TaxTMI 
TaxTMI 
2011 (1) TMI 1346
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....king as Branch Manager at the Biplabi Rash Behari Bose Road Branch, Calcutta of the appellant Bank. In the capacity of a Branch Manager, he granted numerous mid-term loans to a number of transport operators without making appropriate scrutiny of the applications as required under the rules. He had also granted the loans in excess of his discretionary power thereby exposed the Bank to the risk of serious financial loss. 4. A charge sheet dated 14th December, 1981 was served upon him alleging that he, during his incumbency as the Branch Manager of the Biplabi Rash Behari Bose Road Branch, Calcutta from 29th February, 1978 to 21st August, 1979 had granted medium term loans to large number of transport operators without making thorough scrutiny of the relative proposals. He had sanctioned the loans even before completion of the necessary formalities. The loans were granted without making any discreet enquiries to the credit worthiness of the borrowers/guarantors. He had thus violated the laid down norms and instructions of the Bank in this regard and thereby exposed the Bank to grave risk of financial loss. The gist of the allegations was as follows:- "(i) (a) granting loans, in as m....
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....rch, 1982 along with the respective relevancy to the charge sheet and likely whereabouts of the documents. He was also instructed to submit the list of additional witnesses, which were required to be summoned along with their latest addresses. By letter dated 31st March, 1982, the respondent informed the Enquiry Officer that he shall submit the list of defence witnesses and documents within "a couple of days". Thereafter, the defence representative of the respondent by letter dated 3rd April, 1982 addressed to the Enquiry Officer, submitted a list of witnesses and documents of the defence. According to the respondent, all the witnesses referred to in the list of witnesses were officers of the Bank. Similarly, the documents referred to, were also in the possession of the management of the Bank. Therefore, the respondent claimed that he was unable to produce either the witnesses or the documents in support of his defence, unless they were summoned by the Enquiry Officer. 7. It appears that the two witnesses referred to in the said application of the respondent were summoned. However, the documents relied upon by the respondent were not requisitioned. It was the case of the responden....
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.... 11. By order dated 6th June, 1984, the Appellate Authority upheld the order of the Appointing Authority imposing the punishment of dismissal. With regard to the non-supply of some documents, the Appellate Authority held that respondent had failed to submit the list of documents and witnesses within the stipulated time. Furthermore, he did not raise any objection during the course of the enquiry. 12. Being aggrieved by the aforesaid order of 1st December, 1984, the respondent filed a review application. He made a grievance that neither the Enquiry Officer nor the Disciplinary Authority or the Appellate Authority while passing the orders considered the material contentions raised by the respondent in his written statement of defence as well as in his petition of appeal. According to him, all the authorities proceeded with a predetermined mind and the orders have been passed mechanically. For the first time, he made a grievance that neither the documents mentioned in the application dated 3rd April, 1982 were requisitioned nor the witnesses mentioned in the list of witnesses were summoned. He then proceeded to set out the relevance of the documents which according to him would have ....
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....ondent was asked to submit his list of documents and witnesses by 31st March, 1982, but he failed to do so. He submitted the list after nearly two months and as such no action could be taken there upon. It is reiterated that the respondent did not make any grievance about the nonproduction of documents at the enquiry. He also did not raise any objection with regard to non-calling of any witness at the enquiry. It was stated that the allegations with regard to denial of natural justice are baseless and the respondent had in fact admitted that he committed the irregularity but he blamed the Head Office for not warning the respondent well in advance. His justification about the group guarantee was nullified by his own defence witness, a Development Manager, who deposed that the group guarantee is meant for poor sections of the community under Differential Interest Rate (DIR) loans and not for transport operators. It was also pointed out that group guarantees are taken only for loans of about Rs. 6,500/- or so and not for large amounts of Rs. 1 Lac and above. The appellant Bank also submitted that there were no violations of principle of natural justice. The appellant Bank also submitt....
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....and Ors Vs. S. N. Goyal (2008) 8 SCC 92 wherein the judgment in D.C. Aggarwal's case (supra) has been distinguished. Learned senior counsel had also relied on Disciplinary Authority-cum-Regional Manager and Ors Vs. Nikunja Bihari Patnaik (1996) 9 SCC 69 and Regional Manager, U.P. SRTC, Etwah and Ors Vs. Hoti Lal and Anr. . (2003) 3 SCC 605 19. On the other hand, Mr. Kalyan Bandopadhyay, learned senior counsel appearing for the respondent submitted that there has been a clear breach of procedure prescribed under Rule 50 subclause xi of the Service Rules. The Division Bench on consideration of the aforesaid rule concluded that the learned Single Judge did not take care of the procedural impropriety, i.e., breach of Rule 50 in conducting the enquiry proceeding against the respondent. Learned senior counsel further submitted that the procedural requirements under Rule 50 are mandatory in nature to ensure that there is a fair enquiry. Mr. Bandopadhyay further submitted that non-supply of the recommendations of the CVC being contrary to the requirements of the Service Rules, any further proof of prejudice was not required. Once the procedural rule had been violated, prejudice would be p....
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....ad. It is not the case of the Petitioner that by reason of any application rule or by reason of usage, custom or practice, the Authorities concerned, who have decided the matters, are bound to take into account such advice or recommendations of the Central Vigilance Commission. Therefore, despite such advice and recommendations having been given, the Authorities concerned, who are empowered to decide, may totally ignore such advice and recommendations and if they so ignore they will be well within their right to do so. In the instant case it has been denied that such advice or recommendations were taken note of or considered by the Authorities concerned, who passed the impugned orders. The orders in question have been set out above. From that it does not appear that the Authorities concerned have in fact considered any of the said advices or recommendations of the Central Vigilance Commission. Merely because the Central Vigilance Commission had given advice or recommendations, but the same were not furnished to the Petitioner to give him an opportunity to deal with the same, would not make the decisions impugned in the instant case bad, unless it is shown and established that the d....
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....the vigilance report. This apart, the Division Bench totally ignored the fact that the respondent did not care to raise the issue of non-supply of the documents during the entire course of the enquiry proceedings. He also totally omitted to raise such an issue in the written brief containing his defence arguments. The Appellate Authority in its order dated 6th June, 1984 noticed that the respondent had "failed to submit his list of documents and witnesses which he wanted to produce for the purpose of his defence within the date stipulated the Inquiring Authority and he also did not raise any objection during the course of enquiry." The Review Committee in its order dated 12th November, 1987 upon consideration of the entire matter observed as follows:- "The Petitioner has contended that certain documents required by him were not made available to him by the prosecution at the inquiry. The records reveal, in this respect, that he was asked to submit his lists of documents and witnesses by the 31st March, 1982 and that he had failed to do so. The lists were in fact received by the Presenting Officer on the 28th May 1982, far beyond the stipulated time, and as such no action was taken....
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....recommendations of the CVC. The judgment was, therefore, rightly distinguished by the learned Single Judge. 26. We may now consider the other judgments relied upon by Mr. Bandopadhyay. In the case of Kisan Degree College (supra), this Court noticed that the respondent was dismissed from service on the basis of an Enquiry Report. In that case, the respondent had at the earliest sought for inspection of the documents. He was, however, told to inspect the same at the time of final arguments in the enquiry. It was, therefore, held that the enquiry proceeding had been conducted in breach of rule of natural justice. The aforesaid judgment would have no relevance in the facts of this case. In the case of S.K. Sharma (supra), this Court held that violation of any and every procedural provision can not be said to automatically vitiate the enquiry held or order passed. Except in cases falling under - "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation Has prejudiced the delinquent officer/employee in defending himself properly and effectively. In the....
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.... employee to plead and prove that nonsupply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside." 28.We may also notice here that there is not much Substance in the submission of Mr. Bandopadhyay that mere breach of Rule 50(11) would give rise to a presumption of prejudice having been caused to the respondent. The aforesaid rule is as under:- "(x) (a) the inquiring authority shall where the employee does not admit all or any of the articles of charge furnish to such employee a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be proved. (b) The Inquiring Authority shall also record an order that the employee may for the purpose of preparing his defence: I. inspect and take notes of the documents listed within five days of the order or within such further time not exceeding five days as the Inquiring Authority may allow: II. submit a list of documents and witnesses that he wants for inquiry: III. be supplied with copies of statements of witnesses, if any, recorded earlier and the Inquiring Author....