1. The petitioner has approached this court challenging the order dated 11.06.2005 passed by the respondent no.5 by means of which the petitioner has been compulsorily retired from service by way of punishment after departmental enquiry and the order dated 24.02.2006 by means of which the departmental appeal of the petitioner against the punishment order has been rejected. The petitioner has further prayed for a direction to the respondents to allow the petitioner to work and continue on the post of Branch Manager of Lucknow Chhetriya Gramin Bank ignoring the aforesaid order.
2. The brief facts of the case for adjudication of the present writ petition are that the petitioner was appointed as an officer in Shrawasti Gramin Bank, Bahraich in the month of October, 1989. In due course of time he was promoted to the post of Manager Scale-II. In the month of June, 1998 he was posted as Manager in the Mahasi Branch of the bank where he continued to work till april, 2002 when he was transferred to Chafariya Branch of the bank. An Inspector of the bank inspected the Mahasi Branch on 08.06.2002 and detected several irregularities committed in the bank. One Smt. Badrun Nisha had made a complaint to the Manager that a sum of Rs.2806 (correct figure is 2000) deposited by her had not been shown in the ledgers maintained in the bank and there were difference in the entries of the passbook. A similar complaint was made on 12.06.2002 by one Shri Ghasite stating that he had come to know that the money deposited by him had not been entered in the records of the bank though it was entered in the passbook and there upon he has lost faith in the bank. On 08.6.2002 the Clerk-cum-Cashier of the bank Shri Bal Mukund Trigunayat made statement that the work of parallel banking was being done in the bank for the last two years in collusion with the Ex-Manager- Shri Bal Kumar Mishra. The class-IV employee Shri Navrang Kishor Tiwari also made an statement on 11.06.2002 before the then Chairman pointing out certain irregularities committed by the petitioner. During posting of the petitioner as Manager in the Mahasi Branch there were only three members in the staff; the petitioner- Branch Manager, Shri Bal Mukund Trigunayat- Clerk-cum-Cashier and Shri Navrang Kishor Tiwari- a Class-IV employee (messenger).
3. In view of aforesaid irregularities came to light the petitioner was suspended by means of the order dated 12.06.2002 and the disciplinary proceedings were instituted against the petitioner. The petitioner, being aggrieved by the suspension order dated 12.06.2002, had filed Writ Petition No.934 S/B of 2002 which was dismissed on 06.08.2004 on the statement of the counsel for the bank that the enquiry against the petitioner has already been completed and the final order would be passed within two weeks.
4. The respondent no.6, who was posted as Area Manager of the bank, Kaisarganj, District- Bahraich at that time was appointed as Inquiry Officer. A charge-sheet dated 04.07.2002 containing three charges was issued by the respondent no.3 and served on the petitioner. The petitioner submitted his reply dated 30.12.2002 to the charge-sheet. Thereafter the enquiry was conducted by the Inquiry Officer and the enquiry report dated 08.09.2003 was submitted in which the charge No.1 and 2 were found completely proved against the petitioner and the charge No.3 was found partially proved. A show cause notice, annexing a copy of the enquiry report, was issued to the petitioner calling his explanation. The petitioner submitted a detailed reply dated 02.04.2004. After considering the reply of the petitioner the punishment order dated 11.08.2004 was passed against the petitioner awarding the major penalty by retiring him compulsorily from the service.
5. The petitioner preferred an appeal on 26.08.2004 before the Board of Directors i.e respondent no.2. The said appeal was duly considered and allowed by means of the Resolution dated 12.01.2005 which was communicated to the petitioner by means of the letter dated 21.05.2005 informing to the petitioner that he has again been afforded opportunity of defence and accordingly he was allowed 15 days time to submit his written defence alongwith evidence. In response thereof the petitioner submitted that he had nothing further to say in his defence in view of defence taken earlier in the reply of the charge-sheet and enquiry report dated 30.12.2002 and 02.04.2004 respectively.
6. He submitted a letter dated 30.05.2005 to the effect that he had already submitted reply in accordance with law and the regulation and in view of the order passed by the Board in his appeal, asking for again submitting the defence is not in accordance with rules and requested for his reinstatement. It appears that thereafter he made an application on 09.06.2005 for providing a copy of the order of the Board but the same was not provided. On the basis of reply of the petitioner and material available on record the order dated 11.06.2005 was passed by means of which the petitioner has been awarded a major penalty of compulsory retirement from service in accordance with the Regulations.
7. The petitioner again preferred an appeal against the punishment order to the Board of Directors on 21.06.2005. Thereafter the petitioner submitted reminders dated 22.08.2005 and 08.09.2005 and since no decision was taken the petitioner preferred a Writ Petition No.2022 (S/B) of 2005 before this court challenging the order dated 11.06.2005 passed by the respondent no.5 in his capacity as Chairman, Shrawasti Gramin Bank, Bahraich. After filing of the writ petition the appeal of the petitioner was rejected vide order dated 24.02.2006 which was informed to the petitioner by means of the letter dated 27.02.2006 but the order passed on appeal was not communicated. Therefore the petitioner not pressed the said writ petition with prayer for liberty to file fresh petition which was allowed vide order dated 19.04.2006. Thereafter the petitioner has preferred the present writ petition challenging the punishment order dated 11.06.2005 and the appellate order dated 24.02.2006 with prayer to quash after summoning the original of the same as it was not served to the petitioner.
8. A counter affidavit has been filed on behalf of the respondents no.1 to 4. Another counter affidavit has been filed by the respondent no.5 adopting counter affidavit of the respondent no.1 to 4. The respondent no.6 has also filed counter affidavit adopting the counter affidavit of respondents no.1 to 4 and further stating that he had worked in the best interest of the bank and in accordance with the rules and he was never biased against the petitioner while discharging his duties as such. The petitioner has filed the rejoinder affidavits.
9. The Shrawasti Gramin Bank alongwith others were amalgamated in Lucknow Chhetriya Gramin Bank on 01.03.2006. Thereafter Lucknow Chhetriya Gramin Bank and Triveni Chhetriya Gramin bank were amalgamated into single regional rural bank namely Allahabad U.P. Gramin Bank with Head Office at Banda vide notification dated 02.03.2010. Consequently an application for impleadment was filed for impleading Allahabad U.P. Gramin Bank and its authorities which was allowed by means of the order dated 24.07.2012 and the respondents no.7, 8 and 9 were impleaded. The notices were issued and deemed sufficient.
10. Heard, Shri Ram Prasad Dwivedi, learned counsel for the petitioner and Shri Asit Kumar Chaturvedi, learned counsel for the respondent assisted by Shri Rupesh Kumar, Advocate.
11. Learned counsel for the petitioner submitted that the Area Manager of the bank, Kaiserganj, District- Bahraich i.e respondent no.6; Shri J.P. Verma was appointed the Inquiry Officer who was immediate superior officer of the petitioner and was the over all supervising and controlling authority of the branch in question therefore his appointment was not legal as he was responsible for functioning of the branch and was regularly inspecting and issuing necessary directions from time to time about the functioning of the said branch. Therefore being biased he made every effort to get the petitioner punished.
12. On the contrary the respondents have submitted that this plea was never taken during course of enquiry therefore in paragraph 20 of the counter affidavit it has been specifically pleaded that now it is not available to the petitioner. It was further submitted that the respondent no.6 was the Area Manager of that very area within which as many as 30 branches were functioning and he always coordinated the work of all those branches and he is an officer of equal rank to the petitioner who had no controlling power. He was not concerned with the day to day working of the branch being Area Manager and he was concerned only with the departmental activities of the branches. He was appointed as an Inquiry Officer by the Chairman of the bank and conducted the enquiry in accordance with the law therefore the allegations of biased is misconceived and not tenable and there was no bar in appointing him the Inquiry Officer. To which the petitioner has stated that the enquiry proceeding is vitiated in view of the statement of the respondents that the Inquiry Officer was an officer of the equal rank as compared to the petitioner because the service jurisprudence clearly provides that any enquiry is conducted by the officer at least one rank higher to the incumbent against whom the enquiry is to be conducted and only in exceptional circumstances when no such officer is available, an officer of equal rank but higher in pay-scale can be appointed as Inquiry Officer. But he reiterated that the Area Manager of the Bank was supervising and controlling authority of the functions of the branch in question.
13. Service Regulation 40 of the Shrawasti Gramin Bank (Officers and Employees) Service Regulations, 2000 as reproduced in paragraph 17 provides that the enquiry under Regulation 38 and the procedure with the exception of the final order, may be delegated by the competent authority to an officer who is senior to the officer against whom the proceedings are instituted and in the case of an employee to any officer, provided that the competent authority may in his discretion nominate any officer working in the Bank including those deputed from other institutions. The Regulations 40 is extracted as under:-
"40. Delegation of Power:- The enquiry under Regulation 38 and the procedure with the exception of final order, may be delegated by the Competent Authority to an officer who is senior to the Officer against whom the proceedings are instituted and in the case of an employee to any Officer.
Provided that the Competent Authority may, in his discretion, nominate any Officer working in the Bank, including those deputed from other institutions, to conduct the enquiry."
14. In view of above, this court is of the view that there was no illegality or error in appointing the Area manager as Inquiry Officer, who was admittedly the supervising and controlling authority of the branch in question. The enquiry can not be said to be initiated merely because it was conducted by the supervising and controlling authority of branch including other branches in absence of any specific allegation of bias and objection during enquiry.
15. The Hon'ble Apex Court in the case of Cantonment Executive Officer & Another Vs. Vijay D. Vani; (2008) 12 SCC 230 has held that "Question of bias is always the question of fact. The Court has to be vigilant while applying the principle of bias as it primarily depends upon the facts of each case. The court should only act on real bias not merely on likelihood of bias."
16. The next submission of the learned counsel for the petitioner was that the allegation of parallel banking was on Shri Bal Mukund Trigunayat- Clerk-cum-Cashier and not on the petitioner therefore a common enquiry should have been conducted under Regulation 41 and in any case before the conclusion of enquiry against Shri Bal Mukund Trigunayat the petitioner could not have been punished. It has been controverted by the respondents and it has been submitted that the same Inquiry Officer has conducted the enquiry against all the three employees and there is no bar that during pendency of enquiry against the one of the employees no decision can be taken against the other employee.
17. The enquiry has been concluded in which the charges have been found proved. Regulation 41 provides that notwithstanding anything contained in these Regulations, if two officers in different grades or an officer and an employee are involved jointly in an incident and disciplinary proceedings are sought to be instituted against both of them and the Chairman is of the opinion that having regard to the facts and circumstances of the case, the competent authority in respect of both the officer and employee should be the same, the Chairman may direct that the Competent Authority in respect of the officer shall be the Competent Authority in respect of both the officer and employee involved and a common enquiry shall be held into the charges against both of them and the delegation of power to enquire under Regulation 40 and the procedure, with the exception of the final order. Therefore it is in the discretion of the Chairman, having regard to the facts and circumstances of the case, to order for a common enquiry therefore this court is of the view that unless a decision is taken by the Chairman in this regard there is no illegality or error in holding the enquiry separately. Particularly when all the three enquiries were being conducted by the same Inquiry Officer and the said plea was not raised during enquiry.
18. Further submission of learned counsel for the petitioner was that an FIR was lodged into the allegations levelled against the petitioner in which a final report was submitted by the police against the petitioner. The protest application filed by the respondent-bank was rejected by the learned Chief Judicial Magistrate on the ground that no evidence is available against the petitioner therefore the petitioner could not have been punished departmentally with the major penalty of compulsory retirement. In response, the respondents have stated that a criminal revision was filed by the bank against the order of the learned Chief Judicial Magistrate which is still pending and nothing has been brought before this court to show the outcome of the revision.
19. It is settled proposition of law that the criminal proceedings and departmental proceedings are different. In the criminal proceedings, the charges are to be proved beyond reasonable doubt while in the departmental proceedings the charges are to be proved on the preponderance of evidence. Therefore exoneration of the petitioner at the stage of investigation in criminal proceeding can not debar the department / bank from holding the enquiry and passing the punishment order against him. The position may have been different in case the criminal trial would have been held and the petitioner would have honourably been exonerated and acquitted after hot contest by the department. Therefore this court is of the view that the petitioner is not entitled for any benefit on the ground of submission of the final report against the petitioner and rejection of the protest application. The criminal revision against the same was pending and outcome of the same was not brought before this court.
20. The Hon'ble Apex Court in the case of Commissioner of Police, New Delhi Vs. Narender Singh; (2006) 4 SCC 265 has held that :- "13. It is now well settled by reason of a catena of decisions of this court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed."
21. One of the submissions of learned counsel for the petitioner was that Shri Bal Mukund Trigunayat- Clerk-cum-Cashier had submitted an affidavit, a copy of which has been annexed as Annexure No.4 to the writ petition, in which he had owned the responsibility of parallel banking and stated that the petitioner was neither involved in it nor he was having the knowledge of it. On the other hand he had stated before the Chairman and the Inquiry Officer that it was being done with the help of the petitioner which was also considered by the Inquiry Officer and since contrary statements were made by him therefore it was not found to be considered. The class-IV employee Shri Navrang Kishor Tiwari had also pointed out certain irregularities committed by the petitioner.
22. Learned counsel for the petitioner relying on the judgment of Hon'ble Apex Court in the case of Rajasthan State Road Transport Corporation and Others Vs. Babu Lal Jangir; AIR 2014 SC 142 submitted that the petitioner could have been compulsory retired only after considering entire service record. It is not applicable on the facts and circumstances of the present case because in the present case the petitioner has been retired compulsorily as a measure of punishment after enquiry in accordance with the concerned regulations. While the said judgment is in regard to a rule of compulsory retirement by giving three months notice in the interest of corporation.
23. The learned counsel for the petitioner further submitted that after enquiry the punishment order dated 11.08.2004 was passed against the petitioner awarding him major penalty of compulsory retirement. The petitioner preferred an appeal to the Board of Directors against the same on 26.08.2004 raising several grounds. The appeal was allowed and the matter was remitted back to the appointing authority to reconsider a fresh. In pursuance thereof the petitioner was asked to submit his written defence vide letter dated 21.05.2005 alongwith evidence if any before the Chairman within 15 days. But neither the copy of the order passed in the appeal was provided to the petitioner nor the contents and date of the said order was informed to him despite the petitioner's request, consequently he could not submit a proper defence and reiterated his defence submitted earlier.
24. On the contrary the respondents have submitted that Resolution of the Board of Directors is not communicated and therefore the decision of the Board was informed to the petitioner by means of the letter dated 21.05.2005 and he was afforded opportunity to submit his written defence alongwith evidence. In response therefore the petitioner submitted the letter dated 30.05.2005 in which he had not demanded the copy of the order and the contents. The said letter indicates that the petitioner was having the knowledge of the order passed by the Board of Directors. The perusal of the letter dated 21.05.2005 indicates that the petitioner was informed that the concerned appeal of the petitioner against the punishment order dated 11.08.2004 was considered by the Board of Directors and in pursuance of the decision of the Board of Directors the petitioner is being afforded again the opportunity of defence and 15 days time was granted to submit written defence alongwith evidence. But admittedly the grounds on which the appeal was allowed and the matter was remitted back was not communicated to the petitioner. Therefore this court is of the view that the petitioner was not in a position to put his proper defence and the affording opportunity to the petitioner was nothing but an eye wash. Merely because the petitioner had not demanded the copy of order and contents by means of letter dated 30.05.2005, it can not be said that he had knowledge of the order passed by the Board of Directors while the same was demanded by him by means of letter dated 09.06.2005.
25. The Resolution dated 12.01.2005 by means of which the appeal of the petitioner was allowed has been brought on record by the respondents no.1 to 4 alongwith their counter affidavit / objections to the affidavit in support of the application for direction to the respondents which indicates that there was difference of opinion between the Directors. One of the Directors was of the opinion that enquiry report is one sided and imaginary, the other had stated that the principles of natural justice have not been followed and the enquiry report is based on the personal presumptions of the Inquiry Officer and the fact of exoneration of the petitioner by the learned Chief Judicial Magistrate has not been considered and the Chairman had also recorded that it seems that principles of natural justice had not been followed and the enquiry report has been submitted in biased and arbitrary manner and concluded that the punishment order should be quashed and proceedings be remanded to appointing authority to reconsider the matter after considering facts and circumstances of the case and evidences produced before him giving opportunity to appellant. The appeal was allowed and the departmental proceedings were remanded to the Chairman of the bank to decide the matter in view of observations made in the Resolution.
26. The punishment order dated 11.06.2005 was passed mentioning that the petitioner was afforded opportunity but he informed that he has to say nothing except what has been submitted by him earlier therefore the record of enquiry was considered and the order was passed holding that there had been no breech of principles of natural justice and taking lenient view the petitioner was compulsorily retired. The petitioner had preferred an appeal dated 21.06.2005 to the Board of Directors raising several pleas including that the decision of the appellate authority dated 12.01.2005 which was never provided to the petitioner despite repeated request so that he could not prepare his defence in accordance with the directions issued by the appellate authority. The appeal has been rejected by the Board of Directors in its meeting held on 24.02.2006, a copy of which has been annexed as annexure no.5 to the counter affidavit / objections on behalf of the respondents no.1 to 4. But the resolution / order was not communicated to the petitioner. The perusal of resolution / order indicates that there were contrary views of the Directors in respect of the punishment order passed by the Chairman against the petitioner but there is no consideration of the grounds of appeal and the reasons for rejection.
27. The Hon'ble Apex Court in the case of Oriental Bank of Commerce & Another Vs. R.K. Uppal; (2011) 8 SCC has held that it is true that the appellate authority must record reasons in support of its order to indicate that it has applied its mind to the grounds raised but it is not the requirement of law that an order of affirmance by the appellate authority must be elaborate and extensive. Brief reasons which indicate due application of mind in the decision making process may suffice.
28. The Hon'ble Apex Court in the case of Union of India versus Mohan lal Capoor and others; 1973 (2) SCC 836 has held that the reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind was applied to the subject matter for a decision whether it was purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached.
29. The Hon'ble Apex Court in the case of Raj Kumar Mehrotra versus State of Bihar and others; 2006 SCC (L & S) 679 has held that passing of the impugned order without assigning reasons is not sustainable.
30. In view of above, this court is of the view that the impugned order / resolution dated 24.02.2006 is not sustainable in the eyes of law and liable to be quashed with direction to the appellate authority to reconsider the appeal of the petitioner in accordance with law.
31. The writ petition is partly allowed. The appellate order / resolution dated 24.02.2006, a copy of which has been annexed as annexure no.5 to the counter affidavit filed by the respondents no.1 to 4, is hereby quashed. The competent authority / Board of the respondents is directed to reconsider the appeal of the petitioner in accordance with law and pass a reasoned and speaking order within a period of two months from the date of production of certified copy of this order and communicate to the petitioner. No order as to costs.