Court No. - 33
Case :- WRIT - A No. - 10316 of 2012 Petitioner :- Dharmendra Dheesh Dubey Respondent :- Chairman, Sarva U.P. Gramin Bank & Another Counsel for Petitioner :- Ashok Mehta,Vikas Budhwar Counsel for Respondent :- R.N. Singh
Hon'ble Manoj Misra,J. Hon'ble Ved Prakash Vaish,J.
Heard Sri Vikas Budhwar for the petitioner; Sri R.N. Singh for the respondent-Bank; and have perused the record.
The petitioner was removed from service on allegations relating to irregularity in disbursement of loan. The order of removal dated 08.01.2003 was challenged by the petitioner before the Board of Directors by way of an appeal which was dismissed by order dated 03.10.2003. Against the punishment order as well as appellate order, Writ A No. 2218 of 2004 was filed before this Court. This Court took the view that the orders were in the nature of non-speaking orders and, accordingly, by order dated 13.03.2007, it allowed the writ petition and set aside both the orders dated 08.01.2003 and 03.10.2003.
Aggrieved by the order of the writ court dated 13.03.2007, the respondent-bank preferred Special Leave Petition before the Apex Court which was entertained and registered as Civil Appeal No. 5113 of 2007. Thereafter, the Apex Court, by its order dated 16th December 2009, allowed the appeal, in part, by observing that, on the reasons stated in the order, the High Court ought to have remitted the matter to the appellate authority and not to have set aside the order of the Disciplinary Authority. Accordingly, by modifying the order passed by the High Court, the Apex Court remitted the matter to the appellate authority (Board of the Bank) for hearing and disposing of the appeal preferred by the petitioner without being influenced by any observation made in the order passed by the Apex Court as well as by the High Court.
Pursuant to the order of the Apex Court, the appeal of the petitioner was considered by the Board of Directors and the Board of Directors, in its meeting dated 28.06.2010, issued direction to the Disciplinary Authority, which is noticed in Disciplinary Authority's order dated 03.08.2010, as follows:-
“1. The charge of impersonation could not be substantiated beyond doubt and Board felt that the benefit of the same should be given to the officer concerned.
2. Shri D.D. Dubey has already suffered enough punishment as he was removed from bank's services on 08.01.2003.
3. Too much time has been elapsed since the appeal of Shri D.D. Dubey and consequent orders of Hon'ble Supreme Court of India.
The Board unanimously decided to revoke the removal of Shri D.D. Dubey and to reinstate him in the bank's service. The Board also advised for the Chairman of the bank to reconsider quantum of punishment to be imposed upon Shri D.D. Dubey."
On the direction of the Board dated 28.06.2010, on 03.08.2010 the Disciplinary Authority imposed major punishment of reduction to a lower scale in time scale i.e. at initial stage of present scale upon the petitioner.
Aggrieved by order dated 03.08.2010, the petitioner preferred appeal before the Board of Directors claiming that when already the appellate authority had come to a conclusion that the main charge of impersonation was not substantiated beyond doubt and the benefit of the same ought to be given to the petitioner concerned and that the petitioner had already suffered enough punishment, there ought to have been imposition of only minor punishment and not major punishment as was imposed by the Disciplinary Authority. The Appeal of the petitioner was however dismissed by the Board by resolution passed in its meeting dated 17.09.2011.
Assailing the order of the Disciplinary Authority dated 03.08.2010 and of the appellate authority (Board) taken in its meeting dated 17.09.2011, this petition has been filed.
The main contention of the learned counsel for the petitioner is that once the appellate authority in its meeting dated 28.06.2010 had already taken a decision that the petitioner had already suffered enough punishment and as the main charge of impersonation was not proved therefore the order of removal was liable to be revoked and the petitioner was entitled to reinstatement, remittance of the matter to the disciplinary authority to reconsider the quantum of punishment imposed upon the petitioner, was with a view that some minor and not major penalty be imposed. It has also been urged that the decision of the appellate authority that has been communicated to the petitioner, does not contain reasons inasmuch as it only notices the submissions point- wise without dealing with them and no reason has been recorded as to why a major penalty was to be imposed in the facts of the case.
Sri R.N. Singh, who has appeared on behalf of respondent- bank, has submitted that the enquiry was held against the petitioner on numerous charges relating to irregularity in disbursement of loans and all those charges were found proved, except the charge that some of the loanees had impersonated hence the charge against the petitioner that he had facilitated impersonation was not found proved by the appellate authority. In that context, the appellate authority had taken a decision that the order of removal from service passed against the petitioner needed to be withdrawn and the matter required reconsideration by the disciplinary authority on the quantum of punishment to be imposed upon the petitioner. He submitted that it is well settled legal position that a Branch Manager has to take all adequate precautions to safeguard the interest of the Bank and as, after enquiry, it was found that there had been disbursement of loan in a negligent and irregular manner by not taking adequate steps to safeguard the interest of the bank, the order passed by the disciplinary authority, under the circumstances, did not call for any interference and the appellate authority was therefore justified in dismissing the appeal on the facts of the case.
We have considered the rival submissions and have perused the record.
It is not in issue that in the earlier round of litigation, the matter was remitted back to the appellate authority to pass a fresh order after recording reasons. Although the decision of the appellate authority taken in its meeting dated 28.06.2010 is neither under challenge nor is before us but its contents are noticeable from the order of the disciplinary authority dated 03.08.2010. We find that the direction of the appellate authority is not supported by reasons. However, since the order of the appellate authority taken in its meeting dated 28.06.2010 is not under challenge, therefore, we are not commenting on the correctness of its direction. But what surprises us is that when the appellate authority had taken a conscious decision that the officer had suffered enough punishment and therefore the quantum of punishment requires reconsideration of the disciplinary authority, the disciplinary authority chose to impose major penalty of reduction to a lower scale in a time scale i.e. at initial stage of present scale, without recording reasons as to why in the facts of the case, and in view of the appellate order, such a major penalty was justified. More so, when the appellate authority had already come to a conclusion that the officer had already suffered enough punishment and that the main charge of impersonation could not be substantiated. Likewise, the appellate authority though has taken notice of the points raised in the appeal but has not recorded its reasons with reference to the proven charges as to how a major penalty was justified.
It is well settled legal position that in a disciplinary action first charges have to be proved in accordance with the procedure prescribed and in consonance with the principles of natural justice and, thereafter, if the charges are found proved, the authority has to apply its mind as regards quantum of punishment, which has to be commensurate to the proven misconduct.
In the present case, we find that initially the disciplinary authority on the basis of inquiry found charges proved. However, the appellate authority found that the main charge of impersonation was not proved. Therefore, after revoking the removal order and directing reinstatement of the petitioner, the matter was remitted to the disciplinary authority for taking a fresh decision on the quantum of punishment. Despite the above order, the disciplinary authority proceeded to impose major penalty without any discussion with reference to the proven misconduct as to how a major penalty was justified. Likewise, the appellate authority without justifying the punishment with reference to the charges that were found proved proceeded to uphold the order of the disciplinary authority.
Under the circumstances, we are of the view that the matter needs to be remitted back to the appellate authority to consider and decide afresh the appeal of the petitioner against the order dated 03.08.2010 passed by the disciplinary authority after discussing the justifiability of the punishment imposed upon the petitioner with reference to the charges found proved and by keeping in mind the earlier resolution of the Board dated 28.06.2010 on the earlier appeal of the petitioner.
We therefore set aside the appellate order dated 17.09.2011 and remit the matter back to the appellate authority (Board of Directors - second respondent) with direction to restore the appeal and take an appropriate decision in accordance with law and in the light of the observations made above, preferably, within a period of three months from the date of furnishing of certified copy of this order on the first respondent.
The petition stands allowed to the extent indicated above.
Order Date :- 21.8.2018 Sunil Kr Tiwari (V.P. Vaish, J.) (Manoj Misra, J.)