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2017 DIGILAW 1008 (JK)

Mushtaq Ahmad Shah v. Punjab National Bank

2017-11-14

ALI MOHD.MAGREY

body2017
JUDGMENT : Ali Mohd. Magrey, J. 1. Petitioner a specially abled person claims to be in the employment of respondent-Punjab National Bank as Peon under PF No. 45350 since more than 22 years. While posted in Branch Office, Jehangir Chowk, Srinagar, case of misappropriation in the saving bank account of Burn Hall School was reported to Police Station, Shaheedgunj, Srinagar and FIR No. 36/2010 under Section 409, 420 RPC was registered, amongst others against the petitioner also. Out of the alleged misappropriated amount of Rs. 30.00 lacs, an amount of Rs. 21.00 lacs was recovered from officiating Cashier Mohammad Sultan Rather. Petitioner on account of his alleged involvement in the misappropriation was placed under suspension pending departmental enquiry in terms of order dated 29.01.2010. Petitioner having remained under suspension for considerable time had no option but to approach the respondents, seeking his re-instatement but of no avail. Needless to mention here that Mohammad Sultan Rather, Cashier extended assurance to repay balance amount of total misappropriated amount, which is stated to be sufficient to exclude the involvement of the petitioner. Petitioner was charge sheeted after more than two years of his suspension vide communication dated 26.05.2012 and in terms of communication dated 19.07.2012, respondent-Bank informed petitioner that bank had decided to conduct departmental enquiry and respondent No. 4 appointed as enquiry officer. 2. Petitioner fully cooperated with the enquiry so conducted but to his dismay the enquiry officer had not considered his reply and representation, therefore, denied reasonable opportunity of being heard and defend his case in the proceedings. It is further submitted that documents used by the enquiry officer for framing his opinion were not at all furnished to the petitioner during and after the enquiry, therefore, the enquiry proceedings are vitiated. Petitioner also alleges that without following mandate of law and without affording adequate and reasonable opportunity of being heard to put forth his case and without providing opportunity to examine, cross-examine the evidence and provide a chance of defense, the enquiry officer has submitted the report and recorded the findings against the petitioner. Petitioner also alleges that without following mandate of law and without affording adequate and reasonable opportunity of being heard to put forth his case and without providing opportunity to examine, cross-examine the evidence and provide a chance of defense, the enquiry officer has submitted the report and recorded the findings against the petitioner. Petitioner on receipt of the findings in departmental enquiry submitted detailed representation/reply, requesting the Bank to re-examine the findings in the departmental enquiry and drop the same, as the same are against the facts attendant to the case and whole proceedings were vitiated as the principle of natural justice were not followed, though a civil suit challenging the proceedings was filed but later in point, the same was withdrawn with the assurance of respondents to re-consider the matter but instead of re-considering the matter, the respondents issued the order dated 01.09.2014, communicating the decision, to impose upon the petitioner punishment of "Be dismissed without notice" in terms of Clause 6(a) of Bipartite Settlement (BPS) dated 10.04.2002, as amended from time to time. 3. Petitioner availed the remedy of appeal against the punishment order, seeking its reversal before the Deputy General Manager, which appeal stands decided in terms of order dated 12.11.2014, by reducing the punishment to "Be brought down by two stages" in the scale of pay as per Clause 6(e) of BPS, without payment of any more wages other than the already paid for the period of suspension. Instead of implementing the decision of the appellate authority, the respondents have referred the matter to the Chief Vigilance Officer for further decision and it is stated that the Chief Vigilance Officer in terms of communication dated 12.11.2014, has not concurred with the views of Appellate Authority to modify the penalty from "Be dismissed from Bank services" without notice in terms of Clause 6(a) of Bipartite Settlement dated 10.04.2002 to "Be brought down by two stages" in the scale of pay as per Clause 6(e) of BPS, therefore, as per the stand of the respondents, impugned dismissal order has remained in force and is challenging on the grounds detailed out in the petition with the following particular reference:- (i) That the impugned action on the part of the respondent Bank, dismissing petitioner's service is without following mandate of law that governs and regulates his services and enjoins upon bank to provide audi alteram partem to petitioner. It is submitted that petitioner cannot be faulted in any manner or whatsoever nature, as petitioner was discharging the duties of Peon and not that of the Cashier. It also discloses that the amount embezzled was deposited by the concerned Cashier, therefore, punishing petitioner is not justified. It is further averred that the respondent Bank dismissed services of petitioner for acts of omission and commission having been committed by some other person. (ii) That the dismissal order having been issued by respondent Bank is whimsical and based on conjectures. The impugned order is based on baseless grounds and without any meat. It is averred that the respondent Bank has done wrong while dismissing petitioner's services, as it is not petitioner but other person, who had been involved in misappropriation of bank money and petitioner cannot be saddled for none of his faults. 4. On notice respondents have filed their objections and in the objections it is stated that the petitioner was alleged to have indulged in embezzlement of bank money during the course of his deployment to Burn Hall School for purposes of collection of school fee from the students by not recording the receipt of deposits during the period 17.06.2009 to 04.09.2009, despite of having issued the receipt to the depositors and thereby caused embezzlement of Rs. 27,33,165/-. It is further stated that the petitioner was also alleged to have attempted to distort the evidence by not putting full signatures and banks cash receipt stamp properly, in token of having received the cash. It was also alleged to have taken resort to misplacement and concealment of the records. It was accordingly, that besides registration of FIR at Police Station, Shaheed Gunj under Section 409 and 420 RPC, that on count of commission of misconduct under the rules governing his services, that the petitioner was ordered to be placed under suspension, followed by issuance of charge sheet. The petitioner was well informed vide order dated 19.07.2012, about the conduct of enquiry and appointment of respondent No. 4 as enquiry officer. The petitioner consciously and out of his own freewill participated in the entire enquiry proceedings on each and every date fixed for hearing. The petitioner was also granted time to produce any defense evidence/witnesses in support of his written reply. 5. The petitioner consciously and out of his own freewill participated in the entire enquiry proceedings on each and every date fixed for hearing. The petitioner was also granted time to produce any defense evidence/witnesses in support of his written reply. 5. It is stated that on the basis of material available on record, the enquiry officer returned a finding of guilt against the petitioner, holding all the charges levelled against him as proved. The enquiry report was furnished to the petitioner for his comments/representation. It is further stated that the disciplinary authority on the basis of material available and after considering the representation made by the petitioner finally accepted the report of enquiry officer and pass order dated 01.09.2014 imposing punishment of dismissal against the petitioner in terms of Clause 6(a) of Bipartite Settlement dated 10.04.2002. It is further stated that in order to delay the disciplinary proceedings, the petitioner previously instituted a civil original suit before the learned Court of Munsiff (Sub-Registrar) Srinagar, seeking declaration for declaring the findings of the enquiry officer dated 02.07.2013 and the departmental enquiry proceedings as null and void and vitiated by law. It is stated that the respondents have issued the impugned order strictly adhered to the principles of natural justice. It is further stated that the petitioner was charged for having committed the misconduct. 6. Heard learned counsel for the parties, perused the records and considered the matter. 7. Main plank of arguments with reference to challenge of the impugned dismissal order is that the same stands modified by the Appellate Authority, while deciding the appeal filed by the petitioner in terms of order passed on 12.11.2014, whereby while allowing the appeal partly, the order of dismissal dated 01.09.2014 stands modified with the decision to revise this punishment to "Be brought down by two stages in the scale of pay as per Clause 6(e) of BPS, without payment of any more wages other than the already paid for the period of suspension." 8. The arguments so raised by Manzoor Ahmad Dar, learned counsel for the petitioner has substance because as per the norms known as "Bipartite Settlement dated 10.04.2002" governing the procedure and powers of authorities for imposing punishment regarding disciplinary action against the workmen staff, the decision of the disciplinary authority, imposing punishment can be reversed or modified by the Appellate Authority only. There is no other authority, which has the power to change decision of the Appellate Authority by maintaining the punishment appealed against. Clause 14 of Bipartite Settlement (BPS) impresses upon the Appellate Authority to commence the proceedings of appeal and dispose of the same within one month from the date of conclusion of such hearings, which shall be conclusive in all respects. 9. Mr. M.A. Dar, learned counsel for the petitioner submits that the decision of the Chief Vigilance Officer, by not concurring the views of Appellate Authority to modify the penalty from "Be dismissed without notice" in terms of Clause 6(a) of BPS dated 10.04.2002 to "Be brought down by two stages in the scale of pay as per Clause 6(e) of BPS" is dehors the norms and without sanctity of law. Learned counsel has while reiterating his submissions supported the same with the Judgment of the Hon'ble Supreme Court reported in Nagaraj Shivarao Karjagi vs. Syndicate Bank Head Officer, Manipal and Another, AIR 1991 SC 1507 . The Judgment in reference deals with the powers of the punishing authorities in departmental proceedings regulated by the statutory regulations, which cannot be supplemented, fettered by directive of Ministry of Finance to adhere to punishment advised by Vigilance Commission, in the present case also the order of punishing authority has been modified by Appellate Authority, which cannot be disturbed by the decision of the Chief Vigilance Officer, as the said authority has no power in terms of the Bipartite Settlement (BPS). 10. Mr. Haqani, learned counsel for the respondents when asked as to how the decision of the Appellate Authority has not been accepted by the respondent Bank, modifying the order of dismissal by reversing the punishment to "Be brought down by two stages in the scale of pay as per Clause 6(e) of BPS" submits that in the embezzlement cases, the matter is finally placed before the Chief Vigilance Officer, whose decision is final with reference to concurring the views of the Appellate Authority or to maintain the order of the punishing authority, when further asked under which provision of rule the Chief Vigilance Officer has the power to overrule the Appellate Authority, Mr. Haqani, makes reference to "Punjab National Bank (Officers) Service Regulations 1979" and further submits that though the regulations apply to the officers of the Bank but it applies to other employees also to whom they may be made applicable by the Competent Authority to the extent and subject to such conditions as such Authority may decide. Mr. Haqani, for the purpose of present case has referred to (CVC Guidelines) and submits that Clause 3.2 gives the power to the Chief Vigilance Officer for concurrence of the decision before any action is taken against the employees involved in embezzlement matters. 11. One fails to understand as to how Mr. Haqani, can claim application of the CVC Guidelines on the Peons of the Bank, who admittedly does not fall within the category of officers as defined in Class "J" Regulation 3 of the Punjab National Bank (Officers) Service Regulations 1979. Clause "J" defines the officer in the following manner:- "Officer" means a person fitted into or promoted to or appointed to any of the grades specified in Regulation 4 and any other person, who immediately prior to the appointed date, was an officer of the Bank, and shall also include any specialist or technical person as fitted or promoted or appointed and any other employee to whom any of these regulations has been made applicable under Regulation 2." 12. Clause 1, Regulation 2 makes reference to the application of the regulations to the officers of the Bank and to such other employees of the Bank to whom they may be made applicable by the competent authority, cannot be construed as an automatic application of statute unless notification is issued for application of the Rules to the lowest rank employees of the Bank like Peons, when asked Mr. Haqani, submits that no such notification has been issued, which makes regulations applicable to the Peons of the Bank, therefore, the support made available by Mr. Haqani, with reference to the decision of the Chief Vigilance Officer by not concurring with the views of the Appellate Authority is without any authority, as such, turned down. 13. Haqani, submits that no such notification has been issued, which makes regulations applicable to the Peons of the Bank, therefore, the support made available by Mr. Haqani, with reference to the decision of the Chief Vigilance Officer by not concurring with the views of the Appellate Authority is without any authority, as such, turned down. 13. The net result, therefore, in the above said discussion is that the respondent Bank is bound by the decision of the Appellate Authority and cannot make applicable decision of the Chief Vigilance Officer, who has no authority under BPS or the regulations to review the decision of the Appellate Authority, therefore, the decision of the Appellate Authority is final. In the result, this petition succeeds, therefore, is allowed by issuing: (i) A writ of certiorari thereby quashing the order dated 01.09.2014. (ii) A writ of mandamus, directing the respondent Bank to implement the decision of the Appellate Authority by treating the petitioner in service and "Be brought down by two stages" in the scale of pay as per Clause 6(e) of BPS, without payment of any more wages for the period he has remained under suspension minus the pension already paid. (iii) A writ of mandamus, directing respondents to pay all consequential benefits to the petitioner as a result of decision of the Appellate Authority within a period of two months from the date copy of the Judgment is served upon the respondent Bank. 14. Disposed of.