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2013 DIGILAW 1050 (JHR)

Rajendra Prasad Sah v. Bank of India, Mumbai

2013-09-13

SHREE CHANDRASHEKHAR

body2013
Judgment Aggrieved by the order of compulsory retirement dated 29.11.2001, the petitioner has approached this Court by filing the present writ petition. The appellate order dated 16.5.2002 and the revisional order dated 21.10.2002 have also been challenged by the petitioner in the present proceeding. 2. The brief facts of the case are that, the petitioner was appointed as a clerk. The charge memo dated 26.04.1999 containing various charges was served upon the petitioner and an enquiry was conducted. The enquiry report dated 30th April, 2000 was submitted finding the charge no.-1 and charge no.-3 partially proved. A further enquiry was ordered and the second enquiry report dated 23.09.2000 was submitted finding the charge no.-3 also proved. Charges framed under the charge no.-1 was found proved/partially as has been found in the first enquiry report. Charge nos. 2 and 4 were not found proved. Aggrieved by this, the petitioner preferred an appeal which was dismissed on 16.05.2002 and revision application preferred by the petitioner has also been dismissed on 21.10.2002. 3. A counter-affidavit has been filed by the respondents stating as under: “6. That it is incorrect to say that fresh enquiry has been ordered. The Disciplinary Authority vide order dated 27.7.2000 has ordered for further enquiry in the matter after recording the reasons in terms of regulation 7 of Bank of India Officer's Employees (Discipline & Appeal) Regulations 1976. The order dated 27.07.2000 by which further enquiry has been ordered has been duly acknowledged by the petitioner. In the further enquiry opportunity of defence was given to the petitioner which was availed by him. As per the regulation 7 of Bank of India Officer employees (discipline & Appeal) Regulation 1976, Disciplinary Authority is empowered to remit back the case to the Inquiring Authority for fresh or further enquiry. Since in the further enquiry opportunity of defence has been provided to the petitioner therefore there is no violation of Principles of natural justice. In the charge-sheet issued to the petitioner for lapses /misconduct committed by him only has been covered. The Disciplinary Authority has acted independently without any influence from any quarter. Since in the further enquiry opportunity of defence has been provided to the petitioner therefore there is no violation of Principles of natural justice. In the charge-sheet issued to the petitioner for lapses /misconduct committed by him only has been covered. The Disciplinary Authority has acted independently without any influence from any quarter. Further all the authorities viz Disciplinary, Appellate and Review are independent and they have considered the case in their respective capacities separately after considering the appeal and review petition so filed by the petitioner objectively and thereafter the impugned orders have been passed as such there is nothing to be interfered into. 7. That is stated and submitted that the penalty order, appellate and Review orders are fully legal, justified and sustainable. The order dated 27.7.2000 ordering further enquiry is wholly justified and valid and as per the prescribed rules/ regulation. The further enquiry has been ordered vide order dated 27.7.2000 which has been duly acknowledged by the petitioner and there is no violation of Principles of natural justice as claimed for. 8. That it is further stated and submitted that in terms of the Regulation 7 of Bank of India Officer Employees (Discipline & Appeal) Regulations 1976, that the Disciplinary Authority can refer the matter to the Inquiring Authority for further enquiry. In normal course the same IA will conduct the further enquiry as such there is no question for biasness and prejudicial in the matter of ordering for further enquiry as claimed for. 9. That the deponent states and submits that the Second enquiry is legal, proper, valid and within the competency/jurisdiction and in accordance with the Regulation of Bank of India Officer Employees (Discipline & Appeal) Regulation 1976 and has been conducted after following due procedure and the rules of natural justices as such there is nothing to be interferred into. It is needless to say that the further enquiry (not fresh enquiry as claimed for) was conducted after due notice to the petitioner and adequate opportunity was provided to the petitioner to defend his case as such he has not been prejudiced in any way. 10. That it is further stated and submitted that all the orders viz. penalty, Appellate and Reviewing are quite speaking dealing elaborately the matter. 10. That it is further stated and submitted that all the orders viz. penalty, Appellate and Reviewing are quite speaking dealing elaborately the matter. Penalty imposed by the Disciplinary authority has been confirmed by the Appellate and the Reviewing Authority and all of them are in the opinion that the punishment is in proportion to the gravity of misconduct proved against the petitioner as such there is nothing to be looked into. The orders are legal, proper and valid is sustainable in law. 11. That is respect of paragraphs 3, 4, 5, 6, 7, 8, 15, 16, 17 no comment is required as they are matters on record. 12. That the statements made in paragraph 9 of the Writ petition are not correct rather misconceived as such are denied. The petitioner has never been substantially exhonerated from the charges and the statements that a very nominal formal and negligible charge was found to have been partially proved are not correct rather misconceived and is contrary to the record. The charges are serious and that have been proved in the enquiry proceeding on the basis of the evidence on record and the punishment is proportionate to the gravity of the charges.” 4. Heard learned counsel for the parties and perused the documents on record. 5. Learned counsel appearing on behalf of the petitioner has submitted that in both the enquiry reports, the charges framed against the petitioner under the Articles of Charge No.-1 has been found partially proved only on suspicion. Though it has been admitted by the respondents that the relevant regulations came into force in the year, 1997 and it has not been brought on record whether there was any requirement for taking sanction in the year, 1996, still the enquiry officer has recorded that the charges have been found partially proved. He has further submitted that on the basis of same and similar evidence, though the charge no.-3 was found partially proved by the enquiry officer, in the second enquiry report, the said charge has been found proved which cannot sustain the scrutiny of law. Moreover, he has submitted that even the charge no.-3 cannot be said to be proved on the basis of evidence which has been brought on record by the department. 6. As against above, Mrs. Moreover, he has submitted that even the charge no.-3 cannot be said to be proved on the basis of evidence which has been brought on record by the department. 6. As against above, Mrs. M.M. Pal, learned Senior counsel appearing for the respondents has submitted that management has brought on record sufficient evidence and considering the evidence, the enquiry officer has found the charge no. 3 proved. Since vital document i.e. material object no.39 (Joint Inspection Report) was not brought on record and therefore, not considered by the enquiry officer when the enquiry report dated 30.4.2000 was submitted, further enquiry was conducted in the matter. After considering the Inspection Report, the enquiry officer recorded a finding of the charge no.-3 proved against the petitioner. She has further submitted that in a properly constituted departmental enquiry, this Court has no power to interfere with the quantum of punishment and therefore, this matter does not require any interference by this Court and this writ petition is liable to be dismissed. 7. Replying to the contention raised by the learned counsel appearing for the respondents, learned counsel for the petitioner has submitted that even if it is assumed that the second enquiry was in continuation to the first enquiry, the evidence and the witnesses which were not part of the Charge Memo, would not have been considered by the enquiry officer. He has further submitted that in fact the second enquiry was a de-novo enquiry which, in the facts of the present case and in view of the reasons advanced by the respondents, is not permissible in law. The learned counsel for the petitioner has further submitted that in view of the aforesaid, the punishment imposed upon the petitioner is excessive, as the petitioner would lose almost a decade of his service. 8. On a perusal of documents on record, it would appear that the contention raised by the learned Senior counsel appearing for the respondents is not correct, in so far as the reason for initiation of second enquiry is concerned. 8. On a perusal of documents on record, it would appear that the contention raised by the learned Senior counsel appearing for the respondents is not correct, in so far as the reason for initiation of second enquiry is concerned. If the reason for initiation for further enquiry was that some materials were not produced by the department before the enquiry officer, in so far as the charge no.-3 is concerned, then in that event further enquiry which was conducted and the report which was submitted, should have been confined to charge no.-3 only, whereas in the second enquiry report also there is a fresh consideration of the entire materials brought on record and specific finding has been recorded by the enquiry officer with respect to all Articles of charges. Moreover, this is a matter of record that material object no. 39 i.e. Joint Inspection Report and the Management Witness no. 6 were produced only in support of Charge No.3. 9. It further appears from the first enquiry report that the enquiry officer has recorded a finding that neither any document nor any witness was produced in support of allegation that the parlour was being run in a small room and articles kept therein were not indicating investment of Rs.75,000/-. In the second enquiry report also the enquiry officer has opined that since the first application made by Ritu Kumari Sah was rejected, the second application should not have been entertained by the petitioner. A document (Annexure-12) has been brought on record by the petitioner by filing affidavit dated 21.8.2009 in support of the plea that no loss has occurred to the bank, as the loanee has already paid the loan amount to the bank. It thus, appears that the procedure adopted by the enquiry officer on arriving at conclusion that, since the parlour was being run in a small room admeasuring 10' x 10' and the articles kept therein were not worth more than Rs.35,000/-and therefore, a doubt has been raised that there was no occasion for the petitioner to sanction loan of Rs.75,000/-(seventy five thousand) is based on suspicion only. The assessment in the Joint Inspection Report has been made after the start of the parlour and therefore, it is not necessary that at the time, when the inspection was carried out there should be articles worth more than Rs.35,000/-. The assessment in the Joint Inspection Report has been made after the start of the parlour and therefore, it is not necessary that at the time, when the inspection was carried out there should be articles worth more than Rs.35,000/-. Moreover, the area of the parlour i.e. 10' x 10', would not indicate that this does not require investment of 75,000/-and therefore, I am of the considered opinion that finding arrived at by the Enquiry Officer in support of the Article of Charge no.-3 appears to be based on suspicion. Suspicion however strong, cannot take the place of legal proof. 10. It further appears from the enquiry report submitted on 30.4.2000 that the charged officer stated before the enquiry officer that since the branch used to finance at Godda since long, Ritu Kumari Sah who also resided at Godda, was financed. The enquiry officer has also found that the Management Document No. M-30 reveals that against the total amount of Rs.75,000/-(seventy five thousand) which was disbursed, bills/vouchers for Rs.75,326/-(seventy five thousand three hundred and twenty six) were submitted. In the enquiry report dated 23.09.2000, it has been recorded that one parlour chair, one wooden chair, one wooden branch, two single Sofa and showcases were found in the parlour during the inspection. Relying on the joint inspection report M-39 and management witness MW-2, enquiry officer has recorded that the items financed by the bank were not found in the parlour being run by Ritu Kumari Sah. I find force in the submission of the learned counsel appearing for the petitioner that adequate furnitures were arranged by the loanee and since the inspection was carried out after the business had started, all other articles could not have been found there and therefore, the conclusion arrived at by the enquiry officer was erroneous. The enquiry officer in his report dated 23rd September, 2000 has recorded a finding with respect to charge no.-1 which is as under: “Proved to the extend that (a) the C.O. has made the financing beyond the service area. However, it is not clear whether he was required to obtain clearance from the competent authority in this regard in the year 1996, (b) creation of charge on land/equitable mortgage were not created in most of the accounts and (c) Non-registration of tractors and trailors is partially proved.” 11. However, it is not clear whether he was required to obtain clearance from the competent authority in this regard in the year 1996, (b) creation of charge on land/equitable mortgage were not created in most of the accounts and (c) Non-registration of tractors and trailors is partially proved.” 11. I find that it has been admitted by the enquiry officer that the department has failed to bring on record any evidence to substantiate the allegation levelled against the petitioner that in the year, 1996 also there was a requirement to take sanction and without taking sanction the petitioner has approved the loan. Even, non-registration of tractor and trailor are partially found proved by the enquiry officer. 12. In “Narinder Mohan Arya Vs. United India Insurance Co. Ltd. & Ors.”, reported in (2006) 4 SCC 713 , the Hon'ble Supreme Court has held that the evidence adduced on behalf of the management must have nexus with the charges. The enquiry officer cannot base his findings on mere hypothesis. Mere ipse dixit on his part cannot be substitute of evidence. 13. The learned Senior counsel appearing for the respondents has next contended that since enquiry was conducted in presence of the petitioner and all the documents were exhibited in his presence, and at any stage he did not raise a plea that copy of the joint inspection report was not given to him. Moreover, the petitioner has not been able to demonstrate that any prejudice has been caused to him therefore, such a plea may not be entertained by this Court at this stage. 14. From the facts and circumstances noticed hereinabove, I am of the considered opinion that once the charge no.3 has been partially proved by the enquiry officer in the enquiry report dated 30.4.2000, it was incumbent upon the department to give a copy of the Joint Inspection Report which has been relied upon by the enquiry officer for recording a finding that charge no.-3 has been found proved in his enquiry report dated 23.9.2000 and therefore, it does not require any further proof that prejudice has been caused to the petitioner. 15. Before adverting to the contention raised by the learned counsel for the petitioner that the punishment awarded to the petitioner is excessive, it would be useful to notice the principles enunciated by the Hon'ble Supreme Court relating to quantum of punishment. In “Bhagat Ram Vs. 15. Before adverting to the contention raised by the learned counsel for the petitioner that the punishment awarded to the petitioner is excessive, it would be useful to notice the principles enunciated by the Hon'ble Supreme Court relating to quantum of punishment. In “Bhagat Ram Vs. State of Himachal Pradesh and Others”, reported in (1983) 2 SCC 442 , one 'K', whose private land fell within the area covered by the beat of the delinquent employee, who was forest guard, cut and felled 21 trees and after an enquiry, it was found that out of 21 trees, 17 were in forest land. Although 'K' paid compensation for the illegal felling of trees stating that he felled the trees, bonafide believing that the trees were standing on his private land, the appellant was proceeded against departmentally and penalty of removal from service was imposed upon the delinquent employee. The Hon'ble Supreme Court held that dismissal from service on a trivial charge of negligence which resulted in no loss to the department was disproportionate and excessive. 16. In “Dev Singh Vs. Punjab Tourism Development Corporation Ltd. and Another”, reported in (2003) 8 SCC 9 , in the disciplinary enquiry, the delinquent employee was held responsible for the misplacement of the file which was entrusted to him, however, no motive was attached for such misplacement of file. Taking note of the fact that the employee had served the respondent-corporation for nearly 20 years with unblemished service, the Hon'ble Supreme Court has held :- “7. Applying the said principles laid down by this Court in the cases noted hereinabove, we see that in this case the appellant has been serving the respondent Corporation for nearly 20 years with unblemished service, before the present charge of misconduct was levelled against him. The charge itself shows that what was alleged against the appellant was misplacement of a file and there is no allegation whatsoever that this file was either misplaced by the appellant deliberately or for any collateral consideration. A reading of the charge-sheet shows that the misplacement alleged was not motivated by any ulterior consideration and at the most could be an act of negligence, consequent to which the appellant was unable to trace the file again. A reading of the charge-sheet shows that the misplacement alleged was not motivated by any ulterior consideration and at the most could be an act of negligence, consequent to which the appellant was unable to trace the file again. The disciplinary authority while considering the quantum of punishment came to the conclusion that the misconduct of the nature alleged against the appellant should be viewed very seriously to prevent such actions in future, whereby important and sensitive records could be lost or removed or destroyed by the employee under whose custody the records are kept. Therefore, he was of the opinion that a deterrent punishment was called for, forgetting for a moment that no such allegation of misplacing of important or sensitive record was made in the instant case against the appellant and what he was charged of was misplacement of a file, importance or sensitiveness of which was not mentioned in the charge-sheet. Therefore, in our opinion, the disciplinary authority was guided by certain facts which were not on record, even otherwise, we are of the opinion that when the Service Bye-laws applicable to the Corporation under Service Bye-law 17 provide various minor punishments, we fail to appreciate why only maximum punishment available under the said Bye-laws should be awarded on the facts of the present case. We think the punishment of dismissal for mere misplacement of a file without any ulterior motive is too harsh a punishment which is totally disproportionate to the misconduct alleged and the same certainly shocks our judicial conscience.” 17. In “Ranjit Thakur Vs. Union of India & Ors.”, reported in (1987) 4 SCC 611 , the Hon'ble Supreme Court has observed, “25. ............The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review...........” 18. In“Kailash Nath Gupta v. Enquiry Officer,(R.K. RAI) Allahabad Bank & Others” reported in (2003) 9 SCC 480 , the Hon'ble Supreme Court has observed: “11. ......... Irrationality and perversity are recognised grounds of judicial review...........” 18. In“Kailash Nath Gupta v. Enquiry Officer,(R.K. RAI) Allahabad Bank & Others” reported in (2003) 9 SCC 480 , the Hon'ble Supreme Court has observed: “11. ......... The stand of the appellant as indicated above is that though small advances may have become irrecoverable, there is nothing to indicate that the appellant had misappropriated any money or had committed any act of fraud. If any loss has been caused to the Bank (which he quantifies at about Rs.46,000) that can be recovered from the appellant. As the reading of the various articles of charges go to show, at the most there is some procedural irregularity which cannot be termed to be negligence to warrant the extreme punishment of dismissal from service.” 19. In “State Bank of India & Others v. Samarendra Kishore Endow & Another,” reported in, (1994) 2 SCC 537 , the Hon'ble Supreme Court has held: “14. .......So far as charge 5 is concerned there is no finding that the account become irregular or that any loss was incurred by the bank on account of the irregularity committed by the respondent. In the circumstances it may be that the punishment of removal imposed upon the respondent is harsh but this is a matter which the Disciplinary Authority or the Appellate Authority should consider and not the High Court or the Administrative Tribunal. In our opinion, the proper course to be adopted in such situations would be to send the matter either to the Disciplinary Authority or the Appellate Authority to impose appropriate punishment.” 20. From the aforesaid facts, it would appear that though the department adduced some evidence in support of charge no.1 and charge no. 3, and the Enquiry Officer himself has recorded a finding that charge no. 1 was partially proved. It would further appear that the Enquiry Officer has arrived at a conclusion that the charge no.3 is found proved, is not supported by the evidence brought on record and therefore, the procedure adopted by the Enquiry Officer for recording such a finding is erroneous. No ulterior motive has been alleged against the petitioner. It is an admitted position that no financial loss has occurred to the bank. No ulterior motive has been alleged against the petitioner. It is an admitted position that no financial loss has occurred to the bank. The procedure adopted by the petitioner for sanctioning loan may, at best be, a technical mistake committed by the petitioner and therefore, it cannot be held conclusively that the petitioner committed gross misconduct. In these facts, on a consideration of the materials on record, I am of the considered opinion that the punishment of compulsory retirement inflicted upon the petitioner is definitely excessive and disproportionate and therefore, order of compulsory retirement dated 29.11.2001 is quashed and consequently the appellate order dated 16.5.2002 and the revisional order dated 21.10.2002 are also quashed. The matter is remitted back to the respondent no. 5 and respondent no 5 is directed to pass a fresh order in so far as, the quantum of punishment is concerned. He is directed to give an opportunity of hearing to the petitioner and pass a final order within a period of twelve weeks from the date of communication of a copy of this order. 21. This writ petition is allowed with the aforesaid directions.