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2001 DIGILAW 56 (PAT)

Jugesh Kumar v. Allahabad Bank

2001-01-19

R.M.PRASAD

body2001
Judgment R.M.Prasad, J. 1. As agreed by the learned counsel for the petitioners and the learned counsel for the Bank, the writ petition itself has been heard for final disposal at the stage of admission itself. 2. In this writ petition, the petitioner is aggrieved by the order of the disciplinary authority, contained in Annexure 6, as well as the order passed by the appellate authority, contained in Annexure 8, and the order passed by the reviewing authority, contained in Annexure 10. 3. Learned counsel for the petitioner initially submitted that the reviewing authority has not at all applied his mind in exercise of the power under Regulation 18 of the Allahabad Bank Officer Employees (Discipline & Appeal) Regulations, 1976, [hereinafter referred to as the 1976 Regulations], as is evident from the communication contained in Annexure 10 itself. It has further been submitted that even the disciplinary authority and the appellate authority have not applied their mind and recorded the finding based not on any evidence led in the departmental inquiry. 4. From the order of the disciplinary authority, it would appear that even though he has held that the benefit of doubt should go in favour of the petitioner, still he has inflicted the punishment on the petitioner purporting to be in terms of Regulation 4 (g) of the 1976 Regulations and directed that the present grade of the petitioner be reduced to Junior Management Grade Scale-I and his basic pay be fitted at the first stage of Scale-I. He further ordered that the petitioner shall not be entitled to any wages/salary or part thereof, except subsistence allowance already paid for the period, he remained under suspension which has been revoked with the said order and was to come into effect on the reporting of the petitioner on duty at Bhagalpur University Branch under Regional Officer, Bhagalpur. 5. By the appellate order, contained in Annexure 8, the appellate authority has agreed with the order of the disciplinary authority that the acts of omission and commission committed by the petitioner are serious and grave in nature and has also recorded finding that most of the charges have been substantiated in course of the inquiry. 5. By the appellate order, contained in Annexure 8, the appellate authority has agreed with the order of the disciplinary authority that the acts of omission and commission committed by the petitioner are serious and grave in nature and has also recorded finding that most of the charges have been substantiated in course of the inquiry. He however, stated that the disciplinary authority on considering various factors and also the young age of the petitioner has taken a lenient view in the matter not warranting any interference with the said decision of the disciplinary authority and, accordingly, rejected the appeal. 6. The petitioner filed review application before the Chairman-Cum-Managing Director of the Bank, about which the impugned communication, contained in Annexure 10, has been issued saying that in terms of Regulation 18, the reviewing authority has already reviewed the case of the petitioner and that there is no scope for further review in the matter. 7. In the counter-affidavit the stand of the respondent-Bank is that the employee has no right to move the reviewing authority by filing application. The power of review given under Regulation 18 of the 1976 Regulations is by way of check on the action of the disciplinary authority which is to be exercised by the reviewing authority on his own within six months from the date of the final order. 8. While hearing this matter on December 18, 2000, this Court had directed the learned counsel appearing for the respondent-Bank to produce the decision of the reviewing authority in the file. Accordingly, Mr. Sinha, learned counsel appearing for the Bank has produced the papers to show that the reviewing authority had taken decision on August 31, 1999. It has been submitted by the learned counsel for the Bank that once the reviewing authority has taken decision on his own, there was no question of further consideration of the case of the petitioner on his application for review filed by him on January 8, 2000. A photo copy of the said decision of the reviewing authority be kept on record. 9. Learned counsel for the petitioner, on the other hand, has submitted that Regulation 18 of the 1976 Regulations vests power of review in the reviewing authority and it does not provide that the aggrieved employee cannot move an application for exercise of the said power of review by the reviewing authority. 9. Learned counsel for the petitioner, on the other hand, has submitted that Regulation 18 of the 1976 Regulations vests power of review in the reviewing authority and it does not provide that the aggrieved employee cannot move an application for exercise of the said power of review by the reviewing authority. Regulation 18 of the 1976 Regulations runs as follows: "18. Review: Notwithstanding anything contained in these regulations, the Reviewing Authority may call for the record of the case within six months of the date of the final order and after reviewing the case pass such order thereon as it may deem fit. Provided that: (i) If any enhanced penalty, which the Reviewing authority proposes to impose, is a major penalty specified in Clause (f), (g), (h), (i) or (j) of Regulation 4 and an inquiry as provided under Regulation 6 has not already been held in the case, the Reviewing Authority shall direct that such an inquiry be held in accordance with the provisions of Regulation 6 and thereafter, consider the record of the inquiry and pass such orders as it may deem proper; (ii) If the Reviewing authority decides to enhance the punishment but an inquiry has already been held in accordance with the provisions of Regulation 6, the Reviewing authority shall give show-cause notice to the officer employee as to why the enhanced penalty should not be imposed upon him and shall pass an order after taking into account the representation if any submitted by the officer employee." 10. There may be some substance in the submission of the learned counsel for the petitioner. However, without going into the details in regard to the said submission, this Court finds from the papers produced today by the learned counsel for the Bank that there is nothing in it to show that the Reviewing Authority has applied his mind for exercise of the power under Regulation 18. The papers produced by the learned counsel for the Bank carry a note of the Chief Manager with respect to various disciplinary cases including the case of the petitioner disposed of during the month of May 1999. It is not even clear from the said note of the Chief Manager that the signatures which are there at the top of the said note are of the Reviewing Authority. It is not even clear from the said note of the Chief Manager that the signatures which are there at the top of the said note are of the Reviewing Authority. However, even assuming that one of the signatures of the Reviewing authority, as claimed by the learned counsel for the Bank, then it clearly depicts non-application of mind by the Reviewing authority as he has not even said that he perused the entire record and has passed any order on consideration of the same. The power under the Regulation, in my opinion, cannot be exercised in such manner. The Reviewing authority at least has to record his own order as he may deem fit and proper but not that by only putting his signature, as has been claimed in the instant case, the power of review can be said to have been exercised in terms of Regulation 18. 11. Moreover, this Court finds substance in the submission of the learned counsel for the petitioner that the order of the disciplinary authority would show that he has passed it on mere surmises. While considering the gravity of misconduct committed by the petitioner, he has said that the petitioner deserves deterrent punishment when he has himself found that in some cases the element of the charge that the petitioner received payments in each case does not seem to be proved conclusively and that as regards the rest part of the charges, the prosecution has relied on the statements of the borrowers, who were not produced in the proceedings and as such, the defence was not provided with an opportunity to cross-examine them which, according to him, should have been provided under the rules of natural justice. This shows that the disciplinary proceeding itself was conducted in violation of the principles of natural justice. Similar is the findings recorded by him in respect of other articles of charges; like allowing advances without opening pronote accounts, without obtaining security/security documents and allowing advances in fictitious names, etc. He has found that the prosecution did not bring sufficient evidentiary materials to establish that the person who discharged payment vouchers was the petitioner himself and that the person who deposited loan amount at Harmu Colony was his father. It is not the case of the respondents that there has been any financial loss caused to the Bank in the instant case. 12. It is not the case of the respondents that there has been any financial loss caused to the Bank in the instant case. 12. However, having regard to the fact that the Reviewing authority has not disposed of the matter in terms of Regulation 18 of the 1976 Regulations, the writ application is allowed and the impugned communication, contained in Annexure 10, is quashed and the matter is remitted back to the Reviewing Authority for consideration of the case of the petitioner and disposal by a reasoned order. However, as the petitioner has also placed his case in the representation, contained in Annexure 9, the Reviewing Authority shall also consider it and dispose it of by a reasoned order while passing the aforesaid order within two months of the receipt/production of a copy of this order. 13. However, it is made clear that as this Court has not gone into the question regarding maintainability of the review application at the instance of the employee under Regulation 18 in detail, this order shall not be considered as a precedent or rule entitling an employee for making of review application in terms of Regulation 18, as has rightly been suggested by Mr. Sinha, learned counsel for the Bank.