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2019 DIGILAW 534 (CAL)

Bablu Das v. Reserve Bank of India

2019-04-25

AMRITA SINHA

body2019
JUDGMENT : 1. The entire disciplinary proceeding starting from the issuance of charge sheet dated 7th September, 2016, the enquiry report dated 9th January, 2017, the second show cause notice dated 14th February, 2017, the final order dated 7th April, 2017 passed by the competent authority whereby the substantive pay of the petitioner has been reduced by four stages for two years with effect of withholding the increments in the intervening period and postponement of future increment in terms of Rules 47(a)(c) read with Regulation 47(a)(b) of the Reserve Bank of India (Staff Regulations), 1948 and the order of the appellate authority dated 31st January, 2018 confirming the order of the disciplinary authority are under challenge in the instant writ petition. The petitioner was appointed in the Reserve Bank of India under died-in- harness category on 1st. November 1988. While the petitioner was posted as the Assistant Manager, Department of Protocol and Security a show cause notice was issued on 23rd. August, 2016 which was received by him on 26th August, 2016 wherein the petitioner was advised to show cause as to why disciplinary proceedings will not be initiated against him in terms of the provisions of the Reserve Bank of India (Staff Regulations), 1948. The petitioner was to reply within seven days from the date of receipt of the notice. It was mentioned that if the reply was found to be not tenable then disciplinary proceedings would follow. The petitioner replied to the said show cause. As the reply was found to be not tenable a charge sheet was issued against the petitioner on September 7, 2016. The charges against the petitioner were set out in the said charge sheet. It was reported that: a. "You had shown indiscipline, misconduct and refusal to perform the duties allotted to you by the department. b. Quarrelling with fellow colleagues in abusive language and threatening to drag them to court. c. Misbehaving with lady employees and the lady summer intern of the department. d. Refusing to work on the computer and not discharge the duties allotted to you except the work to entering letters in MDIS package." It was also reported that: i. "Displaying your undergarments on your desk. ii. Displaying objectionable pictures on your desk. iii. In your reply dated August 16, 2016 you have used indecent and disparaging words against the lady employees of the department. ii. Displaying objectionable pictures on your desk. iii. In your reply dated August 16, 2016 you have used indecent and disparaging words against the lady employees of the department. As an officer of the Bank, you are not amiable and not amenable to discipline thereby failing to show courtesy and respect to seniors and fellow colleagues in your department. You had failed to show diligence and sincerity in the discharge of your duties thereby acting in a manner detrimental to the smooth functioning of the department." A list of documents and a list of witnesses were also forwarded with the charge sheet. The documents that were forwarded to the petitioner contained the complaint note of the Director, Department of Economic and Policy Research, Reserve Bank of India, Kolkata Regional Office. In the said complaint it was mentioned that the petitioner had become a security threat to the staff and officers working in the department. He demonstrated highly objectionable act of perversion for which the lady staff feels extremely uncomfortable to work in the department. He displayed objectionable pictures on his desk. He changed his dress openly in the department. He threatened his fellow colleagues to drag them to court on the slightest pretext. He displayed his undergarments on his desk. He made baseless allegations against young summer lady intern who was working with the head of the department and assistant advisor. He engaged in shouting and quarrelling with the staff using filthy and abusive languages. He refused to work citing health problems. He was not available at the desk for long hours. On one occasion he left office without informing anybody and kept the keys of the cupboard locked in the desk. To trace the keys during the closing hours he was called over the phone but he did not pick up the phone. He was technically incompetent and totally unfit to work in the research department. He cannot be relied on for doing administrative work. He cannot be used for works giving his objectionable misconduct. He spoiled the work environment, disturbed peace and demoralised colleagues and staff. He was extremely difficult to work with. He was counselled many times to change his conduct by the head of the department. Despite warning from the head of the department he continued with his misconduct. In reply to the show cause the petitioner denied the charges levelled against him. He was extremely difficult to work with. He was counselled many times to change his conduct by the head of the department. Despite warning from the head of the department he continued with his misconduct. In reply to the show cause the petitioner denied the charges levelled against him. In his reply dated 26th September, 2016 the petitioner stated that the charge sheet did not contain the misconduct that has been committed by him. Unless specific instances of misconduct are spelt out it was difficult for him to counter the charge of indiscipline. The charges against him were vague. None of his fellow colleagues submitted any complaints to the authorities about his alleged quarrelling with abusive language. He stated that it is his fellow colleagues who provoked him and irritated him. According to him the picture that was displayed on his computer was not an objectionable one and that had been kept so that his colleagues felt ashamed and did not come to irritate him. He prayed exoneration from the charges. A preliminary investigation report by the assistant manager of the Human Resource Management Department of the Bank was forwarded to the petitioner. In the said report it was specifically mentioned that the petitioner was often engaged in shouting and quarrelling with the staff. His behaviour with the lady colleagues was not satisfactory. Several rounds of discussion with the staff members revealed that the petitioner misbehaved on various occasions with his colleagues and also with the head of the department. He made false allegations against the summer young lady intern. The staff members certified the character of the summer intern as humble, gentle, polite and an excellent performer. Though the petitioner was very regular in his attendance timings but he was often seen in front of his desk either sitting idle or reading newspapers. He was very reluctant to work and apart from making certain entries in the computer he did not do any work citing health issues. His medical prescriptions mentioned eyesight problem but the petitioner was seen driving to office from Dum Dum everyday. The details of his activity during office hours also formed a part of the list of documents that was supplied to the petitioner along with his charge sheet. His medical prescriptions mentioned eyesight problem but the petitioner was seen driving to office from Dum Dum everyday. The details of his activity during office hours also formed a part of the list of documents that was supplied to the petitioner along with his charge sheet. The petitioner by a letter dated 14th October, 2016 written by the enquiry officer was directed to appear in the enquiry proceeding to be held on 2nd November, 2016. Notice was also issued to the witnesses to remain present on the date of enquiry. The enquiry was conducted on several dates and the report of the enquiry officer was supplied to the petitioner. The findings of the competent authority were also forwarded to the petitioner to afford him to make representation against the penalty proposed to be imposed. The petitioner made representation against the imposition of proposed penalty by his letter dated 20th February, 2017. The competent authority after considering the representation made by the petitioner passed final order on 7th April, 2017 and imposed penalty that the substantive pay of the petitioner shall be reduced by four stages for two years from the date of the order. The reduction shall have the effect on withholding the increments in the intervening period and shall have the effect of postponing his future date of increment. The period for which the petitioner is not drawing pay at the maximum of the pay scale from the date of final order as a result of the penalty imposed shall be excluded for the purpose of grant of post scale special pay, stagnation increment etc., if any. His next increment shall fall due after expiry of a period of two years and his substantive pay will be refixed as admissible as per the provisions of the Reserve Bank of India (Staff) Regulations, 1948. Being aggrieved by the final order imposing penalty upon him the petitioner preferred appeal before the General Manager and competent authority. The Regional Director and Appellate Authority vide order dated 31st. January, 2018 concurred with the findings of the disciplinary authority and upheld the order of penalty imposed against the petitioner. The learned advocate appearing for the petitioner submits that the charges mentioned against the petitioner in the charge sheet are very vague. No specific instance of misconduct or indiscipline has been mentioned. January, 2018 concurred with the findings of the disciplinary authority and upheld the order of penalty imposed against the petitioner. The learned advocate appearing for the petitioner submits that the charges mentioned against the petitioner in the charge sheet are very vague. No specific instance of misconduct or indiscipline has been mentioned. In the absence of specific instance of misconduct and indiscipline it is not possible for the petitioner to properly controvert the allegations levelled against him. The preliminary investigation report was prepared behind the back of the petitioner and that was also vague. The presenting officer acted as the enquiry officer and sought explanation from the petitioner before calling for evidence from the witnesses. The presenting officer tried to fill up the lacuna in the evidence by cross-examining the petitioner first. Thereafter he took the evidences from the witnesses. In usual course of recording evidence, examination in chief is held prior to the cross-examination. In the instant case the petitioner was cross- examined first. The enquiry proceeding was not fair. There is serious impropriety in the carriage of the enquiry proceedings. The learned advocate relied upon the judgment delivered by a three- judge Bench of the Hon'ble Supreme Court in the case of Surath Chandra Chakravarty vs. The State of West Bengal reported in AIR 1971 SC 752 wherein the Court held that no order of dismissal, removal or reduction shall be passed on a member of service unless he is informed in writing all the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have been communicated to the person charged together with the statement of allegations on which each charge is based. The learned advocate also relies upon a decision delivered by the Hon'ble Supreme Court in Sur Enamel and Stamping Works Ltd. Vs. The Workmen reported in AIR 1963 SC 1914 wherein the Court held that an enquiry cannot be said to have been properly held unless the employee proceeded against has been informed clearly of the charges leveled against him. In the instant case the petitioner allege that the charges mentioned in the charge sheet are not specific and definite. The Workmen reported in AIR 1963 SC 1914 wherein the Court held that an enquiry cannot be said to have been properly held unless the employee proceeded against has been informed clearly of the charges leveled against him. In the instant case the petitioner allege that the charges mentioned in the charge sheet are not specific and definite. It is the case of the petitioner that the bank authority being the prosecutor was supposed to prove the case and it was not for the petitioner to disprove the same. The authorities miserably failed to prove the allegations levelled against the petitioner. The learned senior counsel appearing on behalf of the respondent bank submits that the charge sheet which was issued against the petitioner contained very definite and specific charges. The charges were clearly mentioned. The complaint that was made against the petitioner by the Director of the Department of Economic and Policy Research was also forwarded to the petitioner. The preliminary investigation report of the investigating officer as well as the print out of the snap shots of the pictures posted in the work station of the petitioner which was relied upon by the witnesses was also furnished along with the charge sheet. The petitioner was afforded appropriate opportunity to defend himself. The petitioner took part in the disciplinary proceeding and the presenting officer asked questions to him which the petitioner duly replied. The ground taken by the petitioner that the presenting officer acted as the enquiry officer was incorrect. Though the Evidence Act does not apply strictly in disciplinary proceedings even then the petitioner was given every opportunity to defend himself. The petitioner refused to avail the opportunity given to him to cross-examine the witnesses. It has been submitted that the enquiry was conducted fairly. The charges levelled against the petitioner stood proved. The scope of judicial review under Article 226 of the Constitution of the orders passed in the disciplinary proceeding is extremely limited. No prejudice has been caused to the petitioner in any manner whatsoever. The learned counsel relies upon the judgment delivered by the Hon'ble Supreme Court in Workmen of Blamadies Estates vs. Management Blamadies Estates & Ors. reported in (2008) 4 SCC 517 (para 10) to drive home the point that the enquiry proceeding was conducted fairly. No prejudice has been caused to the petitioner in any manner whatsoever. The learned counsel relies upon the judgment delivered by the Hon'ble Supreme Court in Workmen of Blamadies Estates vs. Management Blamadies Estates & Ors. reported in (2008) 4 SCC 517 (para 10) to drive home the point that the enquiry proceeding was conducted fairly. In the said decision the Hon'ble Supreme Court held that the assessment of evidence in a domestic enquiry is not required to be made by applying the same yardstick as a Civil Court could do when a lis is brought before it. The Evidence Act, 1872 is not applicable to the proceeding in a domestic enquiry, though principle of fairness is to apply. In a domestic enquiry guilt may not be established beyond reasonable doubt and the proof of misconduct would be sufficient. He also relies upon the judgment delivered by Hon'ble Supreme Court in State Bank of Patiala & Ors. vs. S.K. Sharma reported in AIR 1996 SC 1669 (para 27). In the said decision the Hon'ble Court held that in relation to the disciplinary orders and enquiries a distinction ought to be made between violation of the principle of natural justice, audi alteram partem and violation of a facet of the said principle. The validity of the order has to be decided on the touchstone of prejudice i.e. whether the person concerned did or did not have a fair hearing. It would not be correct to say that for each and every violation of a facet of natural justice or a rule incorporating such facet the order passed is altogether void and ought to be set aside without further enquiry. The learned counsel prays for dismissal of the writ petition. After hearing the submissions made on behalf of both the parties it appears that the facts of the case are not only ugly, vulgar but obnoxious at the same time. The allegations mentioned in the statement of charges which was forwarded to the petitioner is very categoric. The learned counsel prays for dismissal of the writ petition. After hearing the submissions made on behalf of both the parties it appears that the facts of the case are not only ugly, vulgar but obnoxious at the same time. The allegations mentioned in the statement of charges which was forwarded to the petitioner is very categoric. It clearly mentions that the petitioner is indisciplined, refused to perform the duties allotted to him, quarrelsome in nature, used abusive language, threatened colleagues to dragthem to Court, misbehaved with lady colleagues, misbehaved with the young lady intern of the department, refused to work on the computer, used indecent and disparaging words against the lady employees of the department and the worst is displayed objectionable pictures on his work station and displayed undergarments on the desk. He was also seen watching pornographic pictures on his computer. The note of complaint dated 20th July, 2016 by the Director of the department which was forwarded to the petitioner along with the charge sheet is also self-explanatory. It mentions that the petitioner refused to work citing eyesight problem whereas the petitioner himself drives his car from his residence at Dum Dum to attend office regularly. The petitioner applied before the authority that due to his sinus problem he is not able to do typewriting. The medical prescriptions annexed by the petitioner do not mention that the petitioner will not be able to perform work on his computer. The doctor did not advise the petitioner not to work on the computer. A chart has been prepared by the inquiry officer indicating the activity of the petitioner. The chart mentions the date, time and the status of the petitioner at the relevant point of time. There are nine entries in the said chart. In all the entries except one it is seen that the petitioner was not performing his duties. Either he is sitting idle or reading the newspaper. Though the petitioner reports to duty on time but he has no involvement and contribution to the department. It appears that the petitioner is a liability to the department and he vitiates the entire work culture of the bank. In the reply to the charge sheet the petitioner allege that the charges levelled against him are not specific. Instances of misconduct are not spelt out. The charge sheet was followed by a list of witnesses. It appears that the petitioner is a liability to the department and he vitiates the entire work culture of the bank. In the reply to the charge sheet the petitioner allege that the charges levelled against him are not specific. Instances of misconduct are not spelt out. The charge sheet was followed by a list of witnesses. All the witnesses deposed against the petitioner in the same tune. From the enquiry report annexed with the affidavit in opposition it is seen that the petitioner misbehaves with the director as well as his other colleagues. The bank witnesses categorically stated that they did not have any personal strained relationship with the petitioner but even then the petitioner misbehaves with them and he refuses to do any work on the alibi of eye problem. During quarrelling with the colleagues the petitioner uses abusive languages and threatens the colleagues to drag them to Court. The petitioner also threatened to commit suicide and frame the colleagues for his death. His behaviour is rude and abnormal. He turns violent and vitiates the entire atmosphere and the peace of the department. He never spares the senior colleagues, let alone the juniors. The enquiry officer mentions in the proceeding that he did not want to put in details the behaviour of the petitioner as the same are highly indecent. The words and expressions used by the petitioner as deposed by the witnesses in their evidence is so nasty that I refrain from incorporating the same in this judgment. Displaying undergarments in a work station speaks volume of the character of the petitioner. Displaying objectionable pictures on the desk also reflects his perverse nature. When a department is functioning with both male and female staff it is expected that the members will behave decently and properly and not engage themselves in any such act or action which may ruin the entire atmosphere of work. Such is the case at hand. According to the petitioner the picture that was depicted on his work station was not objectionable. The level of decency varies from person to person. What may appear to be indecent to one may not be indecent to the other but that does not give the person a freehand to act indecently or improperly. By general standards displaying of undergarments and objectionable pictures in the work station is considered indecent and cannot be supported under any circumstances. What may appear to be indecent to one may not be indecent to the other but that does not give the person a freehand to act indecently or improperly. By general standards displaying of undergarments and objectionable pictures in the work station is considered indecent and cannot be supported under any circumstances. Displaying of undergarments in a private balcony may not be offensive or objectionable but the moment the same is displayed in a workplace where there is access of public it is certainly indecent, offensive and objectionable. When a person goes to work and sits in his work station it is expected that he will work in a healthy and peaceful atmosphere. A person may not be able to deliver properly if the atmosphere where he is working is unhealthy. An employee will not be able to concentrate on his work and he may get distracted over matters which are no way related to his work. The performance level of the employee will deteriorate. To maintain the standard of efficiency each and every member of the department has to put in their best effort. From the evidence it appears that the petitioner is the odd man out. He vitiates the entire workplace. Even without any strained relationship he misbehaved with his colleagues. It is because of these types of disturbing elements that a department cannot function up to its optimum level. This brings a bad reputation to the department concerned. One cannot expect to work effectively and efficiently without peace of mind. Though all the witnesses deposed against the petitioner he did not cross-examine the witnesses which implies that the allegations made against the petitioner were true and it would have been futile to disprove them. There does not appear to be any infirmity in following the principle of natural justice. No prejudice has been caused to the petitioner. The petitioner appears to be highly adamant. In spite of warnings by the head of the department he refused to reform himself. There are no signs of remorse in him. He is a sure nuisance to the department making baseless, untrue and false allegations against lady members. The petitioner was issued cautionary memo for misbehaviour and his promotion was deferred by six months in the year 2016 but to no avail. In my opinion the disciplinary proceeding, the final order and the appellate order do not call for any interference. He is a sure nuisance to the department making baseless, untrue and false allegations against lady members. The petitioner was issued cautionary memo for misbehaviour and his promotion was deferred by six months in the year 2016 but to no avail. In my opinion the disciplinary proceeding, the final order and the appellate order do not call for any interference. The writ petition is devoid of merits. W.P No. 125 of 2018 is dismissed. There will be no order as to costs. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.