Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 220 (GUJ)

B. B. Rajput v. Bank of Baroda

2022-02-07

A.S.SUPEHIA

body2022
JUDGMENT : A.S. Supehia, J. 1. The present writ petition has been filed seeking quashing and setting aside the impugned order dated 16.09.2003 passed by the Appellate Authority and further seeking a direction to the respondent-Bank to reinstate the petitioner on his original post and award him back wages from 16.09.2003, till the date of reinstatement. 2. The petitioner was serving as a Joint Manager in the respondent-Bank at Odhav Branch, Ahmedabad. He was suspended on 27.10.1997, in view of criminal and/or departmental proceedings contemplated against him. A criminal complaint was registered against the petitioner along with four other delinquent officers of the same Branch by the respondent-Bank before the Bank Security and Fraud Cell, Criminal Bureau of Investigation, Bombay on 11.11.1997. 2.1. On 16.07.1998, a show-cause notice was issued to the petitioner making certain allegations against him, to which, he replied on 14.08.1998. Subsequently, a charge-sheet dated 18.03.2000 was served upon the petitioner calling upon to tender his defence, however, the petitioner did not give any formal reply or file his defence statement. 2.2. Thereafter, an Inquiry Officer was appointed and accordingly, after holding the departmental inquiry, the Inquiry Officer held allegation Nos. 1, 2 and 11 as not proved, and allegation Nos. 5 and 6 were partly proved and allegation Nos. 3, 4, 7, 8, 9 and 10 were fully proved. Thus, from the eleven charges; three were proved; two were partly proved and six were fully proved. After, the petitioner was given an opportunity, the Disciplinary Authority, in exercise of powers conferred under Regulation 15(2) of the Bank of Baroda Officer Employees' (Disciplinary and Appeal) Regulations, 1976 (hereinafter referred to as "the Regulations"), imposed penalty of dismissal of the petitioner from service vide order dated 26.08.2002. 2.3. The petitioner preferred an appeal before the Appellate Authority and after hearing the petitioner, on 18.06.2003, the order of dismissal was reduced to the punishment of removal from service instead of dismissal from the service. 2.4. The petitioner preferred a review application on 17.11.2003 before the Chairman and Managing Director of the respondent-Bank, however the same was not entertained and was rejected. 2.5. On 10.05.2004, the petitioner preferred a mercy petition before the Chairman and Managing Director, however the same was also not entertained. Being aggrieved by the action of the respondent-Bank, the petitioner has filed the present writ petition. 3. Learned advocate Mr. 2.5. On 10.05.2004, the petitioner preferred a mercy petition before the Chairman and Managing Director, however the same was also not entertained. Being aggrieved by the action of the respondent-Bank, the petitioner has filed the present writ petition. 3. Learned advocate Mr. Sonal Vyas, appearing for the petitioner, at the outset, has submitted that the impugned order of removal is required to be set aside, since the inquiry has been held in violation of Regulation 10 of the Bank of Baroda Officer Employees' (Disciplinary and Appeal) Regulations, 1976, which envisages of holding common proceedings in case where two or more officers/employees are concerned. It is submitted by her that since there were other delinquents, the petitioner was singled out in the department proceedings and hence, the proceedings are required to be set aside. 3.1. It is submitted by her that the Senior Officer-Shri D.D. Trivedi, who was serving as a Senior Branch Manager was also issued a charge-sheet (Statement of Allegations) dated 18.03.2000 containing seven charges, has been imposed punishment of reduction of pay at 7 stages, however the petitioner has been removed from service. 3.2. She has further invited the attention of this Court to the various charges as well as findings of the Inquiry Officer vis-a-vis the charges for the statement of allegations issued to Shri D.D. Trivedi, who was serving as a Senior Branch Manager. She has further submitted that the charges are almost identical and hence, the petitioner could not have been imposed major penalty of removal. In support of her submissions on this issue, she has placed reliance on the judgment of the Supreme Court in the case of Lucknow K. Gramin Bank & another v. Rajendra Singh, (2013) 12 S.C.C. 372 . 3.3. The next submission she has made was that the petitioner was only supplied the xerox (photostat copy) of the documents, on which, the reliance was placed by the respondent-Bank, which were not legible and hence, he was unable to defend himself in the departmental proceedings. 3.4. Further, she has submitted that the allegation against the petitioner was that he acted in violation of instructions or circulars while acting as a Joint Manager, however, such instructions/circulars were not supplied to the petitioner. In this regard, she has placed reliance on the Regulations 6(10) of the Bank of Baroda Officer Employees' (Disciplinary and Appeal) Regulations, 1976. 3.5. 3.4. Further, she has submitted that the allegation against the petitioner was that he acted in violation of instructions or circulars while acting as a Joint Manager, however, such instructions/circulars were not supplied to the petitioner. In this regard, she has placed reliance on the Regulations 6(10) of the Bank of Baroda Officer Employees' (Disciplinary and Appeal) Regulations, 1976. 3.5. While assailing the departmental proceedings, she has also submitted that the findings recorded by the Inquiry Officer are arbitrary and hence, the impugned order is required to be set aside. 3.6. She has further relied upon the judgment of Pawankumar Agarwal v. General Manager, (2016) 15 S.C.C. 184, in support of her submissions. No further submission has been advanced by her. 4. Per contra, learned advocate Mr. Darshan Parikh, appearing for the respondent-Bank has submitted that in fact, the contention raised with regard to the similar charges or statement of allegations issued to the co-delinquent Shri Trivedi and the present petitioner, is a misnomer since in both cases, the charges are distinct in nature. He has submitted that in fact, the findings recorded in the departmental proceedings initiated qua Shri Trivedi, would suggest the Inquiry Officer as well as delinquent Mr. Trivedi, leveled the allegations against the present petitioner, who was subordinate to him. 4.1. Learned advocate Mr. Parikh, has further submitted that in fact, the petitioner did not file any defence statement to the charge-sheet and hence, the impugned order may not be set aside. Further, it is submitted by learned advocate Mr. Parikh, that in fact the petitioner has admitted the charges in the present writ petition. 4.2. Learned advocate Mr. Parikh, has submitted that no contention was raised before the Appellate Authority, which are raised before this Court and in fact, the Appellate Authority has reduced the punishment from dismissal to removal of the petitioner. Thus, the same does not require any interference of this Court. 4.3. With regard to the contention raised by the petitioner of supplying the illegible documents, it is submitted by him that in fact, the original record was lying with the CBI and the petitioner was shown true copies as well as xerox copies, during the inquiry proceedings. One of such documents is referred to by the learned advocate Mr. 4.3. With regard to the contention raised by the petitioner of supplying the illegible documents, it is submitted by him that in fact, the original record was lying with the CBI and the petitioner was shown true copies as well as xerox copies, during the inquiry proceedings. One of such documents is referred to by the learned advocate Mr. Parikh i.e. the letter dated 03.05.1996, which pertains MEX-6, which is written by the respondent-Bank to the Officiating Senior Manager of the Odhav Branch, in which the petitioner was serving fixing the limitation of Rs. 5,00,000/- in case of cash transaction and Rs. 10,00,000/- in case of the transaction by way of cheque. While referring to each and every charges leveled against Shri Trivedi, he has submitted that the same would reflect that in fact the petitioner has acceded his authority in dealing with one firm viz. M/s. Mira Builders. It is submitted by him that because of action of the petitioner and other delinquents, an amount approximately Rs. 3 crores of the respondent-Bank was jeopardized. 4.4. Learned advocate Mr. Parikh in support of his submissions has placed reliance on the decision of the Supreme Court in case of Disciplinary Authority-cum Regional Manager v. Nikunja Bihari Patnaik, (1996) 9 S.C.C. 69 and for the proposition of law that if an employee of the bank accedes to his powers and commits a misconduct, even though no loss is caused to the bank, the same can be said to be a serious and grave misconduct. 4.5. Reliance is placed by Mr. Parikh, on the judgment of the Apex Court rendered in the case of Tara Chand Vyas v. Chairman & Disciplinary Authority and others. (1997) 4 S.C.C. 565 and has submitted that any conduct of a Bank employee, which adversely affects the achievements of the Bank, should be meted out with the disciplinary action. 4.6. Reliance is also placed on the judgment of the Supreme Court in the case of General Manager (P), Punjab and Sind Bank and others v. Daya Singh, (2010) 11 S.C.C. 233 , and has submitted that the judicial review in case of departmental proceedings is very limited. 4.7. Learned advocate Mr. 4.6. Reliance is also placed on the judgment of the Supreme Court in the case of General Manager (P), Punjab and Sind Bank and others v. Daya Singh, (2010) 11 S.C.C. 233 , and has submitted that the judicial review in case of departmental proceedings is very limited. 4.7. Learned advocate Mr. Parikh, has also placed reliance on the judgment rendered on 10.02.2020 in Special Civil Application No. 11869 of 2005, which is confirmed by the Division Bench in Letters Patent Appeal No. 48 of 2021 vide order dated 11.08.2021. 4.8. Finally, learned advocate Mr. Parekh, has placed reliance on the judgment of the Supreme Court in the case of Union of India v. P. Gunasekaran, AIR 2015 S.C. 545 , wherein the Supreme Court has prescribed the parameters of judicial review to be exercised by the High Court while exercising the powers under Articles 226 and 227 of the Constitution of India. 5. I have heard the learned advocates for respective parties to the lis. I have also perused the relevant documents. 6. As noticed hereinabove, the petitioner was serving as a Joint Manager in the respondent-Bank. He was issued a charge-sheet on 18.03.2000 inter alia for 11 charges. The petitioner did not file any defence statement to the charge-sheet, however, subsequently, he has participated in the departmental proceedings. After holding the departmental proceedings, allegation Nos. 1, 2 and 11 were not proved, whereas allegation Nos. 5 and 6 were partly proved and allegation Nos. 3, 4, 7, 8, 9 and 10 were fully proved. After holding the departmental proceeding, the petitioner is dismissed from bank service by the order dated 26.08.2002. In the appeal filed by the petitioner, the Appellate Authority by order dated 16.09.2003 reduced the punishment from dismissal to removal. The review as well as mercy petition were also rejected thereafter. 7. The petitioner has challenged the impugned order on three counts, one of which is violation of regulation 10 of the Regulations, 1976. The Regulation 10 of the Regulations, reads as under. "10. Common Proceedings. Where two or more officers employees are concerned in a case, the authority competent to impose a major penalty on all such officer employee may make an order directing that disciplinary proceedings against all of them may be taken in a common proceeding." 8. The Regulation 10 of the Regulations, reads as under. "10. Common Proceedings. Where two or more officers employees are concerned in a case, the authority competent to impose a major penalty on all such officer employee may make an order directing that disciplinary proceedings against all of them may be taken in a common proceeding." 8. It is the case of the petitioner that since the other co-delinquents are involved in the departmental proceedings, the same should have been held common. A bare perusal of the Regulation 10 would indicate that the same does not mandate of holding the departmental inquiry together in a case where more than two employees are involved. The expression used is 'may' and not 'shall". In the present case, it is not in dispute that there were in fact four co-delinquent officers along with the petitioner, who were embroiled in the fraud committed with the respondent-Bank and the investigation was also handed over to the CBI on 11.11.1997. In these circumstances, merely because the proceedings were held separate, the same would not in any manner vitiate the departmental proceedings. It is within the domain of the respondent-Bank whether it would like to proceed individually or differently, looking to the seriousness and complexity of the charges/misconduct. 9. Reliance placed by the petitioner in this regard on the judgment of the Supreme Court in the case of Rajendra Singh (supra) will not rescue the case of the petitioner, since the Supreme Court was dealing with the employees against whom common departmental inquiry was held. In the present case, there are two separate departmental inquiries, and hence, the imposition of punishment on two delinquents which are dealt separately would not interject each other and it is always left on discretion of the disciplinary authority to impose the punishment looking to the proved charges. So far as the reliance placed by the learned advocate Ms. Vyas on the judgment of Pawankumar Agarwal (Supra), the same does not apply in the facts of this case. 10. The next contention which is raised is with regard to supply of illegible documents. It is not the case of the petitioner that he was absolutely not given the documents, but the documents were illegible. The petitioner was given all the opportunities to examine the original documents and true copies of such documents during the departmental proceedings. 10. The next contention which is raised is with regard to supply of illegible documents. It is not the case of the petitioner that he was absolutely not given the documents, but the documents were illegible. The petitioner was given all the opportunities to examine the original documents and true copies of such documents during the departmental proceedings. The inquiry officer has recorded and dealt with all the statements made by the petitioner in his defence. Thus, the contention raised by the petitioner in this regard, does not merit acceptance. 11. So far as the contention raised by the petitioner of imposing lesser punishment to the Senior Branch Manager Shri D.D. Trivedi of reduction of pay of 7 stages and meeting out a discriminatory treatment to him also does not merit acceptance since this Court has perused the charges leveled against the petitioner as well as Mr. Trivedi. 12. Though, it is noticed by this Court that the charges leveled against the petitioner as well as against Shri Trivedi, emanate from the transactions with one M/s. Mira Builders, the charges operate in different fields and different domain. Shri Trivedi was serving as a Senior Branch Manager, while the petitioner was an Joint Manager. The operational powers of both the officers are different and distinct. The duties of Shri Trivedi, who was a Senior Branch Manager are different from the duties of the petitioner, who was appointed as an Officiating Joint Manager. The petitioner was subordinate to Shri Trivedi and it is the case of Shri Trivedi that he acted upon the advice of the present petitioner. Hence, the charges are leveled against them looking to their dereliction of duties. Thus, the contention of meeting out a discriminatory treatment does not merit acceptance. 13. This Court, while exercising the powers under Article 226 of the Constitution of India, for judicial review of the departmental proceedings cannot encroach upon the powers exercised by the disciplinary authority or appellate authority, unless it is shown that the proceedings are absolutely contrary to the regulations or have been initiated and conducted with mala fide intention. At this stage, it would be appropriate to refer to the decision of the Supreme Court in the case of P. Gunasekaran (supra), the Apex Court has observed thus:- "17. At this stage, it would be appropriate to refer to the decision of the Supreme Court in the case of P. Gunasekaran (supra), the Apex Court has observed thus:- "17. The Apex Court in the case of P. Gunasekaran (Supra) has laid down the parameters with regard to the reappreciation of the evidence and interference in the punishment order imposed by the Disciplinary Authority. The Apex Court has held thus: "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, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. 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 re-appreciation 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. Under Article 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate 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." 14. It is specifically held by the Apex Court that under Articles 226 and 227 of the Constitution of India, the High Court shall not re-appreciate the evidence and interfere with the conclusions of the inquiry and cannot go into the adequacy of the evidence or reliability of the evidence and interfere with the legal evidence on which findings can be based and correct the error of fact however grave it may appear to be, and the High Court cannot go into proportionality of punishment unless it shocks its conscience. 15. In the recent decision of Supreme Court in the case of Deputy General Manager (Appellate Authority) and others v. Ajai Kumar Srivastava. (2021) 2 SCC 612 , the Supreme Court has reiterated the parameters with regard to the judicial review by the Constitution Court. The Supreme Court has observed thus: "24. It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact. 25. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact. 25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the Court is to examine and determine: (i) whether the enquiry was held by the competent authority; (ii) whether rules of natural justice are complied with; (iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion. 26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry. 27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings. 28. The Constitutional Court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained." 16. In the present case, it cannot be said that the disciplinary authority has established the charges by acting unreasonably or the charges are proved without their being any evidence on record. In the present case, it cannot be said that the disciplinary authority has established the charges by acting unreasonably or the charges are proved without their being any evidence on record. This Court does not find that the proceedings are tainted with any vice of malafide or perversity. As recorded by the Supreme Court in paragraph No. 25 of the judgment in the case of Ajai Kumar (supra), the Court has only to examine three factors and as per the opinion of this Court, after examining the entire findings of the Inquiry Officer as well as the order passed by the disciplinary proceedings, all three principles, as referred hereinabove are satisfied. Hence, this Court, while exercising the powers under Article 226 of the Constitution of India, does not think appropriate to interfere with the punishment order. 17. In view of the foregoing reasons and analysis, the writ petition fails, the same is dismissed. RULE is discharged.