Jharkhand High Court
Chhathu Ram vs Bank Of Baroda Through Its Chairman Cum ... on 6 February, 2015
Equivalent citations: 2015 LAB. I. C. 2390, 2015 (2) AJR 454
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.2881 of 2014
Chhathu Ram ........................ Petitioner
Versus
Bank of Baroda through its Chairman
-cum-Managing Director, Mumbai & Ors. ........................ Respondents
..........
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
For the petitioner : Mr. Ananda Sen, Advocate
For the respondents : Mrs. A.R. Choudhary, Advocate
...........
7/06.02.2015The petitioner has challenged the order dated 13.3.2014, as contained in letter no.RO/JR/VIGILANCE/27/306 issued under the signature of Deputy General Manager-cum-Disciplinary Authority, whereby and where under decision has been taken to conduct de novo (fresh) enquiry against the petitioner.
2. The statement has been made on behalf of the petitioner that the petitioner was appointed in the respondent-Bank and is serving as Head Cashier in the Bank of Baroda. The petitioner is posted in Burma Mines Branch, Jamshedpur. A disciplinary action was contemplated against him. As a result he was put under suspension in contemplation of departmental proceeding vide letter dated 5.7.2013. The explanation was sought for from the petitioner vide letter dated 22.7.2013 in respect of alleged irregularities committed by the petitioner for commission of irregularities.
3. The petitioner has submitted his explanation on 5.8.2013 and informed the Deputy General Manager, Bank of Baroda that because of heavy work load these lapses have occurred. The petitioner has reiterated the same thing in the reply dated 14.8.2013.
4. The respondent-bank, being not satisfied with the said explanation, issued charge sheet dated 24.10.2013 in terms of Clause-7 of the Memorandum of Settlement. An Inquiry Officer has been appointed, inquiry has been initiated, Inquiry Officer has given notice to the petitioner. The petitioner, after putting his appearance before the Inquiry Officer, has accepted his guilt and has stated that -2- because of the heavy work load, the lapses have been committed by him. However, he has submitted that there was no loss caused to the bank.
5. The Inquiry Officer has submitted inquiry report wherein the charge levelled against the petitioner has been proved.
6. The disciplinary authority, without passing any final order, has passed an order on 13.3.2014 whereby decision was taken to conduct inquiry de novo (fresh).
7. The petitioner, being aggrieved by the decision of the respondent-bank to initiate an inquiry de novo, has approached this Court by way of filing this writ petition.
8. The ground taken by the writ petitioner in challenging the order dated 13.3.2014 is that in absence of any provision in the Bipartite Settlement (Annexure-7 to the writ petition), there cannot be any de novo inquiry.
9. The further ground has been taken that when the petitioner has already admitted his guilt in his explanation given by him before the Inquiry Officer and the Inquiry Officer has found the charge proved on the basis of the said admission, then the authority needs to have passed order rather than to issue any direction to initiate a de novo proceeding.
10. On the other hand, learned counsel for the respondent- bank has submitted that the nature of allegation of the petitioner is very serious and, as such, the petitioner cannot be permitted to take advantage of Clause-12(e)(ii) because in case of admission of guilt, the bank cannot pass any order of dismissal or discharge. The further submission has been made on behalf of the respondent-bank that the decision to initiate de novo inquiry has been taken which will not prejudice the interest of the petitioner and in terms of the bipartite settlement, in case of major punishment a regular departmental -3- inquiry is supposed to be initiated in terms of the provisions as contained in Clause-12(a). Further submission has been made that since the inquiry report submitted by the Inquiry Officer has not been accepted by the disciplinary authority and, as such, it is the discretion of the disciplinary authority to accept or not to accept the finding of the Inquiry Officer or to take a decision to initiate de novo inquiry.
11. After hearing the parties and considering the documents on record, the charges which have been levelled against the petitioner, it is necessary to reproduce the same :-
"ALLEGATIONS :-
1. You have received the case of Rs.43000/- from M/s B.R. Pharma on 29.5.2013 but have not deposited the amount in the A/c on the same day.
2. The serial no. on the counterfoil of above voucher issued by you is 749863 but the serial no. on the main voucher deposited to the same A/c on 3.6.2013 is 730147. The date of stamp on the counterfoil and that on the main voucher is different.
3. You have received the case of Rs.1,04,000/- on 6.6.2013 for the credit to account no.38760200000055 as per counterfoil but have deposited the same on 10.6.2013.
The date of stamp on the counterfoil and that on the main voucher is different. The date on main voucher has been altered by using whitener fluid.
4. You have received the cash of Rs.49000/- each on 3.6.2013, 5.6.2013 and on 7.6.2013 for the credit to account no.21880100001558 as per counterfoils of the deposit voucher but you have deposited the same on 4.6.2013, 6.6.2013 and on 11.6.2013 respectively. The date of stamp on the counterfoil and that on the main voucher is different. The date on main voucher has been altered by using whitener fluid.
5. In some deposit vouchers the date is altered either by using whitener fluid or by overwriting. The list of vouchers wherein date has been altered, is given hereunder:
Voucher no.730032 for Rs.5000/- dated 29.5.2013, -4- Voucher no.474610 for Rs.30000/- dated 29.5.2013, Voucher no.730052 for Rs.40000/- dated 29.5.2013, Voucher no.730781 for Rs.8000/- dated 27.5.2013, Voucher no.734228 for Rs.49000/- dated 7.5.2013, Voucher no.NIL for Rs.45000/- dated 10.6.2013, Voucher no.730366 for Rs.45000/- dated 4.6.2013, Voucher no.474308 for Rs.11000/- dated 29.5.2013, Voucher no.NIL for Rs.49000/- dated 4.6.2013, Voucher no.730418 for Rs.20000/- dated 5.6.2013, Voucher no.730405 for Rs.51000/- dated 5.6.2013, Voucher no.914027 for Rs.20000/- dated 11.6.2013, Voucher no.66204 for Rs.14000/- dated 11.6.2013, Voucher no.914768 for Rs.47000/- dated 14.6.2013, Voucher no.730782 for Rs.14000/- dated 28.5.2013, Voucher no.641624 for Rs.20000/- dated 28.5.2013, Voucher no.622446 for Rs.35000/- dated 29.5.2013, Voucher no.914794 for Rs.30000/- dated 17.6.2013, Voucher no.730551 for Rs.15000/- dated 30.5.2013, Voucher no.730553 for Rs.25000/- dated 30.5.2013, Voucher no.297917 for Rs.35000/- dated 30.5.2013, Voucher no.474780 for Rs.49000/- dated 30.5.2013, Voucher no.914274 for Rs.45000/- dated 8.6.2013, Voucher no.730219 for Rs.30000/- dated 8.6.2013, Voucher no.62311 for Rs.45000/- dated 8.6.2013, Voucher no.730186 for Rs.5000/- dated 8.6.2013. Thus, it seems that you have not deposited the amount on the same day.
6. Some notes and coins of aggregate value of Rs.638/- have been kept in the drawer of the cash cabin before opening cash of the day on 28.6.2013, out of which some are soiled notes and one note of Rs.500/- is forged note.
7. You had tried to destroy the document found in drawer of the cash cabin by snatching it from investigation officer in presence of staff members on 28.6.2013.
8. Undated withdrawal slips and deposit slips signed by the account holder and some signed cheques have been found from the drawer of cash cabin."
12. From perusal of the allegation levelled against the petitioner, the nature of allegation is very serious.
-5-
13. However, the bipartite settlement has been arrived at wherein provision has been made to deal with the disciplinary proceeding against the erring employee of the bank wherein in Clause-6 the list of major punishment has been given which speaks as follows :-
"6. An employee found guilty of gross misconduct may :
(a) be dismissed without notice; or
(b) be removed from service with superannuation
benefits i.e. Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment; or (c ) be compulsorily retired with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment; or
(d) be discharged from service with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment; or
(e) be brought down to lower stage in the scale of pay up to a maximum of two stages; or
(f) have his increment/s stopped with or without cumulative effect; or
(g) have his special pay withdrawn; or
(h) be warned or censured, or have an adverse remark entered against him;
or
(i) be fined."
14. Further, for the purpose of imposing major penalties the procedure has been given as would be evident from Clause-12 of the bipartite settlement which is reproduced herein below :-
"12. The procedure in such cases shall be as follows :-
(a) An employee against whom disciplinary action is proposed or likely to be taken shall be given a charge--6-
sheet clearly setting forth the circumstances appearing against him and a date shall be fixed for enquiry, sufficient time being given to him to enable him to prepare and give his explanation as also to produce any evidence that he may wish to tender in his defence. He shall be permitted to appear before the Officer conducting the enquiry, to cross-examine any witness on whose evidence the charge rests and to examine witnesses and produce other evidence in his defence. He shall also be permitted to be defended -
(i) (x) by a representative of a registered trade union of bank employees of which he is a member on the date first notified for the commencement of the enquiry.
(y) where the employee is not a member of any trade union of bank employees on the aforesaid date, by a representative of a registered trade union of employees of the bank in which he is employed :
OR
(ii) at the request of the said union by a representative of the state federation or all India Organisation to which such union is affiliated;
OR
(iii) With the Bank's permission, by a lawyer.
He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him.
(b) Pending such inquiry or initiation of such inquiry he may be suspended, but if on the conclusion of the enquiry it is decided to take no action against him he shall be deemed to have been on duty and shall be entitled to the full wages and allowances and to all other privileges for the period of suspension; and if some punishment other than dismissal is inflicted the whole or a part of the period of suspension, may, at the discretion of the management, be treated as on duty with the right to a corresponding portion of the wages, allowances, etc. (c ) In awarding punishment by way of disciplinary action the authority concerned shall take into account the gravity of the misconduct, the previous record, if any, of the -7- employee and any other aggravating or extenuating circumstances, that may exist. Where sufficiently extenuating circumstances exist the misconduct may be condoned and in case such misconduct is of the "gross" type he may be merely discharged, with or without notice or on payment of a month's pay and allowances, in lieu of notice. Such discharge may also be given where the evidence is found to be insufficient to sustain the charge and where the bank does not, for some reason or other, think it expedient to retain the employee in question any longer in service. Discharge in such cases shall not be deemed to amount to disciplinary action.
(d) If the representative defending the employee is an employee of the same bank at an outstation branch within the same State, he shall be relieved on special leave (on full pay and allowances) to represent the employee and be paid one return fare. The class of fare to which he will be entitled would be the same as while travelling on duty. In case of any adjournment at the instance of the bank/enquiry officer, he may be asked to resume duty and if so, will be paid fare for the consequential journey. He shall also be paid full halting allowance for the period he stays at the place of the enquiry for defending the employee as also for the days of the journeys which are undertaken at the bank's cost."
15. Clause-12(e) deals with the situation when enquiry is not to be held which are as follows :-
"(e) An enquiry need not be held if :
(I) the bank has issued a show cause notice to the employee
advising him of the misconduct and the punishment for which he may be liable for such misconduct;
(ii) the employee makes a voluntary admission of his guilt in reply to the aforesaid show cause notice; and
(iii) the misconduct is such that even if proved the bank does not intend to award the punishment of discharge or dismissal.
However, if the employee concerned requests a hearing regarding the nature of punishment, such a hearing shall be given." -8-
16. After issuance of memorandum of charge, the petitioner has admitted his guilt before the Inquiry Officer and the Inquiry Officer in terms of Clause-12(e) has not conducted any inquiry, rather on the basis of the admission of the petitioner, has found the charge proved against the petitioner as would be evident from the inquiry report which has been annexed in the counter affidavit.
17. After perusing the inquiry report the disciplinary authority has issued order dated 13.3.2014 communicating the same to the petitioner that in the enquiry since all the charges have been accepted which tantamount to conditional acceptance, hence, the decision has been taken to conduct the enquiry de novo (fresh). The said order dated 13.3.2014 is under challenge.
18. Now the question which need to be decided is as to whether the disciplinary authority has got power to initiate a de novo enquiry or not.
19. Admittedly, nature of allegation levelled against the petitioner is very serious being the Head Cashier he has not deposited the amount on same date in the account of M/s B.R. Pharma and various other accounts, the other allegation is that the date of deposited vouchers have been altered either by whitener fluid or by overwriting. The list of such vouchers has been given in the memorandum of charge which has been reproduced herein above, the allegation is regarding destroying the document found in drawer of the cash cabin by snatching it from investigating officer in presence of staff members on 28.6.2013, undated withdrawal slips and deposit slips signed by the account holder and some signed cheques have been found from the drawer of cash cabin.
20. Admittedly, the petitioner was working as a Head Cashier in the bank at the time of alleged allegation and whatever allegation has been levelled that need verification from the respective -9- documents lying with the bank and also the same is to be verified from the various witnesses including the account holders and for that purpose it needs detailed enquiry.
21. However, the petitioner has admitted his guilt on the basis of which the enquiry officer has proved the charge but that does not mean that in each and every case, the disciplinary authority will accept the finding of the enquiry officer. The disciplinary authority or the appointing authority has the right to come to rightful conclusion regarding the allegation if levelled against this employee and for that a detailed enquiry is necessary so that there may be likelihood of connivance of other persons of the bank and for all these purposes mainly by accepting the guilt does not serve the purpose of initiation of departmental proceeding, rather the same need to be enquired in detail.
22. Now the question is that if a de novo enquiry has been directed to be initiated what prejudice the petitioner will cause when the respondent-bank has decided to initiate a de novo enquiry in terms of bipartite settlement i.e. by providing adequate and sufficient opportunity of being heard as per the provisions as contained in Clause-12(a) of the bipartite settlement which has been stated herein above and if at all the petitioner will be innocent even after his admission of guilt and what he has stated in the explanation that due to heavy work load the same has happened, certainly the same can be looked into only in course of a detailed enquiry and after examination of the witnesses.
23. Moreover, the ground taken by the counsel for the petitioner that in absence of any provision to initiate a de novo proceeding, the same cannot be initiated but this Court cannot go into this hyper technical question because admittedly an inquiry has been initiated and memorandum of charge has also been issued to the -10- petitioner and thereafter the inquiry report has been submitted proving the charge against the petitioner but when the disciplinary authority is of the opinion that the matter needs thorough inquiry then considering the hyper technical question for the purpose of frustrating the entire inquiry proceeding, the same will not be proper because if a memorandum of charge has been issued by the disciplinary authority it has to be proved/disproved on the basis of the relevant documents and on the basis of the statements of witnesses.
24. Hence, in my view, since no prejudice is being caused to the petitioner in initiation of de novo proceeding, rather it will be beneficial for the petitioner that if he has done nothing on the basis of the heavy workload, the same can also be looked into in course of inquiry.
25. In this connection, the reliance may be placed upon the judgment of Hon'ble Supreme Court rendered in the case of State of Assam & Anr. vs. J.N. Roy Biswas reported in (1976) 1 SCC 234 wherein at paragraph-4 it has been held that no government servant can urge that if for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law that a second enquiry can not be launched. It can be ; but once a disciplinary case has closed and the official reinstated, presumably on full exoneration, a chagrined Government cannot restart the exercise in the absence of specific power to review or revise, vested by rules in some authority.
26. In Nand Kumar Verma vs. State of Jharkhand & Ors. reported in (2012) 3 SCC 580, the Hon'ble Supreme Court has held in paragraph-26 as follows :-
"26. ............... On general principles, there can be only one enquiry in respect of a charge for a particular misconduct and that is also what the rules usually provide. If, for some technical or other good -11- ground, procedural or otherwise, the first enquiry or punishment or exoneration is found bad in law, there is no principle that a second enquiry can not be initiated. Therefore, when a completed enquiry proceedings is set aside by a competent forum on a technical or on the ground of procedural infirmity, fresh proceedings on the same charges is permissible."
27. In both the above cases the whole issue was that once the explanation was accepted or final order was passed, the disciplinary authority will cease to pass the order for initiation of a fresh/de novo proceeding, but when the explanation or the final order has not been passed, the disciplinary authority has got power to pass an order for initiation of de novo proceeding.
28. This aspect has been taken note by the Hon'ble Supreme Court in the case of N.K. Verma (supra) wherein at paragraph-26, as quoted above, that if, for some technical or other good ground, procedural or otherwise, the first enquiry or punishment or exoneration is found bad in law, there is no principle that a second enquiry can not be initiated.
29. Here in the instant case a memorandum of charge has been issued, enquiry officer has found the charge proved against the petitioner on the basis of the admission of guilt on the part of the petitioner, but it has not been accepted by the disciplinary authority and no final order has been passed. Hence, applying ratio of Hon'ble Supreme Court in the case of N.K. Verma (supra) as has been held at paragraph-26, the de novo enquiry cannot be said to be impermissible.
29. Thus, the impugned order needs no interference. The writ petition is hereby dismissed.
(Sujit Narayan Prasad, J) Shamim/