incurring any further loss and for such purpose after due consultation with the Zonal Manager concerned decided to give temporary overdrafts and sanction of loans to some old constituents of the bank.

9. In the Affidavit-in-Opposition the bank merely stated that the said letter referred by the petitioner dated 8th December, 1994 'has not been annexed to the writ petition' and as such the same could not be relied upon by the petitioner without disclosing the copy of the same to the respondents. The petitioner was also asked to produce a copy of the said letter and strictly prove the contents thereof.

10. However, on 5th November, 1990 the concerned Divisional Manager of the bank wrote to the petitioner that during an inspection conducted by one Development Manager, Manik Roy Chowdhury, of the bank on 18th January, 1990 and 19th January, 1990, some serious irregularities 'in advance portfolio had come to the notice of the bank from the report submitted by the said Manager' and after giving particulars of some such irregularities in the said letter the Divisional Manager observed as follows:

It appears that drawings allowed by you in the above-mentioned accounts are far beyond your sanctioning power. It reveals from the statement of M/s. Quality & Precision Industrial Equipment that a cheque for Rs. 6.50 lacs was deposited in the account on 31.3.90 to bring down the balance within the limit, but the cheque was returned unpaid on 3.4.90 and the debt balance in the account again mounted upto Rs. 7.12 lacs. Please let us know the reason for returning the cheque by drawee bank. It appears that the cheque was deposited only to reduce the debit balance on the date of yearly closing of accounts of the bank.

It is observed that you are in the habit of allowing irregular drawing in party's account without prior approval of the higher authority. You are hereby advised to desist from allowing any overdraft beyond your sanctioning power and regularise all irregular accounts immediately. Please confirm within 15 days from the date hereof that all irregular accounts has been regularized.

We find that you have never sent the statement of irregular accounts like RCR-1, CMA-7A to this office in spite of repeated reminders. As a result our office remained in the dark in respect of above-mentioned irregular accounts. You are asked to explain within 7 days from the receipt of this letter the reason for non-reporting the above irregularity through periodical statements of the bank and also why and under what authority you have allowed drawings in the above-mentioned accounts far beyond your sanctioning power.

Please note that if no reply is received within the above-said period, the matter will be reported to appropriate authority to enable them to take action which they deem fit.

Yours faithfully,

Asstt. General Manager,

Zonal Office, W.B. Zone

(B.K. Datta)

11. The above letter is treated by both the petitioner and the bank as the first show-cause notice served upon the petitioner.

12. On 14.11.1990 the petitioner replied to the above show-cause notice pointing out that the said Manager, Manik Roy Chowdhury, was sent for investigation into the alleged irregularities committed by the petitioner regarding certain accounts as the petitioner issued a notice of show-cause upon a person (named in the reply and also in the writ petition) who happened to be the General Secretary of the staff union and it was on the basis of the allegations made by the said person against whom such show-cause notice was issued by the petitioner such investigation into the alleged irregularities in respect of certain accounts by the petitioner were made by the said Development Manager, Manik Roy Chowdhury. However, regarding the specific allegations as made in the said first show-cause notice the petitioner replied as follows:

Regarding the second para of your letter, I am to state that your question relating to the deposition of one cheque amounting to Rs. 6.50 lacs and its return with the reason 'Refer to drawer' in the account of M/s. Quality and Precision Industrial Equipment is true but I am not responsible or rather my involvement would not be questioned as this sort of transaction as of routine/regular in nature.

Your observation regarding my habit in allowing over-drawings. I assure you that I will be little bit cautious in future, although I am not posted over this Branch since a long period.

Regarding the statement of irregular accounts, I say that it was not sent regularly and in that respect I may be excused I assure you that the said statement in form No. RCR-1 and CMR-7A will be sent to you regularly.. I assure you whatever I have done, I have done for the interest of this Branch and the Bank as a whole.

Thanking you,

Yours faithfully

N. Paul

(N. Paul)

(Manager)

13. After expiry of about one year from the date of the said reply of the writ petitioner to the said first show-cause notice, on 27.11.1991 another letter was addressed to the petitioner asking him to show-cause as to why the petitioner allowed overdraft facilities to certain account holders of the said branch, the particulars of such accounts are however mentioned in reply to the said show-cause and also in the 'list of dates' submitted on behalf of the bank. Inspite of my best effort, I have not been able to trace out the said show-cause (in short the second show cause) dated 29th November, 1991 or a copy thereof. The copy of the said second show-cause is not annexed to the writ petition, to the affidavit-in-opposition or to the affidavit-in-reply, nor the same was produced even at the time of hearing of the writ petition. Why the bank also did not annex a copy of the said second show-cause to its affidavit in-opposition is also not known.

14. However, the writ petitioner replied to the said second how cause by his letter dated 7th December, 1991 in which, it appears, he sought to deal with the allegations against him in the said second show cause dated 27.11.1991 by giving his reasons why he allowed excess overdraft in favour of some account holders in paragraph 21 of the petition. The gist of his said reply dated 7.12.1991, for the sake of convenience, as given in paragraph 21, is set out below:

That during the period from January, 1991, the concerned branch of the bank earned a sum of Rs. 1,66,523/- for some of the excess overdrafts allowed by the petitioner in different accounts of the customers were already adjusted and some of them had come down to limit. So, the entire money of the bank was secured and the same would be certainly adjusted and it was also pointed out that regarding the overdrafts issued in favour of M/s. Mahabir Plastic Industries proposal was duly sent to the Divisional Manager and after discussion with him the overdrafts were allowed to the said concerned and all the cheques were issued after taking a prior verbal permission and confirmation over phone. It was further stated 'that the bank has lost nothing and there was no mala fide intention or motive behind it while the petitioner allowed such excess overdraft'; copies of the said show-cause notice dated 27.11.91 and the reply thereto on 7.12.91 are annexed hereto and marked as 'B' collectively.

15. Two things need be mentioned regarding the said reply dated 7.12.1991 and the gist of the reply as stated paragraphs 21 of the petition. Firstly, the petitioner nowhere had stated in the said reply 'that the bank had lost nothing and that there was no mala fide intention or motive behind it why the bank allowed such excess overdraft' as has been sought to be spelt out by the petitioner in paragraph 21 of the petition and secondly, the petitioner though has stated the gist of the stand taken by him in his reply to the said second show-cause yet he has not stated in paragraph 21 of the petition what he in fact stated at the end of his said reply to the second show-cause, for the sake of convenience as well as for proper appreciation of the stand taken by the petitioner in his reply, the last two paragraphs of the reply dated 7.12.1991 are set out below:

In fine I state that I wanted to generate more income in order to minimise the yearly loss of this branch & to get more business, although in the official language & discipline I agree with you that it is the misuse of the discretionary power vested in me as Manager of this branch. You will be from the BS of last two years of this branch that loss incurred by this branch has started gradually coming down.

However, I promise and assure you that no over-drawings would be allowed in any of the c/c & T.O.D. a/c. by me in future in order to carry out your advice.

16. In the writ petition where the petitioner has stated the gist of his first reply to the first show-cause notice he has conveniently omitted to mention that he also told the bank in reply to the first show-cause that he would be little bit cautious in future and he also admitted that 'statements of accounts' of some account holders were not sent to the higher authority on a regular basis and in that respect he said he should be excused and he assured further that such statements (in form No. RC -1 and CMR-7A) would be sent to the authority concerned on a regular basis by him.

17. However, I have not been able to quite appreciate as to why the writ petitioner while stating the gist of his stand taken in his said two replies to the said two show-cause notices have omitted to mention his assurances given to the bank in his said two replies.

18. However, after the petitioner served as a Manager at the branch of Gamaria in Bihar (after his transfer from the Bhawanipur branch) for nearly a year, a charge sheet dated 20th November, 1992 was served upon the petitioner, since the petitioner has seriously challenged the validity and or legality of the said charge sheet and alleged that from the words used in the charge sheet it can sufficiently be said that the same was issued with a pre-determined mind the said charge-sheet is set out below:

Articles of Charge

1. 'He with mala fide intention allowed excess drawings beyond the sanctioned limit and the delegated power vested in him by the bank, in the cash credit accounts of (i) M/s. G. Biswas Engg. Works, (ii) M/s. Bolden Batteries A/c-2 (iii) M/s. Quality and Precision Industrial Equipment (iv) M/s. Mahabir Plastic Industries (v) M/s. Unique Plastic Industries and (vi) M/s. Samabaya, dealing with the commodities under Selective Credit Control and in the T.O.D. accounts of (i) M/s. K. Ghosh Enterprises (ii) Ganeshan (India) and (iii) Procon without seeking approval from the Divisional Office. He also allowed purchasing clean bills beyond the sanctioned limit in the accounts of (i) M/s. G. Biswas Engineering Works and (ii) M/s. Quality and Precision Industrial Enquipment without obtaining any prior approval from the Divisional Office. Thus he deliberately failed to ensure and protect the interest of the bank which is violative of Regulation (3) of UCO Bank Officer Employees' (Conduct) Regulations, 1976 as amended.

2. He, with mala fide intention continued allowing over-drawings in various accounts despite receiving Divisional Office letters dated 5.11.91 and 27.11.91 wherein he was asked to regularize the irregular accounts and to desist from allowing excess drawings. He committed breach of faith and thus, acted in a manner prejudicial to the interest of the bank which is violative of Clause 3 of UCO Bank Officer Employees' (Conduct) Regulations, 1976, as amended.

3. He deliberately did not report such irregularities through the monthly statements of RCR-1 for a long time with some ulterior motive. He also with such motive misled the Divisional Office by furnishing false information in regard to the over drawn account of M/s. Quality and Precision Industrial Equipment that the account was collaterally secured by way of equitable mortgage of land. Thus he failed to discharge his duties with utmost integrity, honesty and devotion which is violative of Clause (3) of UCO Bank Officer Employees' (Conduct) Regulations, 1976, as amended.

Assistant General Manager,

(Disciplinary Authority)

19. However, before I deal with the above charge-sheet or rather its legality and validity, I must point out that in the first show-cause dated 5th November, 1990 the petitioner was categorically told by his higher authority (either rightly or wrongly) 'you are hereby advised to desist from allowing any overdraft beyond your sanctioning power and regularise all irregular a counts immediately. Please confirm within fifteen days from the date hereto that all the irregular accounts (have been regularised)' to which the petitioner replied 'your observation regarding my habit in allowing overdrawing, I assure you I would be little bit cautious in future' and the petitioner in his reply to the second show-cause observed on his own motion, 'although in the official language and discipline I agree with you that it is misuse of my discretionary power vested with me as Manager of the branch' besides he also promised and assured that he would no longer allow 'any over-drawings' in any of the concerned accounts in future after which however the petitioner was transferred to Bihar.

20. The disciplinary authority however, in accordance with the provisions of Sub-rule 3 of Rule 6 of UCO Bank Officer Employees' (Discipline and Appeal) Regulations 1976 served upon the petitioner a statement of allegations on the basis of which the charges against the petitioner were in fact framed. From a perusal of the said statement of allegations, it appears, that he said allegations are practically the reproduction of the contents of the said earliest two show-cause notices issued by the bank namely dated 5.11.1990 and 20.11.1991 and as such the entire statement of allegations need not be set out in detail. However, suffice it to point out that the disciplinary authority gave the details of the alleged acts of the petitioner on the basis of which, as aforesaid, the said charges were framed against the petitioner. The petitioner it was alleged, allowed excess drawings in favour of some customers far beyond his delegated power and for which the petitioner never took any prior approval of his superior nor did he send any intimation from the monthly statements of 'RCR-1', the particulars of the accounts concerned are all mentioned in the statement of allegations. It was further alleged that though the petitioner in reply to the said first show-cause notice 5.11.1990 assured that the statement of accounts 'like RCR-1 and CMR-7A' would be submitted on regular basis and though the petitioner said that he would be cautious in allowing over-drawings in future, the petitioner in fact allowed over-drawings much in excess of the sanctioned limits and beyond the sanctioning power of the petitioner ignoring the instructions of the bank. It was also alleged and this allegation, in my opinion, is rather a serious one 'that the petitioner furnished incorrect information to the Zonal Office' in his reply dated 14.11.1990 to the said first show-cause notice, the petitioner stated that over-drawings for the account of M/s. Quality and Precision Industrial Equipment was collaterally secured by way of equitable mortgage of land measuring 26.2 cottahs, valued at Rs. 5 lakhs but it was revealed subsequently that the title deed was never deposited by the borrower namely the said M/s. Quality and Precision for the purpose of creating equitable mortgage.

21. It was also alleged that though the petitioner in reply to the second show-cause, whereby the petitioner was asked to show-cause as to why huge overdrawings were allowed by him in favour of some customers/account holders far beyond his delegated power and in spite of a clear instruction for not allowing overdrafts/over-drawings while credit restrain measure were in vogue and why certain irregularities were not reported by submitting monthly RCR statement for a long time, stated that no over-drawings would be allowed by him in any account in future to 'carry out advice/instructions of the Divisional Manager', in fact allowed excess drawings in violation of certain norms in favour of M/s. Samabaya, in dealing with commodities under selective credit control, where no excess drawings could be allowed beyond Rs. 1 lakh only because of the direction of the Divisional Officer. It was further alleged that the said overdrawing 'was allowed to the extent of Rs. 75,000/- on 3rd December, 1991 prior to his handing over the charge of the branch'.

22. At the hearing, the learned Counsel Mr Subrata Dutt, appearing on behalf of the petitioner sought to raise several points essentially in support of his submissions that the petitioner in any event did not deserve the major punishment as imposed upon him by the bank and the said punishment should be regarded as excessive and disproportionate having regard to the allegations against the petitioner and more importantly having regard to the so-called proved misconduct of the petitioner. Mr. Dutt, however, was not at all prepared to accept that the alleged misconduct on the part of the petitioner could in the facts and circumstances and the evidence on record be at all termed as an act or acts of misconduct in the first place. The petitioner, argued Mr. Dutt, could at best be said to have been negligent or rather there was an error of Judgment on his part. Mr. Dutt submitted that in allowing certain credit facilities in favour of some very old customer or account holders of the bank the petitioner perhaps committed some mistakes but such mistake or mistakes were nevertheless bona fide mistakes as the sole intention of the petitioner or rather the object of the petitioner had always been to safeguard the interests of the branch concerned, and in order to make the branch a profitable one, the petitioner in discharge of his duties as the Manager of the Bank had taken certain decisions which might not be termed as sound decision/s, nevetheless the petitioner never acted or did anything with any ill motive or rather the petitioner never intended to harm the interests of the bank or rather the branch concerned at any point of time.

23. In support of his contention Mr. Dutt relied on the facts that the petitioner was transferred to the branch at Bhawanipur of the bank at a time when the bank was incurring huge loss and also experiencing serious labour trouble. The petitioner was brought to the concerned branch for the purpose of improving the condition or rather the conditions of the branch which was suffering both economically and industrially and it was because of the able management of the petitioner, the branch concerned, in fact, earned profits and in support of this, Mr. Dutt gave certain figures the particulars of which are mentioned in the petition.

24. Firstly, regarding the charge-sheet Mr Dutt put a lot of emphasis on the words used in the said charge-sheet namely that the petitioner with (i) 'mala fide intention allowed excess drawings beyond the sanctioned limits...' (ii) The petitioner 'with mala fide intention continue, allowing over-drawings in various accounts...' (iii) The petitioner 'deliberately did not report such irregularities through the monthly statements....'

25. The very fact, contended Mr. Dutt, that the above words were used in the charge-sheet, such as mala fide intention, ulterior motive, deliberately etc., those should be taken to be the reflection of a biased mind. There was no doubt that the disciplinary authority issued the charge-sheet with a closed mind in framing all the alleged charges against the petitioner and those exposed the mind of the disciplinary authority, if it were held that the charge-sheet itself was issued with a closed mind or with a pre-determined notion, which could only be gathered from the plain reading of the charge-sheet or rather the words used therein, then and in that event, the charge-sheet should fail and if the charge-sheet itself failed the disciplinary proceeding should consequently fail as well, as the disciplinary authority exercised its jurisdiction only on the basis of the said charge-sheet and the charge sheet alone.

26. Speaking for myself, I do not see an reason as to why the disciplinary authority thought it fit to use those words in the charge sheet namely the words, with mala fide intention, ulterior motive, deliberately etc. If the disciplinary authority had already decided or is taken to have decided that the petitioner committed those acts with ulterior motive or with mala fide intention or was guilty of some deliberate acts, then there was no necessity to hold a disciplinary proceeding against the petitioner in the first place.

27. From the charge sheet it appears that the petitioner was charged with violation of Regulation 3 of UCO Bank Officer Employees' (Conduct) Regulations 1976, the said regulations or rather Regulation 3 thereof does not contemplate or provide any provision that in order to prove a case it has also to be shown that the employee concerned has violated the provision of the said Regulation 3 with any mala fide intention or any ulterior motive or is guilty of any deliberate act on his part.

28. On a plain reading of Regulation 3 of the 1976 Regulations, I have not been able to find anything wherefrom it can be said that in order to constitute misconduct under the provisions of this regulation 'the state of mind' or so to say any 'mens rea' of the charged employee at the time of commision of the alleged offence under the said regulation has also to be proved. Normally these words, mala fide intention, ulterior motive or deliberate act or acts suggest or point to the 'guilty mind' of the person concerned who is charged with any criminal offence, in other words, if it is said that 'A' has committed an act with mala fide or ulterior motive that means the 'evil intention' with which such act or acts by 'A' have been committed by him. It also shows that 'A' being the offender had also the knowledge of the wrongfulness of the alleged act. There is normally a presumtion that 'guilty mind' which in Latin is called 'mens rea' is an essential ingredient in every criminal offence liable to be displaced either by the words of the statute or by the subject matter with which it deals. It is,, nobody's case and cannot be anybody's case that when a person is charged with violation of the provision of the Regulation 3 of the said 1976 Regulations he is charged with any criminal offence, or rather the provisions of Regulation 3 of the said Regulations or rather the alleged acts of violation of the provision of Regulation 3 of the said 1976 Regulations (in short the Regulations) do constitute a criminal offence in the first place. Therefore, when charge or charges are framed against an employee for commission of act or acts in violation of the provisions of Regulation 3 of the said Regulations there is no obligation on the part of the disciplinary authority to prove the 'mens rea' or rather the 'guilty mind' of th charged employee at the time of commission of offence or at any point of time before the commission of such offence. For example, if a charge is framed against 'A', an employee, that he has done an act far beyond his authority and without the permission of his superior or that he has done an act beyond his authority when he was asked by his superior not to do such an act and that the superior gave such direction in exercise of his lawful authority and if it is proved that 'A' has committed an act far beyond his authority without the permission of his superior or that committed such act/s though he was asked by his superior not to do such act/s and that the direction of the superior to that effect was a lawful one, then 'A' would definitely be guilty of an act of misconduct because firstly, 'A' acted far beyond his authority without the permission of his superior, and secondly, he committed such act or acts though he was lawfully asked by the superior not to do such act or acts. It does not have further to be proved that whatever 'A' had done he had done it with 'mala fide intent or with ill or ulterior motive or the like', in other words it does not also have to be proved that 'A' had the necessary 'mens rea' at the time of or before the commission of the offence with which he was charged. This is because he was not charged with any criminal offence, he was charged with an alleged act or acts which if proved would constitute a misconduct within the meaning of Regulation 3 (in the instant case) of the said Regulations 1976.

29. In my opinion, therefore, the disciplinary authority, in its over exuberance of course, used the said words in the charge sheet, i.e. mala fide intention, ulterior motive, deliberately etc, at the least, quite unnecessarily when Regulation 3 of the said Regulations does not contemplate that in order to constitute a misconduct under the provision of Regulation 3, the 'state of mind' or the 'mens rea' of the person concerned namely the charged employee has also to be established.

30. While on the subject, it should also be mentioned that there are very many minor statutory criminal offences, which are punishable irrespective of existence of the 'mens rea', if it is proved that an act which is prohibited by the statute has been done, that is sufficient to constitute the offence. The prosecution does not have also to prove that the offender had any guilty mind or rather the necessary, (evil intention), or knowledge of wrongfulness of the act either before or at the time of commission of the offence, as the statute or the provision of such statute does not require the proof of any 'mens rea' or 'guilty mind' to constitute such offence. It is, in such cases, enough to prove the commission of such offence which is prohibited by statute i.e. (minor criminal statutes).

31. Therefore, for my purpose, I would read that the petitioner committed the alleged acts as mentioned in the charge sheet dated 20.11.1992 without those words, namely 'mala fide intention, ulterior motive' 'deliberately' 'falsely' etc, as in my opinion, a reasonable man with his reasonable approach should read the articles of charge as such and find out how far the disciplinary authority was able to prove the commission of the alleged acts on the part o1 the charged employee irrespective of proof of any 'guilty mind ' in committing such acts. Furthermore, the charge sheet or the articles of charge get a better shape, if read without those words.

32. In support of his contention that the charge sheet in the present case was issued against the petitioner with a closed mind. Mr. Dutt relied on a decision in S.C. Das v. State of West Bengal and Ors. reported in 86 CWN 232 where his Lordship Justice G.N. Ray (as his Lordship then was) while dealing with the validity of the charge sheet in question was pleased to observe:

Whether a charge-sheet has been issued with a closed mind or not cannot always be decided by a mere reference to the charge-sheet itself. The language used in the charge-sheet certainly renders a very important indication in the matter but other attending circumstances may at times throw light on the real intent and import of the charge-sheet. It is true that the charges levelled against a delinquent officer must be clear and unambiguous, but at the same time the charge-sheet should not be issued with a biased and closed mind. The real purpose of initiating a disciplinary proceeding is to enquire as to whether the facts, prima facie ascertained against a delinquent officer, are correct or not. The purpose of a disciplinary proceeding cannot be to cause a secret enquiry against a delinquent officer and to form a positive and firm view about his complicity in the alleged misconduct and thereafter to give him an opportunity to dispel the conclusion already drawn against him. If therefore from the attending circumstances and also from the language of the charge-sheet, it appears that the disciplinary authority has really drawn a positive conclusion against a delinquent officer and thereafter has started a disciplinary proceeding by issuing a charge sheet only to afford him an opportunity to dispel the conclusion drawn against him then such disciplinary proceeding must be held to be bad, being vitiated by bias and a closed mind and having been all intents and purpose, started to complete a formality in law.

33. In S.C. Das (supra) the Court found from the language of the charge-sheet that the same was issued clearly alleging that the petitioner was guilty of the alleged offences and the Court found further that the disciplinary authority did not form its opinion but was influenced by the findings of the Vigilance Department and relying on such findings of the said department the charge-sheet was issued clearly indicating that the petitioner was guilty of the alleged misconduct. The Court, therefore, was of the opinion that the charge sheet was issued with a 'closed mind' and as such both the charge sheet and the disciplinary proceeding initiated on the basis of the said charge sheet were quashed.

34. Having read the charge-sheet repeatedly with which I am concerned here, I would not go so far as to suggest that the said charge sheet was issued with an absolute closed mind or rather the disciplinary authority before issuing the said charge-sheet already decided that the petitioner was guilty of misconduct and initiation of the disciplinary proceeding against the petitioner was nothing but a mere formality or rather a face shaving operation. As I have said above, I would rather read the charge-sheet without those words, namely 'mala fide intention', 'ulterior motive', 'deliberately', 'falsely' and 'mislead' etc. and proceed to consider as to how far the disciplinary authority was able to prove its case of the alleged misconduct on the part of the petitioner and whether the facts and circucumstances of the case and evidence on record would justify the order of punishment as imposed upon the petitioner by the disciplinary authority.

35. Before I part, however, it must be mentioned once again that in order to prove the misconduct within the meaning of the provisions of Regulation 3 of the said Regulations 1976, it is not necessary to prove any 'mens rea' or so to say any 'guilty mind' of the charged employee either at the time of commission of the alleged acts or before. In the present case, therefore, I do not think, the disciplinary authority in proving the misconduct in terms of or within the meaning of Regulation 3 of said Regulations had a legal duty to prove any ulterior motive or mala fide intent or ill intention or ill will or so to say any 'mens rea' on the part of the petitioner either before or at the time of commission of the alleged act or acts of misconduct. If I read the provisions of Regulation 3 to that effect that in order to constitute an offence within the meaning of Regulation 3, the state of mind of the charged employee at the time of or before commission of the alleged act or acts have also to be proved or established, then it would be onerous on the part of the disciplinary authority to prove the 'state of mind' of the charged employee as is required to be proved in a criminal trial. Take a hypothesis, if 'A' is charged with insubordination and/or dereliction of duty on his part, then, the disciplinary authority has to prove that the alleged act or acts against 'A' constitute such dereliction of duty and/or insubordination and nothing more. It does not have also to be proved that in committing the act of insubordination 'A' had any ill motive or mala fide intent or any guilty mind. Similarly, in order to prove dereliction of duty on A's part, it is not necessary to prove the state of mind of 'A' or his ill intent at the time of commission of the act or acts which constitute such dereliction of duty or duties.

36. In support of the contention that the alleged acts did not or could not constitute any misconduct reliance was placed on the decision in A.L. Kalra v. P.E. Corporation of India Ltd. reported in : (1984)IILLJ186SC . In the said decision the Supreme Court, after having considered the facts and circumstances and especially the rules in question, found that certain charges were framed against the employee concerned that he failed to repay 'house building advance and car loan advance' within the stipulated time namely within two months from the date of such advance, the Supreme Court also found that the rules on the basis of which such loans or advances were availed of by the employee concerned provided that if such loans or advances were availed of by the employee concerned provided that if such loans or advances were not repaid, then interests would be charged as provided in the said rules themselves. In a situation like that the employee could not be charged under the general provisions of misconduct as he was charged and as such the Supreme Court said that when an employee 'faces disciplinary proceedings on any alleged misconduct where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary defines it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct.' In that case the Supreme Court was particularly disturbed as according to the Supreme Court the charged employee having not been able repay the advance which he took 'as house building advance' and for the purpose of purchasing a new motor cycle did not really commit any misconduct within the definition of misconduct in general' as the provisions under which such advances were given to the employee and obtained by the employee themselves provided the consequence/s of not repaying the advance or advances within the time stipulated.

37. The decision of A.K. Kalra and all other like decisions have to be read in conjunction with the facts and circumstances of the respective cases on the basis of which such decisions are rendered. However, in the instant case, the plain reading of the charge sheet does not however, suggest that the petitioner was not charged with specific allegations or that the disciplinary authority failed to make any specific charge or charges against the petitioner in the first place. How far the disciplinary authority was able to prove such charge or charges, however, is a different aspect altogether but that the disciplinary authority came up with specific charges against the petitioner, there is no doubt.

38. Needless to mention, after the said charges were framed on the basis of the statement of allegations alleging violation of Regulation 3 of the said Regulations 1976, an enquiry officer was appointed to enquire into the charges and to make his report for consideration of the disciplinary authority. The Enquiry Officer, however, it appears, after having considered the respective cases of the petitioner and the bank and the evidence on record gave his findings whereby he concluded that all the three alleged charges framed against the petitioner were proved. The said findings, however, were given by the Enquiry Officer, as appears from his report, after narrating respective cases of the petitioner and the bank and the charges framed against the petitioner as contained in the statement of allegations of the bank and after assessment of evidence. For the sake of convenience, the findings including the assessment of evidence of the Enquiry Officer in respect of the said three alleged charges against the petitioner are set out below:

Findings

In view of documents on records arguments and counter arguments deposition examination in chief of MW-1 on the basis of MEX-1 to MEX-8. it is observed and found that Mr. Paul have allowed over-drawings beyond his discretionary powers and the limits set up against each parties for cash credit, temporary overdrafts and Bill purchase accounts without the knowledge and consent of the Higher Authority. He was cautioned against this sort of practice. But instead of paying heed to this he went on allowing this practice of over drawings. He was so embolden that he did not report to his higher authority. Thus he is guilty of suppressing the truth and giving false suggestion that he will get the accounts adjusted though very few accounts have been adjusted at a latter stage. Therefore, I find guilty. But in case of account sanctioned under selective credit control he did untold irregularity by allowing excess drawings. Therefore, I find him guilty in respect of allegation Nos. 1, 3 and 5. The charge No. 1 is substantially proved.

Assessment of Evidence of Allegations No. 2

It was alleged that Mr. Paul continued to allow excess drawings and requested to submit statements like R.C.R-1 and C.M.R-7A regularly. But he did not act accordingly. MW-1, Mr. P. Gupta has submitted vide proceeding dated 6.12.93 in cross-examination that Mr. Paul was written vide proceeding as above and Letter No. CCD/ CAD/436/90-91 dated 5.11.90 MEX-5 to desist from giving over drawings to the parties which was acknowledged by Mr. Paul vide Letter No. UCO/Bhow/Adv/411/90 dated 14.11.90 marked MEX-6 whereby Mr. Paul admitted to refrain from doing this and he would submit the required statements. But on the basis of deposition of MW-1 relied on documents marked MEX-7 that in spite of repeated reminders Mr. Paul has submitted the RCR-1 for the month of September, 91 which was received by the Divisional Office. Further it has been transpired from the deposition of MW-1 on the basis of a letter writ UCO/Bhow/ADV/333/91 dated 7.12.91 marked MEX-8 that he admitted his fault and assured to get the accounts adjusted which he did not do rather he acted unbecoming of an Officer which is violative of Regulation 3 of UCO Bank Officer Employees (Conduct) Regulation 1976 as amended. In fact, in spite of his assurance to forebear giving random over-drawings to the parties he surreptitiously allowed over-drawings which he concealed from the notice of his Higher Authority by sending belated statements which is highly irregular.

Findings

In view of the documents, letters and statements, records, examination and cross-examination, defence statements, counter arguments and on the basis of deposition of MW-1 based on MEX-5 to MEX-8 it is found that Mr. Paul has committed breach of trust by ignoring the instructions of his Higher Authority and he has again committed wrongs by concealing his act of irregularity in the matter of allowing overdrafts to several parties though he was cautioned on several occasions which indicates his involvement in disregarding instructions of Higher Authority. I, therejore, find him guilty. The allegation No. 2 vis-a-vis charge No. 2 is proved.

Assessment of Evidence of Allegations No .4

It was alleged that Mr. Paul furnished wrong information by a letter dated 14.11. 90 that over-drawings in M/S Quality Precision Industrial Equipment was collaterally secured by way of equitable mortgage of land valued at Rs. 5 lacs which was proved ultimately not correct. The management witness Mr. P. Gupta on the basis of management documents marked MEX-6 deposed that Mr. Paul has admitted that excess drawings were given against Government Orders to M/s. Quality and Precision Industrial System and Equipments. That drawings collaterally secured by way of equitable mortgage of land measuring 262 cottahs having valuation of Rs. 5 lacs. The party has assured that the amount will be adjusted within 2 or 3 months. Mr. Paul submitted in his defence statement vide proceeding dated 21.12.93 by placing a document marked DEX-2 stating that he allowed over-drawings to the party on the basis of Government Order for which the party requires suddenly funds. The account is very old and transaction is satisfactory. Moreover, the party submitted the certified copy of Title Deed of some landed property having the valuation of Rs. 5 lacs. He thought that it would create equitable mortgage favouring bank. He sent it to the Lawyer who said that equitable mortgage cannot be created on the basis of certified copy of Title Deed. The letter is marked DEX-3. However, from the above documents marked MEX-6 it is observed that he admitted his fault for allowing over-drawings to the parties and there is no substance in his defence statement about his over-drawings to the party. He had knowingly granted overdrafts by misleading the Higher Authority by writing that the account is collaterally secured by deposit of Title Deed in spite of the Lawyer's opinion in that regard. He is really guilty for mis-statement.

Findings

In view of the depositions of MW-1, arguments, counter-arguments and on the basis of Management Exhibits and defence exhibits marked MEX-6, DEX-2. DEX-3, DEX-4 and DEX-5 and documents and ledgers and books of accounts which were produced before me in respect of M/s. Quality and Precision Industrial Equipments, I find Mr. Paul is guilty since he has allowed over-drawings to the party by giving false statement that the advance is collaterally secured by equitable mortgage of the landed property of the party thereby mislead the Bank without unearthing the truth and committed breach of faith which is detrimental to the interest of the Bank. In the circumstances, he is guilty of suppression of fact as such the allegation No. 4 read with charge No. 3 is thereby proved.

Conclusion

In view of the above, I submit my observation as under:

Charge No. 1 : Proved

Charge No. 2 : Proved

Charge No. 3 : Proved

Dated: 27.1.94

Enquiry Officer

39. Mr. Dutt sought to contend that as there was no finding of guilt or rather ulterior motive or mala fide intention on the part of the petitioner in committing the alleged acts in the enquiry report it could not be said that any misconduct was at all committed or proved within the meaning of or in terms of Regulation 3 of the said Regulations. On the other hand, Mr. Dutt argued that even though the Enquiry Officer did not find any ulterior motive or evil intention on the part of petitioner in committing the alleged acts yet the Enquiry Officer without such findings and proof of 'ill intention' or 'motive' or 'guilty mind' of the petitioner simply assumed that the petitioner was guilty of the alleged charges and as such his findings including his conclusion which (was) based on such findings should be termed as 'perverse'.

40. To satisfy my own conscience, I have read, as I said before, the articles of charge, the statement of allegations and the enquiry report again and again and I must confess that after having repeatedly read and considered the enquiry report, I am unable to find any perversity in the report. One may or may not entirely agree with the enquiry report or rather the findings and the conclusion of the Enquiry Officer but it cannot at the same time be said that it would be possible for a reasonable man with a reasonable approach to say that the report of the enquiry officer or rather his findings and the conclusion reached by him are perverse as no reasonable man with a reasonable and rational approach could arrive at such findings and/or the conclusion as the Enquiry Officer did in the facts and circumstances of the case and on the basis of the evidence on record. The Enquiry Officer in my opinion, did not fail to take into account the relevant factors which he ought to have taken into account, he did not also fail to take into account the relevant evidence which were on record either. He, I find, set out the respective cases as made out before him by both bank and the petitioner or on behalf of the petitioner, the contents of the said earlier two show-cause notices the contents of the reply of the petitioner to the said two show cause notices, other relevant documents or evidence which were on record and then he gave his findings and arrived at his conclusion.

41. I have mentioned more than once that the petitioner himself in reply to the first show-cause notice stated in clear terms that he would be 'little bit of cautious in future' and this he said in meeting the allegations regarding 'his habit in allowing over-drawings'. A plain reading of his reply dated 14.11.1990 to the first show-cause notice would make the position clear. He also assured that he would send the statement/s in 'form no RCR -1 and CMR-7A' regularly which the bank alleged later that he did not do. He also did not refrain himself from allowing over-drawings in favour of certain account holders although he was specifically asked by his superior 'to desist from allowing any overdraft beyond his sanctioning power' and he was further advised to regularise all irregular accounts soon. The bank, however, sought to prove and, in my opinion, was able to prove that in spite of such assurance or assurances the petitioner failed to send the necessary 'regular statements' as above as he was under an obligation to do and as he assured the bank that he would do in future.

42. There is also no doubt, however, that he informed the bank that he allowed overdrafts in favour of M/s. Quality and Precision Equipment (an old customer of the bank) only against the collateral security which was given by creating an of equitable mortgage of land measuring 26.2 cottahs having a valuation of Rs. 5 lakhs. He also informed the bank that he was assured by he said customer M/s. Quality and Precision that the loan amount would be adjusted within 2 or 3 months.

43. The stand of the petitioner as taken at the disciplinary proceedings clearly shows that he allowed the said M/s. Quality and Precision to enjoy the overdraft facilities and that too much above his authority only on the basis of deposit of a certified copy of the title deed of the land in question 'at Baruipur'. The petitioner clearly stated in his defence that the petitioner was under the impression that with the certified copy of the title deed an equitable mortgage could be created, but later on he came to know from the lawyer of the bank or rather the legal department of the bank that such equitable mortgage could not be created with a certified copy of the 'title deed'. He also tried to show that M/s. Quality and Precision thereafter deposited the excess amount drawn by them by 30 December, 1992 though there was still a debit balance to the tune of Rs. 79,898/- as on 30.12.1992. But the point is, that he had at no point of time informed his superior or higher authority that the earlier information as to the furnishing of collateral security by the said Quality Precision by way of equitable mortgage in favour of the bank was not correct because the deposit of a certified copy of the title deed of the land in question by the said Quality Precision for creation of equitable mortgage was not good enough to create such equitable mortgage. There is nothing on record to show that the petitioner informed his superior or his higher authority that the information he had given earlier in reply to the said first show-cause notice regarding the crea ion of 'equitable mortgage' did not turn out to be a reality.

44. In my opinion, as the Manager of the branch concerned he was under a legal obligation to furnish this vital information immediately when he came to know that such equitable mortgage could not be created. This apart, I have not been able to appreciate as to why the petitioner took the entire burden of protecting the interests of the branch concerned all upon himself especially when the petitioner was being asked not to allow any over-drawings by the account holders as named in the said two show-cause notices and in general. Why the petitioner had at all entertained those account holders when his superior or superiors already asked him not to do so and when he said in clear terms that he would not do that in future or rather he would be cautious regarding his 'habit of allowing over-drawings'.

45. It was contended that there was only one object on the part of the petitioner in allowing 'overdrafts' in favour of the account holders and that was only to protect the pecuniary interests of the bank and/ or to earn profits for the Branch. In order to show how far the petitioner was appreciated by the higher authority of the bank he heavily relied on two letters of the Divisional Manager dated 3rd December, 1990 and 8th December, 1990. Although the original letters or the copies of such letters were never produced by the bank but I proceed on the basis that the statements made in paragraph 15 of the writ petition are absolutely correct, but even then, that does not mean that the petitioner would not obey his superior or rather was not obliged to follow the lawful directions or instructions of his superior or that in the name of protecting the interests of the bank, he would be allowed to act beyond his authority or rather he was allowed to act beyond his authority ever by his superior or superiors at any point of time.

46. The petitioner in his reply dated 7th December, 1991 to the second show-cause wrote to his higher authority that he agreed with the higher authority that he misused the discretionary power vested in him as the manager of the branch and then he added that 'it would be clear from the balance sheet... that the loss incurred by the branch had started coming down,' he also promised and assured the bank he would not allow any 'overdrafts' in any one of the accounts mentioned in his reply in future in order to carry out the 'advice of his superior'. Perhaps his assurance/s came too late in the day, but he did not at all mention in his reply or at any point of time before disciplinary authority that the alleged two letters, as mentioned in paragraph 15 of the writ petition, dated 3.12.1990 and 8.12.1990, both issued by the Zonal Manager and Divisional Manager respectively, would fully support his stand as he took in his defence before the disciplinary authority for the purpose of effectively meeting the alleged charges against him. I, am, therefore, no in a position to give much credence to the above letters or the contents thereof though these letters were never produced by the bank.

47. Above all, Mr. Dutt submitted, that in any event, even assuming that the alleged charges as made against the petitioner were proved, the petitioner could at best be said to have committed certain irregularities and that position, in fact, was admitted by the bank in its Affidavit-in-Opposition in particular in paragraph 17 there of where the bank said that the petitioner was charged with allowing excess drawings in a many loan accounts without sanction or authority 'which is an irregularity on his part' (paragraph 7 Affidavit-in-Opposition and by merely committing an irregularity or some irregularities the petitioner did not deserve such major punishment as was imposed upon him by the disciplinary authority and as such the 'punishment' should be held to be utterly disproportionate to the so-called charges against the petitioner.

48. In support of this contention, Mr. Dutt heavily relied on a decision of the Division Bench of this Court in Dipankar Sengupta v. United Bank of India reported 1998(2) CLJ 204, in the above decision the Division Bench was concerned with a case where major punishments were imposed upon of both the petitioners namely Dipankar Sengupta and Chittaranjan Samanta, by reducing their basic pay by two stages lower in their existing pay in the time scale with immediate effect. The Court found that both the petitioners in their respective capacities as officers of the bank were acting as 'recommending authority' and their recommendations were, however, subject to the sanction of the sanctioning authority and the sanctioning authority was no doubt a higher authority and the sanctioning authority was in fact empowered to sanction the mount of loan/loans in question.

49. Speaking for the Appeal Court his Lordship Justice S.B. Sinha (as his Lordship then was) was pleased to observe: 'it appears from the inquiry report that both in relation to Dipanakar Sengupta and Chittaranjan Samanta, he found most of the charges as not proved. It was further found that there was no evidence of motive or mala fide intent on the part of the writ petitioners with regard to their conduct. However, they were found to be guilty in respect of certain procedural and supervisory lapses'. (see: paragraph 3 at page 210 of the report)

50. It was also observed: 'that no case has been made out as against the writ petitioners that such recommendations had been made for any extraneous consideration or money consideration or such recommendations were made with any ill motive or mala fide. It is further not disputed that the 18 companies said to be connected with Hemraj Mahabir Prasad Group had been enjoying the substantial credit facilities with the Bank'. (see: paragraph 11 at page 213 of the report)

51. His Lordship again observed: (in paragraph 21 at page 215 of the report). ' It is, therefore, evident that although the Enquiry Officer had recorded that the charges had partly been established, in fact, the petitioner had substantially been exonerated from all the charges except lapses of certain procedural aspects or supervisory duty. Such lapses even according to the Enquiry Officer was not done with any ill motive or mala fide on his part'.

52. The Appeal Court however, after having considered the entire facts and circumstance and evidence on record and especially the enquiry report came to the conclusion that the disciplinary authority imposed the major punishment upon the petitioners without taking into account the most relevant factors and the disciplinary authority imposing the major punishment upon the writ petitioners merely relied on a vigilance report which report according to the Appeal Court was wholly uncalled for in the facts and circumstances of the case. The Court observed after having considered the provisions under Regulation 19 of UCO Bank Officer Employees (Discipline and Appeal) Regulations 1976, :- 'There is nothing to show that the writ petitioners were/was charged with taking bribe or amassing wealth disproportionate to his known source of income. In fact, as noticed hereinbefore, the Enquiry Officer has found that there is no evidence to show that the petitioner had acted mala fide or with ill motive. In this view of the matter, no consultation could have been made (assuming that the said provision is intra vires) as there did not exist any 'vigilance angle' '.

53. The Appeal Court found that the disciplinary authority imposed the 'major punishment' upon the petitioners without at all considering the report of the Enquiry Officer who happened to be an official of the Central Vigilance Commission itself and because of the special position of the Enquiry Officer, report made by such officer should have been considered more carefully and there was an obligation, on the part of the disciplinary authority to consider the said report in its true perspective. On the contrary the Appeal Court found that the disciplinary authority imposed the major punishment upon the writ petitioners without applying its mind to the relevant facts and without taking into account the relevant factors, namely the enquiry report, the facts and circumstances of the case, the evidence on record, the charges framed against the petitioners, the reply of the petitioners to the show-cause and other relevant documents. The Appeal Court found further that the report of the Vigilance Commission on which the disciplinary authority relied solely for the purpose of imposing major punishment upon the petitioners was utterly uncalled for in the facts and circumstances of that case.

54. Having regard to the facts and circumstances of that case, the decision of the Supreme Court in Nikunji Bihari Patanaik or rather, Disciplinary Authority cum Regional Manager v. Nikunji Bihari Patnaik : (1996)IILLJ379SC , was held to be utterly inapplicable. The Appeal Court observed :- 'The decision cited by Mr. Majumdar in Nikunji Bihari Patnaik (supra) is misplaced. In that case it has been held that the petitioner was guilty of commission of misconduct despite various warnings'.

55. Mr. Dutt also invited me to consider specially the paragraphs 37 and 38 of the above Judgment in Dipankar Sengupta (supra) or rather the observations of the Appeal Court made therein.

56. I, on my part, have tried to read the above Judgment and the said observations of the Appeal Court more than once. I have tried to deal with the Judgment and set out the reasons as to why the Appeal Court thought that the imposition of the major punishment upon the petitioners in that case by the disciplinary authority was wholly unwarranted in the facts and circumstances and the evidence on record of that case. The Appeal Court in that case also took into account various decisions of the Supreme Court and considered them in the background of the facts and circumstances of that case and eventually held that the decision of the disciplinary authority in imposing major punishment could not at all be sustained as the same was a product of utter non-application of mind. It was also based on irrelevant considerations and not on relevant factors, found the Appeal Court.

57. In my opinion, the Appeal Court in the above case was primarily concerned with a case where the allegations against the petitioners could not strictly speaking be termed as misconduct in the first place within the meaning of the relevant provisions of the Regulations of the bank concerned, which provisions, however, are identical to the provisions with which I am concerned. The Appeal Court also found that the Enquiry Officer with all his expertise gave his findings where the Enquiry Officer found that most of the charges were not even proved.

58. After having considered the decision in Dipankar Sengupta (supra) in detail, I do not think that the said decision can come in aid of the petitioner's case as sought to be made out by Mr. Dutt on behalf of the petitioner.

59. Lastly, Mr. Dutt attacked the decision of the disciplinary authority saying that the disciplinary authority found that the petitioner committed several gross irregularities and his such actions had put the bank to great financial loss and to meet the end of Justice major penalty 'should/could be imposed' upon the petitioner. Mr. Dutt said that the disciplinary authority did not even know that the petitioner was not charged with any allegation of causing any financial loss to the bank in the first place. Bare reading of the articles of charge and the statement of allegations of the bank would make that position abundantly clear, submitted Mr. Dutt. Mr. Dutt further argued that like the disciplinary authority in Dipankar Dutta (supra) the disciplinary authority in the present case gave its verdict or rather imposed the major punishment upon the petitioner without taking the most relevant factors into account, without considering the facts and circumstances of the case and the evidence on record, without considering the stand taken by the writ petitioner in his defence and above all in utter non application of its mind to the respective cases as made out by the bank and the petitioner.

60. Speaking for myself, I have also not been able to appreciate as to what prompted the disciplinary authority to observe in its final order as it did :- 'I have also found that Shri Pal has committed several gross irregularities and his such actions have put the Bank to great financial loss. Therefore, end of Justice would be met only if major penalty is imposed upon Shri Pal'.

61. I wonder whether by the above words or rather observations did the disciplinary authority mean several other 'gross irregularities' which were not mentioned in the charge sheet or in the statement of allegations and were not before the Enquiry Officer to consider, what did the disciplinary authority, in fact, mean by using the words. 'I have also found that Shri Pal has committed several gross irregularities and his such actions have put the Bank to great financial loss' cannot however be made out rationally. As rightly pointed out by Mr. Dutt that the petitioner was not charged with any alleged act whereby the bank claimed that such act or acts had put the bank to suffer great financial loss or any financial loss or even had exposed the bank to any financial loss at any point time.

62. If the contention of Mr. Dutt is correct that the major punishment was imposed upon the petitioner by the disciplinary authority for causing actual financial loss to the bank, then and in that event, a proper charge ought to have been framed against the petitioner and the petitioner ought to have been given proper opportunity to meet such charge or charges of causing actual financial loss to the bank, but on a plain reading of the articles of charge, the statement of allegations, the evidence on record and also the report of the Enquiry Officer, it cannot at all even be suggested that the petitioner had to meet such a charge of causing huge or any financial loss to the bank. In such a situation, all of a sudden, how the disciplinary authority could arrive at its 'fanciful' finding that by several 'gross irregularities' the petitioner put the bank to great financial loss cannot however be understood with a reasonable and rational approach to any extent whatsoever. I have no manner of doubt that the disciplinary authority after totally agreeing with the Enquiry Officer or the report of the Enquiry Officer, in its over exuberance perhaps, thought it fit also to add a few lines, which I have Just quoted above, only to show that it happened to be a superior authority namely 'disciplinary authority' and that it was fully aware of the case or rather the allegations against the petitioner and their consequences upon the bank, whereas, in reality, it was not so aware or aware at all. If it had been aware and if it had directed its mind to the case before it properly, it would never have made the above observations for the purpose of imposing major punishment upon the petitioner.

63. It is by now well established in general, if a disciplinary authority agrees with the findings of an Enquiry Officer then the disciplinary authority, does not have to give its elaborate reasons in support of such findings once again. In this case, the disciplinary authority said that the disciplinary authority agreed with the findings and the reasons of the Enquiry Officer in support of his contention where the Enquiry Officer held that all the three charges were proved against the petitioner. After having recorded its total agreement with the findings of the Enquiry Officer and his conclusion why and what material/s the disciplinary authority found that the petitioner 'committed gross irregularities' and for such acts of irregularities the bank, in fact, suffered 'great financial loss' cannot, however, as aforesaid, be understood with a reasonable and rational approach. Thus the disciplinary authority, in my opinion, had exceeded its jurisdiction in recording its independent findings on a charge which was never even in existence. The said findings were not based on any documents used in the disciplinary proceedings either against the petitioner or by the petitioner. The articles of charge and/or the statement of allegations and the evidence on record were absolutely silent as to the 'actual financial loss' on the part of the bank, due to the alleged acts of the petitioner.

64. It is impossible to understand and appreciate from the order of the disciplinary authority as to what factors and considerations were taken into account by it to record such findings in the first place. I have no manner of doubt that the disciplinary authority thought that unless a finding of actual financial loss (that too great financial loss) on the part of the bank due to the alleged acts of the petitioner had been recorded in its order, it would have been difficult for it to impose major punishment (as it did) upon the petitioner. In order to justify its order of punishment it had to record such fanciful findings on its own motion unsupported by any evidence and unsupported also by the findings of the Enquiry Officer in his report.

65. Therefore, for my purpose, I have decided to read the order of the disciplinary authority without that part where it recorded that it found that the writ petitioner committed several gross irregularities which had 'put the bank to great financial loss'.

66. The question is whether the disciplinary authority having agreed with the decision of the Enquiry Officer or his report (as he did) could impose major punishment simply on the basis of the findings of the Enquiry Officer in the said report without the proof of any financial loss (great or small) on the part of the bank in the first place. My answer to the question is, that since the disciplinary authority agreed with the findings of the Enquiry Officer it was not required of the disciplinary authority to give further reasons for imposition of punishment upon the petitioner (be it minor or major) as the charges as framed against the petitioner were quite serious in nature and when such charges, as found by the Enquiry Officer, were proved, then the disciplinary authority, in my opinion, again, had definitely a discretion either to impose major punishment or some other punishment, if it did not want to impose major punishment on the basis of the said enquiry report, because of the simple reason that the disciplinary authority, as I have said above, had agreed with the said report in its entirety. I am not prepared to hold that having regard to the nature of the charges framed against the petitioner and on the basis of the enquiry report thereon, where all the charges were found to be proved, it would I have been impossible for a reasonable man with a reasonable and rational approach to impose major punishment upon the petitioner and since the disciplinary authority, in fact, had agreed with the findings of the Enquiry Officer in his report or rather it had agreed with the report in its entirety, it definitely had, as I said before, a discretion either to impose major or some other punishment upon the petitioner and simply because the disciplinary authority, in fact, imposed major punishment having agreed with the findings of the enquiry officer, the decision of the disciplinary authority in imposing the major punishment of the petitioner simply on the basis of the findings of the said enquiry report could or cannot he termed as 'perverse'.

67. Since, in my opinion, the disciplinary authority had a discretion either to impose major punishment or other than the major punishment simply with agreeing with the report of the Enquiry Officer in its entirety (as it did), I am not minded to interfere with the exercise of such discretion by the disciplinary authority only because the disciplinary authority in its discretion could also have imposed a lesser punishment than what it, in fact, had imposed upon the petitioner, although I fully agree with Mr. Dutt once again that the disciplinary authority was wholly wrong and committed a Jurisdictional error (as aforesaid) in recording its independent findings that the irregularities committed by the petitioner had put the bank to great financial loss in imposing or for justifying major punishment upon the petitioner. However, I repeat and reiterate that I have not taken that part or rather the said findings of the disciplinary authority on the basis of which the disciplinary authority seems to have justified the imposition of major punishment upon the petitioner into account in deciding whether the major punishment imposed upon the petitioner by the disciplinary authority could be sustained in the facts and circumstances of the case.

68. However, since I have not been able to convince myself that the petitioner did follow the instructions and /or directions of its superior which were given to him more than once in discharge of his duties as the manager of the branch concerned and since I have not been able to find the defence of the writ petitioner as sought to be made out by him both in the writ petition as well as before the disciplinary authority very convincing, I am unable to interfere with the major punishment as imposed upon the petitioner by the disciplinary authority. I make the above observations thinking at the same the petitioner perhaps had the best of intentions to improve the conditions of the branch with which he was associated. But at the same time, as the branch Manager, he should have realised that he was not the only person to appreciate what should be done in the best interests of the bank. As a branch Manager, it was his duty to follow the instructions and/or directions of his superior or superiors. Since he has not been able to show any acceptable reason as to why he did not think it fit to obey or follow the instructions/directions of his superiors in allowing over drawings in favour of some of the (old customers) of the bank, I am constrained not to entertain his case even though, I do not question his honesty in discharge of his duties as the manager of the concerned branch. But, I cannot also say with so much of emphasis, having regard to the proved charges against him that he was not also guilty of disobedience, which perhaps was sufficient to constitute 'misconduct' on his part as the Manager of the branch.

69. The view that I have taken, I do not think I need to discuss the other decisions cited by Mr. Dutt in support of his submissions namely the decisions of Union of India v. H.C. Goel : (1964)ILLJ38SC , Union of India and Ors. v. J. Ahmed : (1979)IILLJ14SC and the decisions cited by Mr. Raj Shekhar Mantha on behalf of the bank in any detail. Suffice it to say that on the basis of the decision of the Supreme Court in Disciplinary Authority-cum-Regional Manager v. Nikunji Bihari Patnaik : (1996)IILLJ379SC relied on by Mr. Mantha or behalf of the bank the imposition of punishment upon the petitioner could be sustained in the facts and circumstances of this case.

The writ petition is disposed of as above.

There will be no order as to costs.

Urgent xerox certified copy of this Judgment, if applied for, be given to the parties on usual undertakings.