Baldev Raj Mahi,
S/o Sh. Ram Asra, Nawanshahar (Pb)
Ex-Manager, Dated: 12-09
Baba Deep Singh Nagar,
Saloh Road,
Backside K.C.Palace, Nawanshahr (Punjab)
Distt. Sahid Bhagat Singh Nagar 1. Through proper channel of Deputy General Manager (DA),
Circle Office, Hoshiapur
The General Manager, 2. Direct copy to Appellate Authority
(Appellate Authority),
Personnel Administration Divn.,
Punjab National Bank,
Head Office, 7, Bhikaiji Cama Place,
New Delhi-110066
R/Sir
Reg: Appeal under Regulation 17 of D & A Regulations, 1977 in the matter of Charge Sheet dated 05-10 served upon me under Regulation 6 of D & A Regulations, 1977 by the Deputy General Manager (Disciplinary Authority), Punjab National Bank, Circle Office, Hoshiarpur, against the impugned orders of punishment vide No. COH/HRD/I/BRM/2298 dated 06-07, served upon me by the Assistant General Manager, (Disciplinary Authority), Circle Office, Hoshiarpur thereby inflicting the major penalty under Regulation 4 (h) of D & A Regulations, 1977.
Respectfully, it is submitted to consider as under:-
1. That the Deputy General Manager, the then (Disciplinary Authority), Circle Head, Hoshiarpur has served upon me Charge Sheet dated 05-10 under Regulation 6 of D & A Regulations, 1977 for the alleged lapses while I was working as Manager at BO Usmanpur and thereafter, he had also passed an order for regular enquiry proceedings.
2. That after conclusion of regular hearings and after receipt of enquiry report of the Inquiry Officer, the Assistant General Manager, now (Disciplinary Authority), Circle Office, Hoshiarpur has passed the final order vide No. COH/HRD/I/BRM/2298 dated 06-07 and inflicted the punishment under Regulation 4 (h) of compulsory retirement. The said impugned order dated 06-07-11 was served upon me on 16-07-11.
3. That being aggrieved from the disproportionate, harsh and shocking punishment to the conscious of a reasonable man, I prefer an Appeal under Regulation 17 of D & A Regulations, 1977 wherein there is a provision that such Appeal should be filed within the stipulated period of 45 days or alternatively to seek extension under Regulation 21 of D & A Regulations, 1977. In the present case, the period of 45 days was expiring on 29-08 and in apprehension that I may not be able to prefer the Appeal within the stipulated period of 45 days, I had further moved a separate application/representation on 23-08 thereby seeking extension under Regulation 21 of D & A Regulations, 1977 upto 14-09 which has not been responded adversely. In the light of my all these submissions, I hereunder prefer this Appeal within the period of extension upto 14-09 and thus, the Appeal is in order for favourable consideration. The issues in Appeal are as under:-
Preliminary Submissions
In the present case, neither the proceedings were called to order nor the same have been as per provisions made in D & A Regulations, 1977 nor the order of punishment has been reasonable nor based on merit and a number of violations of the principles of natural justice have been made thereby jeopardizing the interest in my defence case and to quote as under:-
1. That the following D & A Regulations have been violated which have been substantiated and statutory in nature being formulated and constituted by the Board in exercise of the powers conferred by Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970), the Board of Directors of Punjab National Bank in consultation with the Reserve Bank of India and with the previous sanction of the Central Government, thereby making the said Regulations namely Punjab National Bank Officers Employees (Discipline & Appeal) Regulations, 1977 and to quote as under:-
a) Violation of Regulation 6 (3)
This Regulation provides that the allegation should be specific and distinct and not general in nature because the allegation which is general in nature, the same is vague and ambiguous. But in the present case, a number of statement of imputations are vague and ambiguous wherein the guilt has not been described with the detail of events in a specific and distinct manner.
b) Violation of Regulation 6 (3)
This Regulation further provides that the listed documents per Annexure-III of the charge sheet should be enclosed with the charge sheet and incase of any difficulty, the same should be recorded in detail. But in this case, neither the documents were enclosed with the charge sheet in terms of Annexure-III of the charge sheet nor any reason for not providing the same was recorded. To the contrary, I was advised to submit my defence statement which was not possible without referring to the listed documents and without taking assistance. Thus, the interest of my defence has been prejudiced and the opportunity to file my defence statement was denied. Thus, the interest in my defence case was prejudiced.
c) Violation of Regulation 6 (4)
This Regulation provides that the Disciplinary Authority would consider the defence statement of the CO and only thereafter, he would decide if a departmental enquiry was necessary or not. But in this case without affording me an opportunity of submitting defence statement, the order of enquiry was made. I had myself written to the Disciplinary Authority specifically that the copies of listed documents should be provided so that I may refer the same with the originals and may take assistance for preparing and submitting proper and effective defence statement but instead of providing me the copies of listed document, order of enquiry was made vide letter dated 16-11. This Regulation, to the contrary, provides that enquiry is not necessary in all the cases.
d) Violation of Regulation 6 (5)
This Regulation provides that the Disciplinary Authority should provide the complete set of charge sheet, complete set of listed documents per Annexure-III of the charge sheet, list of witnesses etc., to the Inquiry Officer so that the Presenting Officer may not come into picture to interfere with these documents. Thereafter, these documents would also be provided directly by the Inquiry Officer to the CO. But neither the said documents were enclosed with the charge sheet nor these were provided to the Inquiry Officer and thus, the strict provisions of the Regulations were violated. Not only this but the Presenting Officer was made fully authorized either to add any document or to delete any document or to prepare any list of documents and witnesses, without any such authority with the Presenting Officer in terms of D & A Regulations, 1977. Even D & A Regulations do not agree that the Disciplinary Authority may delegate these powers to the Presenting Officer for want of specific provisions in the said Regulations. Thus, the interest of my defence case was prejudiced.
e) Violation of Regulation 6 (10-a)
This Regulation also provides that the Inquiry Officer would provide the set of documents to the CO as it was received by him from the Disciplinary Authority in terms of Regulation 6 (5) of D & A Regulations. But in this case, the Presenting Officer has provided the list of documents and also copies of the documents without any power and without any authority in terms of D & A Regulations. Thus, prejudice to the case of my defence.
f) Violation of Regulation 6 (11)
This Regulation also provides that the Inquiry Officer should requisition the documents directly from the custodian instead of involving the Presenting Officer for the documents requisitioned by the CO. But in this case, the Inquiry Officer involved the Presenting Officer instead of requisitioning the documents directly from the custodian due to which, my interest in my defence has been jeopardized. It may be seen that the Presenting Officer has denied various documents in the name of non-availability whereas the same were available and incase of actual loss, no responsibility and accountability was ever fixed by the Disciplinary Authority. Thus, prejudice to the case of my defence.
2. That the Presenting Officer has adduced a number of those documents which were not listed by the Disciplinary Authority in his list in terms of Annexure-III of the charge sheet without any power and without any authority as it is not known to D & A Regulations. Thus, prejudice to the case of my defence.
3. That the Disciplinary Authority had made out it a case of no evidence as no list of witnesses was prepared. But the Presenting Officer modified and revised the charge sheet by submitting his own list of witnesses whereas this power was not vested with the Presenting Officer in terms of D & A Regulations, 1977. Thus, prejudice to the case of my defence.
4. That the investigation report vide Exbt M130 has been a redundant document whereas it was relied upon by the Inquiry Officer and Disciplinary Authority to prove the charges. It is mentioned that the investigation report is not a valid document to prove the charge even if the signatures of its author are recognized by a witness alongwith contents in the report. It is so, because for the purpose of ratification of report, the examination of its author is necessary before the Inquiry Officer so that an opportunity of defence by way of cross examination by the CO is provided to him wherein the vertical and the horizontal profile of the report and its author are examined. In absence of cross examination of the author of the investigation report, it is a redundant document because to prove the truth in the contents of the report is a different matter than the matter to identify and to recognize the contents in a report and as such, both these aspects are different and distinct. It is also added that if the Exbt M130 is deleted from the enquiry record, then, nothing is substantiated against me because whatever it has been relied upon by the Inquiry Officer and the Disciplinary Authority, the same has been based on this Exbt M130. Thus, prejudice to the case of my defence.
5. That with regard to the charge I (A) relating to the account No. JB64 in the name of Suresh Madaan and Sh. Vishal Madaan sanctioned on 15-10, it is submitted that w.e.f. 13-09 to 29-10, I was in abroad against sanctioned leaves whereas this loan was sanctioned, disbursed and reported to the controlling authority by Sh. M.L.Ahuja, who was officiating in my place as Incumbent Incharge. In this case, I have simply put my signatures on sanction after returning from abroad on or after 30-10 with the presumption that I was one step higher in MMGS-II than Sh. M.L.Ahuja, who was JMGS-I to ratify his action but the various reportings made by Sh. Ahuja have also been attributed to me towards proving the charge. Thus, I was grossly discriminated.
6. That the Disciplinary Authority has disagreed with the findings of the Inquiry Officer with regard to charge-I (B), (C) and (D) wherein the Inquiry Officer has not proved these charges but the Disciplinary Authority has shown his disagreement with the findings of the Inquiry Officer and has also recorded his ‘dissent note’ and on the basis of the same, this punishment was inflicted upon, without affording me an opportunity of representation. In such cases, the procedure is that the Disciplinary Authority should have issued a show cause notice with the disagreed findings and ‘dissent note’ thereof so that the CO may submit his representation for favourable consideration by the Disciplinary Authority with application of judicious mind and only thereafter, he should proceed further to pass final order of punishment or exoneration or as the case may be in terms of Regulation 7 (2). Since this procedure was not followed up and the final order was passed in one go, therefore, the entire order of punishment is vitiated on this ground alone.
7. That the imputations which are not included in the Article of charge are also not a charge and the punishment based on them is not liable to be sustained.
- That It is submitted that whatever the charge is there, the same is Article of charge and whatever it is not mentioned in the Article of charge, the same is not an allegation. It is also relevant to state that the statement of imputation is not a charge but it is a statement of ‘mix’ i.e. statement of facts and statement of allegation just to support the Article of charge whereas the Article of charge is not to support the statement of imputation. Accordingly, that statement of imputation in a charge which is not included and covered under Article of charge should not be considered as a charge, but statement of facts.
But in this case, there are a number of statement of imputations which are outside the purview of the Article of charge whereas the same have been considered as proved and the order of punishment has also been based on those statement of imputations. Thus, the punishment in question is highly disproportionate, harsh and shocking in nature.
8. Discrimination in violation of Article 14 of Constitution of India
- That it is submitted that Sh. Harpal Singh, Sh. M.L.Ahuja and Sh. Dalwinder Singh etc., have been writers and the signatories to all the respective loan documents, loan proposals, copies of FDRs etc., which have been indicated in the charge sheet but surprisingly no disciplinary action proceedings were initiated against them whereas I have been discriminated by initiating disciplinary proceedings and inflicting of harsh and shocking punishment of ‘compulsory retirement’
9. That the copies of first stage and second stage advice of the CVO were not provided to me whereas the same were considered on the behind of my back thereby prejudicing the interest in my defence case which is against the principles of natural justice.
It is submitted that the Disciplinary Authority has received first stage advice as a vetting and approval of the charge sheet whereas copy of it was not provided to me alongwith charge sheet for my representation. Similarly, second stage advice was also received by the Disciplinary Authority from the CVO whereas copy of it was also not provided to me before passing final order, so that I could represent in the matter for favourable consideration by the Disciplinary Authority. This procedure adopted by the Disciplinary Authority by considering the material documents on the behind of my back is not known either to the law or to the principles of natural justice or to the D & A Regulations, 1977. The bank has itself prepared and circulated Vigilance Manual wherein it has been specifically provided that copy of first stage and second stage advices should be provided to the CO for his representation in terms of Chapter 6 Para 12 page 44, 45 and for the purpose of brevity, the same is reproduced hereunder:-
Provision of the Vigilance Manual circulated by the Head Office to all the branches:- Chapter 6 para 12 paged 44 & 45
12 Making available copy of CVC advice to the CO
To enable the concerned employee an opportunity to make his representation on the advice of CVC, a copy of advice received may be made available to him:
a} First stage advice:- A copy of Commission's first stage advice may be made available to the concerned employee along with a copy of charge sheet for his information. However, it is not necessary to call for the representation of the concerned employee as he, in any case, gets an opportunity to represent against the proposal for initiation of departmental proceedings against him.
b] Second stage advice:- When the CVC's second stage advice is obtained, a copy thereof may be made available to the concerned employee along with report of Enquiry Officer to give him an opportunity to make representation against Enquiry Officer's findings and the CVC's advice, if he desires so.
10. That it was not the decision of the Disciplinary Authority but of the CVO to inflict the punishment of ‘compulsory retirement’ and since the order of punishment is highly influenced from extraneous factors and as a binding decision of the CVO, therefore, the same is not liable to be sustained.
That after receipt of final order, I was guided by some of my friends that it was a case which was duly registered with the CVO and the CVO has provided the first stage and second stage advices to the Disciplinary Authority which were considered by the Disciplinary Authority on the behind of my back. I was also guided that it was not the decision of the Disciplinary Authority but of the CVO to inflict the punishment of ‘compulsory retirement’ or any such punishment whereby I can be removed from the bank’s services. Accordingly, I tried to obtain the copies of these documents but the same were not provided due to which, I have thereafter applied for this information under RTI Act to the CPIO, Circle Office, Hoshiarpur vide my application dated 18-07 and thereafter, the CPIO, Hoshiarpur vide his letter dt.30-08 has provided me copies of the first stage and second stage advices of the CVO whereby the CVO succeeded to get his forceddecision implemented by way of inflicting the punishment through Disciplinary Authority of my ‘compulsory retirement’ from the bank services as is evident from the following documents”-
a) That in terms of letter No. COH: HRD:1:BRM: DAC:287 dt.29-01-11 of Deputy General Manager (Disciplinary Authority), Circle Office, Hoshiarpur to CVO Vigilance Deptt., Head Office, New Delhi, he has placed his recommendations to read as under:-
Vide letter dt.29-01 of Disciplinary Authority to CVO, New Delhi
“After giving due consideration to the contents of enquiry proceedings, written briefs of both Presenting Officer and CO, enquiry report and comments of the CO and keeping in view the gravity of lapses, committed by Sh. B.R.Mahi, I propose to impose upon him major penalty of “Reduction to five lower stage in the time scale of pay for a period of five years with further direction that he will not earn increments during the period of such reduction and on expiry of such period, the reduction will have the effect of postponing the future increments of his pay in terms of clause 4 (f) of Punjab National Bank Officer Employees (D & A Regulations, 1977)” Further, on revocation of his suspension, he will not be entitled to any benefit monetary or otherwise for the period of suspension except the subsistence allowance, already paid to him.
On receipt of your advice in the matter, we shall act upon accordingly.
Sd/-
29-01
Deputy General Manager
(Disciplinary Authority)
b) That thereafter the CVO, Head Office, New Delhi through Chief Manager vide his letter NO.VIG/HSPR/4520/2296 dated 10-03 conveyed the following directions as observations thereof.
Vide letter dated 10-03 of CVO through Chief Manager to Circle Head, CO, Hoshiarpur
“Please refer to your letter No. COH: HRD:1:BRM: Disciplinary Action Cell:287 dt.29-01 forwarding therewith the case of Sh. Mahi for seeking our second stage advice.
The matter was examined and placed before the CVO who has observed that :-
“Some of the charges have been held proved and have extreme malafide and moral turpitude issues. Normally, it would be difficult to agree for such officers to continue in the services of the bank when doubtful integrity and/or moral turpitude issues are involved.”
In view of the above observations of the CVO, Disciplinary Authority is requested to re-examine the matter and send us his reconsidered views for our further necessary action. Incase of disagreement, Disciplinary Authority may send the case with justifications thereof.
Please treat the matter as most urgent.
Sd/-
Chief Manager
c) That thereafter the Circle Head, Disciplinary Authority, Hoshiarpur has again persuaded the CVO in terms of his letter No.CO: HRD/1:DISCI:991 dt.24-03 that the punishment of reduction in stages would suffice and for the purpose of brevity, the same is also reproduced hereunder:-
Vide letter dated 24-03 of Circle Head (Disciplinary Authority), Hoshiarpur to CVO, Head Office, New Delhi
“As per advice, the entire record relating to the Disciplinary Authority case of Mr. Mahi has been re-examined and we do agree that some of the charges have been held proved but at the same time keeping in view the period of more than 27 years of service at his credit and his performance as Incumbent Incharge at the branch which remained at satisfactory level--barring the irregularities mentioned in the charge sheet – we propose that he may be given a chance to prove his bonafide in the interest of institution by allowing him to work on non-sensitive positions and he may be advised to mend his ways of functioning. At the same time, we also propose to impose the penalty ‘reduction to seven lower stage in the time scale of pay for a period of seven years with further direction that he will not earn increments during the pay of such reduction and on expiry of such period, the reduction will have the effect of postponing the future increments of his pay in terms of clause 4 (f) of Punjab National Bank Officer Employees (D & A Regulations, 1977).
d) That thereafter the CVO through Chief Manager vide his letter VIG.HSPR/4520/3833 dt.19-04 conveyed to the Circle Head to read as under:-
Vide letter dated 19-04 of CVO, New Delhi to Circle Head, Hoshiapur
“The matter was examined and placed before the Chief Vigilance Officer who has opined as under:-
“The actions of erring official involves issue of moral turpitude/doubt about his integrity as OD against FD of zero balance, issuance of fake education loan/certificate for AUD etc., Hence, continuation of his services in the bank is not desirable.”
Keeping in view the above observations, Disciplinary Authority has requested to re-examine the matter and send us his reconsidered views enabling us to place the same before the Chief Vigilance Officer.
Sd/-
Chief Vigilance Officer
e) That thereafter the Circle Head (Disciplinary Authority) has again reiterated his earlier recommendations as contained in letter dated 24-03, vide his revised letter dt.04-05 to the CVO to read as under:-
Vide letter dated 04-05 of Circle Head, Hoshiarpur to CVO, Head Office, New Delhi
“As per advice, the entire record relating to the Disciplinary Authority case of Mr. Mahi has been re-examined and we do agree that the action of erring official involves issues of moral turpitude/doubt about his integrity but on reconsideration of the entire case, we reiterate that keeping in view the period of more than 27 years of service at his credit and his performance as Incumbent Incharge at the branch which remained at satisfactory level – barring the irregularities mentioned in the charge sheet – we propose that he may be given a chance to prove his bonafide in the interest of institution by allowing him to work on non-sensitive position and he may be allowed to mend his ways of functioning. At the same time, we also propose to impose the penalty “Reduction to seven lower stage in the time scale of pay for a period of seven years with further directions that he will not earn increments during the period of such reduction and on expiry of such period, the reduction will have the effect of postponing the future increments of his pay in terms of clause 4 (f) of Punjab National Bank Officer Employees (D & A Regulations, 1977)
Sd/-
Circle Head
f) That thereafter again the CVO pressurized the Disciplinary Authority to inflict such punishment wherein the CO may not be in the service of the bank vide letter No. VIG/HSPR/4520/4642 dt.01-06 and the relevant text of the same is also reproduced hereunder:-
Vide letter dated 01-06 of CVO, Head Office, New Delhi
The matter was examined and placed before the Chief Vigilance Officer who has opined as under:-
“In the matter, where public money is involved and the intention of an Officer is seen to be doubtful integrity/malafide, there can be no negotiations. He is unable to agree with the Disciplinary Authority’s views as in his views, his stiff major punishment is called for. Giving another chance to a person of doubtful integrity can jeopardize the public funds and can also lead to other innocent officials getting in trouble”
Keeping in view the above observations, Disciplinary Authority is requested to re-examine the matter and send us his reconsidered views enabling us to place the same before the Chief Vigilance Officer.
Sd/-
Chief Manager
g) That thereafter the Disciplinary Authority vide his letter No.CO: HRD/1:DISCI:1779 dt.15-06 has finally yielded and surrendered before the CVO and revised his recommendations to read as under:-
Vide letter dt.15-06 of Circle Head (Disciplinary Authority), Hoshiarpur to CVO
“As per advice the relevant record relating to the Disciplinary Authority case of Sh. Mahi has been re-examined and while agreeing with the views of the CVO we, after reconsideration, propose to impose the penalty ‘compulsory retirement’ under clause 4 (h) of Punjab National Bank Officer Employees (D & A Regulations, 1977) in the matter of captioned charge sheet. Further, he will not be entitled to any benefit monetary or otherwise for the period of suspension except the subsistence allowance, already paid.
h) That after getting his order recommended from the Disciplinary Authority, the CVO immediately agreed upon with the proposed punishment vide letter No. VIG/HSPR/4520/5527 dt.28-06 to the Circle Head and the same is also reproduced hereunder:-
Vide letter of the CVO through Chief Manager dt.28-06 to Circle Head, Hoshiarpur
“The matter was examined and placed before the Chief Vigilance Officer who has concurred with the views of Disciplinary Authority to impose upon Sh. Mahi the penalty of ‘compulsory retirement’ – under clause 4 (h) of Punjab National Bank Officer Employees (D & A Regulations, 2977) in the matter of captioned charge sheet. “
From the above, it is evident that the CVO vide his advice dated 10-03 succeeded to get his decision implemented finally on 28-06 for which, the Disciplinary Authority was compelled to change his recommendations four times i.e. first recommendations dated 29-01 to inflict the punishment of reduction of my salary by five stages for a period of five years, thereafter on 24-03 for reduction of my salary by seven stages for a period of seven years, thereafter again on 04-05 to reiterate the earlier recommendations dated 24-03 for reduction of salary by seven stages and finally on 15-06 to inflict the punishment of my ‘compulsory retirement’ for which the CVO was adamant since beginning to inflict that punishment by which I may be out of bank services. Had it been the independent decision of the Disciplinary Authority, then, it was not required by him to send his recommendations four times and he would have inflicted the punishment in one go as per his earlier recommendations to inflict the punishment of reduction of my salary by five stages. Thus, it was a forced decision of the CVO instead of the Disciplinary Authority.
The Learned Courts have not favoured to continue such decisions of the CVO and for the purpose of brevity, I refer the following landmark judgements only to impress upon that my submissions are legally sound and are liable to be considered favourably by the Appellate Authority in a sympathetic manner.
- Nagraj Shivarao Karjagy Vs. Syndicate Bank, Head Office, Manipal 1991 (2) SCT-307-SC/AIR-1991-SC-1507.
- State Bank of India V/S D.C Aggarwal 1993 (1), SCT –225
- VK Gupta V/S SBI and others 2002 (2) SCT-1120
- Kumayu Mandal Vikas Nigam Ltd. V/S Girja Shanker Panth and Others - Supreme Court cases 182;
- State Bank of India Vs. D.C Aggarwal 1993 (1) SCT-225-SC/AIR 1993-S.C.1997
- A.N.D’s Silva V/S Union of India 1962 Suppl.(1) SER-968.
- S. Sheokand Vs. Oriental Bank of Commerce 2004 (2) SCT-667 (P&H).
The relevant text of the case S.B.I Vs. D.C. Aggarwal vide para-4, 5 & 6 is reproduced hereunder:-
“None of the submissions are of any help. The order is vitiated not because of mechanical exercise of power or for non-supply of the inquiry report but for relying and acting on material which was not only irrelevant but could not have been looked into. Purpose of supplying document is to contest its veracity or give explanation. Effect of non-supply of the report of inquiry officer before imposition of punishment need not be gone into nor it is necessary to consider validity of Rule5. But non-supply of CVC recommendation which was prepared behind the back of respondent without his participation, and one does not know on what material which was not only sent to the Disciplinary Authority but was examined and relied, was certainly violative of procedural safeguard and contrary to fair and just inquiry. From letter produced by the respondent, the authenticity of which has been verified by the learned additional solicitor general, it appears the bank turned down the request of the respondent for a copy of CVC recommendation as ‘the correspondence with the central vigilance commission is a privileged communication and cannot be forwarded as the order passed by the Appointing Authority deals with the recommendation of the CVC which is considered sufficient’. Taking action against an employee on confidential documents which is the foundation of order exhibits complete misapprehension about the procedure that is required to be followed by the Disciplinary Authority. May be that the Disciplinary Authority has recorded its own findings and it may be coincidental that reasoning and basis of returning the finding of guilt are same as in the CVC report but it being a material obtained behind back of the respondent without his knowledge or supplying of any copy to him, the High Court in our opinion did not commit any error in quashing the order. Non- supply of the vigilance report was one of the grounds taken in appeal. But that was so because the respondent prior to service of the order passed by the Disciplinary Authority did not have any occasion to know that CVC had submitted some report against him. The submission of the learned additional solicitor general that CVC recommendations are confidential, copy of which, could not be supplied cannot be accepted. Recommendation of vigilance prior to initiation of proceedings are different than CVC recommendation which was the basis of the order passed by the Disciplinary Authority.
Even the submissions of non-prejudice is not well founded. The respondent was a very senior officer of the bank. He was promoted to the top executive grade in August’ 1980. We have refrained from entering into merits but once the Disciplinary Authority found that the action of the respondent did not cause any harm to the bank not the respondent gained out of it the higher court cannot be said to have misdirected itself in quashing the order for procedural error.
In the result the appeal fails and is dismissed with costs.”
Thus, the aforesaid punishment is not liable to be sustained.
11. That most of the charges have been leveled after lapse of four years period which are against the principles of natural justice and in violation of the bank guidelines.
The Head Office has issued instructions that no charge sheet should be served upon to the officer concerned wherein the event is more than four years period and the irregularity is related to the procedural lapse. But in this case, there are a large number of imputations wherein the events are more than four years period relating to procedural alleged lapses. Thus, the order of punishment is not reasoned.
12. That prior to issuance of the charge sheet, neither any explanation was ever called nor any tabular proforma was even serviced as per system in vogue.
That the bank has developed a system that before issuing of the charge sheet, the explanation of the alleged erring official should be called so that the issues are examined in an impartial manner and also without leaning of mind towards the investigation report as charges. But in this case, this procedure was not followed up and thus, the case in my defence was prejudiced.
13. That the Presenting Officer has adduced the documents in piece meal due to which, the interest of my defence was prejudiced.
The Presenting Officer has not adduced the documents at its threshold stage but in piecemeal i.e. on 12-02 vide Exbt ME2 to ME124, thereafter on 22-02 vide Exbt ME125 to ME132 etc., whereas the proceedings were held on various other dates prior to 12-02-10 and 22-02-10 i.e. 07-12-09, 08-12-09, 29-12 and 20-01-10.
14. That the witnesses were examined without providing the documents in defence and also on the same day when the list of witnesses was adduced and the procedure so adopted is not known to the Law or to the D & A Regulations, 1977.
That on 13-04, I had submitted my list of documents vide Exbt DE2 (a to e) whereas the Presenting Officer has also submitted his list of witnesses from MW1 to MW6 on 13-04 itself and thereafter he had also got his witness MW1 examined without a proper opportunity of defence. As per procedure, first of all the documents in defence should have been provided for confrontation and cross examination of the prosecution witnesses. It is also a settled law that before examination of the witnesses, clear notice of three days’ should be given. Thus, the procedure so adopted has been violative of principles of natural justice thereby vitiating the order of punishment.
15. That if the listed witnesses of the prosecution are not examined then, the order of punishment is not liable to be sustained.
The Presenting Officer has listed Sh. S.R.Garg, the writer of the Exbt M130 which is an investigation report vide his list dated 13-04 at Sr. No.5. But thereafter, he was not examined either for ratification of the Exbt M130 or for affording me an opportunity of his cross examination. To the contrary, the Inquiry Officer and the Disciplinary Authority both have relied upon the Exbt M130 for the purpose of proving the charges. Infact, this charge sheet is nothing but a true copy or replica of the Exbt M130. If the Exbt M130 is withdrawn from the record of enquiry, then, no charge is proved against me. But the fact remains that when Sh. S.R.Garg was a relied upon witness of the Presenting Officer then, his non-examination before the Inquiry Officer has vitiated the order of punishment as it is fatal to the case of the prosecution.
16. That the charge sheet was issued when most of the accounts were already closed without any financial loss to the bank.
As per my subsequent submissions, it is evident that most of the accounts have already been closed before the issuance of charge sheet, thus, the charge sheet was without any cause.
17. That the bank has never been short of funds or collateral securities in the matter of those loan accounts wherein the statement of imputation has been prepared and projected in a manner as it was a fraud case. (vide charge No. II (A), VII (B)
It is submitted that bank has never been short of funds in those loan accounts wherein it has been alleged that the FDRs were issued with zero balance and overdraft facility was thus sanctioned against those FDRs by treating them as clean advances. But the fact in those cases has been different that on account of foolish or inadvertent but bonafide error, the SF accounts could not be debited as the FDRs were to be prepared to debit of SF accounts and whatever the amount was required in respective FDRs, more than that remained outstanding in the respective SF accounts and the same was also never withdrawn by the party. Finally, the FDRs were closed by debit to SF accounts in the respective cases.
But while preparing the statement of imputation, the fact that more than the similar amount of FDRs remained available throughout in the respective SF accounts was not mentioned. This fact was also not included in the statement of imputation that the said FDRs were to be prepared to the debit of SF accounts wherein, CTO did not debit the account despite putting his signatures on the vouchers to show such debits.
Since the bank never remained short of funds in any of the cases, therefore, these were not fraud cases. Moreover, the bank has not suffered any loss on account of this bonafide lapse because lower rate of interest was paid by the bank for the amount remained in the respective SF accounts than the higher rate of interest to be paid in the respective FD account. Thus, this point may kindly be reviewed so that my this case may come out from vigilance overtone or showing integrity as doubtful.
18. That my case was not considered on humanitarian grounds.
a) That I always received meritorious and appreciation letters for my working as Incumbent Incharge.
b) That my track record has been unblemished.
c) That I had already put clean and clear service of 27 years in the bank and thus, it was necessary to see my track record of 27 years period.
d) That there is no fraud in any of the cases except at the most may be foolish bonafide inadvertent procedural lapse, if any.
e) That my wife has since been expired after prolonged expensive illness.
f) That I have no son to take care of my family affairs.
g) That I have three daughters for their education and marriage.
h) That I am suffering from the disease of Flaria which is uncureable.
i) That I have no other source of income.
j) That I do not have any past savings or funds in any shape or form or even I am not in a position to continue my family members with food, clothing, education, medical care and to discharge all other social and substantial and subsistent requirements for survival and to live with honour and dignity in the society.
k) All sympathies as human being are required.
l) That I was not the only person in the branch whereas all other officials have been exonerated for the same course of lapses and only I have been discriminated in the matter.
m) Due to un substantiated charges I and my whole family remained tense, and due to paucity of funds I could not provide proper treatment to my wife and to my self. Due to tension in my family my wife died in the prime of her youth. My family life is fully destroyed due to tension in my family. There was also a loss to the education of my children due to paucity of funds. On the wrong report of Sh. G.L Sharma senior Manager I was also defamed in the society. Due to the un timely death of my wife even my small kids have to go to bed without proper food. Because of prejudiced behaviour of some senior officers my whole career has been spoilt. The whole work and increase in the business done by me in this branch has been down graded. I was expecting promotion from this branch but I got tarnished. I achieved all targets which were always appreciated by higher authorities which were never met previously in this loss making branch.
On Merit
Article No. I – He issued fake FDRs/fake sanction letters of education loan/fake overdraft limits in the absence of proper sanction at branch level.
Charge 1 (A) – Sh. Mahi has sanctioned term loan (education) loan of Rs.4 lac (account No. JB64) for pursuing diploma course in favour of Sh. Suresh Madan and Sh. Vishal Madan on 15-10 and has committed the following irregularities.
a) He sanctioned term loan (education) loan of Rs.4 lac for pursuing diploma course without seeking prior administrative clearance from the competent authority.
Case of the defence
1. That the statement of imputation is outside the purview of Article of charge because the Article provides that I had issued fake sanction letters of education loan whereas the statement of imputation provides that the said loan was sanctioned without prior administrative clearance from the competent authority, which is not the charge. Thus, the findings of the Inquiry Officer/Disciplinary Authority are arbitrary and perverse as the same have been based on statement of imputation instead of Article of charge. It is a settled principle that the findings have to be based on Article of Charge instead of statement of imputations because the statement of imputation is only to support the Article of Charge and thus, the allegation which has not been included in the Article of charge, the same is not to be proved. The Article of charge does not provide that prior administrative clearance from the competent authority was required while sanctioning education loan.
2. That it is a settled law that the Inquiry Officer has to record his findings on Article of Charge, incase a charge has been proved on the basis of provisions made in a particular Article of Charge and not on the basis of statement of imputations. The statement of imputation is only to support the Article of Charge and when the statement of imputation is outside the purview and jurisdiction of the Article of Charge, then, the charge is not proved.
Bank has also issued instructions to this effect in terms of Vigilance Manual by the CVC vide para 12.1.3 page 143 which provides to read as under:-
"Special care has to be taken while drafting a charge sheet. A charge of lack of devotion of duty or integrity or unbecoming conduct should be clearly spelt out and summarized in the Article of Charge. It should be remembered that ultimately the l.O. should be required to place his specific findings only on Articles as they appear in the charge sheet. The courts have stuck down charge sheets on account of the charges framed being general or vague (S.K. Rehman Vs. State of Orissa 60 CLT 419)"
3. That on account of not including the imputation i.e. requiring prior administrative clearance before sanction, in the Article of charge, the opportunity of defence was not provided. I was guided that I have to defend myself to the extent the allegation is covered under Article of charge because the entire statement in the imputation is not a charge but may be statement of facts. Thus, the findings were vitiated being illegal since the principles of natural justice have been violated and the findings were not based on the principles of penal jurisprudence.
4. That as per record of the enquiry, it is a fact that the loan was sanctioned on 15-10and in terms of Exbt M2, the letter of sanction was signed by Sh. M.L.Ahuja, who was officiating as Manager in my absence and at the same time, the loan application dated 13-10 vide Exbt M3 was also filled in by Sh. M.L.Ahuja, the letter dated 19-10 of the branch to Assistant General Manager, BO Phagwara was written and signed by Sh. M.L.Ahuja for issuing of DD for AD 10350 fvg Holmes Institute and per Exbt M3 (d), the LSS was also signed by Sh. M.L.Ahuja. It is pertinent to mention that w.e.f. 14-09-07 to 29-10, I was on sanctioned leave and not only this but during this period, I was in England and not in India as I had visited there to see one of my relatives and the branch was being headed by Sh. M.L.Ahuja, my second man. For this purpose, the leave was sanctioned by the controlling office and the office order vide Exbt D48 dt.13-09-07 was also issued.
5. That as per enquiry record, the sanction letter Exbt M2 has been signed by Sh. M.L.Ahuja and thus, the charge is not proved against me. But the Inquiry Officer and the Disciplinary Authority have either misconceived or have been deliberate in the matter that my sanction on the loan application has been considered as a conclusive and alone sanction.
Basic Error and technical grounds therein considered by Inquiry Officer/Disciplinary Authority.
It is submitted that I have been implicated on technical grounds and not on merit by committing a basic error in the findings and also in the impugned orders in question. The Attributable technical error has been on my part also that after my returning from Abroad on 30-10 or thereafter, Sh. M.L.Ahuja told me that he has disbursed the loan in this case in my absence and as per scheme, the sanction was required from one stephigher authority and as I was one step higher to him in rank and file, therefore, the loan should be sanctioned by me so that no objection from the Regional Office is received or invited. It is also placed on record that neither I have been extraordinary intelligent nor highly qualified and I am quite normal in my wisdom with the nature to depend and to rely on my staff members/colleagues and friends. Secondly, my wife was seriously ill during those days with the disease of muscle weaknesses due to which, she was unable to undertake day to day operations in the house as a housewife like cooking, washing, cleaning etc., Thirdly, I was not having any son and fourthly I was having three daughters who have been school and college going. So, I was also deeply involved in undertaking house affairs relating to cooking, washing, cleaning etc. and at the same time official duties were also being discharged. Accordingly, being Incumbent Incharge under the given circumstances and my being in nature to be soft with the junior or associates and to rely upon them, I was pulling on my duties as a mix. Under these circumstances, I relied upon Sh. M.L.Ahuja who was otherwise very active and intelligent than me and put my sanction on the loan application. Thus, it is the only my misfortune and turning point in the case because only this technical point has been caught by the Inquiry Officer and the Disciplinary Authority and the entire burden of the sanction has been put on my shoulders and HEAD without application of judicious mind that whatever it has to be pursued or read over, the same has to be between the lines. Not only this but I was also seriously discriminated that Mr. M.L.Ahuja was left scot free despite the fact that he has filled in the application, he has disbursed the loan, he has signed the consideration vouchers, he has got issued demand draft in foreign currency from the foreign exchange branch at Phagwara, he has remitted the remittance through draft by sending the demand draft in Australia to the Institute, he was neither charge sheeted nor punished knowing well that during this entire period, I was not even in India but in Abroad.
Specific prayer to the Appellate Authority
1. That as per charge, the sanction letter dated 15-10 vide Exbt M2 has been signed by Sh. M.L.Ahuja and not by me. Thus, the Article of charge is directly attributed to Sh. Ahuja.
2. That the basic error in the assessment of findings by considering my sanction on the loan application as a sanction letter may kindly be rectified because application is a separate document vide Exbt M3 whereas the sanction letter is only vide Ext M2. Thus, the evidence has to be looked into properly to arrive at correct findings instead of manipulated findings.
3. That my sanction on the loan application as post facto may not be considered as a tool to victimize me and the material evidences to construe that who has virtually and practically and expressly sanctioned and disbursed, may kindly be looked into vide Exbts M2, M3 (d) etc.,
4. That it may also be seen that I have been discriminated because no action was taken against Sh. M.L.Ahuja who has filled in loan application, who has disbursed the loan, who has arranged demand draft in foreign currency from BO Phagwara, who has remitted the draft to the Institution in Australia, who has signed the consideration vouchers, who has signed the sanction letter, who has signed the LSS.
5. That a judicious and sympathetic view may kindly be taken instead of disposing the Appeal on technical grounds as it has been earlier done by the Inquiry Officer and the Disciplinary Authority.
Charge 1 (A) (b) – He has provided false information to the competent authority for getting his sanction confirmed. It was informed vide his letter dated 23-11-07 that the loan is secured by way of lien on FDR of Rs.5.00 lac whereas no such FDR was available as security in the account. Further, no such FDR was ever issued by the branch. Bal. o/s in the loan account as on 05-08-09 is Rs.3, 73.047.50.
Case of the defence
1. That the statement of imputation is not covered under Article of charge because Article provides that I had issued fake FDR whereas imputation provides that I had provided false information for seeking confirmation of action that the loan was secured by way of lien on FDR of Rs.5 lac which is not the charge. Further, when no FDR was ever issued by the branch in question then, as to how the allegation of issuing fake FDR could be sustained. Thus, the allegation is not proved being outside the purview of Article of charge.
2. That the findings of the Inquiry Officer/Disciplinary Authority have been based on the Exbt M130/G which is investigation report dated 25-08 signed by S.R.Garg, Internal Senior Auditor, wherein it is provided that the branch has falsely reported to the Regional Office that FDR of Rs4 lac for sanction of loan Rs.4 lac was held on record. For the purpose of brevity, item JB64 vide Exbt M130G is reproduced hereunder:-
“Item JB64 Suresh Madaan and Vishal Madaan for Rs.4 lac dated 13-10
a) That advance has been made for diploma in hospitality management in Australia which did not fall within the vested powers of BM as the permission of competent authority (ZM) was required to be obtained. When the Regional Office raised query in this regard, the branch had falsely reported that FDR for Rs.4 lac held to secure the education loan whereas no FDR is on record.”
From the above, it is evident that I have no where been named in the observations that it was falsely reported by me. Branch does not mean that it is B.R.Mahi and it is to be seen in the light that who has written the letter and who has signed it. There is no evidence that I have written such letter whereas Sh. M.L.Ahuja has written a letter to this effect on 19-10 vide Exbt M3 (a) when I was on leave and also was not in India but abroad. Thus, proper analysis of the evidence was not done and merely on the basis of suspicion, the allegation has been proved against me.
3. That with regard to Exbt M130 (g) which is investigation report, its author was not examined before the Inquiry Officer in order to afford me an opportunity of his cross examination. It is a settled law that when the author of the report is not examined before the Inquiry Officer then, the information provided in the report is only hearsay evidence because the truth in the contents of the report is subject to proof. The third person may confirm the signatures and the contents in a report but he cannot prove the truth in the contents of the document. In this case, the story is further interesting that the author has blamed the branch whereas the Inquiry Officer/Disciplinary Authority both have blamed myself and that too without any evidence by misconstruing that the branch means B.R.Mahi and particularly when I was not I India during the period 13-09-07 to 29-10.
4. That the Exbt M3 (d) which is LSS for Oct wherein lien on FDR of Rs.5 lac has been mentioned, has been prepared and signed only by Sh. M.L.Ahuja because I was on leave w.e.f. 13-09-07 to 29-10-07. But the Inquiry Officer and the Disciplinary Authority have blamed me to this effect despite the evidence against Sh. M.L.Ahuja and that too in his capacity of Incumbent Incharge.
5. That there is no evidence which may provide that I have provided wrong information for confirmation of my action. Whatever it was reported, the same has been prior to 29-10 by Sh. M.L.Ahuja.
6. That otherwise, the scheme does not provide want of any collateral security in any shape or form relating to education loan upto the limit of Rs.7.50 lac
Conclusion
From the aforesaid facts, it is evident that whatever it was reported, the same has been by Sh. M.L.Ahuja with the direct evidence vide Exbt D3 (d) (e) which is LSS etc., and I have been unwarrantedly implicated in the case by presuming that branch means only B.R.Mahi knowing well that in the unratified Exbt M130 (g), I have not been named. Secondly, the Head Office has also provided in the Vigilance Manual vide chapter 8 para 9 to 11 page 59 and 60 that the investigation reports are also subject to proof and ratification through the examination of its author and for the purpose of brevity, the same is also reproduced hereunder:-
Vide chapter 8 para 9 page 59 of the Vigilance Manual (Relevant and operative text)
“Care should be taken by the prosecution to ensure that the statements of those witnesses, which are required, are those referred to in the charge sheet. (The investigation report as such should not be referred to or produced in the enquiry).”
Vide chapter 8 para 10 page 59 of the Vigilance Manual
“Hearsay evidence (statements of persons not called as witnesses but repeated by third person), though not acceptable, will need to be evaluated in the same manner as the assessment of any other evidence and relied upon only when justified.”
Vide chapter 8 para 11 page 59-60 of the Vigilance Manual
“Written statements by persons are not admissible unless the defence has been given an opportunity to cross examine the persons on their respective statements. If the Presenting Officer expects to rely on these statements recorded prior to the enquiry, he must produce these persons at the enquiry to depose the facts in those statements.”
In view of the above, neither the Exbt M130 (g) is proved nor it has named me as erring official nor the loan was sanctioned by me nor it was reported by me and signed in the LSS for the month of Oct nor the charge is proved against me whereas Presenting Officer and Disciplinary Authority both have committed a basic error when the charge has been proved against me on the basis of no evidence but based on suspicion, conjecture and surmises.
Charge I (B-i) – Sh. Mahi has issued fake certificate dated 11-02 conveying sanction of education loan of Rs.14 lac and overdraft limit of Rs.13.50 lac favouring Smt. Tanudeep Kaur, Sukhwinder Singh and Baljeet Singh whereas no such education loan and overdraft limit was sanctioned in the books of the branch.
Case of the defence
1. That this charge has not been proved by the Inquiry Officer but the Disciplinary Authority has disagreed with the findings of the Inquiry Officer in terms of Regulation 7 (2) of D & A Regulations, 1977 through the impugned orders dated 06-07 without issuing a show cause notice to me for inviting of my representation. Since the procedure so adopted by the Disciplinary Authority is not known either to the Law or to the said Regulation, therefore, the impugned orders in question are vitiated being illegal and on this short ground alone, the order of the Disciplinary Authority is not liable to be sustained.
Charge I (B-II) – During the course of investigation in the matter referred B (i) above through Sh. G.L.Sharma, Sr. Manager, BO Mahilgelan one Sh. Parveen of M/s Visionway, Nawashahr has given in writing to Sh. G.L.Sharma that Sh. Mahi charged 4% as bribe for the total amount of sanction letters handed over by him to Sh. Parveen.
Case of the defence
1. That this charge has not been proved by the Inquiry Officer but the Disciplinary Authority has disagreed with the findings of the Inquiry Officer in terms of Regulation 7 (2) of D & A Regulations, 1977 through the impugned orders dated 06-07 without issuing a show cause notice to me for inviting of my representation. Since the procedure so adopted by the Disciplinary Authority is not known either to the Law or to the said Regulation, therefore, the impugned orders in question are vitiated being illegal and on this short ground alone, the order of the Disciplinary Authority is not liable to be sustained.
Charge I (C) – Australian High Commission, New Delhi asked for verification of the FD account No. PR2076 issued on the leaf with printed Sr. No. SVQ949341 of Rs.25 lac by BO Usmanpur in favour of Smt. Shashi Verma W/o Sh. Love Kishore Verma. On perusal of the record, it has been found that Sh. Mahi has issued the fake FDR, the original leaf of which bearing Sr. No. SVQ949341 is still in the custody of the branch and no such FDR has been issued by the branch.
Case of the defence
1. That this charge has not been proved by the Inquiry Officer but the Disciplinary Authority has disagreed with the findings of the Inquiry Officer in terms of Regulation 7 (2) of D & A Regulations, 1977 through the impugned orders dated 06-07 without issuing a show cause notice to me for inviting of my representation. Since the procedure so adopted by the Disciplinary Authority is not known either to the Law or to the said Regulation, therefore, the impugned orders in question are vitiated being illegal and on this short ground alone, the order of the Disciplinary Authority is not liable to be sustained.
Charge I (D) – Sh. Mahi has issued two fake sanction letters dated 13-01, first for sanction of education loan of Rs.6.50 lac for pursuing diploma course at New Zealand and second issued for sanction of OD limit of Rs.3.50 lac both in favour of Mrs. Prabhjot Kaur D/o Sh. Devinder Singh against the security of equitable mortgage of residential house, whereas no such education loan has been sanctioned in the books of the bank in favour of Mrs. Prabhjot Kaur and also no eq.mort.of house has been created in favour of the bank.
Case of the defence
1. That this charge has not been proved by the Inquiry Officer but the Disciplinary Authority has disagreed with the findings of the Inquiry Officer in terms of Regulation 7 (2) of D & A Regulations, 1977 through the impugned orders dated 06-07 without issuing a show cause notice to me for inviting of my representation. Since the procedure so adopted by the Disciplinary Authority is not known either to the Law or to the said Regulation, therefore, the impugned orders in question are vitiated being illegal and on this short ground alone, the order of the Disciplinary Authority is not liable to be sustained.
In support of my defence case that while disagreeing with the findings of the Inquiry Officer by the Disciplinary Authority, separate notice is required to the delinquent before passing the final order of punishment, otherwise the final order would be infructuous, vitiated being illegal, I refer the following landmark judgements:-
- That in the case of Punjab National Bank V/s K.K.Verma 2010 – IV – LLJ -569 (SC), it was upheld that when enquiry report not furnished to the officer and reasons for Disciplinary Authority differing from Inquiry Officer, not given then, order interfering with removal of officer from service, held not erroneous. Enquiry report and reasons for Disciplinary Authority different from enquiry officer have to be furnished to the delinquent employee before finding of guilt was arrived at. Thereafter, it was provided that the enquiry report and reasons for Disciplinary Authority differing from Inquiry Officer have to be furnished to the delinquent employee before finding of guilt was arrived at.
- That in the case of Rishipal Singh V/s Union of India 2011 (2) SCT 88 (Delhi High Court((DB) decided on 26-03, it was upheld that Disciplinary Authority is required to record its tentative reasons for such disagreement and give an opportunity to CO to represent before record its finding. An opportunity of making representation offered after the Disciplinary Authority had made up its mind, would be violative of the principles of natural justice and meaningless in the eyes of law. The representation or submissions which was invited by respondents was against the findings of guilt and not against the tentative disagreement with the enquiry report. Impugned orders set aside, unsustainable and the petition is allowed vide para 16, 18, 20 and 21. While delivering the judgement, the following cases of the SC were also referred:-
- Punjab National Bank V/s Kunj Bihari Mirshra 1998 (3) SCT 833 (SC)
- Yogi Nath D.Bagde V/s State of Maharashtra 1999 (4) SCT 403 (SC)
- Managing Director ECIL, Hyderabad V/s B.Karunakar 1994 (1) SCT 319 SC
- Supreme Court’s Judgment in Ramzan Khans Case
Charge I (E) – He has sanctioned education loan of Rs.7 lac on 10-06 to Smt. Taranjit Pabla and Neelam against the security of mortgage of residential house property worth Rs.45, 28, 943/-and has issued the education loan sanction letter to Sh. Taranjit Pabla whereas no mortgage of house has been created in favour of the bank and he has got confirmed his action from the then Senior Regional Manager, Jalandhar giving false information of creation of eq.mortgage.
Findings of the Inquiry Officer
Under this charge, the Inquiry Officer has proved to the extent that the equitable mortgage of the house was not created whereas the charge that the action was got confirmed by giving false information, the same has not been proved. For the purpose of brevity, the exact findings of the Inquiry Officer are reproduced hereunder: (relevant and operative text only)
“He has issued the education loan sanction letter to Sh. Taranjit Pabla whereas no mortgage of house has been created in favour of the bank. Charge is proved to this extent.
But the remaining part of charge that he has got confirmed his action from the then Senior Regional Manager, Jalandhar by giving false information of creation of eq.mort. is not proved.”
Case of the defence
1. That the charge is not covered under Article of charge-I because it provides that I had issued a sanction letter of education loan whereas the imputation provides that equitable mortgage was not done. Thus, the charge is not proved on this short ground alone.
2. That the allegation has been proved on the basis of Exbt M130 (k) which is investigation report dated 25-08-09 vide item No. B wherein it has been mentioned that no mortgage has been created. Thus, it is a hearsay evidence and in order to prove the charge, the original record of the equitable mortgage register was not adduced on the record of enquiry. That the Exbt M130 (k) has not been ratified document because the author of this report was not examined for providing me an opportunity of his cross examination. It is a settled law that an investigation report without examination of its author on the record of enquiry is a hearsay evidence but not a ratified document because the other third person may confirm the signatures and the contents in the report but he cannot prove the truth in the contents of the said report. In this case also, no witness has confirmed about the truth in the contents of the report but only signatures. Moreover, no annexures were enclosed with the investigation report as an evidence. Thus, it has been a wrong approach when the charge has been proved on the basis of this hearsay evidence instead of original evidence.
3. T
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