High Court
Case Details
Court No. - 34 Case :- WRIT - A No. - 22035 of 2017 Petitioner :- Rajesh Kumar Respondent :- Union Of India And 4 Ors. Counsel for Petitioner :- Siddharth Khare Counsel for Respondent :- Asgi,Satish Chaturvedi,Sk Kakkkar Hon'ble Ajit Kumar,J. 1. Heard Sri Siddharth Khare, learned counsel for the petitioner and Sri Sumit Kakkar, learned Advocate holding brief of Sri S.K. Kakkar, learned counsel for the respondent Bank. 2. By means of this petition filed under Article 226 of the Constitution, petitioner has challenged the order dated 18.04.2016, whereby, the services of the petitioner have been terminated by the competent authority and also the order dated 20.09.2016, whereby, the appeal filed by the petitioner to the higher authority has been rejected.
Facts
3. Briefly stated facts of the case are that the petitioner applied for the post of Assistant Clerk against the vacancy advertised by the State Bank of India. Petitioner appeared in the written examination by putting his thumb impression upon the bio metric machine and also put in signatures before the Invigilator. Being declared successful in the written examination, he was called for interview and he then appeared before the Interview Board where he again put his thumb impression on bio metric machine and also marked his appearance by putting his signature. Ultimately result was declared and petitioner having found place in the merit list, was issued with an appointment letter dated 03.12.2010. Petitioner submitted his joining on 20.12.2010 and then was sent for training. After completion of his training, petitioner was attached with the Head Office of the Bank at Gorakhpur. Petitioner's probation was further extended on 13.06.2011 for another three months. All of a sudden on 27.08.2011 an office order was issued by the Bank authority that the petitioner was guilty for impersonation during the written examination and so in view of the rider given in the appointment order dated 20.12.2010 his appointment was held to be void ab initio. 4. Petitioner came to challenge this order before this Court by means of writ petition being Writ - A No. 56499 of 2011 and this Court found the entire action on the part of the respondents to be ex parte and stigmatic for the reasons assigned in the order impugned. The Court discussed the principle of law on the point of discharge and held the termination order to be punitive and stigmatic. The order of termination was accordingly set aside directing the respondents to reinstate the petitioner, however, with liberty to proceed a fresh in accordance with law. 5. After this judgment was passed on 05.11.2014, respondents filed Special Appeal. The order stood modified with a direction to the bank to hold a full fledged inquiry. The Bank was granted liberty to place him under suspension, should it be considered necessary and further provided that if the bank proceeded to hold enquiry within three months of receipt of the order then the order of back wages and other consequential order passed by learned Single Judge shall stand set aside and ultimate decision with regard to payment of back wages and other consequential benefit would abide by the result of disciplinary proceeding. 6. After this order was passed by the Special Appellate Bench on 04.12.2014, petitioner was issued with a show cause notice on 29.01.2015 asking him to reply and thereafter, petitioner demanded certain copies mentioned in the explanation which the petitioner was directed to peruse within three days under the order issued on 07.02.2015. The petitioner showed his inability to submit reply vide letter dated 07.02.2015 unless and until the documents enabling the Forensic report relied upon by the respondents is supplied to the petitioner. The bank reiterated for perusal of the report under its order dated 16.02.2015 and to submit reply, failing which it will be taken that he was not to submit any reply. Petitioner reiterated his stand that he was not impersonated but wanted documents to submit reply. Finally a detailed charge sheet was issued to the petitioner on 26.10.2015 referring therein certain documents. Petitioner submitted his reply stating that the charges leveled were baseless and not acceptable. This reply was submitted on 01.11.2015, thereafter, Enquiry Officer was appointed and has issued notice to the petitioner to participate in the inquiry. Petitioner again demanded the copies. Thereafter, certain documents were supplied to the petitioner but the petitioner wanted 60 days further time from the Enquiry Officer to get the thumb impression and signatures and photograph again examined by some other expert. However, no such time was provided and ultimately enquiry was completed and the enquiry report was submitted holding the petitioner guilty of the charges. Show cause notice was issued to the petitioner on 23.01.2016 by the disciplinary authority to which the petitioner replied again questioning the expert opinion and pleaded that without re- verification of report, the ex parte Forensic expert opinion should not have been relied upon. He emphasized for a Government approved Forensic Expert's opinion in the matter. The disciplinary authority did not consider this aspect of the matter but relying upon the enquiry report, proceeded to impose maximum punishment of termination from service under order dated 18.04.2016. It is this order which was appealed against, came to be affirmed by the order of appellate authority dated 20.09.2016. 7. The moot question that has remained unanswered during the disciplinary proceeding and subsequent action taken by the respondents affirmed in appeal, whether the ex parte expert opinion could have been relied upon without giving opportunity to the employee concerned namely, the petitioner to cross examine.
Legal Reasoning
8. This Court has dealt this aspect of the matter previously in the case of Union of India and Ors v. Devendra Kumar Choudhary & Ors., 2018 (9) ADJ 570 (DB) In that case also a candidate who appeared in the competitive examination held by the Staff Selection Commission, was found to have used unfair means in terms of impersonation. A person impersonated him in the written examination that thus prima facie initially the authorities found him of guilty of use unfair means in securing the job. The petitioner in that case was directed to appear before the Secretary, Staff Selection Commission, New Delhi where his specimen signatures were taken and were compared with the admitted documents like OMR Sheet and Admit card that bore his signatures. The Forensic expert tendered his opinion against the candidate and so consequently in a proceeding drawn against the candidate in that case, petitioner was indicted for fraud and hence was dismissed from service. 9. The order of dismissal was challenged in appeal. The appeal was initially allowed remanding the matter for an opportunity to the petitioner to cross examine the expert and also verification from the original documents. All this could not be done and even then the order of removal was passed. In appeal again this issue was raised but somehow the appellate authority affirmed the order of removal from service and rejected the appeal. The penalty of dismissal came to be challenged before the learned Administrative Tribunal. The Tribunal set aside the orders. 10. This Court also declined to interfere with the order of the Tribunal, whereby, the order of removal and termination were set aside. 11. Division Bench of this Hon'ble Court in Union of India and Ors v. Devendra Kumar Choudhary & Ors., 2018 (9) ADJ 570 (DB) Vide paragraph nos. 88, 89 & 90 has held thus: "88. In Murari Lal Vs. State of Madhya Pradesh (Supra), it was held that Court itself can compare writings since it is so enabled vide Section 73 of Evidence Act. Expert's opinion only act as an aid to Court and not binding on it. In absence of reliable Expert's opinion or no opinion, Court can seek guidance from authoritative text books, own experience and knowledge. 89. Thus Export's report is only an opinion of an Expert but there may be other Experts who were also entitled to submit their opinion and that has to be examined appropriately by the authorities concerned. However, such opinion cannot be treated to be a conclusive document and in order to be an admissible evidence, Expert must appear before inquiring authority so that affected person or the persons, against whom expert opinion has been given, may have an opportunity of cross examine. In the case in hand, having not been done so, the Expert's opinion, in our view, could not have been treated to be a conclusive evidence to hold applicant-respondent guilty of the charge. 90. The next aspect is that applicant-respondent specifically pleaded that he actually appeared for written examination and signed attendances-sheet in presence of Invigilator. He also requested for examination of Invigilator. It was a valid plea taken by him and we find no reason why SSC adopted an attitude of defiance and non transparency by neither disclosing name of Invigilator nor giving due particulars to Disciplinary Authority so as to summon the aforesaid Invigilator for examination in the inquiry. This attitude, in our view, must have been treated to be a valid justification to draw an inference against Department and in favour of applicant-respondent." 12. Facts of the case in hand are such whether the expert opinion obtained ex parte has been solely relied upon. After the writ petition was allowed and the Division Bench gave a liberty to the Disciplinary Authority to proceed in accordance with law should it decide to hold regular inquiry, the Disciplinary Authority ought to have got the expert examine and cross examine for the purpose of verification of the report submitted by him. Neither the Enquiry Officer nor if the Disciplinary Authority looking this important aspect of the matter by getting the expert examine orally at the time of enquiry nor the objections of the petitioner raised in reply to the show cause notice in respect of the above aspect has been looked into by the Disciplinary Authority. This important aspect has remain unrebutted. Writ petition succeeds and is allowed. Order set aside. 13. In the present case, learned counsel for the contesting respondents has argued that if for any technical reason the order of dismissal from service cannot be sustained, the matter can be remitted and direction can be issued for reexamination of the thumb impression and signatures by a Government approved laboratory like Central Forensic Science Laboratory, Kolkata. 14. From the pleas taken by the petitioner in reply to the show cause notice, memo of appeal and revision petition brought on record as Annexure Nos. 36, 38 & 42 respectively it is quite apparent that the petitioner has been repeatedly taken the plea that the handwriting expert report was ex parte and that he had obtained also report of handwriting expert privately so that ex parte report ought not to have been solely relied upon and yet the disciplinary authority while passing the final order in the matter of disciplinary proceedings did not address to all these pleas in his order dated 18.04.2016. The order is quite cryptic in nature so also the order passed by the appellate authority as well as authority sitting in revision short order has been passed. The appellate authority records reasons to dismiss the appeal under his order dated 20.09.2016 as under: "2. I perused all the related papers of the case and found nothing new has been brought out in the appeal of Shri Rajesh Kumar, Assistant, (since deceased) against the order of D.A. and situation leading to the incident. Therefore, I am not inclined to intervene in the order passed by the Disciplinary Authority as the appeal did not merit consideration. I dispose the appeal accordingly." 15. So also the authorities sitting in revision assigns reason for dismissing the revision as under: "पपुनश्च उपररो्ሹ आददेश मम ससंदरररत आपकदे अपपील रदननसंक 09.06.2016 कदे पररपदेቌኚय मम अपपीलपीय पनधधिकनरपी एवसं उप महनपबन्धिक {व्य. एवसं परर .} पशनसरनक कनयनरलय, वनरनणसपी कदे आददेश ससंख्यन VRN/DPC/34 रदननसंक 20.09.2016 करो रपी आपकरो रदननसंक 24.10.2016 करो सपुपपुदर रकयन जन चपुकन हहै। तदनपुसनर पकरण मम हमनरदे स्तर सदे कपु छ रपी रकयन जननन शदेष नहीሻ हहै। अतत आपकदे परतवदेदन करो तदनपुसनर रनस्तनररत रकयन जनतन हहै।" "Again in connection with the appeal dated 09.06.2016 the order passed by the authority and Deputy General Manager (Banking and Operation), Administrative Office, Varanasi dated 20.09.2016 has already been served upon you. Accordingly, nothing remains to be further done in the matter. Thus, your representation stands decided." (Translated by Court) 16. Both the above orders are not only very short orders but do not reflect any due application of mind. Still further it is worth noticing here that while disciplinary authority passed an order on 23.02.2016 annexing therewith a tentative order proposing a penalty of termination from service, the reply submitted by the petitioner brought on record as Annexure No. 36 to the writ petition has not at all been considered. Instead of dealing with the reply, the disciplinary authority only records as under: रनयपुर्ሹ पननदे कदे " आप नदे बबक मम सहनयक कदे रप मम धिरोखनधिडपी/ आररोप पत रदननसंक 26.10.2015 अवलरोकन करनदे कदे पश्चनत मदेरदे दनरन आप कदे रदननसंक 23.02.2016 मम आप करो रनधिनरररत अवधधि कदे रपीतर अपनन बचनव पत पस्तपुत करनन थन। धलए जनन बबझ कर अनपुरचत तरपीकन अपननयन थन। इस ससंदरर मम आप करो रदयदे गए तथन अन्य पनससंरगक अररलदेखरो कन रवरद एक अनसंरतम आददेश करो पनररत रकयन गयन थन तथन अनसंरतम आददेश कदे ससंदरर रदननसंक 09.03.2016 इस समबसंधि मम आप करो पतनसंक आर.बपी.ओ-4/आज/2016- 2. 17/एफ&सपी/684 अनपुस्मनरक कदे रप मम रदेजन गयन थन। परसंतपु आप कक ओर सदे करोई उतर न रमलनदे पर दबसरन अनपुस्मनरक, पतनसंक रदननक 28.03.2016 रदेजन आर.बपी.ओ.-4/आज/2016-17/एफ&सपी/704 गयन। इस ददरनन मरोबनइल ससंख्यन 8736916197 पर रपी आप सदे समपकर कर कई बनर मदधखक अनपुररोधि रपी रकयन गयन तदपुपरनन्त आप नदे अनसंरतम आददेश कक अररस्वपीकक रत परत पदेरषत कक जरो इस कनयनरलय मम 18.04.2016 करो पनप हहई। इसकदे सनथ आप दनरन पदेरषत बचनव पत मम रपी कपु छ नयन नहीሻ हहै। जरो कपु छ रपी हहै उसकरो पबवर मम हपी ससंजनन मम लदेकर अनसंरतम आददेश ( Interim Order) रदननसंक 23.02.2016 करो पनररत रकयन गयन थन। हचन हह ह रक शपी रनजदेश कपु मनर, 3. तथनरप समपबणर पकरण पर समगतन सदे पपुनत रवचनर करनदे कदे पश्चनत मब इस ह रक मदेरदे दनरन पनररत अनसंरतम आददेश रदननसंक 23.02.2016 रनषकषर पर पहह मम पस्तनरवत दसंड उरचत हहै एवसं उस पर पपुनरवरचनर करनदे कक आवश्यकतन नहीሻ हहै। सहनयक (U/S) अतएव मब असंरतम रप सदे रनणरय लदेतन हह करो " रनरतपीय बबक ससंघ और कमरचनरपी ससंगठनन कदे मधय रदपकपीय समझदतन रदननसंक 10.04.2002 ' पदचयपुत' रकयन जनय एवसं रनलसंबन अवधधि करो यथनवत मननन जनयदे और रनलसंबन कक अवधधि मम रनवनरह रतदे कदे अरतरर्ሹ अन्य करोई रपी वदेतन व रतन न रदयन जनयदे " ("Be dismissed from Bank service and the period of suspension may be treated as such and no salary and allowances will be paid during the period of suspension except subsistence allowance as applicable under para 6(a) of Bipartite Settlement dated 10.04.2022"). कदे असंतगरत बबक सदेवन सदे कदे परन 6(ए) 4. असंरतम आददेश कदे रवरद यरद आप अपपील करनन चनहतदे हब तरो इस आददेश पनरप कदे 45 पररचनलन), सकतदे हब। रदनन कदे असंदर अपपीलदेट पनधधिकनरपी, रनरतपीय स्टदेट बबक, पशनसरनक कनयनरलय, उप महनपबसंधिक ( बबरकसं ग एवसं वनरनणसपी कदे समक कर मब तदनपुसनर आददेश ददेतन हह ह। "In this connection after perusing the charge sheet and related documents, I had passed interim order against you on 23.02.2016 and you were required to furnish reply within a prescribed period of time. 2. We were also sent reminders dated 09.03.2016 but no reply was received from you, so second reminder sent on 28.03.2016. During this period you were also contacted on your Mobile No. 8736916197 and had been orally requested (fore reply) and it is thereafter that your had sent acknowledgement regarding that which was received in the office on 18.04.2016. Along with that you have not stated anything new in your defence as ever is there has already been taken into cognizance earlier while passing interim order dated 23.02.2016. 3. Not understanding the above, I have reconsidered the entire matter in its entirety and have arrived at a conclusion that the proposed punishment in my interim order dated 23.02.2016 is appropriate one and it is not required to be reviewed. Accordingly, I hereby finally decide that Sri Rajesh Kumar, Assistant (U/S) be terminated from service as per Para 6(a) of the tripartite agreement dated 10.04.2002 reached between the Indian Banks Association and Employees' Organization and the suspended period shall be maintained as such and besides suspension allowance nothing more to be paid towards the wage and allowance. 4. If you want to file an appeal against this final order, you may do so before the appellate authority Deputy General Manager (Banking and Operation), State Bank of India, Administrative Office, Varanasi within 45 days. Accordingly ordered." (Translated by Court) 17. This, in my considered view is not a proper application of mind. It appears that the authority had pre determined to approve the tentative order. Such a subjective and prejudicial approach of the authority in the matters of issues of vital importance when an employee after receiving appointment had joined service, cannot be approved of. Number of documents have been appended in which the petitioner had repeatedly questioned the ex perte opinion obtained in the matter, so the correct approach ought to have been to get either the ex parte opinion from a Government Laboratory by taking fresh sample of the petitioner or to have got the expert examined and cross examined by the petitioner in view of the judgment of this Court as cited above. 18. It has been repeatedly held by the Constitutional courts in India that a delinquent employee when subjected to departmental inquiry and the proceedings, he is to be treated fairly in the proceedings. When one talks of fair treatment, one means to say always that such an employee is afforded reasonable opportunity to defend his case during oral inquiry. One of the cardinal rules of justice and fair play is not only the regularity in the matter of method adopted but procedural fairness must also be reflected. Supreme Court in the case of State of U.P. & Ors v. Saroj Kumar Sinha (2010) 2 SCC 772 has quoted Jackson J. from U.S. Law Reports, 345 US 206 (1952) = 197 L Ed 956, wherein His Lordship had observed thus: " ... Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied." 19. The Court also referred to the treatise of judicial review, by De Smith, Woolf and Jowell namely judicial review of administrative action 5th Edn., p. 442 which runs as under: "If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked." 20. Vide para 28 the Supreme Court observed thus: "28. An inquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents." 21. In the case of State of Punjab v. Bhagat Ram (1975) 1 SCC 155 had observed vide para 8 thus: "8. It is unjust and unfair to deny the Government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges leveled against the Government Servant. A synopsis does not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken." 22. I find that in the present case despite repeated requests made by the petitioner initially no document was supplied. Further, I find that an application to cross examine the expert made by the petitioner was not granted as no heed was paid to his request. This was also raised as ground in appeal but the appeal has been dismissed in a very cursory manner without dealing with this point. Thus none of the authorities, disciplinary, appellate and revisional has addressed this issue in their respective orders despite grounds raised in reply to the show cause notice, appeal and revision. 23. It is worth noticing in the present case that the Division Bench had clearly held that in the event the authority proceeded to hold inquiry afresh, the order passed by the Single Judge would stand quashed. Thus, the authority had the ample opportunity to hold regular inquiry with all transparency at its command and to make it appear that the petitioner had the reasonable opportunity. Having not done so and having not acceded to the request of the petitioner with regard to the expert opinion, the authority has missed its opportunity to justify its action. No second opportunity in the circumstances can be afforded to the respondent.
Decision
24. In view of the above and in the light of the judgments referred above, writ petition succeeds and is allowed. The impugned order of termination dated 18.04.2016 as well as the appellate order dated 20.09.2016 as well as the revisional order dated 27.03.2017are held unsustainable and accordingly, the same are set aside. Consequences to follow. Petitioner shall be reinstated and shall be paid salary and other emoluments 25. There will be no order as to cost. Order Date :- 23.3.2023 IrfanUddin Digitally signed by :- IRFAN UDDIN SIDDIKI High Court of Judicature at Allahabad