Allahabad High Court
Satish Kumar Verma vs Allahabad Bank And 2 Others on 21 February, 2018
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 06.02.2018 Delivered on 21.02.2018 Court No. - 28 Case :- WRIT - A No. - 6667 of 2016 Petitioner :- Satish Kumar Verma Respondent :- Allahabad Bank And 2 Others Counsel for Petitioner :- Vijendra Pal Singh,Smt. Krishna Singh Counsel for Respondent :- Pashupati Nath Tripathi,S.C. Hon'ble Siddharth,J.
Heard Sri Vijendra Pal Singh, learned Counsel for the petitioner and Sri Pashupati Nath Tripathi, learned Counsel for the respondents.
The petitioner has filed this writ petition, praying for quashing of the Appellate Order dated 04.01.2015, passed by Deputy General Manager, Allahabad Bank, Zonal Office, Delhi Gate, Agra, respondent no.3 and the Punishment Order dated 24.07.2015, down grading him by two stages in the scale of pay, passed by Chief Manager and Disciplinary Authority, Allahabad Bank, Zonal Office, Delhi Gate, Agra. Further prayers have been made for reserving one post in Officer Grade for the petitioner and directing the respondents to pay Rs.25,390/- as conveyance allowance to him.
The brief facts of the petition are that the petitioner, while being posted as Single Widow Operator- A Category (SWO-A) at Mahavirganj Branch, Aligarh of Allahabad Bank, from 28.07.2008 to 29.06.2013, was alleged to have committed certain acts of commission and omission which amounted to gross misconduct and he was charge sheeted with the following charges, Article-1- Instances of splitting the transactions of cash remittance to other Bank's/ branches by Shri Satish Kumar Verma, were found. Whenever the aggregate remitted amount was more than Rs.6.00 lac and up to Rs.20.00 lac for any one branch, it was broken into multiples of Rs.6.00 lac per voucher, to pretend that as many trips to that branch, as number of vouchers, have been made at different points of time on same day. "Q Nos." generated by the software package and written over cash payment vouchers, are either consecutive or are very close to each other, which compel to believe that the total amount was carried at a time in one lot in spite of making separate vouchers of Rs.6.00 lac each, which is also confirmed by the cash deposit vouchers at the receiving branches.
Article-2- The practice of breaking the aggregate amount into multiples of either Rs.6.00 lac or Rs.10.00 lac was adopted by Shri Satish Kumar Verma with some ulterior motive such as to get more conveyance amount, as every day when cash was remitted, the conveyance payment vouchers (for remittance) equals the cash remittance vouchers.
Article-3- In all the cases the counterfoil of the cash deposit vouchers are not held, in absence of which it can't be said that the remitted cash was deposited in the intended branch on same day as per payment voucher.
Article-4. In a very large number of cases package generated ''SYS No' is not mentioned on payment vouchers, which is a must for affording corresponding credit and in absence of which it is very difficult to correlate the Pay Orders with outstanding originating debts.
Article-5. HOIC No.11407 dated 27.05.11 on Bankers Indemnity Policy, which was in force during the relevant period and in compliance of which a maximum sum of Rs.20.00 lac could have been remitted at a time, without Armed Guard. The then prevailing guidelines were not followed, as far as quantum of amount is concerned, which has resulted in payment of much more conveyance amount. A huge sum of Rs.52200/- as conveyance amount towards cash remittance has been paid during the period 19.07.11 to 11.08.12, i.e., a period of about 13 months only to him.
Article-6. Shri Satish Kumar Verma was paid an aggregate amount of Rs.60.00 lac on 23.07.2011 by way of six separate cash vouchers of Rs.10.00 lac each bearing Q Nos. 19214 to 19219, to debit of BGL. Account- Current Account with PNB. For depositing in PNB Currency Chest which Shri Satish Kumar Verma did by way of six separate entries on same date.
Article-7- On 5 occasions the other Banks did not issued Pay Orders on the dates cash was remitted by Sri S.K. Verma.
Article-8.- On 10.04.2012, aggregate amount of Rs.24.00 lacs was remitted through Sri S.K. Verma, but Pay Order of Rs.12.00 lacs was only issued by the Branch. Remaining amount of Rs.12.00 lacs was made good on next date i.e., 11.04.2012. On 11.06.2012, Rs. 24.00 lacs was remitted through Sri S.K. Verma but the Pay Order of only Rs.6.00 lacs was issued by the Bank Branch, in lieu of cash remittance. Deficiency of Rs.18.00 lacs was made good on 12.06.2012.
Article-9- Certain transactions of unusual nature were discovered, wherein the part of the amount deposited was paid to Karvy Commodities Ltd., through cheques which pointed to Sri S.K.Verma being involved in Commodity Trading through the aforesaid agency.
Article-10- Conveyance paid for late sitting to Sri S.K.Verma for extra work 3 days per week @ 160/- per day aggregating to Rs.25,930/-. No record of such late sitting was found.
Article-11- Sri S.K.Verma diverted Rs.92,000/- from his OD Account to his S/B Account and then to Karvy Commodities Ltd., mis-utilizing the OD Account.
The petitioner submitted his reply to the charges as follows:
Article-1&2. The petitioner never splitted any transaction of cash remittance to other banks. He took the cash as per direction of the Manager. He further stated that sometimes due to excess work the Q numbers were given in a row one after the other because of connectivity problem. Whenever the time and connectivity were there, the accepting bank used to post the amounts.
Article-3. The petitioner replied that whenever he took cash for depositing it in other branch, the amount was accepted and banker's cheque was issued to the Mahavirganj Branch of the Allahabad Bank and the Counter foils of cash deposit vouchers were never demanded from him.
Article-4. The SYS No. was written by the Bank Officer on the payment vouchers and it was not his duty to put SYS No. Article-5. He was not aware of the HOIC No. 11407 dated 27.05.2011. He deposited the cash as per the direction of the Manager and the payment vouchers were made as per the expenditure in the use of vehicle. He is 60% disabled by leg and therefore without vehicle it was difficult for him to make cash remittances.
Article-6. He took cash amount of Rs.10.00 lacs each on 23.07.2011 to P.N.B. Chest and every time receipt was given by P.N.B. Chest for cash deposit. Due to excess work and connectivity problem, the deposits were shown in consecutive Q Nos, for which the petitioner can not be held responsible.
Articles-7, 8 & 9. Every time the petitioner remitted the amount bankers cheque of the same amount was issued to him on the same date and regarding the late showing of remittance of the amount by the one day, it is stated that due to problem of connectivity, the amount were posted on the system with delay and there was no fault on his part.
Article-10. The amount of Rs.92,000/- was withdrawn by him because his daughter's marriage was settled in Aug.,2010 and the marriage was solemnized in Feb., 2011. He has De-Mat account with Karvy Commodities Limited, which was opened when the Allahabad Bank allotted shares of the Bank to him. The transaction in his account was due to private loan and provident fund loan for the marriage of his daughter. Rs.92,000/- was paid to the jwellers through the De-Mat account with the Karvy Commodities Limited.
Article-11. He performed the work of late sitting in the Bank on the instructions of the Manager and he used to do the job of tallying cash, clearing work, F.D. work, List posting, Sales Tax posting, etc., and the manager used to make payments. The amount of Rs.25,930/- paid to him on this account has been illegally recovered from him without any justification.
The disciplinary authority appointed an Enquiry Officer, who conducted enquiry into the charges against the petitioner and the petitioner submitted his defence statement dated 16.02.2015 to the same. In the defence statement, the petitioner stated that on 17.12.2014 and 09.02.2015, he demanded 12 documents for his defence but the enquiry officer did not permit most of the documents. He gave the copy of only 2 documents, which is against the principles of natural justice. All the documents produced as Management Exhibit (M.E.) were required to be proved by the Management Witness (M.W.). None of the documents have been proved by the author of the documents but exhibit numbers have been mentioned without formal proof of the documents.
The Enquiry Officer submitted his enquiry report dated 23.06.2014 to the disciplinary authority, who issued a second show cause notice dated 23.06.2015, annexing therewith the copy of the aforesaid enquiry report requiring the petitioner to show cause against the findings of the enquiry officer. The proposed penalty, of bringing him down to lower stage in the scale of pay by two stages, was proposed and opportunity of personal hearing on 06.07.2015 was granted to the petitioner.
The petitioner submitted his reply to the second show cause notice dated 30.06.2015, stating that his Defence Assistant, Sri Navneet Kumar has suffered accident and he is not able to appear before the disciplinary authority and prayed that he may be given some other date for the purpose.
However, without granting any opportunity of personal hearing by fixing another date, the disciplinary authority passed the punishment order dated 24.07.2015 against the petitioner. The petitioner moved an application dated 13.08.2015 before the disciplinary authority stating that he may be granted personal hearing and then fresh punishment order may be passed. The petitioner stated that by his letter dated 30.06.2015, he has informed that his defence representative has suffered accident and some further date may be given for personal hearing but without providing any opportunity of personal hearing, the punishment order has been passed, which has caused great prejudice to his rights. By the order dated 12.08.2015, the disciplinary authority rejected the prayer of the petitioner for personal hearing again, on the ground that in pursuance of his request, last opportunity was given to him for appearing before him on 24.07.2015 by the letter dated 09.07.2015, but he did not availed the same and no further opportunity can be granted to him. The petitioner states that the recital in the letter dated 12.08.2015 of the disciplinary authority are incorrect. He neither made any request for fixing 24.07.2015, as the date for hearing nor he received the letter dated 09.07.2015.
The petitioner applied for promotion to the officer cadre in pursuance of notification dated 05.05.2013 and he was interviewed on 10.07.2014 and the disciplinary proceedings were started against him only to deprive him from the opportunity of promotion and his result has been kept under sealed cover.
The petitioner preferred a departmental appeal before the respondent no.3 on 08.10.2015 raising elaborate grounds in the memorandum of his appeal but by the order dated 04.11.2015, the appellate authority has rejected the same. Hence he has filed this petition.
The respondents have filed their Counter Affidavit stating that the petitioner illegally claimed the conveyance allowances and in the departmental proceedings the same was found proved. The illegality and dishonesty is clearly reflected in his claim on conveyance allowances and there was no infirmity in the departmental proceeding, enquiry report, punishment order dated 24.07.2015 of the disciplinary authority and in the order dated 04.11.2015 of the appellate authority. The Bank issued show cause notice dated 21.06.2013 to initiate disciplinary action against the petitioner for misconduct as his act was prejudicial to the interest of Bank. There is no illegality in issuing show cause notice to the petitioner. The petitioner did not convey the reply within stipulated period. However, the reply dated 18.07.2013 of the petitioner to the show cause notice was not found satisfactory. Thereafter, considering the facts and circumstances of the case, the charge sheet dated 23.06.2014 was issued to the petitioner. All relevant document were available to the petitioner and the name of the witness was also disclosed to him during enquiry. The petitioner did not brought on record, the letter dated 17.12.2014 nor in the present petition he disclosed the list of those document required by him and due to non availability of which he was prejudiced in the enquiry and how he was prejudiced. Then Branch Manger was also charge-sheeted for his omission to accept the illegal claim of the petitioner. Therefore, he could not be produced as witness and so to help indirectly, the co-accused/the petitioner. It is submitted that with the letter dated 23.06.2015 not only the enquiry report was sent to the petitioner, but the same was, also, the 2nd show cause notice for explanation of the petitioner on the enquiry report. The date for personal hearing was, also, fixed on 06.07.2015 at 3.00 p.m. at Zonal Office, Agra. It is incorrect to say that no date was fixed in the IInd show cause for personal hearing. In fact the petitioner deliberately avoided the personal hearing. Instead of appearing for personal hearing fixed on 06.07.2015 and submitting his explanation to the IInd show cause notice the petitioner allegedly sent the alleged letter dated 30.06.2015 to the Branch Manager. The petitioner this time again neither appeared before the disciplinary authority for personal hearing on 24.07.2015 nor submitted any explanation/ reply to the IInd show cause notice. The disciplinary authority/ Chief Manager had no option but to proceed further on the basis of the material on record. The disciplinary authority thus observing the principles of natural justice and fairness and giving full opportunity to the petitioner, passed the reasoned and speaking order dated 24.07.2015, imposing the punishment as per Clause 6(E) of the Memorandum of Settlement dated 10.04.2002, "be brought down to lower state of pay by two stages". It is submitted that the petitioner carried the total amount in one stroke but split it and deposited the same in parts in the PNB Currency Chest to charge extra conveyance allowance per trip. Charges are fully proved against the petitioner and accordingly the punishment imposed on him is commensurate to his guilt. It is submitted that the charges leveled against the petitioner are proved. In the inquiry report dishonestly and illegality are reflected in the conduct of the petitioner. The claim of the conveyance allowance by the petitioner was illegal. Full opportunity was given to the petitioner to disprove his guilt. There was no infirmity in the departmental proceeding. However, it is submitted that the petitioner could not point out any illegality in the order of the disciplinary authority. The Memo of Appeal dated 08.10.2015 contains no ground and is devoid of merit. The Appellate Authority by letter dated 13.10.2015 called upon the petitioner to explain his case along with Defence Assistant as a special case and he appeared in person on 02.11.2015 and was given personal hearing by Appellate Authority. It is further submitted that the Appellate Authority after considering all the aspects of the case including the enquiry report and documents did not find any infirmity in the punishment order. The Appellate Authority, also, did not find any fresh fact or mitigating factor in the Appeal. The punishment order and the order dated 04.11.2015 of the Appellate Authority are well founded, reasoned and speaking order and also not shockingly disproportionate, so that any interference of this Hon'ble Court may be called upon under Article 226 of the Constitution of India.
The learned Counsel for the petitioner has argued that The petitioner applied for promotion to Officer Cadre from clerical cadre. The notification of promotion was published on 05.05.2013 and petitioner applied for promotion. The promotion committee called the petitioner for interview on 10.07.2014. To deprive the petitioner from promotion malafidely, the disciplinary proceedings were started on flimsy grounds. However, the petitioner appeared in all process of promotion and the result is kept in sealed cover and one post is reserved subject to result of disciplinary proceedings. Sri P.K. Arora was the Deputy General Manager, who could have passed the order of punishment, Chief Manager of Zone is the inferior post to D.G.M. Thus the Chief Manager is below the rank of D.G.M. who is the appointing authority and he has no authority to pass punishment order against the petitioner.
There is a Bankers Indemnity policy according to which in the Transit of Cash the bankers indemnity policy are to be strictly complied. According to this policy a cash more than 5 lacs upto 10 lacs may be transmitted by two employees without security guard and vehicle of bank or on contract to bank. More than 10 lacs can be allowed for remittance only when a security guard and vehicle of Bank is provided. Thus the petitioner can only be allowed cash upto 10 lacs in one transaction. It is further submitted that only manager himself or any other officer empowered, may direct the remittance of cash through the employees of the Bank. Petitioner had no power to fix the limit of cash for remittance. These powers have been vested in Manager of the branch.
His reply to individual charges are as follows:-
Charge No.1 to 5 relate of splitting amount in one trip 6 lacs and 10 lacs by two employees of bank without armed guard and bank vehicle. In this regard it is submitted that cash upto 10 lacs may be transmitted by two employees with own vehicle or hired vehicle. More than 10 lacs can only be transited by vehicle provided by the bank. This decision is within the power of Branch Manager. A clerk who is going to remit the mount has no power to fix limit of cash for transaction. Hence the findings about charges 1 to 5 are against the indemnity policy and are perverse.
In reply to the charge no.6 it is submitted that payment was made in six trips according to the direction of the then manager. It is simply by chance that only these six payments and no other payment was received by any other bank in B.G.L. Account. The situation can be explained by concerned clerk of the receiving Bank, i.e., the Punjab National Bank but this evidence has not been produced by the management. Simply a presumption has been drawn up illegally by the enquiry officer thus the charge does not sands proved.
In respect of charge no.7 the payment received from the concerned receiving branch, if the entry has been made with some delay due to excess work and lack of internet connectivity, it cannot be presumed to be a misconduct.
In reply to the charge no.8 it is submitted that four entries on 10.04.2012 were made for four transactions and same type of four entries were made on 11.06.2012. The allegation that entire amount was taken in one trip is wrong. The relevant evidence is the receiving clerk of cash receiving bank who has not been examined in evidence. The presumption has been drawn up on the basis of serial nos. of cash receiving bank. Thus the charge has not been proved by any cogent evidence which was available to the management.
Regarding charge No. 9, it is relevant to state that as a matter of policy Allahabad Bank issued the shares and to promote purchasing of shares, the bank employees of Allahabad Bank were granted loans. A loan account of the petitioner, A/C No.20261486809, was opened for ready reference and to prove that it is I.P.O. Loan, as granted by Allahabad Bank and the installments are being deducted from salary.
Charge No. 10 of late sitting in bank is absolutely false. He performed extra work and was paid for the same by Manager.
In respect of charge no.11, it is submitted that petitioner arranged the marriage of her daughter on 10.08.2010 and it was solemnized in the month of February, 2011. The petitioner took loan from some private persons and from P.F. Account also. The loan was never taken for commodity purchase purposes. Moreover by any stretch of imagination the loan taken from private person does not comes within the definition of misconduct. Thus the findings are perverse.
In brief, substantially, there is no charge of any type of embezzlement. The only charge is that petitioner received conveyance allowance by bifurcating the cash amount for the purpose of showing more trips which is only 160 Rs. per trip as per rules for two employees. The fixation of amount of remittance has to be fixed by Manager and the petitioner has no right or choice nor it is within the scope of duty of petitioner.
Receiving funds from private persons for he marriage of her daughter has no concern with the bank duties thus all the charges are flimsy and baseless. The petitioner pleaded specific grounds that the documents which were necessary to rebut the charges, were demanded vide application dated 17.12.2014 and 09.02.2015 but enquiry officer illegally refused to summon investigation report, item no.1 of the application and other relevant documents specified as item no.4 to 12 in the application. These document were to prove that all the amounts had been remitted on the same day and time and the shares issued by Allahabad Bank itself to the petitioner and other employees, more specifically to Jagmohan Sharma, who was also doing the work of remittance of amount in the similar way. It is important to note here that Sri Jagmohan Sharma (Head Cashier) was also doing the same work in same manner. The respondent served a show cause notice dated 18.06.2013 of similar charges upon Jagmohan Sharma. Thereafter a charge sheet dated 12.09.2013 was served upon Jagmohan Sharma by respondent with similar charges. All the charges of remittance of money had been decided against the petitioner for want of above noted documentary evidences which were in the custody and possession of bank and petitioner's prayer to summon the above noted documents was refused. Thus proper opportunity to produce the defence was not allowed by the enquiry officer and same was approved by Appellate Authority without giving any finding in this regard. Hence the appellate authority has passed the order in a mechanical way and impugned order is completely a non speaking order. Appellate Authority has rejected the appeal solely on the ground that no fresh material has been placed before appellate authority in appeal by the petitioner. Appellate Authority has not considered any ground taken in appeal as well as taken before enquiry officer and punishing authority and, as such, the impugned order in non speaking order and perverse and is liable to be set aside on this ground alone.
The learned Counsel for the respondent Bank has argued that the petitioner has caused financial loss to the Bank by showing excess trips for depositing the amount of the Bank. He has broken the amount into small installments to claim more charges of trips to deposit the amount. He was rightly charge sheeted and after full opportunity of hearing, enquiry officer submitted his report, a second show cause notice was issued to him for submitting his reply to the proposed punishment and also objection to the findings of the enquiry officer, but the petitioner did not availed the opportunity and after the punishment order was passed, he again sought opportunity of personal hearing. The departmental appeal of the petitioner was considered by the appellate authority and petitioner was also given personal hearing and thereafter the appellate order was passed, which can not be said to be illegal. The disciplinary authority has taken a lenient view and has not passed the order of removal from service. The parameters of Article-226 of the Constitution of India are well defined and this Court can only see whether the procedure adopted by the Bank in awarding punishment to the petitioner was correct or not. The findings of the enquiry officer can not be reviewed nor the punishment awarded to the petitioner by the disciplinary authority deserves any interference. There being no procedural lapse on the part of the respondents, no interference with the punishment and appellate orders passed by the respondents may be done.
After going through the pleadings and rival submissions of the parties, the following issues are required to be decided, (1). Whether, the enquiry officer rightly proceeded with the enquiry as per the procedure prescribed by law for awarding major punishment?
(2). Whether, the petitioner was granted proper opportunity of submitting his reply to the second show cause notice dated 23.06.2015 ?
(3). Whether, the punishment order dated 24.07.2015, was passed by the competent authority, Chief Manager, when the petitioner claims to have been appointed by Deputy General Manager?.
(4). Whether, the punishment order dated 24.07.2015, passed by the Chief Manager is in accordance with law?
(5). Whether, the appellate order passed by the appellate authority is in accordance with law?
(6). Whether, the award of minor punishment of fine of Rs.10,000/- to Sri Jagmohan Sharma, who was similarly charge sheeted with similar charges and was also doing the same work as the petitioner, and award of major punishment of scaling down of the petitioner by two stages in the pay scale by the respondents, is discriminatory?.
Issue No.1: A perusal of the enquiry report dated 27.02.2015, shows that it has been initiated on the basis of charge sheet dated 23.06.2014, issued by the Chief Manager and disciplinary authority of the Bank. The allegations of breaking the amounts to be deposited in another Bank and depositing it is small denominations were made. Along with the charge sheet only the statement of details of deposit was annexed. No vouchers/deposit slips and the account statements of deposits in other banks were supplied to the petitioner in support of the charges. In his statement of defence, the petitioner's specifically raised the demand of 12 documents, out of which only 2 documents were given to him and others were denied. The petitioner objected that none of the vouchers were proved before the enquiry officer through any witness to prove as to who filled the vouchers of deposit, whether the petitioner filled them or the Manager of the Bank or any other employee of the Mahavirganj Branch of Allahabad Bank or the Punjab National Bank, where the money was deposited by the petitioner filled them. Since the allegation was that the petitioner splited the amount given by his Bank and deposited it in peace meal, therefore, unless it was proved that the vouchers were filled by the petitioner in his own handwriting to deposit amount in installments, the charge of misconduct could not have been proved. No witness is found in the enquiry report to have been produced by the Bank for proving the documents and therefore, the entire enquiry was conducted on the photocopies of the vouchers without proving them to have been filled by the petitioner. The defence of the petitioner has not been considered, which was in writing before the enquiry officer and is annexed as Annexure No.6 to the writ petition. Since no management witness proved the documents, there is no question of opportunity of cross examination of such witnesses by the petitioner or his representative. Without opportunity of oral examination of the witnesses, no enquiry can be considered to be fair and in accordance with law. The law in this regard is well settled, is as follows:-
The Supreme Court in the State of Uttar Pradesh v. Saroj Kumar Sinha reported (2010) 2 SCC 772 held that :-
" An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as, to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved and could not have been taken into consideration to conclude that the charges have been proved against the respondents".
When a departmental enquiry is conducted against the government servant it can not be treated as a casual exercise. The enquiry proceedings also can not be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/ removal from service.
Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 :-
"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."
This Court has also taken same view in Subhas Chandra Sharma v. Managing Director and another reprted 2000(1) UPLBEC 541:-
"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given in opportunity to cross examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply too the charge-sheet he was given a show cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."
In Meenglas Tea Estate V. The workmen, AIR 1963 SC 1719, the Supreme Court observed "It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way to cross- examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted".
In S.C. Girotra v. United Commercial Bank 1995 Supp. (3) SCC 212, the Supreme Court set aside a dismissal order which passed without giving the employee an opportunity of cross- examination. In State of U.P. v. C.S.Sharma, AIR 1968 SC 158, the Supreme Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine, these witnesses and to lead evidence in his defence. In Punjab National Bank vs. A.I.P.N.B.E. Federation, AIR 1960 SC 160, (vide para 66) the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd., vs. Their Workmen, (1963) II LLJ.396, and in Tata Oil Mills Co.Ltd., v. Their Workmen, (1963) II LLJ. 78 (SC).
Even if the employee refuses to participate in the enquiry the employer can not straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide Imperial Tobacco Co.Ltd., vs. Its Workmen, AIR 1962 SC 1348, Uma Shankar v. Registrar, 1992 (65) FLR 674 (All)."
The above judgment was followed by a Division Bench in Subhas Chandra Sharma v. U.P.Co-operative Spinning Mills and others reported 2001 (2) UPLBEC 1475 the Court held thus:
"In cases where a major punishment proposed to be imposed an oral enquiry is a must, whether the employee request, for it or not. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of his Court in Subhash Chandra Sharma v. Managing Director, (2000) 1 UPLBEC 541, against which SLP has been dismissed by the Supreme Court on 16.08.2000."
In Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others reported 2010 (1) UPLBEC 216 observed as under after detail analysis:
"Now coming to the question, what is the effect of non-holding of oral inquiry, I find that, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of leveling them by means of the charge sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. & another Vs. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Cout in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.
The question as to whether non holding of oral inquiry can vitiate the entire proceeding or not has also been considered in detail by a Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008(3) ESC 1667 and the Court has clearly held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment".
The Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others reported (2011) 2 ILR 570 had also occasion to deal with the same issue. It held :
"At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that those documents are sufficient enough to prove the charges.
The principal of law emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also.
Issue No.2: After receipt of the second show cause notice dated 23.06.2015, the petitioner sent a letter dated 30.06.2015, which has been annexed by him as Annexure No.8 to the writ petition and mentioned in paragraph no.26 of the writ petition. The respondents have replied to this paragraph in paragraph no.20 of their Counter Affidavit stating that in reply to the letter dated 09.07.2015, the petitioner was informed that dated 24.07.2015, is the last opportunity given to him for personal hearing. In the paragraph no.19 of the Rejoinder Affidavit, this fact has been denied by the petitioner and a perusal of the letter dated 09.07.2015, shows that there is no mention about the mode of service of this letter by the Bank, whether by registered post, courier or personally on the petitioner. Therefore, the Court is unable to accept the contention of the respondent bank that the petitioner was given information of appearing on 24.07.2015, before the disciplinary authority for submitting his reply to the second show cause notice and personal hearing.
Issue No.3: The petitioner has made a clear averment in paragraph no.34 of the writ petition that the Chief Manager who is below the rank of Deputy General Manager is not his appointing authority and therefore can not be his disciplinary authority. In paragraph no.26 of the Counter Affidavit, the respondents have stated that Chief Manager in the Scale-IV and above in rank is disciplinary authority vide Head Office Circular dated 06.07.2001. This circular has been annexed as Annexure No.-C.A.-3 to the Counter Affidavit. A perusal of the circular dated 06.07.2001, Annexure No. C.A.-3, proves that there is no such recital that the Chief Manager in Scale-IV and above in rank is the disciplinary authority. Therefore the Court is unable to accept the defence of the Bank in the Counter Affidavit, the petitioner claims himself to be appointed by the Deputy General Manager, which has not been denied by the respondents.
Issue No.4: In view of the findings regarding Issue Nos. 1 and 2, that the departmental enquiry against the petitioner was not in accordance with law and that the petitioner was not given opportunity of filing his reply to the second show cause notice and was not granted opportunity of personal hearing, this issue can not be decided in favour of the respondents. Therefore it is concluded that the punishment order dated 24.07.2015, passed by the respondent no.2, Chief Manager, is neither in accordance with law nor has been passed by a competent disciplinary authority.
Issue No.5: A perusal of the Memorandum of Appeal dated 08.10.2015, filed by the petitioner as Annexure No.17 to the writ petition, shows that he has taken very clear grounds in the memorandum of appeal regarding illegalities committed by the enquiry officer as well as disciplinary authority. In ground no.8 he has stated that the documents demanded by him were not given to him, except 2 documents, nor any reason was stated. In ground No.9 he stated that he could file only 4 documents in his defence. In ground no.10, it has been stated that the enquiry officer, who was on the verge of retirement, concluded the enquiry in haste, and without management proving any document concluded the enquiry against him. In ground nos.11 and 12, he took the ground that he was not given opportunity of filing reply to the second show cause notice. In ground no.13 to 15, he stated that Sri Jagmohan Sharma, who was the Head Cashier and with whom, he accompanied the other Banks for depositing the cash was punished only with a fine of Rs.10,000/- but he was awarded major punishment which will effect him not only during service but throughout his life by causing financial loss. Therefore, the petitioner has given detailed analysis of every charge, his grounds of defence and pointed out the perversity of the findings recorded by the enquiry officer and accepted by the punishing authority. The memorandum of appeal runs into 21 pages in the writ petition, annexed as Annexure No.17 to the writ petition. A perusal of the appellate order shows that he has not adverted to a single ground raised by the petitioner, he has only recorded the following finding, whereby he has dismissed the appeal of the petitioner, " I have gone through the contents of appeal preferred by Shri Satish Kumar Verma and found that the main complaint of charged employee is this that the DA has not given him proper opportunity for personal hearing. D.A had given two opportunities for personal hearings but he did not appeared keeping in view of the complaint one more opportunity was provided to the appellant for personal hearing on 02.11.2015 vide letter No. ZOAG / VIG/1756 dated 29.10.2015 at 11.00 A.M. as a special case. On 02.11.2015 Sri Satish Kumar Verma appeared before the undersigned along with his defence assistant and presented his arguments for exonerating him from the charges. Almost all the points put before me are same as presented during enquiry and in his appeal.
Thus, having regard to the allegations, enquiry proceedings, observations of the disciplinary authority, the points raised by the appellant in his appeal and during personal hearing having applied my mind, I find that appellant did not bring any fresh fact or mitigating factors in his appeal to attract interference in the decision of disciplinary authority. I, therefore, as Appellate Authority hereby upheld the punishment imposed by DA Order No.ZOAG/VIG/1660 dated 24.07.2015 "Brought down to lower stage in the scale of pay by two stages" and reject appeal preferred by Sri Satish Kumar Verma.
Let this order be communicated to Shri Satish Kumar Verma immediately."
The above order passed by the appellate authority can not be considered to be an order in accordance with law since it is settled law that the appellate authority is required to give reasons even for concurring with the punishment order. The Apex Court in the case of "Divisional Forest Officer, Kothagudem and others Vs. Madhusudhan Rao (2008)3 SCC 469", has held as under (paragraphs 19 and 20 of the said SCC):
"19. Having considered the submissions made on behalf of the respective parties and also having regard to the detailed manner in which the Andhra Pradesh Administrative Tribunal had dealt with the matter, including the explanation given regarding the disbursement of the money received by the respondent, we see no reason to differ with the view taken by the Administrative Tribunal and endorsed by the High Court. No doubt, the Divisional Forest Officer dealt with the matter in detail, but it was also the duty of the appellate authority to give at least some reasons for rejecting the appeal preferred by the respondent. A similar duty was cast on the revisinal authority being the highest authority in the Department of Forests in the State. Unfortunately, even the revisional authority has merely indicated that the decision of the Divisional Forest Officer had been examined by the Conservator of Forests, Khammam wherein the charge of misappropriation was clearly proved. He too did not consider the defence case as made out by the respondent herein and simply endorsed the punishment of dismissal though reducing it to removal from service.
20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in ur view, in the interests of justice, the delinquent officer is entitled to now at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum."( Emphasis supplied).
In the Judgment in Chairman, Disciplinary Authority, Rani Laksmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney & Others (2008) 4 Supreme Court Cases 240, the Apex Court has held as under:-
"5. In our opinion an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover's case [(1995) 6 SCC 279)] has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reason at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority." (Emphasis supplied)."
It is, thus, evident that even if the Appellate Authority agrees with the order of the Disciplinary Authority, it (Appellate Authority) is required to give its reason, though brief reasons, so that the delinquent officer may know that the Appellate Authority has applied its mind in dismissing his Appeal and in affirming the order of the Disciplinary Authority.
In the present case, we find that the Appellate Authority has rejected the Appeal filed by the petitioner and has upheld the order of the Disciplinary Authority, but has not given any reason for agreeing with the order of the Disciplinary Authority. The Appellate Authority has also not dealt with the various grounds raised in the Appeal submitted by the petitioner.
Issue No.6: In paragraph nos. 43, 44, 45 and 46 of the writ petition, the petitioner has very clearly stated that Sri Jagmohan Sharma, Head Cashier was also doing the same work were as the petitioner in the same Branch of the Bank. He was similarly charge-sheeted and was punished with a fine Rs.10,000/- by the disciplinary authority and the appellate authority exonerated him of all charges but major punishment was awarded to the petitioner on the same charges. In paragraph No. 32 of the Counter Affidavit, the respondents have stated that the petitioner cannot be permitted to claim adverse parity of an unlawful act. This stand of the respondents shows that they have victimized the petitioner for reasons best known to them, may be to prevent him from being promoted as alleged by the petitioner. The Apex Court in the case of State of U.P. Vs. Rajpal Singh, 2002 (4) AWC 2946 (SC) and Rajendra Yadav Vs. State of M.P., (2013) 3 SCC 73 has disapproved the practice of discriminatory punishments of similarly charged employees by the employer. This issue is therefore, decided against the respondent Bank.
In view of the above facts and the legal position of the case, the Appellate Order dated 04.01.2015, passed by Deputy General Manager, Allahabad Bank, Zonal Office, Delhi Gate, Agra, respondent no.3 and the Punishment Order dated 24.07.2015, down grading the petitioner by two stages in the scale of pay, passed by Chief Manager and Disciplinary Authority, Allahabad Bank, Zonal Office Delhi Gate, Agra are hereby quashed. The respondents are directed to take decision regarding the promotion of the petitioner to the post in Officer Grade after opening the sealed cover. The respondents are further directed to pay Rs.25,390/- along with 12% interest to the petitioner as conveyance allowance illegally recovered from him from the date of recovery till the date of actual payment. The respondents shall refund the amount deducted from the salary of the petitioner on account of the punishment order with 12% simple interest per annum within a period of 6 weeks from today. The notice of this order is deemed sufficient in all the respondents through their Counsel and the time of compliance of this order will start from today.
This writ petition is allowed. No order as to costs.
Order Date :- 21.02.2018 Ruchi Agrahari