Court No. - 38
Reserved On 18.05.2018 Delivered On 31.05.2018
Case :- WRIT - A No. - 21115 of 2011
Petitioner :- Brijendra Pal
Respondent :- The Chairman,Aligarh Gramin Bank & Others Counsel for Petitioner :- D.S.M. Tripathi,Ashutosh Mani Tripathi,D.S.Tripathi,Nitin Kumar Agrawal
Counsel for Respondent :- C.B. Gupta,Amrish Sahai,S.C.,S.N.Verma,Yashwant Varma
Hon'ble Abhinava Upadhya,J. Hon'ble Abhai Kumar,J.
(Delivered by Hon'ble Abhai Kumar, J.)
This petition was preferred challenging the impugned order dated 26.4.2007 passed by respondent no. 1/Chairman, Aligarh Gramin Bank now Shreyas Gramin Bank whereby the petitioner was found guilty of the charges levelled as well as the impugned order dated 20.7.2007 passed by respondent no.2/Board of Directors, Aligarh Gramin Bank now Shreyas Gramin Bank whereby appeal preferred against the order dated 26.4.2007 has been dismissed.
The petitioner was employee of Aligarh Gramin Bank. He had joined his services in the year 1985. Later on Aligarh Gramin Bank and other banks merged and were named as Shreyas Gramin Bank. At the time of disciplinary action, petitioner was employee of Shreyas Gramin Bank. While he was posted as Officer Grade - I in the year 2005, chargesheet was served upon the petitioner on five counts. After enuqiry, he was found guilty of the charges under Regulation 17 & 19 read with Regulation 38 of the Shreyas Gramin Bank (Officers and Employees) Service Regulation, 2006. An appeal was preferred to the Board of Directors of the Bank and the same was dismissed. A writ petition was also preferred by the petitioner in the year 2007 stating therein that appeal of the petitioner is not being disposed of and the petition was decided on 14.7.2010 with the direction that if the appeal is still pending and has not been disposed of the same shall be heard and decided within two months from the date of production of a certified copy of this order.
Although, in this petition it was averred that order of dismissal of appeal was never communicated to the applicant prior to 29.3.2011 but later on this assertion in paragraph 33 of the petition was got deleted by the petitioner and it is being admitted that service of appellate authority order was communicated to the petitioner vide letter dated 14.8.2007 and appeal was decided on 20.7.2007. At the time of passing of the order by this Court in the above referred writ petition no. 28231 of 2007, appeal was not in existence and has already been decided. After the disposal of the above referred writ petition, a further representation was moved by the petitioner before the appellate authority for deciding the appeal whereas no such appeal was pending in that case.
On the basis of arguments put forward by the parties, before entering into the merit of the case, it is to be observed as what is criteria or jurisdiction of this Court while dealing with the service matter regarding the punishment awarded to the employee after enquiry. It is apparently clear by the pronouncement of the apex court as well as this Court that a writ court cannot sit as an appellate authority and jurisdiction under Article 226 of the Constitution is very limited and in case it is found that enquiring authority or disciplinary authority has passed the order upon some evidence and some material on record that is necessary to arrive at a conclusion about guilt of the delinquent, is sufficient, technicalities of the rule are not applicable like in criminal proceeding. The guilt of the delinquent is not to be proved beyond all reasonable doubt as is required in a criminal proceeding rather if some evidence is there to reach to a conclusion to the guilt of the delinquent then writ court will refrain to interfere in the matter. While considering this point, Hon'ble Apex Court in the case of Lalit Popli Vs. Canara Bank and others reported in (2003) 3 SCC 583 has specifically observed and quoted the scope of interference that is being observed in the case of R.S. Saini Vs. State of Punjab, (1999) 8 SCC 90, which is reproduced as follows:
"16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non- application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.
17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non- application of mind on the part of the inquiring authority. Likewise the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard."
It can very well be said that writ court jurisdiction for interference in the service matters wherein disciplinary proceeding is being drawn and action has been taken, is very limited and writ court should refrain from interference in case there is reasonable presumption regarding the culpability of the delinquent employee.
Learned counsel for the petitioner at the very outset argued that evidence against the petitioner was not sufficient to hold him guilty and Inquiry Officer himself has observed that various oral evidence is not being recorded. It is further submission of the learned counsel that no written complaint is being made by any of the account holders namely Ramvir Singh, Om Prakash and Chob Singh. It is submission of the learned counsel that non-production of the material witness is fatal and inquiry report cannot sustain. To buttress his contention, learned counsel based his argument upon the law propounded by Hon'ble Apex Court in the case of Hardwari Lal Vs. State of U.P. and others, Civil Appeal No. 6118 of 1999 decided on 27.10.1999 and Lucknow Bench of the Allahabad High Court in the case of Krishna Kishore Srivastava Vs. State of U.P. and another reported in 2010 (3) ESC 1655, wherein Division Bench of this Court observed as follows:
"The other argument advanced by the learned counsel for the petitioner is that no regular enquiry was held and the statements of the prosecution witnesses were not recorded with opportunity to cross examine them and the petitioner was not provided the opportunity to lead evidence."
The facts of every case are different and facts of every case is to be considered separately and if we see the fact of the present case, then we can reach to a conclusion that there was no requirement for any written complaint for initiation of inquiry against the petitioner. The account holder Ramvir Singh made an oral complaint and on the basis of oral complaint enquiry has been done, then there is specific proof against the petitioner that he did not deposit the amount given by Ramvir even though counterfoil for the receipt has been issued. Similarly, money was received from Om Prakash and same is also not being deposited inspite of issuance of counterfoil and similarly money given by Chob Singh is also not being deposited in the similar fashion. If such is the case, then there was no requirement of a written complaint by account holders and accordingly the law cited by learned counsel is of no help to the petitioner. Although, Inquiry Officer observed that certain witnesses are not being examined by the Bank but from the perusal of enquiry report on the basis of which Inquiry Officer drawn the conclusion, it can be said that there was sufficient evidence against the petitioner. Two bank officers were examined against the petitioner and there were several documents in support of the charges. It can very well be said that there was material before the Inquiry Officer and this Court is not inclined to enter into the sufficiency or insufficiency of the evidence and prima facie it can be said that there was some evidence for reaching to the conclusion against the petitioner and accordingly this Court will refrain in interfering the controversy by evaluating the evidence upon record.
The next contention of the learned counsel is regarding the violation of natural justice and it is submitted by the learned counsel that Inquiry Officer did not give the proper opportunity to the petitioner. Original documents were not allowed to be seen whereas they were being demanded. It is further submission of the learned counsel that disciplinary authority as well as appellate authority did not consider the submissions and thereby violated the law of natural justice.
So far as the inquiry report is concerned, it has already been observed that there was sufficient evidence against the petitioner for reaching to a conclusion and if on the basis of that, Inquiry Officer reached to a conclusion, that cannot be interfered and it cannot be said that there is violation of natural justice.
Learned counsel for the petitioner in his support submitted the law cited by Hon'ble Apex Court in case of Director (Mkt), Indian Oil Corporation Ltd. Vs. Santosh Kumar reported in 2006 (11) SCC 147, wherein Hon'ble Apex Court observed as follows:
[11] A perusal of the order passed by the Appellate Authority would only reveal the total non-application of mind by the Appellate Authority. We, therefore, have no other option except to set-aside the order passed by the Disciplinary Authority and the Appellate Authority and remit the matter for fresh disposal to the Disciplinary Authority. The Disciplinary Authority shall consider the detailed representation made by the respondent and also consider the detailed report of the Enquiry Officer and the records placed before him in its proper perspective and decide the matter afresh on merits. The Disciplinary Authority is directed to consider the entire case only on the basis of records already on record. The respondent is not permitted to place any further material or record before the Disciplinary Authority. The order passed by the High Court is set- aside for the above reason. We also set-aside the direction issued by the High Court ordering re- instatement into service with continuity in service and all consequential benefits. The Disciplinary Authority is also directed to dispose of the matter, within three months from the date of receipt of this order, after affording an opportunity to both the parties. The Civil Appeal is disposed of accordingly. No order as to costs."
Similarly in the case of Ram Chander Vs. Union of India and others reported in AIR 1986 SC 1173, Hon'ble Apex Court has held that non-compliance of the provision will vitiate the enquiry and where it is incumbent upon the appellate authority to give the reasons while disposing of the appeal and in case no proper reasons are being provided, then same cannot be sustained.
As already said above that every case is to be looked into on its merit and it is also necessary to consider the law applicable to the delinquent employee before interfering in the matter. In the present case Shreyas Gramin Bank (Officers and Employees) Service Regulation, 2006 are applicable and penalties are prescribed in Regulation 38 wherein minor and major penalties are being given and the relevant proviso for the officers of the bank is as follows:
"Provided further that no order imposing any of the major penalties specified above shall be made except by an order in writing signed by the Competent Authority and no such order shall be passed without the charge or charges being formulated in writing and given to the officer and enquiry held so that he shall have reasonable opportunity to answer the charge or charges and defend himself."
Right to Appeal is under Regulation 47 of the Regulations, which is reproduced as follows:
47. Right to Appeal (i) An officer or employee shall have right of appeal against any order passed under these Regulations which injuriously affected his interest.
(ii) The appeal shall be preferred to the Appellate Authority mentioned in Regulation 48 within 45 days of the date of receipt of the order appealed against. The Appellate Authority shall consider the appeal and pass suitable order preferably within a period of 6 months.
From the perusal of above referred regulation it can be inferred that only this much is required while passing the major penalties that competent authority can impose any of the major penalties by an order in writing and no such order shall be based without the charge or charges being formulated in writing and given to the officer and inquiry held so that he shall have reasonable opportunity to answer the charge and charges and defend himself.
In the present case, charges were being formulated. Petitioner was required to give the answer of the charges, which has been done by him. He participated in the proceeding. He cross-examined the witnesses and reasonable opportunity was given to him to defend himself.
Before imposing the penalty by the competent authority, petitioner was provided copy of the enquiry report and was required to submit his reply, which has been done by him and competent authority after considering the enquiry report as well as objection given by the petitioner passed the dismissal order.
From the regulations it can be said that competent authority was not required to give the reasons for accepting the enquiry and discarding the objection of the petitioner and as such it cannot be said that order of the competent authority is perverse or against the regulations. Similarly, appellate authority was also not required to give the reasons for dismissing the appeal and subjective satisfaction of the appellate authority was more than sufficient. Where regulations do not require the reasons to be given by the competent authority as well as appellate authority, in that case, if it is not being done so, same cannot be said to be perverse or against the regulations.
Hon'ble Apex Court in the case of Ram Chander Vs. Union of India and others (supra) has clearly observed that appellate authority did not comply with the Rule 22(2) of the Railway Servant Rules as such order is not sustainable. Rule provides as follows:
"22(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall consider-
(a) Whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice ;
(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe ; and Pass orders -
(i) confirming, enhancing, reducing or setting aside the penalty, or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case.
Accordingly, the aforesaid case is having no application in the present case as requirement of rule was not complied with whereas no such requirement was there in the case in hand.
Hon'ble Apex Court in the case of Allahabad Bank and others Vs. Krishna Narayan Tewari reported in AIR 2017 SC Pg. 330, found that Inquiry Officer as well as appellate authority have faulted in the discharge of their duties resulting in miscarriage of justice and did not interfere in the order passed by the High Court. In that case it was found that even the Inquiry Officer has not conducted properly and there is miscarriage of justice, which is not present in the case in hand.
Learned Single Judge of this Court in the case of Krishna Narayan Tewari Vs. Allahabad Bank and others in Service Single No. 2867 of 2006 decided on 28.10.2013, while dealing with the various laws propounded by Hon'ble Apex Court allowed the petition and quashed the enquiry as well as punishment awarded to the petitioner. Reference of case of Kuldeep Singh Vs. Commissioner of Police and others reported in 1999 (2) SCC 10 was also made wherein Hon'ble Apex Court observed as follows:-
"It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if 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 or the findings were perverse or made at the dictate of the superior authority."
In the present case as already said above, there is substance and evidence in the enquiry on the basis of which conclusion has been drawn and accordingly it cannot be said that enquiry report is perverse or without any evidence or made by the dictate of superior officers.
The contention of the learned counsel for the petitioner regarding the authority of the Inquiry Officer for proposing the punishment is also not tenable and accordingly the citation given by him in his support in the case of A.N. Dsilva Vs. Union of India reported in AIR 1962 Supreme Court Pg. 1130, is not applicable. Inquiry Officer has not proposed any punishment in the present matter rather he has found the petitioner guilty under Regulations 17 and 19 read with Regulation 38 of the Regulations.
It is lastly contended by the learned counsel for the petitioner that junior officer to the petitioner was appointed as Inquiry Officer which is not permissible but the contention of the learned counsel seems to be unfounded.
From the order of disciplinary authority it can be inferred that petitioner was named at Serial No. 388 whereas Inquiry Officer Man Mohan was at Serial No. 201, the officer of Scale -II. So the contention of the learned counsel is not tenable and is liable to be discarded. In the seniority list that has been annexed with the petition, Inquiry Officer has been shown as Officer of Scale -II whereas petitioner has been shown as Officer of Scale-I and admittedly the officer of Scale - II is senior to the officer of Scale - I.
On the basis of above discussion, this Court is of the view that reasonable opportunity was given to the petitioner to defend his case. Before passing the punishment order, copy of the enquiry report was also given to the petitioner and he was also provided all the relevant documents during the enquiry by the Inquiry Officer although certain original documents were not shown to the petitioner but same does not vitiate the proceeding. The disciplinary authority as well as appellate authority were not required to give detail reasons for their orders as it is not requirement of the rules and when they are concurring the finding of the Inquiry Officer then a detailed reasons for accepting the enquiry report is also not required as per rules and accordingly the order passed against the petitioner by the disciplinary authority as well as rejection of the appeal by the appellate authority does not suffer from any grave error or misconduct or perversity and this Court under its writ jurisdiction having limited scope will not interfere in the matter. Accordingly, petition lacks merit and is liable to be dismissed. It is, accordingly, dismissed.
Order Date :- 31.5.2018 Ranjeet Sahu
(Abhai Kumar, J.) (Abhinava Upadhya, J.)