JUSTICE v. NARASINGH Date of final hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.12949 of 2015 In the matter of an application under Article 226 and 227 of the Constitution of India Hajam Charan Tudu … Petitioner 1. Bank of India, -versus- … Opposite Parties represented by its Chairman & Managing Director, Star House,C- 5, G Block Bandra Kurla Complex, Bandra East, Mumbai 2. Zonal Manager, Bank of India, Jamshedpur Zone, At- Bank of India Building, Main Road, Bistpur, Jamsedpur, Dist. East Singhbhum 3. Deputy Zonal Manager- cum-Disciplinary Authority, Bank of India, Jamshedpur Zone, Bank of India Building, Main Road, Bistpur, Jamsedpur 4. Deputy General Manager, Bank of India, Jamshedpur Zone, Bank of India Building, Main Road, Bistpur, Jamsedpur, Dist. East Singhbhum For Petitioner : Mr. S. Mallik, Advocate For Opposite Parties : Mr. K.K. Jena, Advocate Page 1 of 15 CORAM: JUSTICE V. NARASINGH Date of final hearing : 09.01.2024 Date of judgment : 30.05.2024 V. Narasingh, J. Heard learned counsel for the Petitioner Mr. S. Mallik, and learned counsel for the Opposite Party, Mr. K.K. Jena. 1. The legality and propriety of order of dismissal of the Petitioner while working as Head Cashier-II, Bank of India, Bada Dalima Branch, Keonjhar passed by the Disciplinary Authority at Annexure-10 as well as the order passed by the appellate authority at Annexure-12 affirming the same are assailed in the case at hand invoking the jurisdiction of this Court under Article 226 & 227 of the Constitution of India. 2. Opposite Parties(Bank of India) initiated a Disciplinary Proceeding against the petitioner communicating the following charges on 15.11.2013 while he was working as Head Cashier-II in Badadalima Branch, Keonjhar district. The charges related to the period from 23.09.2002 to 17.06.2013 during his incumbency at Kalikapur Branch of Bank of India. “xxx xxx xxx Charge No.1 the You opened
Legal Reasoning
and the contours of this Court in the matters of interference with orders passed by the Authorities in a Disciplinary Proceeding is also earmarked by a catena of decision by the Apex Court. 29. In this context reference can be made to the judgment of the Apex Court in the case of Deputy General Manager and Others vs. Ajay Kumar Srivastava reported in (2021) 2 SCC 612. 30. But at the same time even in a Departmental Enquiry the conclusions arrived at on the basis of materials on record, on the face of it without any further analysis if patently perverse, then the doors of the Constitutional Courts, exercising plenary powers ought not to be shut. As, Judicial review takes within its fold the decision making process. Page 13 of 15 31. In the case at hand the Disciplinary Authority as well as Appellate Authority have not taken into account the glaring infirmities pointed out by the delinquent. Mechanically without application of mind the enquiry report was submitted. Basing on the same punishment was imposed by the Disciplinary Authority and the Appellate Authority did not interfere with the order of the Disciplinary Authority. 32. Arbitrariness is telltale from the manner in which the Appellate Authority took into account the past conduct of the Petitioner without giving him an opportunity of hearing. The finding of the Appellate Authority that the Disciplinary Authority considered the past conduct of the Petitioner is also not borne out from the record. 32A. On an analysis of the factual matrix of the case it is manifestly clear that the Inquiry Officer was appointed even before the receipt of the statement of defence of the delinquent as noted. 32B. Admittedly documents which were found to be relevant during the course of enquiry were not provided to the Petitioner. But, at the cost of repetition it is reiterated that the Enquiry Officer fallaciously recorded the finding that all the documents were provided to the Petitioner, which is de hors the record. 33. In view of the infirmities as noted and the very findings of the Enquiry Officer that the loans in question were admittedly sanctioned by Officer superior to the Petitioner so far as charge No.1 is concerned and that the Petitioner cannot be held responsible for charge No.2 coupled with the glairing infirmities which nullify the stand of the Opposite Party-Bank Page 14 of 15 that the enquiry was conducted in a free and fair manner, this Court is left with no other alternative but to set aside the order of punishment at Annexure-10 as well as the Appellate order at Annexure-12 affirming the same. 33A. Considering the nature of infirmities in the conduct of the Disciplinary Proceeding, there is no scope in the factual matrix of the case at hand to remit the matter for de novo inquiry even otherwise keeping in view the submission of the learned counsel that the Petitioner has already attained the age of retirement. And such direction at this stage in the considered view of this Court would be an antithesis to the sense of Justice and equity, the two pillars, on which the edifice of the plenary powers of this Court rest. 34. The petitioner is thus entitled for consequential benefits from the date of his dismissal from service till he attained the age of superannuation i.e. notional fixation of his pay and counting the said period for the purpose of pension and pensionary benefits. 34A. Accordingly, the last pay of the Petitioner be calculated for quantification of retiral benefits as above. 34B. The exercise for disbursal of such benefit to the Petitioner shall be completed within a period of 4 months from the date of receipt/production of the copy of this Judgment before the Opposite Parties. Failing which, it shall entail interest at the rate of 6% P.A from the date of entitlement of the said pension & pensionary benefits, till the date of actual disbursal.
Arguments
following 9KCC Loan accounts in the system, sanctioned by Shri S.K. Sardar, Officer, who was posted in the 2nd line of the hierarchy and was having no authority to Page 2 of 15 sanction such credit proposals. Though you were aware about the same, you opened the KCC accounts in utter disregard to the rules of the Bank and those were found fictitious subsequently. Charge No.2 You opened two KCC loan accounts bearing No.453032110000072 & NO.453032110000074 in respected of Srola Sardar & Hemchandra Sardar the system on dated 17.07.2009, without in ensuring that the proposals were sanctioned by the competent authority. Subsequently the accounts found to be fictitious exposing the bank to huge financial loss to the tune of Rs.51540.00. xxx xxx xxx” 3. Admittedly along with the copy of the charge, letter of appointment of Inquiry Officer- I.O, to conduct enquiry was also communicated to the petitioner. 4. As such, at the very threshold the communication of simultaneous appointment of the I.O. along with the memorandum charges to the delinquent-Petitioner has been questioned, on the ground of patent bias. 4A. It is further stated that memorandum of charges were communicated and served on the Petitioner on 28.11.2013. Even before service of the same Petitioner received notice from the Enquiry Officer on 23.11.2013 fixing the first date of inquiry on 02.12.2013. 4B. Hence it is urged that the petitioner has been denied the opportunity of submitting statement of defence so as to convince the Disciplinary Authority at the very stage of initiation of proceeding, that the charges on the face of it are not sustainable and there was no necessity of conducting an enquiry. 4C. It is further contended by the petitioner that the documents relied upon by the prosecution were never supplied to Page 3 of 15 him. To that effect the enquiring officer directed the presenting officer to supply such document. But without providing documents yet, taking cognizance of such documents behind the back of the petitioner the charges were held to be established against the petitioner. 4D. The petitioner submitted a detailed written note before the I.O. on 27.02.2014 through his defence assistant wherein he had categorically denied all charges, pleaded his grounds and placed materials on record to substantiate his stand of innocence, but to no avail. 4E. However, the enquiring officer conducted the enquiry in a perfunctory manner and prepared the Inquiry report. After concluding the enquiry he submitted his report dated 28.02.2014. 5. On one hand the enquiry officer arrived at conclusion on detailed evaluation of evidences that Charge No.l and Charge No.2 could not be proved but surprisingly enough he concluded his report on surmises and conjecture in reaching a final conclusion of guilt without discussing the basis on which he has arrived at such finding. 5A. The disciplinary authority without application of his mind by considering the contents of the enquiry report asked the petitioner to submit his representation on the findings of the enquiring officer that too within 5 days. 5B. The petitioner submitted a detailed representation explaining the facts on 25.04.2014 with proper justification that the finding of the enquiring officer are contrary to evidence on record and are perverse. Page 4 of 15 5C. The disciplinary authority did not appreciate the grounds raised in the representation submitted by the petitioner rather being influenced by the perverse enquiry report issued a show cause notice to the petitioner proposing the penalty of dismissal from service as per notice dated 10.09.2014. 5D. The petitioner submitted his reply to such notice to show cause against the proposed punishment and submitted his representation on 24.09.2014. The disciplinary authority did not advert to any of grounds taken by the petitioner in his representation, rather mechanically imposed the final order of punishment confirming the penalty of dismissal from service as per punishment order dated 13.11.2014 vide Annexure-10, which was communicated to the petitioner on 18.11.2014. 5E. The petitioner raised several grounds to assail the order of punishment including the action of the authorities in taking a discriminatory approach in awarding the punishment against him as the co-delinquent the Branch Manager of the Bank who was also held to be responsible in the entire process was served with lesser punishment in comparison to the petitioner. 6. Being aggrieved with such arbitrary order of the authority the petitioner preferred an appeal against the order of punishment before the appellate authority-Zonal manager on 27.12.2014 wherein not only factual but also legal grounds were raised by the petitioner. Simultaneous initiation of the proceeding along with appointment of I.O. so also the irregularities committed during the enquiry were pointed out by the petitioner in his appeal. 7. However, the appellate authority without application of mind without considering the grounds urged in the Page 5 of 15 appeal, rejected the appeal as per order dated 25.04.2015, Annexure-12. Challenging the order of dismissal same by the disciplinary authority(Annexure-10) and the appellate order dated 25.04.2015(Annexure-12) confirming the same, the petitioner has preferred this writ petition. 8. The Opposite Party-Bank has filed a counter wherein while disputing and denying the averments of the petitioner very much emphasis was placed on the nature of delinquency committed by the petitioner while opening of KCC loan accounts which were later found fictious thereby resulting in the bank suffering a loss of Rs.3,30,864/-. 9. Learned counsel Mr. Jena urged on behalf of the O.P.-Bank that the punishment imposed is not shockingly disproportionate nor even discriminatory. Rather it is in commensuration with the gravity of misconduct proved in the enquiry against the petitioner. The O.P also questioned the maintainability of writ petition. The alternative remedy available to him, and reliance was placed on the decision of Hon’ble Supreme Court with respect to maintainability of writ petition. 9A. It is further contended by the Opposite party that the petitioner was not able to establish any apparent illegality on face of record in the conduct of the proceeding which entitles him to invoice the jurisdiction of this Court. 9B. With respect to the procedure adopted by the Disciplinary authority while conducting the proceeding, it is contended by the learned counsel of the Opposite Party-Bank that the actions are completely in terms of the Rules in force as much as the petitioner was provided with an opportunity to state his Page 6 of 15 defense and his explanation being not satisfactory, the charges were framed along with the appointment of the enquiry officer. 9C. Disciplinary Authority had no iota of doubt in the initiation of the departmental proceeding and during the course of enquiry any illegality has been committed nor any prejudice caused to the petitioner at any stage. Therefore, it is submitted that there is no infirmity in imposing the penalty of dismissal, after following due procedure of law. 10. Similarly, the appellate authority had in due discharge of its powers considered the grounds, raised by the petitioner but did not find any cogent reason to interfere after considering the same in the light of the order of the disciplinary authority. As such the case at hand is liable to be dismissed. 11. The petitioner filed a rejoinder stating that the ground of not availing of alternative remedy is completely baseless. The petitioner has also specifically urged how the authorities have miserably failed to conduct the departmental proceeding starting from initiation till its conclusion in a fair manner and impugns the appellate order on the vice of lack of reasoning vis-(cid:224)-vis the grounds stated in the appeal. 12. Clause-1, the terms of settlement regulating the field regarding disciplinary action which stipulates that “a person against whom disciplinary action is proposed or likely to be taken shall in the 1st instance, be informed of the particulars of the charge against him and he shall have proper opportunity to give his explanation as to such particulars.” 13. Clause-12(a) stipulates that “an employee against whom disciplinary action is proposed or likely to be taken shall be given a charge sheet clearly setting forth the circumstances Page 7 of 15 appearing against him and a date shall be fixed for enquiry, sufficient time being given to him to enable him to prepare and give his explanation as also to produce any evidence that he may wish to tender in his defense. 14. Accordingly there is a clear distinction between a fact finding enquiry and a disciplinary enquiry. The reason to hold the preliminary enquiry by asking explanation is only to decide whether at all charge is to be framed in a departmental proceeding. But after initiating the proceeding the delinquent has a right to dispute the charge and he must be provided with the documents relied upon along with charges to prepare his defense. The disciplinary authority has a right to hold enquiry in respect of which there is dispute raised by delinquent with respect to the accusation if explanation is not convincing. 15. In the present case the very initiation of proceeding and simultaneous the appointment of IO before giving opportunity to submit the defense statement by the delinquent, is in flagrant violation of the terms of settlement regulating the field. 16. In State of Punjab -Versus- V.K. Khanna reported in AIR 2001 SC 343, the Apex Court held that appointment of Enquiring Officer even before receipt of reply of delinquent employee to charge sheet is indicative of bias. In this context paragraph-34 of the said judgment as extracted hereunder. “xxx xxx xxx 34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an enquiry officer to substantiate the frame of mind of the authorities and thus depicting bias — what Page 8 of 15 bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply — is it an indication of a free and fair attitude towards the officer concerned? The answer cannot possibly be in the affirmative. It is well settled in service jurisprudence that the authority concerned has to apply its mind upon receipt of reply to the charge- sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative — the inquiry follows but not this part of service otherwise and jurisprudence on which reliance was placed by Mr that score, strongly Subramanium and on respondents criticised (sic appellants) herein and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record. the conduct of the is it xxx xxx xxx” 17. This court is further of the considered view that the Appellate authority has every right to take into consideration the past service records in order to reach to a conclusion regarding the sustainability of a punishment against which an appeal is preferred . But this cannot be behind the back of the employee. 17A. Apex Court in Union of India & Ors. v. Bishamber Das Dogra, (2009) 13 SCC 102, considered its earlier judgments in State of Assam v. Bimal Kumar Pandit, AIR 1963 SC 1612; India Marine Service (P) Ltd. v. Their Workmen, AIR 1963 SC 528; State of Mysore v. K. Manche Gowda, AIR 1964 SC 506; Colour-Chem Ltd. v. A.L. Alaspurkar & Ors., AIR Page 9 of 15 1998 SC 948; Director General, RPF v. Ch. Sai Babu, (2003) 4 SCC 331, Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, (2005) 2 SCC 489; and Govt. of A.P. & Ors. v. Mohd. Taher Ali, (2007) 8 SCC 656 and came to the conclusion that it is desirable that the delinquent employee be informed by the disciplinary/appeallate authority that his past conduct could be taken into consideration while imposing the punishment. 18. Apex court in the case of State of Punjab vs. Bhagat Ram (1975) 1 SCC 155 and in catena of cases has settled the proposition of law that an employee facing a department enquiry is entitled to all the relevant statement, documents and other materials to enable him to have a reasonable opportunity to defend himself in the department enquiry against the charges and such principle is too well established to need any further reiteration. 18A. The non-supply of documents goes to the root of the matter and being a facet of principle of natural justice, the impugned order of the Disciplinary Authority can be interfered solely on the said count in terms of principle settled by the judgment of the Apex Court in the case of The State of Uttar Pradesh and others v. Rajit Singh reported in 2022 SCCONLINE SC 341. 19. During the course of Enquiry several documents were sought by the delinquent Petitioner to prepare for his defence which the Opp. Party have never disputed having no relevance for his defense. 20. The Inquiry Officer specifically called upon the delinquent to substantiate his prayer for the said documents vis-(cid:224)- vis the relevancy of the same for submitting his defence. Page 10 of 15 The order dated 02.12.2013, which is part of Annexure-3 is culled out hereunder: “xxx xxx xxx The defence was asked about relevancy of above documents for his defence. The defence explained the relevance of the above documents which were accepted and P.O. was asked to provide the same to the defence on the date of inspection of management documents. (Emphasized) xxx xxx xxx” 21. Notwithstanding the same during the course of enquiry relevant documents were admittedly not supplied to the defence which is borne out from the daily order sheet No.4 dated 05.02.2014 at Annexure-4. 22. The recitals in the order sheet regarding the non- supply of documents reads as under. “xxx xxx xxx The defence submitted that they have not received following documents requested by them:- 1. Audit Closure certificate for 2011. 2. Handing over/taking over charge report of kalikapur branch. 3. Restructuring proposal documents of Account No.453032110000072 and 74. The PO submitted that document No.1 is not traceable and document No. 2 & 3 does not exist. (emphasized) xxx xxx xxx” 23. It is apt to note here that charge No.2 relates to the loan accounts relating to which documents were admittedly not given to the Petitioner and there is clear error of record in the finding of the Inquiry Officer under the heading “conduct of the hearing and adherence of Principles of nature justice that “all the documents requisitioned by him” were given to the Petitioner. Page 11 of 15 The relevant finding is extract hereunder for convenience of ready reference: “xxx xxx xxx Conduct of the hearing and adherence of Principles of natural justice: The enquiry against the CSE was conducted strictly in accordance of provisions under bipartite settlement and principles of natural justice were followed in letter and spirit. The CSE was helped by his DR throughout the the authenticity of regular hearings. DR examined the examined management management witnesses. He was provided with all the documents requisitioned by him for production in the enquiry as defence documents . documents cross and xxx xxx xxx” 24. It is apposite state that to the Disciplinary Authority under paragraph-4(d) has recorded its finding as under, relating to charge No.I, after taking into account the response of the present Petitioner vis-(cid:224)-vis the Enquiry Report. “xxx xxx xxx It is fact that the said loans were sanctioned by officer, who is superior to the CSE. However, being senior clerk, the CSE cannot be ignorant about the delegation of the Branch Officials and allowing such irregular transactions, despite aware of the same is serious. xxx xxx xxx” 25. So far as charge No.2 is concerned the Enquiry Officer has himself come to a finding that the presence of the Petitioner(CSE) could not be established with certainty. Findings in this regard reads as under. xxx xxx xxx Some contradiction have come with regard to presence of CSE on 17.07.2009 when these account were opened in the system because as per Page 12 of 15 ME-25 (Attendance Register) he was not present in the branch but as per the system the accounts have been opened on the said date only under his User ID. xxx xxx xxx 26. The enquiry Officer has further held that: xxx xxx xxx Since the A/C being fictious the Bank is exposed to financial loss to the tune of present outstanding of the restructured A/Cs but the CSE cannot be directly held responsible for the same. xxx xxx xxx 27. These aspects of findings of the Enquiry Officer were not at all taken into account neither by the Disciplinary Authority nor by the Appellate Authority. 28. It is trite law that the standard of proof in a Disciplinary Proceeding rests on preponderance of probabilities
Decision
Accordingly, the Writ Petition stands disposed of. No 35. costs. Signature Not Verified Digitally Signed Signed by: SOUMYA RANJAN SAMAL Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 27-Jun-2024 20:53:29 SOUMYA (V. NARASINGH) Judge Page 15 of 15