Calcutta High Court (Appellete Side)
Sima Dutta vs The Central Bank Of India & Ors on 27 November, 2017
1
27.11.17
cl 220
ab/
S.Banerjee
W.P. 21196(W) of 2017
Sima Dutta
-Vs-
The Central Bank of India & Ors.
Mr. Piyush Chaturvedi,
Mr. Bhagbat Chowdhuri,
... for the petitioner
Mr. C. R. Bakshi,
Mr. Kalyan Mukherjee,
... for the respondent No. 1
Ms. Anyasha Das, ... for the respondent No. 6 The petitioner is an ex-employee of the Central Bank of India. There was a charge against her for producing a fabricated certificate from the Madrasah at the time of getting employment in the bank. The bank sent its auditors to the concerned Madrasah for verification of the document. The Teacher-in-Charge of the Madrasah while supplying a copy of the transfer certificate from the custody of the Madrasah endorsed on the certificate produced by the bank for verification that it did not seem to be genuine.
On the basis of that document, the bank initiated a departmental proceeding and the enquiry officer found the petitioner guilty of the charges levelled against her "on the basis of documentary and oral evidences produced"
in the enquiry.2
The disciplinary authority by an order dated July 26, 2017 awarded the punishment of dismissal without notice in terms of the relevant regulations mentioned in the said order. That order is under challenge in the present writ petition.
Although the enquiry officer specifically recorded that he had arrived at the conclusion that the prosecution had been able to prove the case on the basis of the oral and documentary evidences, no oral evidence adduced at the enquiry has been discussed in his report. These were not even referred to.
The documentary evidence so very heavily relied upon by the prosecution and accepted by the enquiry officer is the endorsement made by the Teacher-in- Charge on the transfer certificate produced by the bank for verification. In the process, the bank authorities in general and the enquiry officer in particular seemed to gloss over a very fundamental difference between the words "is" and "seems to be". The endorsement on the transfer certificate conclusively does not establish that the certificate produced by the petitioner was forged or fake. The word 'seems' carries with it a sense of possibility and something which is apparent on the face of it. The lexical meaning of the word is an outward appearance. Thus, when it is said about a document that it does not seem to be genuine it also simultaneously carries with it the probability of its being genuine as well.
Thus, this pertains to an aspect which required to be proved by cogent evidence at the enquiry. If the bank had relied very heavily, if not exclusively, on the endorsement made by the Teacher-in-Charge of the concerned Madrasah, he ought to have been produced at the enquiry as a management witness with an opportunity being given to the petitioner to cross-examine him. The disciplinary authority has referred to the evidence of a management witness who had verified the document being M.Ex. 4 which is the endorsement on the certificate. This has been quite blindly accepted by the enquiry officer without appreciating that the validity of the endorsement could not be testified by any witness other than 3 the maker of it. The other witnesses were simply not competent to prove the veracity of the document. All that they could do at most was to produce the document and to say that this was the endorsement made by the Teacher-in- Charge of the concerned Madrasah and that too if he had any knowledge about it. But whether the endoresement was rightly done or not, whether there was sufficient reason for making endorsement, why the endorsement was made, the document on the basis of which such endorsement was made, the occasion for making the endorsement, so on and so forth had to be personally proved, if at all, by the maker of the endorsement. No second witness could be a substitute for him. And it is an admitted position that the bank did not call the Teacher-in- Charge as a witness. At least, the prosecution should he made an endeavour to produce the Teacher-in-Charge at the enquiry. It clearly goes to show that the management did not want to prove the case in accordance with the settled parameters of law.
That apart, I find a very major anomaly in the conclusion drawn by the enquiry officer and the order passed by the disciplinary authority. The finding of the enquiry officer appearing in his enquiry report is very cryptic and perhaps the weakest part of the report. It has been recorded that the enquiry officer had gone through the briefs of the respective parties, oral and documentary evidences produced at the enquiry and he observed that the certificate issued by the concerned High Madrasah in respect of the educational qualification of the petitioner was fake and false. If the conclusion of the enquiry officer is that the transfer certificate used by the High Madrasah is fake and false, that by itself does not establish the petitioner's responsibility. She had primarily no control over the certificate to be produced by the concerned school. If that be the conclusion of the enquiry officer, it was the responsibility of the school itself. There is no finding that the petitioner had interpolated or was responsible for the alleged fake certificate being produced by her. If the bank wanted to proceed against the petitioner for fabricating a document or producing a fake document, 4 something more than the mere conclusion that the school had issued a bad certificate was necessary. And there is no such finding about it.
One wonders why the petitioner should be guilty in respect of an allegedly fake and false certificate issued by the Madrasah. I, for one, do not seemingly find any rationale for holding the petitioner guilty for the certificate being issued by the High Madrasah without any proof or evidence that the petitioner was the instrumental for the same. It has not been the finding of the enquiry officer that the certificate issued by the High Madrasah was subsequently fabricated or interpolated by the petitioner. The enquiry officer did not even call for the relevant register from the High Madrasah and, therefore, the enquiry officer had no opportunity to compare the certificate issued by the school with the original register and to come to a conclusion about its genuineness. But without undertaking any such exercise, the enquiry officer had nonetheless come to the conclusion that the certificate was fake and false. He has also recorded that after going through the evidence and the written briefs, he found the certificate to be not genuine. And this finding is again without reasons.
The report of the enquiry officer is out and out a non-speaking one without disclosing any reason for the conclusion reached by him. It is not expected of an enquiry officer discharging a quasi-judicial function that such conclusions would be reached with the suddenness of its sort and so abruptly. An enquiry officer does not discharge his duty properly if he merely says that he has gone through the documents and has come to the conclusion. Such an exercise by the enquiry officer must be described as a failure to discharge his duties; it is in fact a serious dereliction of duty as an independent enquiry officer. It is his duty to give reason for the conclusion he has arrived at based on the evidence adduced and produced.
The law on the point is very well settled that an unreasoned order and that too without discussing the oral evidence entirely and the documentary evidence cryptically cannot stand a moment's scrutiny and must not be sustained as it 5 takes away a very valued right of an employee without letting him know the reasons for the conclusion reached by the enquiry officer.
The importance of providing reasons in an action of a State within the meaning of Article 12 of the Constitution of India and particularly affecting a person's right to likelihood cannot be overstated. It is now considered to be a part of the extended principle of natural justice. Consequently denial of right to reason is denied of natural justice. In the case of Union of India Vs. M. L. Kapoor, reported in AIR 1974 SC 87, the Supreme Court observed that "the reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable". Again in Siemens Engineering & Manufacturing Company of India Ltd. Vs. Union of India and others, reported in AIR 1976 SC 1785, the Supreme Court held that giving of reasons is like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi- judicial process which must be observed in the proper spirit. Over the next four decades the importance of providing reasons in any quasi-judicial proceeding has repeatedly been highlighted by Supreme Court in judgement beyond count. Judged from this perspective the enquiry report finding the petitioner guilty of providing false and fake certificate must be held to have been vitiated by non- furnishing of reasons for the conclusion reached.
The show cause notice sent to the petitioner makes it clear that the report was found to be satisfactory to the disciplinary authority. In the show cause notice, it was specifically mentioned that the disciplinary authority had clearly gone through the proceeding and the enquiry officer had conducted the departmental enquiry in accordance with the provisions of the memorandum of 6 settlement and fair and reasonable opportunity was accorded to the petitioner during the course of departmental enquiry.
While sending a copy of the report to the charge-sheeted employee asking him to give his observation on the same, such big applause of the report of the enquiry officer was plainly not necessary as it reflected a mind before. Why must the disciplinary authority certify about the conduct of the proceeding before receiving any possible objection from the employee? Was the certificate that the enquiry was held after giving reasonable opportunity to the petitioner given in advance to pre-empt the employee from taking any point on the violation of the principles of natural justice? Mr. Bakshi has no clue to it.
The disciplinary authority did not address itself to the issues and the points of law mentioned above in his order, which he should have. It is not understood why under the heading " findings of the enquiry officer against the charge-sheeted employee", the disciplinary authority has mentioned what has been deposed by the MW as a part of the finding. It is also not understood why the disciplinary authority observed that the enquiry officer relied on the "statement" of the Teacher-in-Charge on the transfer certificate. This was no statement. It was a written endorsement.
There is some discrepancy between what the enquiry officer had held and that approved by the disciplinary authority. While the conclusion of the enquiry officer was that the certificate issued by the High Madrasha was a false and fake one, the disciplinary authority concluded that the petitioner had adopted fraudulent approach to secure appointment in the bank. Wherefrom did the disciplinary authority get his evidence to arrive at this finding? Merely because it was endorsed on the transfer certificate being M. Ex. 4 that the document appeared not be genuine must it be concluded that the petitioner resorted to fraudulent act? Is there any evidence about the petitioner's complicity? Is there any evidence about the petitioner's tampering with the documents? The enquiry officer observed and the disciplinary authority approved that the documents 7 relied on by the petitioner were not found to be genuine or were not worth relying on. Even if it was so, it has to be borne in mind that the in a departmental proceeding, like any other legal proceeding, it is the prosecution which has to prove his case and the prosecution can never succeed on the weakness of the defence. This is a settled principle of law. Merely because the petitioner's documents were found not worth relying upon, the prosecution could not absolve itself of its primary responsibility of proving the charges against the petitioner. The disciplinary authority has not addressed the issue from this angle.
It was also not proper for the disciplinary authority to decline to consider the mark-sheet produced by the petitioner only on the ground that she had not submitted it during the enquiry proceedings and, therefore, it could not be cross-verified. As such it was not treated as a bona fide document.
If the disciplinary authority declines to admit the document and, therefore, attach no importance to it, it was absolutely beyond the scope of his competence as a disciplinary authority to describe the document as not a bona fide one whose validity was never tested or put into question. That apart, if for want of cross-verification a document cannot be considered at all the respondents also ought not to have relied on the endorsement made by the Teacher-in-Charge of the Madrasah without cross-verifying its validity with the registers in question.
In her reply to the show-cause notice the petitioner has given very detailed reasons for belated submission of the relevant documents and she submitted the communication dated October 4, 2016 to the enquiring authority which was marked as D.Ex. 2. It is frequently maintained by the prosecution holding a departmental enquiry that strict rules of evidence are not applicable to a departmental proceeding. While this is true and very largely true, such an aphorism is more often spoken than followed, more frequently preached than practised. If the disciplinary authority had kept it in mind he would not have shut out the document even at a belated stage as, since the rules of evidence do not apply with all their rigours, there was nothing preventing the disciplinary 8 authority from sending the matter back to the Enquiry Officer for a fresh consideration of the issue in the light of the contents of that communication or he himself might have considered its validity. After all, the purpose behind the whole exercise was to find out if the petitioner had passed class VIII examination. If the petitioner could prove independently that she had passed class VIII examination there might not have been any occasion for levelling any allegation of fabrication of documents against her.
Reasons provided by the Enquiry Officer for not trusting the certificate issued by the Teacher-in-Charge appears to be not very convincing. The fact that a letter had been issued by any authority after the date of issue of the charge- sheet does not render it either false or fabricated or even irregular or incomplete. The petitioner has specifically written why she had to approach the school authorities and the circumstances in which the letter dated October 4, 2016 was issued. The fact that the class in which the petitioner was admitted was not mentioned in the certificate does not render the certificate to be false. It is also not understood if the school authority failed to mention the number of admission registers maintained by them why the document produced by the petitioner should be treated as a fake one. And the last reason for not trusting on D.Ex. 2 is all the more unacceptable. One of the grounds of rejection of the document is that the name of the Teacher-in-Charge was not written on the letter, therefore, the identity of the teacher could not be established.
It cannot be ignored that the sheet-anchor of the prosecution's case was the endorsement made by the Teacher-in-Charge where also the same Teacher- in-Charge has given his initial along with the official seal. The Enquiry Officer did not take the trouble of explaining the reasons for the differential treatments in respect of the two documents issued by the same authority in the same manner. Is it only because one document supports the prosecution case and the other does not? If the identity of the teacher was so important an issue that it could not be established from the initial, the prosecution also ought not to have 9 relied on the endorsement given by the Teacher-in-Charge. I find absolutely no reason to reject the document produced by the petitioner as D.Ex. 2.
Mr. Bakshi, the learned advocate for the bank, tried to justify the actions of the bank with reference to the affidavit filed by the High Mardasah authorities in connection with the writ petition. According to him the case of the respondents has been proved by the said affidavit.
This submission clearly suffers from the vice of chronological inconsistency leading to inconceivably unsustainable defects. First, the respondents did not know that a writ petition would be filed and in that an affidavit would be used by the Madrasah authorities. Secondly, if they relied on the statement used by the respondent no. 6 in this court as something lending credence or establishing the case of the respondents the inexorable question they have to answer is on what basis could they hold that the charge against the petitioner had been substantiated. They most certainly cannot be permitted to utilize the affidavit filed in this court as a substitute for the oral evidence that ought to have been adduced at the enquiry. This is a very unusual stand taken by the respondents that since the affidavit in the High Court supports their case by a retrospective operation the case should also be treated to have been proved beyond doubt at the enquiry level.
Moreover, the affidavit-in-opposition as well as the supplementary affidavit filed by the respondent no. 6 also go to prove that there was a good deal of confusion in the minds of the authorities who had issued the original transfer certificate. The Teacher-in-Charge had specifically stated on oath that he did not find the name of the petitioner in the admission register as a student of the institution and accordingly he said that the certificate seemed to be not genuine as per the records available. In the same breath almost simultaneously he also mentioned that he found the petitioner as a student of the institution in the admission register having serial number 51 and as such he had issued the letter dated October 4, 2016. Thus when the Teacher-in-Charge himself takes the 10 responsibility of issuing the certificate dated October 4, 2016 there was no reason for the enquiry authority to dismiss it as a vague document merely because the identity of the person issuing it was not clear. The supplementary affidavit makes the confusion worst confounding. The same deponent says that due to "inadvertence, oversight and hastiness" he could not find the admission register wherein the discrepancy of double entry of the serial number 51 is said to have appeared.
If the affidavit filed by the respondent no. 6 in connection with the writ petition was to be treated as sacrosanct as 'retrospectively' proving the case of the prosecution, as submitted by Mr. Bakshi, the respondents ought to have also considered that these affidavits make the issue all the more fluid and uncertain as no definitive conclusion can be drawn on the basis of what the school authorities have said even at this stage. After all at a certain page the name of the petitioner as a student of the institution appeared. The very fact that at some other page the name of somebody else appeared against the same serial number establishes beyond doubt that the issue could not be or cannot be proved without oral evidence and examination of the register. After reading the affidavits the respondents should have reconsidered their conclusion arrived at the enquiry proceeding. This is all the more important as the bank was claiming that their case has been supported by the Madrasah. I find, nothing conclusively can be said about the certificate issued by the institution. At two pages of Register of the Madrasah two names appeared as students of the institution against the same serial number. Ms. Das, the learned advocate for the respondent no. 6, has candidly admitted that the name of the petitioner also figures in one of the pages of the admission register. If the Teacher-in-Charge says that it has been done in a different handwriting and if at all he lulls any misgiving about the veracity of the document he should have immediately informed the police authorities to verify the same.11
Moreover, in reply to an application under the Right to Information Act the Teacher-in-Charge of the concerned institution had clarified the reasons for issuing the letter dated November 21, 2015 wherein it has been specifically mentioned that in more recent times the record book where the name of the petitioner figured had been found and a corrigendum regarding the authenticity and genuineness of the candidates had been issued to the enquiring authority forthwith. There is no mention of any such corrigendum in the enquiry report nor did the respondents mentioned it in their affidavit to this writ petition that no such corrigendum had ever been received by them. In the absence of any such explanation the onus of the respondents for explaining why the corrigendum was not into consideration remains undischarged.
Different correspondences and communications including the statements made in affidavit make it very clear that there is sufficient inconsistency in the stand of the school itself. It cannot be said from reading the affidavits of the respondent no. 6 that the petitioner was not a student of the concerned institution as her name figures in the admission register at one page. Unfortunately the respondents authorities have not approached the issue from this very possible angle and definitely erred in giving the benefit of doubt to the prosecution which should have gone to the petitioner.
The respondents authorities while sending a copy of the enquiry report to the petitioner by the forwarding letter dated March 31, 2017 has specifically recorded that the disciplinary authority had agreed with the enquiry findings on holding the charge levelled against her as proved. This is clearly against the settled principles of law requiring a disciplinary authority not to formulate its agreement before getting response of the charged employee.
The Supreme Court in the case of Managing Director, ECIL, Hyderabad and Ors. -Vs.- B. Karunakar and Ors., reported in (1993) 4 SCC 727 has specifically held that right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the enquiry, viz., before 12 the disciplinary authority takes into consideration the findings in the report, the right to show-cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. The Supreme Court elaborated that the right to receive the report of the Enquiry Officer by a charge-sheeted employee is an essential part of the reasonable opportunity at the first stage. The reasons are not very far to seek. The findings might have been recorded without considering the relevant evidence on record or by misconstruing it or unsupported by it. The principles of natural justice require that an employee should have a fair opportunity to meet, explain and controvert it before he is condemned.
Mr. Bakshi tired to distinguish between 'finding' and 'conclusion' in an enquiry report. This is a distinction without a difference. The findings of an Enquiry Officer is exactly what its conclusions are. In a given case when the question is to enquire whether X has committed some wrong if the Enquiry Officer finds that he has done it, it is both his finding as well as his conclusion. This is also true of the present case. Otherwise the letter under reference loses all its meanings. The subject-matter of the letter is 'findings' of the Enquiry Officer. The very first sentence of that letter started with "I am sending herewith the findings (3 pages) dated March 30, 2017 of the Enquiry Officer......" If the findings comprise three pages and after the disciplinary authority says that he agreed with the enquiry findings he has agreed with the enquiry report in its entirety. He has also written unambiguously that he had agreed with the findings on holding the charge levelled against the petitioner as proved. Mr. Bakshi wanted to salvage the situation by saying that the word 'on' has been a superfluous one. That will not alter the meaning of the sentence, but will only save it from grammatical inaccuracy. There is no denying that the disciplinary authority had agreed with the finding that the case had been proved.13
The unsustainability of the submission of Mr. Bakshi is brought out very clearly from the judgement in the case of Managing Director, ECIL, Hyderabad & Ors. (Supra) where the Supreme Court says, "It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it". If Mr. Bakshi still insists that the disciplinary authority has agreed with the findings of the Enquiry Officer and not the conclusion that also has no substance as the Supreme Court has specifically said that without giving any opportunity of being heard to a charged employee the findings of the Enquiry Officer cannot be considered. The makebelief distinction sought to be made by Mr. Bakshi must be rejected on two grounds. First, the difference between the two is chimerical and illusory and secondly, the Supreme Court has injuncted a disciplinary authority from considering the 'findings' of an Enquiry Officer without giving a charged employee an opportunity of being heard. In the present case, the disciplinary authority has not only considered the finding, it has scrutinized and has agreed with that. If, as the Supreme Court has laid down, considering the enquiry report at this stage is a negation of justice agreeing with the same in its entirety is a travesty of justice and a total denial of it.
The petitioner has rightly drawn my attention to the charge-sheet, dated September 26, 2016 wherein the disciplinary authority had expressed the mind that the transfer certificate submitted by the petitioner had not been found to be genuine during the bank's internal investigation. Mr. Chaturvedi submitted that this clearly amounts to prejudging the issue and reflected that the mind had already been made up. The disciplinary proceeding thereafter was a mere formality as the dye had already been cast.
Mr. Bakshi submitted that this was an allegation and not a conclusion. The submission does not appear to be very convincing if one reads the charge- sheet carefully. The words used are "is found not to be genuine" which by no 14 stretch of imagination is an allegation against an employee. The contention of Mr. Bakshi is belied by the very next sentence that her above act of knowingly making a false statement was treated as a gross misconduct. Had it been a case of allegation there would not have been any occasion to describe it as an "act"
which is very different from an allegation. A closed mind can certainly be inferred from the language used in the charge-sheet.
In the case of Oryx Fisheries Private Limited -Vs.- Union of India and Ors., reported in (2010) 13 SCC 427 the Supreme Court had held that at the stage of show-cause the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. At that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in the present case, the entire proceeding initiated by the show-cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony.
This is a case where for more reasons than one mentioned above, the charge-sheet the enquiry report and the order of the disciplinary authority are liable to be set aside and quashed, with all the reasons vying and competing with each other as sufficient to come to the same conclusion. Had the respondents merely erred in not complying with the stages of conclusion of the enquiry as referred to in the case of Managing Director, ECIL, Hyderabad (Supra) there would have been an occasion for giving a fresh opportunity to the respondents for continuation of the disciplinary proceeding from the stage of submission of the report by the Enquiry Officer. But this is a case where the enquiry as well as the order of the disciplinary authority has suffered almost at every joint and there have been violation of the settled principles of law rendering the whole proceeding plainly unsustainable.
Herein lies the requirement of addressing the subtle issue as to when should a court give liberty to an employer to proceed with the enquiry de novo 15 after the proceeding has been found to be bad. If it is not for any technical reason such opportunity to proceed with the self-same allegation against the same charged employee should not be given. It is a principle of law which is based on very strong equitable grounds. Why must a charged employee face the trial twice over? If the employer does not produce the relevant evidence to prove the charges or if it has not even exhibited any effort to do the same, or if the employer issues a charge-sheet which is so handicapped ab initio that the entire proceeding must go for that and that alone or if the authorities have acted in a manner to prove the charges against an employee which on the face of it cannot be justified fresh opportunity need not be given to an employer? Will not the principle analogous to the doctrine of double jeopardy have its play in the joints? Will that not be going against the constitutional mandate that a person should not be tried twice over for the same offence? It matters little that a disciplinary proceeding is not a trial in a court of law. But so far as a charged employee is concerned the effect is almost the same. Even if he is not facing a charge in a court of law or in a judicial proceeding, he is facing a charge in a quasi-judicial one. Why should an employer be allowed to make up the weaknesses of the case and be allowed to come up with a second enquiry when a second trial is not permitted for the lapses of the prosecution in a judicial proceeding. Will not that amount to giving the employer too high a premium for the inadequacies exhibited at the enquiry? If such opportunity is given as a matter of principle employers may be greatly encouraged to somehow conclude a disciplinary proceeding in a perfunctory manner and then, if the court holds the proceeding to be not maintainable, he has to be given a second opportunity for the second round of proceeding against the employee after several years. If the life of law is experience, one of its cherished aims is to secure as complete a balance as possible between the competing parties with regard to the availability of the respective rights.
For the reasons aforesaid I am not willing to give the respondents any further opportunity to proceed with the enquiry.
16The report of the enquiry as well as the order of dismissal and the entire disciplinary proceeding starting from the issue of the charge-sheet are hereby set aside and quashed without any leave to issue a fresh charge-sheet on the self- same allegations. The respondent bank is directed to reinstate the petitioner with back wages within a period of three weeks from the date of communication of the order. Such back wages shall be paid in two equal monthly instalments, first of such shall be paid by December 15, 2017. Needless to mention, the petitioner shall be entitled to current salary from the date she joins.
The writ petition is allowed.
However, in view of what has been stated above and in view of the series of serious mistakes committed by the respondents authorities in conducting the disciplinary proceeding this is a fit case where the respondents should bear the costs of it.
I direct the respondent bank to pay Rs. 20,000/- to the petitioner as costs of the proceeding. Such amount is to be paid to the petitioner or transmitted to her bank account within a period of four weeks from the date of communication of the order. In default, the petitioner shall be entitled to recover the same from the respondent bank in accordance with law.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of requisite formalities.
(Dr. Sambuddha Chakrabarti, J.)