Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3295 (ALL)

ASHOK KUMAR v. BARODA UTTAR GRAMIN BANK

2016-09-27

K.J.THAKER, SUDHIR AGARWAL

body2016
JUDGMENT By the Court.—Heard Sri Prateek Chandra, Advocate, holding brief of Sri Ashok Khare, learned Senior Counsel, appearing on behalf of petitioner and Sri Y.K. Sinha, counsel for respondent Bank. 2. Aggrieved by order dated 19.1.2005 read with corrigendum dated 16.3.2005, passed by Chairman/Disciplinary Authority, Fatehpur Khestriya Gramin Bank, Fatehpur (hereinafter referred to as “Bank”) imposing punishment of removal and recovery of Rs. 57,550/- from petitioner, as also appellate order dated 6.6.2005 communicating decision of appellate authority i.e. Board of Directors taken in its meeting dated 26.5.2005, this writ petition has been filed by petitioner Ashok Kumar who has lost his employment as also become liable for recovery of Rs. 57,550/- under the impugned orders. 3. A prayer has been made for issue of a writ of certiorari for quashing aforesaid orders and to grant all consequential benefits, reinstatement with continuity in service and other benefits. 4. Brief facts necessary to understand the dispute giving rise to present writ petition may be stated hereinafter; 5. Bank is a Regional Rural Bank governed by the provisions of Regional Rural Bank’s Act 1976 (hereinafter referred to as “Act 1976”) and sponsored by Bank of Baroda. Petitioner was appointed as Clerk/Cashier and joined Bank on 7.9.1981. He was promoted as Field Officer on 18.5.1989. The post of Field Officer was redesignated as Probationary Officer in Junior Management Grade. While working at Mavaiganeshpur Branch of Bank, petitioner was placed under suspension vide order dated 21.5.2004 passed by Chairman of the Bank. A First Information Report (hereinafter referred to as “FIR”) dated 3.7.2004 was also lodged at Police Station Hussainganj, District Fatehpur under Sections 467, 468, 471 and 409 Indian Penal Code being Case Crime No. 41 of 2004. Petitioner was served with a charge-sheet dated 22.7.2004 containing eleven charges. Pursuant to FIR dated 3.7.2004, petitioner was arrested on 23.8.2004 and enlarged on bail by Sessions Judge, Fatehpur, vide order dated 26.8.2004. In the meantime disciplinary authority i.e. Chairman of Bank appointed one Chandra Prakash Gadi, Manager as Enquiry Officer under Regulation 40 of Fatehpur Kshetriya Gramin Bank (Officer and Employee) Service Regulations 2001 (hereinafter referred to as “Regulations 2001”) to enquire into the charges levelled against petitioner vide charge-sheet dated 27.7.2004 and submit report to disciplinary authority. 6. In the meantime disciplinary authority i.e. Chairman of Bank appointed one Chandra Prakash Gadi, Manager as Enquiry Officer under Regulation 40 of Fatehpur Kshetriya Gramin Bank (Officer and Employee) Service Regulations 2001 (hereinafter referred to as “Regulations 2001”) to enquire into the charges levelled against petitioner vide charge-sheet dated 27.7.2004 and submit report to disciplinary authority. 6. Enquiry Officer vide letter dated 17.8.2004 fixed 18.8.2004 as the date for preliminary hearing in the Head Office of Bank at Fatehpur and required petitioner to attend the proceedings. This letter was served upon petitioner on 18.8.2004. Oral hearing was to commence at 10.30 a.m. on the same day hence petitioner could not attend enquiry proceedings. This fact was communicated by petitioner to Enquiry Officer. The next date fixed by Enquiry Officer was 26.8.2004 but there was no occasion for petitioner to attend proceedings on the said date since he was in jail having been arrested by police on 23.8.2004 and bail was granted on 26.8.2004. The factum that petitioner was in jail on 26.8.2004 was also in the knowledge of Enquiry Officer, yet instead of adjourning the matter, Enquiry Officer proceeded further. Presenting Officer submitted copies of documents relied by Bank in respect of charges and also submitted list of witnesses proposed to be examined by Bank. Enquiry Officer fixed next date as 2.9.2004. After release from jail, on bail, petitioner fell ill on 1.9.2004. Alongwith medical certificate issued by a Physician administering treatment to him, an application seeking adjournment was submitted by petitioner to Enquiry Officer. Disciplinary authority through letter dated 4.9.2004 directed petitioner to get his illness verified by Bank’s doctor, Tejman Singh, G.T. Road, Fatehpur and obtain a certificate regarding illness from him and submit to Bank by 7.9.2004. In compliance with such direction of disciplinary authority, petitioner appeared before Dr. Tejman Singh who, vide certificate dated 6.9.2004, confirmed petitioner’s illness and agreed with earlier medical certificate, advising rest for fifteen days i.e. 1.9.2004 to 15.9.2004. However, Enquiry Officer discarded aforesaid facts and proceeded with oral enquiry by recording statements of Smt. Shyamwati, Dhyan Singh, Ram Bhawan Singh, Dhanraj Singh, Shiv Saran Singh and Ramesh Chand Rahi on 2.9.2004 resulting in denial of opportunity of cross-examination of such witnesses by petitioner. 7. Enquiry Officer then fixed 9.9.2004 as next date for hearing but in view of medical certificate granted by Dr. 7. Enquiry Officer then fixed 9.9.2004 as next date for hearing but in view of medical certificate granted by Dr. Tejman Singh, under the directions of disciplinary authority, adjourned proceedings to 17.9.2004. Since petitioner did not recover he was further advised for rest and some further treatment was administered vide medical certificate dated 15.9.2004. Again disciplinary authority vide letter dated 17.9.2004 required petitioner to get himself medically examined by Dr. Tejman Singh and in compliance thereof Dr. Tejman Singh examined petitioner and certified his continuity of illness, giving following certificate : “This is to certify that I have examined Sri Ashok Kumar s/o Sri Ram Saran Singh, r/o Hariharganj, Fatehpur. I find him fit to resume his duty w.e.f. Tomorrow 25.9.2004” 8. In the meantime Enquiry Officer adjourned proceedings on 17.9.2004 and fixed 23.9.2004. Due to illness as verified by Dr. Tejman Singh, petitioner could not attend proceedings on 23.9.2004 but ignoring this, Enquiry Officer proceeded to record statement of Bank’s witness Sri Shiv Shanker, Branch Manager and then fixed 25.9.2004, as the next date. On 25.9.2004 after getting fit, petitioner appeared before Enquiry Officer and requested to supply copy of earlier proceedings and give time to prepare the matter. Enquiry Officer neither supplied copies of earlier proceedings nor granted any time and instead proceeded further by recording statement of Dharampal, Bank’s witness. 9. The next date fixed was 1.10.2004 when petitioner appeared and requested Enquiry Officer to allow him to nominate Defence Assistant and also prayed for supply of copies of documents relied by Bank in support of charges. Enquiry Officer did not accept either of the request of petitioner and fixed 8.10.2004 as the next date for enquiry. 10. On 7.10.2004 petitioner requested Enquiry Officer to defer proceedings fixed on 8.10.2004 since petitioner’s father Ram Saran Singh was seriously ill. Application was duly supported by several documents demonstrating critical condition of petitioner’s father. This request was rejected by Enquiry Officer vide order dated 7.10.2004 which was served upon petitioner on 8.10.2004 at 10.00 a.m. Petitioner could not attend enquiry on 8.10.2004 and Enquiry Officer fixed next date as 12.10.2004. This information was given to petitioner by a registered letter, served upon him at 2.30 p.m. on 12.10.2004. Due to late communication, he had no occasion to participate in the proceedings on 12.10.2004. This fact was communicated to Enquiry Officer vide letter dated 13.10.2004. 11. This information was given to petitioner by a registered letter, served upon him at 2.30 p.m. on 12.10.2004. Due to late communication, he had no occasion to participate in the proceedings on 12.10.2004. This fact was communicated to Enquiry Officer vide letter dated 13.10.2004. 11. On 12.10.2004, Enquiry Officer proceeded to close oral hearing and granted time to Presenting Officer to submit written brief by 22.10.2004. When petitioner received information about Enquiry Officer’s closure of oral enquiry on 12.10.2004, he made representation dated 20.10.2004, requesting Enquiry Officer to grant opportunity to cross-examine Bank’s witnesses and thereafter give opportunity to produce defence witnesses. Enquiry Officer did not accept the request and instead, served a copy of written brief submitted by Presenting Officer alongwith covering letter dated 23.10.2004 and directed petitioner to submit reply on or before 9.11.2004. In compliance thereto petitioner submitted his written brief on 9.11.2004. 12. Enquiry Officer submitted report dated 4.1.2005 holding charges 1 to 9 proved. Thereupon Chairman of Bank proposed penalty of ‘Removal’ and ‘Recovery’ and required petitioner to show-cause vide letter dated 7.1.2005. Petitioner in the meantime fell ill and was hospitalized, hence could not submit reply on 18.1.2005. A representation dated 19.1.2005 was submitted by petitioner requesting disciplinary authority to give further time for personal hearing but Chairman proceeded to pass order in the meantime on 19.1.2005 imposing penalty of ‘Removal’ and ‘Recovery’ of Rs. 57,550/-. Thereagainst petitioner preferred appeal which has been rejected by Board of Directors in its meeting dated 26.5.2005, communicated by Chairman’s letter dated 6.6.2005. 13. Sri Prateek Chandra, learned counsel for petitioner submitted that the above facts make it very clear that there was no honest and bona fide attempt on the part of Enquiry Officer to give effective and adequate opportunity of defence to petitioner. Enquiry Officer proceeded with enquiry on various dates in absence of petitioner though for valid reasons, petitioner was not present on such dates. Hence impugned orders are wholly illegal being in utter violation of principles of natural justice. Petitioner has been denied right to earn livelihood and serious stringent punishment of ‘Removal’ had been imposed without conducting an enquiry consistent with principles of natural justice. 14. Respondent Bank has filed counter-affidavit in which basic facts are not disputed. Hence impugned orders are wholly illegal being in utter violation of principles of natural justice. Petitioner has been denied right to earn livelihood and serious stringent punishment of ‘Removal’ had been imposed without conducting an enquiry consistent with principles of natural justice. 14. Respondent Bank has filed counter-affidavit in which basic facts are not disputed. It is however said repeatedly that petitioner himself did not avail opportunity granted by Enquiry Officer as well as Bank by fixing various dates for oral enquiry, hence has to blame himself and cannot make any complaint that order of punishment had been passed without affording opportunity of hearing to him. 15. We have heard learned counsel for parties and perused the record. 16. It goes without saying and is also admitted by parties that under Rules, an order of punishment could have been passed only after affording reasonable opportunity of defence to delinquent employee. Now the only question up for consideration is, “whether in the facts and circumstances of this case, can it be said that petitioner was afforded adequate opportunity of defence or hearing or here is a case where opportunity was afforded repeatedly but petitioner failed to avail the same and hence cannot make any complaint.” 17. We may examine this aspect on summarizing the facts relating to various dates fixed by Enquiry Officer for oral hearing and proceedings which took place on those dates as also the reasons of absence or presence of petitioner, etc. 18. We shall examine various dates and proceedings chronologically; 18.8.2004 first date was fixed for preliminary hearing, but letter dated 17.8.2004, fixing 18.8.2004 was served on 18.8.2004, hence there was no occasion for petitioner to attend enquiry proceedings before Enquiry Officer which commenced at 10.30. p.m. on 18.8.2004. We do not find any justification to issue letter on 17.8.2004 fixing very next day i.e. 18.8.2004 without ensuring communication of date in time. Then next date fixed is 26.8.2004. Petitioner in the meantime was arrested by police on 23.8.2004 and Sessions Judge, Fatehpur, passed order on 26.8.2004 itself releasing petitioner on bail. After passing of bail order, it had to be communicated to jail concerned and thereafter petitioner could have been released. Hence there was no occasion or possibility of attending enquiry proceedings on 26.8.2004 before Enquiry Officer. Petitioner in the meantime was arrested by police on 23.8.2004 and Sessions Judge, Fatehpur, passed order on 26.8.2004 itself releasing petitioner on bail. After passing of bail order, it had to be communicated to jail concerned and thereafter petitioner could have been released. Hence there was no occasion or possibility of attending enquiry proceedings on 26.8.2004 before Enquiry Officer. This factum of arrest was well within knowledge of Enquiry Officer, and is a fact which is not disputed by Bank. Still we find it surprising that Enquiry Officer treated petitioner’s absence deliberate and proceeded with oral enquiry, by permitting Presenting Officer to submit documents relied by Bank in support of charges and also list of witnesses proposed to be examined by Bank. Enquiry Officer did not care to supply all these documents and list of witnesses to petitioner so that petitioner may come well prepared on the next date. 19. On the contrary Enquiry Officer, after ex parte proceedings on 26.8.2004, fixed next date as 2.9.2004. Petitioner fell ill on 1.9.2004 and his illness was duly certified by medical certificate issued by Physician with whom petitioner was under treatment and this illness was duly verified by Bank’s doctor Tejman Singh who examined petitioner under the orders of disciplinary authority and issued certificate to this effect on 7.9.2004. Enquiry Officer in total disregard of all these facts, proceeded to record statements of several witnesses in support of charges on 2.9.2004 and here again entire proceedings were ex parte. Bank’s medical consultant doctor Tejman Singh verified petitioner’s illness and advised rest upto 15.9.2004. Enquiry Officer fixed 17.9.2004, on which date also petitioner could not attend proceedings due to his continued illness. This continued illness was also verified by Bank’s consultant Dr. Tejman Singh in his certificate dated 24.9.2004. Dr. Tejman Singh, Bank’s medical consultant examined petitioner under the orders of disciplinary authority, therefore on 17.9.2004 absence of petitioner was neither deliberate nor for reasons within his control but it was on account of genuine reason of illness. Enquiry Officer totally unmindful of all these facts proceeded on 23.9.2004 to record statements of Bank’s witnesses Shiv Shanker, Branch Manager and this was again ex parte and illegal. 20. Petitioner could attend enquiry proceedings for first time on 21.9.2004, by which time on three dates, ex parte proceedings were held by Enquiry Officer i.e. on 26.8.2004, 2.9.2004 and 23.9.2004. Enquiry Officer totally unmindful of all these facts proceeded on 23.9.2004 to record statements of Bank’s witnesses Shiv Shanker, Branch Manager and this was again ex parte and illegal. 20. Petitioner could attend enquiry proceedings for first time on 21.9.2004, by which time on three dates, ex parte proceedings were held by Enquiry Officer i.e. on 26.8.2004, 2.9.2004 and 23.9.2004. On these three dates, as we have already held, absence of petitioner was for just, valid and genuine reasons, still Enquiry Officer proceeded ex parte which was patently illegal and resulted in denial of adequate opportunity of defence to petitioner. 21. On 25.9.2004 when petitioner appeared before Enquiry Officer for the first time, he requested to supply copies of earlier proceedings and to give time to prepare the matter. This was a very innocuous and genuine prayer and we find no just and valid reason for Enquiry Officer in not accepting the same. Strangely Enquiry Officer had something other in his mind and neither he supplied copies of earlier proceedings nor granted time to petitioner to prepare the matter and instead proceeded further to record statement of Bank’s another witness namely Dharampal. For all practical purposes, we have no hesitation in holding that even this proceeding is virtually ex parte or in any case in utter violation of principles of natural justice, denying adequate and effective opportunity of defence to petitioner. 22. The next date fixed by Enquiry Officer is 1.10.2004 on which date petitioner requested Enquiry Officer to permit him to nominate a Defence Assistant and also to supply copies of documents relied by Bank in support of charges. Learned counsel for Bank, did not dispute that under the Rules governing disciplinary proceedings, a delinquent employee, if so desires, has a right to nominate Defence Assistant to represent him in oral enquiry. At the earliest opportunity available to petitioner, he made this request and there was no justification for declining the aforesaid request but Enquiry Officer did so. He also did not supply copies of documents relied by Bank in support of charges and no reason was given as to why those copies were not to be supplied to petitioner though it was incumbent upon employer as also Enquiry Officer to supply copies of documents relied upon in support of charges by employer and this is mandatory. 23. He also did not supply copies of documents relied by Bank in support of charges and no reason was given as to why those copies were not to be supplied to petitioner though it was incumbent upon employer as also Enquiry Officer to supply copies of documents relied upon in support of charges by employer and this is mandatory. 23. In some cases where the documents relied by employer, in support of case, if very bulky and there is some difficulty in supply of such documents the delinquent employee is allowed inspection of all the documents and ought to have those documents whenever oral proceedings are held but this is not the reason for which Enquiry Officer denied copies of relied upon documents. We fail to understand as to why Enquiry Officer did not supply copies of relied upon documents to petitioner and in our view, here again the Enquiry Officer denied adequate opportunity of defence to petitioner. 24. In State of U.P. and others v. Saroj Kumar Sinha, (2010) 2SCC 772, it was held that non supply of documents relied by department in support of charges vitiate the entire proceedings. Court referred to and relied earlier decision in Kashinath Dikshita v. Union of India, (1986) 3 SCC 229 , and said: “When a Government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible.” 25. Court also observed: “It is difficult to comprehend why disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding specific request made by appellant in this behalf. The defence of employer that no prejudice would be caused cannot be accepted for the reason that delinquent employee is entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the witnesses who are produced in the inquiry to establish the charges against him.” 26. He would have needed these documents and statements in order to cross-examine the witnesses who are produced in the inquiry to establish the charges against him.” 26. Again following earlier decision in Trilok Nath v. Union of India, 1967 SLR 759 (SC), Court said in State of U.P. and others v. Saroj Kumar Sinha (supra): “Non-disclosure of documents having a potential to cause prejudice to a Government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the Government servant.” 27. Referring to another judgment in State of Punjab v. Bhagat Ram, (1975) 1 SCC 155 , Court in State of U.P. and others v. Saroj Kumar Sinha (supra), said: “The proposition of law that a Government employee facing a department enquiry is entitled to all the relevant statement, documents and other materials to enable him to have a reasonable opportunity to defend himself in the department enquiry against the charges is too well established to need any further reiteration.” 28. Hence, non-supply of relied on documents to petitioner, that too despite demand, vitiates the entire proceedings. 29. The next date fixed is 8.10.2004, which petitioner could not attend due to critical condition of his father and communicated this reason by sending letter on 7.10.2016, duly supported with medical documents showing critical condition of petitioner’s father but here again Enquiry Officer proceeded to ignore petitioner’s request but adjourned proceedings to 12.10.2004. Communication of the said date was made to petitioner by registered letter which was served on 2.30 p.m. on 12.8.2004, as a result whereof petitioner obviously could not attend enquiry proceedings. On this very date without looking into reason for petitioner’s absence, Enquiry Officer closed oral enquiry and allowed time to Presenting Officer to submit written brief. In our view, if Bank’s evidence concluded on 12.10.2004 even then it was incumbent upon Enquiry Officer to adjourn proceedings to another date to give opportunity of defence evidence to petitioner but that was not done. 30. In the entirety of facts and circumstances, we have no manner of doubt in holding that here is a case where petitioner has been denied adequate opportunity of defence and enquiry has been conducted in a wholly illegal and arbitrary manner. 30. In the entirety of facts and circumstances, we have no manner of doubt in holding that here is a case where petitioner has been denied adequate opportunity of defence and enquiry has been conducted in a wholly illegal and arbitrary manner. In fact we express our adverse inference about conduct of Enquiry Officer for the manner in which he has proceeded. It appears that he was adamant and there appears to be some unknown reason on his part to proceed with enquiry ignoring petitioner’s absence for valid reasons. This kind of attempt on the part of Inquiry Officer shows his lack of impartiality, and, unfairness and can be termed “Malice in law”. An oral enquiry is not a mere formality but substantive statutory right of an employee and cannot be denied to him unless for just and valid reasons. 31. In A. Savariar v. The Secretary, Tamil Nadu Public Service Commission and another, 2013 JT (3) SC 170, Court relying on Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 , said that departmental proceeding is a quasi-judicial proceeding. Enquiry Officer performs a quasi-judicial function. Enquiry Officer has a duty to arrive at a finding upon taking into consideration materials brought on record by the parties after giving due opportunity to the delinquent employee. Opportunity of oral hearing is not a mere formality but a matter of substance. Court also held that an oral enquiry must be held observing principles of natural justice. It is necessary and mandatory. The requirement of reasonable opportunity cannot be characterized as a paper formality inquiry but has to be held in accordance with principles of natural justice. If the enquiry is vitiated being in violation of principles of natural justice, the order of punishment would be bad. 32. It is necessary and mandatory. The requirement of reasonable opportunity cannot be characterized as a paper formality inquiry but has to be held in accordance with principles of natural justice. If the enquiry is vitiated being in violation of principles of natural justice, the order of punishment would be bad. 32. In the light of the aforesaid exposition of law and facts and circumstances of this case as discussed above, we find that not only oral enquiry was held on various dates by Enquiry Officer ex parte in a wholly illegal and arbitrary manner but it has also caused denial of adequate opportunity to petitioner by failing to supply relied upon documents in support of charges, despite demand by petitioner and also failed to give time to petitioner to prepare the matter, knowing well that on certain dates, absence of petitioner was for just, valid and genuine reasons, duly verified by relevant material by petitioner before disciplinary authority as well as Enquiry Officer which facts could not be disputed before us also. 33. In view of above discussion, impugned orders of punishment cannot be sustained, since petitioner has been punished in an illegal and arbitrary manner and for the entire laxity and illegality in enquiry, none else but respondent Bank and its official are to be blamed. In our view petitioner is entitled for all consequential benefits. 34. Writ petition is allowed. Impugned order of punishment dated 19.1.2005 as well as appellate order dated 6.6.2005 are hereby set aside. Petitioner shall be entitled to all consequential benefits and also cost which we quantify to Rs. 25,000/-.