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2020 DIGILAW 529 (PNJ)

Bishamber Dass Kayat v. Union Bank Of India

2020-02-11

SANJAY KUMAR

body2020
JUDGMENT Sanjay Kumar, J. - The petitioner, a Manager in the service of the Union Bank of India, was subjected to compulsory retirement from service, vide order dated 09.04.2014 (Annexure P-4) passed by the Chief Manager, Nodal Regional Office, Chandigarh, the Disciplinary Authority, in exercise of power under Regulation 4(h) of the Union Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976 (hereinafter, 'the Regulations of 1976'). The same was confirmed in appeal, vide order dated 25.09.2014 (Annexure P-6) passed by the Appellate Authority, viz., the Deputy General Manager (P) of the Bank, and thereafter in review, vide order dated 01.04.2015 (Annexure P-8) passed by the Reviewing Authority, viz., the General Manager (P&HR) of the Bank. 2. The petitioner assails the aforestated orders and seeks a direction to the Bank to reinstate him in service along with all consequential benefits. 3. The petitioner entered the service of the Bank as a Clerk-cum-Cashier on 01.05.1989. He was promoted as an Officer in Junior Management Grade Scale-I (JMGS-I) in May, 2005, and as a Manager in Middle Management Grade Scale-II (MMGS-II) in April, 2009. Disciplinary proceedings were initiated against him under charge-sheet dated 30.07.2013 (Annexure P-l) on the ground that he had failed to discharge his duties with utmost honesty and integrity; utmost devotion and diligence; that he had failed to take all possible steps to ensure and protect the interest of the bank; and had acted otherwise than in his best judgment in the performance of official duties. The charge-sheet recorded that the memoranda dated 17.12.2012 and 17.01.2013 issued to the petitioner would form part of the statement of allegations. The list of documents and the list of witnesses proposed to be pressed into service for substantiating the charges were appended therewith. 4. Upon completion of the inquiry, by his Report dated 20.12.2013, the Inquiring Authority held that the petitioner was guilty of making unauthorized debits and delayed/partial adjustments, which indicated misappropriation of the Bank's funds. The petitioner submitted representation dated 10.01.2014 (Annexure P-3) to the Disciplinary Authority in the context of the findings recorded by the Inquiring Authority. Thereupon, the impugned order of punishment dated 09.04.2014 (Annexure P-4) came to be passed, visiting upon the petitioner the major penalty of compulsory retirement from service. 5. The petitioner submitted representation dated 10.01.2014 (Annexure P-3) to the Disciplinary Authority in the context of the findings recorded by the Inquiring Authority. Thereupon, the impugned order of punishment dated 09.04.2014 (Annexure P-4) came to be passed, visiting upon the petitioner the major penalty of compulsory retirement from service. 5. It may however be noted at this stage that even before the initiation of disciplinary proceedings against the petitioner under the charge-sheet dated 30.07.2013, the Deputy General Manager of the Nodal Regional Office of the Bank at Chandigarh addressed letter dated 18.06.2013 to the Assistant General Manager, Central Vigilance Department, of the Central Office of the Bank at Mumbai. Therein, he referred to various documents, which were also appended as annexures, and while recommending initiation of minor penalty proceedings against the petitioner, he asked for First Stage Advice. Again, by letter dated 28.06.2013, the Deputy General Manager of the Nodal Regional Office of the Bank at Chandigarh addressed the Assistant General Manager, Central Vigilance Department, of the Central Office of the Bank at Mumbai, wherein he reiterated his recommendation for initiation of minor penalty proceedings against the petitioner, indicating the proposed punishment as stoppage of three increments without cumulative effect for a period of two years. However, by letter dated 12.07.2013, the Deputy General Manager, Central Vigilance Department, of the Central Office of the Bank informed the Deputy General Manager of its Nodal Regional Office at Chandigarh that, upon examining the case, the Chief Vigilance Officer disagreed with the Disciplinary Authority as to initiation of minor penalty proceedings and advised initiation of major penalty proceedings against him. He further requested that the inquiry proceedings should be expedited and to submit relevant papers for the Second Stage Advice of the Central Vigilance Officer in due course. 6. After completion of the inquiry proceedings, the Disciplinary Authority, viz., The Chief Manager of the Regional Office at Chandigarh, addressed letter dated 12.02.2014 to the Deputy General Manager (Vigilance), Central Vigilance Department, Central Office, Union Bank of India, Mumbai, stating that he was of the opinion that the major penalty of reversion from MMGS-II to JMGS-I should be imposed upon the petitioner and that his basic pay should be fixed at Rs. 19,400/-. 19,400/-. The Deputy General Manager, Central Vigilance Department, however disagreed with this proposal, vide letter dated 03.03.2014, and advised the Disciplinary Authority to re-visit the penalty proposed by him against the petitioner and to submit necessary papers for the Second Stage Advice of the Central Vigilance Officer. The Disciplinary Authority thereupon addressed letter dated 11.03.2014 to the Central Vigilance Department proposing to impose the major penalty of compulsory retirement from service upon the petitioner. This met with the approval of the Central Vigilance Department, as is evident from the letter dated 12.03.2014 addressed by the Deputy General Manager of the Central Vigilance Department, wherein he recorded that the Chief Vigilance Officer was in agreement with the Disciplinary Authority with regard to the proposed punishment. 7. Significantly, this exchange of correspondence between the Nodal Office and the Central Vigilance Department of the Bank was not disclosed to the petitioner. It appears that even at the stage of filing an appeal against the punishment order dated 09.04.2014, the petitioner remained unaware and no ground of appeal was taken by him in this regard. This appeal was filed by him on 16.05.2014. The said appeal came to be dismissed on 25.09.2014, whereby the Appellate Authority opined that the punishment imposed upon the petitioner was not only commensurate with the gravity of the charges/ allegations proved against him but was also just and proper. 8. It was only after the passing of this appellate order that the petitioner seems to have found out about the exchange of correspondence, referred to supra, and submitted application dated 09.12.2014 under the Right to Information Act, 2005, for documents in this regard being provided to him. The petitioner specifically raised this ground in his review petition dated 08.12.2014 filed against the appellate order dated 25.09.2014. In para 8 of his review petition, he categorically stated that he had suffered prejudice as copies of the First Stage Advice and Second Stage Advice of the Central Vigilance Officer had not been provided to him. He also referred to case law in this regard. However, by order dated 01.04.2015, the Reviewing Authority, viz., the General Manager (P&HR) of the Bank, rejected his review petition. Significantly, the Reviewing Authority did not even deal with the ground raised by the petitioner with regard to non-supply of the correspondence with the Vigilance Department. 9. He also referred to case law in this regard. However, by order dated 01.04.2015, the Reviewing Authority, viz., the General Manager (P&HR) of the Bank, rejected his review petition. Significantly, the Reviewing Authority did not even deal with the ground raised by the petitioner with regard to non-supply of the correspondence with the Vigilance Department. 9. In this writ petition also, the petitioner raised the ground that he suffered severe prejudice as copies of the First Stage Advice and Second Stage Advice of the Central Vigilance Department were not provided to him at the relevant point of time. 10. Though the petitioner also contended in this writ petition that only minor penalty proceedings had been initiated against him and not major penalty proceedings, the contention is without merit. Regulation 4 of the Regulations of 1976 details minor and major penalties. Regulation 6 thereof details the procedure for imposing major penalties. The procedure for imposing minor penalties is set out in Regulation 8. Perusal of these Regulations demonstrates that in the event a minor penalty is proposed to be imposed, the question of furnishing the lists of documents and witnesses, which/who would be pressed into service for substantiating the charges, would not arise. Such a procedure is prescribed only in relation to imposition of major penalties. Therefore, notwithstanding the fact that the charge-sheet dated 30.07.2013 does not specifically refer to either major or minor penalties, the very fact that the lists of documents and witnesses were appended therewith clearly manifests that the charge-sheet was in relation to imposition of a major penalty. 11. However, the core issue for consideration is whether non-supplying of the correspondence with the Vigilance Department would have any import upon the validity of the disciplinary action taken against the petitioner. 12. In this regard, it may be noted that Regulation 19 of the Regulations of 1976, titled 'Consultation with Central Vigilance Commission' provides that the Bank should consult the Central Vigilance Commission, wherever necessary, in respect of all disciplinary cases having a vigilance angle. 13. Crucial documents in this regard, including the correspondence with the Vigilance Department, were placed on record by the petitioner, vide CM No. 9709-CWP-2017 filed in this writ petition, which was ordered on 20.07.2017. These documents {Annexure P-10 (colly)} were supplied to the petitioner only in June, 2017, pursuant to the order dated 20.10.2016 of the Central Information Commission, New Delhi. Crucial documents in this regard, including the correspondence with the Vigilance Department, were placed on record by the petitioner, vide CM No. 9709-CWP-2017 filed in this writ petition, which was ordered on 20.07.2017. These documents {Annexure P-10 (colly)} were supplied to the petitioner only in June, 2017, pursuant to the order dated 20.10.2016 of the Central Information Commission, New Delhi. One of these documents embodies the decision dated 28.03.2013 of the IAC Committee of the Bank, comprising the General Manager (PBOD), the General Manager (RMD) and the General Manager (DFB & IBD), with regard to Agenda Item No. 4/3382, pertaining to the memoranda dated 17.12.2012 and 17.01.2013 issued to the petitioner. Upon considering the replies of the petitioner to the said memoranda, the Committee accepted the recommendation of the Regional Head and opined that the case against the petitioner was a 'non-vigilance case'. 14. Therefore, the IAC Committee of the Bank opined even before initiation of disciplinary proceedings against the petitioner that the case against him was a non-vigilance case. There is no material forthcoming as to when the Bank decided to override the Committee's finding and treat the case as a vigilance case, warranting correspondence with the Vigilance Department both at the First Stage, that is before initiation of the disciplinary proceedings, and again at the Second Stage, that is after submission of the Inquiry Report. Admittedly, this correspondence was not disclosed to the petitioner at that time. 15. Mr. Praveen Gupta, learned counsel for the petitioner, would assert on the strength of case law that this failure would be fatal and vitiate the disciplinary action taken against the petitioner. Per contra, Mr. K.K. Gupta, learned counsel for the Bank, would contend that the petitioner did not suffer any prejudice and that the non-disclosure has no impact on the action taken. 16. It would be appropriate at this stage to examine relevant case law. In State Bank of India V/s D.C. Aggarwal' [ 1993 (1) SCC 13 ] , the issue was as to the effect of non-supplying of the CVC recommendation on the punishment to be imposed on the employee. It was contended that, after application of mind and careful analysis of the material on record on its own evaluation, the Disciplinary Authority had passed the order of punishment, uninfluenced by the CVC recommendation. It was contended that, after application of mind and careful analysis of the material on record on its own evaluation, the Disciplinary Authority had passed the order of punishment, uninfluenced by the CVC recommendation. It was therefore argued that as the Disciplinary Authority had passed a detailed order, discussing every aspect, and as the same was confirmed in appeal, there was no prejudice caused to the employee. The Supreme Court however disagreed with these contentions and observed that non-supply of the CVC recommendation, which was prepared behind the back of the employee and without his participation, was violative of procedural safeguards and was contrary to the principles of a fair and just inquiry. The Supreme Court noted that the Disciplinary Authority might have recorded its own findings and it might be merely coincidental that such reasoning and the basis for returning a finding of guilt were the same as in the CVC Report, but as the said material was obtained behind the back of the employee without his knowledge and without supplying a copy to him, the disciplinary action stood vitiated. Dismissal of the appeal, confirming the said disciplinary action, was held to be inconsequential as the employee did not have an occasion to know that the CVC had submitted a report against him. The argument that the CVC recommendation was confidential was rejected and the Supreme Court held that such a recommendation which was the basis of the order passed by the Disciplinary Authority could not be treated as privileged. 17. The above judgment was relied upon by the Supreme Court in its later decision in ' Oriental Bank of Commerce and others Vs S.S. Sheokand and another'[ 2014(5) SCC 172 ] . In this case also, the report obtained from the Central Vigilance Commission had not been shared with the employee prior to passing of the punishment order. In this regard, the Supreme Court observed that when such a report was not made available to the employee, it would be difficult to rule out the apprehension that the decision may have been taken under pressure. The Supreme Court observed that any material which goes into the decision-making process against an employee cannot be kept away from him. 18. In this regard, the Supreme Court observed that when such a report was not made available to the employee, it would be difficult to rule out the apprehension that the decision may have been taken under pressure. The Supreme Court observed that any material which goes into the decision-making process against an employee cannot be kept away from him. 18. Reference may also be made to the earlier decision of the Supreme Court in ' Nagaraj Shivarao Karjagi vs. Syndicate Bank Head Office, Manipal ' [ AIR 1991 SC 1507 ] . In that case also, the bank acted upon the advice of the Central Vigilance Commission without disclosing the same to the employee. The observations made by the Supreme Court, in para 19 of the judgment, are of relevance and are extracted hereunder: '19... The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of the misconduct proved. The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No third party like the Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. (See. De Smiths Judicial Review of Administrative Action, Fourth Edition, p. 309). The impugned directive of the Ministry of Finance is, therefore, wholly without jurisdiction and plainly contrary to the statutory Regulations governing disciplinary matters'. 19. Mr. K.K. Gupta, learned counsel, placed reliance on the Division Bench judgment of the Meghalaya High Court in Shri Gautam Dhar V/s. State Bank of India and others' [ 2019 LIC 2650 ]. Significantly, the judgments of the Supreme Court, referred to supra, were also considered therein, but the Division Bench opined that the same were distinguishable on facts, as they were cases where punishment was imposed on the basis of the recommendation of the CVC, but in the case before it, the recommendation of the CVC had neither been relied upon nor was it referred to by the authorities. The Division Bench however did not take note of the observations of the Supreme Court that the reasonable apprehension that reliance had been placed upon the CVC recommendation could not be ruled out and that, when such material was not disclosed to him, prejudice would invariably be caused to the employee. 20. In any event, in the case on hand, it is demonstrated that the recommendation of the Vigilance Department was given great weight age. So much so that the Disciplinary Authority practically danced to the tunes of the Vigilance Department at all stages. This is clear from the fact that the earlier decision of the Bank to initiate minor penalty proceedings against the petitioner was brushed aside by the Vigilance Department when it pressed upon the Disciplinary Authority to initiate major penalty proceedings and the same was acceded to. In this regard, Mr. K.K. Gupta, learned counsel, would contend that the Deputy General Manager of the Nodal Office of the Bank at Chandigarh had no authority to address letters to the Vigilance Department opining that minor penalty proceedings should be initiated and that the said communications were made with the intention of favouring the petitioner. However, he concedes that no action was initiated against the said Deputy General Manager, if he acted in excess of power or to favour the petitioner. Therefore, this self-serving statement of the Bank cannot be accepted at this stage. 21. More importantly, after completion of the inquiry proceedings, the Disciplinary Authority itself addressed the Vigilance Department opining that a particular major penalty would suffice but again, the Vigilance Department brushed it aside and asserted that the proposed penalty should be re-visited. Thereupon, the Disciplinary Authority came up with the suggestion that the petitioner should be compulsorily retired from service and ultimately, that was the punishment imposed upon him, after the Vigilance Department approved it. This sequence of events clearly manifests that the Vigilance Department played a pivotal role in the progress of disciplinary proceedings against the petitioner at every stage. 22. Be it noted that Regulation 19 of the Regulations of 1976 merely required consultation with the Vigilance Department and that too, only if the case involved a vigilance angle. This sequence of events clearly manifests that the Vigilance Department played a pivotal role in the progress of disciplinary proceedings against the petitioner at every stage. 22. Be it noted that Regulation 19 of the Regulations of 1976 merely required consultation with the Vigilance Department and that too, only if the case involved a vigilance angle. In the present case, the issue as to whether the case against the petitioner even involved a vigilance angle is doubtful, in the light of the earlier decision of the IAC Committee of the Bank holding to the contrary. That apart, the Bank did not stop at mere consultation with the Vigilance Department but virtually bent over backwards to accommodate and act upon its every 'recommendation'. The Disciplinary Authority therefore abdicated its responsibility and blindly acted upon the directives of the Vigilance Department. When it proposed to even consider such directives, the Disciplinary Authority was bound to share the same with the petitioner. In the absence of such disclosure, the initial order of punishment itself stood vitiated. The confirmation of the same in appeal and thereafter, in review, would not cure the inherent defect at the primary stage. All the more so, when the Reviewing Authority did not even apply its mind to the ground raised by the petitioner with regard to the effect of the non-disclosure of the Vigilance Department's advice. 23. The order of compulsory retirement passed against the petitioner is therefore liable to be set aside on this ground. As this Court now proposes to do so, the issues raised by the petitioner with regard to his consequential benefits, as well as the manner in which his period of suspension should be treated, need not trouble this Court at this stage. It is for the Disciplinary Authority to look into all issues, including the very requirement of consultation with the Vigilance Department in the light of the IAC Committee's decision that it was a non-vigilance case, and take an informed decision as to what penalty, if any, requires to be visited upon the petitioner. All other issues, including the consequential benefits and the manner in which the petitioner's suspension period should be treated, shall also be dealt with by the Disciplinary Authority. All other issues, including the consequential benefits and the manner in which the petitioner's suspension period should be treated, shall also be dealt with by the Disciplinary Authority. As the petitioner remained out of service since 2014, owing to the misguided and defective endeavours of the Bank, the present exercise shall be concluded expeditiously and in any event, not later than four weeks from the date of receipt of a certified copy of this order. 24. The writ petition is accordingly allowed to the extent indicated above. No order as to costs.