JUDGMENT
Barin Ghosh and Anwar Ahmad, JJ.
1. On the ground that an Officer junior to the appellant has been appointed as the Enquiry Officer to enquire into the charges levelled against the appellant, a round of battle ensued in between the appellant and the employer Corporation in this Court, which was decided against the appellant. Subsequent thereto, the appellant pressed the selfsame writ petition challenging the whole enquiry proceedings including the suspension order, the chargesheets and the enquiry report. The principal ground of challenge was that the decision to suspend and chargesheet the appellant was at the instance of the State of Bihar and, therefore, not an independent decision of the employer Corporation. During the pendency of the writ petition, the order of dismissal came, which also formed part of the challenge in the writ petition. The writ petition having been dismissed by the order under appeal, the appellant is before us.
2. The short facts of this case are that the employer Corporation received a letter of the Government dated 20th March, 1993 whereby the Corporation was asked to suspend the appellant and initiate disciplinary proceedings against him. On this letter, an order was recorded by the then Managing Director of the Corporation for taking steps to suspend the appellant and also to initiate a disciplinary proceedings by issuing a chargesheet. In consequence thereof while on 23rd March, 1993 the appellant was put under suspension, a chargesheet was issued against him whereby and under the appellant was asked to give his answers to the charges levelled against him to the Conducting Officer, who had been appointed as such by the chargesheet itself. In the charge-sheet it was alleged, amongst others, that the appellant recommended release of a sum of Rs. 4.33 lacs to Koshi Jute Mills Pvt. Ltd. one of the customers of the Corporation, without deducting the stipulated promoter’s margin money. It was also alleged that without authority he released a sum of Rs. 7.80 lacs to the self-same customer. It was next alleged that while releasing Rs. 7.80 lacs he also did not retain the retention money. It was stated that the doubt expressed by the Vigilance and Grievance Cell as regards the reputation and competence of the machine supplier was suppressed and advances were made without inspecting the manufacturing unit of the machine supplier. In addition to that there were other charges pertaining to receipt of payment of car allowance without having a car and purchase of land showing himself as having two different professions. This chargesheet was followed by yet another chargesheet dated 26th April, 1993 whereby it was alleged that a recommendation was given by the appellant to a proposal to finance another customer of the Corporation without verifying the addresses of the promoters of the said customer and, later on, it was found that the addresses were fake, in consequence whereof, the monies advanced to the said customer were lost. Lastly, on 30th June, 1993 the last chargesheet was issued whereby it was alleged that although a customer of the Corporation was running its unit in a rented premises and not on the property mortgaged to the Corporation, but the said fact was not brought to the notice of the Corporation by the appellant which resulted in loss of the money advanced to the said customer.
3. By letter dated 27th April, 1993 the appellant dealt with the first chargesheet whereas by letter dated 19th July, 1993 the appellant dealt with the second chargesheet. In relation to the advance being the subject matter of the first chargesheet, the appellant contended that the release of fund to the said customer was a decision taken by a committee comprising of a group of officers and accordingly, it was not his decision. He stated that the Vigilance Department found as a fact that an advance of Rs. 2 lacs has been given to the machine supplies by the customer and, accordingly, in relation to disbursement of Rs. 4.33 lacs, there was enough margin money. It was stated that the said customer was sanctioned a loan of Rs. 18.55 lacs and the said sum was deposited in the Bank Account of the customer on the recommendation of the said committee and he instructed the Banker of the customer to make payment of Rs. 7.80 lacs against the plant and machinery purchased by the customer. It was stated that 15% retention money was deducted while making payment of Rs. 7.80 lacs and the detailed calculation thereof would be found on Pay Order from pages 331 to 336/C. It was accepted that no inspection was carried out at the end of the machine supplier, but it was asserted that the machinery, as were delivered, had been inspected by the Branch Manager himself. He referred to his notes on various pages of the concerned file pertaining to the customer in question and contended that whatever was done was made clear on the file. In relation to car allowance, he held out that he was not the Drawing and Disbursing Officer and during that time he was in possession of a car which was agreed to be sold to him by the owner thereof who was then abroad. In relation to purchase of the property showing he had different professions, it was stated that the same was done as advised by the property dealer.
4. Admittedly, the appellant was heard by the Enquiry Officer. It does not appear that before the Enquiry Officer the Presenting Officer presented the case and then the appellant defended the same. On the contrary, it appears that the Enquiry Officer heard the appellant and looked into the file referred to by the appellant in his reply to the first charge, sheet and thereupon expressed his opinion in his enquiry report on the basis of what he found in the file.
5. The Enquiry Officer on perusal of the file recorded in the enquiry report that after the sanction was accorded to the customer in question to lend a sum of Rs. 18.53 lacs, the said sum was deposited in the Bank Account of the customer with the stipulation that the said sum or parts thereof would be disbursed by the Banker of the customer only on the directions of the Officers of the Corporation. He found that a Committee at one point of time took up the matter pertaining to disbursement of the loan so made available to the said customer. The Committee decided to retrieve the money advanced to the Banker of the customer. Having noted the fact that machinery worth Rs. 4.33 lacs have already arrived and are lying with the transporter, the Committee decided to retire the documents pertaining thereto. The Committee then decided to visit the manufacturing facility of the machine supplier in order to ascertain creditworthiness of the supplier and also to verify the balance machinery to be supplied. In the self-same file, as recorded by the Enquiry-Officer, he found a note given by the appellant subsequent to the said decision of the Committee, whereby and under the appellant recorded that since the Corporation has already drawn refinance from I.D.B.I. against the sanctioned loan of Rs. 18.53 lacs, it would not be advisable to retrieve the sum of Rs. 18.53 lacs from the Banker of the customer, instead it would be appropriate to direct the Banker to credit the account of the customer with the said sum and to release the same and inasmuch as machinery worth Rs. 4.33, lacs have been received at the transporter’s godown, the Bank be instructed to pay the amount only for retiring the documents. The Enquiry Officer found that while making the final payment of Rs. 7.80 lacs to the said customer, as appears from the calculations recorded in the Pay Order sheets 15% retention money had been retained. In the facts and circumstances, the Enquiry Officer opined that all charges except the charge of not retaining 15% of retention money as had been mentioned in the first chargesheet stand proved.
6. It is the contention of the appellant that the findings as recorded are without any evidence, or on evidence inappropriately tendered in the enquiry proceedings and accordingly no further action could be taken on the enquiry report. Having regard to the nature of the charge and the reply thereto, we think that it was obligatory on the part of the Enquiry Officer to look into the file referred to by the appellant in his answer to the chargesheet and the Enquiry Officer only looked into the same. While looking into the same, he found the decision of the Committee and an endorsement of the appellant put subsequent thereto, as have been referred above. It is not the contention of the appellant that the decision of the Committee as culled out from the file by the Enquiry Officer is incorrect. It is also not the contention of the appellant that the notions as had been given by the appellant in the file and upon which the Enquiry Officer had relied is non-existent. The conclusion, therefore, would be that in his answer to the chargesheet the appellant had taken the defence of confession and avoidance and wanted to substantiate the same by placing reliance upon the decision of the Committee and implementation thereof as recorded in the Concerned file. Those had been looked at and what had been looked at was undisputedly appropriately looked at. The question is in a situation of this nature could any person form an opinion contrary to what had been formed by the Enquiry Officer? There is no dispute that the Committee took a decision to keep the matter in hold and to proceed further upon carrying out inspection at the end of the machine supplier. In the meantime having regard to the fact that come machinery have arrived, the Committee took a decision to retire the documents pertaining to those machinery. The Committee did not decide subsequently to proceed with the matter. It was the decision of the appellant alone to proceed with the matter and in a manner exactly contrary to what had been decided by the Committee. While the Committee had decided to retire the documents pertaining to machinery worth Rs. 4.33 lacs and to retrieve the sum of Rs. 18.53 lacs already handed over to the Banker of the customer, the appellant decided not to retrieve the sum of Rs. 18.53 lacs but to make available therefrom a sum of Rs. 4.33 lacs and the remaining thereupon without carrying out any inspection of the machine supplier or of his manufacturing facility.
7. It was an admission on the part of the appellant that he withdrew, car allowance without having a car and sought to justify the same by holding out that he was in possession of a car during the relevant time although he had not become the owner thereof in view of absence of the seller due to his being stationed abroad at the relevant time. The entire onus of proving the same was upon the appellant. He did not make any effort to bring on record anything to justify his said contention. The appellant admitted that he purchased immovable property and while purchasing the same obtained sale deeds wherein he described himself as having some other profession. It may be possible that he was advised to do so by the property agent, but no cogent reason was furnished, why even a property dealer would advise the appellant to do so.
8. The enquiry report was served upon the appellant. The appellant being entitled to submit a representation gave a representation in relation thereto. In the representation so given, the appellant in no uncertain terms held out that the Managing Director of the Corporation is biased against him. In that perspective, by a letter dated 8.4.1994 the Manager (Personnel & Administration) of the Corporation asked the appellant to remain available for a personal hearing to be given to him by the Board of Directors on 15.4.1994. On 15.4.1994 no hearing was given to the appellant by the Board of Directors, instead on 2.6.1994 the Board of Directors of the Corporation took a resolution to the effect that, although there is no order of Hon’ble High Court in the case of the appellant, the present Managing Director may give the appellant to present his case within one week of the receipt of the letter and present full facts in the next Board meeting for appropriate decision. The then Managing Director thereupon by a letter dated 3.6.1994 gave an opportunity of hearing to the appellant and accordingly the appellant appeared before the then Managing Director on 10.6.1994. The Managing Director thereupon prepared a report for the consideration by the Board. In that he reported that the Committee recommended release of Rs. 4.33 lacs to the said customer but that part of the recommendation of the Committee was not approved by the Managing Director instead the Managing Director approved that part of the recommendation of the Committee which suggested inspection of the manufacturing facilities of the machine supplier. It was ultimately, however, concluded that the release of Rs. 4.33 lacs was based on the recommendation given by the appellant and Sri A.K. Verma. It was recorded that whereas the Managing Director directed withholding of the full amount but the appellant not only directed release of Rs. 4.33 lacs but also the sum of Rs. 3.32 lacs and ultimately the sum of Rs. 7.80 lacs. The act of not carrying out the inspection, which is an admitted fact was recorded and on too of that it was reported that the appellant had made yet another endorsement while releasing the sum of Rs. 3.32 lacs that there does not appear to be any need of visiting the machine supplier. It is not the contention of the appellant that he did not make the said endorsement. He did not try even to explain the same. In relation to the car allowance and holding out of having different professions in the sale deeds, the report reiterated what had been reported by the Enquiry Officer. A copy of this report was admittedly not served upon the appellant. The appellant thereupon received the punishment order dated 18th June, 1994 whereby and under he was dismissed as per the decision of the Board of Directors taken on 24th June, 1994. Although this letter is dated 18th June, 1994 but the letter itself sets out that the decision of the Board of Directors was taken on 24th June, 1994.
9. In the counter affidavit filed to the writ petition, the Corporation brought on record the punishment order dated 28th June, 1994. There is no difference in between the letters of termination as brought on record by the appellant and by the Corporation, except the difference of date and the format of the letters. Rest and the contents are exactly similar.
10. The appellant contends that according to the Rules it is the Managing Committee which is the disciplinary authority of the appellant and the Board of Directors is the appellate authority. It was submitted that in the instant case the Corporation devised a scheme which is unknown and not supported by the Rules framed for disciplinary actions against employees of the Corporation. It was submitted that for no just reason the Board of Directors usurped the disciplinary power of the Managing Director in the case of the appellant, although hearing on the representation against the enquiry report was given by the Managing Director, who in writing gave a report to the Board of Directors without furnishing a copy thereof to the appellant. It was contended that the Board of Directors decided the matter without hearing the appellant at any stage. It was submitted that in so far as the appellant is concerned, he was singled out and a device unknown was adopted to conclude the disciplinary proceeding against him in a manner unwarranted. It was submitted that taking into account the facts and circumstances of the case the one and the only conclusion would be that in a mala fide manner the appellant has been removed from services.
11. It was submitted that it is the State Government who directed initiation of the proceedings against the appellant and on the basis thereof while a proceeding was initiated an Officer of the State Government was appointed as the Enquiry Officer holding a rank below the appellant and thereupon the matter was concluded by the appellate authority bypassing the disciplinary authority and without hearing the appellant.
12. It was also contended that the Enquiry Officer was greatly prejudiced or influenced by a report of the Price Water House, a copy of which was not admittedly given to the appellant before or in course of the enquiry proceedings. It was stated that observation of Price Water House in the said report to the effect that the machinery as were installed at the end of the customer were all rotten, old, second hand re-conditioned machinery, in fact, prejudiced the thought process; which ultimately culminated in the decision of termination. It was submitted that the part of the report upon which reliance had been placed is so strong that the same is incapable of being dissected and in any event it is impossible to suggest that shutting one’s eves to such a report the ultimate decision to terminate an employee could be taken.
13. The report of Price Water House was dated 22nd May, 1993 and accordingly the said report was published after the subject chargesheet had been issued. In the chargesheet it was not alleged that the appellant facilitated grant of loan to a customer to acquire second hand re-conditioned machinery showing the same as genuinely manufactured new machinery. The principal charge against the appellant was that he directed disbursement of the sanctioned loan at a stage when he had no authority to do so. In course of enquiry it was found that in fact by reason of a decision of a committee, of which the appellant himself was a Member, no disbursement was permissible, and on the other hand steps had already been taken to retrieve the loan amount sent to the Banker of the customer. Instead of retrieving the loan amount so sent to the Banker of the customer, the appellant by appending notes after notes permitted disbursement of the loan amount, which had by then been kept on hold.
14. The learned Counsel for the appellant has drawn our attention to a judgment and order of a learned Single Judge of this Court rendered on 8.2.1996 in CWJC No. 3861/1994 Manik Vedson v. Bihar State Financial Corporation and Ors. The purpose of bringing to our notice the said Judgment was to demonstrate that a similarly circumscribed person as that of the appellant having approached this Court obtained full relief against the order of dismissal in view of failure of natural justice. This judgment does not deal with the facts of the case at all. It does not show what was the charge and what was the defence and how the defence was prejudiced by reason of non availability of the basic ingredients of natural justice. However, this judgment and order shows that on 23.3.1994 a Division Bench of this Court rendered a judgment in a writ petition registered as CWJC No. 4203/1993 whereby and under the Division Bench felt that having regard to allegation of bias against the Managing Director it would be appropriate to suggest to the Corporation that its Board should exercise the power of disciplinary authority, although the Managing Director of the Corporation should give an opportunity of personal hearing to the delinquent. This order clarifies the decision of the Board dated 2.6.1994, referred to above. While in that case it was the Division Bench which felt that inasmuch as allegation of bias has been levelled by the delinquent against the Managing Director it would be appropriate to direct the Managing Director to give a hearing, but it would not be appropriate to allow the Managing Director to use his disciplinary power, instead the same should be exercised by the Board of Directors, although no such order was passed by any Court in the case of the appellant, the Board of Directors, having taken into consideration the fact that the appellant had similarly made allegation of bias against the Managing Director, adopted the self-same device as it was directed to adopt by the said order of the Division Bench.
15. The learned Counsel for the appellant submitted that even then in the absence of guidelines in the regulations for usurpation of disciplinary authority by the appellate authority, assumption of disciplinary authority by the appellate authority would bring about discrimination between employees and the same is not permissible as has been held by the Hon’ble Supreme Court in the case of Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank and Ors. reported in AIR 1995 SC (W) 1069, followed by a learned Single Judge in CWJC No. 9676/1994 Sri Pradyuman Prasad v. The Bihar State Financial Corporation and Ors. and affirmed by the Division Bench in LPA No. 429/1996.
16. A look at these judgments would show that the basic principle is that an employee cannot be deprived of substantive right of appeal granted to him. However, at the same time it is also an accepted principle that the appellate authority may itself assume the power of the original authority. In order to ensure fair play and discipline it is a requirement of law that appropriate guidelines should be made available for usurpation of power of the original authority by the appellate authority and that is required for avoiding discrimination. In such view of the matter in the event principles have been laid down for the purpose of usurpation of the original power by the appellate authority and the same do not indicate vindication by discrimination, such usurpation of power cannot be said to be inappropriate.
17. In the instant case at about the time when the disciplinary matter of the appellant was under consideration, another disciplinary matter of the self-same employer was being considered by this Court and a Division Bench of this Court felt that when an allegation of bias has been levelled against the disciplinary authority, it would be futile if the disciplinary authority passes the order, instead if the order is passed by the appellate authority, the delinquent may get justice. Although no such order was passed in the case of the appellant but the same method had been adopted and there is no dispute that in fact the appellant had alleged biaseness against the disciplinary authority, which forced the appellate authority to take upon itself the burden of using the disciplinary power. We do not think having regard to the facts and circumstances of this case, usurpation of disciplinary power by the appellate authority in the instant case can be said to have vitiated the order impugned on the around of discrimination.
18. It is true that the original letter of dismissal as received by the appellant bears the date “18th” but the fact remains that the letter clearly refers the meeting of the Board of Directors held on 24th. The conclusion therefore, would be that “18th” as was typed on the said letter was a mistake.
19. It is true that the disciplinary proceedings against the appellant was initiated at the behest of the State Government, but that would not vitiate the proceedings on the ground of mala fide. Mala fide may be based on malice on facts or malice in law. Mere fact that the disciplinary proceeding was initiated at the instance of the State Government would not bring in either malice on facts or malice in law. It is not the contention of the appellant that the chargesheet as was issued did not contain charges to be enquired into. It is not the contention of the appellant that the charges as were levelled in the chargesheet were such charges, on the basis whereof no disciplinary proceeding against an officer of the Corporation could be initiated. There is no dispute that the chargesheet was issued by the authority competent to issue the same. Therefore, there is neither any malice on facts nor any malice in law and, accordingly, initiation of the proceeding cannot be questioned on the around of mala fide.
20. The facts as were alleged and the facts as emerged by looking into the documents upon which reliance had been placed by the appellant himself in answer to the charges would suggest that the appellant, a custodian of public money, acted in a manner unwarranted. If on these facts the employer reposes no further confidence in the appellant and accordingly decides to dissociate the appellant from it, no prudent person can call such a decision to be inappropriate. The question is, whether the facts as were brought on record did suggest that the appellant acted in a manner which could compel a prudent person not to continue to remain associated with the appellant. The fact remains that an unanimous decision taken by a committee of which the appellant was a Member was whittled down by the appellant by his subsequent actions. What was the consequence thereof is not of great importance. The fact that emerged demonstrates that a decision taken collectively was whittled down by a subsequent decision taken by one of the persons, who was also a contributory to the earlier collective decision.
21. It is true that the report of the Managing Director of the Board was not supplied to the appellant, but the fact remains that by reason thereof the appellant was not prejudiced at all in as much as the said report also suggested whittling down of a collective decision by the appellant, to which there is no factual dispute. Furthermore the Division Bench in the said case did not give any direction to supply to the delinquent a copy of the report of the Managing Director to the Board.
22. For the reasons as above and for the reasons already recorded in the judgment and order under appeal, we see no reason to interfere with the order impugned. The appeal accordingly fails and the same is dismissed.