Orissa High Court
Bhaskar Chandra Mohapatra vs The Disciplinary Authority, Uco Bank ... on 14 July, 2015
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 5092 OF 2010
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Bhaskar Chandra Mohapatra ......... Petitioner
- versus -
The Disciplinary Authority, UCO Bank
and another. ......... Opp. Parties
For Petitioner : M/s. Surendranath Panda
For Opp.Parties : M/s. B.N. Udgata, S.M. Singh, N. Behera
& M.T. Bag.
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 22.06.2015 | Date of Judgment: 14.07.2015
Dr. B.R.Sarangi, J.The petitioner, who was working as Middle Management Grade Scale-II (M.M.G.S.-II) officer in UCO Bank has filed this application assailing the order dated 24.06.2008 in Annexure-7 passed by the Disciplinary Authority imposing a major penalty of dismissal from service which shall ordinarily be a disqualification for future employment, confirmation thereof in appeal by the appellate authority pursuant to order dated 03.02.2010 in Annexure-10, on the ground that the order of punishment is disproportionate to the misconduct alleged against him and seeks for reinstatement in service with all accrual benefits.
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2. The short fact of the case in hand is that the petitioner having been duly selected by the competent authority joined the Bank as an Assistant Cashier on 25.06.1979. Thereafter, he was promoted to the Officers' Cadre, i.e., Junior Management Grade Scale-I(J.M.G.S.-I) on 01.01.1985 and further promoted to the Middle Management Grade Scale-II (M.M.G.S.-II) on 01.06.2004 and was transferred to the State of Bihar. The Zonal Office, Bhagalpur under the State of Bihar, posted him as Manager of Faujadari Branch on 02.08.2004. While he was so continuing, pending contemplation of disciplinary proceeding against him, he was placed under suspension on 03.05.2007 in exercise of powers conferred under Regulation-12 of the UCO Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 (hereinafter referred to "1976 Regulation") and he was directed to remain in its headquarter at Faujadari Branch in the State of Bihar vide Annexure-1. On the allegation of omission and commission in transactions, he was issued with a notice of show cause vide Annexure-2 dated 04.05.2007 calling upon him to submit his reply within ten days from the date of receipt of the letter, failing which disciplinary action would be initiated against him as per the provisions contained in UCO Bank Officers Employees (Conduct) Regulations, 1976 as amended. The petitioner was served with a statement of allegation and articles of charges vide Annexure-3 dated 24.09.2007 proposing to hold an enquiry against him under Regulation 6 of the 1976 Regulations. As many as 15 allegations have been made against him and accordingly, articles of charges were 3 framed stating that act of the petitioner displays lack of integrity, honesty, devotion and diligence in discharging of his duty thereby, the same is violative of regulation 3(i) of 1976 Regulation as amended. To such articles of charges, the petitioner submitted his reply vide Annexure-4 dated 15.10.2007 denying the same. Having not satisfied with the reply so submitted, Shri Sita Ram Prasad was appointed as Enquiry Officer, who submitted his enquiry report on 24.09.2007 holding that charge nos. 1, 5, 7, 8 and 13 have been partially proved, charge nos. 3, 6, 10, 12 and 14 have been proved and charge nos. 2, 4, 11 and 15, have not been proved and accordingly, the petitioner was been called upon to submit his reply basing upon which the petitioner submitted his reply vide Annexure-6 on 04.04.2008, but the disciplinary authority instead of considering the same in proper prospective passed the final order on 24.06.2008 imposing the punishment of dismissal from Bank's service w.e.f. 24.06.2008 which shall ordinarily be a disqualification for future employment, stating that suspension order passed against the petitioner is revoked and period of suspension will not be treated as on duty. Therefore, the petitioner will not eligible for any financial benefit other than subsistence allowance already paid to him, vide Annexure-7. Against the said order of punishment of dismissal from service vide Annexure-7, the petitioner preferred an appeal on 04.08.2008 vide Annexure-8. The Appellate Authority in exercise of powers conferred under Regulation 17 of 1976 Regulation as amended upheld the penalty awarded by the Disciplinary 4 Authority vide order dated 24.07.2008 and the appeal to waive the penalty was also rejected. Hence this writ petition.
3. Mr. S. N. Panda, learned counsel for the petitioner states that the order of imposition of major penalty of dismissal which has been confirmed by the Appellate Authority is shockingly disproportionate to the delinquency alleged and the same having been based without taking into consideration the inspection report by which the allegation of irregularities have been rectified is an outcome of non- application of mind. The petitioner's unblemished past career has not been taken into consideration and as there is gross procedural lapses as the provisions contained in Regulation 6(13) have not been followed. Therefore, he seeks for quashing of the same. In order to substantiate his contention he has relied upon the judgments of Jogeswar Bagh v. Registrar (Admn.) Orissa High Court & Others, 2009 (I) CLR 863, Ram Prit Singh v. Union of India & Others, 2010 (I) CLR 329, Jogeswar Bag v. Registrar(Admn.), Orissa High Court and others, 2009(I) CLR 873, Nirmala J. Jhala v. State of Gujurat, 2013(I) CLR (SC) 940, R. Mahalingam v. Chairman Tamilnadu P.S.C. & Others, AIR 2013 SC 2225, Atlas Cycle (Haryana) v. Kitab Singh, AIR 2013 SC 1172.
4. Mr. B.N. Udgata, learned counsel appearing for Bank while refuting the contentions raised by learned counsel for the petitioner, substantiated the action taken by the bank and stated that 5 the order of punishment has been imposed in conformity with the provisions of law and as such, it is within the domain of the Disciplinary Authority to impose the punishment taking into consideration the allegations made against the delinquent officer. Therefore, the punishment so imposed should not be interfered with. In order to substantiate his contention, he has relied upon the judgments of the apex Court in Kendriya Vidyalaya Sangthan v. J. Hussain, (2013) 10 SCC 10, Lucknow K. Gramin Bank (Now Allahabad, U.P. Gramin Bank) & Anr. v. Rajendra Singh, AIR 2013 SC 3540.
5. To the above facts pleaded by the parties, it appears that in exercise of the powers conferred under Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, the Board of Directors of UCO Bank in consultation with the Reserve Bank and with previous sanction of the central Government framed regulation called "UCO Bank Officer Employees' (Discipline and Appeal) Regulations, 1976". Regulation 4 deals with penalties wherein it has been stated penalties mentioned therein may be imposed on an officer- employee for act of misconduct or for any other good and sufficient reasons and entire penalties have been classified as minor penalties as indicated in Sub-Regulations (a) to (e) and major penalties has been classified from Sub-Regulation (f) to (j). Dismissal which shall ordinarily be a disqualification for future employment has been classified under Sub Clause (j) of Regulation 4, which has been imposed on the present petitioner by the Disciplinary Authority in the impugned order and has 6 been confirmed by the Appellate Authority. The apex Court time and again in State Bank of India v. Ram Lal Bhaskar and another, (2011) 10 SCC 249, State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya (2011) 4 SCC 584 and State Bank of India and others v. Ramesh Dinkar Punde 2006 (7) SCC 212 has held that the Court cannot act as an appellate authority over the orders passed by the disciplinary authority and the appellate authority. Therefore, in exercise of judicial review, this Court can only examine whether there is infraction of any statutory provision governing the field while following the procedure and if there is procedural lapses, in that case, the Court can interfere with the same. Similar view has also been taken by this Court in Siba Prasad Pattnaik v. State of Orissa and others (OJC No. 8703 of 2001) disposed of on 05.05.2015. Keeping in view the above parameters laid down by the apex Court as well as this Court, it appears that under Regulation-6 of 1976 Regulation, procedure for imposing major penalties has been envisaged. Sub-regulation 13 of Regulation 6 reads as follows:
" On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority shall be examined by the Presenting Officer. The witnesses produced by the Presenting Officer shall be examined by the Presenting Officer and may be cross-examined by or on behalf of the officer employee. The Presenting Officer shall be entitled to re-examine his witnesses on any points on which they have been cross-examined, but not on a new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit."7
6. On perusal of the above mentioned provisions, it appears that on the date fixed for enquiry, oral and documentary evidence by which the articles of charges are proposed to be proved shall be produced by or on behalf of disciplinary authority, shall be examined by the Presenting Officer and the witnesses produced by the Presenting Officer shall be examined by the Presenting Officer and may be cross- examined by or on behalf of the officer employee. Therefore, in the present context no such evidence, oral or documentary, has been produced by or on behalf of the Disciplinary Authority before enquiry was conducted against the petitioner. On the basis of the materials available with the Presenting Officer, the proceeding was continued resulting thereby that the enquiring officer has not complied with the provisions as mentioned in sub-Regulation 13 of Regulation 6, which is in gross violation of the principles of natural justice. Though several documents have been relied upon in course of enquiry but such documents have not been produced on the date fixed for enquiry so as to enable the delinquent officer to go through the same and to either dislodge this evidence by adducing rebuttal documents or adducing oral evidence, as the case may be.
7. It also appears that the charges basing upon which the proceeding has been initiated against the petitioner were framed on the irregularities pointed out in the name of commission and omission in course of due discharge of duty during inspection by the competent authority and inspection report dated 09.12.2005 of the very Branch of 8 Faujadari (1702) reveals that the same have been rectified and there was recommendation for closure of the inspection report dated 09.12.2005 by the authority vide Annexure-12 dated 31.10.2007. If the commissions or omissions have been rectified by the authority and it has been reflected in the inspection report itself, for the self-same cause of action, the present proceeding as against the petitioner is unwarranted, rather it smacks of malafide against the authority concerned. The track record of the petitioner clearly indicates that he has got an unblemished service career for last 35 years and at the fag end of his career, he has been put to some difficulties and on the basis of irrational and unreasonable allegations made against him, he has been dismissed from service, otherwise he would have superannuated from service from 01.11.2010 on attaining the age of superannuation. Even though the lapses revealed in course of enquiry conducted by the enquiring officer with regard to non-application of sub-Regulation 13 of Regulation 6 had been brought to the notice of the Disciplinary Authority, the same had not been taken into consideration and therefore, the order of punishment so inflicted on the petitioner may not be sustained.
8. So far as the jurisdiction of the Court to interfere with the quantum of punishment is concerned, it is well settled that it is within the complete domain of the disciplinary authority. Whether on the basis of facts alleged the punishment imposed by the disciplinary authority is proportionate or not or it is required to be reduced that can 9 be considered at the discretion of the disciplinary authority. Therefore, what is appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rests at the discretion of the disciplinary authority. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment inasmuch as it is entitled to examine whether the charges have been satisfactorily proved. But when any such order is challenged before a service Tribunal or the High Court the exercise of discretion by the competent authority in determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the charge of misconduct and the Court considers it to be arbitrary and wholly unreasonable. The superior Courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. Where punishment is excessive or disproportionate to the offence so as to shock the conscience of the Court and is unacceptable even then Courts should be slow and generally reluctant to interfere with the quantum of punishment. The law on the subject is well settled by a series of decision rendered by the superior Court. This view has also been taken in Ranjit Thakur v. Union of India, (1987) 4 SCC 611 : AIR 1987 SC 2386, Dev Singh v. Punjab Tourism Development Corporation Limited, (2003) 8 SCC 9 :
AIR 2003 3712, Union of India v. Ganayutham, (1997) 7 SCC 463 :
AIR 1997 SC 3387, Ex-Naik Sardar Singh v. Union of India, (1991) 3 10 SCC 213 :AIR 1992 SC 417, Om Kumar v. Union of India, (2001) 2 SCC 386 : AIR 2000 SC 3689. Similar view has also been taken by this Court in Girish Mohanty v. Union of India represented through its Secretary in Home Department, New Delhi and others in OJC No. 2607 of 2001 disposed of on 03. 03. 2015.
9. In Deputy Commissioner, KVS & others v. J. Hussain, AIR 2014 SC 766, the apex Court has held that host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist. Therefore, in exercise of power under judicial review, the apex Court time and again has held that the Court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when punishment is shockingly disproportionate, suggesting lack of good faith. In paragraph-11 of the said judgment, the apex Court held as follows:-
"............ In all cases dealing with the penalty of removal, dismissal or compulsory retirements, hardship would result. That would not mean that in a given case punishment of removal can be discarded by the Court. That cannot a ground for the Court to interdict with the penalty. This is specifically held by this Court in H.G.E. 11 Trust & Anr. V. State of Karnataka & Ors. (2006) 1 SCC 430 in the following words:
"A person, when dismissed from service, is put to a great hardship but that would not mean that a grave misconduct should go unpunished. Although the doctrine of proportionality may be applicable in such matter, but a punishment of dismissal from service for such a misconduct cannot be said to be unheard of. Maintenance of discipline of an institution is equally important. Keeping the aforesaid principles in view, we may hereinafter notice a few recent decisions of this Court."
Similar view has also been taken in Krushna Chandra Behera v. Union of India and others in W.P.(C) No. 1845 of 2006 disposed of on 12.03.2015
10. In Jogeswar Bagh referred to above, though the apex Court has held the scope of judicial review is limited to the extent that Court may examine whether the enquiry has been conducted inconsonance with the statutory requirement and authority has given strict adherence to the principle of natural justice, the decision has been taken relying upon relevant materials and order is not perverse being based on irrelevant materials and the delinquent had been given a fair opportunity to meet the charge and punishment is not disproportionate to the gravity of the misconduct. However, in exceptional circumstances, where the punishment imposed is disproportionate to the delinquency to the extent that it shocks the conscience of the Court, the Court may interfere with the quantum of punishment also. But this principle of interference on quantum of punishment is not applicable to the present context in view of the fact 12 that there is a procedural lapses in conducting the inquiry. More particularly the provisions contained under sub-Regulation 13 of Regulation 6 has not been complied with since the imposition of penalty is well within the complete domain of the Disciplinary Authority. In judicial review, this Court refrains from interfering with the same in the present application.
11. In B.C. Chaturvedi v. Union of India & Ors., AIR 1996 SC 484, the Apex Court observed that in exercise of powers of judicial review, the Court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by the Authority "shocks the conscience" of the Court, it would appropriately mould the relief either directing the Authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself, impose appropriate punishment with cogent reasons in support thereof. This principle of the Apex Court cannot be applicable in the present context in view of the fact that since there is a procedural lapse by the authority while conducting the inquiry as the discretion lies with the Disciplinary Authority to impose the particular punishment.
12. Reference has been made to the case of Ram Prit Singh (supra) where a minor penalty imposed by withholding one increment of pay for a period of one year without cumulative effect has been considered to be disproportionate to the nature of misconduct established against him. Accordingly, this Court let off with the 13 punishment of censure or warning, but this principle is not applicable to the present context.
13. So far as applicability of the case of Nirmala J. Jhala (supra) and R. Mahalingam (supra) is concerned, the same has been decided by the apex Court in its own facts and circumstances of the case itself.
14. So far as Atlas Cycle (Haryana) Ltd. (supra) is concerned. the same arose out of industrial dispute case where the apex Court held that if the finding of the facts recorded by Labour Court is in disregard to evidence interference by writ Court would be sustained.
15. Reliance has been placed on Lucknow K. Gramin Bank (supra) by the opposite party-Bank, wherein the apex Court has held that punishment which is to be awarded to the delinquent is for the Disciplinary Authority to decide not for the Court. The quantum of punishment even if found disproportionate matter has to be referred back to disciplinary authority to take fresh decision and Court cannot usurp jurisdiction of disciplinary authority and decide the punishment subject to exception laid down in the said judgment.
16. Considering the above law laid down by the apex Court and this Court and taking into consideration the factual matrix of the case in hand, this Court is of the considered view that since there is non- compliance of the provisions contained in sub-Regulation 13 of Regulation 6, the authorities have acted in utter disregard to the 14 provisions of law governing the field, the order of punishment imposed by the Disciplinary Authority vide Annexure-7 dated 24.06.2008 and confirmation made thereof by Appellate Authority vide order dated 03.02.2010 in Annexure-10 cannot sustain in the eye of law and accordingly, the same are quashed. The matter is remitted back to the Disciplinary Authority to re-enquire into the matter in consonance with the 1976 Regulations. While conducting such enquiry, the authority may take into consideration the inspection report referred to in Annexure-12 and dispose of the same as expeditiously as possible preferably within a period of four months from the date of receipt of a copy of this judgment by affording opportunity to the parties. Needless to say that during pendency of the writ petition since the petitioner has already attained the age of superannuation, both the parties are directed to cooperate for early disposal of the proceeding within the time stipulated by this Court. It is further directed that pendency of this proceeding cannot disentitle the petitioner to get his legitimate claim as due and admissible to him in accordance with law.
17. With the above observation and direction, the writ petition stands disposed of.
Sd/-
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Dr. B.R.Sarangi, J.
Orissa High Court, Cuttack The 14th July, 2015/Ajaya 15