Allahabad High Court
Aditya Swaroop Pandey S/O Prem Narayan ... vs Allahabad U.P. Gramin Bank, Banda Thru ... on 31 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 1046, 2020 (1) ALJ (NOC) 4 (ALU)
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Judgment Reserved A.F.R. Court No. - 26 Case :- SERVICE BENCH No. - 598 of 2011 Petitioner :- Aditya Swaroop Pandey S/O Prem Narayan Pandey Respondent :- Allahabad U.P. Gramin Bank, Banda Thru Chairman & Ors. Counsel for Petitioner :- S.S. Rajawat Counsel for Respondent :- A.K. Chaturvedi Hon'ble Saurabh Lavania,J.
Heard Smt. Bulbul Godiyal, learned Senior Advocate assisted by Sri S.S. Rajawat, learned counsel for the petitioner and Sri A.K. Chaturvedi, learned Senior Advocate assisted by Sri Ashwani Singh, learned counsel for the respondents-Allahabad U.P. Gramin Bank.
By means of the present writ petition, the petitioner has challenged the order of punishment of removal from service dated 28.08.2009 passed by the opposite party No. 2-Chairman, Allahabad U.P. Gramin Bank (in short "Bank") and the order dated 06.01.2011 passed by the Appellate Authority i.e. Board of the Bank.
The facts, as borne out from the writ petition, are that the petitioner was appointed on the post of Field Officer in the Srawasti Gramin Bank, Bahraich and subsequently on account of merger, the petitioner became the employee of the Allahabad U.P. Gramin Bank. The petitioner in the Bank was holding the Class-II post-the post of Officer at the time of initiation of disciplinary proceedings. The petitioner was served with the show cause notice dated 03.04.2007 with respect to initiation of disciplinary proceedings for the charges related to irregularities committed by him in disbursement of loans.
The show cause notice was duly replied by the petitioner vide reply dated 27.04.2007. The Bank thereafter, suspended the petitioner vide order dated 07.05.2007. The petitioner was served with the charge-sheet dated 25.08.2008. The charge-sheet contains 11 charges. All the charges against the petitioner are related to irregularities committed by him in disbursement of loan(s). The petitioner was required to submit his reply to the charge-sheet within ten days.
For the purposes of filing the reply to the charge-sheet, the petitioner sought time and also demanded the documents vide letter dated 22.09.2008. Without responding to the request made by the petitioner, the Competent Authority appointed the Enquiry Officer and Presenting Officer vide order dated 17.09.2008, which was duly served on the petitioner on 03.10.2008. Thereafter, the Enquiry Officer fixed the date for enquiry i.e. 15.10.2008 and the date was duly informed to the petitioner vide letter dated 29.09.2008.
In response to the letter dated 29.09.2008, the petitioner sent a letter dated 06.10.2008, whereby demanded the relevant documents, for which a request was made by him vide letter dated 22.09.2008. In absence of the documents demanded, the petitioner appeared before the Enquiry Officer on the date fixed i.e. 15.10.2008 and where he pleaded that in absence of necessary documents, he is not in a position to submit his reply and requested the Enquiry Officer to provide the necessary documents in the interest of justice and for submitting a proper reply to the charge-sheet. The request of providing of documents made by the petitioner was taken note of by the Enquiry Officer on 04.11.2008 i.e. the date fixed in the enquiry. On 04.11.2008, the copies of the documents, which were placed before the Enquiry Officer to prove the charges, were provided to the petitioner and the petitioner was permitted to inspect the original documents.
The petitioner inspected the documents on 18.11.2008 as mentioned in the proceedings of enquiry dated 22.11.2008. On the next date fixed in the enquiry proceedings i.e. 22.12.2008, the Enquiry Officer after due consideration directed the Presenting Officer of the Bank to provide the relevant documents demanded by the petitioner i.e. copy of the FIRs, details/statement(s) of Account(s), copy of the report of the hand writing expert.
The petitioner vide letter dated 22.12.2008 again demanded certain documents. The petitioner also made a request for permitting him to appear in the enquiry along with the Defence Assistant, Sri Krishna Kant Awasthi and the said request was turned down by the Competent Authority i.e. the Chairman of the Bank vide letter dated 31.12.2008 on the ground that outsider of the Bank would not be permitted to appear as a Defence Assistant in the enquiry and by the same letter, the petitioner was asked to nominate/appoint another Defence Assistant.
The earlier request of petitioner in relation to Sri Vinod Kumar Pandey to appear as Defence Assistant in the enquiry proceedings was also turned down by the Competent Authority i.e. the Chairman of the Bank vide order dated 05.12.2008 on the grounds that Sri Vinod Kumar Pandey vide letter dated 17.11.2008 has refused to appear as Defence Assistant of the petitioner.
The petitioner in response to the order dated 31.12.2008 made a representation dated 06.01.2009 before the Authorities of the Bank, wherein it has been stated that under Regulation 43 of Lucknow Kshetriya Gramin Bank (Officers and Employees) Service Regulations, 2006 (in short "Regulations of 2006") only an Advocate cannot be engaged as a Defence Assistant and as such, the request turned down by the Bank vide order dated 31.12.2008, is not just and proper and is in violation of principles of natural justice. In the same letter dated 31.12.2008 of the petitioner, it has also been stated that the subsistence allowance has not been paid to the petitioner since 2008 but in the said letter the petitioner has not stated on account of non-payment of subsistence allowance he is not in a position to attend the enquiry proceedings.
On 15.01.2009, the Enquiry Officer send the letter to the petitioner asking thereby to submit his defence on the date fixed i.e. 23.01.2009. It has also been stated in the letter dated 15.01.2009 that in absence of any defence/reply, the enquiry would be closed.
It would not be out of place to mention here that it is also evident from the record that the petitioner vide letter dated 06.01.2009, which was sent in response to the order dated 31.12.2008, whereby the permission to engage Sri Krishana Kant Awasthi as Defence Assistant was refused and the petitioner was asked to engage some other Defence Assistant in place of Sri Krishna Kant Awasthy, failed to appoint Defence Assistant in place of Sri Krishna Kant Awasthi.
The Enquiry Officer vide order dated 23.01.2009, which was duly received by the petitioner on 28.01.2009, informed the petitioner that enquiry has been conducted ex-parte in absence of your defence/reply and the same has been closed and the Presenting Officer has been directed to submit the written brief of the management by 07.02.2009 and by the same letter, the petitioner was asked to submit his reply within 15 days from receipt of written brief of Presenting Officer.
In response to the said letter, the petitioner send a letter on 31.01.2009 stating therein that without providing the Defence Assistant, you have permitted me to participate in the enquiry and in the circumstances, I am unable to plead my case in defence and it is in violation of my rights and on account of the same, I have sought the opinion of an Advocate who advised me to file the writ petition and accordingly, through the said letter, the petitioner requested 15 days time to approach the High Court. The petitioner vide letter dated 28.01.2009 also requested the Bank to conduct common enquiry in view of the Regulation 41 of the Regulations of 2006.
The letter dated 31.01.2009 was submitted by the petitioner after conclusion of enquiry proceedings by the Enquiry Officer on 23.01.2009, Thereafter, the petitioner approached this Court by means of the Writ Petition No. 253 (SB) of 2009 for quashing of order dated 05.12.2008 and 31.12.2008, whereby the request to provide Defence Assistant was rejected, and also prayed for restraining the Bank from proceeding with the enquiry unless and until the petitioner is provided all the necessary documents demanded by him and he submits his reply to the charge-sheet and petitioner is provided Defence Assistant of his choice and petitioner is paid subsistence allowance.
This Court without interfering in the orders impugned in the writ petition and without granting other reliefs sought by the petitioner, disposed of the writ petition on 12.02.2009 with liberty to the petitioner to file the objection before the Enquiry Officer and with direction to the Enquiry Officer to pass the speaking and reasoned order and communicate the same to the petitioner.
The operative portion of the order dated 12.02.2009 is quoted below for ready reference.
"Accordingly, the writ petition seems to have been filed at premature stage. However, it is provided that the enquiry officer shall decide the petitioner's objections keeping in view the reply submitted by him in response to the defence objections by passing a speaking and reasoned order and communicate the decision to the petitioner. It shall be open for the petitioner to raise all necessary grievance including supply of documents etc which has been pleased in the present writ petition while submitting a response to the written brief."
Pursuant to the liberty given to the petitioner vide order dated 12.02.2009, the petitioner sent the letter dated 14.02.2009 for necessary compliance of the order dated 12.02.2009 passed by this Court.
The written brief submitted by the Presenting Officer of the Bank dated 05.03.2009 was received by the petitioner on 16.03.2009.
In response to the letter dated 14.02.2009 of the petitioner, the Bank send a letter dated 06.04.2009 to the petitioner stating therein that the written brief was sent to the petitioner vide letter dated 16.03.2009 but in the time prescribed, the reply has not been submitted and by the said letter, the petitioner was aksed to submit his reply by 15.04.2009.
In regard to the letter dated 06.04.2009, the petitioner has alleged in the writ petition that the same is anti-dated and the said letter was received by the petitioner on 15.04.2009 itself.
In response to the letter dated 06.04.2009, the petitioner send the letter dated 15.04.2009, whereby requested 20 days time to file the reply to the written brief submitted by the Bank.
After the letter dated 15.04.2009, the petitioner submitted his representation/objection dated 01.05.2009 before the Enquiry Officer, wherein the petitioner raised the objection with respect to providing of documents, non-providing of Defence Assistant and non-providing of subsistence allowance and also reply, in detail, to the written brief of the Bank.
In the letter dated 01.05.2009 also the petitioner has not pleaded that on account of non-payment of subsistence allowance he was not in the position to attend the enquiry proceedings.
Vide letter dated 06.04.2009, the petitioner was required to submit the reply to the written brief submitted by the Bank till 15.04.2009 but the petitioner failed to submit his reply and in absence of the reply, the Enquiry Officer submitted his enquiry report dated 25.04.2009 before the Competent Authority vide letter dated 29.04.2009. The enquiry report was provided to the petitioner vide letter/show cause notice dated 29.04.2009.
In response to the letter/show cause notice dated 29.04.2009, the petitioner submitted his reply dated 12.05.2009. The Disciplinary Authority after submission of reply to the show cause notice, passed the impugned order dated 28.08.2009.
The petitioner being aggrieved by the order dated 29.08.2009, preferred an appeal under Regulation 47 of Lucknow Kshetriya Gramin Bank (Officers and Employees) Service Regulation, 2006. The Appellate Authority rejected the appeal of the petitioner on 06.01.2011. In fact, the appeal of the petitioner was rejected by the Board of Directors/Appellate Authority in the meeting held on 29.11.2010 and by impugned order dated 06.01.2011, the said decision was communicated to the petitioner.
Being aggrieved by the aforesaid orders, the present writ petition has been filed.
In response to the contents of the writ petition, the Bank filed a detailed counter affidavit stating therein that the petitioner was suspended vide order dated 07.05.2007 in contemplation of departmental disciplinary inquiry proceedings. The petitioner was served with a charge memorandum dated 25.08.2008 on 03.09.20085. A perusal of the charge memorandum dated 25.08.2008 would reveal that the petitioner was granted ten days time to submit reply/written statement to the charge memorandum dated 25.08.2008 i.e. up to 12.09.2008 but the petitioner did not submit any reply/written statement resulting which three separate orders were issued on 17.09.2008 i.e. (i) order dated 17.09.2008 for departmental inquiry, (ii) order dated 17.09.2008, appointing Sri M.R. Verma, Respondent No. 3 as Enquiry Officer and (iii) order dated 17.09.2008 appointing Sri Manoj Kumar Srivastava as Presenting Officer. The Enquiry Officer conducted departmental disciplinary inquiry proceedings on 12 dates out of which initial three dates were attended by the petitioner and the last 09 dates were not attended by the petitioner without any rhyme and reason. 64 Management Exhibits having 786 documents were produced during the departmental disciplinary inquiry proceedings conducted before Enquiry Officer, copes of which were made available to the petitioner. Three Defence Exhibits having 60 documents were produced by the petitioner which were supplied by the Presenting Officer on the request of the petitioner. The statements of three Management Witnesses S/Sri K.P. Shukla, Management Witness No. 1, R.S. Yadav, Management Witness No. 3 and S.J. Dubey, Management Witness No. 4 were recorded but the petitioner did not cross-examine them due to non-participation in the departmental disciplinary inquiry proceedings on the said dates. However, the Enquiry Officer has cross-examined all three Management Witnesses during the departmental disciplinary proceedings in absence of the petitioner. The Presenting Officer submitted written brief dated 05.03.2009, a copy of which was served upon the petitioner on 16.03.2009, as admitted by the petitioner and another copy of the aforesaid written brief was served upon the petitioner by the Enquiry Officer through letter dated 16.03.2009 which was received by the petitioner on 20.03.2009 as per his own admission in the written brief dated 01.05.2009. The petitioner was under obligation to submit his written brief up to 31.03.2009 but no written brief was submitted by the petitioner up to 31.03.2009 and as such a letter dated 06.04.2009 was sent to the petitioner by the Enquiry Officer for submission of written brief, if any, up to 15.04.2009. In fact, including the letter dated 06.04.2009 three reminders for submission of the written brief by the petitioner were issued. The petitioner's letter dated dated 15.04.2009 (Annexure No. 32 to the writ petition) was received by the Enquiry Officer on 18.04.2009 which was considered by him in the enquiry report dated 25.04.2009 (Annexure No. 34 to the writ petition) at page No. 2 paragraph-3. The petitioner was not entitled for any extension of time as the petitioner neither submitted any written brief between 16.03.2009 to 25.04.2009 nor has responded in any manner prior to 15.04.2009. The enquiry report dated 25.04.2009 (Annexure No. 34 to the writ petition) after due consideration was sent to the petitioner through letter dated 29.04.2009 (Annexure No. 34 to the writ petition). The petitioner belated written brief dated 01.05.2009 (Annexure No. 33 to the writ petition) was received by the Enquiry Officer on 04.05.2009 i.e. after submission of the enquiry report dated 25.04.2009 and as such the same was sent by the Enquiry Officer to the disciplinary authority through letter dated 05.05.2009 (Annexure No. CA-7 to this counter affidavit). The petitioner after receipt of the enquiry report dated 25.04.2009 through letter dated 29.04.2009 submitted representation dated 12.05.2009 which was received on 16.05.2009 without referring to the Hon'ble Court's Judgment and order dated 12.02.2009 as well as belated written brief dated 01.05.2009 and the same was considered by the disciplinary authority while passing the order dated 28.08.2009 (Annexure No. 1 to the writ petition). The respondent No. 2 considered the material on record and imposed the penalty of removal from service, which shall not be disqualification for future employment. The petitioner preferred belated appeal dated 21.10.2009 keeping in view the Hon'ble High Court's Judgment and order dated 09.10.2009 passed in Writ Petition No. 1433 (S/B) of 2009 (Aditya Swaroop Pandey v. Lucknow Kshetriya Gramin Bank and two others) and the same was considered by the appellate authority i.e. the Board of Directors of the Bank in its meeting held on 29.11.2010 and rejected the same which was communicated to the petitioner though letter dated 06.01.2011. Thus the departmental disciplinary enquiry proceedings with respect to charge memorandum dated 25.08.2008 was conducted in accordance with Lucknow Kshetriya Gramin Bank (Officers and Employees) Service Regulation, 2006 and thereafter removal from service order dated 28.08.2009 was passed. The petitioner belated appeal dated 21.10.2009 was considered in accordance with Regulations of 2006 and rejected by the appellate authority i.e. Board of Directors of the Bank in its meeting held on 29.11.2010.
With regard to the service period prior to disciplinary enquiry in issue, it has been stated in counter affidavit that keeping in view the initial appointment as Field Supervisor in the Erstwhile Shravasti Gramin Bank, Head Officer, Bahraich with effect from 25.02.1982 the petitioner was designated as Officer Scale I/Middle Management Grade I/Assistant Manager with effect from 01.09.1987. The petitioner while working as Officer Scale I/Middle Management Grade I/Assistant Manager was suspended and was served with a charge sheet dated 08.03.1988 which was resulted into removal from service through order dated 30.09.1989 against which the petitioner preferred appeal to the appellate authority and the appellate authority reduced the punishment from removal from service to demotion from officer Scale I/Middle Management Grade I/Assistant Manager to Field Supervisor through order dated 17.01.1990. The petitioner was served with a charge sheet dated 17.01.1997 which resulted into punishment order dated 25.09.2001 imposing therein stoppage of three annual increments with cumulated effect against which the petitioner preferred an appeal and the appellate authority reduced the punishment from stoppage of three annual increments with cumulated effect to stoppage of one annual increment with on cumulated effect vide order dated 23.05.2002. Further the petitioner was suspended from 17.04.1999 to 10.09.1999 and was served with a charge sheet dated 30.10.1999 which resulted into punishment order dated 24.05.2003 imposing therein the punishment of censure. The three punishment orders are intact till date and the present removal from service order dated 28.08.2009 is the fourth punishment order. Apart from the aforesaid four orders the petitioner has also been warned through letter dated 13.04.1985, 09.09.1985, 10.02.1986, 11.02.1986 and 01.04.1987. The petitioner is an accused in Criminal Misc. Case No. C-15/2005 under Section 419, 420, 421 and 422 IPC in which charge sheet has been filed against the petitioner in the competent Court of Law and the same is yet pending consideration. The petitioner was posted as Officer, Branch Civil Line, District -Bahraich from 22.04.2002 to 30.12.2006 and thereafter from 01.01.2007 till the date of suspension order dated 07.05.2007 as Officer, Branch Jatpurwa, District-Lakhimpuri Kheri. Even during the period of suspension from 07.05.2007 to removal from service order dated 28.08.2009 the petitioner was attached in Branch Jatpurwa, District- Lakhimpur Kheri.
In regard to payment of subsistence allowance, it has been stated in the counter affidavit that the petitioner was paid subsistence allowance regularly every month by the Branch Manager, Branch Jatpurwa, District-Lakhimpur Kheri. The petitioner left Headquarter/station i.e. Branch Jatpurwa, District-Lakhimpur Kheri from 01.09.2008 till the removal from service order dated 28.08.2009, against the condition mentioned in suspension order dated 07.05.2007, as such the subsistence allowance for the aforesaid period was not paid to the petitioner. In compliance of the Hon'ble Court's order dated 05.04.2011 passed in the writ petition, the petitioner was paid subsistence allowance for the period from 01.09.2008 till the removal from service order dated 28.08.2009 on 28.04.2011 by crediting the entire amount of Rs. 2,08,271/- in petitioner's saving bank account No. 106100 at Branch Jatpurwa, District- Lakhimpur Kheri.
In regard to appointment of Defence Assistant in the counter affidavit, after referring several letters/communications, it has been stated that the petitioner was asked to appoint Defence Assistant in place of Sri Krishna Kant Awasthi but in fact the petitioner was not willing to nominate Defence Assistant. It is non cooperation in the disciplinary proceedings.
The learned Senior Advocate Smt. Bulbul Godiyal, assisted by Sri S.S. Rajawat Advocate, appearing for petitioner, for causing interference by this Court in the impugned orders, made submissions on the main issues/grounds to the effect that (i) the Enquiry Officer conducted the enquiry in violation of principles of natural justice, (ii) the relevant documents were not provided to the petitioner and on account of which, the petitioner could not file his reply to the charge-sheet, (iii) the Defence Assistant, as required under Regulation 43, was denied in violation of Regulation 43 of the Regulations of 2006, (iv) the subsistence allowance was not provided to the petitioner and on account which, entire enqiry proceedings are vitiated, (v) the enquiry proceedings are also vitiated on account of the fact that the common enquiry was not conducted under Regulation 41 of the Regulations of 2006, (vi) the orders passed by the Disciplinary Authority are non-speaking order, (vii) the order of Appellate Authority is also a non-speaking order and the Appellate Authority has also failed to take note of relevant pleas taken in the appeal including the plea of violation of principles of natural justice during the enquiry proceedings and (viii) similar charge-sheet was issued to Sri Kamal Kant Rai and charges were proved in enquiry and lessor punishment i.e. punishment of compulsory retirement has been given to Sri Kamal Kant Rai, whereas for similar charges, the petitioner has been removed. Thus, punishment awarded to the petitioner is harsh and against the principles of parity in punishment.
Firstly, I am dealing with the submissions made by the learned Senior Counsel with respect to non-payment of subsistence allowance. On this aspect, the learned counsel for the petitioner submitted that the petitioner was suspended vide order dated 07.05.2007 and for some time subsistence allowance was paid and thereafter during the enquiry proceedings no payment was made to the petitioner and accordingly on account of non-payment of subsistence allowance the enquiry proceedings are vitiated and interference in the enquiry proceedings including the impugned orders is required by this Court. On this issue she placed reliance on the following judgments:
1. AIR 1973 SC 1183, Ghanshyam Das Srivastava v. State of M.P.
2. 1994 LCD 367, State of U.P. v. Rishi Pal Singh
3. 2000 (7) SCC 90, Jadamba Prasad Shukla v. State of U.P.
4. 1999 (2) AWC 1579 (SC), Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.
5. 2001 (19) LCD 1200, Sudarsh Awasthi v. Bank of India
6. (2002) 6 SCC 703,Anwarun Nisha Khatoon v. State of Bihar.
In response to the above the learned counsel for the opposite parties/Bank Sri Asit Kumar Chaturvedi, assisted by Sri Ashwani Kumar Singh, submitted that the petitioner was paid subsistence allowance regularly till he was staying at the place mentioned in the order of suspension. As per the conditions mentioned in the suspension order he was required to stay at Jatpurwa, District Lakhimpur Kheri, but he left the Jatpurwa without taking permission of the respondent no. 2 and without notifying the address of communication and accordingly the subsistence allowance could not be paid from 01.09.2008 till the order of removal dated 28.08.2009. The amount which could not been during the enquiry proceedings was paid to the petitioner in compliance of the order of this Court passed in the present writ petition dated 05.04.2011.
Further submitted that the petitioner participated in the enquiry proceedings on three dates and thereafter he avoided the enquiry proceedings in which total 12 dates were fixed. Before authorities of the Bank the petitioner never pleaded that on account of non-payment of subsistence allowance he is unable to attend the enquiry proceedings. During the enquiry proceedings the petitioner made correspondence with the Bank Authorities including the Enquiry Officer and submitted his reply to the enquiry report. He also submitted a belated objection to the written brief submitted by the Presenting Officer before the Enquiry Officer. The learned Senior Advocate also pointed out the averments made in paragraphs 22, 34 and 56 of the writ petition and paragraphs 19, 26 and 34 of the rejoinder affidavit to show that in the said paragraphs also the petitioner has not specifically pleaded that on account of non-payment of subsistence allowance he could not participate in the enquiry proceedings and prejudice has been caused on account of non-payment of subsistence allowance. Regarding the averments made in the paragraph 11 of the rejoinder affidavit the learned Senior Counsel submitted that the averments made with regard to subsistence allowance are after thought and cannot be taken into account for interfering in the disciplinary proceedings keeping in view the fact that the point was not raised by the petitioner during the enquiry.
Considered the aforesaid and record. It appears from the record particularly the letters of the petitioner dated 31.12.2008 and 01.05.2009, which was preferred by the petitioner after submission of the enquiry report dated 24.04.2009, submitted vide letter dated 29.04.2009, that during the enquiry proceedings and even after submission of enquiry report the petitioner has not pleaded that on account of non-payment of subsistence allowance he is/was not in a position to attend the enquiry proceedings or did not participated in the enquiry proceedings due to the non-payment of subsistence allowance. In the writ petition also it has not been specifically pleaded that on account of non-payment of subsistence allowance the petitioner could not participate in the enquiry proceedings. It is only in paragraph 11 of the rejoinder affidavit the petitioner has pleaded that he could not participate in the enquiry proceedings due to the non-payment of subsistence allowance, it is after thought and being so liable to be ignored. During the enquiry the petitioner made several correspondence with the Bank Authorities and submitted the replies, which include the paragraph 1 of internal page 3 of reply dated 12.05.2009 to the enquiry report dated 24.04.2009 and in the same also it has not been pleaded that on account of non-payment of subsistence allowance he could not participate in the enquiry proceedings. Admittedly, the subsistence allowance was paid till 01.09.2008 and in the enquiry proceedings held on 15.10.2008, 04.11.2008 and 22.12.2008 the petitioner participated and thereafter, made several correspondence and even submitted replies. On account of non-payment of subsistence allowance what prejudice has been caused has also not been pleaded by the petitioner in the writ petition. The entire amount of the subsistence allowance has now been paid to the petitioner.
From the aforesaid it is evident that the petitioner on some dates participated in the enquiry proceedings, made correspondence with the Bank Authorities and submitted replies to the Enquiry Officer/Bank and never pleaded that on account of non-payment of subsistence allowance he is/was not in a position to attend the enquiry proceedings, even in the writ petition it has not been pleaded and being so the plea based on subsistence allowance during the arguments based on the averments made in the rejoinder affidavit is liable to be rejected more so when it has not been pleaded that what prejudice has been caused to the petitioner. This Court is of the view that on account of non-payment of subsistence allowance no prejudice has been caused to the petitioner.
As per the view expressed by the Hon'ble Apex Court in the case(s) of Indra Bhanu Gaur Vs. Committee of Management of M. M. Degree College, (2004) 1 SCC 281 and U.P. State Textile Corporation Ltd. Vs. P. C. Chaturvedi, (2005) 8 SCC 211, the interference in the departmental proceedings on the ground of the non-payment of the subsistence allowance should not be made unless prejudice is shown by the delinquent and the stand should be taken before the employer that on account of non-payment of subsistence allowance he is not in a position to participate in the enquiry proceedings. The same view has been taken by the Division Bench of this Court in the case of Rakesh Kumar Mishra Vs. U.P. State Yarn Company Ltd., 2003 ALJ 605.
The relevant paragraphs 7 of the judgment passed in the case of Indra Bhanu (supra) is quoted below for ready reference:-
"7. From the judgment of the High Court, in the writ petition it appears that there is no reference to the alleged infirmity on account of subsistence allowance having not been paid. There was also no specific finding recorded for the question of bias as alleged presently. We find that there was total lack of cooperation from the appellant as the factual background highlighted above would go to show. Ample opportunity was granted to the appellant to place his case. He did not choose to do so. It is only a person who is ready and willing to avail of the opportunity given, who can make a grievance about denial of any opportunity and not a person like the appellant who despite repeated opportunities given and indulgence shown exhibited defiance and total indifference to extending cooperation. Therefore, on that score the appellant cannot have any grievance. So far as the effect of not paying the subsistence allowance is concerned, before the authorities no stand was taken that because of non-payment of subsistence allowance, he was not in a position to participate in the proceedings, or that any other prejudice in effectively defending the proceedings was caused to him. The appellant could not plead or substantiate also that the non-payment was either deliberate or to spite him and not due to his own fault. It is ultimately a question of prejudice. Unless prejudice is shown and established, mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiate the proceedings in every case. It has to be specifically pleaded and established as to in what way the affected employee is handicapped because of non-receipt of subsistence allowance. Unless that is done, it cannot be held as absolute proposal in law that non-payment of subsistence allowance amounts to denial of opportunity and vitiates departmental proceedings."
The relevant paragraph 11 and 12 of the judgment passed in the case of U.P. State Textile (supra) is quoted below for ready reference:-
"11. The residual question is non-payment of subsistence allowance.
12. So far as the effect of not paying the subsistence allowance is concerned, before the authorities no stand was taken by Respondent 1 employee that because of non-payment of subsistence allowance, he was not in a position to participate in the proceedings, or that any other prejudice in effectively defending the proceedings was caused to him. He did not plead or substantiate also that the non-payment was either deliberate or to spite him. It is ultimately a question of prejudice. Unless prejudice is shown and established, mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiate the proceedings in every case. It has to be specifically pleaded and established as to in what way the affected employee is handicapped because of non-receipt of subsistence allowance. Unless that is done, it cannot be held as an absolute position in law that non-payment of subsistence allowance amounts to denial of opportunity and vitiates departmental proceedings."
In the light of aforesaid, the plea of non-payment of the subsistence allowance based on the judgment relied upon by the counsel for the petitioner is not sustainable, hence rejected.
Now I am dealing with the submissions made by the learned Senior Counsel with respect to non supply of the relevant documents. On this aspect, the learned counsel for the petitioner submitted that the petitioner vide letters dated 22.09.2008, 24.11.2008 and 22.12.2008 the petitioner demanded the documents but were not provided and accordingly enquiry proceedings are vitiated. The counsel for the petitioner on this aspect placed reliance on the following judgments:
1. AIR 1986 (SC) 2118, Kashinath Dikashjta v. Union of India
2. 1998 (6) SCC 651, State of U.P. v. Shatrughan Lal
3. 2005 (23) LCD 1101, Ayodhya Singh v. Oriental Bank of Commerce
4. 2011 (4) ADJ 401, Kishori Lal v. Chairman Board of Directors.
In response to the above the learned counsel for the Bank submitted that the relevant documents were provided to the petitioner during the enquiry proceedings. The counsel for the Bank drawn attention of this Court on the enquiry proceedings on record dated 04.11.2008 and 22.12.2008 as well as enquiry report. On the basis of proceedings dated 04.11.2008 it has been submitted that 59 documents mentioned therein were provided to the petitioner and the petitioner also inspected the originals of the same on 18.11.2008. On the basis of proceedings dated 22.12.2008 it has been submitted that the Enquiry Officer after considering the requirement of the documents directed the Bank Authorities to provide documents i.e. copies of F.I.R., copies of statement of accounts and copy of report of handwriting expert to the petitioner. The relevant documents were provided to the petitioner and on the basis of the same the petitioner submitted his reply. The relevancy of the documents, which were demanded by the petitioner, was considered by the Enquiry Officer and thereafter the direction to provide the relevant available documents was given and accordingly the documents were provided. The petitioner has not been pleaded that what prejudice has been caused on account of non-providing the documents other than the documents provided. The relevancy of the documents demanded by the petitioner has also not been pleaded either during the enquiry or before this Court. The prayer is to reject the plea of non-supply of documents raised by the petitioner for interfering in the enquiry proceedings including impugned orders.
Considered the aforesaid and record. What this Court finds is that in the letter dated 22.09.2008, 24.11.2008 and 22.12.2008, which were placed before the Enquiry Officer, the petitioner has not pleaded the relevancy of the documents demanded. Relevant available documents were provided to the petitioner by the Enquiry Officer including some of the documents demanded by the petitioner vide letter dated 22.09.2008. The relevancy of documents demanded has also not been pleaded in the writ petition. The petitioner submitted his objection and reply based on the documents provided during the enquiry and in the same also relevancy of the documents, which were not provided, has not been mentioned. Therein it has also not been mentioned that on account of non-supply of some documents, which were demanded vide letter dated 22.09.2008, what prejudice has been caused to the petitioner. The relevant documents were provided to the petitioner is evident from the pleadings and documents on record particularly the proceedings of enquiry dated 04.11.2008 and 22.12.2008 and enquiry report dated 24.04.2009.
The Hon'ble Apex Court in the cases of Syndicate Bank Vs. Venktesh Gururao Kurati, (2006) 3 SCC 150, considered in the case of Chamoli District Cooperative Bank Vs. Raghunath Singh Rana, (2016) 12 SCC 204 and State Bank of India Vs. Bidyut Kumar Mitra, (2011) 2 SCC 316 has taken the view that the relevancy of documents not supplied to the delinquent and prejudice caused to the delinquent must be pleaded and in absence of the same the interference by the Court should not be made.
The relevant paragraph 18 of the Syndicate Bank Vs. Venktesh Gururao Kurati (supra) is quoted below for ready reference :-
"18. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice."
The relevant paragraphs 38 and 41 of the State Bank of India Vs. Bidyut Kumar Mitra (supra) are quoted below for ready reference:-
"38. In the present case, we have noticed above that the respondent did not even care to submit the list of documents within the stipulated time. Further, he did not even care to specify the relevance of the documents sought to be requisitioned. In our opinion, the appellant Bank has not transgressed any of the principles laid down in the aforesaid judgment whilst conducting and concluding the departmental proceedings against the respondent. Therefore, the aforesaid observations in S.K. Sharma case [(1996) 3 SCC 364 : 1996 SCC (L&S) 717] are of no avail to the respondent.
41. At this stage, it would be relevant to make a reference to certain observations made by this Court in Haryana Financial Corpn. v. Kailash Chandra Ahuja [(2008) 9 SCC 31 : (2008) 2 SCC (L&S) 789] , which are as under: (SCC pp. 38-39, para 21) "21. From the ratio laid down in B. Karunakar [ECIL v. B. Karunakar, (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside.""
In view of the aforesaid principle and the reasons recorded by this Court hereinabove, the plea for interference in the impugned orders on the ground of non-supply of documents is hereby rejected.
Another plea raised by the petitioner is that during the enquiry the Defence Assistant was not provided to the petitioner and it is in utter violation of principles of natural justice. On this plea the counsel for the petitioner drawn attention of this Court on the letters dated 19.11.2008, 05.12.2008, 23.12.2008, 31.12.2008 and 06.01.2009 as well as Regulation 43 of the Regulations of 2006 and submitted that the request of the petitioner for appointing Sri Vinod Kumar Pandey as Defence Assistant vide letter dated 19.11.2008 was rejected by the Bank in a arbitrary manner and the second request of the petitioner vide letter dated 23.12.2008 for appointing Sri Krishna Kant Awasthi was also rejected vide letter dated 31.12.2008 by the Bank in an arbitrary manner particularly against the spirit of Regulation 43, according to which only a Legal Practitioner cannot be engaged without permission of the competent authority-Chairman of the Bank, in the present case. The petitioner was compelled to participate in the proceedings in absence of Defence Assistant. Further submitted that non providing of Defence Assistant itself is in violation of principles of natural justice and vitiates the enquiry proceedings. The reliance has been placed on the following judgments:
1. AIR 1972 SC 2178, C.L. Subrmaniam v. The Collector of Customs
2. Writ-A No. 64711 of 2013, Rakesh Singh v. Chairman & Disciplinary Authority.) On this plea the counsel for the Bank placed reliance on the documents relied by the counsel for the petitioner, mentioned hereinabove, as also the letter dated 19.01.2009 (Annexure No. CA-13 to the counter affidavit) and submitted that the request of the petitioner to appoint Sri Vinod Kumar Pandey was not acceded as Sri Vinod Kumar Pandey, vide his letter dated 17.11.2008, himself withdrew to appear as Defence Assistant, as appears from the letter dated 05.12.2008. It is submitted that the letter dated 05.12.2008 was duly served on the petitioner. It has also been submitted that the request with respect to appointing Sri Krishna Kant Awasthi as Defence Assistant of the petitioner was rejected vide letter dated 31.12.2008 and thereafter petitioner filed the Writ Petition No. 253 (S/B) of 2009, challenging the orders/letters dated 05.12.2008 and 31.12.2008 with consequential reliefs. Without interfering in the impugned orders and without granting the consequential relief(s) sought the writ petition was disposed off on 12.02.2009 with liberty to the petitioner to file the objection before the Enquriy Officer and Enquiry Officer was directed to decide the same by reasoned and speaking order. The petitioner in the reasonable time failed to submit his objection. The objection of the petitioner was submitted after submission of enquiry report dated 24.04.2009 vide letter dated 29.04.2009. The petitioner during the enquiry proceedings has never pleaded that without Defence Assistant he would unable to present his case before the Enquiry Officer and without Defence Assistant he would not appear in the proceedings. The petitioner has also not pleaded that what prejudice has been caused to the petitioner in absence of Defence Assistant, which he could have nominated pursuant to order dated 31.12.2008. The plea pertaining to providing Defence Assistant is unsustainable in view of the fact that petitioner never participated in the enquiry after the enquiry proceeding dated 22.12.2008. This Court also not interfered in the orders of rejection of appointment of the Defence Assistant. Vide letter dated 31.12.2008 itself the Bank asked the petitioner to nominate any other officer of the Bank but he (petitioner) failed to nominate the same.
Considered the submissions and record. The record shows that the orders dated 05.12.2008 and 31.12.2008 were challenged by the petitioner and which were not interfered by this Court and accordingly this Court is of the view that the validity of the orders is not open to judicial review in second round of litigation. The petitioner himself failed to nominate his Defence Assistant pursuant to order dated 31.12.2008 and also failed to file the objection, as per liberty given by this Court vide order dated 12.02.2009, within reasonable time and as such the plea raised by the petitioner is unsustainable. More so he never participated in the enquiry proceedings after 22.12.2008, never pleaded, during enquiry that without Defence Assistant he would be unable to present his case before the Enquiry Officer and without Defence Assistant he would not appear in the proceedings and the petitioner has also not pleaded that what prejudice has been caused to the petitioner in absence of Defence Assistant.
In the judgment of the Hon'ble Apex Court in the case of C.L. Subramaniam (supra), relied upon by the counsel for the petitioner, it was specifically pleaded by the delinquent that he cannot appear for the enquiry without assistance and in the present case the petitioner has never pleaded, during enquiry that without Defence Assistant he would be unable to present his case before the Enquiry Officer and without Defence Assistant he would not appear in the proceedings and the petitioner has also not pleaded that what prejudice has been caused to the petitioner in absence of Defence Assistant. The judgment relied upon by the counsel for petitioner passed in the case of Rakesh Singh (supra) is of no relevance as in the said case the order refusing to provide Defence Assistant was interfered and in the present case no interference was made in the orders, whereby the request of the petitioner to nominate/appoint Defence Assistant was turned down with liberty to petitioner to appoint any other person as Defence Assistant, by this Court in Writ Petition No. 253 (S/B) of 2009 filed by the petitioner, as appears from the order dated 12.02.2009 passed by this Court.
For the reasons aforesaid the plea based on the not providing the Defence Assistant is rejected.
Now I am dealing with the submissions made by the counsel for the petitioner that the Enquiry Officer conducted enquiry in utter violation of natural justice on this aspect the counsel for petitioner placed reliance on the following judgments :
1. 2003 (21) LCD 610, Radhey Kant Khare v. Cooperative Sugar Factories Fed Ltd.
2. 2018 (36) LCD 471, Ram Naresh Singh v. State of U.P.
3. 2018 (36) LCD 734, Shrinath Upadhyaya v. State of U.P. Based on the principles settled in the above mentioned judgments, the counsel for the petitioner submitted that the Enquiry Officer failed to provide the reasonable opportunity of hearing during the enquiry. After 22.12.2008, ex-parte proceedings were conducted by the Enquiry Officer in violation of principles of natural justice. The opportunity to cross-examine the witnesses was not given. The Defence Assistant was not provided. The documents were not provided by the Enquiry Officer. In the enquiry, in absence of relevant documents, the petitioner failed to submit his reply. The subsistence allowance was not paid to the petitioner during enquiry. The reasonable time was not provided to the petitioner for submission of objection pursuant to the order of this Court dated 12.02.2009.
In response to the above the counsel for the Bank submitted that the reasonable opportunity of hearing was given to the petitioner but he failed to avail the same rather avoided the disciplinary proceedings on one pretext and other and as such on this ground the petitioner is not entitled to any indulgence of this Court.
On this issue the counsel for the Bank has placed before this Court the contents of the Enquiry Report and based on the same submitted that reasonable opportunity of hearing was given in the enquiry and submitted that in the enquiry the petitioner participated on three dates i.e. 15.10.2008, 04.11.2008 and 22.12.2008. In the proceedings of 22.12.2008, the next date of enquiry is shown i.e. 23.12.2008. On 23.12.2008 the petitioner failed to appear in the proceedings, though the date was known to him and Enquiry Officer proceeded ex-parte. In the interest of justice the letters dated 31.12.2008 fixing 15.01.2009 and thereafter the letter dated 15.01.2009 was sent by the Bank to the petitioner fixing 23.01.2009 for appearing in the enquiry proceedings for the purposes of the cross-examination of the witnesses and presenting his case even then the petitioner did not appeared before the Enquiry Officer. On 23.01.2009 the enquiry proceedings were closed and the intimation was given to the petitioner. Pursuant to order of this Court dated 12.02.2009, in reasonable time, the petitioner failed to submit his objection to the written brief of the Bank. The objection was submitted after submission of enquiry report vide letter dated 29.04.2009. After submission of enquiry report, the objection dated 01.05.2019 was received by the Enquiry Officer on 04.05.2009 and the same was send to disciplinary authority vide letter dated 05.05.2009. The reasonable time, was upto 25.04.2009, as appears from the letter dated 06.04.2009. The petitioner himself avoided the enquiry proceedings and thus is not entitled to any indulgence by this Court on the ground that the reasonable opportunity of hearing was not provided during the enquiry though it was provided.
Considered the submissions and record. From the record, particularly the proceedings of the enquiry dated 15.10.2008, 04.11.2008 and 22.12.2008, letter dated 15.01.2009, letter dated 06.04.2009 and the contents of enquiry report dated 24.04.2009, the relevant portion is quoted below for ready reference, it is apparent that the reasonable opportunity of hearing was provided to the petitioner during enquiry.
"foHkkxh; tkWp dh izkjfEHkd lquokbZ (Preliminary Hearing) gsrq fu/kkZfjr frfFk 15-10-2008 esa vkjksfir vf/kdkjh Jh vkfnR; Lo#i ik.Ms; dh mifLFkfr esa izLrqrdrkZ vf/kdkjh Jh ,e0ds0 JhokLro }kjk vkjksi i= la0 iz0dk0@lrdZrk@35&c@225 fnukad 17-09-2008 esa of.kZr vkjksi ¼vuqPNsn la0 01 ls 11 rd½ tkWp ds le{k i<+ dj lquk, x, ftUgs gekjs }kjk dk;Zokgh iaftdk esa vafdr fd;k x;kA gekjs }kjk iwNs x, iz'u ds mRrj esa vkjksfir vf/kdkjh Jh vkfnR; Lo#i ik.Ms; us crk;k fd] tkWp ds le{k i<+k x;k vkjksi i= gh mUgs izkIr gqvk gSA vkjksi i= esa of.kZr vkjksiksa dks Lohdkjus@vLohdkjus ds lEcU/k esa iwNs tkus ij vkjksfir vf/kdkjh us crk;k fd *gekjs i= fnukad 22-09-2008 ¼MhbZ&01½ ds ek/;e ls ekWxh xbZ tkudkfj;kW gesa v/;{k egksn; ls vHkh rd izkIr ugh gqbZ gS vr% fouk mDr tkudkfj;ksa ds vkjksiksa ds Lohdkjus vFkok vLohdkj djus ds fo"k; es tokc nsus esa vleFkZ gwWA* tkWp dk;Zokgh dh vxyh frfFk 04-11-2008 esa vkjksfir vf/kdkjh Jh vkfnR; Lo#i ik.Ms; ds dfFkr i= fnukad 22-09-2008 ¼MhbZ&01½ ds izfrmRrj esa l{ke vf/kdkjh ds i= la0 iz0dk0@lrdZrk@35&c@305 fnukad 17-10-2008 dh nks izfr;ka izLRkqrdrkZ vf/kdkjh }kjk tkWp ds le{k izLrqr dh xbZ ftldh ,d izfr vkjksfir vf/kdkjh dks izkIr djkdj vkjksi i= esa of.kZr vkjksiksa dsk Lohdkjus@vLohdkjus ds lEcU/k esa dbZ ckj iwNs tkus ij Hkh vkjksfir vf/kdkjh }kjk viuh jk; u izdV djus ij vkjksfir vf/kdkjh ds fgrksa dks /;ku esa j[krs gq, ;g ekuk x;k fd] vkjksfir vf/kdkjh dks yxk, x, vkjksi Lohdkj ugh gS vr% tkWp dk;Zokgh vkxs izkjEHk dh xbZA cpko lgk;d ds lEcU/k esa vkjksfir vf/kdkjh us crk;k fd tkWp dk;Zokgh dks vxyh frfFk rd l{ke vf/kdkjh ls vuqefr izkIr dj tkWp es viuk i{k cpko lgk;d ds lg;ksx ls izLrqr djsaxsA tkWp dk;Zokgh dh vxyh frfFk 22-12-08 es Hkkx ysrs gq, vkjksfir vf/kdkjh us crk;k fd cpko lgk;d dk p;u@vuqefr vHkh rd ugh izkIr dh tk ldh gS] ,d lIrkg ds vUnj vuqefr izkIr dj yh tk,xhA cpko i{k ls nLrkostksa dh lwph izLrqr djus ds ckn vkjksfir vf/kdkjh us dgk fd izcU/ku xokg ls ijh{k.k cpko lgk;d dh mifLFkfr esa gh djk;k tk;A pwWfd cpko lgk;d ds p;u@vuqefr gsrq vkjksfir vf/kdkjh dks i;kZIr le; fn;k tk pqdk Fkk vr% vkjksfir vf/kdkjh dks lykg nh xbZ fd izcU/ku xokg ls ijh{k.k vof/k esa Lo;a tkWp esa Hkkx ysa rFkk izcU/ku xokg ls izfrijh{k.k ;fn vki pkgsa rks cpko lgk;d dh mifLFkr esa ckn esa dj ldrs gSaA nksuks i{kksa dh mifLFkfr esa izcU/ku xokg ,eMCyw&1 Jh ds0ih0 'kqDyk] vf/kdkjh ls lk{; izkjEHk djk;k x;k rFkk blh frfFk ds var esa nksuks i{kksa dh mifLFkfr esa ;g fu.kZ; fy;k x;k fd tkWp dk;Zokgh dy fnukad 23-12-2008 ls fu;fer vk/kkj (Regular Basis) ij pysxhA nksuks i{k e; xokg le; ls tkWp esa mifLFkr gksdj tkWp dk;Zokgh esa Hkkx ysa ;fn dksbZ i{k mifLFkr ugh gksrk gS rks tkWp dk;Zokgh ,d i{kh; (Ex-Parte) pykbZ tk,xhA fnukad 22-12-08 dh dk;Zokgh es fy, x, mDr fu.kZ; ds ckotwn fnukad 23-12-08 dh dk;Zokgh esa vkjksfir vf/kdkjh Jh vkfnR; Lo#i ik.Ms; u rks mifLFkr gq, vkSj u dksbZ fyf[kr@ekSf[kd lwpuk gh tkWp ds le{k izsf"kr dh xbZA vr% iwoZ esa fy, x, fu.kZ; ds vuqlkj fnukad 23-12-08 ls tkWp dk;Zokgh ,d i{kh; (Ex-Parte) pykbZ xbZA fnukad 23-12-08 ls fnukad 31-12-08 rd pyh tkWp dk;Zokgh gh izekf.kr Nk;k izfr;kW nSfud vk/kkj ij vkjksfir vf/kdkjh Jh vkfnR; Lo#i ik.Ms; ds vkoklh; irs ij iathd`r Mkd o ;wihlh }kjk rFkk 'kk[kk izcU/kd tViqjok ds ek/;e ls iathd`r Mkd }kjk izsf"kr dh tkrh jgh gSA fnukad 23-12-08 ls fnukad 31-12-2008 rd vkjksfir vf/kdkjh dh tkWp esa vuqifLFkfr ds dkj.k vkjksfir vf/kdkjh dks uSlfxZd U;k; iznku djus gsrq izcU/ku xokgksa ls izfrijh{k.k gsrq tkWp dk;Zokgh dh vxyh frfFk 15-01-2009 fuf'pr dh xbZA vkjksfir vf/kdkjh bl frfFk es Hkh tkWp esa mifLFkr ugh gq,A vkjksfir vf/kdkjh dh vuqifLFkfr esa gekjs ¼tkWp vf/kdkjh½ }kjk izcU/ku xokgksa ls izfrijh{k.k fd;k x;kA vkjksfir vf/kdkjh dks viuk i{k izLrqr djus gsrq vafre volj iznku djrs gq, tkWp dk;Zokgh dh vxyh frfFk 23-01-2009 fuf'pr dh xbZ A vkjksfir vf/kdkjh bl vafre frfFk esa Hkh tkWp esa mifLFkr ugh gq, vr% ;g ekuk x;k fd vkjksfir vf/kdkjh dks vc vius i{k ls tkWp esa dqN ugh dguk gS rFkk tkWp iw.kZ ekurs gq, cUn (Close) dh xbZA izLrqrdrkZ vf/kdkjh }kjk tkWp dk;Zokgh ds fyf[kr lkj (Written Brief) ;Fkk 05-03-09 dh ,d izfr fnukad 14-03-2009 dks lh/ks vkjksfir vf/kdkjh ds vkoklh; irs ij iathd`r Mkd o ;wihlh }kjk izsf"kr djrs gq, ,d izfr eq>s fnukad 16-03-09 dks miyC/k djkbZ xbZA vkjksfir vf/kdkjh us fnukad 23-01-2009 dh dk;Zokgh dh izkfIr Lohdkj djrs gq, vius i= fnukad 31-01-2009 ds ek/;e ls lwfpr fd;k fd vf/koDrk dh jk; ls og ekuuh; mPp U;k;ky; esa fjV nk;j djuk pkgrk gSA vkjksfir vf/kdkjh }kjk nk;j fjV ;kfpdk la[;k 253 ¼,lch½ 2009 dk fuLrkj.k fnukad 12-02-2009 esa djrs gq, ekuuh; mPp U;k;ky; bykgkckn] [k.MihB y[kuÅ }kjk vkjksfir vf/kdkjh dh vkifRr;ksa dks tkap esa 'kkfey@lek/kku djus gsrq funsZf'kr fd;k x;kA mDr vkns'k dh Nk;k izfr vkjksfir vf/kdkjh ds i= fnukad 14-02-2009 ds ek/;e ls fnukad 19-02-2009 dks rFkk iz/kku dk;Zky; ds i= la0 Pra.Ka./Satarkta/35-B/509 fnukad 21-02-2009 ds ek/;e ls izkIr gqbZA bl lEcU/k esa gekjs i= la0 iz0dk0@fo0tkWp@,,lih@16@09 fnukad 16-03-2009 ds ek/;e ls izLrqrdrkZ vf/kdkjh }kjk iszf"kr tkWp dk;Zokgh ds fyf[kr lkj (Written Brief) ;Fkk 05-03-2009 dh izekf.kr Nk;k izfr gekjs Lrj ls vkjksfir vf/kdkjh ds vkoklh; irs ij iathd`r Mkd o ;wihlh }kjk rFkk 'kk[kk izcU/kd TkViqjok ds ek/;e ls iathd`r Mkd }kjk izsf"kr djrs gq, lykg nh xbZ Fkh fd] ** fjV ;kfpdk la0 253¼,lch½ 2009 ij ekuuh; mPp U;k;ky; bykgkckn] [k.MihB y[kuÅ }kjk fuxZr vkns'k fnukad 12-02-2009 ds vkyksd esa vki vius cpko esa tks Hkh i{k izLrqr djuk pkgrs gSa] vius fyf[kr lkj (Written Brief) esa izLrqr dj ldrs gSaA bl lEcU/k esa vkidks voxr djkuk gS fd vki }kjk tkWp dk;Zokgh esa ekWxs x, izi=@nLrkost vkids vkoklh; irs ij gekjs i=kad {ksdky@fo0tkWp@,,lih@14@09 fnukad 15-01-09 ds ek/;e ls iathd`r Mkd la0 EPP EU335938136IN o ;wihlh Mkd }kjk fnukad 17-01-09 ds ek/;e ls vkidks iwoZ esa izsf"kr fd, tk pqds gSa] fQj Hkh ;fn vki pkgsa rks lEcfU/kr izi=ksa@nLrkostka dh izfr;kW iqu% v/kksgLrk{kjh ls iz/kku dk;Zky; lhrkiqj esa izkIr dj ldrs gSa ,oa viuk fyf[kr lkj (Written Brief) gekjs i=kad {ksdky@fo0tkWp@,,lih@15@09 fnukad 23-01-09 es fu/kkZfjr le;kof/k ds vUnj v/kksgLrk{kjh dks miyC/k djkuk lqfuf'pr djsaA** fnukad 06-04-09 rd vkjksfir vf/kdkjh ls fyf[kr lkj (Written Brief) u izkIr gksus ij gekjs i= la0 iz0dk0@fo0tkWp@,,lih@17@09 fnukad 06-04-2009 vkjksfir vf/kdkjh ds vkoklh; irs ij iathd`r Mkd ls izsf"kr djrs gq, iqu% lykg nh xbZ fd] *tkWp dk;Zokgh dk fyf[kr lkj (Written Brief) fnukad 15-04-09 rd vo'; miyC/k djkosa vU;Fkk dh fLFkfr esa ;g le>k tk,xk fd] vkidks vius i{k ls vc dqN ugh dguk gS rFkk tkWp dh vxyh dk;Zokgh vkis fyf[kr lkj (Written Brief) ds cxSj lEiUu dh tk,xh ftlds fy, vki Lo;a mRrjnkbZ gksaxsA** vkjksfir vf/kdkjh }kjk bl i= ds tokc esa iszf"kr i= fnukad 15-04-09 tks gesa fnukad 18-04-09 esa izkIr gqvk gS] ds ek/;e ls fyf[kr lkj (Written Brief) iszf"kr djus gsrq 20 fnuks dk le; vkSj ekWxk gS tks rdZlaxr u gksus ds dkj.k Lohdkj ugh fd;k tk ldrk gS D;ksafd bl dk;Z gsrq 30 fnu dk le; vkjksfir vf/kdkjh dks igys gh fn;k tk pqdk gSA vkjksfir vf/kdkjh ls fyf[kr lkj (Written Brief) vkt dh frfFk ¼25-04-09½ rd izkIr ugh gqbZ gSA"
It appears rather evident from the aforesaid and record, particularly mentioned hereinabove, that the relevant documents were provided, opportunity to appoint/nominate Defence Assistant was given and reasonable period was provided to the petitioner for submission of his objection pursuant to order of this Court dated 12.02.2002. The petitioner was also asked to examine the witnesses. In nutshell, in view of this Court, reasonable opportunity was provided to the petitioner during the enquiry proceedings and he failed to avail the opportunity provided and choosed not to participate in the enquiry.
With regard to the submission of the learned Senior Counsel for petitioner that the relevant documents were not given, Defence Assistant was not provided and subsistence allowance was not given, the Court has already recorded the findings hereinabove and need not to be reiterated in detail at this stage.
In the case(s) of Bank of India v. Apurba Kumar Saha, (1994) 2 SCC 615; Pepsu Road Transport Corporation v. Rawel Singh, (2008) 4 SCC 42 and Board of Directors, Himachal Pradesh Transport Corporation v. K.C. Rahi, (2008) 11 SCC 502, the Hon'ble Apex Court has observed that if an employee refused to avail opportunities provided to him in the disciplinary proceedings and choose not to participate in the enquiry then in such event he cannot be permitted to raise the plea of denial of reasonable opportunity in defending his case during enquiry proceedings. An employee would waive his right to raise the plea of not providing reasonable opportunity of hearing during the enquiry if he himself has avoided the disciplinary proceedings and such employee would be estopped from raising the plea of non-compliance of principles of natural justice.
Thus for the reasons aforesaid and in view of the law laid down by the Hon'ble Apex Court, referred above, the interference of this Court is not required in the present case on the plea of non-compliance of principles of natural justice and not providing the reasonable opportunity of hearing during enquiry.
Now I am dealing with the submission of the counsel for petitioner based on Regulation 41 of the Regulations of 2006 and parity of punishment. On this aspect the counsel for the petitioner submitted that on similar charges Sri Kamal Kant Rai was also prosecuted and a common enquiry ought to have been held in view of the Regulation 41 and in not doing so the Bank violated the provisions envisaged in Regulation 41 and accordingly interference is required. On the issue of parity of punishment it has been pointed out that charge nos. 1 to 9 contains in the charge sheet of the petitioner are similar rather same to the charge nos. 2 to 10 of the charge sheet issued to Sri Kamal Kant Rai and in both the cases the disciplinary authority was the same and in the cases charges were found proved and the petitioner has been removed whereas Sri Kamal Kant Rai has been compulsorily retired vide order dated 29.08.2009. The punishment awarded to the petitioner is against the principles of parity of punishment and is harsh.
In response to the above the counsel for the Bank submitted that to conduct or hold a common enquiry is within the jurisdiction and discretion of the competent authority and not holding a common enquiry would not vitiate the enquiry proceedings. With respect to quantum of punishment it has been submitted that the punishment(s) to both the employees of the Bank have been given keeping in view of the charges proved. There is no illegality in holding the separate enquiry and awarding different punishments.
Considered the submissions and record. From the Regulation 41 of the Regulations of 2006, quoted below, it is apparent that the Chairman of the Bank if is of the opinion that a common enquiry should be held then he may direct the competent authority to hold the common enquiry and it is the discretion of the Chairman to direct the competent authority to hold the common enquiry and the said regulation does not say that if the common enquiry is not held then the enquiry proceedings would vitiate. The petitioner though pleaded in the writ petition the common enquiry ought to have been held but in the writ petition it has not been pleaded, on the strength of any provision, that in absence of common enquiry, the enquiry proceedings would vitiate. Otherwise the petitioner is claiming the benefit of order passed in the case of Sri Kamal Kant Rai.
"41. Common Enquiry:
Notwithstanding anything contained in these Regulations, if two officers in differenct grades or an officer and an employee are involved jointly in an incident and disciplinary proceedings are sought to be instituted against both of them and the Chairman is of the opinion that having regard to the facts and circumstances of the case, the Competent Authority in respect of both the officer and employee should be the same, the Chairman may direct that the Competent Authority in respect of the officer shall be the Competent Authority in respect of both the officer and employee involved and a common enquiry shall be held into the charges against both of them and the delegation of power to enquire under Regulation 40 and the procedure, with the exception of the final order shall be in favour of the same enquiry officer."
In view of the above, this Court is of the view that in the instant case the enquiry proceedings would not vitiate in case common enquiry was not held.
With respect to plea of parity of punishment this Court considered the charges against the petitioner and Sri Kamal Kant Rai. The charge-sheet dated 25.08.2008 issued to the petitioner and charge-sheet dated 25.07.2008 issued to the Kama Kant Rai are on record as Annexure Nos. 6 and 38 to the writ petition. The charge-sheet against the petitioner contains 11 charges and the charge-sheet against Sri Kamal Kant Rai contains 17 charges. The charge Nos. 1 to 9 in the charge-sheet against the petitioner are common to the charge Nos. 2 to 10 in charge-sheet against Sri Kamal Kant Rai. All the charges against the petitioner and Sri Kamal Kant Rai relate to irregularity committed by them in disbursement of loans.
In the case of Sri Kamal Kant Rai, the Enquiry Officer proved the charge Nos. 1, 7, 8, 9, 10, 11, 12, 14 and 16 and charge No. 13 was not found proved. In regard to charge Nos. 2 to 6, as appears from the order of punishment dated 28.08.2009 (Annexure No. 39 to the writ petition), it has been written that:-
^^vuqPNsn la0 2]3]4]5 ,oa 6 esa vkjksi vki dh feyh Hkxr }kjk gksuk lkfcr ugha gqvk gS fdUrq ?kksj ykijokgh ,oa izcU/kdh; nkf;Roksa dk fuoZgu u djus ds dkj.k ij:i/kkj.k gksuk lkfcr gqvk gS tks xEHkhj dnkpkj gSA^^ In the case of petitioner, the Enquiry Officer proved charge Nos. 1 to 10 and charge No. 11 was not found proved.
It is evident from the charge-sheet that the petitioner and Sri Kamal Kant Rai are covered under the expression "co-delinquent".
Considering the aforesaid, this Court is of the view that different punishment has been awarded to the petitioner and Sri Kamal Kant Rai and interference is required.
In view of the principle settled in the judgment(s) passed by the Hon'ble Apex Court in the case(s) of Rajendra Yadav v. State of Madhya Pradesh (2013) 3 SCC 73, Life Insurance Corporation of India v. Triveni Sharan Mishra (2014) 10 SCC 346 and Pawan Kumar Agarwala v. General Manager (2015) 15 SCC 184, the parity of punishment between co-delinquents should be maintained while imposing the punishment.
In the instant case, the disciplinary authority is the same and charges against both the employees are identical/similar and were proved by the Enquiry Officer(s), as mentioned hereinabove, but different punishment has been awarded to both the employees/co-delinquents.
In view of above, the interference is caused in the order of punishment dated 28.08.2009, passed by disciplinary authority and order dated 06.01.2011, passed by appellate authority.
In addition to above, the counsel for the petitioner submitted that the order dated 28.08.2009 passed by the disciplinary authority and the order dated 06.01.2011 passed by the appellate authority are non-speaking orders. For coming to the conclusion for awarding major punishment the reasons have not been recorded by the disciplinary authority after considering the reply of the petitioner. The appellate authority has also not recorded the reasons while rejecting the appeal and has also failed to take note of all the facts and grounds raised in the appeal.
On the aforesaid submissions, this Court is not expressing any view and recording any finding for the reason that this Court is of the view that the matter be remanded back to the Appellate Authority to re-consider the punishment of removal imposed on the petitioner keeping in view the case of co-delinquent Sri Kamal Kant Rai.
Accordingly, for the reasons recorded hereinabove, the impugned orders dated 28.08.2009 and 06.01.2011 are quashed. The matter is remanded back to the Appellate Authority with a direction to re-consider the punishment of removal imposed on the petitioner keeping in view the case of co-delinquent Sri Kamal Kant Rai.
The Appellate Authority is directed to take decision within three months from the date of receipt of certified copy of this order.
The writ petition is allowed in above terms.
Order Date:- 31.05.2019 Arun/-