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2019 DIGILAW 292 (ORI)

Sudhakar Panda v. Odisha Gramya Bank

2019-04-09

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. By this writ petition under Article 226 of the Constitution, the petitioner, a quondam employee of Puri Gramya Bank, assails the order of punishment dated 19.4.2004 imposed by the disciplinary authority, vide Annexure-6 as well as the order dated 27.12.2004 passed by the Chairman, Disciplinary Authority, vide Annexure-7 proposing to enhance punishment of removal from services. 2. Shorn of unnecessary details, the short facts of the case of the petitioner are that he was functioning as officer in Puri Gramya Bank, which was subsequently merged with the Odisha Gramya Bank ( Bank ). While continuing as an officer, a disciplinary proceeding was initiated against him for committing irregularities while sanctioning/disbursing loans to various persons. Twelve charges had been framed against him, vide Annexure-1. Show cause was issued to him. He submitted the explanation denying the charges. An enquiry officer was appointed. While matter stood thus, an additional charge sheet was issued to him on 2.7.2003, vide Annexure-3. The enquiry officer enquired into the allegation nos.1 to 12 in respect of first charge sheet and rendered a finding that charge nos.1 to 12 had been established except charge no.12. A copy of the inquiry report was supplied to the petitioner. The disciplinary authority awarded penalty of recovery from emoluments or such other amounts as may be due to the petitioner of 30% of the pecuniary loss caused to the Bank in respect of first charge sheet and stoppage of five increments in respect of second charge sheet. The petitioner filed appeal before the Board of Directors of the Bank. The appellate authority did not concur with the punishment awarded by the disciplinary authority and proposed to enhance punishment of removal from service in respect of first charge sheet. It concurred with the findings in respect of the second charge sheet. With this factual scenario, the writ petition has been filed. 3. Heard Mr. H.M. Dhal, learned Advocate for the petitioner and Mr. B.S. Rayguru, learned Advocate on behalf of Mr. J. Pattnaik, learned Senior Advocate for the opposite parties. 4. Mr.Dhal, learned Advocate for the petitioner argues with vehemence that the allegations levelled against the petitioner are far from truth. The enquiry officer enquired into the allegations levelled against the petitioner in respect of first charge sheet. No enquiry was conducted in respect of additional charge sheet. J. Pattnaik, learned Senior Advocate for the opposite parties. 4. Mr.Dhal, learned Advocate for the petitioner argues with vehemence that the allegations levelled against the petitioner are far from truth. The enquiry officer enquired into the allegations levelled against the petitioner in respect of first charge sheet. No enquiry was conducted in respect of additional charge sheet. The enquiry officer rendered the findings that the charges have been proved except charge no.12. But the disciplinary authority has awarded penalty in respect of both the charge sheets. The petitioner filed appeal before the board of directors of Bank. The appellate authority de hors its power to enhance the punishment awarded by the disciplinary authority. He further submits that Puri Gramya Bank (Officers and Employees) Service Regulations, 2001 nowhere stipulates that when an appeal is preferred at the behest of the employee, the punishment shall be enhanced. He further submits that by virtue of the order dated 24.1.2005 passed by this Court, the petitioner was continuing in service. He has retired from service in the meanwhile. Most of the loan amounts have been recovered. Thus, the orders passed by the disciplinary authority as well as the appellate authority are liable to be quashed. To buttress submission, he places reliance on the decision of the apex Court in the case of Makeshwar Nath Srivastava v. The State of Bihar and others, (1971) 1 SCC 662 . 5. Per contra, Mr. Rayguru, learned Advocate for the opposite parties submits that the petitioner has committed malfeasance and misfeasance while continuing as an officer in the Bank. As many as twelve charges have been framed against the petitioner, vide Annexure1. Again additional charges were framed, vide Annexure-3. The petitioner submitted his show cause in respect of both the charge sheets. The enquiry officer after affording opportunity of hearing to the petitioner arrived at a conclusion that the charges had been proved except charge no.12. The disciplinary authority had awarded punishment. On taking a holistic view of the matter, the appellate authority decided to enhance punishment of removal from services. He further submits that the appellate authority can pass suitable order when an appeal is preferred by the delinquent employee under clause (ii) of 47 of the Bank Regulations. Thus, the appellate authority has jurisdiction to enhance punishment. On taking a holistic view of the matter, the appellate authority decided to enhance punishment of removal from services. He further submits that the appellate authority can pass suitable order when an appeal is preferred by the delinquent employee under clause (ii) of 47 of the Bank Regulations. Thus, the appellate authority has jurisdiction to enhance punishment. He further submits that the High Court in exercise of its power under Article 226 of the Constitution cannot re-appreciate evidence. He places reliance on the decisions of the apex Court in the case of Union of India and others v. P.Gunasekaran, (2015) 2 SCC 610 and Ganesh Santa Ram Sirur v. State Bank of India and another, (2005) AIR SC 314. 6. The apex Court in the case of P.Gunasekaran held: 12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) reappreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience. 7. Reverting to the facts of the case and keeping in view the law laid down by the apex Court in the decision cited supra, this Court finds that the petitioner while continuing as an officer in the Bank was charge-sheeted by the Bank, vide Annexure-1. As many as twelve charges had been levelled against the petitioner. He submitted explanation denying the charges. Again an additional charge sheet was issued to him, vide Annexure-3. He denied the said charges. The enquiry officer conducted enquiry in respect of first charge sheet and held that charge nos.1 to 12 have been proved except no.12. No enquiry was conducted in respect of additional charge sheet. The report of the enquiry officer reveals that he held the inquiry in respect of charge sheet, vide Annexure-1 only. The disciplinary authority awarded penalty of recovery from emoluments or such other amounts as may be due to the petitioner of 30% of the pecuniary loss caused to the Bank in respect of first charge sheet and stoppage of five increments in respect of second charge sheet. The petitioner filed appeal before the Board of Directors of the Bank. The appellate authority did not concur with the punishment awarded by the disciplinary authority and proposed to enhance punishment of removal from service in respect of first charge sheet. It concurred with the findings in respect of the second charge sheet. 8. The question does arise as to whether the appellate authority can enhance the punishment, when an appeal is filed by the delinquent employee ? 9. Clause 47 of the Puri Gramya Bank (Officers and Employees) Service Regulations, 2001 provides: 47. Right to appeal. (i) An officer or employee shall have right of appeal against any order passed under these Regulations, which injuriously affects his interest. 9. Clause 47 of the Puri Gramya Bank (Officers and Employees) Service Regulations, 2001 provides: 47. Right to appeal. (i) An officer or employee shall have right of appeal against any order passed under these Regulations, which injuriously affects his interest. (ii) The appeal shall be preferred to the Appellate Authority mentioned in Regulation 48 within 45 days of the date of receipt of the order appealed against. The Appellate Authority shall consider the appeal and pass suitable order preferably within a period of 6 months. 10. On a conspectus of clause 47(ii) of the Regulations, it is evident that the appellate authority shall consider the appeal and pass suitable order preferably within a period of six months. The same cannot be construed to mean that when an appeal is preferred by the delinquent employee assailing the order of punishment passed by the disciplinary authority, the appellate authority shall enhance the punishment. 11. The apex Court in the case of Makeshwar Nath Srivastava held: In the absence of any other provision of law or any rule conferring on the- State Government the, power to pass an order of dismissal in exercise of its revisional power or power of general superintendence, the general principle must prevail, namely, that an appellate authority in an appeal by an aggrieved party may either dismiss his appeal or allow it either wholly or partly and uphold or set aside or modify the order challenged in such appeal. It cannot surely impose on such an appellant a higher penalty and condemn him to a position worse than the one he would be in if he had not hazarded to file an appeal. Since under Rule 851 (b) an appeal to the Government has been provided for and the Government had under that rule the appellate authority to dispose of appeals filed before it against the original order passed by the Inspector-General, it could not resort to any general power of superintendence except in cases where there is a provision conferring such a power in addition to its appellate authority and in the manner envisaged by such a provision. 12. The ratio in the case of Makeshwar Nath Srivastava proprio vigore applies to the facts of this case as well. 13. 12. The ratio in the case of Makeshwar Nath Srivastava proprio vigore applies to the facts of this case as well. 13. The irresistible conclusion is that the appellate authority may either dismiss the appeal or allow it either wholly or partly or uphold or set aside or modify the order of punishment. It cannot impose a higher penalty and condemn the delinquent employee to a position worse than the one he would be in, if he had not hazarded to file an appeal. The appellate authority travelled beyond its jurisdiction issuing notice to enhance punishment. 14. The apex Court in Ganesh Santa Ram Sirur held that if the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. There is no quarrel over the proposition of law. 15. In view of the forgoing discussions, the punishment imposed by the disciplinary authority in respect of the additional charge sheet vide Annexure-3 is quashed. Notice to enhance the punishment by the appellate authority, vide annexure-1, is also quashed. The matter is remitted back to the appellate authority to decide the quantum of punishment keeping in view the fact that the petitioner has retired from service in the meanwhile and most of the loan amounts have been recovered. In order to avoid further delay, the petitioner shall appear before the appellate authority on 8th of May, 2019, on which date the appellate authority shall fix a date of hearing and decide the appeal within a period of three months thereafter.