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2021 DIGILAW 517 (ALL)

Ranveer Singh v. Union of India

2021-05-24

J.J.MUNIR

body2021
JUDGMENT : 1. Heard Mr. Ram Kirti Singh, learned Counsel for the petitioner. No one appears on behalf of respondent nos. 2 and 3. 2. The petitioner is an employee of the Punjab National Bank. He is a promotee to the Clerical cadre from the Class-IV cadre. He was served with two charge-sheets, separated approximately by a year in point of time, to wit, one dated 25.03.2004 and the other dated 08.04.2005. The charge-sheet dated 25.03.2004 shall hereinafter be called as the 'first charge-sheet'. The first charge-sheet, in substance, carries a charge to the effect that the petitioner, by his application dated 07.08.1987 addressed to the Bank Manager, Branch Shekhupur, District Badaun, claimed himself to be a matriculate and on that basis, claimed officiating appointment to a post in Class-III and other benefits, attached to a post in that cadre. Subsequently, the petitioner participated in the departmental promotion examination held by the Bank for the purpose of promoting eligible Class-IV employees to the Class-III cadre, representing himself to be a matriculate. It is said in the charge sheet that it has been found by the Bank that the High School mark-sheet relied upon by the petitioner is forged, and that he secured promotion to a Class-III post by playing fraud on the Bank. The charge-sheet under reference indicates this act to fall within the definition of ‘gross misconduct’ in accordance with paragraph (m) of the bipartite settlement dated 10.04.2002. 3. The petitioner was asked to put in his reply within ten days. The petitioner filed a reply/written statement dated 10.05.2004, addressed to the Senior Regional Manager, Punjab National Bank, through proper channel. It appears that not much was done on the first charge-sheet by the Bank after the petitioner had put in his reply/written statement, last mentioned. The record shows that this charge-sheet was based on a complaint made by one Smt. Premwati, claiming to be the petitioner's wife, who had complained against him to the Bank videcomplaint dated 19.01.2004, inter alia carrying allegations of the petitioner marrying three other women after her, besides reporting the fact that the petitioner had secured promotion to the Class-III cadre, relying on a forged High School mark-sheet. Smt. Premwati, last mentioned, did not rest content with reporting the matter to the respondent-Bank. Complaining of inaction on the Bank's part, she instituted a writ petition before this Court, being Civil Misc. Writ Petition no. Smt. Premwati, last mentioned, did not rest content with reporting the matter to the respondent-Bank. Complaining of inaction on the Bank's part, she instituted a writ petition before this Court, being Civil Misc. Writ Petition no. 40337 of 2004, seeking a direction to the Bank to conclude the inquiry and terminate services of the petitioner on the basis of her complaint dated 19.01.2004, after due inquiry. 4. This Court videjudgment and order dated 27.10.2005, disposed of the writ petition with a direction to the Bank to conduct an inquiry into the complaint laid by the petitioner’s wife, that is to say, Smt. Premwati, “dated 24.07.1978 (sic)” within four months from the date of the said judgment. It was also ordered that the competent authority will also get a copy of the Mark Sheet produced by the petitioner verified from the Uttar Pradesh Board of High School and Intermediate Education, Allahabad before arriving at any conclusion. 5. It is averred by the petitioner in paragraph nos. 13 and 15 of the writ petition that during this period of time, there was some difference, personal in nature, between the petitioner and the Branch Manager, that led to the issue of another charge-sheet to him, dated 08.04.2005. Here, the petitioner was charged with embezzlement/misappropriation of a sum of Rs. 83,940/-, that was deposited by one Pawan Mishra and another Meera Jaiswal, but not credited to their account. It was said that a cash deposit slip was issued by the petitioner to the account holder, but no entry was made thereof in the cash book or credited to the customer's account. This charge-sheet dated 08.04.2005 shall hereinafter be referred to as the 'second-charge sheet'. 6. There is little quarrel about the course of proceedings emanating from the second charge-sheet. The petitioner denied the charges and a departmental inquiry followed. The petitioner was held guilty by the Inquiry Officer and a show-cause notice was issued to the petitioner on 03.04.2006 by the Disciplinary Authority. The petitioner answered the show-cause notice. The Disciplinary Authority did not find the petitioner's reply to the show cause satisfactory, and passed an order dated 24.04.2006, dismissing the petitioner from service. This order was affirmed by the Appellate Authority on a department appeal carried by the petitioner vide order dated 13.09.2006. 7. The petitioner answered the show-cause notice. The Disciplinary Authority did not find the petitioner's reply to the show cause satisfactory, and passed an order dated 24.04.2006, dismissing the petitioner from service. This order was affirmed by the Appellate Authority on a department appeal carried by the petitioner vide order dated 13.09.2006. 7. The petitioner challenged this dismissal from service and its affirmation in appeal by the respondents founded on the second charge sheet through Writ – A no.63874 of 2006, that was instituted before this Court. The writ petition was heard and allowed by this Court vide judgment and order dated 06.01.2012, holding proceedings to be procedurally flawed. This Court quashed the show-cause notice dated 03.04.2006, the order of dismissal from service dated 24.04.2006 and the appellate order dated 13.09.2006. Further, a mandamuswas issued, directing the respondents to reinstate the petitioner in service. However, liberty was given to the respondents, if they intended to do so, to hold a fresh inquiry, attended with a remark that anything said in the judgment shall not affect the outcome of the fresh inquiry. 8. The respondents, as it appears from the averments carried in the writ petition and the affidavits exchanged here, did not initially comply with the orders of the learned Single Judge, who allowed Writ – A No. 63874 of 2006, ordering the petitioner's reinstatement in the proceedings arising from the second-charge sheet. Rather, they carried a Special Appeal to the Division Bench of this Court, about which there is not much detail available on record. However, learned Counsel for the petitioner points out that it was decided in the year 2018 and rejected. In any case, to the issue involved here, that is not of much consequence. It, however, needs to be noticed that the respondents did not readily comply with the judgment and order of the learned Single Judge in Writ – A no. 63874 of 2006, dated 06.01.2012, compelling the petitioner to prefer Contempt Application (Civil) no. 1708 of 2012. This was disposed of in terms of an order dated 16.04.2012. Now, after the contempt proceedings, the respondents reinstated the petitioner in service on a temporary basis vide order dated 13.05.2012. 9. 63874 of 2006, dated 06.01.2012, compelling the petitioner to prefer Contempt Application (Civil) no. 1708 of 2012. This was disposed of in terms of an order dated 16.04.2012. Now, after the contempt proceedings, the respondents reinstated the petitioner in service on a temporary basis vide order dated 13.05.2012. 9. What is somewhat intriguing is the fact that the respondents did not take advantage of the liberty given by this Court, to take proceedings afresh against the petitioner, founded on the second charge-sheet, that carried a charge regarding embezzlement. This Court must remark that it is always open to an employer to take proceedings afresh, where earlier proceedings and the resultant order have been quashed on grounds of procedural irregularity, or not to do so. But here, the respondents chose to put proceedings, or so as to speak, proceedings afresh on the basis of the second charge-sheet inlimbo, and instead, opted to proceed with the first charge sheet vide order dated 06.07.2012. Again, there is no inherent illegality about this course of action adopted by the respondents. But, it does lead one to wonder if the decision to elect pursuing the first-charge sheet came about, because the respondents thought that they had better evidence forthcoming to support the charge there than that available to establish the charges carried in the second-charge sheet. 10. Be that as it may, the petitioner says that it shows bias and premeditation against him, where the respondents wish to get rid of the petitioner at any cost. This Court is not minded to go into that issue. The order dated 06.07.2012 does show that after the petitioner had submitted his reply/written statement to the first charge-sheet, departmental inquiry was initiated thereon with all seriousness after some six years, because proceedings on the said charge sheet had not gone beyond the appointment of an Inquiry Officer on 16.01.2006 despite orders of this Court dated 27.10.2005 passed in Writ Petition no. 40337 of 2004, ordering the inquiry on the first charge-sheet to be concluded within a period of four months. 40337 of 2004, ordering the inquiry on the first charge-sheet to be concluded within a period of four months. Again, as said earlier, it is no less intriguing that after a long period of torpidity, the first charge-sheet was brought into action by the respondents, so much so, that the order dated 06.07.2012 directs the Inquiry Officer appointed in the matter to commence the inquiry immediately and after fixing the matter for a preliminary hearing, regular proceedings be undertaken on a day-to-day basis. The Disciplinary Authority further directed the Inquiry Officer to conclude the inquiry within a period of three months and to submit his report in quadruplicate. 11. It is true that however inexplicable the course or the wisdom of proceedings might be, no inference of bias can perse be drawn from these circumstances or the circumstances taken in their entirety. It was the petitioner's defence before the Inquiry Officer that he never applied as a matriculate candidate, seeking promotion from the Class-IV cadre to the Clerical cadre. Learned Counsel for the petitioner has drawn this Court's attention towards the HRD Division Circular no. 341 dated 06.09.2006 issued by the Punjab National Bank, Head Office, New Delhi, annexed as Annexure no.1 to the writ petition, that clearly postulates six categories of eligible persons, who could sit the departmental promotion examination. Attention of the Court is drawn towards the sixth category of Class-IV employees, who are Peons, Cash Peons, Bill Collectors, Head Peons or those having composite designation like Peon-cum-Daftry or Peon-cum-Bill Collector, or Daftry-cum-Bill Collectors etc., where the minimum eligibility is that the candidate should have passed his 8th standard examination from a recognized institution and put in not less than 8 years' service on 15.10.2006. This was the position in the earlier promotion circulars too, including the one for the year 2001, when the petitioner sat and succeeded in the departmental promotion, earning promotion on a regular basis to a Class III post. 12. Learned Counsel for the petitioner points out that there is no issue between parties that the petitioner joined service of the respondents in the Class-IV cadre as a Peon on 01.02.1984 and was, therefore, eligible to apply for departmental promotion examination on the basis of his Class VIII qualification that he held. It is said that the petitioner never represented that he was a matriculate. It is said that the petitioner never represented that he was a matriculate. It is urged on behalf of the petitioner that there are multiple circumstances that would indicate that he never made the application dated 07.08.1987, seeking promotion to the Class-III cadre, on the basis of being a matriculate. 13. Amongst others, attention of this Court is drawn towards the fact that in the event the petitioner had applied to sit the departmental examination as a matriculate candidate, his computerized service record/history-sheet, a copy of which is annexed as Annexure no.12 to the writ petition, would not show his educational qualification “below matric”. This computerized record was drawn up in the year 2006, whereas the petitioner, according to the charge laid against him, moved applications for officiating promotion on 13.03.1997, followed by another on 15.12.1998, and finally on 12.10.2001, seeking to sit in the regular promotion examination. It is urged that if in any of those applications, the petitioner had claimed his educational qualification to be upgraded to that of a matriculate and annexed his matriculation mark-sheet, his matriculate qualification would reflect in the computerized service record/history-sheet drawn up in the year 2006. 14. It is argued by the learned Counsel for the petitioner that these facts of their own show that the application dated 07.08.1987 and the other applications claiming promotion thereafter, staking claim for regular promotion on the basis that the petitioner was a matriculate, are introductions to the record falsely made, together with xerox copies of some High School mark-sheets. It is also pointed out that on a perusal of the application dated 07.08.1987, which is one of the star documents relied upon by the establishment at the inquiry, a grave suspicion arises on account of the fact that it is scripted on a letterhead of the employers, meant for inter-office correspondence, which a Class-IV employee making an application seeking promotion, is not authorized to use nor can be expected to use for the purpose of writing his application, seeking to apply for promotion. To add to these vitiating circumstances about this document is the fact that the application or the annexed mark-sheet were never produced in original by the Bank. To add to these vitiating circumstances about this document is the fact that the application or the annexed mark-sheet were never produced in original by the Bank. To the contrary, the Disciplinary Authority and the Appellate Authority have placed burden upon the petitioner to produce the original mark-sheet annexed to the application, which the petitioner says he never owned or ever lodged the application dated 07.08.1987, seeking officiating promotion. It has been pointed out by the learned Counsel for the petitioner that the respondents possibly secured a copy of the application dated 07.08.1987, along with some bogus copies of matriculation mark-sheets attributed to be those annexed by the petitioner, from the Police, in connection with an FIR registered against the petitioner by Smt. Premwati, who had supplied all these bogus documents to the Investigating Agency, in order to frame the petitioner. It is for the said reason that the original application dated 07.08.1987 or the other applications made, seeking promotion, were never produced as documents in original, but only photostat copy thereof. 15. It is also argued by the learned Counsel for the petitioner that at the inquiry, no witness for the establishment has been examined to prove the charges. Smt. Premwati, who laid the complaint dated 09.01.2004 against the petitioner, giving rise to the first charge-sheet, was never examined as witness. If for some reason her attendance could not be secured, it is urged that no other witness for the establishment, who had received the petitioner's application seeking promotion to the Class-III cadre annexed with the High School mark-sheet, has been examined, in order to prove that in fact, the petitioner presented the application dated 07.08.1987 along with the original mark-sheets photostat copies whereof are enclosed. Dilating on this limb of his submission, learned Counsel for the petitioner says that it is imperative in a departmental inquiry relating to a charge involving gross misconduct, which may lead to the imposition of a major penalty that witnesses on behalf of the establishment be examined to prove the charges; else a charge of this kind in the absence of witnesses proving the documents by oral evidence, cannot be sustained by the Inquiry Officer, just going through papers, that are not proved. 16. Since no one had appeared for the Bank, this Court has looked into the respondents' stand taken in the counter affidavit carefully. 16. Since no one had appeared for the Bank, this Court has looked into the respondents' stand taken in the counter affidavit carefully. It is urged there that the applications made by the petitioner, seeking promotion and annexed mark-sheets, that have been verified by the Board of High School and Intermediate Education, both appear to be forged documents, which clearly establish the charge that the petitioner had sat in the promotion examination, misrepresenting his status as a matriculate. It is further urged that the original mark-sheets would be in the petitioner's possession, inasmuch as they were returned by the Bank after the application was moved. The originals are returned to the employee concerned. In this connection, this Court has perused paragraph no. 35 of the counter affidavit. It is further stated in the counter affidavit that the petitioner declared himself to be a matriculate while applying for promotion and appeared in the departmental promotion examinations supported by mark-sheets in the years 1989, 1993, 1994, 1997, 1998, 2000 and 2001. It is said that his identity card showed him to be a matriculate as did his bio-data form filled in his own handwriting. It is also said that the petitioner has not disputed his signature on the photostat copy of the application seeking promotion, though not the contents of the application. The stand of the respondent Bank, therefore, is that in the face of these documents, it was not at all required of the Bank to examine any witness to prove the charge. The papers speak for themselves. 17. I have considered the case made out by both parties and carefully perused the record. 18. Clearly, in the opinion of this Court, it is not a case where the petitioner has admitted his guilt or accepted the charge. The fact that the written statement put in by the petitioner initially does not make a specific traverse in the precise terms of the charge, is something expected of a layman, howsoever educated he might be. The reply indicates a good enough denial of the charge; there is no admission of it. This Court does not wish to comment on the veracity of the papers relied upon by the establishment to prove the charge, because it is not the province of this Court to re-assess evidence as if it were a Court of Appeal. The reply indicates a good enough denial of the charge; there is no admission of it. This Court does not wish to comment on the veracity of the papers relied upon by the establishment to prove the charge, because it is not the province of this Court to re-assess evidence as if it were a Court of Appeal. Nevertheless, it is certainly the jurisdiction and the duty of this Court to ensure that the decision-making process conforms to the essential requirement of a fair procedure accepted by the law. 19. It is by now well nigh settled that in a departmental proceedings/domestic inquiry involving a major penalty, the charge or the charges against an employee have to be established by the employers, not by laying papers alone before the Inquiry Officer, but also examining witnesses to prove those papers, that would turn them into documentary evidence, readable against the employee. Of course, the employee has a right to cross-examine such establishment witnesses when they do appear. Mere documents produced before the Inquiry Officer by the Presenting Officer for the establishment, without being proved by parole evidence of relevant witnesses, are not documentary evidence that can be read against the charged employee. They are just idle papers, from which no conclusion could be drawn. They are no evidence at all. 20. In the present case, a perusal of the inquiry report does suggest that dates were fixed by the Inquiry Officer, where proceedings were held, but in those proceedings, no witness appeared on behalf of the employer/establishment to prove whatever documents were presented by the Presenting Officer. The Presenting Officer was certainly not a witness. He could not prove those papers and turn them into documents. The Inquiry Officer also could not draw conclusions from idle papers, which, apparently, he did, acting more like an officer of the Employer-Bank, rather than discharging the role of an impartial arbiter between the employer and the employee inquiring into the charges. Inquiry Officers, who are invariably officers of the establishment, like in the present case, must remember that in their role of an inquiry officer, they do not serve their employers. They have to require the Presenting Officer, who represents the employers, to establish the charges against the charge-sheeted employee by the civil standard or by preponderance of probability. Inquiry Officers, who are invariably officers of the establishment, like in the present case, must remember that in their role of an inquiry officer, they do not serve their employers. They have to require the Presenting Officer, who represents the employers, to establish the charges against the charge-sheeted employee by the civil standard or by preponderance of probability. In doing that, the Presenting Officer has to lead both oral and documentary evidence, particularly where the charge may entail imposition of a major penalty. 21. In the present case, no witness had appeared for the establishment to prove as to who received the application dated 07.08.1987 from the petitioner, seeking officiating promotion to a Class-III post, where he purportedly claimed to be a matriculate. If that establishment witness had appeared, he would most certainly have been asked by the defence assistant or the petitioner as to why the photostat copies of the two mark-sheets attached did not bear the petitioner's signature, assuming that the originals were returned to the petitioner. It is urged on behalf of the respondents that there could be many other questions asked of the establishment witnesses even by the Inquiry Officer. 22. This Court, though by no means intending to comment on the veracity of mere papers that were placed before the Inquiry Officer, is constrained to wonder what could have led the petitioner to annex two mark-sheets, relating to his High School Examination from the same Board. Assuming that both mark-sheets are forged, one would serve the petitioner's purpose; two mark-sheets would be suicidal. The Inquiry Officer has not at all bestowed consideration to this facet of the matter; nor have the Disciplinary Authority or the Appellate Authority. It is expected that now they would, should they choose to proceed afresh on the first charge-sheet. 23. Reverting to the issue about the procedural flaw in the departmental inquiry held, it is certainly there, in the absence of these documents being proved by the parole evidence of relevant witnesses. The Inquiry Officer, the Disciplinary Authority and the Appellate Authority, have all looked into papers that do not qualify for evidence in a departmental inquiry on a charge entailing major penalty. The conclusions of the Inquiry Officer, the Disciplinary Authority and the Appellate Authority are, therefore, all vitiated. The Inquiry Officer, the Disciplinary Authority and the Appellate Authority, have all looked into papers that do not qualify for evidence in a departmental inquiry on a charge entailing major penalty. The conclusions of the Inquiry Officer, the Disciplinary Authority and the Appellate Authority are, therefore, all vitiated. In support of the principle that in a departmental inquiry, the establishment must prove the charges by examining witnesses, in whose absence mere papers cannot be looked into by the Inquiry Officer, there is guidance of the Supreme Court in Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570 , which read: “14. Indisputably, a departmental proceeding is a quasi- judicial proceeding. The enquiry officer performs a quasi- judicial function. The charges levelled 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.” 24. To the same end, there is an eloquent statement of the law to be found in a Division Bench decision of this Court in State of U.P. v. Aditya Prasad Srivastava and another, 2017 (2) ADJ 554 (DB) (LB). In State of U.P. vs. Aditya Prasad Srivastava, where it has been held: “17. It is trite law that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in enquiry the department has to establish the charge against the employee by adducing oral as well as documentary evidence. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in enquiry the department has to establish the charge against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary.” (Emphasis by Court) 25. In view of the fact that this Court has found the Inquiry Officer to have held the petitioner guilty, merely on the basis of papers laid before him by the Presenting Officer, without any witness being examined on behalf of the establishment to prove those papers turning them into documentary evidence, the findings of the Inquiry Officer cannot be sustained. For the same reason, the impugned order passed by the Disciplinary Authority and its affirmation in Appeal must fall. This Court must add that there are some extreme oddities in evidence, to which the Disciplinary Authority and the Inquiry Officer must bestow due consideration. These have been pointed out during the course of this judgment. This course has been adopted by this Court not in any manner to fetter an independent evaluation of evidence by the Inquiry Officer and by the Disciplinary Authority, but to serve as some guidance, so that no perversity may creep in, into the conclusions of the Inquiry Officer or the Disciplinary Authority, should the respondents choose take proceedings afresh. It would be open to the respondents to hold proceedings afresh from the stage where the first charge sheet was served and its reply/written statement was put in by the petitioner. The entire inquiry would have to be undertaken afresh, in case the respondents elect to pursue that course of action. In doing that, the respondents shall bear in mind the guidance in this judgment. 26. It is clarified that this Court by these concluding remarks should not be understood to mean that the respondents are under a mandate to take fresh proceedings against the petitioner. Rather, the respondents should bear in mind that the petitioner has now a short time to superannuate, which may be one of the considerations to weigh with the respondents choosing to pursue fresh proceedings or not. Rather, the respondents should bear in mind that the petitioner has now a short time to superannuate, which may be one of the considerations to weigh with the respondents choosing to pursue fresh proceedings or not. Whichever way it be, the decision to take fresh proceedings or not to do so, would ultimately rest with the respondents. 27. In the result, this writ petition succeeds and is allowed with costs. The impugned order dated 16.07.2014 passed by the Chief Manager, Punjab National Bank, Circle Office, Pilibhit Bypass, Bareilly and the appellate order dated 29.12.2014 passed by the Circle Head/Appellate Authority, Punjab National Bank, Circle Office, Pilibhit Bypass, Bareilly are hereby quashed. The respondents are ordered to forthwith reinstate the petitioner in service and pay him current salary regularly. In case, the respondents do not elect to initiate fresh proceedings arising out of first charge sheet, the consequential benefits shall also become payable. However, in case fresh proceedings are taken, the consequential monetary benefits would depend upon the outcome of those proceedings. 28. Let this order be communicated to the Chief Manager, Punjab National Bank, Circle Office, Pilibhit Bypass, Bareilly and the Circle Head/ Appellate Authority, Punjab National Bank, Circle Office, Pilibhit Bypass, Bareilly by the Joint Registrar (Compliance).