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-Chai