The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 6164 of 2012 Anil Kumar Sinha … … Petitioner 1. The State of Jharkhand through Chief Secretary 2. The Principal Secretary, Department of Cooperative, Government of V E R S U S Jharkhand, Ranchi 3. The Joint Secretary – cum – Conducting Officer, Department of Cooperative, Government of Jharkhand, Project Building, Ranchi … … Respondents CORAM : HON'BLE DR JUSTICE S.N. PATHAK For the Petitioners For the State Mr. Indrajit Sinha, Advocate Ms. Anjali Sinha, Advocate Mr. Sreenu Garapati, SC-III 11/09.02.2023 Heard. Petitioner has approached this Court with a prayer for quashing the dismissal order dated 19.06.2012, issued by the respondent no. 2, whereby and whereunder he has been dismissed from the service with immediate effect. Case of the petitioner is that petitioner was working and posted as Managing Director, Gumla – Simdega Central Cooperative Bank Ltd. from 25.06.2005 to 04.07.2008. During his tenure, petitioner enquired upon a
Legal Reasoning
complaint by one Shri Haridhan Sahu, a Savings Account holder having Saving Account No. 1613, in Kamdara Branch of the Bank. In course of the enquiry, it was unearthed by the petitioner that there was a huge defalcation of public money and, therefore, he lodged the FIR on 27.07.2006 being Kamdara P.S. Case No. 40/2006 against Umesh Chandra Rai, Incharge Branch Manager, Kamdara and name of Trilochan Mahto, Assistant – cum – Cashier was added as accused via another supplementary FIR dated 31.07.2006. Petitioner, thereafter, also wrote to the District Audit Officer, Cooperative Societies, Ranchi/Gumla, vide letter dated 29.07.2006, requesting their assistance to point out irregularities being committed in the Kamdara Branch, by conducting an Audit. Petitioner, through the Second RC/ 2 Supplementary FIR, vide letter dated 21.09.2006, updated the Police on the audit report of the team, headed by Ashok Kumar Rai, which was received by the petitioner via Letter dated 12.09.2006. The said irregularities were also brought to the Secretary, Cooperative Department who, vide office order dated 19.09.2006, constituted a Special Audit Team for intensive auditing in the said Branch for the Financial Years 2003 – 04, 2004 – 05 and 2005 – 06. The said Audit Team submitted their enquiry reports dated 30.07.2007 and there is no whisper of any involvement of the petitioner in the alleged irregularities being committed in the Bank. Thereafter, a departmental proceeding was initiated against the petitioner without asking prior explanation. The petitioner was served with memo no. 2248, dated 07.11.2007 and thereafter he came to know that a departmental proceeding has been initiated against him. Petitioner appeared and asked for relevant papers, which was denied to him without assigning any reason. No reasonable opportunity was given to the petitioner and by impugned order issued vide Memo No. 1620, dated 19.06.2012, under the orders of the Governor, petitioner has been dismissed from the service holding therein that during the tenure of the petitioner, the defalcation of Rs.88.24 lacs has been found to be proved and as such, he is fit to be dismissed from the service. Petitioner was to retire on 31.07.2012 and without following settled rules of natural justice, he has been harassed by passing such harsh order. Being aggrieved, petitioner has knocked door of this Court. Mr. Indrajit Sinha, learned counsel assisted by Ms. Anjali Sinha, appearing on behalf of the petitioner submits that the genesis of the departmental proceeding is bad and is demolished. The relevant persons were not properly examined which has prejudiced case of the petitioner. The documents from the Bank were also not produced or handed over to the petitioner. Learned counsel further submits that the order sheet of the disciplinary proceeding would establish that the conducting officer gave no opportunity to lead evidence and the proceeding was conducted in a hasty manner. Even report of the Special Audit Team which forms basis of the charges in its concluding paragraphs, did not find that petitioner was responsible for having not taken any steps to check defalcation going on the said Kamdara Branch from the date of his joining. The charges which have RC/ 3 been proved, has not been made basis of punishment. The disciplinary authority has passed the order of punishment on the basis of the charges, which was never served upon him. On the proved charges, the punishment is grossly disproportionate. Learned counsel further argues that without following the settled Rules of Procedures, principles of natural justice, the impugned order has been passed in sheer violation of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and in violation of Articles 14, 21 and 311 of the Constitution of India and as such after quashment of impugned order, petitioner is entitled for all consequential benefits treating him to be in continuous service. Since petitioner has already crossed the age of superannuation and as such, he is entitled for consequential benefits. Per contra counter affidavit has been filed by the respondents. Mr. Sreenu Garapati, learned counsel representing State submits that the Banking institution, being financial public institution, the charges which shocks the faith and confidence is always serious and grave and warrants strict action against the concerned officer. Relying upon the Judgment passed in the case of Union of India Vs. P. Gunasekaran, learned counsel submits that the Hon’ble Supreme Court has finally concluded the Judgment with regard to disciplinary proceedings with an observation that the Hon’ble High Court under Article 226/ 227 of the Constitution of India, shall not re- appreciate the evidence as the Hon’ble High Court may not treat itself as a Court of Appeal. It has also said that it will not interfere in the conclusion of the enquiry if it is conducted according to law. The Hon’ble Court has further observed that the Hon’ble High Court shall not go into the adequacy of the evidence. Learned counsel further places reliance upon the Judgment passed in the case of Suresh Pathrella Vs Oriental Bank of Commerce, wherein the Hon’ble Supreme Court observed in the Banking case that “the integrity are inbuilt requirements for the functioning of the Bank and it would not be proper to deal matter of indiscipline or misconduct leniently. The misconduct in such cases has to be dealt with iron hands.” It has further been said that the “Banking is the disciplined organization and depends upon each of its officers acting on their behalf. So, no compromise may be made RC/ 4 by the Banking employer when it has lost confidence. Then such employees may be dealt with iron hands.” Learned counsel further submits that in the case of Union Bank of India Vs. Vishwa Mohan, reported in (1998) 4 SCC 310, the Hon’ble Supreme Court has observed that each and every employee needs absolute devotion and integrity and even the enquiry report is not served to the petitioner, the delinquent may not be prejudiced unless the allegations of malafide is made. When an employee appears before the enquiry officer on day to day basis and the questions raised by him are answered by the Management Witnesses and discussed properly by the enquiry officer and on that basis the findings are given, then it shall be presumed that no justice is done with him. Once the employer has lost its confidence in an employee, such employee has no right to be retained in service. Learned counsel further submits that in the case of State Bank of India Vs. Ramesh Dinkar Punde, reported in (2006) 7 SCC 212, the Hon’ble Supreme Court has observed that the High Court normally may not interfere in re-appreciating the departmental proceeding and it may not sit as a Court of Appeal. It has also observed that the Officer of the Bank whose position is trust, confidence, honesty and integrity are inbuilt required in them, so it would not be proper to deal them leniently and he must be dealt with iron hands. Learned counsel further submits that in the case of Kalive Pratap Kumar Vs. State Bank of India and others, reported in 2013 SCC OnLine (Jhar) 2050, the Hon’ble Division Bench of the Hon’ble Court has held that loss of money is not necessary in case of Bank employee rather if it is found that there is loss of confidence by the employer against the employee facing departmental proceeding, such employee has no right to be retained in the service and the Hon’ble Court may not re-appreciate the evidence laid before the enquiry officer. Similar view has been taken in the case of Madhu Saksena and another Vs. Bank of India and others, reported in 2013 SCC OnLine (Jhar) 1886 wherein it was held that the report of the enquiry officer is the sole Judgment of the facts if there are certain legal evidence and findings arrived at on that basis against the employee and the adequacy or reliability of the Judgment is not the matter which could be canvassed before the Hon’ble High Court under Article 226 of the Constitution of India. Relying upon the RC/ 5 case of Deputy General Manager (Appellate Authority) and others Vs. Ajai Kumar Srivastava reported in (2021) 2 SCC 612, learned counsel submits that the Hon’ble Supreme Court has held in several paragraphs that the Hon’ble High Court cannot correct errors of law until there is complete violation of principles of natural justice. Moreover, the Hon’ble Supreme Court has observed in paragraph-42 that the Bank employees are expected to have absolute integrity, devotion, honesty and if anything is lacking, such persons cannot be allowed to continue. The Hon’ble Supreme Court has observed that strict rule of evidence is not applicable in the departmental proceeding. Learned counsel further argues that there is no illegality or any infirmity in the impugned order. Learned counsel further argues that the punishment is commensurate to the charges. The Bank has lost faith upon the petitioner because of the dereliction of duties and defalcation took place. There is no illegality or any infirmity in the impugned order. Learned counsel further argues that the petitioner has not even exhausted the alternative remedy. Be that as it may, having heard rival submissions of the parties across the bar, this Court is of the considered view that the matter may be remitted back to the respondents authorities for re-consideration on the point of quantum of punishment. In the circumstances, the impugned dismissal order dated 19.06.2012, issued by the respondent no. 2, is hereby quashed and set aside. The matter is remitted back to the disciplinary authority to consider the matter on the point of quantum from the stage of second show-cause notice. Since petitioner has already crossed age of superannuation in the year 2012 itself and as such, the disciplinary authority may consider the same and pass order to that effect within a period of eight weeks from the date of receipt/ production of a copy of this order.
Decision
With the aforesaid observations and direction, the writ petition stands disposed of. RC/ (Dr. S.N. Pathak, J.)