By means of the present writ petition, the petitioner has challenged the order of punishment dated 30.09.1989, whereby the petitioner was removed from the services of the Bank namley Shrawasti Gramin Bank and the order dated 19.01.1990 passed in the appeal filed by the petitioner against the order of removal dated 30.09.1989, whereby the Appellate Authority of the Bank modified the punishment of removal to the punishment of reversion to the post of Field Supervisor.
At this juncture, it is relevant to point out that during the pendency of the writ petition, the application for amendment was moved by the petitioner for amending/incorporating Allahabad U.P. Gramin Bank in place of Shrawasti Gramin Bank on the basis of the notification of Government of India dated 02.03.2010, which was issued with respect to amalgamation of Gramin Banks.
Considering the same, this Court on 08.04.2015 allowed the application for amendment and permitted the petitioner to incorporate the necessary amendment. Pursuant to the order dated 08.04.2015, necessary amendments were incorporated by the petitioner in the memo of the writ petition on 08.04.2015.
Now, the contesting opposite party is Allahabad Gramin Bank, as appears from the memo of the writ petition. In addition, no objection, with respect to the same, has been raised by the counsel for the opposite parties in this regard.
At very outset, learned Senior Advocate, Smt. Bulbul Godiyal assited by Sri S.S. Rajawat appearing on behalf of the petitioner submitted that she is not pressing the relief with respect to the order dated 30.09.1989 and she would press the relief with respect to the order passed by the Appellate Authority dated 19.01.1990.
The brief facts, as borne out from the pleadings on record, are that the petitioner was initially appointed on the post of Field Supervisor in the Shrawasti Gramin Bank, Bahraich on 25.02.1982 and subsequently, on regular basis, the petitioner was promoted on the post of Branch Manager on 30.05.1987.
While discharging the duties of the Bank, the petitioner was served with the charge-sheet dated 08.03.1988 containing ten charges. To prove the charges, the Bank place reliance on the documentary evidence and oral evidence. For oral evidence, the witnesses named in the charge-sheet are Sri Anand Kumar and Sri Jagat Ram, both are officers of the Bank. It appears from the charge-sheet that charge No. 2 relates to misappropriation/embezzlement of the amount. Other charges relate to the non-disbursement of loan to the concerned and not following the proper procedure prescribed for disbursement of loan as well as not following the rules relating to banking business. To the charge-sheet dated 08.03.1988, the petitioner submitted his reply before the Enquiry Officer (Annexure No. 3 to the writ petition). The Presenting Officer of the Bank also submitted his version before the Enquiry Officer vide letter dated 10.05.1989.
In response to the submissioin of the Presenting Officer, the petitioner submitted a detailed reply (Annexure No. 5 to the writ petition) and thereafter, the Enquiry Officer submitted his Enquiry Report dated 09.08.1989 (Annexure No. 6 to the writ petition) to the Disciplinary Authority. The charge No. 1, 2 and 7 were partially proved by the Enquiry Officer and charge Nos. 3, 4, 5, 6, 9 and 10 were fully proved by the Enquiry Officer and charge No. 8 was not found proved by the Enquiry Officer.
After submission of the Enquiry Report dated 09.08.1989, the Disciplinary Authority of the Bank issued a show cause notice dated 06.09.1989.
In response to the show cause notice dated 06.09.1989, the petitioner submitted his reply dated 25.09.1989. The Disciplinary Authority of the Bank passed the order of punishment dated 30.09.1989, whereby the punishment of removal was awarded to the petitioner.
Being aggrieved by the order of removal dated 30.09.1989, the petitioner preferred an appeal and in the appeal, the Appellate Authority i.e. Board of Directors, modified the order of punishment from removal to reversion to the post of Field Supervisor.
Being aggrieved by the orders, the petitioner has filed the present writ petition before this Court.
The main grounds taken by the petitioner for challenging the impugned orders, broadly, are that proper opportunity of heaing was not provided to the petitioner during the disciplinary proceedings. In enquiry proceedings, the Enquiry Officer failed to fix date, time and place for examining the witnesses to prove the charges and documents mentioned in the charge-sheet. In enquiry, no opportunity was given to the petitioner to produce the witnesses in defence by fixing date, time and place for the same. The order of Disciplinary Authority is unreasoned. The Disciplinary Authority without considering the reply of the petitioner passed the order dated 30.05.1989. The Appellate Authority has not provided proper opportunity of hearing to the petitioner prior to taking the decision in the appeal. The Appellate Authority has not applied its mind while passing the order dated 19.01.1990 modifying the order of removal to the order of reversion. The Appellate Authority without considering the contents of the appeal and defect in enquiry pointed out by the petitioner passed the order dated 19.01.1990.
In response to the contents of the writ petition, the Bank has filed the counter affidavit stating therein that the departmental enquiry was conducted in a manner as prescribed under the Rules and the petitioner took part in the enquiry proceedings wherein, he was provided reasonable opportunity to defend himself by cross-examining the witnesses produced by the Presenting Officer and the petitioner was also allowed to produce his defence witnesses. The charges against the petitioner were, in fact, related with misappropriation of Bank money, which were found proved by the Enquiry Officer and the punishment which has been laslty awarded by the Bank is according to the gravity of the charges and is not harsh.
The petitioner, in response to the same, filed the rejoinder affidavit reiterating therein the stand taken in the writ petition.
Learned Senior Counsel for the petitioner submitted that the enquiry proceedings were not conducted by the Enquiry Officer as per the settled preposition of Law and reasonable of opportunity to defend the case was not provided to the petitioner during the enquiry proceedings. In the regular departmental proceedings for awarding major punishment, it was incumbent upon the Enquiry Officer to fix date, time and place for the purposes of proving the charges and documents by examining the witnesses and thereafter, the opportunity ought to have been given to the petitioner/delinquent employee to cross-examine the wtinesses produced by the Bank for proving the charges and documents and thereafter, an opportunity ought to have given by the Enquiry Officer to the petitioner/delinquent employee to adduce his evidence and the Enquiry Officer has not conducted the enquiry in the manner it should have been carried out. Thus, enquiry report was vitiated and ought not to have considered while passing the impugned orders either by Disciplinary Authority or Appellate Authority.
Further submitted that the order dated 30.05.1989 of Disciplinary Authority is unsustainable being unreasoned and based on the defective enquiry report.
Assailing the impugned orders including the order of Appellate Authority dated 19.01.1990, the submission of the learned Senior Advocate, Smt. Bulbul Godiyal assisted by Sri S.S. Rajawat, is that the entire controversy, related in this writ petition, has already been considered by this Court in the case of co-delinquent Sri. D.K. Upadhayay. After considering the various irregularities in the enquiry proceedings, the writ petition of Sri Devendra Kumar Upadhyay i.e. Writ Petition No. 1289 (S/S) of 1990 was allowed by the Hon'ble Single Judge vide order dated 20.05.2005 and the said judgment was assailed by the Bank before the Division Bench and the Divsion Bench, after considering the entire facts and circumstances of the case, dismissed the Special Appeal No. 429 (SB) of 2005 vide judgment dated 21.04.2009, reported in 2009 (27) LCD 990. In the case of Sri D.K. Upadhyay (supra) the petitioner was dismissed and Appellate Authority modified the order of dismissal to order of reversion and this Court interfered in the matter on being found defect in the enquiry and unreasoned order and the same is the case of petitioner. In the case of the petitioner, the enquiry is defective and orders impugned are unreasoned. Thus, the case of the petitioner is covered by the aforesaid judgment.
Further submitted that in the order of punishment, the Disciplinary Authority has not recorded the reasons for coming to the conclusion for awarding major punishment. Against the order of punishment, the petitioner filed the appeal.
It has also been submitted by the counsel for the petitioner that in the appeal, the petitioner has raised the plea related to examination of relevant witnesses. In the appeal, the petitioner has also pointed out that the charge of misappropriation of amount/fund was not found proved even then a major punishment has been awarded. In the appeal, the petitioner has also stated that for mistakes/negligence pointed out by the Enqiry Officer in the Enquiry Report, related to the procedure, the major punishment given is harsh.
The submission of the counsel for the petitioner based on the contents of the appeal and order passed by the Appellate Authority i.e. Board of Director is that while awarding the punishment of reversion, the Appellate Authority has not considered the irregularity committed by the Enquiry Officer in conducting the enquiry and has also not considered that the charge i.e. charge No. 2 related to misappropriation/embezzlement was not found proved by the Enquiry Officer. The order of Appellate Authority is unreasoned. Thus, interference in the order of the Appellate Authority is required.
At this stage, learned Senior Counsel appearing for the petitioner also submitted that the show cause notice contains a charge (charge of embezzlement), which was not provided in the charge-sheet and accordingly, the entire enquiry proceedings including the order of Appellate Authority is unsustainable.
To the view of this Court, the submission of the counsel for the petitioner that the show cause notice contains a charge which was not in the charge-sheet and on account of the same entire proceeding are unsustainable, has no force as the said charge is charge No. 2 in the charge-sheet (charge of embezzlement) and in the reply to the show cause notice, the petitioner himself has taken the stand that this charge has not been proved by the Enquiry Officer.
Per contra, the learned Senior Advocate, Sri Asit Chaturvedi appearing for the respondent-Bank submitted that the departmental enquiry was conducted in a manner as prescribed under the Rules and the petitioner took part in the enquiry proceedings wherein, he was provided reasonable opportunity to defend himself by cross-examining the witnesses produced by the Presenting Officer and the petitioner was also allowed to produce his defence witnesses. The charges against the petitioner were, in fact, related with misappropriation of Bank money, which were found proved by the Enquiry Officer and the punishment which has been laslty awarded by the Bank is according to the gravity of the charges and is not harsh.
Considered the pleadings on record and submission made by the counsels for the parties.
The relevant provision, for the present case, related to imposing the major punishments is Regulation 30 of the Sravasti Gramin Bank Staff Service Regulations, 1980. The same is quoted below for ready reference:-
"Without pre judice to the provisions of other regulations an officer or employee who commits a breach of these regulations or who displays negligence, inefficiency or indolence, or who knowingly does anything detrimental to the interests of the Bank or in conflict with its instructions or who commits a breach of discipline or is guilty of any other act of misconduct, shall be liable to be following penaltites:-
(a) reprimand :
(b) delay or stoppage of increment or promotion.
(c) degradation to a lower post or grade or to a lower stage in his incremental scale :
(d) recovery from pay of the whole or part of any pecuniary loss caused to the Bank by the officer or employee;
(e) removal from service which shall not be a disqualification for future employment.
(f) dismissal.
No offcer or employee shall be subjected to the penalties referred to in clause (b), (c), (d), (e) and (f) of sub-regulation (1) except by an order in writing signed by the Chairman and no such order shall be passed without the charge being-formulated in writing and given to the said officer or employee so that he shall have reasonable opportunity to answer them in writing or in person, as he prefers and in the latter cash his defence shall be taken down in writing and read to him:"
It reflects from the above quoted provisions that Regular Enquiry is necessary prior to passing of major punishment.
The issue of conducting the Regular Enquiry has been considered by this Court as well as by the Hon'ble Apex Court and what has been culled out from the various decisions is that the "Regular Enquiry" means that after reply to the charge-sheet the Enquiry Officer must record oral evidence with an opportunity to the delinquent employee to cross-examine the witnesses and thereafter opportunity should be given to the delinquent employee to adduce his evidence in defence. The opportunity of personal hearing should also be given/awarded to the delinquent employee. Even if the charged employee does not participate/co-operate in the enquiry, it shall be incumbent upon the Enquiry Officer to proceed ex-parte by recording oral evidence. For regular enquiry, it is incumbent upon the Enquiry Officer to fix date, time and place for examination and cross-examination of witnesses for the purposes of proving of charges and documents, relied upon and opportunity to delinquent employee should also be given to produce his witness by fixing date, time and place. After completion of enquiry the Enquiry Officer is required to submit its report, stating therein all the relevant facts, evidence and statement of findings on each charge and reasons thereof, and thereafter, prior to imposing any punishment, the copy of the report should be provided to charged officer for the purposes of submission of his reply on the same. The punishment order should be reasoned and speaking and must be passed after considering entire material on record. (vide: Jagdish Prasad Vs. State of U.P. 1990 (8) LCD 486; Avatar Singh Vs. State of U.P. 1998 (16) LCD 199; Town Area Committee, Jalalabad Vs. Jagdish Prasad 1979 Vol. I SCC 60; Managing Director, U.P. Welfare Housing Corporation Vs. Vijay Narain Bajpai 1980 Vol. 3 SCC 459; State of U.P. Vs. Shatrughan Lal 1998 (6) SCC 651; Chandrama Tewari Vs. Union of India and others AIR 1998 SC 117; Anil Kumar Vs. Presiding Officer and others AIR 1985 SC 1121; Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories 2003 (21) LCD 610; Roop Singh Negi Vs. Punjab National Bank and others (2009) 2 SCC 570; M.M. Siddiqui Vs. State of U.P. and others 2015 (33) LCD 836; Moti Ram Vs. State of U.P. and others 2013 (31) LCD 1319; Kaptan Singh Vs. State of U.P. and others 2014 (4) ALJ 440. Rules 7, 8 and 9 of Rules 1999 are also relevant.
Considering the aforesaid including the principle settled by this Court as well as the Hon'ble Apex Court in relation to holding a Regular Enquiry, this Court considered the charge-sheet, the Enquiry Report dated 09.08.1989 (Annexure No. 6 to the writ petition), averments made in paras 26 and 27 of the counter affidavit, paras 23 and 24 of the rejoinder affidavit and Annexure No. 12, 13 and 14 to the rejoinder affidavit (proceeding of enquiry).
It appears from the enquiry report and other documents referred above that in enquiry three dates were fixed i.e. 19.04.1989, 01.05.1989 and 02.04.1989 and witnesses were examined during the enquiry for proving the charges and the documents. It also reflects from enquiry report that in the enquiry reasonable opportunity was provided to the petitioner. The Enquiry Officer thereafter prepared his report.
Thus, keeping in view the principles settled for holding Regular Enquiry, this Court is of the view that enquiry officer held the Regular Enquiry, as required under the law, and being so enquiry can not be said to be vitiated.
Though the relief related to the order dated 30.09.1989 has been not pressed by the learned Senior Counsel for the petitioner even then this Court has considered the order dated 30.09.1989 (Annexure No. 9 to the writ petition) and this Court found that the order dated 30.09.1989, imposing major punishment, is a non-speaking order.
The aforesaid is taken note of to consider the order of Appellate Authority against which the petitioner is pressing the writ petition. Strong reliance has been placed by the counsel for the petitioner on the judgments passed in the case of co-delinquent Sri D.K. Upadhyay.
In the judgments relied upon by the counsel for the petitioner in the case of co-delinquent Sri D.K. Upadhyay, this Court after considering the defect in the procedure adopted by the Bank in the enquiry before passing the order of dismissal passed by the Disciplinary Authority and order of reversion passed by the Appellate Authority, reducing the punishment, interfered in the orders.
It appears from the judgments passed in the case of Sri D.K. Upadhyay that the interference was made for the reasons that proper procedure was not followed in the enquiry and out of five charges only charge No. 2 was found partly proved and new charge of financial irregularity was introduced in the show cause notice.
In the instance out of 10 charges, charge Nos. 1, 2 and 7 were partly proved and charge Nos. 3, 4, 5, 6, 9 and 10 were found proved and charge No. 8 was not found proved. Charge No. 2, part of which was of financial irregularity, was found partly proved in enquiry and thus mentioning also the same in the show cause notice would not be an illegality. No new charge was introduced in the show cause notice. Thus, the case of the petitioner is not squarely covered by the judgments in the case of Sri D.K. Upadhyay.
The case of the petitioner is not similar to the case of Sri D.K. Upadhyay, as would appear from reasons recorded hereinabove, and being so as well as keeping in view the principle related to parity in punishment, the petitioner is not entitled to the benefit of the judgments, above referred, relied upon by the counsel for the petitioner. Thus, the order of Appellate Authority is not liable to be interfered only on the basis of the judgment passed in the case of Sri D.K. Upadhyay.
Another aspect related to the appellate order dated 19.01.1990, as stated by the counsel for the petitioner, is that the charge of misappropriation/embezzlement i.e. charge No. 2 was not found fully proved by the Enquiry Officer and Enquiry Officer held guilty of the charges which were related to procedure prescribed for discharging the duties of the Bank including the disbursement of loan and the Appellate Authority was under obligation to consider this aspect of the case as well as the pleas raised in the appeal and it appears from the record including the order dated 19.01.1990 that while warding the punishment of reversion, the Appellate Authority failed to appreciate the fact that (i) the charge of misappropriation/embezzlement was not found proved by the Enquiry Officer, (ii) the enquiry conducted by the Enquiry Officer was not as required under the Law, (iii) the order of Punishing Authority was not a reasoned and speaking order and (iv) pleas raised in the appeal by the petitioner have not been considered by the Appellate Authority in its true spirit and being so requires interference by this Court.
In the instant case, the Appellate Authority, as per Regulation 32, was "Board of the Bank".
It is settled principle that when there is collective decision of a larger decision making Body, consisting of several persons unless law specifically requires, ultimate resolution passed by such Body is sufficient and it is not necessary that deliberation which took place in the meeting of the Body, should also form part of the record or part of the decision. In absence of any such provision, collective decision taken by a Body, can not be assailed or interfered on the ground that the decision of such collective Body communicated to the concerned employee is not a speaking and reasoned order.
The Division Bench of this Court in the judgment dated 07.02.2017 passed in the Writ Petition No. 1193 (S/B) of 1997 (Ahmad Moid v. State Public Services Tribunal), after considering the earlier judgment of the Division Bench of this Court held that reasoned order need not to be passed if the decision is a decision of Board of Directors. The relevant paras are quoted below:-
"7. A similar argument came up for consideration before this Court in Dr. Bishambhar Dayal Gupta Vs. The Visitor/President of India, 2006 (1) AWC 608. In para 11 of the judgment, questions, which were considered by Division Bench, have been formulated as (a), (b) and (d), are reproduced as under:
"(a) Whether the orders passed by the Executive Council and the Visitor are unsustainable in the eyes of law as they do not record separate reasons.
(b) Whether it was necessary for the Executive Council to have recorded a finding of guilt in respect of the charges found proved by the Enquiry Officer in its resolution dated 16/17th May, 1989 by imposing punishment, even after the enquiry report was accepted earlier under the resolution of the Executive Council dated 28/29th March, 1989, where under the Executive Council had specifically held that the charges against the petitioner were proved and the enquiry report was accepted."
(d) Whether in the facts of the present case, this Court would exercice its jurisdiction under Article 226 of the Constitution of India in favour of the petitioner."
8.Referring to the provisions whereby decision was to be taken by Executive Council of University, the Court in paras 23, 25 and 31 held as under:
"23. From the provisions, which have been quoted herein above, it is apparently clear that the decision to dismiss a teacher of the University from service on the ground of misconduct, is to be taken after following the procedure prescribed under Clause (c) of the said statute by the Executive Council. The said Section does not require recording of reasons for such a decision. Even otherwise, where a collective decision by a body of person is required to be taken (like in the facts of the present case), it is neither practically possible nor legally required that opinion of all the members participating in the delibeartions must be recorded, inasmuch as the decision of such bodies are collective in nature, and only the decision as a whole, is required to be recorded in writing and not the deliberation which had to be such a decision. The deliberations which took place in the meeting of the Excutive Council, are, therefore, not necessarily to be recorded in its decision."
"25. In these circumstances, the first contention that the order of the Executive Council as well as of the Visitor, being not supported by reasons in writing is unsustainable in the eyes of law, and therefore, rejected."
"31. This Court has no hesitation to record that decision taken in the meeting of Executive Council cannot be faulted with and does not call for interference in the writ proceedings. Issue No. (b) is answered accordingly."
9.The Division Bench clearly said, when there is collective decision of a larger decision making body, consisting of several persons, unless law specifically requires, ultimate resolution passed by such Body is sufficient and it is not necessary that deliberations which took place in the meeting of Body, should also form part of the record or part of the decision. In absence of any such provision, collective decision taken by a body, in our view, has not to be assailed on the ground that decision of such collective body communicated to concerned employee is not a speaking and reasoned order.
10.In our view, where a decision is to be taken by a collective Body of an institution, whether at the first stage or appellate stage, as the case may be, it is the collective intention expressed by all those persons constituting the Body. In such circumstances, requirement of individual reasons to be given by them is neither possible nor permissible and also not required unless it is specifically provided in statute, which to the experience of the Court, we have never found where power to take a decision has been given to a Body constituting several persons. In fact, we are, clearly of the view that decision of a Body constituting several persons is open to challenge on limited grounds, i.e. quorum of meeting was not complete; there was no deliberation in meeting in respect of decision; or there is participation of disqualified person(s) in meeting; or, may be on the ground that there was no agenda for consideration of subject matter on the date of meeting. None of these grounds have been taken in the present case to assail punishment order. Therefor merely because punishment order did not contain any reason, the same cannot be said to be bad in law for the reasons we have already discussed above."
In view of the above settled legal preposition and the findings recorded by this Court that proper enquiry was held by the Enquiry Officer and wherein reasonable opportunity of hearing was provided to the petitioner as well as in absence of any documentary evidence to prove otherwise, it can not be presumed from the recitals of the order dated 19.01.1990 passed by the Appellate Authority that while modifying the punishment of removal to punishment of reversion, the Appellate Authority (Board of Director of the Bank) has not considered the gratuity of charge, defect in the enquiry proceedings, and pleas raised by the petitioner in his appeal.
For the reasons aforesaid, this Court finds no reason to interfere in the order of Appellate Authority dated 19.01.1990.
The writ petition is accordingly dismissed with no order as to costs.
Order Date :- 31.05.2019 Arun/-