The petitioner has preferred this writ petition for issuance of writ of certiorari quashing the orders dated 15th July, 2002 and 18th June, 2002 passed by the first respondent, the disciplinary authority, whereby he has been dismissed from service, and dated 27th December, 2002 passed by the fifth respondent, the appellate authority, dismissing his appeal against the dismissal order.
The material facts which are necessary to decide the matter are that the petitioner was initially appointed as a Clerk/Cashier in Punjab National Bank in the year 1984. He was routinely transferred to the various branches from time to time. He claims that his service record is unblemished.
On 10th February, 1998 the petitioner was transferred from Sipri Bazar Branch to Nagra Branch as Cashier. On 11th August, 1998 the Branch Manager of Sipri Bazar Branch sent a communication to the Senior Manager, Jhansi Branch bringing to his notice that pension files (PPOs) in respect of six pensioners are found missing. The Senior Manager, Jhansi Branch in response to the said communication informed the Branch Manager of Sipri Branch that serious discrepancies have been found in respect of the names mentioned in the communication dated 11th August, 1998 of Sipri Branch. He was requested to enquire the case regarding the irregularities mentioned in the letter. At this stage the petitioner was placed under suspension by an order dated 06th January, 2000.
The petitioner challenged the said suspension order by way of Civil Misc. Writ Petition No. 24738 of 2000 (Anil Kumar Srivastava v. Regional Manager, Punjab National Bank, Katcheri Chauraha, Jhansi and others), which was disposed of by this Court vide order dated 29th May, 2000 with a direction to the disciplinary authority to conclude the disciplinary proceeding within four months and the petitioner was granted an opportunity that in case despite of his co-operation the disciplinary proceeding is not concluded within the stipulated period, he could file a representation for revoking the suspension order.
The disciplinary authority, the Regional Manager, Regional Office, Jhansi issued a charge sheet dated 05th August, 2000, which was duly served upon the petitioner, wherein three charges were levelled against him in respect of the financial misdemeanor. The petitioner was charged to the effect that he has committed gross misconduct in terms of Para 19.5 (d) & (j) of the Bipartite Settlement as amended upto date.
The petitioner again approached this Court challenging the charge sheet by means of Civil Misc. Writ Petition No. 47230 of 2000 (Anil Kumar Srivastava v. Regional Manager, Punjab National Bank, Jhansi). The said writ petition was dismissed by this Court on 21st May, 2001 on amongst other grounds that the petitioner was not co-operating in the enquiry and the bank was granted liberty to proceed ex-parte against him in case he does not co-operate in the enquiry.
Aggrieved by the order of this Court dated 21st May, 2001 the petitioner preferred a special appeal, being Special Appeal No. 705 of 2001. The special appeal was disposed of on 08th August, 2001 and the order of the learned Single Judge was modified to the extent that the Enquiry Officer was directed to afford an opportunity to the petitioner afresh, fix another date and proceed to hear the matter on day to day basis and to conclude the enquiry as early as possible.
The petitioner submitted a reply to the charge sheet on 04th September, 2000. The disciplinary authority appointed Sri A.K. Saxena, Senior Manager (Personnel), R.M.O., Jhansi to conduct the enquiry. Later on, the Enquiry Officer was changed and one Sri R.C. Maurya was appointed as Enquiry Officer.
The petitioner submitted an application before the Enquiry Officer and requested him to furnish certain documents on the basis whereof the payment of pension was made. He also requested the Enquiry Officer for verifying the A.O.F. signature of four account holders of pension by sending the papers to the handwriting expert. By another application he requested to call nine witnesses, who were the bank officials posted in the branch at the relevant period, for their examination and cross-examination. The petitioner has pleaded in the writ petition that out of nine witnesses, whom he wanted to be examined, three officials refused to appear in the enquiry and rest of them also did not turn up in the enquiry.
On 03rd October, 2001 the petitioner submitted an application before the Enquiry Officer demanding some documents relating to four PPOs of pension accounts of Smt. Gaura, Smt. Kamla Bai, Smt. Shyam Bihari and Smt. Saira Begum.
It appears that the Presenting Officer S.A. Sayed forwarded the request of the petitioner to the Senior Branch Manager, who vide his letter dated 03rd October, 2001 communicated the Enquiry Officer that in spite of the best effort the documents desired by the delinquent employee could not be traced as the same are not available. It was also mentioned that these accounts were open eight years back. Some other documents related to the enquiry were also not available in the Branch. A copy of the said communication dated 03rd October, 2001 issued by the Senior Branch Manager is on the record as Annexure-15 to the writ petition.
The petitioner has stated in the writ petition that when nine witnesses refused to depose in the enquiry proceedings, he requested to get himself examined. The said request was also turned down on the ground that the petitioner has submitted a list of nine witnesses in which petitioner's name did not figure. Hence, he was not permitted to depose in the disciplinary proceedings.
It is also stated that apart from nine bank officials, whom the petitioner wanted to summon as witnesses, the petitioner had also produced five witnesses, who were other than bank employees, in his defence and had also submitted their affidavits. The petitioner has stated in paragraph 26 to the writ petition that the Enquiry Officer did not permit him to produce those five witnesses who were present there at the time of enquiry.
In the meantime, the petitioner received a letter from the Branch Manager, Link Branch, Jhansi, wherein it was mentioned that the papers relating to the four pensioners are not available as they were not sent to the said office.
The Enquiry Officer after concluding the enquiry submitted his report on 29th October, 2001. The said report was sent to the delinquent on 08th November, 2001 and was asked to send his comments. On 23rd November, 2001 a detailed reply was sent by the petitioner.
The disciplinary authority was not satisfied with the reply of the petitioner. Accordingly, vide order dated 18th June, 2002 the disciplinary authority proposed to inflict upon him the punishment of dismissal without notice in terms of Para 19.6 (a) of the Bipartite Settlement dated 19th October, 1966 as amended up to date. Vide the same order the petitioner was advised to appear before him on 02nd July, 2002. The disciplinary authority vide its order dated 15th July, 2002 passed the order of dismissal without notice in terms of Para 19.6 (a) of the Bipartite Settlement dated 19th October, 1966.
Aggrieved by his dismissal order, the petitioner preferred an appeal before the fifth respondent which was dismissed by the appellate authority vide order dated 27th December, 2002.
It is stated that in addition to the departmental proceedings, the criminal proceedings were also set in motion by registering an F.I.R. under Sections 409, 420, 467, 468 and 471 I.P.C, which was registered as Case Crime No. 534 of 2001 at Police Station Sipri Bazar, Jhansi. The matter was also referred to the Central Bureau of Investigation, which conducted an investigation in the matter and vide its letter dated 26th July, 2000 informed the Chief Vigilance Officer, Punjab National Bank, New Delhi that in absence of the document like PPO, it was not possible to make further investigation. The Civil Police also conducted investigation and submitted final report on 17th October, 2001, thus the investigation was closed.
The petitioner claims that in the criminal investigation which was conducted by the Civil Police as well as C.B.I. nothing was found against him.
An amendment application, being Civil Misc. Amendment Application No. 134152 of 2002, was moved to incorporate certain grounds and to amend the prayer. This Court has allowed the amendment application vide its order dated 26th April, 2004.
As stated above, the petitioner had submitted two applications dated 25th September, 2001 and 03rd October, 2001. In the first application he requested to summon nine witnesses, all bank officers and manager, for examination, whereas in the second application he requested the enquiry officer to furnish him a copy of the A.O.F. signatures/handwriting of four account holders of the pension and it be examined by the handwriting expert.
It is averred that after the communication was sent to the aforesaid nine witnesses, who were bank officers/employees, out of nine witnesses, three witnesses, namely, Sri H.L. Singhal, Sri S.C. Mishra and Sri B.U. Siddiqui refused to be examined as witnesses. The petitioner states that remaining six witnesses also did not turn up as witnesses, as a result of which all the nine witnesses could not be examined. The evidence of all the nine witnesses were material for the defence of the petitioner. In his another application dated 3rd October, 2001 he demanded the four P.P.Os. of four pension accounts which were the main documents of the enquiry. The Enquiry Officer turned down the request of the petitioner on the ground that the documents demanded by the petitioners are not available. A copy of the communication of the Enquiry Officer is on the record as Annexure-15 to the writ petition.
It is stated that when aforesaid nine witnesses, who were officers or employees of the bank, did not turn up, the petitioner offered to examine himself as a defence witness and in this regard he made an application to the Enquiry Officer. However, the said application/request of the petitioner was turned down by the Enquiry Officer only on the ground that since the petitioner in his earlier application did not mention his name as a witness along with nine witnesses, whom he wanted to examine, he would not be permitted to depose as a defence witness. The petitioner has claimed that apart from those nine witnesses he had also brought five other witnesses whose evidence was material and these witnesses were not bank employees, but the Enquiry Officer did not permit them to be examined although they were present during the enquiry. When the Enquiry Officer did not allow them to give the evidence, the petitioner filed their affidavits as an evidence.
It is stated that the Enquiry Officer submitted his report dated 29th October, 2001 to the disciplinary authority, who issued a show cause notice to the petitioner on 18th June, 2002, wherein it was proposed for dismissal of the petitioner without notice.
The petitioner challenged the said notice dated 18th June, 2002 by means of the present writ petition on 08th July, 2002. On 15th July, 2002 this Court granted four weeks time to the contesting respondents to file a counter affidavit and the next date was fixed on 27th August, 2002.
It is stated that on account of filing of the present writ petition, the first respondent became annoyed with the petitioner and passed an order dated 19th July, 2002, which was sent to him through courier, dismissing him from service. By way of amendment the said order dated 19th July, 2002 has also been challenged by the petitioner in the present writ petition.
A counter affidavit has been filed on behalf of the respondents which is sworn by Sri Hamendra Kumar Kulshreshtha, Senior Manager, Punjab National Bank, Regional Office, Kanpur Road, Jhansi. In the counter affidavit it is stated that the documents demanded by the petitioner have been destroyed by the petitioner, therefore, the same can not be made available to him. It is stated that the petitioner was dealing with the pension accounts at the relevant time and he deliberately prepared forged PPO with a view to defraud the Bank for his personal benefit and in this manner he withdrew and misappropriated a sum of Rs.7,01,605/- and the vouchers were passed by the then Manager in good faith.
It is submitted that the petitioner had demanded over 30 documents and a list of nine witnesses was also handed over to the Enquiry Officer by the Presenting Officer. The Bank found that only 23 papers were relevant which were handed over to the petitioner.
The petitioner subsequently moved another application demanding further documents and he also added the names of twelve more witnesses with a view to delay the proceedings, which was rejected by the Enquiry Officer vide its order dated 11th October, 2001. He produced some witnesses at a later stage on 04th October, 2001 and filed some affidavits on 06th October, 2001.
In the counter affidavit it is also averred that since there was a direction of this Court to decide the matter expeditiously, the Enquiry Officer did not entertain the adjournments sought by the petitioner. It is also stated that the documents sought by the petitioner were not available on the record of the bank, hence the said documents could not be supplied to him. It is stated that the bank can not retain a person in service whose integrity becomes doubtful. It is stated that criminal proceedings are distinct from departmental proceedings as the nature of proof required to prove the offence during the criminal proceedings is beyond all reasonable doubts, whereas in the departmental enquiry strict law of evidence is not applicable. It is further stated that under the provisions of Para 19.3 (c) of the Bipartite Settlement even if an employee is acquitted of the offences by the criminal Court, that is not a bar on the bank to proceed against him in departmental proceedings. In fact, there is no acquittal but only the police has refused to prosecute the petitioner. In the counter affidavit the decision of the Enquiry Officer to turn down the request of the petitioner to cross-examine some of the departmental witnesses has been justified.
A rejoinder affidavit has been filed wherein it is stated that the bank has not conducted fair enquiry as it was already inclined to punish the petitioner by imposing major penalty. In fact, the enquiry was a mere formality. It is reiterated in the rejoinder affidavit that a serious prejudice has been caused to him due to withholding of several important documents. The petitioner has denied the fact that he had destroyed some of the documents. It is stated that those documents were in the custody of the Branch Manager, therefore, the respondents have concocted a story that the petitioner has destroyed the material documents. In fact, the petitioner was transferred from Sipri Bazar Branch to Nagra Branch Jhansi as far back as on 09th February, 1998 and even after his departure from Sipri Bazar Jhansi the respondent-bank kept on making payment to the pensioners. It is stated that on 11th August, 1998 the bank came to know the facts about payment of pension but no first information report was ever lodged against any official of the bank and the petitioner has been made scapegoat in order to save responsible bank officials.
It is further stated that during the course of enquiry no witness has ever alleged about missing of the PPOs but the Enquiry Officer concocted a story about missing of PPOs at its own and shifted the burden on the petitioner. The petitioner has denied the allegations that he had deliberately prepared forged PPO for his personal benefit and withdrawn the amount. It is stated that vouchers and bills were passed by the Manager and it was duty of the Pension Incharge, namely, Sri R.K. Gautam, Sri I.D. Choudhary and Sri N.K. Srivastava to make verification of PPOs verifying the signature and photograph of pension holder, taking of life certificate and undertakings by the pension holders. The petitioner states that all these documents were not in possession of the petitioner and after completing all the formalities of PPOs, the documents were handed over to the petitioner merely for preparation of the pension, only which was done by him and in this way he was not responsible for any irregularity committed by the aforesaid officers. The petitioner has further stated that genuineness or correctness of PPOs was to be examined by the Pension In-charge and the petitioner does not come into picture. It is stated that in fact, the petitioner has prepared the pension in good faith on the basis of PPOs made by the Pension In-charge and further the then Manager, namely, Sri R.K. Gautam, Sri I.D. Choudhary and Sri N.K. Srivastava were equally responsible for passing the vouchers and if it was not correct, nothing was done against those officers. The petitioner has denied the fact that he had sought several adjournments. It is stated that the Enquiry Officer himself had adjourned the enquiry on several dates.
I have heard Sri T.P. Singh, learned Senior Advocate, assisted by Sri Pradeep Chandra and Sri Siddharth Nandan, learned counsel for the petitioner, and Sri R.N. Singh, learned counsel for the respondents-bank.
Learned Senior Counsel appearing for the petitioner submits that the enquiry stood vitiated on account of violation of principles of natural justice; the relevant documents sought by the petitioner were not supplied to him; the petitioner had produced five witnesses, who were present at the time of enquiry, but they were not permitted to be examined on the ground that their names are not in the list of witnesses; the affidavits filed by those witnesses were not considered; the petitioner offered himself as a defence witness but his evidence was not recorded on the sole ground that the petitioner in his list of witnesses did not mention his name as a witness; request for the handwriting expert was not accepted; no financial loss to the bank has been caused as the railways has reimbursed the entire amount of pension; even after the transfer of the petitioner the payment continued to be made to the pensioners; the petitioner was a pension clerk and no action has been taken against the other officers who were responsible for the illegal payment including the Pension Incharge and the Bank Manager.
Elaborating his submissions, Sri T.P. Singh has submitted that the petitioner had moved an application on 25th September, 2001 to the Enquiry Officer for making available Management Exhibits X-6 i.e. account opening forms of the alleged pensioners for getting verification done by the handwriting expert in order to demonstrate that it was not in his handwriting as alleged and proved by the Enquiry Officer. The same request was reiterated by him in his application dated 27th September, 2001. On 28th September, 2001 the petitioner sought the copy of the alleged PPOs forming basis of disciplinary action but no action has been taken thereon by the Enquiry Officer.
Sri Singh further submitted that the petitioner wrote to the Enquiry Officer for examining nine employees/officers of the bank, namely, Sri A.K. Tripathi, RMO Orissa, who at the relevant time was Saving Fund Incharge and had issued cheque book to the disputed account holders; Sri Mukesh Dhingra, posted in Regional Office Ludhiyana, who had opened the account of one of the account holders Sri Shyam Bihari Lal; Sri I.D. Choudhary, the then Pension Incharge, who had opened the account of Saida Begum; Sri S.C. Mishra, who was Senior Manager at Sipri Bazar Branch at the relevant point of time and on whose order during relevant period all the four accounts were opened and pension was started to be disbursed; Sri B. Gopalan, who was the Manager at the time when the petitioner was transferred from Sipri Bazar Branch and who had issued a no objection certificate; Sri B.U. Siddiqui, who was the Senior Manager when the petitioner was posted at Sipri Bazar Branch, in order to demonstrate that no account in question at his instance was opened; Sri H.L. Singhal, who assumed the charge of the Manager after the petitioner's posting and under his direction the pension continued to be disbursed; Sri N.K. Srivastava, who was the Pension Incharge after the petitioner's posting outside and he was the Pension Passing Authority under whose direction the pension was continued to be paid; and Sri S.L. Meena, who was the Manager at Sipri Bazar and used to supervise the pension work during petitioner's absence.
Sri Singh further submitted that on 03rd October, 2001 the petitioner again demanded the disputed PPOs forming basis of the enquiry. In response to the said application the Senior Manager of the bank on the same day had informed the Enquiry Officer that the papers demanded by the petitioner were not available as they are in the consigned files (can Qkbyksa esa). The Senior Manager has also mentioned in respect of the other material documents, which include the register wherein details regarding opening of account by one Kamla Bai were recorded, that the said register is misplaced. In respect of other documents it was mentioned that those documents are not in the consigned files, hence it is not available. It is submitted on behalf of the petitioner that from the aforesaid communication it is evident that the Senior Manager has not mentioned that the relevant documents have been destroyed by the petitioner. In fact, no allegation has been made by the Senior Manager against the petitioner. It is contended on behalf of the petitioner that the petitioner wanted that three Senior Officers, who were also responsible in respect of opening of the new accounts, disbursement of pension and withdrawal of the money, may be examined in the enquiry, but those officers have declined to appear as a witness in the departmental proceeding.
Learned counsel for the petitioner has also drawn the attention of the Court to a communication of the Presenting Officer dated 03rd October, 2001 declining the request of the petitioner to furnish him copies of the PPOs. In his communication the Presenting Officer has not mentioned the fact that the PPOs or any other relevant documents have been destroyed by the petitioner. A copy of the said communication of the Presenting Officer dated 03rd October, 2001 is on the record as annexure-22 to the writ petition. It was submitted by learned counsel for the petitioner that in response to the show cause notice the petitioner has submitted a detailed reply enclosing therewith the Rules regarding the bank and withdrawal of the pension, which has not been followed by the officials of the bank. Sri Singh, learned Senior Advocate, has taken the Court to the reply submitted by the petitioner, which is on the record as annexure-26 to the writ petition, to demonstrate that the petitioner's reply and the material facts, which have been stated in his reply to the show cause notice, have not been adverted to either by the disciplinary authority or the appellate authority. He has also drawn the attention of the Court that the Pension Incharge is the responsible person in whose custody the original PPOs and other pension papers are kept but no action has been taken against him. It is also stated that the petitioner was transferred from Sipri Bazar Branch to Nagra Branch Jhansi but the pension continued to be paid to those four pensioners even after his transfer. It was urged that the petitioner has been made scapegoat. In fact, no action has been taken against the Pension Incharge, the then Bank Manager and other officers, who were also responsible for the payment and withdrawal of the pension.
Sri Singh has placed the enquiry report also to demonstrate that the senior officials of the bank including Branch Manager have abdicated their duty to follow the procedure in respect of withdrawal of the amount only on the flimsy pretext that they had trusted the petitioner and made signatures. Sri Singh has further submitted that the said payment has been made for several years and it was not the case of one time withdrawal, in which the petitioner could have played fraud. It is submitted that no action has been taken against any of the officials who were involved in the illegal payment for the years. The petitioner has been singled out for the disciplinary proceeding. Lastly he urged that the plea of the bank officials that they had signed the relevant papers in good faith cannot be accepted.
As against, the learned counsel for the bank submitted that the petitioner has not pleaded that he was not given any notice of the disciplinary enquiry and the enquiry proceeding was not initiated by the competent authority and he has also not denied service of the charge-sheet. He further submits that the documents could not be supplied to him as one of the charges against him was that to conceal the forgery made by him he had destroyed the PPOs and for the said reason the desired documents could not be supplied to him. He further submits that as regards the submission of the petitioner that he was not granted opportunity to examine himself in defence and his witnesses were not allowed/permitted to be examined as defence witnesses is concerned, it was contended that the petitioner did not avail that opportunity at the appropriate time as he must have examined himself as first witness in the very beginning. It is submitted that the enquiry officer in his report has found him guilty of all the charges mentioned in the charge-sheet.
Learned counsel for the bank has further submitted that there is no violation of the principles of natural justice as the petitioner has been afforded full opportunity. Lastly he submitted that it is true that the bank has not suffered any loss but once it is found that he has illegally withdrawn the money then subsequent making of loss caused by misconduct of an employee or officer does not wipe out the misconduct.
Learned counsel for the respondents-bank has relied on the following judgments:
(i) Nagar Palika, Nataur v. U.P. Public Services Tribunal, Lucknow, (1998) 2 SCC 400;
(ii) U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey and others, AIR 1999 SC 753;
(iii) State Bank of Patiala & ors. v. S.K. Sharma, 1996 (3) SCC 364;
(iv) Damoh Panna Sagar Rural Regional Bank & anr. v. Munna Lal Jain, AIR 2005 SC 584;
(v) State Bank of India & ors. v. Ramesh Dinkar Munde, (2006) 7 SCC 212;
(vi) Dattatray Trimbak Kulkarni v. State Bank of India, Bombay, 1992 LawSuit(Bom) 531: 1993 (1) LLJ 547;
(vii) Arvindkumar Hiralal Mehta v. Bank of Baroda and others, (1993) I LLJ 322 Bom..
I have heard and considered the rival submissions advanced by the learned counsel for the parties and perused the material on record.
The petitioner was a Clerk/ Cashier in the respondent bank. He was served with a charge-sheet, wherein three charges were levelled against him. All the three charges primarily relate to four pension accounts, which were alleged to be opened by the petitioner in respect of four retired employees of the railways. Charge No.1 is in two parts. Since Charge No.1 has a material bearing while determining the issue whether there is violation of the principles of natural justice or not, the said charge needs to be extracted below:
"1) You opened following four pension accounts as detailed below in the pension opening register of the branch :-
From the charges it is evident that one of the principal charges against the petitioner is that four accounts in the names of Smt. Gora Bai, Smt. Kamla Bai, Sri Shyam Bihari and Smt. Shaira Begum were opened on 13th January, 1993, 22nd March, 1993, 03rd April, 1996 and 26th February, 1997, and their account opening forms were filled by the petitioner in his own handwriting. The petitioner wanted to examine those nine officials of the bank who were directly related with the opening of the account, passing of vouchers and payment. The bank did not produce those officials, whose statements were crucial. The request of the petitioner for sending his handwriting for examination by the handwriting expert was also not accepted.
During the course of hearing the Court had directed learned counsel for the bank to produce the original documents to verify the said facts. The bank had produced the original documents.
The petitioner has brought on record by way of a supplementary affidavit the xerox copy of account opening form as annexure-1 to the supplementary affidavit to demonstrate that the form of Smt. Kamla Bai contains her signature, which has been verified by Smt. Manju Lata and Bank Manager Sri R.K. Gautam. It is stated that in his deposition the then Bank Manager Sri R.K. Gautam had admitted his signature. The second account was opened in the name of Smt. Gora, who was introduced by Smt. Mamta, an account holder, and the said form was also verified by Sri R.K. Gautam and the petitioner has not made any endorsement. Similarly, the account of Sri Shyam Bihari Lal was opened on the introduction of Smt. Gora and the signatures have been verified by Sri Mukesh Dhingra. Smt. Shaira Begum has been introduced by Smt. Kamla Bai and her signature has been verified by Sri I.D. Chaudhary. Since the aforesaid statements have a material bearing on the case, for the sake of convenience paragraphs- 6 to 11 of the supplementary affidavit are extracted below:
"6. That Petitioner is filing a writ the photocopy of the account opening form though could be verified from the original record is being annexed and marked as Annexure No. SA 01 to this affidavit.
7. That a perusal of the said form clearly demonstrates that the form of Smt. Kamla Bai contains her signature which has been verified by Smt. Manju Lata and Bank Manger Sri R.K. Gautam which has been admitted by him in his deposition and the Petitioner has nothing to do with it.
8. That the second account has been opened in the name of Smt. Gora who has been introduced by Smt. Mamta, an account holder which has also been verified by Sri R.K. Gautam and no endorsement has been made by the Petitioner.
9. That similarly the account of Shyam Bihari Lal has been opened on the introduction of Smt. Gora the signature, which has been verified by Sri Mukesh Dhingra who has not been examined. The said form also do not demonstrate any role of the Petitioner.
10. That similarly Smt. Shaira Begum has been introduced by Smt. Kamla Bai and her signature is verified by Sri I.D. Chaudhary.
11. That it was only for this purpose which the sole basis of punishing the Petitioner that he wanted the writings on the said forms to be examined by handwriting experts, as no endorsement at all of any kind has been made by the Petitioner and he has no role to play in the opening of the account."
The bank in its supplementary counter affidavit filed in reply to the aforesaid supplementary affidavit of the petitioner has not specifically denied the aforesaid statements. The reply given in Paragraphs 9 to 11 of the supplementary counter affidavit reads as under:
"9. That the contents of the para No. 6 of the supplementary affidavit need no comments.
10. That the contents of the para No. 7, 8, 9, 10 of the supplementary affidavit as stated are wrong and denied. It is stated that the account opening forms were filled in by the petitioner in his own hand writing.
11. That the contents of the para No. 11 of the supplementary affidavit are wrong and denied. It is stated that almost all the vouchers used in payment and withdrawal of money in the said four accounts were prepared by the petitioner in his hand writing as concluded by the hand writing expert in his opinion."
From a perusal of the pleadings as extracted above it is manifest that the bank has not denied the genuineness of the documents annexed with the supplementary affidavit. It has not been stated in the supplementary counter affidavit that those documents are manufactured/ fabricated or not true copies of the original. In absence of any denial to their genuineness the statements made in the supplementary affidavit cannot be ignored since no effective reply has been given in paragraphs- 9 to 11 of the supplementary counter affidavit. From the evasive reply of the supplementary counter affidavit the statements made by the petitioner in the aforesaid paragraphs appear to be correct.
The petitioner in his reply dated 09th July, 2002 in reply to Charge No. 2 has mentioned that the account opening application form was not sent for handwriting expert opinion and the petitioner had made a request to send those forms for examination by the handwriting expert but his request was not accepted by the bank without any justifiable reason. He has clearly denied the fact in his reply that he had not filled the form nor he has introduced any of the account holders. The duty of opening new account is on an authorized officer and not a Class-III employee. He has also stated that on his letter dated 25th September, 2001 in respect of Saving Account No. 17239 the then Senior Manager S.P. Mishra had issued instruction to the petitioner to obtain the cheque book and submit then to Sri Mishra. In compliance thereof, he had obtained two cheque books of the accounts and handed over to the Senior Manager and on the next date he had given those cheque books to the Saving Account Incharge in respect of issuance of cheque books. It is stated that the petitioner had only complied with the direction of the Senior Manager. He has also denied the fact that he knows Smt. Kamla or Smt. Gora Bai nor he has introduced them. The said charge against the petitioner was concocted and false.
After the charge-sheet was served upon the petitioner, he submitted an application dated 27th September, 2001 demanding some documents. A copy of the charge-sheet, which is on the record, indicates that the bank has not enclosed any document along with the charge-sheet nor has mentioned any document in the charge-sheet in support of the charges. A copy of the said application of the petitioner is on the record as annexure-7 to the writ petition. On the same day the petitioner sent a communication to the disciplinary authority, Regional Manager, Punjab National Bank, Jhansi, demanding those documents. A copy of the said communication is annexure-8 to the writ petition. It appears that in respect of one of the applications of the petitioner dated 03rd October, 2001 demanding PPOs and other documents the Senior Manager in his communication dated 03rd October, 2001 addressed to the Enquiry Officer has clearly mentioned in respect of documents MEX-62 D/L-12/255, account opening register of Saving Account No. 14817 and 14944 and four other documents that those papers are not available as they were consigned in some files. As regards the register which contains the details regarding opening of the new account, it was mentioned that the said register is misplaced. This letter does not indicate involvement of the petitioner in destroying the PPOs or misplacing the register. I have carefully perused the enquiry report. In the enquiry report the second part of the first charge that the petitioner has destroyed the original PPOs has not been adverted to. No finding has been recorded on this charge. In fact, the enquiry report, which refers the evidence of the bank's witnesses, does not refer the statement of any of the witnesses, who have stated that the petitioner had destroyed the original PPOs. In absence of any finding regarding the second part of the charge that the petitioner has destroyed the PPOs, the said charge cannot be said to be proved. The part of the Charge No. 1 is interwoven with the issue regarding the violation of the principles of natural justice.
It is a trite law that if the material documents are not furnished to the delinquent, it amounts to violation of natural justice if the delinquent succeeds to prove that in absence of those documents a serious prejudice has been caused to him. In the present case, admittedly the documents demanded by the petitioner have not been furnished. The communication of the Senior Manager to the Enquiry Officer or the communication of the Enquiry Officer declining the request of the petitioner to furnish the documents does not mention the fact that the documents have been destroyed by him.
Therefore, from the aforesaid facts the following facts are established:
(1) Charge against the petitioner for destroying the documents has not been established in the disciplinary proceedings.
(2) The documents, which have material bearing on the case, have not been supplied to the petitioner which has caused serious prejudice to him.
(3) The documents referred to above would have established the allegation in the charge-sheet or innocence of the petitioner.
Pertinently, the petitioner was a Clerk. Sri R.K. Gautam, Sri I.D. Chaudhary and Sri N.K. Srivastava were the Pension Incharge. The material on the record does not indicate that any action has been taken against them. The petitioner in his reply to the show cause notice has alleged that the documents were in the custody of the Pension Incharge and the Manager. The petitioner along with his reply has also submitted the relevant Rules in respect of withdrawal of the pension. His detailed reply has not been considered by the disciplinary authority or the appellate authority. The Enquiry Officer in his report has referred the statement of the bank officers, who were produced by the Presenting Officer in support of the charges. In the enquiry report itself while considering the evidence of MW-1 it is recorded that in his cross-examination he had clarified that the delinquent/petitioner had kept the original PPO in the file but he had manipulated some PPO numbers and had made false entry in the register. It has also been recorded in the enquiry report that the then Branch Manager had approved the payment without verifying the facts on the basis of trust on the petitioner. The relevant part of the evidence of MW-7 Sri R.P. Chaurasiya, which has been considered by the Enquiry Officer, is extracted below:
"...MW-7 us ;g Hkh crk;k fd pwafd vkjksfir deZpkjh LVkQ esEcj gS vkSj gj ckr dk fo'okl fnykrs Fks vr% budk fo'okl djds mudks Hkqxrku dj nsrk jgkA---"
It is not conceivable that when from 14th September, 1992 to 09th February, 1998 these withdrawals were made in almost every month uninterruptedly for six years, no other officer or employee was aware of the said illegality. From a perusal of the original record it appears that in every transaction the procedure provides approval of more than one official/ employee, who verify the amount and various relevant facts, and from a single counter of a clerk the amount cannot be withdrawn without verification by the other officials. It cannot be believed that for such a long time the petitioner alone was responsible for the withdrawal of the amount on the basis of the forged documents. Even if the finding of the Enquiry Officer is accepted that all other officials have passed the bills and vouchers on the blind faith of the petitioner, then it requires that conduct of respondents needs to be commented upon. It clearly demonstrates that the then bank officials have violated the rules and guidelines of the bank in respect of withdrawal and have routinely approved the withdrawals only on the ground of trust. Such a situation cannot be countenanced under the law.
There is no material on the record that any show cause notice was issued to officials/employees for their negligence. No disciplinary proceedings were initiated against any of the officials/employees. Banking system works on the trust of public, therefore, a duty is cast upon every officer and employee to follow the rule/ procedure/ long existing practice scrupulously and without fail. If the officials of the banks have no respect for the rule etc., the system cannot work.
In Bongaigaon Refinery & Petrochemicals Ltd. And others v. Girish Chandra Sarma, (2007) 7 SCC 206, the Supreme Court had the occasion to consider the similar issue, when a single employee was targeted for submitting a preliminary report regarding price of land. He was found guilty for not assessing the reasonable price. The Supreme Court found that in decision making process, several other authorities and officials were involved, but the respondent therein alone was proceeded against. The relevant part of the judgment is extracted below:
"21. So far as the legal proposition as contended by the learned Additional Solicitor General with regard to appreciation of evidence is concerned, there is no quarrel that the Courts cannot sit as appellate authority over the domestic enquiries but in the present case what appears to us is that the respondent has become a scapegoat in order to make someone responsible for no fault of his. He alone was targeted for the simple reason that he submitted preliminary report where the price of the land proposed by the land owner was Rs.30 lakhs. But this was tentative price given by the land owner and the authorities negotiated with the land owner and she quoted the price at Rs.61 lakhs and thereafter they again negotiated with her. The background was fully known to Shri S.C.Goswami, General Manager (Marketing) who was the Chairman of the Price Negotiation Committee and even otherwise also just because that one of the Officers has submitted a preliminary report intimating the price given by the landowner as Rs.30 lakhs for 7 acres of land, that does not bind the land owner to sell the land for similar price, later on if she wriggles out, for which the officer of the appellant company who had inquired from the land owner cannot be found guilty. The respondent cannot be held responsible for the same and more so, in the present case the price has been negotiated by the Price Negotiation Committee. Therefore, simply because a preliminary report was submitted by the respondent and all the three Committees in which he was a member along with others cannot disown their liability. If the respondent is targeted then all the members of the Committees are equally responsible. Therefore, such finding given by the enquiring authority cannot be countenanced. Similarly, so far as the appointment of Shri I.Sharma is concerned, the respondent alone was not responsible."
Bearing in the mind the said principle, the Court finds that submission of learned Senior Counsel merits acceptance. As discussed above, only the petitioner has been picked up for initiation of disciplinary proceeding. The officer and employees who had endorsed the voucher for payment and approval by the Manager cannot be absolved on the ground that they signed the paper without any verification on the ground of trust imposed by them on the petitioner.
Additionally, from the report of the Enquiry Officer also it is evident that he has ignored several material evidence on the record and his report suffers from perversity as one of the material facts that the then Senior Manager Sri S.P. Misra has passed an order for issuance of the cheque book in respect of two pensioners and those cheque books were submitted to the Senior Manager, who had given it to the Incharge of the Saving Account. The petitioner has taken a defence that he had complied with the order of the Senior Manager in respect of issuance of the cheque book.
Insofar as submission of learned counsel for the petitioner that there was violation of the natural justice as the petitioner was not permitted to got himself examined is concerned, I find sufficient force in the said submission. The petitioner was not permitted to give evidence in his defence only on amongst other grounds that firstly, he had not mentioned his name when he had given the list of his witnesses and secondly, he ought to have examined as a first defence witness. In my view, these hypertechnical pleas of the bank cannot be accepted. If the petitioner wanted to be examined himself as defence witness, he ought to have been allowed to give his evidence and it was open to the bank to cross-examine him. However, denying him opportunity to examine himself in defence has vitiated the enquiry. Moreover, the five witnesses, who were present at the time of enquiry, were also not permitted to be examined on totally flimsy ground. The petitioner had submitted the affidavits of those witnesses which have also not been considered by the disciplinary authority and the appellate authority. The Enquiry Officer was not justified to decline the defence evidence. No plausible reason has been given by the Enquiry Officer for the said decision. Thus, the enquiry has also suffered from a serious flaw by not permitting the petitioner to examine himself as a defence witness and also other witnesses, and on this ground also the enquiry has vitiated.
Suffice it to say that rule of natural justice and duty to be fair have been dealt with elaborately in catena of decisions. There are unbroken line of authorities to the effect that principle of natural justice is a constituent feature of Article 14 of the Constitution of India. This aspect has been considered by the Supreme Court in service matter also. Reference may be made to the judgment of the Supreme Court in the case of D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259, wherein the principles laid down in Smt. Maneka Gandhi v. Union of India and another, AIR 1978 SC 597, have been applied.
It is not necessary to multiply authorities in view of the authoritative pronouncement of the Supreme Court in similar matters.
Insofar as the third charge is concerned, from the material on record it appears that those four pensioners were employees of the railways. It is also on the record that the railways has reimbursed the entire amount. From the charges, enquiry report, the impugned orders and the counter affidavit it appears that the bank has not brought all material facts on the record. It is not mentioned that those four pensioners were railways employees and how the bank has suffered loss if an illegal withdrawal has been made by the petitioner. There is no first information report or complaint by the four pensioners that their amount has been illegally withdrawn by the petitioner or the bank employee. From the entire material on the record it appears that the bank has concealed some facts regarding the four pensioners just to save skin of other bank officials and only on the basis that handwriting expert of the bank has found some of the handwriting on some papers of the withdrawal to be of the petitioner, the petitioner has been found to be guilty.
It is significant to mention that the matter was also referred to the C.B.I. for investigation. The official of the C.B.I. in his communication dated 26th July, 2000 to the Chief Vigilance Officer, Punjab National Bank, Head Office, New Delhi has clearly mentioned that in the light of non-availability of the basic document like PPO file and vouchers and the amount involved being too meager, the investigation of the case cannot be taken by the CBI and it was advised to take appropriate action with the help of the local police. The communication of the Superintendent of Police, CBI/ SPE, Lucknow is on the record as annexure-29 to the writ petition. The said document has not been denied specifically in the counter affidavit. The matter was again investigated by the police and on the basis of FIR No. 51 of 2001 dated 17th October, 2001, Case Crime No. 534 of 2001, under Sections 409, 420, 467, 471 I.P.C. was registered at Police Station Sipri Bazar Jhansi. However, after investigation the police has recorded that the bank has not furnished any document to the police for investigation, hence a final report has been submitted.
It is true that in the departmental proceeding the finding of the criminal proceedings is not relevant even if a criminal Court acquits the accused. But in the present case the aforementioned two documents have a material bearing. As discussed above, the second part of Charge No. 1 that the petitioner has destroyed the PPOs has not been established. The communication of the CBI and the police indicates that the bank has not furnished any document in the investigation. If the original documents are not available, the finding recorded by the Enquiry Officer cannot be relied safely. The Bank has also not furnished those documents to the petitioner. In view of the above discussion, I find that the enquiry stood vitiated on the ground of serious breach of principle of natural justice as neither the petitioner was furnished material documents nor he was permitted to adduce his evidence. Moreover, as discussed above, the findings of the Enquiry Officer also suffer from perversity and charges have not been proved.
After careful perusal of the enquiry report, I have no hesitance to hold that the enquiry officer did not conduct the enquiry with open mind. He did not permit the petitioner to get himself examined on wholly non-existent ground.
In Kuldeep Singh v. Commissioner of Police and others, (1999) 2 SCC 10, the Supreme Court has aptly observed regarding role of an enquiry officer in departmental proceedings, as under:
"42. The enquiry officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles of natural justice as also that of "reasonable opportunity", contemplated by Article 311(2) of the Constitution. The "bias" in favour of the Department had so badly affected the enquiry officer's whole faculty of reasoning that even non-production of the complainants was ascribed to the appellant which squarely was the fault of the Department. Once the Department knew that the labourers were employed somewhere in Devli Khanpur, their presence could have been procured and they could have been produced before the enquiry officer to prove the charge framed against the appellant. He has acted so arbitrarily in the matter and has found the appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some superior officer who perhaps directed "fix him up"."
The orders of the disciplinary authority and the appellate authority have not considered these aspects, and without application of mind and without adverting to the detailed reply submitted by the petitioner in response to the show cause notice both the authorities have passed mechanical orders. The orders of the disciplinary authority and the appellate authority indicate that simply the findings of the Enquiry Officer have been accepted by the authorities without proper application of mind. The reply submitted by the petitioner in response to the show cause notice has not been adverted to at all by the disciplinary authority while imposing major punishment. Thus, the findings recorded by the disciplinary authority also suffer from perversity. Similarly, the appellate order has merely affirmed the findings of the disciplinary authority without adverting to the grounds taken by the petitioner in his memo of appeal.
The law is too well settled in respect of interference in the matter of departmental proceedings under Article 226 of the Constitution that it does not bear repetition. Ordinarily the High Courts would not interfere with the findings of fact recorded in the disciplinary proceedings. The Court cannot sit in appeal over those findings and assume the role of appellate authority. But the power of judicial review can be exercised unhesitatingly if the Court is satisfied that by the finding recorded at the domestic enquiry holding guilty the delinquent suffers from perversity or the Court finds that there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man. A finding can be said to be perverse inter alia if it is based on no evidence or evidence which was wholly unreliable or a material evidence has been ignored or an inadmissible evidence has been taken into consideration. Reference may be made to some of the root authorities of the Supreme Court in State of Andhra Pradesh and others v. S. Sree Rama Rao, AIR 1963 SC 1723; Khem Chand v. Union of India, AIR 1958 SC 300; State of U.P. and another v. Om Prakash and others, AIR 2006 SC 3080; and, K.L. Tripathi v. State Bank of India and others, AIR 1984 SC 273.
It is a trite law that if the Court finds that there was defect in the enquiry, the Court may quash the order and remit the matter back to the disciplinary authority at the stage where the error has crept in. But in the present case, in my view, remitting the matter back for fresh enquiry will not serve the cause of justice in the peculiar facts and circumstances of this case for the following reasons:
(1) Admittedly the material documents including PPOs are not available with the bank, hence no effective enquiry can be conducted in absence of those documents.
(2) The matter is pending in this Court for more than 16 years. Hence, remitting the matter back to the Enquiry Officer will not serve any purpose at this stage when the petitioner is at the edge of retirement.
(3) The bank has not taken any action against the other officials & employees, who were also negligent and alleged complicity in the entire matter.
(4) The Court has analysed the evidence on record and found that the charges against the petitioner are not proved.
As regards the judgments relied on by the respondents, I have carefully perused those judgments. They are distinguishable on facts. There cannot be any quarrel to the proposition of law laid down in the aforesaid cases. Those cases deal with the violation of principle of natural justice. In the present case, in addition to violation of principle of natural justice the Court also finds that the enquiry report is perverse as the charges are not established. For the reasons mentioned above, the charges are not proved.
The Supreme Court in the case of M.V. Bijlani v. Union of India and others, (2006) 6 SCC 88, has considered at length the jurisdiction of the Court under Article 226 of the Constitution in respect of the disciplinary proceeding. Paragraphs 25 and 26 of the judgment are in the following terms:
"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.
26. The report of the enquiry officer suffers from the aforementioned vices. The orders of the disciplinary authority as also the Appellate Authority which are based on the said enquiry report, thus, cannot be sustained. We have also noticed the way in which the Tribunal has dealt with the matter. Upon its findings, the High Court also commented that it had not delved deep into the contentions raised by the appellant. The Tribunal also, thus, failed to discharge its functions properly."
In the said case the Supreme Court did not remit the matter back to the disciplinary authority as he had not reached at the age of superannuation but has directed reinstatement with 50% of the back wages. Paragraph-28 of the judgment reads as under:
"28. The appeal is, therefore, allowed. The consequence of the said order would have been to remit the matter back to the disciplinary authority. We, however, do not intend to do so as the charges relate to the year 1969-70. The appellant, due to pendency of these proceedings, has suffered a lot. He is, therefore, directed to be reinstated in service, if he has not reached the age of superannuation. However, keeping in view the fact that he has not worked for a long time, we direct that he may only be paid 50% of the back wages. He is also entitled to costs of this appeal. Counsel's fee assessed at Rs 5000."
For the reasons recorded herein-above and considering peculiarity of the case, the Court finds that the impugned orders dated 18th June, 2002, 15th July, 2002 passed by the disciplinary authority and the order of the appellate authority dated 27nd December, 2002 are unsustainable and are set aside. The petitioner is reinstated in service. He is out of job since 2002. He has challenged the order of dismissal and that of the appellate authority in the year 2002 and the writ petition remained pending for the last more than 16 years, for which the petitioner cannot be blamed. Hence, in my view, the ends of justice would be met if the petitioner is paid 50% of his back wages. He shall be deemed to be in service with all consequential benefits except the back wages, which will be given as indicated above.
Accordingly, the writ petition is allowed. No order as to costs.
Date :- 24th August, 2018 Faridul/SKT/-