Patna High Court - Orders
Narendra Kumar Singh vs The State Of Bihar & Ors on 9 July, 2014
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13786 of 2012
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Narendra Kumar Singh, S/O Late Bishun Deo Singh, at Present-Paharpur,
Haweali Kharagpur, Distt.- Munger. .... .... Petitioner
Versus
1. The State of Bihar
2. Bihar Kshetriya Gramin Bank, Head Office-Bhagat Singh Chowk,
Munger, Distt.- Munger through Board of Directors.
3. Chairman, Bihar Kshetriya Gramin Bank, Head Office- Bhagat Singh
Chowk, Munger, Distt.- Munger
4. Sri Jawed Wahab, Enquiry Officer, Bihar Kshetriya Gramin Bank,
Regional Office, Lakhisarai.
.... .... Respondents
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Appearance :
For the Petitioner/s : Mr. Rajesh Kumar Singh, Advocate
: Mr. Rana Pratap Singh, Advocate
For the Respondent/s : Mr. Prabhakar Jha, Advocate
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CORAM: HONOURABLE MR. JUSTICE SAMARENDRA
PRATAP SINGH
ORAL ORDER
10 09-07-2014Heard learned counsel for the petitioner and the respondents.
2. The petitioner prays for quashing the order of dismissal dated 30.09.2011, passed by Chairman, Bihar Kshetriya Gramin Bank, Head Office, Munger and the enquiry report of enquiry officer, (Respondent No.4), holding the petitioner guilty of the charges of interpolation in Matric certificate.
3. The case of the petitioner is that Respondent No.4, Mr. Jawed Wahab, Manager Regional Office, Lakhisarai, could not have been appointed an enquiry officer in view of Rule 41 of 2010 Regulations. The respondents have erred in appointing the 2 Patna High Court CWJC No.13786 of 2012 (10) dt.09-07-2014 2 / 15 Enquiry Officer under 2005 Regulations, as on the date of issuance of charge-sheet 2010 Regulations had come into force, and 2005 Regulations stood replaced and repealed. He submits that there is no substantive and conclusive evidence that the petitioner tampered with the original certificate granted by the Bihar School Examination Board. He submits that though he had deposited the original certificate, the same was never produced by the Board during departmental enquiry.
4. On the other hand learned counsel appearing on behalf of Bihar Kshetriya Gramin Bank (hereinafter referred to as „the Bank‟) submits that the petitioner never produced his original certificate and he never objected to Md. Jawed Wahab continuing as an enquiry officer. Furthermore, once having subjected himself to the enquiry proceeding, the petitioner cannot turn back and challenge the same, if the enquiry report has gone against him, on the ground of eligibility of the enquiry officer to conduct the enquiry. He submits that the report of the Bihar School Examination Board and the School from where the petitioner studied clearly established that his year of birth is 1952 and not 1956. Thus the photo copy of Matric Certificate submitted by the petitioner wherein his date of birth is entered as 1956 is an interpolation, particularly, the word „year 1956‟. The respondents 3 Patna High Court CWJC No.13786 of 2012 (10) dt.09-07-2014 3 / 15 further submit that the petitioner did not submit the correct copy of his Matric certificate is evident from the fact that before the Chairman he submitted that if the Bank considers his age as 1952, he may be allowed to work till he attains the age of supervision i.e. 60 years, treating 1952 as his year of birth.
5. Before I take up the submissions for considerations, it would be relevant to notice the facts of the case in brief:
6. Pursuant to Advertisement published by Munger Kshetriya Gramin Bank in the year 1983 for recruitment for the post of officers, the petitioner submitted his application and successfully appeared in written test examination on 20.05.1984. He was appointed in Munger Kshetriya Gramin Bank in the year 1985. In the year 2005, the Munger Kshetriya Gramin Bank merged with Bihar Kshetriya Gramin Bank (hereinafter referred to as „the Bank‟). The Bank in exercise of power conferred under Section 30 of the Regional Rural Bank Act, 1976 framed its service regulations, namely, Bihar Kshetriya Gramin Bank (Officers and Employees) Service Regulation, 2005. The said Regulation was replaced and repealed by 2010 Regulations.
7. There is some dispute as to the date from which the Regulation, 2010 became enforceable, which aspect, I would 4 Patna High Court CWJC No.13786 of 2012 (10) dt.09-07-2014 4 / 15 refer to, later on, in the judgment.
8. While the petitioner was working as Manager, Regional Office, Begusarai, he was served charge-sheet issued under the signature of Chairman, Bihar Kshetriya Gramin Bank. The allegation is that in spite of submitting a declaration as to correction of information at the time of appointment, he furnished false date of birth and produced a tampered birth certificate. The relevant extract of charge-sheet dated 30.12.2010 is being reproduced herein below:
"By submitting false information for seeking employment in the Bank in violation of Regulation 5 Bihar Kshetriya Gramin Bank (Officers and Employees) Service Regulation, 2005, you indulged in act of fraudulent practices and failed to disclose the true information, thus, acted in violation of Regulation 38 of Bihar Kshetriya Gramin Bank (Officers and Employees) Service Regulation, 2005. You are required to submit a written statement of your defence within 7 days from the date of receipt of this letter failing which it will be construed that no explanation to offer and in that case Bank will proceed accordingly."
9. The petitioner in his show-cause reply addressed to the Chairman of the Bank denied the charge levelled against him. 5 Patna High Court CWJC No.13786 of 2012 (10) dt.09-07-2014
5 / 15 He stated that in his show-cause reply that he mentioned the date of birth as per the certificate issued to him by the Board. He also claims to have submitted his certificate for verification at the time of appointment, which was returned to him and in the year 2010 he again submitted the same for verification pursuant to the letter of the Bank.
10. The disciplinary authority not being satisfied with the show-cause reply of the petitioner, appointed respondent No. 4, namely, Md. Jawed Wahab, to conduct the departmental proceeding against him. The enquiry officer on perusal of records including the reports of Bihar School Examination Board and the School from which the petitioner studied, held him guilty of the charge on the basis of enquiry report dated 09.08.2011.
11. The enquiry report dated 09.08.2011 was forwarded to the petitioner vide letter dated 13.08.2011 for his comments to which he replied vide letter dated 23.08.2011. Thereafter followed another show-cause on 14.09.2011 seeking his response with respect to quantum of punishment.
12. The petitioner, pursuant to notice, dated 14.09.2011, of disciplinary authority, himself attended the hearing on 26.09.2011 and made oral submissions, which was recorded in the form of proceedings, duly authenticated by him. The petitioner 6 Patna High Court CWJC No.13786 of 2012 (10) dt.09-07-2014 6 / 15 stated before the disciplinary authority that he had submitted the certificates which he received from the Board and if the Bank considers 1952 as his year of birth, he may be allowed to work till he attains the age of 60 years. Not being satisfied with the show- cause reply and the submissions of the petitioner, the disciplinary authority inflicted the punishment of dismissal. An appeal preferred against order of dismissal too was rejected.
13. I would examine one by one the grounds taken by the petitioner in support of his case. The first contention of the petitioner is that respondent No. 4, Md. Jawed Wahab could not have been appointed as an enquiry officer in terms of Regulation 41 of 2010 Regulations, though he was senior, as a Regional Manager, but not drawing higher scale than him.
14. Regulation 41 of 2010 Regulations is quoted herein below:
"41. Delegation of the power to enquire.- The Competent Authority may, by general or special order in writing, delegate to,-
(i) An officer who is in a higher scale to the officer against whom the proceeding is instituted, in the case of officer;
(ii) An officer, in case of employee, to conduct the enquiry under regulation 39.
Provided that the Competent Authority may, at his 7 Patna High Court CWJC No.13786 of 2012 (10) dt.09-07-2014 7 / 15 discretion, nominate any officer working in the Bank, including those on deputation from other institutions or any public servant who is in a higher scale to the officer or employee against whom the proceeding is instituted, to conduct the enquiry."
15. On the other hand, counsel for the Bank submits that the petitioner‟s case is governed by 2005 Regulations, as 2010 Regulation came into force only w.e.f. February, 2011. As per Regulation 40 of 2005 Regulations, an officer, senior to the delinquent can conduct a departmental enquiry. The issue is whether 2009 Regulation was still in force when the departmental proceeding was initiated against the petitioner or was it stood replaced by 2010 Regulation.
16. In the instant case, the charge-sheet was submitted on 30.12.2010 and as such the Regulation, which was in vogue on the relevant date, would govern the departmental proceeding against the petitioner.
17. According to the Bank, 2005 Regulations held the field on 30.12.2010 whereas according to the petitioner 2010 Regulation would be applicable, as it has come in force on 30.10.2010 much prior to date of framing of charge on 30.12.2010.
8 Patna High Court CWJC No.13786 of 2012 (10) dt.09-07-2014
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18. The answer to the query is provided in the Act itself. Sub-Clause 1 of Regulation 1 of Chapter-I deals with Short title, commencement and application of the Regulations. Sub- Clause 1 of Regulation 1 states that these regulations will be called the Bihar Kshetriya Gramin Bank (Officers and Employees) Service Regulation, 2010. Sub-Clause (2) of Regulation 1 states that the Regulations shall come into force on the date of the publication in the Official Gazette i.e. 30.10.2010. Regulation 1 of Regulation 2010 is quoted herein below:
"1. Short title, commencement and application.-
(1) These regulations will be called the Bihar Kshetriya Gramin Bank (Officers and Employees) Service Regulations, 2010.
(2) They shall come into force on the date of their publication in the Official Gazette i.e. 30.10.2010. (3) They shall apply to every officer and employee of the Bank.
Provided that they shall not apply, except as otherwise provided in these regulations or to such extent as may be specifically or generally specified by the Board to,-
(a) a person employed temporarily on daily wages or to such person engaged on contract;
(b) a person on deputation from Sponsor Bank, the Central Government, the State Government or any other organization."9 Patna High Court CWJC No.13786 of 2012 (10) dt.09-07-2014
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19. It would appear from letter dated 08.02.2011 of Bihar Kshetriya Gramin Bank annexed by the respondent Bank itself that the Regulations was published in the Gazette of India, Part-III, Section IV of Extraordinary on 30.10.2010 and as such the said Regulations can safely be concluded to have come into force on the date of the publication in the official gazette. The opening paragraph of letter dated 08.02.2011 issued by the Manager (P & D) is as follows:
"This is to inform that Bank‟s Notification dated 03.08.2010 containing Bihar Kshetriya Gramin Bank (Officers and Employees) Service Regulations-2010 has been published in Gazette of India, Part III Section IV- Extraordinary on 30.10.2010. Accordingly, the said Regulations have come in to force on the date of their publications in the official Gazette."
20. The respondent has tried to dispute the aforesaid position on the ground that the Bank vide letter dated 07.02.2011 has sent copies of the gazette publication of the Rules to Ministry of Financial Services, Banking Division, Government of India for pressing it in both houses of Parliament, whereafter the Bank issued letter dated 08.02.2011 with respect to its implementation. In my view, the forwarding of the copies of gazette notification, 10 Patna High Court CWJC No.13786 of 2012 (10) dt.09-07-2014 10 / 15 2010 to the Parliament would be an internal matter of the Bank, which cannot form the basis for determing the date of enforceability of the Regulations. On the other hand, as per the provisions of the Regulations, the same was to come into effect from the date of its gazette notification. The General Manager of the Bank in his letter dated 08.02.2011 addressed to all its Branches and offices informed them that Bank‟s Notification dated 03.08.2010 containing its service Regulations, 2010 was published in the gazette of India Part-III Section IV- Extraordinary on 30.10.2010. The letter of General Manager itself goes to prove that the Regulations was notified in official gazette on 30.10.2010, which date would necessarily be the date of enforceable of the Act.
21. Thus, I hold that the Regulations became enforceable from 30.10.2010 and the proceeding against the petitioner on 30.12.2010 was to be governed as per the 2010 Regulations.
22. Though there is no challenge that the norms prescribed in 2010 Regulation was not followed, the main grievance is that Md. Wahab could not have been appointed as an Enquiry Officer, as he was not drawing higher scale. There is no dispute that both petitioner and respondent No. 4 were holding the 11 Patna High Court CWJC No.13786 of 2012 (10) dt.09-07-2014 11 / 15 rank of Regional Managers and Md. Wahab, the Enquiry Officer was senior to him in service, but both of them drew the same pay scale. As per Regulation 41 (i) of Regulation 2010, a competent authority can delegate an enquiry proceeding to an officer, who is in higher scale. The respondent No.4 admittedly was not holding a higher scale. The issue is whether the said lacuna would vitiate the whole enquiry proceedings at this stage, even if there is no other infirmity in the proceeding.
23. The answer in the facts of the case, in my view, has to be in negative. The enquiry proceeding would not stand vitiated on the ground that respondent No.4 was not drawing higher scale. There is no dispute that respondent No. 4 was senior to the petitioner in position and status. The petitioner never objected to his continuance as an enquiry officer and only when his report has gone against him, he has become wiser to raise the issue of his competence to conduct the enquiry. The petitioner even did not raise the said objections even before the disciplinary authority. Furthermore, the petitioner, who was highly qualified, holding a Graduation degree and being a senior officer, the plea of being ignorant of the provisions of enquiry proceeding would not be available to him. Thus, the petitioner at this juncture, who was himself a senior official of the Bank would be estoppel from the 12 Patna High Court CWJC No.13786 of 2012 (10) dt.09-07-2014 12 / 15 issue of eligibility of Md. Wahab to conduct enquiry having subjected himself to the departmental proceeding before him. The Principle of estoppel by conduct or acquiescence will apply with full force and one can gain-fully refer to principle of estoppel laid down in case of Sanjay Kumar Vs. Narendra Verma, reported in (2006) 6 SCC 46 and Madan Lal Vs. State of Jammu & Kashmir, reported in (1995) 3 SCC 486.
24. This takes us to the issue whether the petitioner submitted false information with respect to his age and also tampered with the matriculation certificate. The case of the petitioner is that he produced original certificate before the respondents at the time of his selection, which was handed back to him. His case is that he again submitted the original certificate in 2010, when so asked to do so for purpose of verification. Furthermore, the petitioner submits that charge-memo dated 30.12.2010, the enquiry report 09.08.2011, letter dated 16.02.2010 of the respondent, copies of proceeding dated 25.06.2011 would establish that he had produced the original certificate, as in all the aforesaid documents, it is stated that "a certificate has been produced".
25. The submission of the petitioner is to be noted only to be rejected. The aforesaid documents do not state that the 13 Patna High Court CWJC No.13786 of 2012 (10) dt.09-07-2014 13 / 15 petitioner produced the original Matric certificate. The averment in the documents is only to the effect that a Certificate of the Board was produced. The respondent Bank has produced the original record and enquiry proceeding before the Court to show that the petitioner produced Graduation Certificate etc., but did not produce Matriculation certificate. Moreover, the petitioner has not produced a chit of paper to show that he submitted his original Matriculation certificate except for making of bald statements that he produced the same in the year 1984 itself i.e. at the time of appointment and again dispatched the same in the year 2010 along with his letter, when he was called upon to do so.
26. Thus, I find substance in the stand of the respondents that petitioner did not produce the original Matriculation certificate before them and his plea to the contrary is rejected. Furthermore, the report of Bihar School Examination Board as well as Certificate dated 26.10.2010, issued by the Headmaster, Sharda Pathshala, Kahalgaon, Bhagalpur would establish that year of birth petitioner is 1952 and not 1956.
27. This takes us to the last issue whether the petitioner produced a tampered copy of the Matriculation certificate. The petitioner submits that he has produced the certificate, which was given to him by the Board. The authorities 14 Patna High Court CWJC No.13786 of 2012 (10) dt.09-07-2014 14 / 15 have found the certificate to be tampered, as the word 1956 (NIiu) is written in a heavier ink in place of 1952 (ckou) and the Board and School record confirmed otherwise. According to the respondents the year of birth is generally written in words, but in the instant case the year of birth is also prescribed in figures above the year of birth written in words. The petitioner, however, submits that the inscribing of the year of birth in words above the year is figure is not uncommon.
28. I find that the word (NIiu) is written in heavier ink in comparison to the preceding words describing the year of birth, which raises a question whether the heavier printing „56‟ is handiwork of School Examination Board or petitioner. The finger of suspicion would point at the petitioner, as he did not produce the original certificates and he was the only person to benefit on account of the projected age in the certificate.
29. Thus, the impugned finding recorded by the enquiry officer or by the disciplinary authority does not suffer from legal infirmities. The petitioner, however, makes one final submissions that the punishment of dismissal is excessive and harsh. He submits that he has put in 26 years of unblemished service and apart from this, no criminal or civil procedure was ever initiated against him. His service record is good and he may 15 Patna High Court CWJC No.13786 of 2012 (10) dt.09-07-2014 15 / 15 given a chance to place his case again. In view of the submissions made but without expressing any opinion on the merit or correction of proportionality of the penalty inflicted, the matter is remitted to the respondents to reconsider the case of the petitioner with respect to quantum of punishment within a period of two months from the date of receipt of a copy of this order. It would be open for the petitioner to file his representation before the disciplinary authority. The order of dismissal, affirmed by the disciplinary authority is set aside for the limited purpose indicated above. However, in the facts and circumstances of the case, the petitioner would not be entitled to back wages consequent to setting aside of punishment of dismissal.
30. With the aforesaid direction, this application is disposed of.
(Samarendra Pratap Singh, J.) Uday/-
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