Tapan Kumar Dey v. United Bank of India — 1993 DIGILAW 493 (CAL)

JUDGMENT Sen, J. : The facts leading to the writ petition and the instant appeal as appears from the stay application filed before us are set out hereinafter. 2. The petitioner joined under the respondent Bank on 30.4.71 and was promoted to the rank of officer on 29.12.79 and was placed on probation. The respondents did not issue any order on successful completion of the period of probation on 10.7.81 inspite of representations of the petitioner. 3. The Union of India through its Ministry of Finance considered induction of the petitioner as non-workman Director and accordingly the Bank was directed to send the bio-data of the petitioner as he was the elected General Secretary of the Union of the United Bank of India affiliated to Indian National Trade Union Congress. The respondents apprehended danger, as the petitioner did not hesitate to refer to higher authorities cases of corruption to protect public interest. The respondents to stop the appointment of the petitioner as non-workman Director established panelled organisation styled under the name and style of I.N.T.U.C and the said bogus I.N.T.U C with the help of muscleman forcibly occupied the office room. 4. The petitioner reported a case of granting an illegal advance of more than four lakhs of rupees to one Sri Ashok Kumar Mahabir Prasad which made the concerned Bank Manager infuriated and who arranged to implicate the petitioner in disciplinary proceedings to ensure his removal and/or dismissal from services. 5. The petitioner coming to know about the conspiracy moved an application under the Article 226 of the Constitution of India being C.R. No. 23639 (W) of 1982 which is still pending. In the said Civil Rule an interim order was passed prohibiting initiation of disciplinary proceedings which was ultimately modified by the Appeal Court in F.M.A.T. No. 3041 of 1982 granting liberty to the respondents to initiate disciplinary proceedings if necessary. 6. That on 5/7th December, 1981, a charge-sheet was issued to the petitioner containing two articles of charges along with statement of imputation of charges, copy of which has been annexed to the writ petition. 6. That on 5/7th December, 1981, a charge-sheet was issued to the petitioner containing two articles of charges along with statement of imputation of charges, copy of which has been annexed to the writ petition. The statement of imputation was to the effect that on 27.11.81 the Manager of Strand Road Branch tried to serve a copy of transfer and release order of the petitioner at the close of business on 27.11.81 but allegedly the petitioner refused to accept the same and left the Bank without informing anybody. On the same day that is on 21.11.81 the said Branch Manager allegedly reported the matter to the Regional Manager who allegedly advised the said Branch Manager to record the fact of his release in the attendance register by writing "To R.M. Office" to send a copy of release order to the place of petitioner’s residence and to display a copy of the release order on the notice board. 7. It is the contention of the appellant/writ petitioner that in the said charge sheet false statements like refusal to accept the order of transfer has been made on 5th/7th December, 1981, while the significant fact of the petitioner's joining his transferred post before 5th December, 1981 in between 28th November, 1981 and 5th December, 1981 has been suppressed and not mentioned. This very fact of his complying with the order of transfer establishes the non-tenability of the charge and shows that no cause of action existed for issuance of the said charge-sheet. Letter dated 2nd April, 1982 has been annexed to the writ petition. 8. It has been alleged on behalf of the appellant/writ petitioner that he came to know from an advertisement in Ananda Bazar Patrika that he had been placed under suspension and challenged the said order of suspension by a writ petition being Civil Order No. 13602 (W) of 1984 and the said order of Suspension was set aside by this Court. The respondents preferred an appeal being F.M.A.T. No. 320 of 1985 in which the respondents were allowed to continue enquiry and serve copy of charge-sheet to the petitioner. 9. The respondents preferred an appeal being F.M.A.T. No. 320 of 1985 in which the respondents were allowed to continue enquiry and serve copy of charge-sheet to the petitioner. 9. It has also been contended that thereafter the purported enquiry was held, completed in gross violation of the principles of natural justice and the petitioner was removed from service without serving a copy of enquiry report and second show cause notice to the petitioner in violation of the provisions of Article 311 of the Constitution of India. 10. According to the respondents, the writ petitioner stands removed from service by an order of 5th August. 1985 on the basis of Enquiry Officer's report of 31st July, 1985 confirming and admitting that the copy of Enquiry Officers' report. It is however the contention of the writ petitioner/appellant that the said report was not served upon the petitioner in violation of the principles laid down in (1) Union of India v. Md. Ramjan Khan reported in AIR 1991 SC 471 . 11. The copy of a said removal order was served upon the appellant in pursuance of an order passed by the Division Bench in Appeal No. 667 of 1998 on 11th January, 1989 in the Court room. So the undisputed date of service of 'the impugned order is 11.1.1989 and copy of the said order of removal dated 5.8.1985 has been annexed to the writ petition. 12. It is the contention of the writ petitioner/appellant that according to law, he is entitled to prefer an appeal which he preferred by a letter dated 23rd February, 1989 and which has been annexed to the writ petition. The said appeal was rejected by the respondents being time barred. On application of the appellant this Court by an order passed on 7th September, 1989 directed the respondents to hear and dispose of the said appeal according to law holding that appeal dated 23rd February, 1989 as within prescribed time from 11th January, 1989 the date of service. A copy of the order passed by this Court on September 7, 1989 has been annexed to the writ petition. 13. The said appeal was, however, rejected by the concerned authority. Challenging the said order dismissing the appeal, the instant writ petition was moved. 14. Learned Single Judge, however, dismissed the writ petition. 15. A copy of the order passed by this Court on September 7, 1989 has been annexed to the writ petition. 13. The said appeal was, however, rejected by the concerned authority. Challenging the said order dismissing the appeal, the instant writ petition was moved. 14. Learned Single Judge, however, dismissed the writ petition. 15. It has been contended by the Learned Advocate for the appellant/writ petitioner that the said judgment of the Learned Judge is liable to be set aside. There are several points on which the said judgment of the Learned Judge has been challenged before us. 16. It has been submitted that the respondent had not produced the records before the Learned Single Judge although it has been mentioned in the judgment that the records have been produced. In any event according to the appellant he did not get any opportunity to produce such records. 17. The other contention of the appellant is that the Enquiry Officer’s report was challenged on the ground of bias of the Enquiry Officer. In fact the appellant took the question of bias before the Enquiry Officer but the Enquiry Officer overruled the same. 18. The Learned Single Judge noted that the Enquiry Officer is a law Officer of the Bank but he had not handle any case against the appellant in either High Court or Criminal Court. The apprehension of the appellant/petitioner in any event should have been given due weightage particularly when the statement of the appellant had not been denied by the Enquiry Officer. 19. In this connection the judgment and decision in the case of (2) C.S. Rowjee v. The State of Andhra Pradesh and Others reported in AIR 1964 SC 962 may be taken note of. In the aforesaid decision some of the Motor Transport operations challenged, by a writ petition. 19. In this connection the judgment and decision in the case of (2) C.S. Rowjee v. The State of Andhra Pradesh and Others reported in AIR 1964 SC 962 may be taken note of. In the aforesaid decision some of the Motor Transport operations challenged, by a writ petition. The validity of scheme framed under Chapter-IVA of the Motor Vehicles Act, 1932 nationalising the Motor transport in their particular area on the ground that State Road Transport Corporation had framed the scheme not because of their opinion formed under Section 68 C of the Act but on the direction of the Chief Minister of the State and that the Chief Minister was motivated by extraneous considerations, namely, to strike at his political opponents who worked either against himself or his friends supporters and relations in the elections in February, 1962 and had devised the scheme in order to cause them loss and compass their ruins and the petitioners gave all the relevant objective facts in support of their allegations in their affidavits but there was no denial by the Chief Minister, nor any affidavit by any person who claimed or could claim to know personally about the truth about these allegations and the counter affidavit filed by a Secretary of the Government formality denying the allegations on the instructions of the Chief Minister was rejected as heresay. It was held that the Court was constrained to hold that the allegations that the Chief Minister was motivated by bias and personal ill-will against the petitioners stood unrebutted. 20. In this context the Supreme Court observed in paragraph 20 of the said judgment at page 969 of the said report as follow :– “20. It is, no doubt, true that allegations of mala fides and of improper motives on the part of those in power are frequently made and their frequently has increased in recent time. It is also somewhat unfortunate that allegations of this nature which have foundation in fact, are made in several of the cases which have come up before this and other Courts and it is found that they have been made merely with a view to cause prejudice or in hope that whether they have basis in fact or not some of it atleast might stick. Consequently, it has become the duty of the Court to scrutinize these allegations with care so as to avoid being in any manner influenced by them, in cased where they have no foundation in fact. In this task which is thus cast on the Courts it would conduce to a more satisfactory disposal and consideration of them, if those against whom allegations are made came forward to place before the Court either their denials or their version of the matter, so that the Court may be in a position to judge as to whether the onus that lies upon those who make allegations of mala fides on the part of authorities of the status of those with which this appeal is concerned, have discharged their burden of proving it. In the absence of such affidavits or of materials placed before the Court by these authorities, the Court is left to judge of the veracity of the allegations merely on test of probability with nothing more substantial by way of answer. This is precisely the situation in which we find ourselves in the present case”. 21. It appears from record that the Enquiry Report was submitted on July 31, 1985 and the removal order was passed on 5th August, 1985. The said allegations in the writ petition has not been controverted in the Affidavit-in-Opposition. 22. It also appears from record that a copy of the Enquiry Officer’s report dated 31st July,, 1985 has not been served upon the petitioner and as such, he is not in a position to deal with the same and was thereby denied the proper opportunity of representation and as such, the order of removal was made in violation of the principles of natural justice. 23. The judgment and decision in the case of Union of India v. Mohd. Ramjan Khan reported in AIR 1991 SC 471 was relied upon on behalf of the appellant/petitioner. In the aforesaid decision the Supreme Court in paragraph 13, 14 and 15 of the said judgment at pages 475 to 476 of the said report observed as follow :– “13. Several pronouncements of this Court dealing with Art.311(2) of the Constitution have laid down the test of natural justice in the matter of meeting the charges. This Court on one occasion has stated that two phases of the Inquiry contemplated under Art. 311(2) prior to the 42nd amendment were judicial. Several pronouncements of this Court dealing with Art.311(2) of the Constitution have laid down the test of natural justice in the matter of meeting the charges. This Court on one occasion has stated that two phases of the Inquiry contemplated under Art. 311(2) prior to the 42nd amendment were judicial. That perhaps was a little stretching the position. Even if it down not becomes a judicial proceeding, there can be no dispute that is a quasi judicial one. There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the material before conclusion is reached. These facts do make the matter quasi judicial and attract the principles of natural justice. As this Court rightly pointed out in the Gujarat case (3) AIR 1969 SC 1294 , the disciplinary authority is very often influenced by the conclusions of the Inquiry Officer and even by the recommendations relating to the nature of punishment to be inflicted. With the Forty Second Amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the Inquiry Officer to come to his conclusions. In case his conclusions are kept away from the delinquent officer and the Inquiry Officer submits his conclusions with or without recommendation as to punishment the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment s far as the delinquent concerned in a quasi judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be affected. Prof. Wade has pointed out : “The concept of natural justice has existed for many centuries and it has crystalised into two rules : that no man should be judge in his own cause; and that no man should suffer without first being given a fair hearing. They (the Courts) have been developing and extending the principles of natural justice so as to build up a kind of code of fair administrative procedure to be obeyed by authorities of an kinds. They (the Courts) have been developing and extending the principles of natural justice so as to build up a kind of code of fair administrative procedure to be obeyed by authorities of an kinds. They have done this once again, by assuming that Parliament always intends powers to be exercised fairly." "14. This Court in (4) Mazharul Islam Hashmi v. State of U. P. 1979(4) SCC 537 : AIR 1979 SC 1237 pointed out : "Every person must know that he is to meet and he must have opportunity of meeting that case. The Legislature, however, can exclude operation of these principles expressly or implicitly. But the absence of any such exclusion, the principles of natural justice will have to be proved". 15. Deletion of the second opportunity from the scheme of Art. 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Art. 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series or pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the 42nd amendment, We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter or proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty Second Amendment has not brought about any change in this position". 24. The Forty Second Amendment has not brought about any change in this position". 24. After applying this test in that case, the Court proceeded to have a close look at the evidence that was led in the case and in the circumstances of the case rejected the evidence of Shri Rajagopalan, who claimed to have given the bribe and reached the conclusion that the finding of the Government holding the delinquent officer guilty of accepting bribe was perverse and unsupported by any evidence. More or Less, the facts before us almost lead to the same conclusion. 25. The aforesaid principles enunciated by the Supreme Court has not been considered in its proper perspective by the Learned Single Judge. Learned Single Judge, on the other hand referred to the judgment and decision in the case of (5) Union of India v. Parmananda reported in AIR 1989 SC 1185 wherein the Supreme Court inter alia observed that "if there has been an enquiry consistent with the rules and in accordance with the principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of competent authority. If the penalty can be lawfully imposed...............” However, the said principles cannot be applied against the petitioner since it is the case of the petitioner that the principles or natural justice was violated in the enquiry proceedings. 26. In the case of (6) Bhagat Ram v. State of Himachal Pradesh and others reported in A1R 1983 SC 454 the Supreme Court held that in a petition under Art. 226 the High Court does not function as a court of appeal over the findings of disciplinary authority. But where the finding is utterly perverse the High Court can always interfere with the same. In this connection the Supreme Court referred to its earlier decision in the case of (7) Union of India v. H.C. Goel reported in AIR 1964 SC 364 at page 359, Gajendragadkar, J. speaking for the Court observed as under :– "It will remain to be considered whether the respondent is not right when he contends that in the circumstances of the case, the conclusion of the Government is based on no evidence whatever. It is a conclusion which is perverse and, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by the public servants who have been dismissed, or otherwise dealt with so as to attract Article 311 (2) the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported be any evidence at all. It is true that the order or dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order nevertheless, the proceedings held against such public servant under the statutory rules to determine whether he is guilty of the charge framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Govt. in the said proceedings, which is the basis of his dismissal is based on no evidence". 27. It has been specifically alleged by the appellant/petitioner that the disciplinary authority being Shri N. G. Sengupta cannot be free from bias since a case of defamation being No. C/2751/83 under Section 500 of the Indian Penal Code instituted by the appellant against the said Shri Sengupta is pending. The petitioner is the General Secretary of the Association affiliated to the Indian National Trade Union Congress and as such is entitled to trade union rights. He is also immune to civil and criminal liabilities under the Trade Union Act. The Supreme Court in (8) B. R. Singh v. Union of India reported in AIR 1990 SC 1 set aside the dismissal of Trade Union Leaders. It is the petitioner's case that he started movement to weed out corruption from the Bank and subsequently after his removal Central Bureau of Investigation had been able to find incriminating materials against respondents 5 and 6 herein among others which establishes the bona fide of the petitioner. 28. It is the petitioner's case that he started movement to weed out corruption from the Bank and subsequently after his removal Central Bureau of Investigation had been able to find incriminating materials against respondents 5 and 6 herein among others which establishes the bona fide of the petitioner. 28. It has been contended by the Learned Advocate for the appellant/petitioner that to ascertain credibility of the charge sheet the following dates are required to be noted : On 27th November, 1981 the order of transfer was sought to be served upon the petitioner and he allegedly refused to receive the order. On 28th November, 1981 the petitioner is alleged to have forcefully recorded his attendance. On 29th November, 1981-Holiday. On 30th November, 1981 the petitioner allegedly forcefully recorded his attendance. On 5th December, 1981-the date of issue of charge sheet. 29. It has been contended that in the charge sheet the fact of the petitioner's complying with the order of transfer has been suppressed although the petitioner joined before issue of charge sheet dated 5/7.12.1981. The suppression of this fact, it has been submitted made the charge sheet baseless. 30. It has also been submitted that the two charges contained in the charge sheet dated 5/7.12.1981 failed for the reason that the article of charge No. 1 alleges that the petitioner had failed to maintain good conduct and discipline in discharging his duties. The article of Charge No. 2 alleges that the petitioner failed to carry out lawful and reasonable order by not receiving the transfer order while the petitioner carried out the order of transfer before issue of charge sheet dated 5/7.12.1981. 31. The five articles of charges contained in the charge sheet dated 6th/14th September, 1982 are for supplementing the charge sheet dated 5/7.12.1981 and contain three new charges apart from two contained in charge sheet dated 5/7.12.1981 which are dealt herein : (a) In Article of charge No. 3 the allegation contained is to the effect that the petitioner did not reply to the charge sheet within stipulated time but the charge sheet was received by the petitioner's learned Advocate in compliance with the Court's orders dated 14th February, 1985 and as such the said article of charge No.3 appears to be frivolous and without any basis whatsoever. (b) Regarding the articles of charges Nos. (b) Regarding the articles of charges Nos. 4 & 5 the respondents in the statement of imputation deliberately failed to mention that they had never warned or informed the petitioner about his deficiency which is a statutory requirement. 32. The article of charge No.6 alleges that the petitioner had failed to maintain discipline by sending legal notice. The charge had been he'd to be substantiated by Enquiry Officers, Disciplinary Authority, Appellate Authority and Reviewing–Authority although no one is authorised to take away the legal right of issuing legal notice. 33. Assuming that the appellant is guilty of misconduct, the punishment is obviously disproportionate. The main charge that the appellant refused to accept the alleged order of transfer stands belied by the act of the compliance of the order of transfer/even before the issuance of the charge sheet dated 5/7th December, 198l. So the only point which may go against the appellant that there was delay of 72 hours in joining his transferred post. This delay cannot be termed as misconduct, a misconduct serious enough to warrant removal from service. The learned Trial Court at the hearing stage directed the respondents to consider the quantum of punishment but while finally dismissing the writ application held that the quantum of punishment cannot be interfered by the Court. The appellant submitted that the judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The sentence has to suit the offence and the offender. It should not be vindictive and in the appellant's case the punishment is vindictive, mala fide and so disproportionate to the alleged offence that would shock the conscience and amount in itself conclusive evidence of bias. The Supreme Court in (9) Ranjit Thakur v. Union of India reported in AIR 1987 SC 2386 was pleased to note the point that all powers have legal limits and was pleased to interfere in the awarding of disproportionate punishment by quashing the said disproportionate punishment. 34. Considering the facts on record as already noted and the principles enunciated in the aforementioned cases it appears to us that the impugned order of removal is not sustainable being void ab-initio as copy of report of Enquiry Officer was not served to the appellant allowing him to show-cause against any punishment in the light of principles laid down in Union of India v. Md. Ramjan Khan, reported in AIR 1991 SC 471 . 35. The appellant, therefore, succeeds in this appeal. 36. Writ petition is allowed. Let appropriate writs be issued. The order of removal is set aside. 37. The appellant accordingly should be deemed to be continuing in service without any interruption or break and will receive all consequential service benefits. However, for all practical purposes since he did not work for the entire period he will be paid an amount equivalent to subsistence allowance from the date of his removal from the date of his reinstitutement. The appellant shall be reinstated forthwith. The appeal is accordingly disposed of with the directions as above. There will be no order as to costs. All parties are to act on a signed copy of the operative part of this Judgment order on the usual undertaking. Sengupta, J. : I agree.