Rajasthan High Court - Jaipur
Sher Singh Yadav vs Bank Of Baroda And Ors on 2 May, 2025
Author: Anand Sharma
Bench: Anand Sharma
[2025:RJ-JP:17817]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 7641/2002
Sher Singh Yadav son of Shri Durga Ram Yadav, resident of
Village & post Nangal Sirohi, Dist. Mahendragarh (Haryana)
----Petitioner
Versus
1. Bank of Baroda, through Managing Director, Head Office
Mandvi, Baroda, Gujarat
2. Chief Manager, Bank of Baroda, International Trade Branch,
Munshi Shopping Centre, 2137, Ramganj Bazaar, Jaipur, Raj.
3. Senior Manager, Bank of Baroda, Udyog Bhawan, Tilak Marg,
C-Scheme, Jaipur
4. General Manager & Disciplinary Authority, Bank of Baroda,
Regional Office, Anand Bhawan, 4th Floor, Sansar Chandra Road,
Jaipur
5. Deputy-General Manager & Appellate Authority (Zonal Office),
Bank of Baroda, Anand Bhawan, 4th Floor, Sansar Chandra Road,
Jaipur.
----Respondents
For Petitioner(s) : Ms. Poonam Rao on behalf of Mr. Neeraj Batra. Govt. Counsel For Respondent(s) : Mr. R.K. Kala HON'BLE MR. JUSTICE ANAND SHARMA Judgment RESERVED ON :: 22.04.2025 PRONOUNCED ON :: 02.05.2025
1. Laying challenge to order dated 15.06.2000 passed by Deputy General Manager-cum-Disciplinary Authority, whereby penalty of "removal from bank service without notice" was imposed upon the petitioner and order dated 05.10.2001, whereby appeal filed by the petitioner against penalty order has been dismissed on the ground of being barred by limitation, the instant writ petition under Articles 226 and 227 of the Constitution (Downloaded on 06/05/2025 at 09:44:53 PM) [2025:RJ-JP:17817] (2 of 17) [CW-7641/2002] of India has been filed by the petitioner with a prayer to quash and set aside aforesaid impugned orders and to grant him benefits of reinstatement or all consequential benefits.
2. Petitioner in the writ petition has averred that he was appointed as Peon in the respondent-Bank and later on, he was promoted on the post of Head Peon. While he was working as Head Peon on account of his illness he could not attend his duties and as per petitioner, information in this regard was given to the higher authorities with assurance that as and when he would become fit, will join his duties.
3. It has been stated in memo of writ petition that one notice dated 13.08.1999 was issued by the Chief Manager, International Business Branch, Ramganj Bazaar, Jaipur, in which it was mentioned that the petitioner was continuously and unauthorisedly absent from his duties w.e.f. 18.01.1999. Above notice further reveals that earlier vide telephonic information, the petitioner was asked to remain present on duty which was followed by two other informations dated 30.12.1998 and 07.09.1998 as well as one registered letter dated 03.08.1998 whereby explanation was sought from the petitioner with regard to his unauthorised absence, however, he did not respond to any of such informations/letters, therefore, the petitioner was called upon to join his duties in Bank within a period of thirty days, failing which he would be considered as voluntarily retired as per bipartite settlement.
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4. The aforesaid notice was followed charge-sheet dated 27.10.1999 containing charges regarding willful and unauthorised absence from duty w.e.f. 18.01.1999. As per petitioner, on account of not being medically fit, he could not file reply to the charge-sheet, thereafter Enquiry Officer was appointed to enquire into the charges. As per petitioner he submitted one application dated 07.12.1999 by remaining present before the Enquiry Officer in which he mentioned that on account of continuous illness, he could not attend his duties and he will also submit medical certificates in order to prove his illness. It was also mentioned that soon after recovery from illness the petitioner would report on his duties along with medical certificates.
5. However, Enquiry Officer proceeded ex-parte in the enquiry proceedings where the management produced its witnesses and also exhibited documents in order to prove willful and unauthorised absence of the petitioner. The Enquiry Officer prepared its report dated 15.03.2000 and same was also served upon the petitioner by the Enquiry Officer vide letter dated 14.03.2000. Thereafter the Disciplinary Authority sent one notice dated 10.06.2000 mentioning therein that the charges of willful absence and insubordination as well as working against the interest of Bank have been found to be proved by the Enquiry Officer. After considering enquiry report, the Disciplinary Authority proposed penalty of removal from Bank service without notice and the petitioner was asked to appear for personal hearing on the question of quantum of punishment. The petitioner appeared for personal hearing before the Disciplinary Authority on 15.06.2000. (Downloaded on 06/05/2025 at 09:44:53 PM) [2025:RJ-JP:17817] (4 of 17) [CW-7641/2002] On 15.06.2000 itself the Disciplinary Authority passed order of penalty, whereby penalty of removal from bank service without notice was imposed upon the petitioner. It reveals from the penalty order itself that during personal hearing, the petitioner prayed that on account of domestic circumstance he was unable to continue in bank services and, therefore, a lenient view may be taken and instead of penalty of removal lesser penalty of compulsory retirement may be imposed upon him. However, such request of the petitioner was declined and the Disciplinary Authority passed penalty of removal from service without notice.
Thereafter, the petitioner filed appeal before the Appellate Authority, however, the same was rejected vide order dated 05.10.2001 by the Deputy General Manager, Appellate Authority only on the ground of delay in filing appeal and merits of the appeal was not even touched. The Appellate Authority confirmed the order passed by the Disciplinary Authority.
In the memo of writ petition, the petitioner has stated that he was not granted sufficient opportunity before the Enquiry Officer to prove his innocence. He was not willfully absent from duties, but on account of his adverse medical conditions, he remained absent from duties under the compelling circumstances, which cannot be considered within the ambit of willful absence. The petitioner has also raised issue of quantum of punishment and has submitted that even if the charges were held to be proved against him, even then looking to the nature of the misconduct and length of service rendered by the petitioner with the (Downloaded on 06/05/2025 at 09:44:54 PM) [2025:RJ-JP:17817] (5 of 17) [CW-7641/2002] respondent-bank, a lesser penalty could have been imposed upon the petitioner.
6. On the contrary, the respondents filed reply to the writ petition in order to oppose the prayer made by the petitioner. It has been categorically stated in reply to the writ petition that the petitioner was unauthorisedly absent from duties since 18.01.1999 and so many notices were issued by the respondent-bank requiring the petitioner to report on duty, however, when he failed to do so, as per the terms and conditions of bipartite settlement between the union and respondent-bank, charge-sheet was issued against the petitioner leveling charges of willful and unauthorised absence. When the petitioner did not file any reply to the charge- sheet, Enquiry Officer was appointed to enquire into the charges against the petitioner. The petitioner did not co-operate even in the enquiry proceedings, therefore ex-parte enquiry was conducted. The Enquiry Officer has followed due procedure of enquiry as contemplated in the bipartite settlement. Witnesses produced by the management have categorically deposed against the petitioner to prove his misconduct and such statements of the witnesses were supported by the documentary evidence. The Enquiry Officer has analysed each and every charge; and thereafter he has arrived at findings that the charges were proved against the petitioner.
7. In reply, it has also been submitted that thereafter enquiry report was although served upon the petitioner yet he did not choose to file any representation against the findings of Enquiry (Downloaded on 06/05/2025 at 09:44:54 PM) [2025:RJ-JP:17817] (6 of 17) [CW-7641/2002] Officer. Still in order to provide better opportunities to defend, before passing any order of penalty, opportunity of hearing on the question of quantum of punishment was also given to the petitioner and only thereafter the penalty order dated 05.06.2000 was passed by the Disciplinary Authority. The appeal filed by the appellant was admittedly not within the limitation period and was filed after a lapse of around one year and two months from the date of penalty order, hence, it was rightly rejected by the Appellate Authority vide order dated 05.10.2001. As per learned counsel for the respondents, there is no manifest and patent illegalities in the proceedings. Scope of writ petition under Article 226 of the Constitution of India in the matter of disciplinary proceedings being very very limited, hence, the writ petition filed by the petitioner is liable to be rejected.
8. Heard and considered the record.
9. From meticulous examination of the facts and documents on record and on the basis of oral arguments made by learned counsel for the parties, it has come out that as regards following the process for conducting enquiry, the respondent-bank has undoubtedly granted fair opportunity of hearing as well as to defend the charges to the petitioner and rather the petitioner himself has utterly failed to avail several opportunities granted from time to time. Hence, the Enquiry Officer has not faulted in holding that the petitioner was guilty of charges of remaining willfully and unauthorisedly absent from duties. (Downloaded on 06/05/2025 at 09:44:54 PM) [2025:RJ-JP:17817] (7 of 17) [CW-7641/2002]
10. The question which has arisen for consideration of this Court is as to whether under these circumstances it is within the scope of writ jurisdiction under Article 226 of the Constitution of India for making interference in the matter or not?.
11. It is well settled proposition that while exercising power of judicial review in the matter with regard to disciplinary enquiry, this Court under Article 226 of the Constitution does not sit as an Appellate Authority so as to evaluate or re-examine the evidence and to substitute the findings given by the Enquiry Officer.
12. Counsel for the respondent while addressing the Court on the question of scope of judicial review has relied upon the judgments in the cases of Praveen Kumar Vs. Union of India & Ors. reported in 2020(9) SCC 471, State of Karnataka & Anr. Vs. N. Gangaraj reported in 2020(3)SCC 423, State of Karnataka & Anr. Vs. Umesh reported in 2022(6) SCC 563 and Union of India & Ors. Vs. Managovinda Samantaray reported in 2022(2) LiveLaw (SC) 244.
13. Learned counsel for the petitioner has submitted that even if on account of having limited jurisdiction in disciplinary enquiry matters, findings of Enquiry Officer or the evidence led during the process cannot be examined by this Court under Article 226 of the Constitution of India; yet in appropriate circumstances, issue of quantum of punishment can be raised by the petitioner so as to show that despite holding the petitioner delinquent as guilty, quite excessive penalty has been imposed upon him.
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14. Learned counsel for the petitioner has relied upon the judgment of the Division Bench of this Court in the case of Rajasthan State Road Transport Vs. Shri Ram Yadav reported in 1995 (3) WLC (Raj) 16.
15. In the case of Praveen Kumar (supra), the Hon'ble Supreme Court has held as under:
"28. It is thus well settled that the Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority.
33. The incident of 28.02.1999 raised serious questions of criminality under the Indian Penal Code and the Prevention of Union of India v. T.R. Varma, 1958 SCR 499 Corruption Act, as well as of violation of Service Regulations and administrative misconduct. Thus, in addition to appointment of enquiry officer, the authorities also registered a criminal complaint with the CBI. After investigation, the CBI though did not find adequate material to launch criminal prosecution against the appellant but through its self-speaking report dated 07.03.2000, the CBI recommended major disciplinary action against the appellant and a few others."
16. In the case of State of Karnataka & Anr. Vs. N. Gangaraj (supra), the Hon'ble Supreme Court has given following observations.
(Downloaded on 06/05/2025 at 09:44:54 PM) [2025:RJ-JP:17817] (9 of 17) [CW-7641/2002] "10. In B.C. Chaturvedi v. Union of India & Ors.3, again, a three Judge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is 3 (1995) 6 SCC 749 entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its (Downloaded on 06/05/2025 at 09:44:54 PM) [2025:RJ-JP:17817] (10 of 17) [CW-7641/2002] power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
13. In another judgement reported as Union of India v. P. Gunasekaran, this Court held that while re-appreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court held the parameters (Downloaded on 06/05/2025 at 09:44:54 PM) [2025:RJ-JP:17817] (11 of 17) [CW-7641/2002] as to when the High Court shall not interfere in the disciplinary proceedings:
"13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
17. In the case of State of Karnataka Vs. Ramesh (supra) following principles have been laid down by the Hon'ble Supreme Court:-
"22. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether:
(i) the rules of natural justice have been complied with;
(ii) the finding of misconduct is based on some evidence;
(iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and
(iv) whether the findings of the disciplinary authority suffer from perversity; and
(vi) the penalty is disproportionate to the proven misconduct.
18. In the matter of Union of India Vs. Mangovinda (supra), the Hon'ble Apex Court has made following observations.
"In the present case, the procedure requiring issue of show-cause notice and compliance with the principles of natural justice is made. Quantum of punishment is within (Downloaded on 06/05/2025 at 09:44:54 PM) [2025:RJ-JP:17817] (12 of 17) [CW-7641/2002] the discretionary domain and the sole power of the decision-making authority once the charge of misconduct stands proved. Such discretionary power is exposed to judicial interference if exercised in a manner which is grossly disproportionate to the fault, as the constitutional courts while exercising the power of judicial review do not assume the role of the appellate authority. Writ jurisdiction is circumscribed by limits of correcting errors of law, procedural error leading to manifest injustice or violation of principles of natural justice. The decision are also disturbed when it is found to be ailing with perversity. On the question of quantum of punishment, the court exercising the power of judicial review can examine whether the authority has been a reasonable employer and has taken into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and excluded irrelevant matters. In the context of quantum of punishment these aspects are examined to consider whether there is any error in decision making process. On merits of the quantum of punishment imposed, the courts would not interfere unless the exercise of discretion in awarding punishment is perverse in the sense the punishment imposed is grossly disproportionate.
B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 5 Pravin Kumar v. Union of India, (2020) 9 SCC 471 6 Chairman-cum-Managing Director, Coal India Ltd. & Another v. Mukul Kumar Choudhuri & Others, (2009) 15 SCC 620"
19. On careful reading of all the aforesaid judgments it becomes abundantly clear that the scope and amptitude of writ jurisdiction under Article 226 of the Constitution of India has got its limitations and certainly this Court cannot act as an Appellate Authority, however, the Hon'ble Apex Court has consistently held (Downloaded on 06/05/2025 at 09:44:54 PM) [2025:RJ-JP:17817] (13 of 17) [CW-7641/2002] in the aforesaid cases that in the case where punishment awarded to the delinquent was shockingly disproportionate to the guilt and there was no application of mind while awarding a particular penalty with regard to nature of charges, magnitude of misconduct and choice of other penalty apart from the penalty awarded, this Court can make interference even while exercising jurisdiction under Article 226 of the Constitution of India.
20. This Court is of the view that the disciplinary proceedings do not come to an end and merely on completion of enquiry proceedings by the Enquiry Officer and submitting his report to the Disciplinary Authority. Consideration by the Disciplinary Authority on the question of 'quantum of punishment' is also integral and indispensable part of 'decision making process'.
21. It would be relevant to refer following paras on the judgment of the Division Bench of this Court in the case of Rajasthan State Road Transport Vs. Shri Ram Yadav (supra):
"1. A question of vital importance relating to service jurisprudence has arisen in these two appeals. Before imposing the economic death penalty of dismissal or removal from service, whether a disciplinary authority is bound to apply his mind to the various alternative penalties which could be imposed upon delinquent employee and as to whether the disciplinary authority is required to indicate "good and sufficient reasons" for choosing a particular penalty? Whether the vital considerations namely, (1) the nature and magnitude of the established charge, (2) the desirability or otherwise of retaining the employee in seivice in the context of the charges proved against him and (3) whether penalty lesser than the extreme penalty of dismissal or removal from service would prove adequate or not and various other aspects are required to be taken into consideration by the disciplinary authority while imposing penalty?(Downloaded on 06/05/2025 at 09:44:54 PM)
[2025:RJ-JP:17817] (14 of 17) [CW-7641/2002] These questions have arisen in these two appeals which arise out of the proceedings initiated by a Conductor who was ordered to be removed from service at the conclusion of the departmental enquiry.
14. It is not sufficient for the competent authority to consider the report of the enquiry officer and his advice and to say that having regard to the nature of the charges the penalty of removal from service or dismissal deserves to be imposed. The Disciplinary Authority is bound to ask the question to himself as to whether the, penalty of dismissal from service is the only penalty which could be imposed having regard to the nature of the charges levelled against the employee. He has to pose to himself the question as to whether little more lenient of the penalties will meet the ends of justice or not?
15. It must be realised that the law enjoins that a person accused of even petty offences must be heard on the question of sentence. It is elementary that the sentence should be neither too lenient nor too harsh. The sentence must be just even when the penalty likely to be imposed is a penalty of fine or a short term of imprisonment. The accused is required to be heard on these points and the authority is required to consider all these aspects. Therefore, there is greater reason for insisting on the disciplinary authority discharging this very delicate function in relation to the life and career of the employee concerned. The disciplinary authority has to strike a neat balance and to determine a just penalty. The penalty cannot be, and should not be characterised either as too lenient or too harsh. It may be that the disciplinary authority may commit an error in selecting particular penalty and a different view may be possible. But atleast he is bound to make an effort by weighing the pros and cons of every charge from the stand point that the gravity of the offence and the compulsion to impose the maximum penalty or more serious penalty resulting into economic death sentence. After making an honest attempt in ascertaining just penalty called for in the facts (Downloaded on 06/05/2025 at 09:44:54 PM) [2025:RJ-JP:17817] (15 of 17) [CW-7641/2002] and circumstances of each case, the disciplinary authority can pass an appropriate order of punishment. But if he makes no attempt it cannot be said that he has discharged quasi judicial function in the manner required by law. In such a situation it has got to be held that he has not applied his mind to the most important function of selecting the penalty.
23. In the instant case the disciplinary authority has made no attempt to ascertain as to what will be the just penalty in the facts and circumstances of the case. The disciplinary authority was under an obligation as per the provisions of the Standing Orders to indicate "good and sufficient reasons" before passing appropriate order of punishment. In the instant case no attempt is made to ascertain as to what would be the just penalty. As indicated hereinabove, the learned counsel for the respondent Corporation has not been able to place any material before the Court to show that the competent authority had "good and sufficient reasons" to choose the penalty of removal from service and forfeiture of wages for the period of suspension. In this view of the matter, it cannot be said that the disciplinary authority has dischrged the quasi judicial function in the manner required by law. It has got to be held that the disciplinary authority has not applied his mind to the most important function. Therefore, the order is nullity and the same is required to be quashed and set aside."
22. In the light of above, this Court has examined the documents available on record. It reveals by perusing the notice dated 13.08.1999 in which it was mentioned that in case the petitioner failed to report within a period of 30 days, he would to deem to have been voluntarily retired. While perusing the notice dated 10.06.2000 issued by the Disciplinary Authority it would come out (Downloaded on 06/05/2025 at 09:44:54 PM) [2025:RJ-JP:17817] (16 of 17) [CW-7641/2002] that after upholding the findings of Enquiry Officer the Disciplinary Authority proposed the penalty of removal from bank service without notice. The aforesaid notice was followed by penalty order dated 15.06.2000 in which it has been mentioned that the petitioner himself has requested that on account of prevailing circumstances he was unable to continue in bank service and prayed for awarding lesser penalty of compulsory retirement instead of removal from service, by taking a lenient view.
23. It would also reveal by perusing the notice dated 10.06.2000 and penalty order dated 15.06.2000 that at no point of time the Disciplinary Authority has applied its mind with regard to requirement of indicating "good and sufficient reasons" for choosing particular penalty of removal from service; nor has anything been mentioned either in the notice or penalty order reflecting any consideration over the point of choosing one of the harshest penalty of removal from service.
24. The Disciplinary Authority has also not examined the nature and magnitude of charges; desirability or undesirability of retaining the delinquent in service; or adequacy of penalty lesser than removal as well as other aspect which constitute vital considerations while imposing penalty. It is also a relevant fact to be considered that the Appellate Authority has also not examined the appeal filed by the petitioner on merits and has rather dismissed the same only on the ground of limitation. Thus, even the question of quantum of punishment has not been examined by the Appellate Authority.
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25. Admittedly, there are no charges of embezzlement, corruption or misappropriation in the matter against the petitioner, nor are there any allegations with regard to financial loss to the respondent-bank, hence, the instant case where the charge of willful absence has been levelled against Head Peon to the bank, looking to the long length of service rendered by him as well as looking to the fact that he was ageing about 51 years at the time of when penalty was imposed upon him and he had family to support also, this Court finds that the punishment of removal from service awarded to the petitioner is strikingly and shockingly disproportionate to the guilt.
26. Under these circumstances and in the light of the above observations, the instant writ petition filed by the petitioner is partly allowed to the extent of quantum of punishment and the matter is remitted back to the Disciplinary Authority for examining the question of quantum of punishment while taking into consideration nature and magnitude of the charges, length of service and choice of penalties.
27. The Disciplinary Authority is directed to pass a reasoned and speaking order within the period of two months from the date of receipt of certified copy of this order.
28. Stay application and all pending application(s), if any also stand disposed of.
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