Hon'ble Ashwani Kumar Mishra,J.
(Delivered by Hon. Ashwani Kumar Mishra, J.) The petitioner, who at the relevant point of time was posted as a Branch Manager of the Central Bank of India, Phawara, Agra Branch, has filed the present writ petition, challenging the orders passed against him dated 31.1.2008, 4.1.2010 and 19.7.2010, whereby he has been compulsorily retired. The disciplinary authority by the order dated 31.1.2008, contained in annexure-11 to the writ petition, found the charges levelled against the petitioner proved in the disciplinary proceedings and consequently, awarded dismissal from service. The appellate authority by the order dated 4.1.2010 affirmed the punishment imposed. The reviewing authority, however, vide its order dated 19.7.2010 found that there was nothing on record to substantiate the primary allegation of connivance levelled against the petitioner and only the charge of negligence was found proved against the petitioner, consequently, the punishment of dismissal was modified by imposing the punishment of compulsory retirement under the relevant service regulations, relevant portion whereof is reproduced:-
"On carefully examining the material at the outset undersigned concur with the finding of Appellate Authority that CSOE was gross negligent in performing his duty. CSOE being the joint custodian of the cash was required to be and supposed to be equally careful and vigilant particularly when he is Manager in the Branch. Had he been taken due and proper care in ensuring the correctness of the cash before the closure, Mr. S.P. Sharma would not have an opportunity to take out the cash from the branch. In fact CSOE's carelessness facilitated Sh. Sharma to take away the cash from the Branch. I am, therefore, of the view that CSOE was sheer negligent in performing his duties. But going through the material, I find that there is nothing on record which shows that CSOE was in connivance with Sh. S.P. Sharma in taking away the money from the Branch though he did not perform his duties prudently and diligently. Hence, keeping in view the aspect of his non connivance, I feel that punishment awarded to him by Disciplinary Authority and confirmed by Appellate Authority does not commensurate with the gravity of the proven charges and I am of the considered opinion that there is substance in the review and I feel that it is a proper and appropriate case to take a lenient view and review the punishment, hence I, as a Reviewing Authority, hereby modify the punishment awarded to Sh. O.P. Agrawal by the Disciplinary Authority and confirmed by the Appellate Authority and instead award him the punishment of "compulsory retirement" under Regulation 4(h) of Central Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976 as modified from time to time."
It is this order of compulsory retirement, which operates against the petitioner and is the subject matter of challenge. During pendency of the writ petition, the petitioner has also attained the age of superannuation.
It appears that the petitioner was posted as Branch Manager, Phawara Branch at Agra of the Central Bank of India, disciplinary proceedings were initiated against him, for which a charge sheet was issued. Following three charges were levelled against the petitioner.
"(i) On 12.2.05 the petitioner deliberately helped Mr. S.P. Sharma, Head Cashier-II in misappropriating cash to the tune of Rs.2,41,000/- and closed the short cash, which could be detected only on 14.2.05 at the time of checking of cash by Mr. R.S. Gupta, Internal Auditor.
(ii) In the checking of cash conducted by Mr. R.S. Gupta, Internal Auditor on 14.2.05 the petitioner did not cooperate and created hindrance in smooth checking in order to mislead Mr. R.S. Gupta.
(iii) On 14.2.05 the petitioner countersigned cheque no.014543 for Rs.2,40,000/- issued by Raghunath Prasad Agrawal, holder of Account No.17747 in favour of Mr. S.P. Sharma after business hours to make good the cash shortage detected on the said date."
In respect of the same incident, Sri S.P. Sharma, Head Cashier, and Sri A.K. Baijal, Assistant Manager, were also subjected to disciplinary proceedings, for which charge sheets were issued to them also. Same Enquiry Officer, namely Sri S.C. Agrawal, conducted separate enquiry proceedings against all the three persons. The Enquiry Officer vide his report dated 29.9.2007 found charges no.1 and 3 proved against the petitioner, whereas charge no.2 was held to be not proved. The petitioner has been supplied the copy of the enquiry report and the opportunity to state his case against it. The petitioner submitted his reply to the enquiry report on 17.10.2007. Thereafter, impugned punishment has been inflicted.
In respect of the enquiry held against Sri S.P. Sharma, the same Enquiry Officer found the charges as not proved against Sri S.P. Sharma. However, it is not disputed that the disciplinary authority did not agree with the report of the Enquiry Officer and after disagreeing, the disciplinary authority found the charges against Sri S.P. Sharma, Head Cashier, proved and consequently, orders of dismissal from service were passed against him. So far as Sri A.K. Baijal is concerned, penalty of censor has been imposed.
We have heard Sri Ashok Khare, Senior Advocate, assisted by Sri Siddharth Khare, Advocate, appearing for the petitioner and Sri Sahab Tiwari, Advocate, appearing for the respondent bank.
Learned counsel for the petitioner has made following submissions.
(i) The petitioner submits that imposition of punishment is grossly violative of principle of natural justice for the following reasons.
(a) The petitioner was denied the facility of defence representative/assisting officer, permitted to the charged employee under regulation 6(7) of the Central Bank of India Officer Employees (Disciplinary and Appeal) Regulations, 1976.
(b) The petitioner was denied access to relevant records, which had important bearing on the facts of the case (specified in para 31 of the writ petition).
(c) The petitioner also was denied opportunity to produce list of witnesses and the Enquiry Officer arbitrarily closed the enquiry proceedings, by denying effective cross-examination of the witnesses produced.
(d) The petitioner has also stated that he was not permitted to put relevant questions during the cross-examination of the witnesses.
(e) The petitioner was denied opportunity of hearing.
(ii) It was next contended that the respondent bank has arbitrarily discriminated against the petitioner, inasmuch as in respect of similar charge, Sri Baijal was inflicted punishment of censor, whereas the same Enquiry Officer on the basis of charge identical to that of the petitioner, found it not to be proved in respect of Sri S.P. Sharma and, therefore, the report of the Enquiry Officer is arbitrary, rendering the punishment itself unsustainable in law.
(iii) It was thus submitted that the only charge proved against the petitioner of negligence, which does not justify imposition of punishment of compulsory retirement, particularly when during the long service tenure of the petitioner, his service record was spotless. The punishment thus is stated to be disproportionate to the gravity of charge found to be proved in the matter.
Learned counsel for the respondents has refuted the submissions advanced on behalf of the petitioner and has attempted to justify the impugned action on the ground that the bank has already taken a lenient view in the matter, and in view of the nature of charges proved, the decision does not warrant any interference.
We have examined the respective submissions of the learned counsel of the parties and have perused the material on record.
Dealing with the first contention advanced on behalf of the petitioner, we find that the petitioner had initially availed assistance of one Mr. S.B. Singh, who later expressed his unwillingness to continue. The Enquiry Officer granted opportunity to the petitioner to arrange for an alternative representative/assisting officer. The petitioner requested for appointment of Sri H.C. Agrawal, Senior Manager. Sri H.C. Agrawal, attended the hearing on 12.6.2007 and thereafter sought permission from his immediate superior authority for attending the enquiry on the next day. The Chief Manager of the bank vide his communication dated 13.6.2007 addressed to Sri H.C. Agrawal, declined to grant permission by observing as under:-
"However, your request to attend departmental enquiry against Sri O.P. Agrawal to be held on 27.6.2007 is declined due to management exigencies."
The petitioner approached to the disciplinary authority on 26.6.2007 intimating him that the superior authority of Sri H.C. Agrawal, has refused permission to him to attend the enquiry and in such circumstances, the permission was sought for fixing of date by the Enquiry Officer in accordance with the availability of Sri H.C. Agrawal. Thereafter, the petitioner requested that in the absence of Sri H.C. Agrawal, Sri D.D. Agrawal, Senior Manager, be permitted to work as defence assistance in the enquiry. This request was also rejected by the bank on 26.6.2007 on the ground that Sri D.D. Agrawal was already working as Enquiry Officer in respect of enquiry being conducted against Sri L.K. Tripathi and, therefore, the same person cannot in one enquiry be Enquiry Officer and in a different enquiry be permitted to act as the assisting officer. The petitioner thereafter requested for appointment of Sri P.K. Agrawal, Assistant Manager, to act as assisting officer on behalf of the petitioner in the enquiry. Request for permitting Sri P.K. Agrawal, to act as assisting officer was also rejected by the bank vide note of the higher authority dated 9.8.2007, according to which the matter was being taken up with the Regional Office, Bareilly, to provide a substitute for the officer and only thereafter, permission to attend the enquiry was to be considered.
It appears that the enquiry against the petitioner proceeded thereafter, without the help of any assisting officer being provided to the petitioner. The specific statement of fact contained in para 12 to 14 of the writ petition, is not disputed. Only justification for refusing the help of the assisting officer, as was stated in the correspondence, has been emphasized. The undisputed fact, therefore, which emerges from the record is that the enquiry against the petitioner has been conducted without providing him the help of assisting officer.
The service conditions of the petitioner are governed by the provisions of the Central Bank of India Officer Employees (Conduct) Regulations, 1976. Regulation 6 of the Regulations prescribes the procedure for imposing major penalty. Sub-clause (7) of regulation 6, which is relevant for the present purposes, is reproduced:-
"(7). The Officer employee may take the assistance of any other Officer employee but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner or the Disciplinary Authority having regard to the circumstances of the case so permits.
Note:- The Officer employee shall not take the assistance of any other Officer employee who has two pending disciplinary cases on hand in which he has to give assistance."
The right of the officer employee to have the assistance of any other employee in the enquiry proceedings is well recognized under the applicable service regulation. The only exception is that the assistance of the assisting officer would not be available, if the officer is already giving assistance in two other pending disciplinary cases.
The right of the charged employee to have the help of an assisting officer is an important right created for the benefit of the charged employee. The Apex Court in case of C.L. Subramaniam vs. Collector of Customs, Cochin reported in 1972 (3) Supreme Court Cases 542, while dealing with similar provision contained in Central Civil Services (Classification Control and Appeal) Rules, 1957, considered the rationale behind such provision in the following words.
" Government servants by and large have no legal training. At any rate, it is nobody's case that the appellant had legal training. Moreover, when a man is charged with the breach of a rule entailing serious consequences, he is not likely to be in a position to present his case as best as it should be. The accusation against the appellant threatened his very livelihood. Any adverse verdict against him was bound to be disastrous to him, as it has proved to be. In such a situation he cannot be expected to act calmly and with deliberation. That is why Rule 15(5) has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by another Government servant or in appropriate case by a legal practitioner."
The language of sub-rule (5) of Rule 15 is quite similar to the language employed in sub-rule (7) of Rule 6 of service Rules, 1976 applicable for the bank.
The request made by the petitioner for grant of permission to avail of the help of assisting officer and its consideration by the bank has been noticed by this court. A perusal of it would show that the bank on the first instance denied the assistance of Sri D.D. Agrawal by merely saying that his services for the purposes cannot be allowed due to management exigencies. This reason, in our understanding is unsubstantiated, is wholly unsustainable. No valid reasons have been disclosed as to why the services of Sri H.C. Agrawal could not be allowed as assisting officer in the petitioner's case. So far as the denial of permission to the next officer named by the petitioner i.e. Sri D.D. Agrawal is concerned, the reason for refusal is not valid under the regulations, inasmuch as there is no bar that if the officer is working as an Enquiry Officer in one case then he cannot render assistance in an entirely different enquiry. Similarly, the denial of the assistance of Sri D.D. Agrawal on the ground that branch is suffering with staff shortage, and the matter is being taken up with the Regional Officer, Bareilly, to provide the substitute, where after permission for attending the disciplinary proceedings against the petitioner would be considered, also does not depict due consideration of the cause. There is nothing on record to show, nor even pleaded in the counter affidavit, as to what ultimately happened with regard to the request made with Regional Office, Bareilly, for providing the substitute officer. There is nothing on record to show that any communication was addressed to the petitioner, by the bank suggesting any alternative course in the matter, for protecting the valuable right of the petitioner to avail of the services of an assisting officer. There appears to be complete non-consideration of the categorical request made by the petitioner for providing him the help of defence representative/assisting officer.
In para 22 of the judgement of the Apex Court in case of C.L. Subramaniam (supra), the provision of affording the assistance of an assisting officer/representative to the charged employee has been held to be mandatory. Para 22 and relevant portions of para 23 and 24 of the said decision are reproduced.
"22. From the facts set out above, it is clear that the Enquiry Officer did not afford the appellant necessary facility to have the assistance of another government servant in defending him which assistance he was entitled to under the rule. He was deprived of that assistance solely because of the indifferent attitude adopted by the Enquiry Officer. Therefore, we have no hesitation in coming to the conclusion that the Enquiry Officer had clearly breached Rule 15(5).
23. It is needless to say that Rule 15 is a mandatory rule.--------
24. For the reasons mentioned above, we think that there had been a contravention of Rule 15(5). We are also of the opinion that the appellant had not been afforded a reasonable opportunity to defend himself. Hence the impugned order is liable to be struck down and it is hereby struck down.---------"
The judgement in case of C.L. Subramaniam, has been followed by the Apex Court in the case of Bhagat Ram vs. State of Himachal Pradesh and others reported in (1983) 2 SCC 442 and similar view was reiterated.
We find from the consideration of relevant facts and materials brought on record in the instant case, that the aforesaid observation of the Apex Court squarely applies to the facts of the present case as well. The mandatory requirement of granting opportunity to the petitioner, of availing the help of an assisting officer has been clearly breached. The entire enquiry conducted against the petitioner, therefore, is liable to be set aside on this ground alone.
In such view of the matter, we are not inclined to consider other limbs of petitioner's submission that principles of natural justice in holding of the enquiry against the petitioner have been breached.
In normal circumstances, having noticed the defect in the enquiry, the enquiry would have been directed to be restored from the stage of defect, in view of the judgement in the case of Managing Director ECIL vs. B. Karunakar (II) reported in (1993) 4 SCC 727, however, such course is not required to be resorted in the facts of the present case, for the reason mentioned hereinafter.
Admittedly, the petitioner has attained the age of superannuation during the pendency of the writ petition. No provision has been brought to our notice, which permits an enquiry to be conducted, against an employee of the bank, even after his superannuation. However, the matter has to be examined from another angle also, as has rightly been submitted by Sri Ashok Khare, Senior Advocate, that the charge against the petitioner, as it stands in view of the order of the reviewing authority is only of gross negligence in performing his duties, on the ground that had he been more vigilant, the shortage of cash found on the relevant date could have been averted. This may not justify imposition of punishment of compulsory retirement. The allegation of connivance on part of the petitioner, which undoubtedly was serious, was examined and found not proved by the Enquiry Officer. This finding has remained intact. Even, the third charge against the petitioner of helping Sri S.P. Sharma to make good shortage found in cash, also has been found not to be proved by the reviewing authority. No other instance of petitioner having been found negligent in his long service career, has been brought on record.
The Apex Court in Union of India vs. J. Ahmad reported in AIR 1979 1022, noticing the earlier judgement of the Apex Court arising out of an industrial adjudication observed as under:-
"-------.A single act of omission or error of judgement would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104: (AIR 1963 SC 1756), wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duly attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgement in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil. But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.
In case of C.L. Subramaniam (supra), after holding the enquiry to have been vitiated on account of not providing of the help of an assisting officer, the holding of fresh enquiry was not found appropriate as the employee in the meantime had attained the age of superannuation. Para 24 of the said judgement is reproduced.
"24. For the reasons mentioned above, we think that there had been a contravention of Rule 15(5). We are also of the opinion that the appellant had not been afforded a reasonable opportunity to defend himself. Hence the impugned order is liable to be struck down and it is hereby struck down. The facts of this case are not such as to justify any fresh enquiry against the appellant. Hence we direct that no fresh enquiry shall be held against the appellant and he be restored to the position to which he would have been entitled to but for the impugned order. The appeal is accordingly allowed. The appellant is entitled to his costs form the respondents both in this Court as well as in the High Court.
In view of the discussions made above, we find that permitting the Bank for holding of a fresh enquiry in the facts and circumstances of the present case against the petitioner, would not be proper.
In such view of the matter, we hold that the order of compulsory retirement passed against the petitioner was not justified under the facts and circumstances of the present case. Consequently, the orders impugned dated 31.1.2008, 4.1.2010 and 19.7.2010 are set aside. The writ petition is allowed. The respondents are directed to provide all consequential benefits of service, to the petitioner treating him to have continued in service till he attained the age of superannuation and provide admissible post retiral benefits within a period of three months from the date of presentation of certified copy of this order before them.
No order is passed as to costs.
Order Date :- 5.3.2014 Ashok Kr.