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2024 DIGILAW 1505 (CAL)

Central Bank of India v. Sima Dutta

2024-08-29

DEBANGSU BASAK, MD.SHABBAR RASHIDI

body2024
JUDGMENT : (Debangsu Basak, J.) : 1. Appeal is at the behest of the employer and directed against the judgment and order dated November 27, 2017 passed in W.P. 21196 (W) of 2017. 2. Learned Senior Advocate appearing for the appellant submits that, a selection process for engagement of safai Karmachari/office staff was initiated by an office order dated August 14, 2012, in which, the private respondent/writ petitioner participated. He points out to one of the eligibility criteria prescribed in such selection process which is educational qualification of Class-VIII pass. He submits that, the private respondent applied as a Class VIII pass candidate and submitted documents in support of such claim. The application for appointment by the private respondent was processed. She was issued a provisional appointment by a letter dated February 1, 2013. He refers to Clause 8 of such letter and submits that, such appointment was subject to termination if it revealed that, any information/particulars furnished by the private respondent to the Bank in the application for securing appointment was materially incorrect or false. 3. Learned Senior Advocate appearing for the appellant submits that, in the selection process, private respondent submitted a transfer certificate to establish that she passed Class-VIII. Such transfer certificate was verified at the instance of the Bank. Bank learnt that, the private respondent was not a student of the Madrasah at which, she claims she studied, through the transfer certificate. Consequently, a disciplinary proceeding was initiated as against the private respondent. 4. Learned Senior Advocate appearing for the appellant draws the attention of the Court to the transfer certificate, the noting on such transfer certificate, attendance register of the concerned Madrasah as also other documents with regard to the so-called educational qualification of the private respondent. He submits that, the Teacher-in-Charge of the concerned Madrasah was added as a party respondent in the writ petition filed at the behest of the private respondent. He draws the attention of the Court to the averments made by the Teacher-in-Charge of such Madrasah in the affidavit-in-opposition filed in the writ petition. He submits that, the fact that the transfer certificate was forged, stood corroborated by the Teacher-in-Charge in the affidavit filed by him in the writ petition. 5. Learned Senior Advocate appearing for the appellant submits that, the original attendance register was produced in Court pursuant to the order dated July 10, 2024 passed by this Court. He submits that, the fact that the transfer certificate was forged, stood corroborated by the Teacher-in-Charge in the affidavit filed by him in the writ petition. 5. Learned Senior Advocate appearing for the appellant submits that, the original attendance register was produced in Court pursuant to the order dated July 10, 2024 passed by this Court. Such attendance register was inspected in Court. He points out that, on such inspection also it was found that, name of the private respondent was entered as serial no.51. Thereafter, next page also started with serial no.51 with another candidate being named therein. He submits that, the attendance register itself showed that, the handwriting and the ink used were different in relation to the other names written in the attendance register up to serial no.50 and from the second serial no.51 onwards. 6. Learned Senior Advocate appearing for the appellant submits that, learned Single Judge, converted itself to a Court of appeal, reappraised the evidence led in the enquiry proceeding and substituted its own findings with regard to the charge leveled in the disciplinary proceedings. He submits that, a Writ Court cannot convert itself to a Court of appeal, reappreciate the evidence and arrive at a different conclusion. He contends that, findings returned in the enquiry as well as disciplinary proceedings are plausible, based on sufficient evidence and should not be altered by a Writ Court. 7. Learned Senior Advocate appearing for the appellant submits that, learned Single Judge erred in setting aside the order passed in the disciplinary proceeding as also quashing the entire disciplinary proceeding by the impugned judgment and order. 8. Learned advocate appearing for the private respondent submits that, the appellant proceeded with a closed mind since inception. He draws the attention of the Court to the charge-sheet issued in the disciplinary proceedings. He submits that, the tenor of the contents of such charge-sheet will establish that, the appellant proceeded with a closed mind as against the private respondent. 9. In this context, learned advocate for the private respondent draws the attention of the Court to the preliminary enquiry report. He submits that, between the preliminary enquiry report and the issuance of the charge-sheet no material event occurred for the disciplinary authority to return such findings as contained in the charge-sheet. 10. 9. In this context, learned advocate for the private respondent draws the attention of the Court to the preliminary enquiry report. He submits that, between the preliminary enquiry report and the issuance of the charge-sheet no material event occurred for the disciplinary authority to return such findings as contained in the charge-sheet. 10. Referring to the terms of appointment of the private respondent, learned advocate appearing for the private respondent submits that, the appointment of the private respondent was provisional and subject to receipt of clear character/antecedents report from the police authorities amongst others. He refers the minutes of the disciplinary proceedings. He submits that, in the disciplinary proceedings, the private respondent sought a number of documents. He points out that, in particular, request for three sets of documents were turned down by the enquiry authority, and according to him, wrongfully. He submits that, police verification report was obtained by the appellant and was available to the appellant, in respect of the private respondent which, although asked for in the disciplinary proceedings was not provided to the private respondent. He submits that, the denial of the documents sought for resulted in the breach of principles of natural justice. According to him, such breach of principles of natural justice also caused prejudice to the private respondent. 11. Learned advocate appearing for the private respondent submits that, in the enquiry report, the enquiry authority was pleased to find the charge levelled as against the private respondent to be proved. This enquiry report dated March 30, 2017 was not shared with the private respondent. Prior thereto, the disciplinary authority came to a finding that the charge levelled against the private respondent stood proved on the basis of the enquiry report. In support of such contention he refers to the letter dated March 31, 2017 issued by the disciplinary authority by which the enquiry report was forwarded to the private respondent. 12. Learned advocate appearing for the private respondent submits that, the private respondent passed Class-X examination. A certificate with regard thereto was placed before the disciplinary authority for consideration. Disciplinary authority did not take the same in the consideration while disposing of the reply to the show-cause notice issued subsequent to the enquiry report. 13. 12. Learned advocate appearing for the private respondent submits that, the private respondent passed Class-X examination. A certificate with regard thereto was placed before the disciplinary authority for consideration. Disciplinary authority did not take the same in the consideration while disposing of the reply to the show-cause notice issued subsequent to the enquiry report. 13. Learned advocate appearing for the private respondent draws the attention of the Court to the fact that, the private respondent applied under the Right to Information Act, 2005 with regard to the validity and authenticity of the transfer certificate produced in the enquiry proceeding, in relation to the private respondent. He submits that, the response to the Right to Information Act, 2005 would also establish the authenticity, legality and validity of the transfer certificate issued by the concerned Madrasah to the effect that the private respondent studied up to Class VIII in such Madrasah. 14. Learned advocate appearing for the private respondent relies upon (2010) 13 Supreme Court Cases 427 (Oryx Fisheries Private Limited versus Union of India and Others) for the proposition of closed mind and when such closed mind vitiates the decision taken. 15. Learned advocate appearing for the private respondent relies upon (1993) 4 Supreme Court Cases 727 (Managing Director, ECIL, Hyderabad & others versus B. Karunakar and Others) for the proposition that, denial of right of copy of the enquiry report amounts to breach of principles of natural justice and is violative of Articles 14 and 21 of the Constitution of India. 16. Relying upon (1978) 1 Supreme Court Cases 405 (Mohinder Singh Gill and Another versus The Chief Election Commissioner, New Delhi and Others) learned advocate appearing for the private respondent submits that, the appellant cannot improve its case on the basis of materials obtained subsequent to the conclusion of the enquiry proceedings. 17. Petitioner was engaged in the Nishiganj branch office of the appellant for the purpose of cleaning and sweeping the Branch Office on contractual basis. A drive was undertaken by the appellant for the purpose of recruitment of permanent Safai Karmachari cum Sub Staff by a writing dated August 14, 2012. Such recruitment process, inter alia, prescribed that the educational eligibility of an aspirant must be Class-VIII. 18. Private respondent participated in such selection process. A drive was undertaken by the appellant for the purpose of recruitment of permanent Safai Karmachari cum Sub Staff by a writing dated August 14, 2012. Such recruitment process, inter alia, prescribed that the educational eligibility of an aspirant must be Class-VIII. 18. Private respondent participated in such selection process. In order to establish her educational eligibility to participate in the selection process, private respondent relied upon a Transfer Certificate issued by a Madrasah. Private respondent was granted provisional appointment as Safai Karmachari by a writing dated August 14, 2012. One of the conditions prescribed was that, in the event, it revealed at any time after the appointment that the information/particulars furnished by the private respondent was materially incorrect or false, then the services of the private respondent would be terminated. Private respondent was subsequently confirmed to the post by a writing dated August 14, 2013. 19. Appellant undertook an exercise of enquiring into the authenticity of the transfer certificate submitted by the private respondent at the time of recruitment process. Appellant learnt on such enquiry that such transfer certificate was fake. Consequently, a preliminary inquiry was undertaken. Appellant issued a show cause notice dated February 11, 2016 alleging that the school leaving certificate dated October 25, 2007 submitted by the private respondent was not genuine. Private respondent submitted a response thereto by a writing dated April 7, 2016. 20. Appellant decided to initiate a disciplinary proceeding and issued a charge sheet dated September 26, 2016 against the private respondent. Sole charge was the genuinity of the transfer certificate. In such charge sheet dated September 26, 2016, the Disciplinary Authority, stated that, the school leaving (transfer) certificate dated October 25, 2007 submitted by the private respondent as part of document for obtaining appointment on February 8, 2013 was found not to be genuine during the Bank’s internal investigation. 21. The initial show cause notice dated February 11, 2016 issued to the private respondent stated that, such transfer certificate dated October 25, 2007 appears to be not genuine. The user of the words between initial show cause notice dated February 11, 2016 and the charge sheet dated September 26, 2016 is contended to demonstrate the closed mind of the Disciplinary Authority. 22. With respect, we are unable to subscribe to such contention of the private respondent. The user of the words between initial show cause notice dated February 11, 2016 and the charge sheet dated September 26, 2016 is contended to demonstrate the closed mind of the Disciplinary Authority. 22. With respect, we are unable to subscribe to such contention of the private respondent. The authorities kept the issue of the genuinity of the Transfer Certificate dated October 25, 2007 submitted by the private respondent during the selection process, in support of her claim of possessing the requisite educational qualification open both at the stage of the issuance of the show cause notice dated February 11, 2016 as well as in the charge sheet dated September 26, 2016. The Charge sheet merely stated that, the Transfer Certificate was not found to be genuine during Bank’s internal investigation. Information was required to be disseminated in the charge sheet in order to ensure that the charge levelled as against the private respondent was specific and was capable of being understood by the private respondent. 23. Private respondent understood the charges levelled as against her to the effect that, the Transfer Certificate that she submitted during the selection process was not genuine. She sought to meet such charge by submitting a response to the charge sheet dated September 26, 2016. She participated in the inquiry proceedings. She cross-examined the management witnesses which were produced. She on her own produced two defence documents. 24. During inquiry proceedings, a request was made by the private respondent for certain documents. In particular, three sets of documents sought by the private respondent were denied by the Inquiry Officer. The documents, production of which, was denied, are, certificate of completion of minimum 45 days work, police verification report and the inspection report of the Bank. Inquiry Officer ascribed reasons as to why, such documents were not required in the inquiry proceeding. According to Inquiry Officer, such documents were not relevant to the issue in the inquiry proceedings. 25. We are not in a position to arrive at a finding that, the Inquiry Officer did not consider the request for documents made by the private respondent or did not ascribe any reason while dealing with such request in the negative. Inquiry Officer dealt with 20 requests for production for documents made by the private respondent and ascribed reasons with regard to every individual item as to why, the prayer was disallowed. Inquiry Officer dealt with 20 requests for production for documents made by the private respondent and ascribed reasons with regard to every individual item as to why, the prayer was disallowed. Specifically, so far as, certificate for completion of minimum 45 days work was concerned, Inquiry Officer found the same not to be either directly or indirectly relevant to the charge sheet so also the police verification report and the inspection report of the Bank. 26. Breach of principles of natural justice, ipso facto will not vitiate the decision arrived at in a disciplinary proceeding unless, the delinquent is in a position to establish that such breach resulted in a corresponding prejudice to such delinquent. 27. In the facts of the present case, the issue was the genuinity of a Transfer Certificate which the private respondent produced at the time of the selection process. 28. None of the three documents in relation to which the Inquiry Officer found to be irrelevant, is shown to throw any light on the genuinity of the Transfer Certificate. Therefore, decision that such documents are not relevant is a plausible one and cannot be faulted. 29. So far as the Transfer Certificate and its genuinity is concerned, the Inquiry Officer returned a finding with regard thereto. It found such document to be fake. In order to satisfy our conscience with regard to such a finding arrived at by the Inquiry Officer, we, with the consent of the parties before us directed, by an order dated July 10, 2024 for production of the original attendance register of the Madrasah concerned. Such attendance register was produced before us. Inspection of original attendance register was given to the learned advocates for the parties in Court. 30. On perusal of such attendance register, we found that, the name of the private respondent was written therein as Serial No. 51. Ink and hand writing are different to the ink and hand writing of the names of other persons in such attendance register. In fact, there is another person with Serial No. 51 in the same attendance register. Serial No. 51 was written at a space which was available between the original Serial No. 50 and 51. Insertion of the name of the private respondent between original Serial No. 50 and 51 is apparent to the naked eye. 31. In fact, there is another person with Serial No. 51 in the same attendance register. Serial No. 51 was written at a space which was available between the original Serial No. 50 and 51. Insertion of the name of the private respondent between original Serial No. 50 and 51 is apparent to the naked eye. 31. In our view, name of the private respondent was inserted into with attendance register. At least, that is one of the plausible views that can be taken on appraisal of the attendance register produced in Court. 32. Teacher-in-charge, who was shown the Transfer Certificate at the time of initial inquiry by the appellant, noted that, the same appeared not to be a genuine. This statement recorded in the handwriting of the Teacher-in-Charge was corroborated by the same Teacher-in-Charge in the affidavit-in-opposition which, he used, in the writ petition filed by the private respondent. Private respondent added the Teacher-in-Charge of the Madrasah as a respondent in the writ petition whereupon the Teacher-in-Charge filed such affidavit. 33. In such view, the ratio laid down in Mohinder Singh Gill (supra) is not attracted. It is not a case of an administrative decision is being sought to be justified on the basis of other materials. Here is a case where, the private respondent herself made the Teacher-in-Charge as a party to the writ petition filed by her where such Teacher-in-Charge corroborated his earlier statement, on affidavit. 34. In Oryx Fisheries Private Limited (supra), the charge sheet in the facts and circumstances of such case was found to be issued with a closed mind. For the reasons ascribed above, in the facts and circumstances of the present case, we are not in a position to hold that the charge sheet issued was with a closed mind. 35. In B. Karunakar and Ors. (supra), the employees’ right to receive the enquiry report prior to submitting a response to the disciplinary authority was found to be violated. Such facts and circumstances do not exist in the present case. The enquiry report was shared with the private respondent. Private respondent made a detailed response thereto. Private respondent also introduced new fact in her response which was considered by the disciplinary authority. 36. As a Writ Court, we are not concerned with the sufficiency of the evidence but the existence of some evidence. The enquiry report was shared with the private respondent. Private respondent made a detailed response thereto. Private respondent also introduced new fact in her response which was considered by the disciplinary authority. 36. As a Writ Court, we are not concerned with the sufficiency of the evidence but the existence of some evidence. In the facts and circumstances of the present case, there exists evidence which allows a plausible view as taken by the disciplinary authority. As a Writ Court, we are not required to act as a Court of Appeal, reappraise evidence and substitute the finding that is arrived at in the disciplinary proceeding with our own view. 37. Private respondent claimed in the disciplinary proceeding that she passed Class X. Such pass certificate is of no consequence since the charge was one of submission of a fake transfer certificate. Significantly, she did not pass Class X from the same institution. Although she is a resident of West Bengal she claims that she passed Class X as a private student from Madhya Pradesh. 38. In such circumstances, we set aside the impugned judgment and order of the learned Single Judge dated November 27, 2017. 39. F.M.A. 20 of 2019 is allowed. 40. In view of the disposal of the appeal, the application being CAN 3 of 2024 is also disposed of. 41. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. 42. I agree. (Md. Shabbar Rashidi, J.)