Karnataka High Court
D. Muralidhar vs Central Bank Of India on 4 January, 2005
Equivalent citations: 2005(2)KARLJ47, (2005)IILLJ408KANT, 2005 LAB. I. C. 1063, 2005 AIR - KANT. H. C. R. 344, (2005) 2 KANT LJ 47, (2005) 2 KCCR 839, (2005) 2 LABLJ 408, (2005) 4 SERVLR 179
Author: H.L. Dattu
Bench: H.L. Dattu
ORDER H.L. Dattu, J.
1. Petitioner joined the services of the Central Bank of India ('Bank' for short) as a Clerk in the year 1966 and thereafter he was promoted as an Officer in Junior Management Grade, Scale I and designated as Sub-Accountant with effect from 31-8-1984. While he was working as Sub-Accountant at Bellary Branch of the Bank, he was kept under suspension by issuing a memo dated 17-8-1991 in contemplation of departmental enquiry proceedings for the alleged financial irregularities said to have been committed by him while working as Branch Manager at Pattadakal Branch of the respondent-Bank.
2. The Disciplinary Authority of the Bank had issued a charge memo dated 18-4-1992, inter alia alleging two charges against the petitioner. The first charge is that while working as in-charge of bills purchase department of the Bank, petitioner had purchased on various dates cheques/withdrawals on various outstanding branches and had not ensured their realisations which were ultimately turned out to be fraudulent transactions. As a second charge, it was alleged that the petitioner had not taken steps to ensure proper credit of the proceeds of the outstation cheques lodged by the constituents to, the respective accounts. In the memorandum to which the articles of charge was annexed, it was stated that the articles of charges listed would constitute misconduct within the meaning of Regulation 3 read with Regulation 24 of the Central Bank of India Officer Employees' (Conduct) Regulations, 1976.
3. According to the petitioner, he could not satisfactorily answer the charge memo, since the charge-sheet did not disclose the list of documents based on which and the list of witnesses based on whom the charges were alleged against the petitioner. Further, the vagueness of the charges coupled with non-supply of essential materials along with the charge memo, denied a reasonable opportunity to the petitioner to enter his defence.
4. The Disciplinary Authority of the Bank had appointed one Sri S.G. Upadhyaya, Branch Manager, Dandeli Branch, as enquiry officer and Sri A.R. Katti, an Officer of the Bank as Presenting Officer to conduct a detailed domestic enquiry into the charges alleged against the petitioner, since the explanation offered by the petitioner was found to be unsatisfactory.
5. During the course of the enquiry, the Bank in support of its allegations made in the charge memo, had produced 51 documents in support of its case, however had not examined any witnesses. The delinquent officer had examined one witness and had marked 36 documents in support of his defence. The enquiry officer after concluding the enquiry on 29-8-1992 had submitted his report dated 29-10-1992 holding that majority of the charges are fully proved and some of the charges are not proved or partly proved.
6. The disciplinary authority of the Bank had issued a notice dated 4-11-1992 enclosing a copy of the findings of the enquiry officer and had called upon the petitioner to make his representations, if any. After receipt of the second show-cause notice, petitioner had submitted his representation dated 18-11-1992 against the adverse finding of the enquiry officer. The Disciplinary Authority, after disagreeing with the findings of the enquiry officer, but without notice to the petitioner, had proceeded to hold that all the charges alleged against the petitioner are proved and accordingly, had proceeded to impose the penalty of removal from service on the petitioner by his order dated 22-3-1993. Aggrieved by the said order, petitioner had preferred an appeal before the Appellate Authority, who by his order dated 29-8-1993 had dismissed the appeal and thereby had confirmed the order passed by the Disciplinary Authority.
7. Petitioner, aggrieved by the order passed by the Disciplinary Authority dated 22-3-1993 and the order passed by the Appellate Authority dated 20-8-1993 had approached this Court in W.P. No. 38047 of 1993 and this Court by its order dated 14-9-1998 had allowed the writ petition on the ground that the action of the Disciplinary Authority in disagreeing with the favourable findings of the enquiry officer, without issuing a notice for its proposal to disagree with its tentative reasons, and without hearing the petitioner on such proposal to disagree, is contrary to the principles of natural justice. In view of the above omission, the Court did not examine any other issue with regard to the findings of the enquiry officer and the order passed by the Disciplinary Authority, since the aforesaid omission was sufficient to set aside the order passed by the Disciplinary Authority. In the normal course, after allowing the petition, the Court should have remanded the matter to the Disciplinary Authority to continue the proceedings, from the stage the defects are noticed by this Court. But, taking into consideration that the petitioner would have retired from service on attaining the age of superannuation on 31-5-1998 itself, the Court did not remand the matter to the Disciplinary Authority for passing a fresh order in accordance with law.
8. The respondent-Bank, being aggrieved by the order passed by the learned Single Judge in W.P. No. 38047 of 1993, dated 14-9-1998, had carried the matter before a Division Bench of this Court in W.A. No. 5897 of 1998. While disposing the said writ appeal, this Court was pleased to remand the matter to the Disciplinary Authority to continue with the proceedings from the stage the defects pointed out by the learned Single Judge while disposing of the writ petition. The Court also reserved liberty to the Disciplinary Authority to pass a fresh order in accordance with law, after following the procedure laid down in the Rules and also keeping in view the observations made by the Supreme Court in Punjab National Bank v. Kunj Behari Misra, .
9. The Disciplinary Authority after such remand, had issued a show-cause notice dated 27-9-1999 to the petitioner inter alia directing him to show cause why the findings of the enquiry officer insofar as he has given his findings that the management had failed to prove certain charges alleged in the charge memo and why the findings of the enquiry officer should not be disagreed and further why it should not be held that all the charges alleged in the charge memo are proved by the Bank against the petitioner. After receiving the show-cause notice dated 27-9-1999, the petitioner had filed his detailed reply and in that, had justified the findings of the enquiry officer insofar as he had concluded that some of the charges alleged in the charge memo are not proved and insofar as the other findings wherein he had concluded that the charges are proved by the management, had represented that the findings of the enquiry is merely based on assumptions and presumption since the allegations in the charge memo is not proved by the management by adducing any cogent evidence and therefore had requested the Disciplinary Authority to drop the proceedings. Further, in the representation filed, he had also brought to the notice of the Disciplinary Authority that he has been deprived of his livelihood for over 8 years and is completely disabled and unable to survive and therefore, the Disciplinary Authority before issuing the show-cause notice dated 27-9-1999 ought to have paid the full salary and allowance for the period from 17-8-1991 to 31-5-1998, as well as the terminal benefits and therefore, the show-cause notice is one without jurisdiction and void ab initio.
10. The Disciplinary Authority after considering the reply filed by the petitioner has come to the conclusion that the enquiry officer was not justified while concluding in his report that the management had failed to prove some of the charges alleged against the petitioner in the charge memo and after disagreeing with his findings in that regard, and after coming to the conclusion that all the charge alleged in the charge memo are proved against the petitioner, has proceeded to impose the penalty of removal from service in terms of Regulation 4(G) of Central Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976 by his order dated 20-10-1999, though the petitioner had retired from the services of the Bank on 31-5-1998 itself, on attaining the age of superannuation. The Disciplinary Authority by yet another order passed on the same day has ordered that the punishment of 'removal from service' will take effect from 22-3-1993.
11. Petitioner aggrieved by the said order, had filed an appeal before the Appellate Authority as provided under Regulation 17 of the Central Bank of India Officer Employees' (Discipline and Appeal) Regulations. The Appellate Authority by its order dated 19-2-2000 has dismissed the appeal and thereby has confirmed the order passed by the Disciplinary Authority. Aggrieved by the said order, petitioner is before this Court in this petition filed under Articles 226 and 227 of the Constitution of India.
12. Respondent-Bank has filed its detailed statement of objections, justifying the order passed by the Appellate Authority dated 19-2-2000 and the order passed by the Disciplinary Authority dated 20-10-1999. I will refer to their objections while considering the issues canvassed by learned Counsels for the parties to the Us.
13. Sri P.S. Rajagopal, learned Counsel for the petitioner would contend that the charges are vague and unintelligible, for the reason, that the disciplinary authority while issuing the charge memo has not pointed out breach of any of the Conduct Regulations of the Bank and therefore, the entire charge-sheet and the proceedings taken pursuant thereto are arbitrary, discriminatory and without authority of law. The respondent-Bank, in its statement of objections filed before this Court has stated, that in the charge-sheet issued and served on the petitioner dated 16-4-1992, the Disciplinary Authority had levelled two major charges of misconduct. Along with the charge memo, detailed imputation of charges were also issued to the delinqtient officer containing particulars of each charge alleged in the charge memo. In the very charge memo, petitioner was charged with failure to discharge his duty and responsibility with utmost integrity, honesty and devotion, which would constitute misconduct within the meaning of Regulation 3 read with Regulation 24 of the Central Bank of India Officer Employees' (Conduct) Regulations, 1976, attracting penal provisions under Regulation 4 of the Central Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976. In the charge memo, it was alleged that the petitioner while working as Branch Manager at Pattadakal Branch of the respondent-Bank had purchased on various dates cheques/withdrawals drawn on various outstation branches and has not ensured their realisations which were ultimately turned out to be fraudtilent transactions. As a second charge, it was alleged that the petitioner had not taken steps to ensure proper credit of the proceeds of outstation cheques lodged by the constituents to the respective accounts. The statement of imputation, which was furnished to the petitioner, does contain all the details of the alleged acts of omissions and commissions said to have been committed by the petitioner while working as Branch Manager at Pattadakal Branch of the Bank. A perusal of the charge memo and the imptitation of misconduct that was furnished to the petitioner does contain all the details of the alleged misconduct. Therefore, it cannot be said that the charge memo was vague and the petitioner could not answer and explain all the allegations made in the charge memo. In fact, during the preliminary enquiry conducted by the enquiry officer on the first date of enquiry namely, on 27-7-1992, the enquiry officer had posed a question to the charge-sheeted officer, whether the petitioner had understood the charges alleged against him in the charge memo, and the delinquent officer had replied that he has understood allegations made against him in the charge memo. Therefore, at this stage, petitioner cannot contend that the charge memo was vague and unintelligible and therefore, the entire charge-sheet and the proceedings taken pursuant thereto are arbitrary and illegal.
14. The learned Counsel nextly contended that the allegations made against the petitioner do not constitute misconduct as defined under the Regulations and therefore, the disciplinary proceedings initiated against him is without jurisdiction and cannot be sustained in law. This submission of the learned Counsel has no merit and therefore, cannot be accepted, for the reason, doing of any act, which is prejudicial to the interest of the Bank, or gross negligence or negligence involving or likely to cause pecuniary loss to the Bank, is gross misconduct. In other words, likelihood of serious loss coupled with negligence is sufficient to bring the case within the meaning of the expression 'misconduct'. The Disciplinary Authority of the respondent-Bank in the charge memo issued and served on the petitioner has elaborately detailed the various omissions and commissions said to have been committed by the petitioner while working as a Branch Manager at one of its branches. Those allegations if proved, would be a clear case of negligence involving or likely to involve the Bank in serious pecuniary loss to the Bank and therefore, the financial irregularities alleged to have been committed by the petitioner as a responsible Officer of the Bank would constitute 'misconduct'.
15. Nextly, the learned Counsel would contend that admittedly the petitioner was retired from service on attaining the age of superannuation on 31-5-1998 and therefore, in view of the settled legal position, when the order of penalty of removal from service is set aside, the order of suspension does not get revived automatically. Therefore, when the Bank wanted to continue with the disciplinary proceedings, after the retirement of the employee officer, the only power that was available to it was at best imposition of penalty of recovery of pecuniary-loss, if any, caused to the Bank by initiating appropriate proceedings permissible in law, and therefore, the Disciplinary Authority had no competence or jurisdiction to have continued with the earlier proceedings and thereafter could not have imposed the penalty of removal from service against the petitioner. It is further contended that the Disciplinary Authority having realised that it had no jurisdiction to pass an order terminating the services of the petitioner vide its order dated 20-10-1999, could not have passed the second order dated 20-10-1999 making the removal from service with retrospective date, since he had become functus officio on passing of the first order. Therefore, the order of penalty passed by the Disciplinary Authority is without jurisdiction, without authority of law and impermissible under Regulation. In aid of this submission, the learned Counsel has relied on certain observations made by the Apex Court in the case of R. Jeevaratnam v. State of Madras, .
16. The respondent-Bank would contend that Regulation 7(3) of the Central Bank of India Officer Employees' (Discipline and Appeal) Regulations does not prohibit the Disciplinary Authority from making an order with retrospective effect. They further state, that, in terms of the order passed by this Court in W.A. No. 5897 of 1998, dated 5-7-1999, after following the correct procedure, the impugned order is passed giving effect to that order from the date of the original order. Nextly, they contend that the order passed by the Disciplinary Authority is authorised by the Central Bank of India Officer Employees' (Discipline and Appeal) Regulations and other Rules which govern all the employees of the Bank and therefore, firstly, an employee officer can be removed from service retrospectively and secondly, punishment of removal from service could be imposed under the Regulations even after an employee officer is retired from service.
17. To answer this contention of the learned Counsel for the petitioner, the Regulations governing the parties requires to be noticed.
Regulation 20 of the Central Bank of India (Officers) Service Regulations, 1979, provides for termination of service of an employee officer of the Bank.
Regulation 20(3)(iii) of the Regulations is relevant for the purpose of this case. Therefore, it is extracted and the same is as under:
"20(3)(iii).-The Officer against whom disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the disciplinary proceedings will continue as if he was in service and final order is passed in respect thereof. The concerned Officer will not receive any pay and/or allowance after the date of superannuation. He will also not be entitled to the payment of retirement benefits till the proceedings are completed and final order is passed thereon, except his own contributions of CPF".
18. The aforesaid sub-regulation, firstly authorises the Bank to continue the disciplinary proceedings even after the retirement of the employee officer after attaining the age of superannuation, provided the enquiry proceedings had been initiated prior to his date of retirement, but could not be completed before his retirement from service, as if he was in service until the proceedings are concluded and final orders is passed in respect thereof. Secondly, during the continuation of the proceedings the officer/employee shall not receive any pay and any allowance after the date of superannuation. Lastly, he will not be entitled for the payment of terminal benefits till the proceedings are completed and final orders are passed thereon, except his own contribution of CPF.
19. Regulation 24 of the Conduct Regulation of the Bank, envisages that the breach of any of the Conduct Regulations is deemed to constitute misconduct punishable under the Discipline and Appeal Regulations of the Bank.
20. Regulation 7 of Discipline and Appeal Regulation of the Bank provides for the action on the enquiry report. Sub-regulation (3) of Regulation 7 of the Regulations authorises the Disciplinary Authority to impose any one of the penalties specified in Regulation 4 of the Regulations having regard to the gravity of the misconduct alleged and proved against an employee/officer of the Bank. It is relevant to notice here itself that the Regulation does not authorise the Disciplinary-Authority to impose any of the penalties specified for the proved misconduct retrospectively.
21. The petitioner while he was in service, the Disciplinary Authority of the respondent-Bank had initiated Disciplinary Enquiry proceedings against the petitioner for the charges alleged in the charge memo and also had appointed an Enquiry Officer to enquire into the charges so alleged. After receiving the report of the Enquiry Officer and after disagreeing with some of his findings, the Disciplinary Authority had imposed a penalty of removal from service by his order dated 22-3-1993. The order so made was confirmed by the Appellate Authority while rejecting the appeal filed by the petitioner by his order dated 20-8-1993.
22. The order passed by the Disciplinary Authority was set aside by a learned Single Judge of this -Court on a technical ground, without going into merits of the case by its order dated 14-9-1998, but had not remanded the matter to the Disciplinary Authority for a fresh decision from the stage the defects were noticed by the Court, solely on the ground that in the normal course, petitioner would have retired from service on 31-5-1998 after attaining the age of superannuation. In the appeal filed against the said order, the Division Bench of this Court after concurring with the findings and conclusion reached by the learned Single Judge on all other aspects except in not remanding the matter to the Disciplinary Authority to continue with the proceedings from the stage the Disciplinary Authority fell into the error, remanded the matter by its order dated 5-7-1999 to the Disciplinary Authority with a direction to pass a fresh order in accordance with law after following the procedure laid down in the Rules and also keeping in view the observations made by the Supreme Court in Kunj Behari Misra's case.
23. By virtue of Regulation 20(3)(iii) of the Conduct Regulations of the Bank, though the petitioner was dismissed from service in the year 1993 and in view of that order being set aside by this Court and in the meanwhile is deemed to have retired from service on attaining the age of superannuation on 31-5-1998, but the disciplinary proceedings initiated earlier could be continued and the delinquent officer will continue as if he was in service until the proceedings are concluded and the final orders is passed in respect thereof. Therefore, learned Counsel for petitioner is not justified in contending that the disciplinary proceedings initiated earlier could not have continued after retirement of the petitioner from service on attaining the age of superannuation. Secondly, the learned Counsel would contend that the respondent-Bank without paying the salary from the date the petitioner was removed from service till the proceedings of enquiry was reinitiated could not have proceeded with the enquiry does not merit any consideration in view of the specific bar in the sub-regulation itself, wherein it is stated that in such proceedings, the Delinquent Officer will not receive any pay and/or allowance and also not entitled for retirement benefit.
24. Now that the proceedings are continued under the Conduct Regulations of the Bank, the Disciplinary Authority is expected to impose the punishment as provided under Regulation 4 of the Discipline and Appeal Regulations of the Bank, that is what has been done by the Disciplinary Authority of the Bank. Now the next question would be, whether the Disciplinary Authority while imposing the punishment of 'removal from service' on the petitioner, could have passed an order from retrospective date. The respondent-Bank justifies its action on two grounds, namely, that Regulation 7(3) of the Regulations would authorise the Disciplinary Authority to impose any of the penalties provided under Regulation 4 of the Discipline and Appeal Regulations of the Bank from a retrospective date and secondly, the order passed by this Court in W.A. No. 5897 of 1998 disposed off on 5-7-1999 does permit them to impose the penalty from the date the petitioner was kept under suspension. In my view, none of them would authorise the Disciplinary Authority to pass an order imposing a penalty with retrospective date. Regulation 7(3) of the Regulations only provides for passing of an order by the Disciplinary Authority after receipt of the enquiry report from the Enquiry Officer and that only means any order made by him will come into force only from the date of the order. Nowhere in the Regulation, the Disciplinary Authority is authorised to impose any punishment/penalty with a retrospective date. The respondent-Bank in justification of its impugned order would rely on the observations made by this Court in W.A. No. 5897 of 1998. In my view, even the order passed by this Court would not authorise them to pass an order imposing penalty from an anterior date. The Supreme Court in the case of R. Jeevaratnam, has held that an order of dismissal with retrospective effect is, in substance, an order of dismissal as from the date of the order. In other words, punishment is effective prospectively and could not effect retrospectively from a date earlier than the date of the order. In the aforesaid decision, the Court has observed:
"An order of dismissal with retrospective effect is, in substance, an order of dismissal as from the date of the order with the super-added direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming that the second part of the order is invalid, there is no reason why the first part of the order should not be given the fullest effect. The Court cannot pass a new order of dismissal, but surely it can give effect to the valid and severable part of the order".
Further, the Court is of the view that:
"An order of dismissal cannot be passed with retrospective effect and the order is effective from the date it is passed".
25. However, Sri Parthasarathi, learned Counsel for the respondent-Bank has relied on the observations made by the Apex Court in P.H. Kalyani v. Air France, Calcutta, ; DC. Roy v. The Presiding Officer, Labour Court and Ors., ; R. Thiruvirkolam v. Presiding Officer and Anr., and in the case of Life Insurance Corporation of India v. Central Industrial Tribunal, Jaipur and Ors., , to sustain the impugned order passed by the Disciplinary Authority in terminating the services of the petitioner with a retrospective effect.
26. These are all cases under the Labour Laws. In these cases, the Apex Court was considering a situation where the Industrial Tribunal found that the domestic enquiry held by the employer is defective, but after recording the evidence of the parties before the Tribunal, the Tribunal has upheld the orders of the employer. In such circumstances, the Supreme Court held that the order of removal is operative from the date the order was passed by the employer and not from any subsequent date. In my opinion, the reliance on the case-laws by learned Counsel for the respondent-Bank would not assist him in justification of the order passed by the Disciplinary Authority retrospectively imposing the penalty of 'removal from service' on the petitioner, in the facts and circumstances of the present case.
27. The learned Counsel for the petitioner further submitted that the Disciplinary Authority could not have imposed the penalty of removal from service since the petitioner on the date of the order had retired from service on attaining the age of superannuation. In aid of this submission, the learned Counsel has relied on the Pension Regulations of the Bank and in particular, Regulation 48 of the Pension Regulations. The said Regulation provides for recovery of pecuniary loss caused to the Bank by an employee officer of the Bank, if in any departmental or judicial proceedings the petitioner is found guilty of grave misconduct or negligence or criminal breach of trust or forgery or acts done fraudulently during the period of his service. In aid of this submission, the learned Counsel relied firstly on the decision of the Apex Court in the case of High Court of Punjab and Haryana v. Amrik Singh, 1995 Supp. (1) SCC 321 : 1995 SCC (L and S) 471 : 1995-II-LLJ-656 (SC). That was a case, where the Officer had retired from service on attaining the age of superannuation, but was re-employed and a departmental proceedings were initiated for the misconduct said to have been committed during the period of re-employment. In view of these facts, the Court has observed that since the departmental proceedings are held after the retirement of the employee, but for the misconduct committed during the course of re-employment, they are deemed to have been held under Pension Rules and therefore, the only penalty that could be imposed is as provided in the Pension Rules.
28. The next case on which reliance was placed is the decision of the Apex Court in the case of Bhagirathi Jena v. Board of Directors, O.S.F.C. and Ors., . That was a case where there was no specific provision for continuance of departmental enquiry proceedings after an employee officer has retired from service of the respondent-Corporation after attaining the age of superannuation. In that case, appellant was issued with a charge memo dated 22-7-1992 in respect of various items of alleged misconduct. The disciplinary proceedings were initiated on the same day by keeping the appellant under suspension. However, disciplinary proceedings were not concluded before the date of appellant's superannuation, which took place on 30-6-1995 and was relieved on 1-7-1995 by the Corporation without prejudice to the claim of the Corporation. The question was whether the Corporation could have continued with the Disciplinary Enquiry proceedings for the purpose of reduction of retiral benefits payable to the appellant-employee officer? The appellant filed a petition before the High Court of Orissa, contending that once the appellant had retired from service on 30-6-1995, the departmental proceedings could not be continued even for the purpose of computing the retiral benefits, inasmuch as, there was no statutory regulations made by the Corporation for such reduction of retiral benefits. The High Court dismissed the writ petition and against that, the appellant had filed the appeal by Special Leave before the Supreme Court. While allowing the appeal, the Supreme Court observed:
"6. It will be noticed from the above said regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation".
29. Reliance was also placed on the decision of the Apex Court in the case of State of Maharashtra v. M.H. Mazumdar, (1998)2 SCC 52 . In the said decision, the Court has observed that the departmental enquiry proceedings can be initiated against a Government servant after his retirement from service, on attaining the age of superannuation, and pension can be reduced on proved charge of misconduct, negligence or financial irregularities keeping in view the Bombay Civil Services Rules and in particular Rules 188 and 189 of the Rules.
30. In State of Uttar Pradesh v. Brahm Datt Sharma and Ors., , the Court was considering a situation where a Government servant was allowed to retire from service after attaining the age of superannuation. Thereafter, it was noticed that the retired Government Servant had committed certain financial irregularities while in service and therefore, domestic enquiry proceedings had been initiated and when the same was questioned, the Supreme Court was pleased to hold that, if Government incurs pecuniary loss on account of misconduct or negligence of a Government Servant and if he retires from service before any departmental proceedings are taken against him, it is open to the State Government to initiate departmental proceedings and if in those proceedings, he is found guilty of misconduct, negligent or any such other act or omission as a result of which Government is put to pecuniary loss, the State Government is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension.
31. In C.L. Verma v. State of Madhya Pradesh and Anr., , the Apex Court has stated that the administrative instructions cannot compete with the statutory rule and if there be contrary provisions in the rule, the administrative instructions must give way and the rule shall prevail and therefore, in terms of the Rule 29, the appellant ceased to be a Government employee on his attaining the age of 58 years, two days prior to the order of dismissal. In view of the fact that he had already superannuated, the Government had no right, to deal within its disciplinary jurisdiction available in regard to its employees.
32. None of the decisions on which reliance was placed by learned Counsel has any bearing on the fact situation in the present case. Therefore, the law declared by the Apex Court in those decisions would not assist the petitioner in any manner whatsoever.
33. The learned Counsel Sri Rajagopal would contend that the allegations made against the petitioner do not constitute misconduct as defined under the Regulations and therefore, the disciplinary proceedings initiated against the petitioner is without jurisdiction and cannot be sustained in law. On merits of the case, the learned Counsel would contend that the findings of the enquiry officer is based on no evidence and in fact no evidence was led in support of the charges by producing any witness; that the findings of the enquiry officer is merely based on the statements made by the Presenting Officer by way of arguments; that the findings of the enquiry officer are beyond the scope of the charges, based on no evidence, contrary to evidence on record, based on mere presumptions and assumptions, biased and perverse and bereft of reasons and suffers from non-consideration of the evidence led in by the delinquent officer and therefore, the findings of the enquiry officer cannot be sustained. Lastly, the punishment imposed by the Disciplinary Authority is discriminatory, grossly disproportionate to the allegations made against the petitioner and therefore, cannot be sustained in law and also vitiated as being opposed to principles of natural justice.
34. Sri Parthasarathy, learned Counsel for the respondent-Bank would contend that the scope of judicial review under Article 226 of the Constitution in the case of the departmental enquiry proceedings is limited to rectification of errors of law and procedural errors leading to manifest in justice or violation of principles of natural justice. The evidence cannot be re-appreciated as if the High Court were an Appellate Authority. In this regard, the learned Counsel has placed reliance on the decisions of the Apex Court in the case of Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singh and Ors., and State of Tamil Nadu v. S. Subramaniam, .
35. Much discussion in this regard may not be necessary in view of settled principles of law insofar as the powers of judicial review of this Court in exercise of its powers under Articles 226 and 227 of the Constitution in matters pertaining to domestic enquiry proceedings.
36. This Court has the power only to examine the procedural correctness of the decision making process. It cannot embark upon appreciation of evidence to substitute its own finding of fact in place of those of disciplinary/Appellate Authority. Adequacy of evidence or reliability of evidence cannot be gone into by this Court. However, 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.
37. The facts in the present case are that the delinqtient official by his gross negligence has failed to discharge his duties with utmost integrity, diligence and devotion and has failed to take all possible steps to protect the interest of the Bank. The delinquent officer having exercised no control over the activities of Sri Nagaraj has in fact enabled him to expand his fraudulent activities to defraud the Bank though other departments' viz., OOC/Clearing/Despatch Departments of the branch. This is the first charge against the petitioner.
38. The second charge alleged against the petitioner is that while he was working in the current/bills/OCC department of the branch has failed to monitor that the proceeds of the outstation cheques lodged by the constituents have been credited to the beneficiaries accounts. Taking advantage of such situation, Sri Nagaraj, Clerk, who has already siphoned off Bank's funds in the bills purchase department has ventured to extend his fraudulent activity to OCC clearing department by misappropriating the proceeds of outstation cheques realised by the Bank. In sum and substance, the allegation is that the petitioner has failed to have any check/control over the work he has been allotted which in fact facilitated Sri Nagaraj to defraud the Bank to the tune of Rs. 1,00,588.93 ps. by diverting the OCC proceeds to his own savings accounts, as also to the other accounts identified by him.
39. To prove these allegations, the management had not examined any witnesses nor they have got it marked any documents, except producing credit voucher/slips, B.P. voucher/debit voucher, withdrawals slips, B.P. ledger folios and these documents are not even identified by any witnesses only on the ground that the most of the exhibits produced are copies of the original records. Since these documents were produced by the Presenting Officer on behalf of the management, when a request was made by the delinquent officer to permit them to cross-examine the Presenting Officer with reference to the documents, records produced in the enquiry, the enquiry officer brushes aside this request by saying that the cross-examination will be permitted "when the written brief (arguments) submitted by Presenting Officer is made available to CSO/DR for their counter remarks". This is repeated throughout the enquiry proceedings whenever the CSO/DR had made their request to permit them to cross-examine the Presenting Officer who had produced the document/records to prove the allegations made in the charge memo.
40. The Supreme Court in P. Joseph John v. State of Travancore-Cochin, , has observed that the provisions of Indian Evidence Act are not strictly applicable, so it is not relevant to consider if facts have been proved according to law. It is permissible in a departmental enquiry to look into the documents or records which strictly speaking would not be evidence in a Court of law, but with one safeguard, any document or record which is looked into or relied upon must be disclosed to the delinquent and he must be afforded an opportunity of dealing with it.
41. In re Bank of India v. Degala Suryanarayana, , the Supreme Court has observed that strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the departmental officer must be established by such evidence, acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the graveness of the charges against the delinquent officer.
42. In re Tara Chand Vyas v. Chairman and Disciplinary Authority, the Apex Court has observed that the strict rules of evidence are not applicable and the departmental authorities are not like Civil Courts and only documentary evidence, copies of which are supplied to the petitioner can be basis of the findings.
43. In a departmental enquiries although the rules of evidence and procedure by a Civil Court is not strictly applicable, in cases involving serious charges with consequences as grave as dismissal, the standard of fairness and reasonableness as interpreted and adopted by the Civil Court will apply to meet the ends of justice. Although the strictly rule of evidence is not applicable to the disciplinary proceedings, and the onus of proof also does not always lie upon the department, but depends upon the nature of charges and the nature of explanation. In the present case, the charges that are alleged against the petitioner is that because of his negligence and having not exercised no control over the activities of one of his subordinate official, the Bank was exposed to pecuniary loss and this alleged misconduct of the delinquent officer, in my opinion, must be established by cogent evidence by the management, on which objectively a finding can be given about the commission of the offence or misconduct. The minimum requirement of rules of natural justice is that, there must be some evidence which points to the guilt of the accused in respect of the charges alleged against him. It is no doubt true that in the disciplinary enquiry proceedings, the standard of proof that is required is that of preponderance of probability and not proof beyond doubt.
44. In this case, the findings of the enquiry officer is not based on any evidence which was adduced before him. It is merely based on his assumptions and presumptions. It is incumbent on the enquiry officer to indicate in his report as to what is the evidence on which he is relying upon to find that the charge-sheeted officer is guilty of the offences. In my view, the findings of the enquiry officer is based on no evidence whatsoever and therefore, the same is perverse and cannot be accepted. Based on these perverse findings, the Disciplinary Authority could not have imposed any punishment much less punishment of dismissal from service on the petitioner. The Appellate Authority, while confirming the order passed by the Disciplinary Authority has not appreciated this aspect of the matter. Therefore, the impugned orders cannot be sustained. Accordingly, the following:
ORDER I. Writ petition is allowed.
II. The impugned orders passed by the disciplinary authority dated 20-10-1999 as well as the Appellate Authority 19-2-2000 are set aside.
III. Consequently, it is declared that petitioner is entitled for all the monetary and service benefits from the date he was kept under suspension till the date he retired from service on attaining the age of superannuation. Thereafter, petitioner is entitled for terminal benefits as provided in the Pension Rules of the Bank.
IV. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.