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2015 DIGILAW 726 (CAL)

Kashinath Chakraborty v. Central Bank of India

2015-08-28

ARIJIT BANERJEE

body2015
JUDGMENT : Arijit Banerjee, J.: 1. This writ petition has been filed challenging the final order of the Disciplinary Authority dated 24th May, 2014 and the order of the Appellate Authority dated 19th August, 2014. By the impugned order, the Appellate Authority confirmed the findings of the Disciplinary Authority who held that the charges brought against the writ petitioner were proved and the punishment of dismissal was imposed on the writ petitioner. 2. The petitioner was appointed as a clerk by the Respondent Bank in April, 1971. He was granted several promotions over the years. While he was working as Senior Manager of the respondent Bank’s zonal office, Calcutta, he was served with a memo/show cause notice dated 18th April, 2006 whereby he was required to furnish his reply to several charges brought against him. A regular departmental enquiry was conducted against the petitioner for the purpose of determining the veracity of the charges levelled against him. 3. The enquiring authority submitted his report dated 12th July, 2007. The disciplinary authority agreed with the findings of the enquiry officer in respect of the charges which the latter had held to be proved. However, in respect of the charges which the enquiry officer held to be partly proved or not proved, the disciplinary authority disagreed and held those charges to be proved as well. He recommended the punishment of dismissal from service. 4. The petitioner received the final order of the disciplinary authority dated 3rd December, 2007 dismissing him from service and further disqualifying him from any future employment. 5. The petitioner preferred an appeal before the Appellate Authority which was dismissed by an order dated 16th August, 2008. 6. The petitioner assailed the order of dismissal by filing a writ petition being WP No. 1631 of 2008 in this court. By a judgment and order dated 23rd February, 2010 this court set aside not only the appellate authority’s order dated 16th August, 2008, but also the order of dismissal dated 3rd December, 2007, the enquiry report dated 12th July, 2007 as also the charge sheet dated 4th July, 2006. By a judgment and order dated 23rd February, 2010 this court set aside not only the appellate authority’s order dated 16th August, 2008, but also the order of dismissal dated 3rd December, 2007, the enquiry report dated 12th July, 2007 as also the charge sheet dated 4th July, 2006. The main ground on which the writ petition was allowed was that since the disciplinary authority had disagreed with the finding of the enquiring authority in respect of four articles of charges, before recording his own finding, the disciplinary authority should have recorded his tentative reasons for such disagreement and should have given an opportunity of hearing to the petitioner. The court held that by not doing so, the respondent authorities had acted in breach of the principles of natural justice. However, since the petitioner had already attained the age of retirement on 31st October, 2009, no direction for his reinstatement in service could be given but the respondent Bank was directed to pay to the petitioner all consequential benefits. 7. The respondent Bank preferred an appeal against the order of the Ld. Single Judge. The appeal was dismissed by the Division Bench by a judgment and order dated 16th September, 2010. 8. The respondent Bank preferred a special leave petition before the Hon’ble Supreme Court of India against the judgments and orders of the Ld. Single Judge as also of the Hon’ble Division Bench. The special leave petition which was subsequently marked as Civil Appeal No. 4442 of 2011 was disposed of by the Hon’ble Supreme Court by an order dated 26th February, 2014. 9. In the said order the Hon’ble Supreme Court observed that the order passed by the disciplinary authority, which unilaterally disagreed with the findings recorded by the enquiry officer, cannot be sustained. It is settled law that the disciplinary authority can differ with the finding recorded by the enquiry officer. However, before any action can be taken on the basis of the said difference of opinion, the delinquent must be afforded an opportunity of hearing. Since no such opportunity was afforded to the employee and the difference of opinion of the disciplinary authority was accepted as final without seeking any response from the employee, the same was liable to be set aside. Since no such opportunity was afforded to the employee and the difference of opinion of the disciplinary authority was accepted as final without seeking any response from the employee, the same was liable to be set aside. The Supreme Court further held that the quashing of the charge sheet issued to the employee and all further proceedings emerging therefrom was not justified. The Supreme Court reaffirmed the position emanating till the submission of the report of the enquiring authority dated 12th July, 2007. 10. The Supreme Court further observed that the delinquent should be afforded an opportunity before the difference of opinion recorded by the disciplinary authority can be given effect to. Accordingly, the Supreme Court directed the disciplinary authority to issue a show cause notice on the difference of opinion to the employee and take a final decision in the matter after considering the response of the employee. The Supreme Court further observed that the disciplinary authority which had originally recorded the finding of difference of opinion viz a viz the finding recorded by the enquiry officer, having made up his mind, should not be the one who should handle the proceedings in future. If an officer other than the punishing authority of an equivalent rank can be nominated in his place, in compliance with the prevailing rules and regulations, such authority shall be nominated to deal with the matter in future. However if it was not possible to do so, an officer superior in rank than the erstwhile disciplinary authority shall proceed with the matter in compliance with the direction issued by the Supreme Court. The Supreme Court directed the entire proceedings to be completed within three months from the date of the said order passed by it, failing which it would not be open to the respondent bank to take any action against the writ petitioner in furtherance of the memorandum dated 11th April, 2006. 11. Subsequent to the passing of the said order by the Hon’ble Supreme Court, the Deputy Regional Manager of the respondent Bank forwarded a letter dated 5th April, 2014 enclosing thereto the enquiry report dated 12th July, 2007 and asking the petitioner to offer his comments in respect of the findings of the enquiry authority. By the said letter the petitioner was also informed that the said Deputy Regional Manager had been appointed as the new Disciplinary Authority. 12. By the said letter the petitioner was also informed that the said Deputy Regional Manager had been appointed as the new Disciplinary Authority. 12. The petitioner by a letter dated 19th April, 2014 informed the respondent no. 5 i.e. the disciplinary authority that he would rely on his written submission dated 17th April, 2014 in respect of the findings of the enquiry officer which he had handed over to the respondent no. 5. 13. On 23rd April, 2014 a hearing was held in the office of the respondent no. 5. 14. On 28th May, 2014 the petitioner was served with the final order of the disciplinary authority dated 24th May, 2014. By the said order the disciplinary authority dismissed the petitioner from service and disqualified him from any future employment. It was further ordered that no differential amount in respect of the petitioner’s pay and allowances for the period of suspension would be paid to him. 15. The petitioner challenged the order of the disciplinary authority before the Appellate Authority. A hearing was given to the petitioner on 11th July, 2014. 16. By the order dated 19th August, 2014 the Appellate Authority rejected the petitioner’s appeal and confirmed the charge wise as well as consolidated punishment imposed by the disciplinary authority. 17. Being aggrieved, the petitioner is before this court by way of the present application challenging the order of the disciplinary authority dated 24th May, 2014 and the order of the Appellate Authority dated 19th August, 2014. 18. Appearing on behalf of the writ petitioner, Mr. Bhattacharya, Ld. Counsel submitted that there was total non-application of mind on the part of the new disciplinary authority. For example, as regards the charge no. 3 the disciplinary authority recorded that he concurred with the views of the enquiring authority but held the charge to be proved when, in fact, the enquiring authority had held that charge to be not proved. 19. Mr. Bhattacharya further submitted that the disciplinary authority blindly adopted the observations of the earlier disciplinary authority without assigning any reason therefor. The disciplinary authority, prior to holding the hearing, should have offered his tentative views viz a viz his disagreement with the findings of the enquiring authority and not having done so, the hearing was reduced to an empty and futile formality. 20. Mr. The disciplinary authority, prior to holding the hearing, should have offered his tentative views viz a viz his disagreement with the findings of the enquiring authority and not having done so, the hearing was reduced to an empty and futile formality. 20. Mr. Bhattacharya also submitted that the appellate authority merely quoted the charges and the findings of the disciplinary authority and did not give any cogent reasons for rejecting the petitioner’s appeal. He submitted that neither the disciplinary authority nor the appellate authority acted in compliance with the true spirit and intent of the Hon’ble Supreme Court’s order. 21. Mr. Bhattacharya relied on a decision of the Hon’ble Supreme Court in the case of Punjab National Bank-vs.-Kunj Behari Mishra reported in (1998) 7 SCC 84 , wherein at paragraph 19 of the judgment it was observed that principles of natural justice require that whenever the disciplinary authority disagrees with the enquiring authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice warrant that the authority which has to take a final decision and can impose a penalty, gives an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. 22. Appearing on behalf of the respondents, Mr. Jha, Ld. Counsel submitted that both the disciplinary authority and the appellate authority acted in accordance with law and passed reasoned orders after giving hearing to the petitioner. He submitted that the disciplinary authority and the appellate authority passed their respective orders in accordance with the provisions of Central Bank of India Office Employee (Discipline and Appeal) Regulations, 1976. 23. Mr. Jha further submitted that charge no. 2 which was that the writ petitioner had sanctioned cash credit limit of Rs. 7 lakh without proper processing amounted to a major misconduct and this charge was clearly proved against the petitioner. 23. Mr. Jha further submitted that charge no. 2 which was that the writ petitioner had sanctioned cash credit limit of Rs. 7 lakh without proper processing amounted to a major misconduct and this charge was clearly proved against the petitioner. If even one or several charges against the delinquent officer is proved and if such charge is of a serious nature, the same is sufficient ground for dismissing the employee and the courts will not interfere with such decision of the management. In this connection Ld. Counsel relied on a decision of the Hon’ble Supreme Court in the case of State of UP-vs.-Nand Kishore Shukla reported in AIR 1996 SC 1561 . In that case one out of the five charges was proved against the charge-sheeted officer. In paragraph 7 of the judgment the Hon’ble Supreme Court observed that the writ court is not a court of appeal to go into the question of imposition of the punishment. It is for the disciplinary authority to consider what would be the nature of punishment to be imposed on a government servant based upon his proved misconduct. Its proportionality also cannot be gone into by the court. The only question is whether the disciplinary authority could have passed the order which it did. It is settled law that even one of the charges, if held proved and sufficient for imposition of penalty by the disciplinary authority or by the appellate authority, the court would be loath to interfere with that part of the order. In the facts of that case, the Hon’ble Supreme Court held that the order of removal from service did not cast a stigma on the employee to disable him to seek any appointment elsewhere. Under those circumstances, the Hon’ble Supreme Court upheld the order of dismissal of the delinquent employee. 24. Mr. In the facts of that case, the Hon’ble Supreme Court held that the order of removal from service did not cast a stigma on the employee to disable him to seek any appointment elsewhere. Under those circumstances, the Hon’ble Supreme Court upheld the order of dismissal of the delinquent employee. 24. Mr. Jha also relied on a decision of the Hon’ble Supreme Court in the case of Bank of India-vs.-Degala Suryanarayana reported in AIR 1999 SC 2407 wherein at paragraph 11 of the judgment it was observed that the Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in a departmental enquiry proceedings excepting in a case of mala fides or perversity that is where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at such a finding. The court cannot embark upon re-appreciating the findings or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. Mr. Jha also relied on a decision of the Hon’ble Supreme Court in the case of United Bank of India-vs.-Vishwa Mohan reported in (1998) 4 SCC 310 wherein the Hon’ble Supreme Court observed that failure to protect the interest of the bank, failure to perform duties with utmost devotion, diligence, integrity and honesty, acting in a manner unbecoming of a bank officer, etc. all relate to serious misconduct. It was also observed that non-supply of the enquiring authority’s report, or findings to the charge sheeted officer per se does not vitiate the disciplinary proceedings or the order of punishment imposed on the delinquent officer. The officer has to establish as to how he has been prejudiced due to non-supply of the enquiry authority’s report. 25. Relying on the aforesaid submissions Mr. Jha prayed for dismissal of the writ petition. 26. I have considered the rival contentions of the parties. 27. There can be no dispute with the propositions of law submitted by Ld. Counsel for the respondents. Indeed, the writ court while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India does not function as an appellate court. It is not concerned with the merits of an order which is challenged before it. 27. There can be no dispute with the propositions of law submitted by Ld. Counsel for the respondents. Indeed, the writ court while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India does not function as an appellate court. It is not concerned with the merits of an order which is challenged before it. The law is well settled that the court while exercising its jurisdiction of judicial review is not concerned with the decision but with the decision making process. The writ court cannot reappraise the evidence on the basis whereof an enquiry officer has come to a finding or the disciplinary authority has imposed punishment. So long as the order impugned is not based on no evidence at all or is not perverse, the writ court will be reluctant to interfere with the order. The writ court is only concerned with whether or not the order impugned has been arrived at following a fair procedure and by duly observing the principles of natural justice. 28. In the present case, it is true that pursuant to the order dated 26th February, 2014 passed by the Hon’ble Supreme Court, the respondents appointed a new disciplinary authority. It is nobody’s case that the new disciplinary authority is inferior in rank to the earlier disciplinary authority. To this extent, the respondents have complied with the order of the Hon’ble Supreme Court. 29. However, the Hon’ble Supreme Court also reaffirmed the position emanating till the submission of the report of the enquiring authority and observed that the delinquent should be afforded an opportunity before the difference of opinion recorded by the disciplinary authority can be given effect to. Accordingly the Hon’ble Apex Court directed the new disciplinary authority to issue a show cause notice on the difference of opinion to the writ petitioner and take a final decision in the matter after considering the response of the respondents. It further observed that whether or not any action has to be taken in furtherance of the determination rendered by the disciplinary authority will depend upon the outcome of the findings recorded by the disciplinary authority after having considered the response of the writ petitioner. 30. From the facts of the case in hand I find that the new disciplinary authority merely forwarded a copy of the report of the enquiring authority to the writ petitioner. 30. From the facts of the case in hand I find that the new disciplinary authority merely forwarded a copy of the report of the enquiring authority to the writ petitioner. The disciplinary authority did not make known to the writ petitioner his tentative reasons for disagreeing with the finding of the enquiring authority on some of the charges. In that view of the matter I find force in the submission of Ld. Counsel for the writ petitioner that the hearing granted by the new disciplinary authority was a useless formality as the writ petitioner had no idea why the disciplinary authority proposed to differ from the findings of the enquiring authority which were in his favour. As such, the writ petitioner could not have made and could not be expected to make any meaningful submission on the matter. This was not in compliance with the Hon’ble Supreme Court’s order and this constitutes in my view, an incurable infirmity in the decision making process. It is settled law that a comprehensive and intelligible show cause notice is required to be issued by the disciplinary authority to the charge sheeted officer containing tentative reasons as to why the disciplinary authority proposes to differ from the enquiring authority regarding the charges held to be not proved by the enquiring authority and only after giving an opportunity to the delinquent officer to respond to such show cause notice, the disciplinary authority can record its final order. This procedure has not been followed in the facts of the instant case and such failure on the part of the disciplinary authority, in my view, vitiates the order of the disciplinary authority. 31. In view of the aforesaid, the orders of the disciplinary authority and the appellate authority which are under challenge, are set aside. 32. Now the question is whether I should stop here or remand the matter back for being proceeded with afresh from the stage of submission of the enquiry report. If I stop here, the result will be that the entire enquiry proceeding shall stand quashed and the allegations brought against the petitioner shall become permanently dormant all by reason of a defect/shortcoming in the procedure adopted by the disciplinary authority. Such a result, in my view, is not desirable and shall not promote public faith and trust in the banking system. A bank officer deals with public money. Such a result, in my view, is not desirable and shall not promote public faith and trust in the banking system. A bank officer deals with public money. His position is one of great responsibility and he is required to discharge his duties with due care, reasonable efficiency, complete devotion and unquestionable integrity. If allegations of negligence and serious dereliction of duty are brought against a Bank Officer, the same should stand to trial and the truth must come out. While procedural fairness and observance of principles of natural justice are important considerations, the same should not be allowed to thwart a disciplinary proceeding on merits. If a disciplinary proceeding which results in imposition of punishment on an employee is found to be vitiated due to breach of principles of natural justice, in my view, the proper course of action would not be to put an end to the proceeding altogether but remand back the matter to the authorities to be proceeded with afresh from the stage up to which there is no complaint of violation of principles of natural justice. 33. I am conscious of the fact that the Hon’ble Supreme Court in the order dated 26th February, 2014 directed the respondents to complete the entire proceedings and take a final decision in the matter within three months form the date of the order, failing which it shall not be open to the respondents to take any action against the petitioner in furtherance of the Memorandum dated 11th April, 2006. The respondents did take a final decision within the time period stipulated by the Hon’ble Apex Court. However, in my view, that decision is vitiated by the breach of principles of natural justice and accordingly I have set aside the same. In my view, the observation of the Hon’ble Supreme Court referred to above cannot be interpreted as meaning that the enquiry proceedings should be dropped forever in the facts of the case. The allegations brought against the petitioner are serious in nature and the enquiry officer has found most of the allegations to be proved. The enquiry report should be allowed to be taken to its logical conclusion by following the proper procedure and by observing the principles of natural justice. The allegations brought against the petitioner are serious in nature and the enquiry officer has found most of the allegations to be proved. The enquiry report should be allowed to be taken to its logical conclusion by following the proper procedure and by observing the principles of natural justice. In my respectful understanding of the aforesaid observation of the Hon’ble Supreme Court, it was not the intention of the Hon’ble Court that the domestic enquiry should be dropped in the facts and circumstances like the present one. Truth must prevail. Either the petitioner shall be held to be not guilty by the disciplinary authority and higher authorities which will vindicate his honour, honesty and integrity or if he is held guilty, he should face the consequences. 34. In view of the aforesaid, the management of the respondent bank is directed to appoint a new disciplinary authority, not lower in rank than the earlier disciplinary authority who will carry on and conclude the disciplinary proceedings from the stage of submission of the enquiring authority’s report. It is clarified that the new disciplinary authority shall issue a show cause notice clearly recording his tentative reasons if he proposes to differ from any finding of the enquiring authority which is in favour of the writ petitioner and indicating the punishment that he proposes to impose on the writ petitioner and the disciplinary authority shall pass his final order only after giving a reasonable opportunity to the writ petitioner to respond to such show cause notice and an opportunity of personal hearing. The entire exercise shall be completed by the respondents within two months from date. 35. I am of the opinion that the present peculiar situation has arisen because of the failure of the earlier disciplinary authority to observe the principles of natural justice and obey the order of the Hon’ble Apex Court in its true sense and spirit. Had such disciplinary authority adopted a fair procedure which is in compliance with the principles of natural justice, it is unlikely that the present situation would have arisen and the writ petitioner would not have had to face the disciplinary proceedings once again. I cannot be unmindful or oblivious of the fact that a person and particularly one who has superannuated, suffers hardship, mental agony and anxiety and disturbance of peace of mind when he has to go through a disciplinary proceeding. I cannot be unmindful or oblivious of the fact that a person and particularly one who has superannuated, suffers hardship, mental agony and anxiety and disturbance of peace of mind when he has to go through a disciplinary proceeding. In view of the aforesaid the respondent bank shall pay costs of this application to the writ petitioner assessed at Rs. 30,000/-. 36. With the aforesaid directions the writ petition is disposed of. In view thereof, nothing survives of the application taken out by the writ petitioner being GA 345 of 2015 which is also disposed of accordingly.