RESERVED
Court No. - 4
Case :- WRIT - A No. - 6976 of 2019 Petitioner :- A.M. Kulshrestha Respondent :- Union Bank Of India, Central Office Mumbai And 3 Others Counsel for Petitioner :- Rakesh Pande Counsel for Respondent :- Vivek Ratan Agrawal
Hon'ble Pankaj Bhatia,J.
Heard Sri Rakesh Pande, Senior Advocate, assisted by Sri Manoj Kumar Tiwari, learned counsel for the petitioner and Sri Vivek Ratan Agrawal, learned counsel appeared for the respondents.
The petitioner has filed the present petition challenging the order dated 21.8.2018 (Annexure-2 to the writ petition). The averments leading to the filing of the present petition in brief are as under:
The petitioner was posted as Regional Head, Regional Office Meerut and Head of Regional Level Credit Committee-1, Meerut. The services of the petitioner were suspended by respondent no. 1 vide order dated 21.8.2018 pending disciplinary action against the petitioner. No further action was taken in pursuance of the suspension order passed against the petitioner and after about five months a show cause notice was served on the petitioner on 18.1.2019 asking the petitioner to show cause as to why the appropriate disciplinary action may not be taken against the petitioner in view of the lapses mentioned in the show cause notice dated 18.1.2019 (Annexure 3 to the writ petition). It is stated that on 09.2.2019 the petitioner gave a detailed reply to the said show cause notice and by a separate request dated 09.2.2019 requested for revocation of the suspension order passed against him. It is alleged in the petition that no action was taken in pursuance of a show cause notice dated 18.1.2019, however, a second show cause notice dated 15.3.2019 was served on the petitioner making certain further allegations without pointing out any specific act of misconduct against the petitioner. The petitioner replied to the said show cause notice on 14.4.2019 but no action has been taken by the bank on the said second show cause notice dated 15.3.2019.
Learned counsel for the petitioner has drawn my attention to the Rules applicable to the services of the petitioner being Officer Employees (Discipline and Appeal) Regulation 1976. The said Regulation provides for the manner of proceeding against the officers. Regulation 6 provides for procedure for major penalties. Regulation 6 is quoted hereunder:
6. PROCEDURE FOR IMPOSING MAJOR PENALTIES:
(1) No order imposing any of the major penalties specified in clauses (f), (g), (h), (i) and (j) of Regulation 4 shall be made except after an inquiry is held in accordance with this Regulation.
(2) Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an Officer Employee, it may itself inquire into, or appoint any other person who is, or has been public servant (hereinafter referred to as Inquiring Authority) to inquire into the truth thereof.
Explanation: When the Disciplinary Authority itself hold the inquiry any reference in sub- regulation (8) to Sub-Regulation (21) to the Inquiring Authority shall be construed as a reference to Disciplinary Authority.
(3) Where it is proposed to hold an inquiry, the Disciplinary Authority shall frame definite and distinct charges on the basis of the allegations against the Officer Employee and the Articles of Charge, together with a Statement of the allegations, list of documents and list of witnesses alongwith copy of statement of witnesses, if any, on which they are based, shall be communicated in writing to the Officer Employee, who shall be required to submit, within such time as may be specified by the Disciplinary Authority (not exceeding 15 days) or within such extended time as may be granted by the said Authority, a written statement of his defence.
“Provided that wherever it is not possible to furnish the copies of documents, Disciplinary Authority shall allow the officer employee inspection of such documents within a time specified in this behalf;
(4) On receipt of the written statement of the Officer Employee, or if no such statement is received within the time specified, an inquiry may be held by the Disciplinary Authority itself, or if it considers it necessary to do so appoint under Sub-Regulation (2), an Inquiring Authority for the purpose; Provided that it may not be necessary to hold an inquiry in respect of the Articles of Charge admitted by the Officer Employee in his written statement but shall be necessary to record its findings on each such charge.
(5) The Disciplinary Authority shall, where it is not the Inquiring Authority, forward to the Inquiring Authority :-
(i) a copy of the Articles of Charge and Statements of Imputations of misconduct or misbehaviour;
(ii) a coy of the written statement of defence, if any, submitted by the Officer Employee;
(iii) a list of documents by which and list of witnesses by whom the Articles of Charge are proposed to be substantiated;
(iv) a copy of statements of the witnesses, if any;
(v) evidence proving the delivery of Articles of Charge under Sub-Regulation (3);
(vi) a copy of the order appointing the “Presenting Officer” in terms of Sub-Regulation (6).
(6) Where the Disciplinary Authority itself inquires or appoints an Inquiring Authority for holding an inquiry, it may, by an order, appoint a public servant to be known as the “Presenting Officer” to present on its behalf the case in support of the Articles of Charge.
(7) The Officer Employee may take the assistance of any other Officer Employee but may not engage a Legal Practitioner for the purpose unless the Presenting Officer; appointed by the Disciplinary Authority is a Legal Practitioner or the Disciplinary Authority, having regard to the circumstances of the case so permits.
NOTE: The Officer Employee shall not take the assistance of any other Officer Employee who has two pending disciplinary cases on hand in which he has to give assistance.
(8) (a) The Inquiring Authority shall by notice in writing specify the day on which the Officer Employee shall appear in person before the Inquiring Authority.
(b) On the date fixed by the Inquiring Authority, the Officer Employee shall appear before the Inquiring Authority at the time, place and date specified in the notice.
(c) The Inquiring Authority shall ask the Officer Employee whether he pleads guilty or has any defence to make and if he pleads guilty to any of the Articles of Charge, the Inquiring Authority shall record the plea, sign the record and obtain the Signature of the Officer Employee concerned thereon.
(d) The Inquiring Authority shall return a finding of guilt in respect of those Articles ofCharge to which the Officer Employee concerned pleads guilty.
(9) If the Officer Employee does not plead guilty, the Inquiring Authority shall adjourn the case to a later date not exceeding 30 days or within such extended time as may be granted by the Inquiring Authority.
(10) The Inquiring Authority while adjourning the case as in sub-regulation (9), shall also record by an order that the officer employee may for the purpose of preparing defence.
(i) complete inspection of the documents as in the list furnished to him immediately and in any case not exceeding 5 days from the date of such order if he had not done so earlier as provided for in the provisio to sub-regulatio(3);
(ii) submit a list of documents and witnesses, that he wants for the inquiry;
(iii) give notice within ten days of the order or within such further time not exceeding ten days as the Inquiring Authority may allow for the discovery or production of the documents referred to in item (ii).
Note: The relevancy of the documents and the examination of the witnesses referred to in item (ii) shall be given by the officer employee concerned.
(11) The Inquiring Authority shall, on receipt of the notice for the discovery or production of the documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents on such date as may be specified.
(12) On the receipt of the requisition under Sub-regulation (11), the authority having the custody or possession of the requisitioned documents, shall arrange to produce the same before the Inquiring Authority on the date, place and time specified in the requisition:
Provided that the authority having the custody or possession of the requisitioned documents may claim privilege the production of such documents will be against the public interest or the interest of the Bank. In that event, it shall inform the Inquiring Authority accordingly.
(13) On the date fixed for the inquiry, the oral and documentary evidence by which the Articles of Charge are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority. The witnesses produced by the Presenting Officer shall be examined by the Presenting Officer and may be cross- examined by or on behalf of the Officer Employee. The Presenting Officer shall be entitled to re-examine his witnesses on any points on which they have been cross- examined, but not on a new matter, without the leave of the Inquiring Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit.
(14) Before the close of the case, in support of the charges, the Inquiring Authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the charge sheet or may itself call for new evidence or recall or re-examine any witness. In such the Officer Employee shall be given opportunity to inspect the documentary evidence before it is taken on record, or to cross-examine a witness, who has been so summoned. The Inquiring Authority may also allow the Officer Employee to produce new evidence if it is of the opinion that the production of such evidence is necessary in the interest of justice.
(15) When the case in support of the charges is closed, the Officer Employee may be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Officer Employee shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.
(16) The evidence on behalf of the Officer Employee shall then be produced. The Officer Employee may examine himself in his own behalf, if he so prefers. The witness produced by the Officer Employee shall then be examined by the Officer Employee and may be cross- examined by the Presenting Officer. The Officer Employee shall be entitled to re-examine any of his witnesses on any points on which they have been cross-examined, but not on any new matter without he leave of the Inquiring Authority.
(17) The Inquiring Authority may, after the Officer Employee closes his evidence, and shall, if the Officer Employee has not got himself examined, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Officer Employee to explain any circumstances appearing in the evidence against him.
(18) The Inquiring Authority may after the completion of the production of evidence, hear the Presenting Officer, if any; appointed and the Officer Employee, or permit them to file written briefs of their respective case within 15 days of the date of completion of the production of evidence if they so desire.
(19) If the Officer Employee does not submit the written statement of defence referred in Sub-Regulation (3) on or before the date specified for the purpose or does not appear in person, or through the Assisting Officer or otherwise fails or refuses to comply with any of the provisions of these Regulation, the Inquiring Authority may hold the inquiry ex- parte.
(20) Whenever any Inquiring Authority, after having heard and recorded the whole or any part of the evidence in any inquiry ceases to exercise jurisdiction therein, and is succeeded by another Inquiring Authority which has, and which exercises, such jurisdiction, the Inquiring Authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself.
Provided that if the succeeding Inquiring Authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall, examine, cross-examine and re-examine any such witnesses as herein before provided.
(21) (i) On the conclusion of the inquiry the Inquiring Authority shall prepare a report which shall contain the following:
(a) a gist of the Articles of Charge and Statement of the Imputations of misconduct or misbehaviour;
(b) a gist of the defence of the Officer Employee in respect of each Articles of Charge;
(c) an assessment of the evidence in respect of each Articles of Charge;
(d) the findings on each Articles of Charge and the reasons therefor.
Explanation – If, in the opinion of the Inquiring Authority, the proceedings of the inquiry establish any Articles of Charge different form the original Articles of Charge, it may record its finding on such article of charge:
Provided that the findings on such Articles of Charge shall not be recorded unless the Officer Employee has either admitted the facts on which such Articles of Charge is based or has had a reasonable opportunity of defending himself against such Article of Charge.
(ii) The Inquiring Authority, where it is not itself the Disciplinary Authority, shall forward to the Disciplinary Authority the records of inquiry which shall include –
(a) the report of the inquiry prepared it under clause (i);
(b) the written statement of defence, if any, submitted by the Officer Employee referred to in Sub-regulation (15);
(c) the oral and documentary evidence produced in the course of the inquiry;
(d) written briefs referred to in Sub-Regulation (18), if any; and
(e) the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry.
Regulation 8 of the said regulations provides for the procedure for imposing minor penalties. Regulation 8 (i) specifies that the Officer Employee shall be informed in writing of the imputation of lapses against him and given an opportunity to submit written statement of defence. Regulation 8 is quoted hereunder:
8. PROCEDURE FOR IMPOSING MINOR PENALTIES:
(1) Where it is proposed to impose any of the minor penalties specified in clauses (a) to (e) of Regulation 4, the Officer Employee concerned shall be informed in writing of the imputations of lapses against him and given an opportunity to submit his written statement of defence within a specified period not exceeding 15 days or such extended period as may be granted by the Disciplinary Authority and the defence statement, if any, submitted by the Officer Employee shall be taken into consideration by the Disciplinary Authority before passing orders.
(2) Where, however, the Disciplinary Authority is satisfied that an enquiry is necessary, it shall follow the procedure for imposing a major penalty as laid down in Regulation 6.
(3) The record of the Proceedings in such cases shall include –
(i) a copy of the Statement of Imputations of lapses furnished to the Officer Employee;
(ii) the defence Statement, if any, of the Officer Employee; and
(iii) the orders of the Disciplinary Authority together with the reasons therefor.
Regulation 12 of the said regulations confer the power of suspension pending disciplinary proceedings against an employee.
The submission of learned counsel for the petitioner is that as the procedure prescribed under Regulation 8 has been initiated against the petitioner and not the procedure specified in Regulation 6. It is clear that the petitioner was proposed to be proceeded against him and was liable to be imposed with a minor penalty and thus his suspension since 21.8.2018 continuing was wholly arbitrary and illegal.
This Court while entertaining the writ petition had passed the following order:
“An order of suspension dated 21.8.2018 as well as its continuance is subject matter of challenge in this petition. The order of suspension records that certain acts of omission and commission have been reported on part of the petitioner during his tenure as Deputy General Manager while he was working at Mumbai. Learned counsel for the petitioner states that almost a period of 10 months have expired since then but no disciplinary proceedings have been initiated. It is also stated that the respondents have apparently found nothing serious against the petitioner and, therefore, proceedings for imposing minor punishment has been initiated against the petitioner, to which a reply has already been submitted.
Grievance is that instead of concluding the matter, respondents have issued a fresh notice on similar premise. It is submitted that the petitioner is otherwise due to superannuate on 30th June, 2019, and, therefore, continuance of his suspension is absolutely arbitrary and illegal.
Sri Vivek Ratan Agrawal, learned counsel appearing for the respondent-bank may obtain instructions in the matter.
Post as fresh on 10.5.2019.”
Once again this Court had passed an order on 13.5.2019 which is as under:
“Petitioner at the relevant point of time was posted as Regional Head of Regional Office, Union Bank of India, Meerut Region. He has been placed under suspension on 21st August, 2018. In this order of suspension, no charge was specified. It is admitted that till date no disciplinary action has been initiated, inasmuch as, no charge-sheet has been served upon the petitioner so far. Having passed the order of suspension, the bank proceeded to issue a show cause notice on 18th January, 2019. According to learned counsel for the petitioner, this act on part of the bank clearly reflected that charges found against the petitioner were minor in nature. Petitioner submitted a reply to the show cause notice. Instead of taking a decision upon it a second show cause notice has been issued to the petitioner on 15th March, 2019. Petitioner is due to retire on 30th June, 2019. Learned counsel for the petitioner submits that in the facts and circumstances, the action of the respondent bank in continuing the petitioner under suspension is wholly arbitrary.
Having noticed such contention, this Court proceeded to pass following orders on 3rd May, 2019:-
"An order of suspension dated 21.8.2018 as well as its continuance is subject matter of challenge in this petition. The order of suspension records that certain acts of omission and commission have been reported on part of the petitioner during his tenure as Deputy General Manager while he was working at Mumbai. Learned counsel for the petitioner states that almost a period of 10 months have expired since then but no disciplinary proceedings have been initiated. It is also stated that the respondents have apparently found nothing serious against the petitioner and, therefore, proceedings for imposing minor punishment has been initiated against the petitioner, to which a reply has already been submitted.
Grievance is that instead of concluding the matter, respondents have issued a fresh notice on similar premise. It is submitted that the petitioner is otherwise due to superannuate on 30th June, 2019, and, therefore, continuance of his suspension is absolutely arbitrary and illegal.
Sri Vivek Ratan Agrawal, learned counsel appearing for the respondent-bank may obtain instructions in the matter.
Post as fresh on 10.5.2019."
Sri Vivek Ratan Agrawal has obtained instructions and the same has been placed before the Court, copy of which is taken on record. This instructions does not bears signature of any officer. As per instructions certain consultation with the office of Central Vigilance Commission is being undertaken as the matter has vigilance implications. The instructions further states that order of suspension was passed because of serious acts of omission and commission pending disciplinary proceedings.
Instructions furnished on behalf of the Bank, prima facie, appear to be wholly misconceived. As per instructions, disciplinary proceedings have been initiated against the petitioner, whereas no such proceedings have been initiated till date. Law is settled that unless the charge-sheet is served, the disciplinary proceedings cannot be said to be initiated or pending. Though huge figures amounting to Rs. 261.37 Crores is said to be the amount of bank likely to be involved in the disciplinary action, but in the absence of any specific order passed in that regard or service of charge- sheet, such instructions do not inspire confidence. It would, therefore, be appropriate to direct the officer not below the rank of General Manager to file his personal affidavit clarifying the stand of the bank in that regard.
Let this matter appear as fresh once again on 23.5.2019.”
In pursuance of the order dated 13.5.2019, the Executive Director of the respondent-bank has filed the affidavit denying the averments in the writ petition and stating that the bank is in the process of initiating departmental proceedings against the petitioner.
Sri Vivek Ratan Agrawal, learned counsel for the respondent bank had fairly conceded that no charge sheet has been issued to the petitioner till date despite the suspension order having been passed on 21.8.2018. It is submitted by Sri Agrawal that the matter has been sent to CVC for the first advice which is still awaited and on the receipt of the advice of CVC the bank shall issue a charge sheet to the petitioner. He further tried to justify the suspension order on the ground that no prejudice is being caused to the petitioner.
Learned counsel for the petitioner, on the other hand, submits that a suspension order continuing for such long time is wholly arbitrary, illegal and is violative of the rights of the petitioner enshrined under Part III of the Constitution of India, more so as the retirement of the petitioner is due on 30.6.2019 and no useful purpose would be served in continuing the suspension of the petitioner. The petitioner has placed reliance upon a judgement of Hon'ble Supreme Court in case of Ajay Kumar Chaudhary vs. Union of India and others, 2015 7 SCC 291 wherein the Supreme Court has observed as under:
“It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Cr.P.C. of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481, and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges/Chargesheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal.
We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.
Considering the averments made at the bar by Sri Sri Rakesh Pande, Senior Advocate, assisted by Sri Manoj Kumar Tiwari, learned counsel for the petitioner and Sri Vivek Ratan Agrawal, learned counsel for the respondents, this Court is of the view that continuing the suspension since 21.8.2018 without even initiating or serving charge sheet for almost a year and that too at the fag end of the career of the petitioner is wholly arbitrary and illegal. The power of suspension vested with the bank cannot be exercised to delay and deny the justice to the Officer Employee as has been done by the Bank in the present case. It is well settled that suspension can only be in pursuance of the final order that he will pass in the disciplinary proceedings which have not even been initiated in the present case as such the continued suspension for almost about ten months is liable to be set aside.
Consequently, the order dated 21.8.2018 is set aside. However, the respondent-bank is free to initiate any proceedings that it may deem fit and the respondent-bank is also at the liberty to post the petitioner wherever it deems fit till the superannuation on 30.6.2019.
The writ petition succeeds and is disposed off in terms of the directions quoted above.
Order Date :- 20.6.2019 Puspendra