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2022 DIGILAW 848 (MP)

Dinesh Kumar Gupta v. Chhetriya Gramin Bank

2022-06-23

RAVI MALIMATH, VISHAL MISHRA

body2022
JUDGMENT Vishal Mishra, J. - Present Writ Appeal has been filed assailing the order dated 06.02.2006 passed by learned Single Judge in Miscellaneous Petition No.4322 of 1993 dismissing the petition on merits. 2. Facts giving rise to the litigation are that the appellant was posted as Branch Manager at Nandarbad Branch, wherein, he had sanctioned a loan in contravention to the procedure prescribed by the Bank. The appellant has not properly scrutinized the cases and violated the instructions issued by the respondent/Bank from time to time. A decision was taken to initiate departmental enquiry against him and a charge-sheet was issued to the appellant levelling charges that without proper scrutiny and without following the procedure and the guidelines, he has disbursed the loan which appears to be suspicion. He was placed under suspension on 07.04.1984 and a charge-sheet was issued on 24.09.1985. 3. An application was filed by the appellant that a criminal case has been registered against him and the same is pending consideration, therefore, the departmental proceedings be stayed. It was further stated that charges levelled against the appellant are vague. There was no proper explanation by the disciplinary authority regarding the charges and the material on which the disciplinary authority has placed reliance was not supplied to the appellant. It is stated that the record was voluminous and a very short time was granted to the appellant to inspect the record and take notes of the document by visiting the said branch, which does not amount to giving proper opportunity of hearing. It was virtually not possible to the appellant to go through such a voluminous record in a short time. The enquiry officer ordered to nominate a defence assistant to any person who is an employee of the bank. The appellant sought liberty to nominate a person out of the employees of the bank. After conclusion of the departmental enquiry, a punishment of dismissal from service was imposed upon the appellant on 25.03.1991. The same was assailed by the appellant by filing an appeal, which was rejected 04.12.1991. It is argued that none of the grounds raised by the appellant were considered by the authority. No prosecution/management witnesses were examined and directly the enquiry officer has started putting questions on the appellant and such procedure is unknown to law. The same was assailed by the appellant by filing an appeal, which was rejected 04.12.1991. It is argued that none of the grounds raised by the appellant were considered by the authority. No prosecution/management witnesses were examined and directly the enquiry officer has started putting questions on the appellant and such procedure is unknown to law. The appellant was further not permitted to bring assistance of his choice, therefore, there was denial of principle of natural justice. No show cause notice was issued to the appellant with respect to finding of the Enquiry Officer. Therefore, the entire procedure adopted by the authority was perse illegal and unknown to law. The appellant assailed the order before this Court by filing miscellaneous petition, which was dismissed vide impugned order dated 06.02.2006. Hence, the present writ appeal is preferred. 4. It is argued by learned counsel for the appellant that learned writ Court has not taken into consideration the grounds which have been raised by the appellant and only on the basis of conjuncture and surmises, the impugned order has been passed. Learned writ Court has failed to appreciate that non-supplying of the documents to the appellant on which reliance has been placed by the authority, was perse illegal and same cannot said to be done after following the principle of natural justice and fair play. It is argued that the appellant was honorably acquitted in the criminal case, virtually on the same set of evidence, therefore, the aforesaid aspect ought to have been considered by the disciplinary authority while considering the case of the appellant in the departmental enquiry. Placing reliance upon the judgment of Hon'ble Supreme Court in the case of Savai Singh vs. State of Rajasthan reported in AIR 1986 SC 995 , Union of India and others vs. V.K. Girdonia, reported in 2003(1) MPLJ 387 and Managing Director, ECIL Hyderabad and others vs. B. Karunakar and others, reported in 1993(4) SCC 727 , he has prayed for quashment of the impugned order. 5. Per contra, learned counsel appearing for the respondents has vehemently opposed the contentions and supported the impugned order. It is argued that the appellant was in service in the banking department and strict rules are required to be followed by the employees while considering the cases for disbursement of the loan as the same involves money. 5. Per contra, learned counsel appearing for the respondents has vehemently opposed the contentions and supported the impugned order. It is argued that the appellant was in service in the banking department and strict rules are required to be followed by the employees while considering the cases for disbursement of the loan as the same involves money. The appellant, without following the procedure and guidelines issued by the respondent/Bank from time to time with respect to disbursement of the loan, has disbursed the loan to the persons and the charges levied against him were found proved in the departmental enquiry. It is further contended that the appellant duly participated in the departmental proceedings, assistant was provided to him, the permission was granted to the appellant to examine the record and note down the points on which he wants to rely upon. Thus, full participation of the petitioner is reflected from the record of the departmental proceeding. The order passed by the disciplinary authority was affirmed by the appellate authority and by the writ Court, therefore, there is no scope of interference in the order of punishment as the same amounts to judicial review and in the cases of departmental enquiry, the same is not permissible, until and unless any jurisdictional error, malafide or colourable exercise of powers is being pointed out by the employee. The appellant could not point out any jurisdictional error or no malafide has been alleged against the employer, therefore, the impugned order cannot be interfered with. He has placed reliance upon a recent judgment of Hon'ble Supreme Court in the case of Union of India and others vs. Managobinda Samantaray (Civil Appeal Nos.1622-1623 of 2022 decided on 24.02.2022) as well as in the case of Pravin Kumar vs. Union of India reported in (2020) 9 SCC 471 . 6. Heard learned counsel for the parties at length and perused the record. 7. From the perusal of the record, it is seen that during service in the respondent/Bank, a departmental enquiry was initiated and a charge-sheet was issued to the appellant levying four charges. All the charges were found to be proved against the appellant in the departmental enquiry. The appellant has actively participated in the departmental enquiry proceedings, he was permitted to examine the records and permitted to note down the points from the record. The assistant was provided to the appellant, who cross-examined the witnesses. All the charges were found to be proved against the appellant in the departmental enquiry. The appellant has actively participated in the departmental enquiry proceedings, he was permitted to examine the records and permitted to note down the points from the record. The assistant was provided to the appellant, who cross-examined the witnesses. No procedural flaw can be pointed out in the entire departmental enquiry, except the arguments that no proper opportunity of hearing was granted and the documents on which reliance were placed were not supplied to him. But the fact remains that the authority has permitted the appellant to examine the entire record. The appellant could not point out that what prejudice is caused to him by non-supply of documents. 8. After completion of the departmental enquiry, the authority had arrived at a conclusion that all four charges were found to be proved against the appellant and, therefore, punishment of dismissal from service was an appropriate one. Accordingly, the same was imposed upon the appellant vide order dated 25.03.1991. The appellant authority as well as the writ Court have affirmed the order of punishment regarding dismissal from service. 9. The law is well settled with respect to departmental proceedings as scope of interference in the case of departmental proceedings is very limited. Hon'ble Supreme Court in the case of Managobinda Samantaray (supra) has held as under: '9. Impugned judgment by the Division Bench is difficult to sustain as it equates appellate power under Rule 52 of the CISF Rules, 2001, with power of judicial review exercised by constitutional courts. Rule 523 of the CISF Rules, 2001 empowers the appellate authority to examine whether the penalty imposed is excessive, adequate or inadequate and pass consequential order confirming, enhancing, reducing or setting aside the penalty. Rule 52 - Consideration of appeals - (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of rule 33 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. Rule 52 - Consideration of appeals - (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of rule 33 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. (2) In the case of an appeal against the order imposing any of the penalties specified in rule 34, or enhancing any penalty imposed under the said rules, the appellate authority shall consider - (a) Whether the procedure laid down in these rules has been complied with and if not, whether such non- compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) Whether the findings of the disciplinary authority are warranted on the basis of the evidence on the record ; and (c) whether the penalty or the enhanced penalty imposed is excessive, or adequate, or inadequate and pass orders; (i) Confirming, enhancing, reducing or setting aside the penalty; or (ii) Remitting the case to the authority which imposed or enhanced the penalty, or to any other authority with such direction as it may deem fit in the circumstances of the case. (iii) No order imposing enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity as far as may be in accordance with the provisions of rule 37, of making a representation against such enhanced penalty. Provided that - (i) If such enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (i) to (v) of rule 34 and an inquiry under rule 36 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 39, itself hold such an inquiry or direct that such inquiry be held in accordance with rule 36 and thereafter on a consideration of the proceedings of such inquiry make such orders as it may deem fit; and (ii) If the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clause (i) to (v) of rule 34 and an inquiry under rule 36 has already been held in the case, the appellate authority shall make such orders as it may deem fit. In the present case, the procedure requiring issue of show-cause notice and compliance with the principles of natural justice is made. Quantum of punishment is within the discretionary domain and the sole power of the decision-making authority once the charge of misconduct stands proved. Such discretionary power is exposed to judicial interference if exercised in a manner which is grossly disproportionate to the fault, as the constitutional courts while exercising the power of judicial review do not assume the role of the appellate authority. Writ jurisdiction is circumscribed by limits of correcting errors of law, procedural error leading to manifest injustice or violation of principles of natural justice. The decision are also disturbed when it is found to be ailing with perversity. On the question of quantum of punishment, the court exercising the power of judicial review can examine whether the authority has been a reasonable employer and has taken into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and excluded irrelevant matters. In the context of quantum of punishment these aspects are examined to consider whether there is any error in decision making process. On merits of the quantum of punishment imposed, the courts would not interfere unless the exercise of discretion in awarding punishment is perverse in the sense the punishment imposed is grossly disproportionate.' 10. In the case of Union of India and others vs. Pravin Kumar (supra), the Hon'ble Supreme Court has held as under: '28. It is thus well settled that the Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority'. 11. In the case of Union of India and others vs. P. Gunasekaran reported in (2015) 2 SCC 610 , the Hon'ble Supreme Court has held as under: '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. 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.' 12. From the aforesaid settled proposition of law, it is apparently clear that scope of interference is limited in the cases of departmental enquiry proceedings and it virtually amounts to judicial review which can only be made in cases where jurisdictional error or malafide on the part of the authority can be shown by the employee. 13. From the aforesaid settled proposition of law, it is apparently clear that scope of interference is limited in the cases of departmental enquiry proceedings and it virtually amounts to judicial review which can only be made in cases where jurisdictional error or malafide on the part of the authority can be shown by the employee. 13. Services in the banking sector involves monetary transaction, therefore, employees should be very cautious in dealing with the cases. Slightest of negligence on the part of an employee can be of fatal consequences. In the present case, disbursement of loan made by the appellant was found to be illegal without following the procedure and guidelines prescribed by the bank. Therefore, he was punished from dismissal from service. Punishment imposed is not disappropriate one, looking to the services of the banking sector. 14. In the present case, the appellant has failed to demonstrate any jurisdictional error or any procedural flaw in the departmental enquiry and has not alleged any malafide against the employer nor the person has been impleaded by name to prove factum of malafide. In such circumstances, the order passed by the disciplinary authority, appellate authority and the Writ Court are just and proper and does not call for any interference in this writ appeal. 15. The appeal sans merits and is accordingly dismissed. No orders as to cost.