Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 758 (ALL)

RAMESH CHANDRA PANDEY v. UNION OF INDIA

2018-03-30

SIDDHARTH

body2018
JUDGMENT : Hon'ble Siddharth,J. Heard Sri O.P. Singh, learned Senior Advocate assisted by Sri Anand Mohan Pandey learned Counsel for the petitioner and Sri Abhishek Tandon, learned Counsel for the respondents. This writ petition has been filed by the petitioner praying for quashing of the order dated 16.04.1984 passed by the Appellate Authority and order dated 02.01.1982 passed by the Disciplinary Authority. Further prayer has been made for payment of increments in salary and promotion of the petitioner on the post of Sub Accountant/Junior Management, Grade-I, w.e.f. 12.08.1980. The brief facts of the case are that while working on the post of Clerk-cum- Assistant Cashier in Central Bank of India, Ram Kola Branch, Deoria, the petitioner was served with a Memo of charges dated 28.08.1980 alleging that he has transferred amount in A/C. No.3535 of late Sri Param Hans Singh to A/C. 4097 in the name of his wife Smt. Radhika Singh unathorizedly. Vide reply dated 03.09.1980, the petitioner submitted his reply stating that he did this on the instructions of Branch Manager, Shri S.B. Singh. The petitioner was further served with 2 memo of charges dated 13.09.1980. Vide first memo, he was directed to explain as to why he passed the withdrawal of Sri Baij Nath Mishra, who was alleged to be dead. In the second memo dated 13.09.1980, he was asked to reply as to why he transferred Rs.531.48 from Home Saving Account of Sri H.D. Sharma, a staff member, to the demand loan account. Vide replies dated 19.09.1980, the petitioner replied to the 2 memo of charges dated 13.09.1980 and stated that he acted in good faith and in accordance with the procedure of the Bank. The petitioner was served with a memo of charge dated 20.09.1980 which included all the 3 aforesaid charges and petitioner submitted his reply dated 23.10.1980 thereto. The petitioner was again served with a charge sheet dated 05.01.1981 issued by Sri J.K.N. Singh, Chief Manager, Central Bank of India, Regional Office Gorakhpur, the disciplinary authority, which again included all the 3 charges, which were earlier replied by the petitioner. Sri K.K. Singhal, was appointed Enquiry Officer and he directed the petitioner to give a regret letter and assured him that on its basis the charges against him shall be dropped. However, after receiving the regret letter, he did not kept his words and continued with the disciplinary proceedings. Sri K.K. Singhal, was appointed Enquiry Officer and he directed the petitioner to give a regret letter and assured him that on its basis the charges against him shall be dropped. However, after receiving the regret letter, he did not kept his words and continued with the disciplinary proceedings. The petitioner has stated that he was Secretary of the U.P. Bank Employees Union, Ram Kola, Deoria from 1971 to 1980 and Sri J.K.N. Singh, Chief Manager was always against the Union activities and on his dictate Sri K.K. Singhal started acting against him malafidely. The petitioner made an application dated 12.01.1991 to the disciplinary authority to change the enquiry officer, Sri K.K. Singhal, but by the order dated 12.01.1981 his request was turned down. The petitioner again made such request by his letter dated 05.02.1981 but in vain. Sri K.K. Singhal, enquiry officer was transferred to Gorakhpur Divisional Office of the Bank and proceeded with the enquiry without granting any opportunity to the petitioner to cross-examine the Branch Manager, Ram Kola Branch, Deoria, Sri S.B.Singh, who was appointed as presenting officer of the Bank. The defence representative of the petitioner was Shailendra Nath Tripathi. The petitioner's defence was that he performed the alleged actions on the direction of the Branch Manager, Sri S.B. Singh, for which he was charge sheeted and therefore, he should have been given opportunity to cross-examine him and specific request was made by his representative to this effect but it was not acceded to by the enquiry officer. The written statements of prosecution and defence were presented before the enquiry officer. The disciplinary authority by his letter dated 21.11.1981 intimated the petitioner about the proposed punishment without supply the copy of the enquiry report, submitted by the enquiry officer and the petitioner by the letter dated 27.11.1981 demanded the same but in vain. However, he submitted his reply dated 15.12.1981 before the disciplinary authority and disciplinary authority passed the punishment order dated 02.01.1982. Regarding Charge No.1, the punishment of stopping of 2 annual increments, Charge No.2, stoppage of 2 annual increments, Charge No.3, stoppage of 4 annual increments, regarding Charge No.4, warning was given and regarding Charge No.5, all the punishments were directed to run concurrently. The petitioner filed an appeal before the appellate authority which was rejected on 16.04.1984 without any personal hearing to the petitioner after 26 months. The petitioner filed an appeal before the appellate authority which was rejected on 16.04.1984 without any personal hearing to the petitioner after 26 months. The respondents have filed their Counter Affidavit stating that the petitioner was rightly charge sheeted and there were no malafidies against him. The disciplinary authority Sri J.K.N. Singh and the enquiry officer, Sri K.K. Singhal had acted in due performance of the duties. The enquiry was conducted in compliance of principles of nature justice and the petitioner was afforded full opportunity to put forth his submission and peruse the documents relevant for reply to the charges leveled against him. The copy of the enquiry report was sent to the petitioner alongwith the show cause notice dated 21.11.1981 of proposed punishment, which is clear from Annexure No.8 to the writ petition and the petitioner has admitted this fact in paragraph no.32 of the writ petition. The disciplinary authority after considering the reply of the petitioner rightly awarded the punishment of stoppage of 4 annual increments, instead of discharging him from service taking a lenient view. The appellate authority after considering the entire evidence on record as well as the submission of the petitioner, rejected his appeal. There was no requirement of personal hearing to be granted to the petitioner by the appellate authority. Therefore the writ petition is devoid of merits and deserves to be dismissed. The petitioner has filed a Supplementary Affidavit in the above noted writ petition stating, inter alia, that the departmental enquiry against the petitioner was conducted by the enquiry officer in 3 days between 21.04.1981 to 23.04.1981. Despite demand of Vouchers regarding transactions mentioned in charge nos. 1 to 5 and demand of Rule, Circular or Document regarding the transactions and objecting to non involvement of the persons in disciplinary inquiry, who were involved in the disputed transactions, as witnesses nothing was done. The disciplinary authority, Sri J.K.N. Singh was transferred from Gorakhpur in May, 1981, but he passed the punishment order dated 02.1.1982 from Lal Darwaza, Ahmedabad Office at Gujrat and therefore, the order is without jurisdiction. The petitioner has filed Second Supplementary Affidavit in compliance to the order dated 12.01.2010 of this Court, whereby, the petitioner was directed to explain why this writ petition was not addressed on merits, despite lapse of long time. The petitioner has filed Second Supplementary Affidavit in compliance to the order dated 12.01.2010 of this Court, whereby, the petitioner was directed to explain why this writ petition was not addressed on merits, despite lapse of long time. The petitioner has filed Third Supplementary Affidavit regarding the minor details of the incidents forming subject matter of the charge sheets issued to him and being factual in nature and not relied upon during the course of arguments is not being considered. Along with the fourth Supplementary Affidavit, the petitioner has brought on record the written arguments in support of his case. Fifth Supplementary Affidavit, has been filed bringing on record the additional facts to prove the malafidies on the part of the disciplinary authority and the enquiry officer. Case Law have also been brought on record. New facts regarding his defence and the objection to issuance of the show cause notice dated 21.11.1981 against the proposed punishment and the passing of the punishment order dated 02.01.1982 by the disciplinary authority from Ahmedabad have been raised. In the Sixth Supplementary Affidavit, the petitioner has stated that in the year 2012, he has demanded Rules/Manual of Instructions of Bank/Documents related to charge memo dated 05.01.1981, which was not being supplied to him, he has again made additional averments in detail regarding his defence alleging victimization. Along with the Supplementary Affidavit, he has brought on record, the findings of the enquiry officer forwarding by him on 24.06.1981 to the disciplinary authority to show that the enquiry was conducted in 3 days from 21.04.1981 to 23.04.1981. Seventh Supplementary Affidavit has been filed by the petitioner sating again that the disciplinary authority, Sri J.K.N. Singh, illegally issued the show cause notice dated 21.11.1981 and then the impugned punishment order dated 02.01.1982, while being posted as Chief Internal Auditor at Lal Darwaza, Ahmedabad, Gujrat, which is against the mandate of the Apex Court, in the case of Saroj Kumar Sinha, (2010) 2 SCC 772 . He has further made averments based on various Case Laws. The Eighth Supplementary Affidavit of the petitioner has been filed annexing therewith, the enquiry proceedings starting from 21.04.1981 to 23.04.1981. The petitioner has also brought on record the relevant part of the Rule which gives the designations of the disciplinary authority and appellate authority for different officer staff of the Bank. The Eighth Supplementary Affidavit of the petitioner has been filed annexing therewith, the enquiry proceedings starting from 21.04.1981 to 23.04.1981. The petitioner has also brought on record the relevant part of the Rule which gives the designations of the disciplinary authority and appellate authority for different officer staff of the Bank. The copy of the order dated 21.08.2006 passed in another case of the petitioner has also been brought on record, whereby, the petitioner had challenged the order of dismissal passed against him on 01.03.2001 and his Appeal was also dismissed by the Appellate Authority by the order dated 11.03.2002. By this order, the matter was remanded to the disciplinary authority for reconsideration of the punishment awarded to the petitioner. It appears that after reconsideration fresh orders have been passed against the petitioner, which he has challenged by way of Writ-A No.16385 of 2008 and copy of the order dated 28.04.2014 passed therein has been brought on record in the Supplementary Affidavit. The respondents have filed their Supplementary Counter Affidavit dated 18.05.2015, replying to 6 Supplementary Affidavits of the petitioner together stating that the disciplinary enquiry was conducted against the petitioner as per the Second Bipartite Settlement dated 19.10.1966 and this was the only Rule and Regulation for the purpose of the disciplinary enquiry. The enquiry was concluded within 3 days because the defence representative clearly stated that he has nothing more to say or to produce any evidence and witness in defence of the charged employee. A Circular dated 3rd January, 1984 has been brought on record as Annexure No. SCA-3 to prove that where the disciplinary authority is only required to consider the finding of the enquiry officer, before passing the final orders, there is no need of changing the disciplinary authority pursuant to his transfer to another place. In Clause-6 of the aforesaid circular, it has also been mentioned that nothing prevents the competent authorities to entrust any particular matter to any other officer in any particular case, if deemed necessary and departure from these Guidelines will not vitiate the departmental action. It has further been stated that all the documents required by the petitioners have been supplied to him under the Right to Information Act. It has further been stated that all the documents required by the petitioners have been supplied to him under the Right to Information Act. The Seventh and Eighth Supplementary Affidavit of the petitioner have been replied by the Second Supplementary Counter Affidavit dated 08.02.2018, filed by the respondents, stating that the petitioner is making false and frivolous allegations against the officers of the Bank without any basis and evidence and may be put to strict proof. He is trying to improve his case by making new averments which can not be permitted. The orders against the petitioner were passed in accordance with law and all the allegations made in the Supplementary Affidavits has been denied as false and frivolous. After hearing the rival submissions the following questions have come up for consideration and decision, (1). Whether the disciplinary proceedings conducted against the petitioner by the respondent no.4 was in accordance with law? (2). Whether the disciplinary authority, respondent no.4, was competent to pass punishment order against the petitioner after being transferred from Gorakhpur to Ahmedabad? And, (3). Whether the order passed by the appellate authority is in accordance with the requirements of law? Regarding the first question, the learned Counsel for the petitioner has argued that the misconducts alleged against the petitioner took place when Sri S.B. Singh, was the Branch Manager of the Ram Kola Branch, where the petitioner was also employed as clerical staff. It was on the oral instructions of the Branch Manager, Sri S.B. Singh, that the petitioner performed the transactions which were later alleged to be in violation of Rules. Sri S.B. Singh was therefore, a witness to have been produced in the enquiry to prove the documents relating to disputed transactions for proving the charges against the petitioner. Instead, the respondent no.4 appointed him as the Management Representative/Presenting Officer for presenting the case of the Bank before the enquiry officer, Sri K.K. Singhal. Therefore, the documents produced before the enquiry officer were not proved by any competent witness. The only witness, who was competent to prove the documents, was the Branch Manager, Sri S.B. Singh, who was appointed as the Management Representative/Presenting Officer to present the case of the Bank. Therefore, the documents produced before the enquiry officer were not proved by any competent witness. The only witness, who was competent to prove the documents, was the Branch Manager, Sri S.B. Singh, who was appointed as the Management Representative/Presenting Officer to present the case of the Bank. The learned Counsel for the respondent Bank has stated that it was Sri S.B. Singh, the Branch Manager, who was fully conversant with the misdeeds of the petitioner, therefore, he was appointed as Management Representative. He produced the documents in his custody and they were duly exhibited by the enquiry officer since Sri S.B. Singh had the custody of those documents while performing the duties of the Branch Manager, where the petitioner was also employed. His argument is that there was no illegality in the appointment of Sri S.B. Singh, Branch Manager as the Management Representative or the Presenting Officer before the enquiry officer. In disciplinary proceeding, the appointment of Presenting Officer is not mandatory. Such an Officer is appointed by the Management for producing its evidence before the enquiry officer, conducting examination of the management witnesses and for cross-examining the witnesses of the employee. Where no Presenting Officer is appointed the documents relied by the Management are produced before the enquiry officer and proved by the witnesses of the management and are exhibited by the enquiry officer. The witnesses of the employee are examined before the enquiry officer and the documents produced in defence by the employee are proved by his witnesses before the enquiry officer. The cross-examination of the witnesses of the employee, if needed, is done by the enquiry officer to arrive at a just conclusion. In the present case, Sri S.B. Singh, Branch Manager, was the person against whom, the petitioner, delinquent employee, had made serious allegations of directing him to perform the transactions which later on he alleged to be misconducts committed by the petitioner. Therefore, Sri S.B. Singh was a witness who should have been produced to prove the charges against the petitioner by deposing before the enquiry officer regarding the manner of misconduct. He was also required to have proved the documents allegedly executed by the petitioner on him or without him direction as Branch Manager. Therefore, Sri S.B. Singh was a witness who should have been produced to prove the charges against the petitioner by deposing before the enquiry officer regarding the manner of misconduct. He was also required to have proved the documents allegedly executed by the petitioner on him or without him direction as Branch Manager. Sri S.B. Singh should have been produced for cross-examination by the petitioner or his defence representative before the enquiry officer to arrive at correct decision regarding the defence of the petitioner. It is further notable that the documents produced by Sri S.B. Singh as Presenting Officer of the Management were never proved by him as a witness. Mere production of document before the enquiry officer without its formal proof by the author of the document does not makes it an exhibited document to be relied upon in the enquiry by the enquiry officer. The Presenting Officer of the Management and the defence representative of the employee act before the enquiry officer like Advocate of the parties they represent and they are not synonymous with the witnesses of the either side. Their role is of presentation of the case of the party, whom they represent. The learned Counsel for the petitioner has further argued that no oral enquiry was conducted into the charges leveled against the petitioner by the management and therefore the proceedings of enquiry are vitiated. In the absence of oral enquiry the petitioner could not defend himself. Per contra, the learned Counsel for the respondents has pointed out to the defence statement submitted by the representative of the petitioner before the enquiry officer, wherein he admitted the charges leveled against the petitioner and has argued relying upon the judgment of this Court in Writ-A. No.21838 of 2016, Rajendra Prasad Srivastava Vs. State of U.P. and others, wherein, this Court held that when the facts are admitted or no real prejudice has been caused to the employee or no other conclusion is possible, in such situation the order passed by the disciplinary authority on the basis of the enquiry report submitted on the basis of admission will not be vitiated only on account of non affording opportunity of oral examination to the delinquent employee as held by the Supreme Court in K.L. Tripathi Vs. State Bank of India reported AIR 1994 SC 273, State Bank of Patiala Vs. State Bank of India reported AIR 1994 SC 273, State Bank of Patiala Vs. S.K. Sharma reported AIR 1996 SC 1669 and Biecco Lawrie Ltd.,Vs.West Bengal reported (2009) 10 SCC 32 . The learned Counsel for the petitioner has replied that there is no admission of misconduct by the petitioner in the defence statement, rather the correct factual position has been stated regarding the alleged incidents and explanation has been given regarding the manner in which the incidents took place. The petitioner has clearly stated in his defence statement that the Management Representative/Branch Manager (Sri S.B. Singh) has tried to escape from the acts done under his instructions by the petitioner in his presence. He has no material to prove Charge Nos. 1 to 5 against the petitioner. The petitioner was on leave from 01.06.1979 to 16.06.1979 and therefore, how he could conduct any transaction on 08.06.1979 was not explained. The petitioner was directed to dispose of certain papers kept pending by Sri S.B.Singh, Branch Manager when he rejoined his duties and on 18.06.1979, he complied the directions of Branch Manager. The Management of the Bank contrived a very novel method to keep the prime witness of the management, Sri S.B.Singh, away from the scrutiny by the Inquiry Officer and also by the employee by making him its Representative/Presenting Officer and without getting any documents formally proved by him, concluded the enquiry and punished the petitioner on its basis. A perusal of the minutes of the enquiry proceedings from 21st April, 1981 to 23rd April, 1981 annexed as Annexure No.2 to the 8th Supplementary Affidavit clearly proves that none of the documents produced before the enquiry officer were proved by its authors and no oral enquiry even worth name was conducted. When a departmental enquiry is conducted against the government servant it can not be treated as a casual exercise. The enquiry proceedings also can not be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 :- "Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence." This Court has also taken same view in Subhas Chandra Sharma v. Managing Director and another reprted 2000(1) UPLBEC 541 :- "In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given in opportunity to cross examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply too the charge-sheet he was given a show cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. All that was done that after receipt of the petitioner's reply too the charge-sheet he was given a show cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice." In Meenglas Tea Estate V. The workmen, AIR 1963 SC 1719 , the Supreme Court observed "It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way to cross- examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted". In S.C. Girotra v. United Commercial Bank 1995 Supp. (3) SCC 212, the Supreme Court set aside a dismissal order which passed without giving the employee an opportunity of cross- examination. In State of U.P. v. C.S.Sharma, AIR 1968 SC 158 , the Supreme Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine, these witnesses and to lead evidence in his defence. In Punjab National Bank vs. A.I.P.N.B.E. Federation, AIR 1960 SC 160 , (vide para 66) the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd., vs. Their Workmen, (1963) II LLJ.396, and in Tata Oil Mills Co.Ltd., v. Their Workmen, (1963) II LLJ. 78 (SC). The same view was taken in A.C.C. Ltd., vs. Their Workmen, (1963) II LLJ.396, and in Tata Oil Mills Co.Ltd., v. Their Workmen, (1963) II LLJ. 78 (SC). Even if the employee refuses to participate in the enquiry the employer can not straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide Imperial Tobacco Co.Ltd., vs. Its Workmen, AIR 1962 SC 1348 , Uma Shankar v. Registrar, 1992 (65) FLR 674 (All). Therefore, this Court has no hesitation to hold that the enquiry against the petitioner was vitiated from the very inception. All the subsequent proceedings therefore suffer from grave error of procedure resulting into violation of Article-14 of the Constitution of India and miscarriage of justice. The Second and Third questions regarding the competence of the disciplinary authority to pass punishment order against the petitioner even after being transferred from Gorakhpur to Ahmedabad and the fairness of the appellate order need not be decided, once it is found that the disciplinary enquiry against the petitioner was not fair and proper and therefore the punishment order passed on its basis is ipso facto illegal. In view of the above conclusions reached by the Court, the order dated 16.04.1984 passed by the Appellate Authority and order dated 02.01.1982 passed by the Disciplinary Authority are hereby quashed. The petitioner shall be entitled to all consequential benefits of service from 02.01.1982, including 50% of the arrears of salary. It is made clear that in case the petitioner has been punished subsequently in any other disciplinary proceedings, the benefits to be granted to him as per this order would be confined to the date, he was subsequently punished and not beyond that. Since the petitioner has retired from service in 2009 no fresh inquiry is being ordered. This writ petition is partly allowed. No order as to costs.