Patna High Court
Shakti Mohan Lal Mallik vs Chairman & M.D.,Bank Of India on 9 December, 2013
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3748 of 1998
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Shakti Mohan Lal Mallik, son of Sri Nageshwar Lal Mallik, resident of village
Ratanpur, P.S. Jale district Darbhanga at present residing at F/196, People's
Cooperative Colony Kankarbagh, P.S. Kankarbagh in the district and town of
Patna.
.... .... Petitioner
Versus
1. Chairman and Managing Director, Bank of India Head Office, Express
Towers, Nariman Point, Mumbai - 400021.
2. The Executive Director and Reviewing Authority , Bank of India Express
Towers, Nariman Point Mumbai, 400021.
3. General Manager cum Appellate Authority, Express Towers Nariman Point
Post Box No. 234, Mumbai 400021
4. Zonal Manager, Bihar North Zone and Disciplinary Authority Chanakya
Place, Birchand Patel Marg, Patna , 800001.
5. Inquiring Authority in the Departmental Enquiry against Sri S.M.L. Mallik
cum Officer, Bank of India, Chanakya Place, Birchand Patel Marg Patna
800001.
6. Shri Amar Krishna Agarwal, the then officer, Operations Department, Zonal
Office, Bank of India, Patna and now posted as Manager of Giridih
Kshetriya Gramin Bank, H.O. Mahatpur, Giridih (Bihar)
.... .... Respondents
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Appearance :
For the Petitioner : Mr. Yugal Kishore, Sr. Adv.
Mr. Prabhat Kumar, Adv.
For the Respondents : Mr. Rupak Kumar, Adv.
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
CAV JUDGMENT
Date: 09-12-2013
The present writ petition under Article 226 of the Constitution
Of India has been preferred with a prayer to quash enquiry report
dated 12.2.1991 submitted by respondent no. 5, quashing of order of
penalty dated 28.10.1993 passed by respondent no. 4 / Zonal
Manager, whereby petitioner has been imposed punishment of
removal from service, the appellate order dated 29.9.1994 passed by
Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013
2/27
General Manager - cum - Appellate Authority whereby order of
punishment in the departmental proceeding was confirmed, order of
reviewing authority dated 23.5.1995 passed by the Executive
Director and also for quashing of communication dated 20.11.1997
whereby the representation of the petitioner requesting Chairman -
cum - Managing Director to reconsider review order and also for
setting aside order of punishment was rejected and communicated
under the signature of General Manager. The petitioner has further
prayed for directing the respondents to pay salaries of the petitioner
for the period October, 1992 to 15.11.1993 when fresh penalty
order was passed.
Short fact of the case is that on 7.4.1988 the petitioner while
posted as Staff - Officer , Bank Of India, Regional Office, Giridih,
was served with memo of charge for his omission and commission
while he was posted at Patna (Main) Branch, Patna, R.C.C. and
Zonal Office, Patna. The petitioner was served with eleven articles
of charges, which are as follows:-
Article I - While he was working at Patna he
made eight credit entries on different dates from
28.1.1980to 4.4.1980 totaling Rs. 4035/- in S/B Ledger A/C No. 10093 of Smt. Bimla Devi (who was landlady of petitioner‟s residential accommodation provided to him by the Bank and occupied by him) without any basis / vouchers / entries in transfer / clearing registers and made a corresponding debit entry of Rs. 4035/- in the said S/B A/C without any date but some time after 16.6.1980 and before 12.11.1980 Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 3/27 indicating therein "C/B .... Less" without any basis /vouchers / entries in the transfer / clearing registers though during the said period petitioner was entrusted with the job of balancing cash book, with malafide intention to cause undue pecuniary benefit to the said A/C holder and Bank did suffer the financial loss towards the interest on the amount credited in the said account without any basis.
Article II - Although he was posted at Bank‟s Zonal Office and particularly at the Administration And Services Department thereof from the month of June, 1984, he did not care to see that the rent cheque of the residential accommodation provided to him under subsidized housing scheme from August 1982 to December 1984 was issued with malafide intention to avoid standard tax deduction of 10% of petitioner‟s basic pay for the time being.
Article III - While working as Officer - In -
Charge Of Patna R.C.C. during the period from 5.4.1983 to 3.12.1983 he, in contravention of the Bank‟s Rules, out of the way, with malafide intention collected 35 cheques of his landlady and presented in clearing on eight different dates directly from Patna R.C.C. instead of getting them routed from the Branch where the landlady was maintaining her Account and further he credited the proceeds to the Account of said Smt. Bimla Devi prior to realization of the amount of cheque no. 025764 for Rs. 475/- which was put in clearing directly from Patna R.C.C. on 20.9.1983 alongwith other cheques and subsequently returned unpaid, with malafide intention to accommodate the said Smt. Bimla Devi by giving her undue credit facility.
Article IV - Though the petitioner un- authorisedly received the aforesaid 35 cheques for irregular collection and issued in all ten credit notes on Birchand Patel Marg Branch, but he did not send these credit notes to the drawee branch concerned and un-authorisedly held them with him with a view to hiding / concealing the un-authorised receipt and irregular handling of the relative Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 4/27 cheques of Smt. Bimla Devi till 6.3.1984 when he himself visited Birchand Patel Marg Branch made the credit entries of the amount of said credit notes in S/B Account No. 983 of the said Smt. Bimla Devi by preparing himself S/B credit (with advice) vouchers ( transfer sets).
Article V - Though the relative cheques pertaining to credit note nos. 20372, 20373 and 20374 all dated 23.8.1983 for Rs. 1200/- , Rs. 6400 /- and Rs. 1825/- were realized on 19.4.1983, 11.5.1983 and 18.6.1983 respectively he mentioned as of dates 18.5.1983, 18.5.1983 and 24.6.1983 on a- the aforesaid three credit notes;
b- the relative 3 S/B credit vouchers with advice prepared by the petitioner on behalf of Birchand Patel Marg Branch on 6.3.1984, and c- S/B Ledger A/C No. 983 of Smt. Bimla Devi against relative three credit entries of the aforesaid amount posted by him on 6.3.1984 on behalf of Birchand Patel Marg Branch.
Article VI - The petitioner issued a cheque no. 3335511 dated 28.9.1983 for Rs. 1,817.60 favouring Life Insurance Corporation Of India on his Savings Bank Account No. 545 with Birchand Patel Marg Branch without having on that day and without subsequently maintaining sufficient credit balance in his said account. However, when the said cheque along with 13 other cheques under Patna (Main) Branch D/N 6519 dated 1.10.1983 was received by him at Patna R.C.C., he instructed (being Officer- In -Charge of Patna R.C.C. ) Sri S.K. Sen, Staff - Clerk not to include aforesaid cheque alongwith other home clearing cheques and to prepare separate D/N for the same. He further un- authorisedly withheld with himself the relative D/N No. 1908 dated 1.10.1983 prepared from him for his above cheque of Rs. 1817.60 and as a result thereof his said Savings Bank Account could not be debited till date and aforesaid relevant D/N entries remained un-responded though he got the credit on aforesaid amount of Rs. 1,817.60 in his L.I.C. premium account and took the advantage of Income Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 5/27 Tax Rebate on the said amount of insurance premium paid to the Life Insurance Corporation Of India.
Article VII - The petitioner gave undue credit of Rs. 3300/-, Rs. 1100/- and Rs. 122.32/- on 6.3.1984 as of 12.11.1983 in the S/B Account No. 983 of the said Smt. Bimla Devi by issuing three credit notes no. 5412, 5413 & 5414 on 12.11.1983 without realizing the amount of relevant cheques, if any and raising completely false / fake /uncalled for two debit notes no. 75279 & 75263 totaling amount to Rs. 4522.32. Further, he did not even take care for responding the aforesaid two debit notes no. 75279 & 75263 raised by him on Birchand Patel Marg Branch. Thus, he acted as aforesaid with malafide intention and caused undue pecuniary gain to the said Smt. Bimla Devi, who happened to be landlady of his housing accommodation and put the Bank in serious financial loss.
Article VIII- During the period of 8.4.1983 to 22.9.1983 he claimed and reimbursed to himself total amount of Rs. 172/- as traveling expenses on as many as 24 occasions through petty cash vouchers which were written, signed and sanctioned and payment received by himself only without obtaining sanction from any higher authority. Further, he had sanctioned as well as received payment of Rs. 126/- out of the aforesaid Rs. 172/- without any purpose and additionally he also took the payment of Rs. 125/- toward re-imbursement of conveyance expenses / traveling expenses on the basis of claim made by him for traveling on Bank‟s Job within the radius of 8 Kilometers for the month of September, 1983 in terms of Head Office Circular concealing the fact that he had already claimed and received claim of Rs. 24/- towards traveling expenses for the same month through petty cash.
Article IX- While posted as Officer at Administration And Services Department of Bank‟s Zonal Office, Patna he on 26.12.1984 misrepresented the fact relating to the position / amount of the rent Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 6/27 paid to the said landlady of his housing accommodation by putting up a note on his said landlady request letter dated 15.7.1984 with a view to being over sure to extend wrongful pecuniary gain to his said landlady.
Article X - He caused wrongful pecuniary gain to his said landlady Smt. Bimla Devi by making undue extra payment by issuing a credit note no. 0205 for Rs. 13600/- on 8.1.1985 towards the payment of arrears of rent at the rate of Rs. 800 /- per month for the period from August, 1983 to December, 1984 though the amount of rent as enhanced and sanctioned on 27.12.1984 by the Deputy Zonal Manager (Operations) was Rs. 800/- per month for the period from August, 1984. Further, he willfully did not get the purpose with a view to conceal the aforesaid wrongful payment of money towards the rent and not to get the standard 10% of his basis pay deducted for the months for which rent was paid as aforesaid on 8.1.1985; and Article XI - Despite his making payment of money towards rent to the landlady Smt. Bimla Devi through aforesaid credit note for Rs. 13,600/- he inter alia requested the Zonal Manager, Bihar Zone , Patna in writing through letter dated 8.4.1985 to arrange for payment of rent from August, 1982 to December, 1984 concealing the fact that a sum of Rs. 13,600/- had already been paid to the landlady on 8.1.1985 on the basis of his said request / declaration payment of arrears of rent was sanctioned. He prepared the relevant transfer sets / vouchers himself for Rs. 14,200/- and issued the pay order of Rs. 14,200/- in the name of the landlady Smt. Bimla Devi thus making her double payment for the period from August, 1984 to December, 1984 and double over payment for the period from August, 1983 to July 1984. Thus, he had again suppressed and misrepresented the fact and the position relating to the payment of rent made / to be made to his landlady and caused to make her double payment and double over payment as aforesaid.
Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 7/27 On the aforesaid charges a regular departmental proceeding was initiated in terms of Bank Of India Officers Employees' (Discipline & Appeal ) Regulations, 1976 against the petitioner and after thorough enquiry the conducting officer found ten charges proved and one charge i.e. charge no. VIII was found partly proved. Thereafter, enquiry report was communicated and petitioner's response was sought for and finally the disciplinary authority at the relevant time one Sri M.V. Palekar, who was Zonal Manager - cum - Disciplinary Authority passed order of punishment i.e. removal of the petitioner from service on 6.5.1991. After the punishment of removal from service the petitioner approached this court by filing a writ petition vide C.W.J.C. No. 3997 of 1991. Before the writ court a plea was taken on behalf of the petitioner that since order of transfer was already passed in respect of Sri M.V. Palekar, Zonal Manager, Mr. Palekar was not authorized to pass order of punishment. Besides the plea regarding the authority of the then Zonal Manager other grounds were also taken. However, this court by judgment dated 17th August, 1993 partly allowed the writ petition with a direction to place enquiry report and all other relevant papers before the present Zonal Manager or any other competent authority for a fresh decision. This court observed as follows:-
Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 8/27 " In view of the facts stated above, I direct the Zonal Manager (respondent no. 2) to pass a fresh order in accordance with law on the basis of the materials already available on the record. In case, ultimately respondent no. 2 comes to a conclusion that the petitioner was not guilty of the charges, naturally, he would be entitled for all the arrears of salary which has not been paid. But if the petitioner is held guilty and punishment of removal etc. is imposed, he will not be entitled for any payment.
In the facts and circumstances of the case, the impugned order shall be kept in abeyance so long a final decision is taken by respondent no. 2. Final order as indicated above, must be recorded within two months from the date of production / receipt of a copy of this order by respondent no. 2."
After the order passed by this court the new incumbent i.e. Zonal Manager, Bihar North Zone & Disciplinary Authority on 28.10.1993 passed the order in the light of order passed by this court in C.W.J.C. No. 3997 of 1991 and imposed a consolidated penalty of removal from service of the Bank Of India on the petitioner for all the charges proved against him in terms of Regulation 4(g) of the Bank Of India Officer Employees' (Discipline & Appeal) Regulations, 1976 (hereinafter referred to as 'Banks Regulation, 1976'), which has been assailed and impugned as Annexure -8 to the writ petition. After the fresh order passed by the disciplinary authority on 28.10.1993 the petitioner preferred appeal which was rejected on 29.9.1994 by the General Manager -
cum - Appellate Authority vide Annexure -9 to the writ petition. Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 9/27 The petitioner thereafter preferred a review petition and reviewing authority i.e. Executive Director vide Annexure -10 to the writ petition considered no reason for interference with the penalty of removal from service imposed on the petitioner as well as with the order of the appellate authority and confirmed both order of penalty as well as order of appellate authority by its order dated 23rd May, 1995 (Annexure -10 to the writ petition). Even though review petition was rejected, the petitioner filed representation for reconsideration before the Chairman - cum- Managing Director which too was rejected and decision was communicated by letter dated 20.11.1997 issued under the signature of General Manager (Annexure -12 to the writ petition ) and finally the petitioner approached this court by filing the present writ petition which was admitted for final hearing on 3.2.1999 and after hearing learned counsel for the parties on number of dates finally on 27.9.2013 judgment was reserved.
Sri Yugal Kishore, learned senior counsel, who was assisted by Sri Prabhat Kumar, learned counsel for the petitioner while assailing order of punishment and other impugned orders has raised several questions. First of all he has argued that number of documents were not supplied to the petitioner and as such entire departmental proceeding had vitiated. He has further argued that in Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 10/27 any event the punishment of removal from service imposed on the petitioner was disproportionate to the charges for which the petitioner was proceeded. He has argued that although eleven articles of charges were leveled against the petitioner, most of the charges were inter - connected and in sum and substance there were three allegations against the petitioner, which are:- (1) giving undue favour to his landlady (2) obtaining undue traveling allowance (3) he had suppressed that he had taken undue rebate from the Income Tax Department. So far as charge relating to giving undue favour to his landlady is concerned, those charges were not so serious warranting imposition of penalty of removal from service. Regarding obtaining un-authorised traveling allowance, he submits that the amount of alleged withdrawal was itself a meager amount. Regarding the charge of obtaining undue benefit in respect of Income Tax rebate, he submits that such charge has got no connection with the discharge of official duty of the petitioner nor such charge has been leveled by the Income Tax Authority. Sri Yugal Kishore, learned senior counsel has highlighted that even those documents were taken into account by the disciplinary authority which were not at all available till the conclusion of the enquiry by the conducting officer. According to learned senior counsel the conducting officer had concluded its enquiry on Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 11/27 20.7.1990 whereas while referring to Annexures - 4 i.e. copy of proceedings of enquiry officer, learned senior counsel for the petitioner has tried to pursued the court that certain relevant documents were not provided to the petitioner and he further while referring to Annexure - 3 to the writ petition i.e. copy of proceedings dated 31.1.1990 submits that the enquiry officer had directed the presenting officer to take necessary steps for discovery and production of some relevant documents. Even without production of such documents proceeding was concluded and accordingly, the entire departmental proceeding was in violation of the principle of natural justice.
Sri Yugal Kishore, learned senior counsel has further highlighted that as per Banks Regulations, 1976 on the conclusion of the enquiry by the conducting officer it was mandatory to examine the delinquent in view of Clause 6 (17) of Banks Regulations, 1976 and accordingly, the proceeding had vitiated and on this ground even the enquiry report is liable to be set aside. Besides making prayer for setting aside the order of punishment and subsequent orders, on the point of quantum of punishment, learned senior counsel has placed heavy reliance on 1999 (1) PLJR 282 (Umesh Prasad Singh vs. Munghyr Kshetriya Gramin Bank & anr.), 2013 (3) PLJR SC 351 (Jai Bhagwan vs. Commr. of Police Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 12/27 & Ors.) and (2003) 8 SCC 9 (DEV SINGH Versus PUNJAB TOURISM DEVELOPMENT CORPORATION LTD. AND ANOTHER). He has specifically referred to paragraph no. 15 of Jai Bhagwan Case (Supra) which is quoted hereinbelow:-
"15. In the totality of these circumstances, we are of the view that while dismissal from service of the appellant is a harsh punishment the order for dismissal could be substituted by an order of reduction to the rank of a constable with the direction that while the appellant shall have the benefit of continuity of service he shall not be entitled to any arrears of pay or other financial benefits for the period between the date of dismissal and the date of his reinstatement against the lower post of constable. We are conscious of the fact that this Court could in the ordinary course remit the matter back to the disciplinary authority for passing a fresh order of punishment considered proper but we are deliberately avoiding that course. We are doing so because the order of dismissal of the appellant was passed in the year 2001. A remand at this distant point of time is likely to lead to further delay and litigation on the subject which is not in the interest of either party. We have, therefore, upon an anxious thought as to the quantum of punishment that is appropriate taken the unusual but by no means impermissible course of reducing the punishment to the extent indicated above."
Similarly, he has referred to paragraph no. 7 of Dev Singh Case (Supra) which is quoted hereinbelow:-
"7. Applying the said principles laid down by this Court in the cases noted hereinabove, we see that in this case the appellant has been serving the respondent Corporation for nearly 20 years with unblemished service, before the present charge of misconduct was leveled against him. The charge itself Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 13/27 shows that what was alleged against the appellant was misplacement of a file and there is no allegation whatsoever that this file was either misplaced by the appellant deliberately or for any collateral consideration. A reading of the charge - sheet shows that the misplacement alleged was not motivated by any ulterior consideration and at the most could be an act of negligence, consequent to which the appellant was unable to trace the file again. The disciplinary authority while considering the quantum of punishment came to the conclusion that the misconduct of the nature alleged against the appellant should be viewed very seriously to prevent such actions in future, whereby important and sensitive records could be lost or removed or destroyed by the employee under whose custody the records are kept. Therefore, he was of the opinion that a deterrent punishment was called for, forgetting for a moment that no such allegation of misplacing of important or sensitive record was made in the instant case against the appellant and what he was charged of was misplacement of a file, importance or sensitiveness of which was not mentioned in the charge - sheet. Therefore, in our opinion, the disciplinary authority was guided by certain facts which were not on record, even otherwise, we are of the opinion that when the Service Bye-laws applicable to the Corporation under Service Bye-law 17 provide various minor punishments, we fail to appreciate why only maximum punishment available under the said Bye-laws should be awarded on the facts of the present case. We think the punishment of dismissal for mere misplacement of a file without any ulterior motive is too harsh a punishment which is totally disproportionate to the misconduct alleged and the same certainly shocks our judicial conscience. Hence, having considered the basis on which the punishment of dismissal was imposed on the appellant and the facts and circumstances of this case, we think to avoid further prolonged litigation it would be appropriate if we modify the punishment ourselves. On the said basis, while upholding the finding of misconduct against the appellant, we think Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 14/27 it appropriate that the appellant be imposed a punishment of withholding of one increment including stoppage at the efficiency bar in substitution of the punishment of dismissal awarded by the disciplinary authority. We further direct that the appellant will not be entitled to any back wages for the period of suspension. However, he will be entitled to the subsistence allowance payable up to the date of the dismissal order."
On the point of vitiating departmental proceeding on the ground of non supply of relevant documents, he has placed reliance of on 2008(4) PLJR 21 (Dr. Ramavtar Prasad vs. The State of Bihar & Ors.). On aforesaid grounds, it has been prayed to allow the writ petition and grant the reliefs as indicated above.
Sri Rupak Kumar, learned counsel appearing on behalf of respondent /Bank Of India has strenuously opposed the prayer of the petitioner. He submits that in the departmental proceeding full opportunity was provided to the petitioner and he duly participated in the same. In the departmental proceeding serious charges were leveled against the petitioner. The charges were basically pertaining to integrity of the petitioner which has been proved against him. According to Sri Rupak Kumar, learned counsel for the Bank, out of 11 charges 10 charges were fully proved and one charge i.e. charge no. VIII was partly proved. During the enquiry by the conducting officer since all the charges were proved, there was no option but to ask for comment from the Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 15/27 petitioner after forwarding the enquiry report to him. The petitioner though had filed reply to the show cause but it was not enough to persuade the disciplinary authority to accept the same and finally the disciplinary authority taking into account past service record of the petitioner instead of passing order of dismissal of the petitioner from service took lenient view and passed only an order for his removal from the service. Regarding supply of documents, he submits that during the enquiry only those documents were relied upon which were either supplied to the petitioner or the petitioner was allowed to examine and inspect those documents. Accordingly, it was full compliance of the principle of natural justice. He has further argued that on behalf of the petitioner a plea was taken that certain relevant documents were not produced but it has not been pleaded that which of the document was not produced and how it was relevant and how the petitioner has been prejudiced due to non - production of such document. At this juncture he has referred to paragraph no. 5.1(d) of the appellate order dated 29.9.1994 , which is quoted hereinbelow:
"5.1(d) It is proved in the enquiry, on the basis of documentary evidence, that the credit as well as debit entries made by Shri Mallick in the ledger account of Smt. Bimla Devi were fictitious. Although certain documents sought by the defence could not be produced due to non availability, the relevancy of such documents and in what way it‟s non production had prejudiced the defence case are not clear, when the entries were proved fictitious in the inquiry. Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 16/27 Further, the Inquiring Authority has observed at page No. 3 of the report that the documents sought by the defence and not made available did not relate to the questioned entries. The contention that the excess interest paid in this behalf was Rs. 44.15 is also not borne out of facts. The documentary evidence on record shows the interest paid was Rs. 739.35 and hence undue pecuniary benefit has been passed on to the customer. Making fictitious entries in the books of account are extremely serious and is indicative of lack of honesty and integrity."
Controverting the argument advanced on behalf of the petitioner regarding non compliance of provision contained in Clause 6 (17) of Banks Regulation 1976, Sri Kumar submits that Clause 6 (17) may not be read in isolation but if it is read conjointly with Clause 6 (16) and 6 (17) it will be evident that no prejudice has been caused to the petitioner. He submits that the petitioner was provided full opportunity in the departmental proceeding and his case was duly represented by his defence representative. He submits that the charges which have been proved against the petitioner in the departmental proceeding was enough for imposing punishment of dismissal. However, he has only been removed from the service. To corroborate his submission Sri Rupak Kumar has referred to paragraph no. 4(f) of the order of reviewing authority i.e. Annexure -10 to the writ petition , which is quoted hereinbelow:-
"4(f) The charges levelled against Shri Mallick involved among others lack of integrity and honesty. These charges were proved in the inquiry and the Inquiring Authority has Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 17/27 said so in his report. Hence, there is no merit in this contention. Although, the charges proved involved lack of integrity and honesty there is nothing wrong if the disciplinary authority awards the penalty of removal from service instead of dismissal from service having regard to the extenuating circumstances like past record."
He further submits that in respect of officer / employee of the Bank maintaining integrity is paramount and even slightest deviation warrants dismissal from the service. To elaborate this submission he has specifically relied on an Apex Court Judgment reported in (2006) 7 SCC 212 (STATE BANK OF INDIA AND OTHERS Versus RAMESH DINKAR PUNDE). He has specifically referred to paragraph no. 21, which is quoted hereinbelow:-
"21. Confronted with the facts and the position of law, learned counsel for the respondent submitted that leniency may be shown to the respondent having regard to long years of service rendered by the respondent to the bank. We are unable to countenance such submission. As already said, the respondent being a bank officer holds a position of trust where honesty and integrity are inbuilt requirements of functioning and it would not be proper to deal with the matter leniently. The respondent was a Manager of the Bank and it needs to be emphasized that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer so that the confidence of the public / depositors is not impaired. It is for this reason that when a bank officer commits misconduct, as in the present case, for his personal ends and against the interest of the bank and the depositors, he must be dealt with iron hands and he does not deserve to be dealt with leniently." Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 18/27 He highlights that for official of the bank devotion and integrity has got much relevance and deviation from such devotion and integrity warrants stringent action against such employee or officer. Sri Rupak Kumar has further argued that past service record of the petitioner has got no relevance in the facts and circumstances of the present case particularly seriousness of the charges on which the petitioner was proceeded and punished. He has argued that in a case reported in (2006) 2 SCC 255 (T.N.C.S. CORPN. LTD. AND OTHERS Versus K. MEERABAI) the Apex Court even in a case of first misconduct has disapproved taking lenient view while exercising the power of judicial review. He further submits that the plea of petitioner that the charges on which the petitioner has been punished do not indicate huge pecuniary loss has got no relevance. On this very point he has relied on (2005) 7 SCC 435 (STATE BANK OF INDIA AND ANOTHER Versus BELA BAGCHI AND OTHERS). On the quantum of punishment Sri Rupak Kumar, learned counsel for the respondent has argued that unless the petitioner punishment imposed appears to be shocking to the conscience of the court, at the time of judicial review such punishment order may not be interfered with. He has specifically referred to paragraph no. 13 and 14 of the judgment reported in (2008) 7 SCC 580 (STATE OF Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 19/27 MEGHALAYA AND OTHERS Versus MECKEN SINGH N. MARAK), which are quoted hereinbelow:-
"13. Under the circumstances the question arises whether the Division bench of the High Court was justified in setting aside the order of removal of the respondent from service and remitting the matter to the appellate authority, namely, the Inspector General of Police to consider the question of imposition of appropriate punishment, short of removal from service, commensurate with the gravity of the proven misconduct of the respondent. A court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it felt that the punishment is not commensurate with the proved charges.
14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts , in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice."
On aforesaid grounds it has been pleaded on behalf of respondent / Bank that neither there is any infirmity in either of Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 20/27 the orders nor it is a case for altering punishment on the ground that the punishment of removal is disproportionate.
Besides hearing learned counsel for the parties, I have also perused the materials available on record. Fact remains that the petitioner was departmentally proceeded initially in the year 1988 and finally on conclusion of departmental proceeding he was imposed punishment of removal from service on 6.5.1991. After the order of removal the petitioner approached this court raising almost all the pleas which have been taken in the present writ petition. A bench of this court in C.W.J.C. No. 3997 of 1991 had considered the plea of petitioner regarding non supply of relevant documents and had rejected the same in its judgment dated 17 th August, 1993. At this juncture, it would be appropriate to reproduce the earlier judgment of this court, which is as follows:-
"This application under Articles 226 and 227 of the Constitution of India is for quashing the order dated 6th May, 1991,(Annexure 3) issued by Shri M.V. Palekar, Zonal Manager (Disciplinary Authority), Bank of India ( respondent no. 2) whereby and whereunder the petitioner has been removed from service of the Bank in terms of Regulation 4(g) of the Bank of India Officers Employees‟ ( Discipline & Appeal ) Regulation, 1976 (hereinafter referred as „Regulation‟).
2. The petitioner at the relevant time was working in the regional Office of the Bank at Giridih. A disciplinary proceeding for various charges was started against him under the orders of the Zonal Manager (respondent no. 2). The petitioner filed show cause before the Inquiring Authority. Thereafter on Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 21/27 15.3.1991, an inquiry report was served with the petitioner asking him to submit his defence. Thereafter, by the impugned order, his removal from service was passed.
3. Mr Ganesh Prasad Singh, Senior Advocate for the petitioner, contended that the impugned order is without jurisdiction because Mr. M.V. Palekar was not the Zonal Manager at the relevant time since he was transferred pursuant to the order dated 29.4.1991 and handed over charge of the Zonal Office to Mr. Bimlendu Chakraborty, Joint Zonal Manager, which would be apparent from office order (Annexure 2) issued by Mr. Palekhar himself. He further contended that the disciplinary authority should not have placed reliance over the inquiry report. The grievances is that relevant documents, although asked for from the disciplinary authority, were not supplied to the petitioner. In that view of the matter, the Inquiring authority or the disciplinary authority were not justified in taking help from such documents, copies of which were not supplied to the petitioner.
Mr. Singh next contended that the appointing authority of the petitioner being the General Manager, the order of punishment awarded by the Zonal Manager, Bihar North Zone, in terms of regulation 4(g) of the Regulations is illegal and without jurisdiction.
4. Respondent nos. 1 and 2 have filed their counter affidavit, opposing the prayer of the petitioner in the writ application. Their, first objection is that the writ application is not maintainable as the petitioner has not exhausted the alternative remedy, that is, the appellate forum as provided under Regulation 17 of the Regulations. It is further stated that the grievance of the petitioner of non-supply of relevant documents is wholly incorrect and unfounded. All the relevant documents, asked for by the petitioner, were supplied and with respect to certain documents, he had access to copy out and accordingly the petitioner got ample opportunity to take the relevant document.
With respect to the power of the Zonal Manager to award punishment, it has been stated that under Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 22/27 the relevant regulations, the Zonal Manager is a disciplinary authority and was competent to award punishment on the officers of Classes II and III grade. It is wrong to say that only the General Manager is the competent authority to award such punishment.
5. In the facts and circumstances of this case, with respect to the first grievance of the petitioner that relevant documents were not supplied, in view of the admitted position that certain documents were supplied to the petitioner, and in regard to the remaining, the petitioner was given ample opportunity to peruse such documents and copy out , if necessary, there is no substance in such grievance.
So far as the question raised by the petitioner that it was the General Manager who could pass such order is concerned, in view of Banking Regulations, admittedly, the Zonal Manager was authorized with power of Disciplinary authority, therefore, I find no substance in such grievance.
6. Now main question which falls for consideration is whether Shri Palekar, was Zonal Manager, on the date the impugned order was passed, in view of his order of transfer dated 29.4.1991, being no longer holding the charge of Zonal Manager, was competent to pass the impugned order.
Mr K.D. Chatterjee, Senior Advocate, appearing for the respondent Bank, contended that from Annexure A, which is a copy of the charge report, it would appear that on 6.5.1991 Mr Palekar handed charge of Bihar North Zone to Shri B. Chakraborty, Joint Zonal Manager at close of the business hours. According to him, undoubtedly Mr Palekhar worked as Zonal Manager till the day he handed over the charge and, therefore, he was fully competent to pass the impugned order of removal on that day. He contended that by office order dated 29.4.1991, he had not handed over charge. Since he was under
orders of transfer; a direction was issued that the papers be placed before the Joint Manager and if he thought fit, he would place such papers before the Zonal Manager. Therefore, Mr Palekhar had not handed over charge and continued to hold such Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 23/27 charge till 6.5.1991. Apart from the aforesaid, it is contended that it was not mentioned in the order of transfer that it would take immediate effect. In that view of the matter till 6.5.1991 when Mr. Palekar handed over charge, he continued to be the Zonal Manager.
7. On behalf of the petitioner, it was contended that till 6.5.1991, Sri Palekar did not sign any paper except the impugned order. All functions were performed by another officer who was duly authorized. Having noticed the aforesaid submissions, I put a specific question to Mr Chatterjee- whether Mr Palekar signed any other paper except the impugned order dated 6.5.1991 in capacity of the Zonal Manager. Learned counsel, appearing for the respondents, fairly conceded that no other paper was signed by him on 6.5.1991. I have noticed the contention of Mr Chatterjee that there was nothing in the order of transfer to show that the same was effective from the date it was issued.
In that view of the matter , no doubt the order would be effective on the date when charges are handed over. But I have also noticed the contention of the learned counsel for the petitioner that on 29.4.1991 Mr Palekar had himself issued office order directing the departments to place all papers before Shri B. Chakraborty, Joint Zonal Manager, in view of his impending transfer.
8. In view of the conflicting stand of the parties, it is difficult to hold whether Mr Palekar was holding charge of Zonal Manager on 6.5.1991. If the office order dated 29.4.1991 is interpreted in the manner it has been done by the petitioner, naturally one has to come to a conclusion that on 6.5.1991 Mr Palekar was not the Zonal Manager. If on the other hand, Annexure A, copy of charge report, dated 6.5.1991, is taken into consideration, apparently, therefore, it would appear that Mr Palekar was holding charge till that day. But in any view of the matter, assuming Mr Palekar was holding the post of Zonal Manager, it was in all fairness and in the interest of justice not to decide such conflicting question, relating to removal of the petitioner from service on the last date.
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9. As indicated above, in view of disputed facts, it would be appropriate for the ends of justice that the inquiry report and all other relevant papers be placed before the present Zonal Manager or any other competent authority for a fresh decision.
In view of the facts stated above, I direct the Zonal Manager (respondent no. 2) to pass a fresh order in accordance with law on the basis of the materials already available on the record. In case, ultimately respondent no. 2 comes to a conclusion that the petitioner was not guilty of the charges, naturally, he would be entitled for all the arrears of salary which has not been paid. But if the petitioner is held guilty and punishment of removal etc. is imposed, he will not be entitled for any payment.
10. In the facts and circumstances of the case, the impugned order shall be kept in abeyance so long a final decision is taken by respondent no. 2. Final order as indicated above, must be recorded within two months from the date of production / receipt of a copy of this order by respondent no. 2.
This writ application is allowed to the extent indicated above."
On perusal of paragraph no. 5 of the aforesaid judgment it is evident that the plea of non supply of documents was taken on behalf of the petitioner and the same was rejected. This court had only interfered with the order of punishment on the point that the disciplinary authority i.e. Zonal Manager had passed order of punishment after the order of his transfer and this court directed for placing enquiry report and all other relevant papers before the Zonal Manager or any other competent authority for fresh decision. Once this court had answered an issue which was raised in the same context, the petitioner can not be allowed to re-agitate the Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 25/27 same issue, and as such, the ground for assailing the orders on the plea of non supply of so-called documents is required to be noticed only for its rejection and as such, the said plea is hereby rejected. So far as nature of charge is concerned, it is evident that incorrect entries were made by the petitioner in his capacity as Bank Officer. Such omission and commission on the part of a Bank Official is serious misconduct and touches the basic integrity of a Bank Officer / Employee. In the departmental proceeding almost all the eleven charges were proved. Of-course, one charge i.e. charge no. VIII was partly proved. In such situation, in absence of any material to show that in the decision taking process in the departmental proceeding any error or mistake was committed, it would be beyond the jurisdiction of this court to interfere with the order of punishment while exercising power of judicial review. Regarding non interference with the quantum of punishment, it would be better to quote the views of the Apex Court, particularly paragraph no. 14 and 15 of the judgment of the Apex Court reported in (2008) 7 SCC 580 (STATE OF MEGHALAYA AND OTHERS Versus MECKEN SINGH N. MARAK ) on which heavy reliance was placed by learned counsel for respondent /Bank , which are as follows:-
"14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 26/27 exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts , in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice.
15. While considering the question of proportionality of sentence imposed on a delinquent at the conclusion of departmental enquiry, the court should also take into consideration, the mental set -up of the delinquent, the type of duty to be performed by him and similar relevant circumstances which go into the decision - making process. If the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct, in such cases has to be dealt with with iron hands."
I have minutely perused the order of punishment which was passed pursuant to the judgment of this court dated 17 th August, 1993 in C.W.J.C. No. 3997 of 1991. There appears no error in the order of punishment. Moreover, the order of punishment has been repeatedly examined by the appellate authority, reviewing authority as well the Chairman -cum- Managing Director. I do not find any error in either of the orders, and as such, the writ petition stands Patna High Court CWJC No.3748 of 1998 dt. 9 -12-2013 27/27 dismissed.
(Rakesh Kumar, J) Praful/-