Patna High Court
Prakash vs Board Of Directors, Mithila Kshetriya ... on 14 September, 1995
Equivalent citations: 1996(1)BLJR40
Author: Asok Kumar Ganguly
Bench: Asok Kumar Ganguly
JUDGMENT Asok Kumar Ganguly, J.
1. This writ petition has been filed challenging inter alia, the disciplinary proceeding initiated against the petitioner by which he has been removed from service by an order passed by the Chairman of Mithila Kshetriya Gramin Bank (hereinafter called the respondent Bank). On an appeal being filed from the said order, the appellate authority, the Board of Directors of the said respondent Bank by an order dated st/2nd March, 1994 rejected the said appeal. The; order has also been challenged in this proceeding along with the inquiry report dated 19th September, 1992 and the chargesheets dated 1th October, 1993 and 25th May, 1992.
2. It is not in dispute that the services of the petitioner is governed by Mithila Kshetriya Gramin Bank (Staff) Service Regulations, 1980 (hereinafter called the said Regulation).
3. At the material time the petitioner was posted as Branch Manager of Bagrasi Branch in the district of Darbhanga of the respondent Bank. Prior to the present proceeding, the services of the petitioner were terminated on 2nd May, 1981 by the Chairman of the respondent Bank on the purported allegation of his ante dating a transaction dated 4th April, 1981. Before passing the order of termination the petitioner was asked to give explanation in respect of the said transaction but before the explanation of the petitioner could reach the office of the respondent Bank, the termination order was passed. The petitioner, however, challenged the said order by filing a writ petition which was numbered as C.W.J.C. No. 3970 of 1981. The said writ petition ultimately came up for hearing before a Division Bench of the Court and the said termination order was quashed by a Division Bench of this Court by an order dated 18th August, 1983.
4. Thereafter the petitioner joined the Head Office at Darbhanga of the respondent Bank. After he joined said respondent Bank on or about 21st September, 1983, the petitioner was served with a charge-sheet by respondent No. 2. by letter dated 11th October, 1983 to which the petitioner submitted his reply on 13th December, 1983. A supplementary charge-sheet was also issued on 5th May, 1992 to which also the petitioner submitted his reply on 6th May, 1992. An Inquiry Officer was appointed to conduct the inquiry in respect of the charge-sheets dated 1lth October, 1983 and 5th May 1992. The said Inquiry proceeding has been challenged by the petitioner on various grounds stated herein below.
5. The first ground of challenge to the said inquiry proceeding is that under Regulation 30 (3) of the Staff Regulations of the respondent Bank, it is provided that the Inquiry Officer must be a person who is in a grade higher then the officer also is proceeded against. The said provisions contained in Regulations 30 (3) of the said Regulation is said out below:
The inquiry under this regulation and the procedure with the exception of the final order, may be delegated in case the person against whom proceedings are taken is an officer to any officer who is in a grade higher than such officer and in the cases of an employee to any officer. For purposes of the inquiry, the officer or employee may not engage a legal practitioner.
6. It has been asserted in the instant case that the Inquiring Officer is Junior in grade and rank to the petitioner and as such the entire inquiry proceeding has been vitiated. In this connection reference may be made to the averments made in the counter-affidavit of the respondent Bank. In paragraph 44 of the writ petition it has been asserted that the petitioner happens to be in the same grade and in the same scale of pay as that of the Inquiry Officer and it has been further/asserted that the Inquiry Officer was junior to the petitioner at the time of his appointment as Inquiry Officer. While dealing with the said averment in paragraph 44 of the Counter-affidavit of the Bank it has been stated that no Officer higher in grade than the writ petitioner as well as the Inquiry Officer was posted in the Respondent Bank. As such the allegation made in the writ petition in paragraph 44 relating to non-compliance of the provisions of Regulation 30(3) of the said Regulation is apparently admitted by the Respondent Bank.
7. The next ground of challenge in this writ petition is that the copy of the enquiry report was not given to the petitioner before imposition of penalty. In the instant case, the penalty was imposed upon the petitioner on 24th March, 1993. This attack on the validity of the inquiry proceeding has not been repelled by the learned Counsel appearing for the respondent Bank and in the counter-affidavit also it has been stated in paragraph 28 that on the basis of the report submitted by the Inquiry Officer, the disciplinary authority imposed the penalty of removal. Along with the said decision, a copy of the inquiry report was communicated to the petitioner. Thus it is not disputed by the learned Counsel for the Respondent Bank that the inquiry report was not made available to the petitioner prior to the passing of the impugned order of removal by the disciplinary authority.
8. The implication of non-furnishing of the inquiry report is well known. It has been held in the cases of Union of India v. Md. Ramzan Khan and Managing Director, and S.C.I.L. v. B. Karunakar and respectively that non-furnishing of inquiry report goes to the root of the matter and makes the impugned order of dismissal in-operative in the eye of law. In the Constitution Bench decision in the case of Managing Director S.C.I.L. (Supra) it has been held in paragraph 26 page 754 of the report as following:
The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance to what extant the said findings including the punishment, if any recommended in report would influence the disciplinary authority while drawing its conclusion. The reading further might have been recorded with considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to be employee. to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer to constitute an important material before the disciplinary authority which is likely to influence its conclusions.
Concluding findings on that aspect have been recorded as follows in paragraph 30 at page 756 of the report which is set out below:
(1) 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 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.
Learned counsel for the respondents has drawn the attention of the Court to the following portions of the said judgment in paragraph 30 (v), page 757 of the report:
The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assists 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, 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:
9. Here this Court does not think that non-supply of enquiry officer's report to the petitioner before imposition of penalty would not have made any difference, in fact on the petitioner's, appeal on the basis of the enquiry report the appellate authority has held the petitioner not guilty in respect of the first charge. Therefore, the furnishing of enquiry has brought about a difference. Therefore, in the facts of this case, the non-furnishing of the enquiry Officer's report prior to the imposition of penalty has vitiated the order of removal and in the fact of this case made the same non-est and infirm.
10. The other ground of challenge to the impugned proceeding is that certain documents were not given to the petitioner as a result of which he could not take proper defance. The factual foundation in respect of this averment has been made in paragraph 3 (c) of the rejoinder affidavit. In paragraph 3 (c) of the rejoinder affidavit the petitioner has given a list of the documents which were denied to the petitioner. The said list is set out below:
There has been several instances of violation of the principle of natural justice, which is evident from the following:
(i) The enquiry officer in the report proceeding dated 5-8-1992 has denied the request of the petitioner to make available the seven documents which was very much relevant to support the defence of the petitioner. Those documents are:
(a) Petitioner's appointment letter. This was necessary to show the contract between the Bank and petitioner.
(b) Despatch Register of personnel department. This was essential to prove that the Bank had sent the first termination letter of 1981 after receiving the petitioner's reply.
(c) Letter of Branch Manager, Sugra in dated 17-1-1981 to show the incharge II was not based on materials.
(d) Memo given to Mr. Rashid Ahmed Khan. Clerk who closed the Bank's Book and duly signed of him at S.B. Baghesi, Also action was not taken against him though he was responsible for closing the Banks book on fateful day. He has been promoted from clerk to Officer because he was gave evidence against the petitioner.
(e) Promotion letter of Mr. Rashid Ahmad Khan. This letter proves that he was rewarded and on the other hand the petitioner's services was terminated.
(f). Transfer letter of Mr. Rashid Ahmed Khan to show that he was given prize posting by the then Chairman Mr. Khan to the door step of his native village. The then Chairman utilised him against me.
(g) Procedure and tenure of training. This letter was heeded to prove that the petitioner was kept under training with Mr. Girish Chandra Prasad who was junior to the petitioner and he joined the Bank service on 21-10-1980 with the petitioner.
11. In answer to the said affidavit, reply has been filed by the respondent Bank and this aspect has been dealt with in paragraphs 6,7,8,9 and 10 of the said reply to the rejoinder affidavit but in those paragraphs save and except standing that the documents are not relevant, no other reason has been assigned as to why those documents were not made available to the petitioner. Whether the documents are relevant or not has to be judged from the point of view of the defence of the delinquent. Since the charges against the petitioner are based on documents the stand of the respondent Bank in denying the petitioner his access to those documents, in my view, does have a deleterious and damaging effect on the petitioner's defence.
12. Learned Counsel for the petitioner further submitted that apart from the aforesaid infirmity, the finding of the Enquiry Officer it self is wholly perverse and on the charges framed against the petitioner, the order of his removal from service is shookingly, disproportionate and as such this Court ought to set aside the finding of the Enquiry Officer as well as the impugned order of punishment which has been imposed upon the petitioner.
13. It appears that against the four charges levelled against the petitioner, there have been allegedly proved and the second charge has not been proved. The charges which have been allegedly proved against the petitioner are (i) the petitioner did not reply to the show cause issued to him and against that charge the petitioner has been reprimanded. The third charge is not the work of the Branch on 4th April, 1981 was done on 3rd April, 1981. This charge has also been proved and against the said charge two increments of the petitioner were stopped. The fourth charge which has been proved against the petitioner is supposed to be the major charge about the debit and credit in. the petitioners account in the respondent Bank of Rs. 30,000/- towards payment of the salary of the petitioner on account of reinstatement. The said charge is said to have been proved and for the said charge the petitioner has been removed from service. Out of the four charges, at least perversity is palpable on the part of the Enquiry Officer in so for as he has held charge No. 1 as proved and it is for that reason that the appellate authority has exonerated the petitioner from that charge.
14. So for as the 4th charge against the petitioner is concerned it is one of withdrawing the amount of Rs. 30,000/- towards payment of salary for the order of reinstatement issued in favour of the petitioner. It is on body's case that the respondent Bank suffered any financial loss on account of the offending action to the petitioner which is the subject matter of the fourth charge against him.
15. The question whether the imposition of penalty of removal from service is disproportionate to the gravity of the allegation in the fourth charge against the petitioner cannot be gone into by this Court under writ jurisdiction. On this point the consensus of the judicial opinion is that the Supreme Court can go into such question either in exercise of its power under Article 142 or 136 of the Constitution of India but the High Court sitting under Article 226 of the Constitution of India cannot go into this question. Reference in this connection may be had to the decision of the Supreme Court in the case of State Bank of India and Ors. v. Semarendra Kishore Endow and Anr. In the said decision after considering this question on the basis of several other reported decisions, the apex Court has come to the following finding in paragraph 10 at pages 542 and 543 of the report:
It may be noticed that then imposition of appropriate punishment is within the discretion and judgment of the Disciplinry Authority. It may be open to the appellate authority to interfere with it but not to the High Court or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226. The power under Article 226 is one of judicial review. It is not an appeal from a decision, but a review of the manner in which the decision was made". (Per Lord Brightman in Chief Constable of the North Wales Police v. Evans and H.B. Gandhi, Excise and Taxation Officer cum-Assessing Authority v. Gopinath and Sons) In other words the power of judicial review is meant, "to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment, reachas on a matter which it is authorised by law to decide for itself, a conclusion which is correct in the eyes of the Court" (Per Lord Marylebone in Chief Constable v. Evans). In fact in service matters, it was held by this Court as far back as 1993 in State of A.P.V.S. Sree Rams Rao, that:
The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental inquiry against a public servant; it is concerned to determine whether the inquiry is held on according to the procedure prescribed in that behalf, and whether in rules of natural justice are not violated. Where there some evidence, which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of inquiry of where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at the conclusion, or on similar grounds. But the departmental authorities are, if the inquiry is otherwise properly held, the sole judges of fact and if there be some legal evidence on which the finding can be based. The adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding under Article 226 of the Constitution.
16. The same position has been reiterated also in the consequent paragraphs 11 and 12 of the said report and in paragraph 12 of the report it has been specifically held that interference with the quantum of penalty by the Supreme Court in the case of Bhagat Ram v. State of Himachal Pradesh was done in exercise of its equitable jurisdiction under Articles 226 of the Constitution and the High Court and Tribunal has to such power or jurisdiction.
17.Therefore, the reliance placed by the learned Counsel for the petitioner on the decision of the Supreme Court in the case of Bhagat Ram (Supra) in support of the contention that the writ Court under Article 226 of the Constitution can interfere with the quantum of punishment is of no avail in view of the aforesaid judgment of the Supreme Court in the case of State Bank of India (Supra) wherein the ratio in the case of Bhagat Ram (Supra) has been explained to the contrary.
18. The other decision cited by the learned Counsel for the petitioner in the case of Ex. Nalik Sardar Singh v. Union of India and Ors. reported in AIR 1993 SC page 417 was also a decision of the Supreme Court relying on the aforesaid decision of the Supreme Court in the case of Bhagat Ram (Supra). Therefore, the said decision also does not, in any way, come to the aid of the submission made by the learned Counsel for the petitioner that the High Court in exercise of the jurisdiction under Article 226 of the Constitution of India can interfere with the quantum of panalty.
19. Another decision cited by the learned Counsel for the petitioner, namely, Union of India and Ors. v. Girial Sharma reported in 1994 (Supp.) (3) SCC page 755 was also a decision of the Supreme Court where in the Hon'ble Judges of the Supreme Court interfered with the quantum of punishment which the High Court refused to do. Therefore that judgment cannot be an authority for the proposition that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India can interfere with quantum of punishment imposed in a disciplinary proceeding.
20. Another judgment of the Supreme Court in the case of Surjit Ghosh v. Chairman and Managing Director, United Commercial Submission Bank and Ors. is not a decision where there was any interference with the quantum of punishment but in that case the decision was confined to the question whether in the departmental proceeding the petitioner in that case was subjected to discriminatory treatment by way of denial of a right of appeal and also a right of review against the order of punishment. Therefore, the said judgment it of no assistance to the points at issue per se. This Court is thus unable to agree with the Commercial submission of the learned Counsel for the petitioner that proceeding under Article 226 of the Constitution this Court can interfere with the quantum of punishment imposed on the delinquent in a disciplinary proceeding.
21. However, this Court in its findings on other questions, remedy, holding of inquiry by an Enquiry Officer who is not higher in grade than the petitioner and for denial of documents and inquiry report to the petitioner, in the facts of this case comes to the conclusion that the instant disciplinary proceeding against the petitioner is vitiated because of the aforesaid infirmities and as a result the order of removal of the petitioner from service is un-tanable. As the order of removal in un-tanable, the impugned order passed by the appellate authority affirming the said order of removal also cannot be allowed to stand. Both the impugned orders are, therefore, set aside.
22. This Court, therefore, holds that the petitioner fortwith reinstated in service to the post from which he was dismissed. Such reinstatement should take place within a period of ten days from the date of receipt/production of a copy of this judgment. The petitioner will also be entitled to the entire back wages and such payment of back wages must also be made within two months from the date of reinstatement of the petitioner.
23. This writ application is thus allowed to the extent indicating above. There will be no order as to cost.