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2017 DIGILAW 733 (ORI)

Chintamani Padhi v. Management of UCO Bank

2017-07-15

B.R.SARANGI

body2017
JUDGMENT : B.R. SARANGI, J. The petitioner, while working as Assistant Cashier-cum-Canteen Keeper in United Commercial Bank, Sambalpur, was charge-sheeted on 05.08.1978 vide Annexure-1 for commission of financial irregularities of Rs.145.72 paise. Again a charge sheet was submitted on 17.07.1978 for misappropriation of Rs.47,086.72 paise vide Annexure-2, which was subsequently modified and an amended charge sheet was submitted on 05.08.1978 vide Annexure-3. It was alleged that the above acts of the petitioner constitute gross misconduct in terms of the Bipartite Settlement and his continuance would be detrimental to the interest of the Bank. The petitioner was called upon to show cause within a period of fifteen days from the date of receipt of the charge sheet. The reply submitted by the petitioner being not satisfied, an enquiry was conducted. 2. The Inquiry Officer proceeded with the enquiry and after its closure submitted its report on 10.05.1996 stating that the charges levelled against petitioner were proved. Consequentially, the disciplinary authority imposed punishment on 17.05.1997 in Annexure-7 by dismissing the petitioner from Bank’s service forthwith. Against the said order of dismissal, the petitioner preferred appeal before the appellate authority, who by order dated 20.08.1997 in Annexure-9 confirmed the order of punishment. The appellate authority specifically held that the period of suspension would be treated as not spent on duty and that the petitioner was not eligible for pay and allowances/ increment or any other service benefits during the period of suspension. 3. For the self same charges, a criminal proceeding was simultaneously initiated against the petitioner in T.R. Case No.17 of 1979, in which though he was convicted by the trial court by judgment dated 05.08.1992, in Criminal Appeal No. 163 of 1986 this Court by judgment dated 05.08.1992 acquitted the petitioner on benefit of doubt. Consequent upon acquittal of the petitioner, vide Annexure-10 dated 19.06.1993 the authority reinstated him in Bank’s service and, as per para 19.3(c) read with para 19.3(d) of Bipartite Settlement, decided to proceed with holding of domestic enquiry in respect of charges levelled against him pursuant to charge sheets dated 05.04.1978 and 17.07.1978 (subsequently amended on 05.08.1978). Consequent upon acquittal of the petitioner, vide Annexure-10 dated 19.06.1993 the authority reinstated him in Bank’s service and, as per para 19.3(c) read with para 19.3(d) of Bipartite Settlement, decided to proceed with holding of domestic enquiry in respect of charges levelled against him pursuant to charge sheets dated 05.04.1978 and 17.07.1978 (subsequently amended on 05.08.1978). The petitioner challenged the said order in OJC No.2514 of 1995 and this Court, while disposing of the said writ petition, directed to dispose of the disciplinary proceedings within six months and to take a decision whether the petitioner would be entitled to full pay and allowance from 08.06.1986 to 19.06.1993. Pursuant thereto, as already stated, the impugned order of punishment dated 17.05.1997 in Annexure-7 and the appellate order dated 20.08.1997 in Annexure-9 confirming Annexure-7 were passed. Thereafter, vide Annexure-11 dated 14.07.1997, the petitioner was communicated that the period from 08.09.1986 to 19.06.1993 would be treated as period of suspension and he would only be eligible for subsistence allowances for the period mentioned therein. Hence, this application. 4. Mr. B.P. Das, learned counsel for the petitioner assails the order of imposition of penalty mainly on two counts, firstly, there was delay in initiation of the proceeding and, secondly, there was discrepancy in taking of evidence and, as such, the procedure envisaged under rules has not been followed. In the result therefore, the orders so passed by the disciplinary authority and the appellate authority being vitiated are liable to be quashed. In order to buttress his submission, he placed reliance on the judgments of the apex Court in State of A.P. v. N. Radhakishan, (1998) 4 SCC 154 and G.M. Tank v. State of Gujurat & Anr., AIR 2006 SC 2129 5. Mr. A.K. Nath, learned counsel for opposite parties-Bank strenuously urged before this Court that as the petitioner had been acquitted in the criminal case on benefit of doubt, the proceeding was initiated. As such, the question of delay in initiating the proceeding against the petitioner does not arise. It is further urged that the allegation of the petitioner that there was infraction of Rules is not correct and the proceeding initiated against the petitioner was conducted by following due procedure of law and affording opportunity of hearing to the petitioner. As such, no illegality or irregularity has been committed by the authorities in passing the orders impugned. It is further urged that the allegation of the petitioner that there was infraction of Rules is not correct and the proceeding initiated against the petitioner was conducted by following due procedure of law and affording opportunity of hearing to the petitioner. As such, no illegality or irregularity has been committed by the authorities in passing the orders impugned. To substantiate his contention, he has relied upon the judgment dated 18.02.2002 of the apex Court passed in Civil Appeal No. 1377 of 2002 arising out of SLP(C) No. 14494 of 2001 (UCO Bank, Chandigarh v. Hardev Singh). 6. This Court heard Mr. B.P. Das, learned counsel for the petitioner and Mr. A.K. Nath, learned counsel for opposite parties and perused the record. Pleadings having been exchanged between the parties, with the consent of the parties this writ petition is disposed of at the stage of admission. 7. The admitted facts, as borne out from the records, are that disciplinary proceeding no. 8/80/78 was initiated against the petitioner on the allegation of commission of financial irregularities of Rs.145.72 paise on 20.03.1976, 06.09.1976 and 27.08.1978 for which the charge sheet in Annexure-1 was submitted on 05.04.1978, as well as on the allegation of misappropriation of Rs.47,086.72 paise for which another charge sheet in Annexure-2 was submitted on 17.07.1978, which was amended subsequently on account of a typographical error and an amended charge sheet in Annexure3 was submitted on 05.08.1978. The petitioner filed his show cause reply on 05.08.1978 vide Annexure-4 denying all the allegations. 8. At that point of time, a criminal case was initiated against the petitioner by the Vigilance Department registered as T.R. Case No.17 of 1979 in which charge was framed under Sections 409, 467, 471, 477-A, IPC and Section 5(1)(a) of the Prevention of Corruption Act. The disciplinary proceeding which was initiated was stayed by the management till disposal of the vigilance case. The petitioner was convicted in T.R. Case No. 17 of 1979 vide judgment dated 08.09.1986, against which he preferred Criminal Appeal No. 163 of 1986, which was allowed by this Court by order dated 05.08.1992 acquitting the petitioner of all charges on benefit of doubt with the observation that charges were not brought home beyond shadow of doubt. But the management did not proceed with the departmental inquiry till 19.06.1993, even though acquittal was made on 05.08.1992. But the management did not proceed with the departmental inquiry till 19.06.1993, even though acquittal was made on 05.08.1992. On 19.06.1993, the authority, though reinstated the petitioner in service, but decided to continue with disciplinary proceeding and consequentially directed that the order of suspension passed vide letter no.539/78 dated 28.08.1978 to continue until further orders. 9. Aggrieved by the aforesaid decision of the authority, the petitioner invoked the extraordinary jurisdiction of this Court by filing OJC No. 2514 of 1995, which was disposed of on 20.11.1996 with the direction to the disciplinary authority to dispose of the proceeding within a period of six months from the date of judgment and also take a decision with regard to entitlement of pay and allowances to the petitioner. As a consequence thereof, the inquiry officer proceeded with the proceeding, in which except the presenting officer no other witness was examined. Even though the petitioner denied his signature and involvement in the transaction, he was not given opportunity to cross examine the presenting officer. As such, the documents were also not proved in accordance with the procedure and the rules governing the field. Further, the request of the petitioner to conduct his case by taking a defence assistance was not conceded. Ultimately, the inquiry officer submitted the inquiry report, on the basis of which the disciplinary authority, without notice to the petitioner, passed final order on 17.05.1997 imposing penalty of dismissal from service, against which the petitioner preferred appeal reiterating the contentions raised in the disciplinary proceeding and that the inquiry officer submitted his report on the basis of the evidence of the witnesses in T.R. No. 17/1979 in which the petitioner had already been acquitted in Criminal Appeal No. 163 of 1986. 10. It is apt to mention here that opposite party-Bank has prepared a codified manual on disciplinary action and related matters. Clause 2.13, 2.15, 2.17, 2.21 and 2.22 thereof, being relevant for the purpose of the case, are quoted hereunder: “2.13. For disposal of disciplinary cases, the bank had fixed a deadline of 3 months from the date of issue of the charge sheet. As such, it is imperative on the part of the Disciplinary Authority to fix a deadline (not exceeding 4 weeks) for the Enquiry Officer to complete the domestic enquiry. For disposal of disciplinary cases, the bank had fixed a deadline of 3 months from the date of issue of the charge sheet. As such, it is imperative on the part of the Disciplinary Authority to fix a deadline (not exceeding 4 weeks) for the Enquiry Officer to complete the domestic enquiry. It should also be made clear to him that he must submit his report/findings to the Disciplinary Authority positively within 7 days from the date of completion of the enquiry proceedings including submission of written briefs, if there be any.” XX XX XX 2.15 On receipt of the letter of appointment, the Enquiry Officer shall immediately fix the date of enquiry keeping in mind the overall deadline of 3 months for the disposal of all disciplinary cases and issue notices to the concerned parties, namely the chargesheeted employee, the presenting officer containing the date, time, venue of the enquiry. The notice to the presenting officer and the chargesheeted employee should be served through the branch/office where the concerned presenting officer and the chargesheeted employee are working. In case of suspended employee such a notice should be sent under Registered Post with acknowledgement due at the last recorded address communicated by the employee and acknowledged by the Bank. After commencement of the enquiry the presenting officer shall keep the disciplinary authority apprised of the developments of the enquiry proceedings from time to time at least once in a fortnight with a copy to Head Office Personnel Department as also to Head Office vigilance Department in cases having vigilance angle.” XX XX XX 2.17. During the enquiry the employee may be permitted to be defended by – (a) a representative of a registered trade union of Bank employees of which he is a member on the date first notified for commencement of the enquiry. During the enquiry the employee may be permitted to be defended by – (a) a representative of a registered trade union of Bank employees of which he is a member on the date first notified for commencement of the enquiry. (b) where the employee is not a member of any trade union of bank employees on the aforesaid date, by a representative of a registered trade union of employees of the Bank in which he is employed; or (c) at the request of the said union by a representative of the State Federation of All India organization to which such union is affiliated; or (d) with the Bank’s permission by a lawyer.” XX XX XX “2.21.A copy of the proceedings as recorded in the Enquiry Registered should be made available to the chargesheeted employee and presenting officer. “2.22 The Presenting Officer should open up the case. Besides narrating the complaint leading to the issuance of chargesheet, he should produce to the Enquiry Officer documentary evidence and oral witnesses. He should examine the witnesses brought by him. Such an examination is known as “Examination-in-Chief”. While examining (examination-in-chief) witnesses leading questions cannot be asked. A leading question is a question which suggests to the witness the answer he should give. The Enquiry Officer may seek clarification from the wtinesses but cannot examine him himself. After the examination-in-chief is over, the witness can be cross-examined by the chargesheeted employee/Defence representative, if he desires so. In cross examination, leading questions are permitted. After such cross examination, the Presenting Officer may again examine his witness, with t he permission of the Enquiry Officer to clarify certain issues/ambiguities, which had cropped up in the course of cross-examination. This is called “reexamination of a witness”. During re-examination he should not be permitted to introduce new points without the permission of the Enquiry Officer. The Presenting Officer will decide the order in which he will examine his witnesses.” 11. As per the aforementioned provisions, the Bank has fixed, for disposal of disciplinary cases, a deadline of three months from the date of issue of charge sheet, and as such, the inquiry officer shall have to fix the date of inquiry keeping in mind the overall deadline of three months for disposal of disciplinary cases by issuing notice to concerned parties. Admittedly, the disciplinary proceeding having been initiated in the year 1978 pursuant to the charge sheet filed on 05.08.1978, the same could have been concluded within a period of three months. But the management stayed the proceeding because of pendency of the vigilance case (T.R. No. 17 of 1979) and continued with the proceeding in the year 1996 pursuant to the order dated 20.11.1996 passed by this Court in OJC No. 2514 of 1995. Ultimately, on 17.05.1997, basing on evidence adduced by the witnesses in criminal case the inquiry report was submitted and punishment of removal from service imposed, which was confirmed by the appellate authority on 20.08.1997. From this, it is clearly evident that there was long delay in disposal of the disciplinary proceeding by the authority concerned. 12. In N. Radhakishan (supra) the apex Court in paragraph-19 of the judgment observed as follows: “It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.” The above being the law laid down by the apex Court, in the instant case, delay in conclusion of the disciplinary proceeding has caused prejudiced to the charged officer, the petitioner herein, particularly when no material whatsoever was produced to lay blame on him for such delay. The only explanation has been submitted by the opposite parties that due to pendency of the criminal case, there has been delay in conducting disciplinary proceeding. That ipso facto cannot be taken into consideration to impose penalty, especially when for the self same charge the petitioner has been acquitted from criminal case. 13. A perusal of the charge sheet submitted by the departmental authority and the FIR lodged against the petitioner by the vigilance department would go to show that both the charges are same. When the petitioner was acquitted from criminal case for self same charges, the disciplinary authority could not have imposed the punishment on the basis of the evidence adduced in the criminal case, and as such, no independent witness was examined in the disciplinary proceeding to establish the charge levelled against the petitioner. As a matter of fact, only on the basis of the evidence adduced in the criminal proceeding, which was placed by the presenting officer, such punishment was imposed. As such, neither any opportunity had been given to the petitioner to cross-examine the presenting officer nor had he been given a defence assistance to conduct his case. Denial of such opportunity amounts to non compliance of principle of natural justice. 14. As such, neither any opportunity had been given to the petitioner to cross-examine the presenting officer nor had he been given a defence assistance to conduct his case. Denial of such opportunity amounts to non compliance of principle of natural justice. 14. In G.M. Tank (supra) the apex Court in paragraphs 21, 31 and 32 of the judgment has categorically held as follows: “21. It is thus seen that this is a case of no evidence. There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of gratification. The respondent failed to prove the charges leveled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immovable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the appellant. In fact, the respondent did not produce any evidence in support of and/or about the alleged charges leveled against the appellant. Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of P.C. Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent Court on the same set of facts, evidence and witnesses and, therefore, the dismissal order passed on same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.” XX XX XX “31. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on fats and law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant’s residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the Criminal Court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.” “32. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note and of the decision in Paul Anthony’s case (supra) will apply. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note and of the decision in Paul Anthony’s case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.” This being the position of law settled by the apex Court, in the instant case since the same witnesses were examined in the criminal case and the criminal Court, on the examination, came to a conclusion that the prosecution has not proved the guilt, as alleged against the petitioner, beyond any reasonable doubt and acquitted the petitioner by the judicial pronouncement with the finding that for benefit of doubt the petitioner is acquitted of the charges levelled against him. Therefore, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 15. The contention raised by the learned counsel for the opposite parties, that the petitioner had been acquitted by the criminal court on benefit of doubt, has no concern in the present context. The phrase “benefit of doubt” is misleading and has, therefore, to be correctly understood. Accused does not receive benefit nor does humanity grant him some boon dictated by instinct of mercy in opposition to ends of justice. Therefore, in case of an element of genuine doubt, there must be acquittal as a matter of right, and not as a matter of grace or favour. In Gurubachan Singh v. Satpal Singh, AIR 1990 SC 209 , the apex Court has held: “Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law.” In Inder Singh v. State (Delhi Admn.), AIR 1978 SC 1091 , the apex Court held: “A reasonable doubt in not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. Letting guilty escape is not doing justice according to law.” In Inder Singh v. State (Delhi Admn.), AIR 1978 SC 1091 , the apex Court held: “A reasonable doubt in not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is art ificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty person must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish.” In view of law laid down by the apex Court, as discussed above, even if the petitioner has been acquitted on benefit of doubt that has no consequence to the present context itself. 16. In Hardev Singh (supra), on which reliance was placed by the opposite parties, the charged officer was working as a Teller in the Bank. Therefore, in that case, the apex Court held that one expects the higher standards of honesty and integrity. When admittedly small amounts deposited by the bank’s customers do not find their way into the coffers of the bank but land up in the pocket of an employee, to say that the charge is not serious or the embezzlement is not intentional would be gross understatement, the least to say. The charge framed was serious and normally punishment of dismissal from service would have been logical course to take. The fact of the said case is totally different from that of the present one and, consequentially, the ratio of the said case may not have any application to the present context. As such, the said case is distinguishable. 17. In view of the aforesaid discussions, this Court is of the considered view that there is a gross delay in disposal of the disciplinary proceeding initiated against the petitioner. The inquiry has been conducted without following established procedure as prescribed in the manual of disciplinary action and related matters, as has been framed by the Bank. 17. In view of the aforesaid discussions, this Court is of the considered view that there is a gross delay in disposal of the disciplinary proceeding initiated against the petitioner. The inquiry has been conducted without following established procedure as prescribed in the manual of disciplinary action and related matters, as has been framed by the Bank. Opportunity for hearing as well as cross-examination of the witnesses has not been given to the petitioner, as a consequence of which there is gross violation of the principle of natural justice. In the result therefore, the order of punishment so imposed by the disciplinary authority on 17.05.1997 in Annexure-7 and its confirming order passed by the appellate authority on 20.08.1997 in Annexure-9 cannot sustain in the eye of law and, accordingly, the same are liable to be quashed and are hereby quashed. The petitioner is entitled to get consequential service benefits as due and admissible to him in accordance with law. 18. The writ petition is allowed. No order to cost.