Uttarakhand High Court
Dheeraj Singh Bisht vs Chairman Cum Managing Director on 28 June, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 314 of 2021
Dheeraj Singh Bisht .....Petitioner
Versus
Chairman Cum Managing Director,
Punjab National Bank and others ...Respondents
Present:-
Mr. H.C. Bisht, Advocate for the petitioner.
Mr. V.K. Kohli, Senior Advocate, assisted by Mr.
Kanti Ram Sharma, Advocate for the respondents.
JUDGMENT
Hon'ble Ravindra Maithani, J.(Oral) The challenge in this writ petition is made to the enquiry report dated 15.04.2020; the charge sheet dated 19.12.2019; the order dated 23.04.2020, by which the petitioner was compulsorily retired with superannuation benefits; and order dated 29.12.2020, passed in the appeal dismissing the departmental appeal preferred by the petitioner.
2. Facts necessary to appreciate the controversy, briefly stated, are as follows. The victim was working in a Branch of Punjab National Bank. 2 The petitioner was also working in the same branch. The victim made a complaint against the petitioner on 06.11.2019 with regard to sexual harassment done by the petitioner. Particularly, two incidents were reported, namely, 30.10.2019 and 04.11.2019. There was an Internal Complaints Committee ("ICC") in the bank. The ICC took up the matter, recorded the statements of the witnesses, collected other materials and submitted its report on 06.12.2019. The ICC concluded as follows:-
"1. The allegations regarding Touching/invading Personal space or Mental and sexual harassment leveled against Sh. Dheeraj Bisht are very true and further after ignorance by the complainant, Ms.A, the abusing of authority being secretary of Clerical Union was also done by Mr. Dheeraj Bisht by threatening her to transfer to another branch.
2. The past record of Sh. Dheeraj Bisht are also not good as per his history sheet.
3. The branch staff are also threatened/influenced to not to give the correct statement.
4. Sh. Subhash Dhondiyal, Hall Inchargeof the branch are also equally responsible for concealing the matter and not providing the required help to the female staff when everything was happening before his eyes.
5. Sh. Asuthosh Chandan could not intervene into matter timely and failed to take appropriate steps as expected from branch head. Either he was 3 worried about branch/bank reputation of afraid of fear of Dheeraj Bisht."
(name masked)
3. It appears that subsequent to submission of the report by the ICC, it was required to make its recommendation in accordance with Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("the Act"). Thereafter, on 29.01.2020, the ICC made the following recommendations:-
"As the ICC has arrived at the conclusion that the allegations against Sh. Dheeraj Singh Bisht, PF- 72034, Spl. Asst. By Miss Ms.A, are true, ICC recommends to take appropriate punishable action against the culprit Sh. Dheeraj Singh Bisht."
("name masked)
4. The departmental proceeding was thereafter initiated against the petitioner. On 19.12.2019, he was given a charge sheet. It would be apt to reproduce as to what contains in the charge sheet. It is as hereunder:-
"CHARGE SHEET (By Registered Post) Shri Dheeraj Singh Bisht, Address Special Assistant, 347/, Vikas Colony, Opp. Jamuna PF NO.72034 Talkies, Ranipur Mor. BO: Kankhal, Haridwar Haridwar-249401 Reg: Charge Sheet Under Para 5 (c) and (t) Of BPS Dated 10.04.2002.4
During your posting at BO: Kankhal, Haridwar (D.No. 0291) w.e.f.
05.07.2018 to till date, you are alleged for causing Mental and Physical harassment with co-worker as under:
CHARGE-1: indulging in any act of Sexual Harassment of any women at the work place.
On 30.10.2019 while performing your duties as Special Assistant in the branch, you are alleged to have Mentally & Physically harassed by way of physical contact and advances to Ms. A SWO-A, PF no. 340004 while she was performing her duties in the branch.
CHARGE-2 Indecent behaviour on the premise of the bank & Unwelcome Physical Verbal contact.
On 04.11.2010 you are alleged to have harassed Ms. A SWO-A PF no. 340004 and threatened her by way of transfer, getting complaints lodged and abused the authority of Secretary of Union (PNBSA).
Thus, you failed to discharge your duties with utmost Integrity, Devotion and Diligence and failed to maintain Good Conduct and Discipline at work place. You also failed to show courtesy and attention with co-worker in the branch, with ultimately resulted into a complaint against you by the co-worker and brought down the dignity of the Bank.
The aforesaid act of yours is prejudicial to the interest of the Bank and constitute Gross Misconduct in terms of clause (c) & (t) of paragraph 5 of the Bi-partite Settlement Dated 10/04/2002, as amended from time to time.
You are as such advised to submit your response/written statement of defense against the above alleged charges within a period of seven days from the date of receipt of this Charge Sheet. Failing which, further action as deemed appropriate will be taken against you in accordance with the provisions of Bipartite Settlement dated 10.04.2002 as amended from time to time, without making any further reference to you.
DISCIPLINARY AUTHORITY (CIRCLE HEAD)"
(name masked)
5. The petitioner replied the chargesheet. He denied all the allegations. According to him, his denial may be confirmed by the CCTV footages. The allegations, according to the petitioner, were mala fide, baseless and false. An Enquiry Officer was appointed, who directed the parties to appear. First 5 sitting of the enquiry proceedings took place on 16.01.2020 and last sitting took place on 28.02.2020.
The Enquiry Officer submitted a report on 15.04.2020 (Annexure No. 19). The Enquiry Officer concluded that Charge No. 1 and Charge No. 2, both are proved and held the petitioner guilty. The petitioner was given an opportunity to reply to the enquiry report, which he did. Finally, by an order dated 23.04.2020 of the Disciplinary Authority (Annexure No. 22), the petitioner was compulsorily retired from service with superannuation benefit. The petitioner preferred a departmental appeal. It was dismissed on 29.12.2020 (Annexure No. 25). The charge sheet, the enquiry report, the order of compulsory retirement as well as the rejection of appeal all are impugned in this writ petition.
6. On behalf of the respondents, counter affidavit has been filed.
7. Heard learned counsel for the parties and perused file.
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8. Learned counsel for the petitioner would submit that the impugned orders, enquiry report are not in accordance with law. He would also raise the following points in his submission:-
(i) Charge sheet is not as per law. It is cryptic; it is without any basis; it does not accompany any list of witnesses.
(ii) The complainant did not prove her case. The complaint cannot be read into evidence.
(iii) Leading questions could not have been asked in the examination of the complainant.
(iv) Statements are not signed by its maker.
(v) Witnesses were called randomly.
(vi) The petitioner has been falsely implicated because he is a Union Leader. He is implicated by the rival Union.
(vii) The Enquiry Officer relied on the evidence, which was never adduced 7 before him. The ICC report could not have been relied on.
(viii) Production of documents is not proof of it. It has to be proved.
(ix) There have been gross irregularities in the inquiry. The ICC recorded statements secretly without letting the maker of it known that such statement is being recorded.
(x) The petitioner was not provided with the copies of the documents. They were denied on the ground that the documents were privileged communications.
(xi) Even the alleged act does not amount to sexual behaviour, because the victim had then told it to the petitioner that the petitioner is like her father. Based on it, it is argued that it reflects that there was nothing bad in the mind of the victim either.8
(xii) The victim did not ever object to shaking hand with the petitioner. It is usual in the bank to shake hands with the colleagues.
(xiii) Had on 30.10.2019, the petitioner sexually harassed the victim, the victim would not have joined the petitioner in a group photograph taken on 31.10.2019.
9. In support of his contention, the learned counsel for the petitioner placed reliance on the principle of law as laid down in the case of Dr. Sushil Kumar Sharma v. State of Uttarakhand and others (Writ Petition (S/B) No. 336 of 2011; Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570; and Allahabad Bank and others v. Krishna Narayan Tewari, (2017) 2 SCC 308.
10. In the case of Dr. Sushil Kumar Sharma (supra), a Division Bench of this Court discussed the nature of the charge sheet. The Hon'ble Court in its judgment, at para 20 observed "From the above 9 Rulings, the law is settled that in a domestic inquiry, the charge must be clear, definite and specific. The evidence is not to be perfunctory even if the delinquent does not take the defence or make a protest that the charges are vague; the inquiry will not be saved".
11. In para 21, in the judgment in the case of Dr. Sushil Kumar Sharma (supra), this Hon'ble Court had also taken note of the statutory mandate requiring the delinquent to be served not only with the charge sheet, but also the statement of grounds. This Court observed as hereunder:-
"21. Keeping in view this, if we see the facts of this case, the principle of natural justice is embodied as a statutory mandate in Statute 17.06, which we have extracted. In other words, it is not the principle of natural justice, but it is Statute itself unambiguously commands that the college must serve not only the charges, but also the statement of grounds."
12. In the case of Roop Singh Negi (supra), the Hon'ble Supreme Court discussed the nature of the judicial departmental proceedings. In para 14, the Hon'ble Supreme Court observed as hereunder:- 10
"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."
13. In the case of Allahabad Bank (supra), the Hon'ble Supreme Court, inter alia, observed "But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases."
14. Reference has also been made by the learned counsel for the petitioner to the Bi Partite 11 Settlement between the Bank Employees' Association and the banks. Reference has been made to the acts, which constitute gross misconduct.
15. On the other hand, learned Senior Counsel appearing for the respondents would submit that the enquiry has been conducted in accordance with the procedure established; the petitioner has been provided ample opportunity to defend himself; he was provided with the documents, which he required. Learned Senior Counsel also raised the following points in his submissions:-
(i) If CCTV footages were not given to the petitioner, it makes no difference because even the Enquiry Officer did not rely on any of the CCTV footages.
(ii) The principle of natural justice has been followed in this matter.
(iii) Mere non-compliance of the principle of natural justice does not vitiate the entire proceedings.12
After all, a delinquent employee has to show that by non-
observance of the principle of natural justice, he has been prejudiced. It is argued that nowhere in the petition, it is even alleged by the petitioner that, in any manner, he was prejudiced by non-observance of any of the attributes of the principle of
natural justice. Even otherwise, it is argued that, the explanation of the bank employee as sought by the Branch Head, if not provided to the petitioner during the course of inquiry, makes no difference because, in the petition such comments of the bank employees have already been filed by the petitioner. The petitioner could have adduced evidence in his defence by calling 13 any employee or any person, as would have been advised to him.
(iv) It is though stated that the finding of the Enquiry Officer is perverse, but, nowhere it is indicated as to how it is perverse.
(v) The complaint of the victim is genuine. If there is any procedural irregularity in the domestic inquiry, any irregularity may not vitiate the proceedings, unless prejudice caused is shown and established.
(vi) The victim was cross-examined on 28.02.2020 by the petitioner and he suggested that after the incident, the parties were called in the Chamber of the Branch Head and misunderstanding was removed. It is argued that the victim denied of it. But, the 14 learned Senior Counsel would argue that it shows that the incident took place. Had the incident been not taken place, there would have been no occasion to call the parties to the Chamber of the Branch Head on 05.11.2019 and there would have no occasion to the petitioner to suggest to the victim during enquiry that on that date misunderstanding was removed. Reference has been made to the statement of one Poonam, a witness to argue that, in fact, she has stated about the conduct of the petitioner, which according to the learned Senior Counsel falls in the definition of "sexual harassment" at the workplace.
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16. Learned Senior Counsel further raised arguments with regard to jurisdiction of this Court in the matters when departmental proceedings are put to challenge. He would submit that the scope of this writ is much restrictive. This Court cannot sit as a court of appeal. This Court cannot evaluate the evidence. If the statement of the victim itself is sufficient and inspires confidence, any other irregularity could not affect the proceedings.
17. Learned Senior Counsel has placed reliance on the principle of law as laid down in the cases of Management of State Bank of India v. Smita Sharad Deshmukh and another, (2017) 4 SCC 75; Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759; State of U.P. and others v. Raj Kishore Yadav and another, (2006) 5 SCC 673; Sarva Uttar Pradesh Graming Bank v. Manoj Kumar Sinha, (2010) 3 SCC 556; State of Andhra Pradesh and others v. Chitra Venkata Rao (1975) 2 SCC 557.
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18. In the case of Smita Sharad Deshmukh (supra), the Hon'ble Supreme Court referred the principle of law as laid down in the case of Bank of India v. Degala Suryanarayana, (1999) 5 SCC 762, wherein it was observed that "The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides 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 finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."
19. In the case of Apparel Export Promotion Council (supra), the Hon'ble Supreme Court widely discussed the scope of this Court in departmental 17 proceedings. It is observed that "The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities............... the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court." and further "An analysis of the above definition shows that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly 18 when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her."
20. In the case of Raj Kishore Yadav (supra), the Hon'ble Supreme Court observed that "the High Court has limited scope of interference in the administrative action of the State in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India and, therefore, the findings recorded by the enquiry officer and the consequent order of punishment of dismissal from service should not be disturbed".
21. In the case of Sarvs Uttar Pradesh Gramin Bank (supra), the Hon'ble Supreme Court discussed the effect of non-observance of the principle of natural justice and in para 37 observed as hereunder:-
"37. Thereafter, this Court notices the development of the principle that prejudice must be 19 proved and not presumed even in cases where procedural requirements have not been complied with. The Court notices a number of judgments in which the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant. Ultimately, it is concluded as follows: (Haryana Financial Corpn. case [(2008) 9 SCC 31 : (2008) 2 SCC (L&S) 789] , SCC p. 44, para 44) "44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show 'prejudice'. Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down."
22. The scope of the Court under Article 226 of the Constitution of India in such matters have further been discussed by the Hon'ble Supreme Court in the case of Chitra Venkata Aao (supra), where the Hon'ble Supreme Court observed that " An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to 20 admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. "
23. Undoubtedly, the scope of this Court in the writ jurisdiction in such matters is defined. The contours are sharp and clear. The Court does not sit as a court of appeal. Appreciation of fact is not in the domain of the Court in such matters, unless as quoted herein, the findings are perverse or without any weight of evidence or where irrelevant material is considered or relevant material is ignored.
24. The procedure adopted in the enquiry definitely falls for scrutiny in such matters.
25. In the case of Sarva Uttar Pradesh Gramin Bank (supra), the Hon'ble Supreme Court has quoted with approval from the judgment in the case of 21 Haryana Financial Corporation and another v. Kailash Chandra Ahuja, (2008) 9 SCC 31. That was a matter where enquiry report was not given to the delinquent, though the delinquent was afforded an opportunity of personal hearing. His services were dismissed with a speaking order. The Hon'ble Supreme Court in its judgment in the case of Kailash Chandra Ahuja (supra) relied on the principle of law as laid down in the case of ECIL v. B. Karunakar, (1993) 4 SCC 727.
26. In the case of B. Karunakar (supra), the Hon'ble Supreme Court discussed the provisions of Article 311 of the Constitution of India and the need to supply copy of the enquiry report before acting on it or before issuing show cause notice on the question of penalty. In para 30 of the judgment, the Hon'ble Supreme Court answered the questions. It is as hereunder:-
"30. Hence the incidental questions raised above may be answered as follows:
[i] Since the denial of the report of the enquiry officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural 22 justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.
[ii] The relevant portion of Article 311(2) of the Constitution is as follows:
"(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges."
Thus the article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded and when the enquiry officer is not the disciplinary authority the delinquent employee will have the right to receive the enquiry officer's report notwithstanding the nature of the punishment.
[iii] Since it is the right of the employee to have the report to defend himself effectively and he would 23 not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him.
[iv] In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan case should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.
[v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the 24 employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice."
27. Para 30(v), as quoted hereinabove, makes it abundantly clear that the observance of principle of natural justice is not mere formality. If such inquiry report is not given, the Court needs to see as to whether any prejudice is caused to the delinquent employee. The Hon'ble Court observed "Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the 25 consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice".
28. In fact, the concept of mere formality of observance of principle of natural justice has been discussed on umpteen times by the Hon'ble Supreme Court. In the State of U.P. v. Sudhir Kumar Singh and others, 2020 SCC OnLine SC 847, the Hon'ble Supreme Court discussed this concept as follows:
"39. An analysis of the aforesaid judgments thus reveals:
(1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
(2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.26
(3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.
(4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.
(5) The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice."
29. Even before that, in the case of M.C. Mehta v. Union of India and others, (1999) 6 SCC 237, the Hon'ble Supreme Court had observed that " Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the 27 context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of "real substance" or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed."
30. In view of the settled legal position, the instant case shall be examined.
31. Essentially the Court would concentrate on the following two issues:
(i) Whether the procedure which governs the departmental proceeding in the case of the petitioner has been observed or has there been any defiance or non-observance of any Rules? or/and
(ii) Whether the petitioner has not been afforded adequate opportunity to defend himself. In other words, whether there has been non-28
observance of principle of the natural justice and if so, whether it per se vitiates the proceedings or the petitioner is required to show that any prejudice has been caused to him because of non-observance of the principle of natural justice. With it, the related matters would also be examined.
32. The ICC is constituted under Section 4 of the Act. Its constitution is given thereunder. After having conducted the enquiry, the ICC is required to submit a report under Section 13 of the Act. That is what was done in the instant case, as pleaded by the parties. The ICC finally recommended on 29.01.2020 that the allegations levelled by the victim are true. The ICC recommends to take appropriate punishable action against the culprit/the petitioner. That is how the departmental proceedings were initiated. 29
33. The charge was framed on 19.12.2019 as reproduced hereinbefore in this judgment. This charge sheet is under para 5(c) and 5(d) of the BPS dated 10.04.2002. BPS is Bi Partite Settlement. A copy of it has been placed during the course of hearing. Clause 12 of it provides for procedure. Clause 12(a) is important, it is as hereunder:
"12. The procedure in such cases shall be as follows:-
(a) An employee against whom disciplinary action is proposed or likely to be taken shall be given a charge-sheet clearly setting forth the circumstances appearing against him and a date shall be fixed for enquiry, sufficient time being given to him to enable him to prepare and give his explanation as also to produce any evidence that he may wish to tender in his defence. He shall be permitted to appear before the Officer conducting the enquiry, to cross-examine any witness on whose evidence the charge rests and to examine witnesses and produce other evidence in his defence. He shall also be permitted to be defended -
(i) (x) by a representative of a registered trade union of bank employees of which he is a member on the date first notified for the commencement of the enquiry.
(y) where the employee is not a member of any trade union of bank employees on the aforesaid date, by a representative of a registered trade union of employees of the bank in which he is employed:
(ii) at the request of the said union by a representative of the state federation or all:
India Organisation to which such union is affiliated.
(iii) With the Banks permission, by a lawyer.30
He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him."
(emphasis supplied)
34. Even clause 12 (f) (i) and (ii) also have relevance. Clause 12(f) (i) and (ii) are as hereunder:-
"(f) An enquiry need not also be held if the employee is charged with minor misconduct and the punishment proposed to be given is warning or censure. However,
(i) the employees shall be served a show cause notice advising him of the misconduct and the evidence on which the charge is based;
and
(ii) The employee shall be given an
opportunity to submit his written statement of defence, and for this purpose has a right to have access to the documents and material on which the charge is based."
(emphasis supplied)
35. A bare perusal of clause 12 of the BPS dated 10.04.2002 makes it abundantly clear that the delinquent employee shall be given a charge sheet clearly setting forth the circumstances appearing against him. Clause 12 (f) (i) also requires that the employee shall be served a show cause notice advising him of the misconduct and the evidence on which the charge is based.
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36. In the instant case, the charge sheet does not reveal anything. It does not even reveal, who complained of the act, of which charge was framed against the petitioner. Even the copy of the complaint given by the victim has not been enclosed with it. If the charge sheet is based on the recommendation of the ICC, the report of the ICC was not given to the petitioner alongwith the charge sheet. If any statements were recorded by the ICC during the course of inquiry, such statements were not given. As stated hereinbefore, the ICC discretely recorded the statements of the witnesses on 15.11.2019. They were kept in a pen drive, which is marked in the ICC report as B-1. It was not given to the delinquent employee.
37. The charge sheet does not contain as to what is the evidence or what are the circumstances against the petitioner. He was not told the complaint, the evidence that is proposed against him. This is violation of the Rules that govern the disciplinary proceeding against the petitioner. 32
38. As discussed hereinbefore, the principle of natural justice is not a ritual. It is not a mere formality. Effect of non-observance has to be seen. But, in the case of Sudhir Kumar Singh (supra), the Hon'ble Supreme Court has observed about the impact. It has already been quoted above, but, at the cost of repetition, this Court reproduces what the Hon'ble Supreme Court held in the case of Sudhir Kumar Singh (supra). The Hon'ble Supreme Court observed "Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest."
39. In the instant case, the Rules, which govern the departmental proceedings between the parties require the disciplinary authority to provide the circumstances appearing against the delinquent 33 employee, along with the charge sheet. The evidence proposed to be given has to be supplied along with the charge sheet. It is not done. It is non-observance of the principle of natural justice. The petitioner was asked to reply on some charges about which he was totally unaware. He was not known. It definitely vitiates the proceedings.
40. During the course of argument, learned Senior Counsel appearing for the respondents would submit that it is a domestic enquiry. The strict observance of the rules of evidence and procedures are not expected to be followed in such departmental enquiry.
41. It is true that in the departmental enquiry, the strict rules of evidence are not expected to be followed by the Enquiry Officer. On 16.01.2020, when, for the first time, the enquiry proceeding began, the Enquiry Officer first required the petitioner to submit the defence document and defence witness. But, the petitioner replied that he would do it at the 34 next hearing. On 20.01.2020, the petitioner asked the Enquiry Officer that he should be provided with the copy of complaint of the victim, the action taken by the Branch Head, the interrogation statements of the witnesses recorded on 15.11.2019, copies of the attendance register, CCTV footages and he also categorically told that once these documents are given, he would be able to put his defence.
42. It continued on 11.02.2020. Again, the petitioner told it to the Enquiry Officer that the pen drive, which was given to him was corrupt. Due to virus, it is not working. He should be given another copy of it. In fact, the proceeding of 11.02.2020 of the Enquiry Officer records that the pen drive contains CCTV footages of the Branch. Reference of these CCTV footages has also been made in the inquiry report of the ICC. In fact, the ICC report reveals that B-1 is a pen drive, which contains the audio recording of the statements of the witnesses and it also contains the CCTV footages. A pen drive was given to the petitioners which was corrupt. The petitioner 35 informed about it, but he was not given the functional pen drive. The petitioner wanted a copy of the statements recorded by the ICC on 15.11.2019. But, on 26.02.2020, the departmental representative told it to the petitioner that the disciplinary authority has verbally directed that the documents are privileged and cannot be shared in bank interest.
43. How could some documents, which relate to the incident and on which the Branch has taken action be termed as "privileged communication" so as not to share with the petitioner, who was facing departmental enquiry based on the same incident? This is definitely denial of fair opportunity to defend the petitioner.
44. What this Court is trying to appreciate is as to whether the petitioner has been given a fair opportunity to defend himself? As stated, the charge sheet does not reveal anything as to what is the evidence proposed against him. He was not even provided with the copy of the complaint. He asked for 36 its' copy from the Enquiry Officer. He was asked to submit his response without providing him any copy of the complaint. He did reply. He denied all the allegations. He reiterated that the CCTV footages may be examined to ascertain the truth. He was provided with a pen drive containing the CCTV footages. The petitioner tells the Enquiry Officer that the pen drive is corrupt and it is not functioning, but he was not provided another copy of it. Why? It is definitely a denial to fair opportunity to defend.
45. In the enquiry, the Departmental Representative, on 26.02.2020, read out various letters, complaints of some other employee, some statements of the witnesses recorded during the ICC and also run some audio recording made by the ICC. On that day itself, the petitioner had objected to the way the proceeding was conducted. He said that reading of some paragraphs by the Management Representative is unjustified.
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46. On 28.02.2020, three witnesses did not support the management case. One witness denied his voice in the audio recording, which was then run. But, strangely, the ICC Chairman was called to confirm as to whether the audio recording is in the voice of the same person? The petitioner then also objected to the procedure. He said two witnesses cannot be examined simultaneously. It is recorded at page 5 of the proceedings of 28.02.2020.
47. There is one lady witness, who was examined before the complainant on 28.02.2020. Her statement has been read over in extensive by the learned Senior Counsel for the respondents, with regard to general allegations she made. But, the Court is afraid to consider such statement for the simple reason that the petitioner is charged for two distinct acts, allegedly done by him on 30.10.2019 and 04.11.2019. This lady witness, who was examined just before the complainant on 28.02.2019 has categorically stated that she cannot confirm the incident dated 30.10.2019 and 04.11.2019. It is 38 recorded at page 8 of the proceedings of the enquiry dated 28.02.2019.
48. It is true that the statements of the witnesses have not been signed by the maker. It is also true that separate space for cross-examination has not been given and separate statement has not been recorded. But, the fact remains that the Enquiry Officer asked the witnesses to come. He put questions to them and thereafter gave an opportunity to the petitioner to cross-examine them.
49. Generally, it is expected that the statement of a witness should be recorded and he should sign it. But, in this departmental proceeding, it is not done. Perhaps, it alone may not be a ground to vitiate the proceeding.
50. On 28.02.2020, when the witnesses were purportedly allowed to be cross-examined by the petitioner, some audio recordings were played. But, what were its contents, they are not reproduced in the 39 proceedings as such. There had been definitely a non- observance of the principles of natural justice.
51. This is one part of the matter. There is another aspect of the matter. For two charges, the Enquiry Officer has recorded its findings in the Enquiry Report. It is as hereunder:
"Charge -1 ...................................................... ........................................................................ Findings by the EO:
Indulging in any act of sexual Harassment of any women at the work place.
On 30.10.2019 while performing your duties as Special Assistant in the branch, you are alleged to have Mentally & Physically harassed by way of physical contact and advances to Ms. A, SWO-A, PF No. 340004 while she was performing her duties in the branch.
On the basis of evidence proceedings, evidences produced oral as well as written, witnesses examined/cross examined, the charge levelled against Sh. Dheeraj Singh Bisht is supported by management documents-ME-2, ME-4, ME-6, ME-7 and ME-10. This is also supported bywitness of management representatives recorded on page no. 1-4 of proceeding register dated 26.02.2020, further the charge are also supported by confirmation of audio recording as recorded on page 4 and 5 of proceeding register dated 26.02.2020. Management witness Ms. Poonam Sharma has confirmed about the voice 40 of Sh. Akshay at page no. 7 of proceeding register dated 28.02.2020, which proves falsehoold of witness Akshay, defence witness denying his voice. This is further confirmed from the witness of Ms. Rashmi and Ms. Anikita, who emphatically deposed at page no. 5 of proceeding register dated 28.02.2020, that Akshay is telling lie and the voice recorded in audio pertains to him. Charges are also substantiated by deposition of Ms. A recorded at page no. 9-11 of proceeding register dated 28.02.2020.
Charge-1 is proved. Conclusions are derived from facts and circumstances of the case. Submission by defence are not tenable. Thus Charge-1 is proved and as such Sh. Dheeraj Singh Bisht is guilty." (name masked) "Charge -2 ...................................................... ........................................................................ Findings by the EO:
Indecent behaviour on the premise of the bank & unwelcome Physical Verbal contact On 04.11.2019 you are alleged to have harassed Ms. A, SWO-A, PF No. 340004 and threatened her by way of transfer, getting complaints lodged and abused the authority of Secretary of Union (PNBSA).
On the basis of evidence proceedings produced oral as well as written, witnesses examined/cross examined, the charge levelled against Sh.
Dheeraj Singh Bisht is supported by management documents - ME6/5 and ME-12. This is also supported by witness of management representatives recorded on page no. 1-4 of proceeding register dated 26.02.2020, further the 41 charge are also supported by confirmation of audio recording as recorded on page no. 4 and 5 of proceeding register dated 26.02.2020. Management witness Ms. Poonam Sharma has confirmed about the voice of Sh. Akshay at page no. 7 of proceeding register dated 28.02.2020, which proves falsehood of witness Akshay, defence witness denying his voice. This is further confirmed from the witness of Ms. Rashmi and Ms. Ankita, who emphatically deposed at page no. 5 of proceeding register dated 28.02.2020, that Akshay is telling lie and the voice recorded in audio pertains to him. Charges are also substantiated by deposition of Ms. A recorded at page no. 9-11 of proceeding register dated 28.02.2020.
Charge -2 is proved. Conclusions are derived from facts and circumstances of the case. Submission by defence are not tenable. This Charge -2 is proved and as such Sh. Dheeraj Singh Bisht is guilty." (name masked)
52. The Enquiry Officer while arriving at a conclusion has taken into consideration various documents, which were not the part of the enquiry. For example, for Charge No. 1, the Enquiry Officer has taken note of ME 4/1, a letter of a witness. But, the petitioner was never given an opportunity to cross-examine on this letter. The person, who gave this letter has never appeared as a witness before the 42 Enquiry Officer; ME 6/2, statement of the same person, who gave letter ME 4/1, recorded by the ICC on 15.11.2019. This person was not examined by the Enquiry Officer. He was not rendered for cross- examination. How could these statements given on the back of the petitioner be taken into consideration to hold the petitioner guilty of the charge? Audio recordings were taken into consideration. What was there in the audio recordings?
53. On 28.02.2020, when those audio recording was played, the proceeding does not record as to what were its contents? In the absence of it, it cannot be presumed that the whole text was read over and the petitioner was given an opportunity to cross-examine those witnesses. Even, as stated, one of the witnesses has denied his voice in the audio recording. It is at this stage that the ICC Chairman was called, who interrupted and, in fact, confronted the person, who had denied his voice, as to why he is denying. 43
54. Another document is ME 10/4, which is statement of the Branch Head recorded by the ICC on 15.11.2019. This person was also not examined by the Enquiry Officer. How his statement recorded by the ICC could be taken into consideration to hold the petitioner guilty of a charge? The Court wanted to know as to what is the basis of conclusion of the Enquiry Officer?
55. Learned Senior Counsel for the respondent would very strenuously argue that even the statement of the victim is sufficient to prove charge, if it inspires confidence. There is no doubt on this proposition of law. But, then this Court cannot read the mind of the Enquiry Officer as to which factor weigh in his mind while holding the petitioner guilty of the charge? He has considered various other things while holding the petitioner guilty of the charge.
56. As stated, he has considered the statements of the witnesses recorded during ICC proceedings, of which copy was never given to the petitioner. Those 44 persons were never examined by the Enquiry Officer. The audio recordings were taken into consideration, which was never given to the petitioner. The record does not reveal that the entire contents were read over at the time of playing of the audio recordings. These were, in fact, irrelevant materials. They are not material evidence. So, the finding cannot be said to be based on evidence. It is based on irrelevant material. Therefore also, the finding is bad in the eyes of law.
57. Similarly, for Charge No. 2 also, the Enquiry Officer has taken into consideration various materials, which were not relevant, like ME 6/5. It is the statement of a witness recorded on 15.11.2019 before the ICC. He never appeared before the Enquiry Officer. Audio recordings were taken into consideration. This Court has already observed about the audio recordings made by the ICC during their enquiry. It cannot be the basis to conclude about the charges framed against the petitioner. 45
58. In view of the foregoing discussions, this Court is of the view that the departmental proceeding against the petitioner is bad in the eye of law. Accordingly, the petition deserves to be allowed and the enquiry report dated 15.04.2020; the charge sheet dated 19.12.2019; the order dated 23.04.2020, by which the petitioner was compulsorily retired with superannuation benefits; and order dated 29.12.2020, passed in the appeal dismissing the departmental appeal preferred by the petitioner deserve to be quashed.
59. The petition is allowed. The enquiry report dated 15.04.2020; the charge sheet dated 19.12.2019; the order dated 23.04.2020, by which the petitioner was compulsorily retired with superannuation benefits; and order dated 29.12.2020, passed in the appeal dismissing the departmental appeal preferred by the petitioner are quashed.
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60. The respondents are directed to reinstate the petitioner in service with all consequential benefits within eight weeks from today.
61. If required, the respondents, however, will be at liberty to proceed against the petitioner afresh, in accordance with law.
(Ravindra Maithani, J.) 28.06.2022 Avneet/