IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5414 of 1991 For Approval and Signature:
HONOURABLE MR.JUSTICE C.L. SONI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= RAJEEVKUMAR - Petitioner(s) Versus STATE BANK OF PATIALA - Respondent(s) =========================================================
Appearance :
Mr. KM Patel, Senior Advocate with MS JIRGA D JHAVERI for Petitioner(s) : 1, MR AC GANDHI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.L. SONI Date : 10.2.2012 CAV JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the entire inquiry proceedings as being violative of the principles of natural justice, an order of dismissal dated 6th August, 1987 passed by the Managing Director and the order of the Executive Committee, appellate authority dismissing the appeal and confirming the said order of dismissal on 10th August, 1988 and the order passed by the Board of Directors dated 19th August, 1989 dismissing the review application preferred by the petitioner and also sought the direction to the respondent bank to reinstate the petitioner with effect from the date of his suspension to his original post with all salary and allowances payable to the petitioner as if the petitioner continued in service all throughout with all increments and promotions and allowances admissible to the petitioner for the respective post and other benefits. The petitioner has also made separate prayer for declaring that the order of suspension passed on 13.9.1985 had come to an end inasmuch as the investigation by the police in the criminal offence mentioned in the order of suspension came to end without submitting the charge sheet soon after 18th October, 1985 and for consequential relief to direct the respondent bank to pay the petitioner all pay, salary and allowances admissible to the petitioner from 13.9.1985 to 6.8.1987 as if the petitioner was in continuous service during that period on the basis that there was no suspension order.
2. It is the case of the petitioner that the petitioner was appointed as probationary officer in the State Bank of Patiala of the respondent. The petitioner joined the services of the respondent bank at Kanpur Branch on24th November, 1979 and he came to be confirmed on 24th November, 1981 and in February, 1982, he came to be transferred as Officer at Bombay and in November, 1984, the petitioner was transferred to Ahmedabad as Branch Manager. It is averred in the petition that Shah Alam Roza Branch of the respondent bank was started in November, 1984 and the petitioner took over as Branch Manager of the said Branch with effect from 10th December, 1984. Shah Alam Roza Branch was in small premises and it was decided by the authorities to have larger premises. For that purpose, an advertisement was published for suitable premises for the said branch in the month of August and November, 1984. Proposals were invited and were received by the Branch Manager, Ashram Road Branch, Ahmedabad and the applications were to be forwarded to the Regional Manager at Delhi. As further averred in the petition, the then Managing Director and the Zonal Manager, Delhi came to Ahmedabad on 12.2.1985 and they were accompanied by one Shri SK Sharma, working in the office of the Deputy Director of Intelligence, Income Tax Department, Indraprastha Estate, New Delhi and they inspected two buildings, which were offered by said Shri SK Sharma who accompanied them from Delhi. The offers for these two buildings were made by said Mr. Sharma on 12.2.1985. One of the offers was in the name of the wife of Mr. Sharma and the other one was in the name of her brother Shri SB Sharma. The petitioner had an occasion to report about one offer received in the name of M/s. Navyug Corporation which was owned by one Mr. KM Trivedi. The petitioner was not associated with the inspection of the two buildings offered by Shri SK Sharma of Delhi and he was kept in dark about the said activities. After the approval of the proposal of Shri SB Sharma as per letter dated 16.4.1985 which came to be communicated to the petitioner on 20.4.1985, said building came to be purchased by said Shri SB Sharma under a Deed dated 30th April, 1985. Shri SB Sharma came to the branch on 20.4.1985 and made endorsement on the duplicate of the letter dated 16.4.1985 received by him about accepting the terms and conditions laid down by the Bank. As averred in the petition, the building was not fit for taking over the possession but Mr. Sharma was insisting for loan from the bank and the petitioner was being instructed on telephone to advance the loan by Zonal and Regional Managers. The petitioner was pressurized by the higher ups to agree to Mr. SB Sharma on telephone. However, since the petitioner was not agreeing, the petitioner was being threatened by Shri Sharma and, therefore, in the month of May, 1985, the petitioner had approached the CBI Authority at Ahmedabad and narrated his plight which had arisen out of undue favour to Shri SB Sharma by the higher ups in the bank. The petitioner replied to his superiors when he was asked telephonically to advance loan that he should be so directed in writing and by letter dated 7.6.1985. The Regional Manager directed the petitioner as Branch Manager to release interim loan of Rs.1,00,000.00 to Shri SB Sharma under equitable mortgage after obtaining requisite certificates of clear title. As averred in the petition, in the mean time, by letter dated 24.6.1985, CBI Requested the Branch to hand over the concerned files available in the branch office in respect of the hire of new premises at 36, Bhavna Society at Ahmedabad and it was also stated that in case the original files were not available, zerox copy of the documents be supplied to it. When the matter was going on, the Regional Manager, Delhi by letter dated 17.7.1985 wrote to Shri SB Sharma that the bank was unable to take any decision in the matter of letting out of the premises to the bank until the final decision of the Court. In view of this letter, taking over possession and release of interim loan was put in abeyance till the matter was decided by the Court. Copies of letters dated 7.6.1985, letter dated 24.6.1985 as well as letter dated 17.7.1985 are annexed by the SB Sharma came to the Branch during recess when this petitioner was going to restaurant and he accompanied the petitioner to the Trupti Restaurant. He tried to offer money at the restaurant but this petitioner refused. The petitioner was to go back in auto rickshaw when Shri Sharma sought a lift upto Bhavna Society but on the way, the petitioner told Shri Sharma that he had some work at Jawahar Chowk, thereupon, Shri Sharma got down and the auto
petitioner was walking down towards nearby branch of State Bank of Hyderabad when a jeep came nearby and some persons jumped out and caught and asked the petitioner to get into the jeep. The petitioner shouted for help and large crowd gathered and those persons in the jeep stated that they were from Anti Corruption Bureau. The petitioner was then taken to the nearest police station and finally they took him to Maninagar Police Station and was abused and made to sign the papers and was detained till 8.00 p.m. Under the pretext of contacting relative, the petitioner contacted on telephone the Superintendent CBI at Ahmedabad and he in term talked with the ACB Persons who, thereupon, did not arrest the petitioner and dropped him in their jeep at his residence. As averred in the petition, on the next day, the petitioner wrote to the Superintendent narrating the incident and apprehended about the conspiracy hatched against the petitioner and made request before him to make detailed inquiry in the matter.
3. As further stated in the petition, the ACB Persons seized the file containing correspondence relating to Bhavna Society Premises. The petitioner was placed under suspension vide communication dated 13.9.1985 on the allegation that the regular case has been registered against the petitioner under sec. 161 of the IP Code and sec. 5(2) read with sec. 5(1) (d) of the Prevention of Corruption Act, 1947. Said order is purported to have been passed under Regulation 69(1)(b) of the State Bank of Patiala (Officers) Services Regulations, 1979. The order of suspension was not in contemplation of any disciplinary inquiry but it was on the basis of the criminal case registered against the petitioner. However, criminal charges were dropped.
4. It is further case of the petitioner that the petitioner received communication dated 10.5.1986 containing Articles of Charges and Imputation of Misconduct against the petitioner. The disciplinary authority decided to hold an inquiry. One Shri KP Gupta was appointed as inquiry officer and Shri Surinder Gupta was appointed as the Bank's Presenting Officer. The petitioner requested for some documents and copy of the regulations but there was no response from the authority. It is stated that the inquiry officer and bank's presenting officer both were appointed by the Disciplinary Authority at the instance and in collusion with the Managing Director Shri T. Shanmugam, General Manager (Operations) Shri NG Shardana, and the Zonal Manager Delhi Shri Hardarshansingh and Regional Manager Shri RP Kaura just to hamper the defence of the petitioner. It is stated that the inquiry officer was bias and the petitioner was not given sufficient opportunity to represent his case and there was gross violation of the principles of natural justice. The petitioner was not given an opportunity to inspect the documents and the witnesses were examined in absence of the petitioner. There was no any cogent and sufficient evidence through any independent witness to prove the charge against the petitioner. The inquiry was hurriedly closed and the petitioner was not given chance to cross examine the witnesses. That the entire inquiry was just planned inquiry with deliberate intention and with a view to see that the petitioner is removed from the service. The petitioner has further stated that as pre- arranged, date of hearing before the inquiry officer was changed unilaterally from 22.4.1987 to 27.4.1987. It is stated that when the Inquiry Officer sent telex message to Delhi Officer from Patiala, the ticket was issued to petitioner to reach Ahmedabad on 27.4.1987. However, the ticket dated 26.4.1987 was in waiting list at Serial No. 70 and it was not confirmed and the request of the petitioner to travel by air was not granted and a letter of request to adjourn the hearing was rejected and the inquiry officer treated the case of prosecution as closed and ordered that no further time will be given to submit any witness for cross examination. Thus, the petitioner could not avail the opportunity to cross examine the witness for no fault on the part of the petitioner. It is submitted that the entire inquiry was vitiated because none of the witnesses is examined in chief before the inquiry officer but only police papers were put on record and the said statements were taken as evidence by the inquiry officer. It is further stated that in view of the seriousness of the charges, the petitioner was required to allow legal assistance especially when the inquiry officer and the Bank's Presenting Officer were trained persons and were taking the help of the police officers. It is stated that on the basis of such inquiry, the petitioner came to be dismissed from service by the authority which had no jurisdiction to dismiss the petitioner from service. Against the order of dismissal, the petitioner went in appeal before the appellate authority which was dismissed and the revision application preferred by the petitioner was also dismissed.
5. The petition is opposed by the respondent bank by filing the affidavit in reply.
6. I have heard the learned advocates for the parties. Learned Senior Counsel Mr. KM Patel with learned Advocate Ms. Jirga Jhaveri for the petitioner has made the following submissions:
(1) The petitioner is the victim of ill-design and conspiracy hatched by one Shri SK Sharma in collusion with the higher officers of the bank who wanted to please Shri SK Sharma by showing favour to him in the matter of taking on lease the premises for the branch of the bank which was to be purchased in the name of brother in law of Shri SK Sharma.
(2) The petitioner being up-right officer, acted in the best interest of the bank and did not succumb to the wishes and whims of the higher ups who wanted to do favour to Shri SK Sharma, and, therefore, the petitioner was made to face agony of false criminal case as well as the departmental inquiry.
(3) Under Regulation 68(3) (iii) of the respondent Bank, if Disciplinary Authority is of the opinion that the penalty proposed is any of the major penalties and if the disciplinary authority is lower in rank to the appointing authority, it shall submit entire record of inquiry to the appointing authority together with the recommendations regarding penalty proposed to be imposed and then, it is for the appointing authority to make the order imposing such penalty as it considers appropriate. In the case of petitioner, report of inquiry authority was submitted to the disciplinary authority and the disciplinary authority has submitted the report with recommendation to the Managing Director, appointing authority. The appointing authority is therefore required to give hearing to the petitioner. However, without giving any opportunity of being heard to the petitioner, the order dated 6.8.1987 imposing punishment of dismissal was passed. Petitioner is also not given either the copy of the inquiry report or the recommendations of the disciplinary authority and, therefore, the order of punishment passed against the petitioner is in gross violation of the principles of natural justice. Hon'ble the Supreme Court has, in the case of State Bank of India and others versus Ranjit Kumar Chakraborty & Anr., reported in 2009-I GLR page 66, held that if the disciplinary authority is not competent to pass the order of penalty, the appointing authority, on getting the inquiry report, is required to give hearing to the delinquent before passing the order of major penalty. In the case before Hon'ble the Supreme Court, Regulation 68 was under consideration and on interpretation, Hon'ble the Supreme Court held that the order of major penalty passed by the appointing authority without giving hearing to the delinquent is void, ab-initio as it was in breach of the principles of natural justice. In the case of the petitioner also, there is breach of the principles of natural justice and, therefore, as per the above said judgment of Hon'ble the Supreme Court, order of major punishment of dismissal from service is required to be quashed and set aside.
(4) Whole inquiry conducted against the petitioner was in gross violation of the principles of natural justice. The inquiry officer brought on record the statement of complainant Shri SB Sharma recorded during the investigation by the Police. Said witness- complainant was not permitted to be cross examined by the petitioner till all the other witnesses were examined on the side of the bank and it was a clear design of the inquiry officer and the Bank's Presenting Officer in collusion with the complainant Shri SB Sharma to avoid giving opportunity to the petitioner to cross examine the complainant Shri SB Sharma and they succeeded in their design by recording on 27.4.1987 that the prosecution case was closed and the defence assistant left due to his illness. The absence of the petitioner was also managed by fixing the date of inquiry on 27.4.1987 and informed the petitioner about the said date only on 24.4.1987 along with ticket in waiting list dated 26.4.1987 which was surely not to be confirmed as it was at Sr. No. 17 in the waiting list and the petitioner was not permitted to travel by air and taking benefit of the absence of the petitioner, the inquiry officer did not grant any adjournment and continued with inquiry till 29.4.1987 by not only ignoring the ill health of the defence assistance but also the absence of the petitioner. Thus, the petitioner was denied opportunity to cross examine the witnesses examined by the Presenting Officer of the Bank and thus whole inquiry proceeded in absence of the petitioner and without giving opportunity to the petitioner to cross examine the witnesses. Such an inquiry would therefore stand vitiated on account of breach of the principles of natural justice.
(5) That the inquiry officer has not complied with the regulations but allowed many documents to be placed on record under the guise of defence documents. The complaint of Shri SB Sharma to ACB, alleged panchanama and some other documents which were not part of the list of documents given to the petitioner were permitted to be placed on record. Defence assistant of the petitioner was refused time to inspect the documents and to seek instructions from the petitioner and the inquiry officer flouted all the norms of principles of natural justice by permitting the statements and other documents recorded by the police to be brought on the record of inquiry proceedings. Therefore, the inquiry proceedings would stand vitiated.
(6) That the inquiry officer was bias. He was enjoying hospitality of the complainant and the higher officers. The petitioner made complaint dated 18.5.1987 against the inquiry officer Shri KP Gupta. Narration in detail about good hospitality enjoyed by the inquiry officer is given. With the said complaint, statement of persons and witnesses in whose presence good hospitality was extended by Shri SB Sharma, were also sent. Before the inquiry officer also, objection against the appointment of the inquiry officer was raised and in the above said complaint also, it was pointed out that the inquiry officer was in the habit of being obliged by receiving illegal gratification. In the said complaint, it was also pointed out that the inquiry officer Shri KP Gupta was involved in serious offence under the Prevention of Corruption Act, the Indian Railways Act and also under the Banking Regulations and, therefore, he was required tobe placed under suspension and may not be allowed to abuse his official position. Inspite of such serious objection on the part of the petitioner, the inquiry was allowed to be conducted by the same inquiry officer and inquiry proceedings speaks volumes about the conduct of the inquiry officer and, therefore, whole inquiry conducted by the said inquiry officer cannot stand scrutiny of law as it is manifest from the proceedings of inquiry that the petitioner has been deprived of his legitimate right to get reasonable opportunity to face the inquiry for such a serious charges and, therefore, since the inquiry was allowed to be proceeded ignoring the objections raised by the petitioner, the order of dismissal passed against the petitioner on the basis of such inquiry is required to be quashed and set aside.
(8) That the finding reached by the inquiry officer is not supported by any relevant material In fact, the charges against the petitioner are not established by any material or cogent evidence against the petitioner. No witness has given any independent evidence to prove the charge against the petitioner. That the witnesses were made to produce their statements given before the Police-ACB, before the Inquiry Officer. Since the criminal proceedings were dropped, finding of the inquiry officer could not have been based on the statements of the witnesses recorded before the Police-ACB and, therefore, finding recorded by the inquiry officer is not based on any independent evidence and, therefore, charges against the petitioner cannot be said to have been proved during the inquiry. Since there is no finding about the guilt of the petitioner, order of punishment dismissing the petitioner from service cannot stand scrutiny of law.
(9) Charges against the petitioner were serious and were criminal in nature, therefore, strict compliance of procedure analogous to the Evidence Act was required. It is not proved through any of the witnesses that the petitioner was caught red handed while accepting the bribe. Demand of bribe is also not proved. Statement of rickshawala as also the statement of the panchas who were examined as witness do not at all prove the recovery of money from the petitioner. These witnesses have also not proved the acceptance of bribe. In fact, there is no panchanama or other evidence to establish the recovery of money either from the petitioner or from the rickshaw. Since there is no evidence of recovery of bundle of notes constituting Rs.5000.00 from the petitioner, bare statements of the witnesses would not prove the guilt against the petitioner of such a serious charges of acceptance of bribe. In fact, two rickshawala who were exmained as witnesses have not supported the case of prosecution and they have just stated that some one has thrown money in the rickshaw. Such kind of lose statement of so called star witnesses before the inquiry officer would not prove the serious charge of bribe against the petitioner. Rickshawalas had in clear terms stated before the inquiry officer that they had not seen anybody throwing money in the rickshaw. Thus there is no evidence against the petitioner and hence it cannot be said that the charges were proved against the petitioner. On the basis of such shaky finding of the inquiry officer without any evidence, appointing authority ought not to have imposed the major punishment of dismissal against the petitioner.
(10) The order of suspension passed against the petitioner was pending criminal investigation. Suspension was under regulation 69(1)(b).If the delinquent is required to be placed under suspension in anticipation of any departmental inquiry, suspension order is always passed under regulation 69(1)(a). Since the criminal investigation ended and dropped and no charge sheet pursuant to investigation was filed, suspension of the petitioner came to an end and the petitioner was therefore entitled to full salary as no criminal proceedings were initiated against the petitioner as per the decision of Hon'ble the Supreme Court in the case of General Manager UCO Bank and another versus M. Venurangnath reported in AIR 2008 SC page 732.The suspension was only pending criminal investigation and passed under regulation 69(1) (b) of the Regulations and since the suspension had already lapsed because of non filing of the any criminal charges against the petitioner, the petitioner is entitled to full salary for the suspension period.
7. As against the above submissions made on behalf of the petitioner, Mr. AC Gandhi, learned Advocate for the respondent Bank has made the following submissions :
(1) There is no provision in the service regulation to provide opportunity of personal hearing to the delinquent while taking decision on inquiry report by the disciplinary authority and appointing authority. Appointing authority took decision on inquiry report in terms of the provisions of regulation 68(iii) and the inquiry report as also the decision of the authority were in accordance with the regulations governing service conditions of the petitioner and, therefore, the decision of Hon'ble the Supreme Court in case of State Bank of India and others versus Ranjit Kumar Chakraborty & Anr. (supra) would not be of any help to the petitioner as the said decision would not apply to the facts of the case of the petitioner.
(2) There is no any irregularity in the inquiry conducted against the petitioner. The petitioner was fully aware about the procedure to be followed in the inquiry and was given full opportunity to defend himself in the inquiry. The petitioner was also assisted by the defence assistant and was aware about the details of the witnesses to be examined in the inquiry proceedings. The petitioner was given enough time and full opportunity to cross examine the witnesses. However, it was for the petitioner to avail such opportunity. On conclusion of the inquiry, the petitioner cannot make grievance that he had no opportunity to cross examine the witnesses. Since there is no procedural irregularity in the inquiry, inquiry cannot be said to have been vitiated on the alleged ground of breach of the principles of natural justice.
(3) No document unknown to the petitioner was taken on record of inquiry. The documents of panchanama etc. alleged to have been taken on record in absence of the petitioner were the documents taken on record through the witnesses and there is no illegality committed in adopting such procedure and, therefore, no irregularity in this respect has been committed by the inquiry officer. That the inquiry officer was not at all bias and it is not correct to say that the inquiry officer enjoyed the hospitality of the complainant and other officers. It is very easy to level such allegations against the inquiry officer but since there is no procedural irregularity in the inquiry and since the finding recorded in the inquiry is on the basis of the evidence adduced by the witnesses before the inquiry officer, the inquiry would not stand vitiated on the basis of such allegations.
(4) It is not correct to say that the finding reached by the inquiry officer is not supported by any relevant material. The finding recorded by the inquiry officer is on the basis of evidence of the witnesses and documents produced on record. Evidence of the witnesses examined in support of the say of the complainant has clearly established the charges against the petitioner and as per the settled principles of law, it is not open for the petitioner to assail such appreciation-evaluation of evidence made by the inquiry officer. Internal page 13 and 14 (running page 90 and 91 from the inquiry report) would go to show that the inquiry officer has considered and appreciated the evidence adduced and produced in the inquiry. The proceedings of inquiry placed at Annexure-J from page 75 clearly reveal that the petitioner was given full opportunity and all the evidence in the inquiry was duly evaluated, assessed and appreciated by the inquiry officer and it cannot be said that the finding recored by the inquiry officer is not supported by any material and cogent evidence. It is not correct to say that the petitioner was not caught red handed while accepting the bribe. The evidence of the witnesses examined during the inquiry clearly prove that the petitioner was caught red handed when he accepted the bribe. The statement of rickshawala as also the statements of panchas and other material on record would go to show that the petitioner had accepted the bribe of Rs.5,000.00. On the basis of anthracine powder which was found in the rickshaw wherein the petitioner had travelled, it has been proved in the inquiry on the basis of the evidence that it was the petitioner who himself had accepted the bribe of Rs.5000.00 while in the company of the complainant. There was sufficient material and evidence before the inquiry officer to come to the conclusion that the petitioner had committed serious misconduct of acceptance of bribe and thus charge against the petitioner was proved. The disciplinary authority, appellate authority as also the revisional authority, all have concurrently accepted the finding recorded by the inquiry officer and on the basis of the inquiry report, the punishment is imposed upon the petitioner and therefore, it is not open to the petitioner to assail the finding recorded by the inquiry officer.
8. The petitioner is not entitled to any salary for the period of suspension on the ground that the suspension of the petitioner was pending criminal regulation and was made under regulation 69(1)(b) of the Regulations. In the case of the petitioner, after the investigation was over, departmental inquiry had commenced and charge against the petitioner is proved and major punishment of dismissal is imposed against the petitioner and, therefore, suspension merges with the final order of punishment and, therefore also, the petitioner is not entitled to any salary during the period under suspension and therefore, the decision of the Hon'ble Supreme Court in the case of General Manager UCO Bank and another versus M. Venurengnath (supra) is of no help to the petitioner. In the case before the Hon'ble Supreme Court, the delinquent was exonerated from the charges and he became entitled to the salary for the period of suspension. In the case of the petitioner, the petitioner is found guilty of the serious charges levelled against him and he is dismissed from service and, therefore, not entitled for any salary for the period of suspension. Since the serious charges against the petitioner are proved and since the petitioner was required to exercise higher standards of honesty and integrity and since the petitioner is found to have indulged in to acceptance of bribe, the petitioner does not deserve any sympathy and this court should not exercise the powers under Article 226 of the Constitution of India in favour of such petitioner. Learned Advocate Mr. Gandhi has placed reliance on the decision of this Court in case of Manibhai J. Patel versus State Bank of India reported in 2010(25) GHJ 513 and submitted that the bank officer who has failed to exercise higher standards of honesty and integrity and who is found to have indulged into misconduct of acceptance of bribe is not required to be shown any sympathy and is also not entitled to the writ of this Court under Article 226 of the Constitution of India.
Learned Advocate Mr. Gandhi relies on the decision in the case of Oriental Bank of Commerce and another Versus RK Uppal reported in (2011) 8 SCC 695 and submitted that the requirement of natural justice depends on the circumstances of each case, nature of inquiry and doctrine of natural justice cannot be imprisoned within the straitjacket of a rigid formula. It has to be within the scheme and other relevant circumstances disclosed in the particular case. He referred to page 703, 705 and 707 of the said decision, especially para 22, 26 and 31 and submitted that the petitioner should not be given benefit of technical point. There was no question of giving personal hearing by the appointing authority-disciplinary authority when the inquiry was concluded in the right manner. Since the proper procedure was followed during the inquiry, extra-ordinary powers of this Court under Article 226 of the Constitution of India may not be exercised by this Court in favour of the petitioner after a period of 25 years.
9. I have considered the submissions made on behalf of both the parties. I have perused entire record of the petition including inquiry proceedings and the report thereon as also the affidavit in reply filed by the respondent bank.
10. The following imputation of charges were drawn against the petitioner in departmental inquiry:
“That in terms of instructions contained in paragraph 6,Chapter I of Bank's Book of Instructions, inter alia, it is enjoined upon all the members of staff not to accept any bribe from any constituent or a member of the public. But Shri Ojha on the 23rd July, 1985, demanded a bribe of Rs.36000/- from one Shri Suresh B. Sharma resident of Sorabji Compound “Wadaj”, Ahmedabad in consideration for taking possession of latter's building situated at 36, Bhawana Society, Shah Alam Roza, Ahmedabad whichhad already been accepted by the Bank on hire to house its Ahmedabad (Shah Alam Roza) Branch thereat. He finally agreed to accept Rs.15,000/- for the purpose and out of which Rs.5,000/- was required to be paid on the 24th July, 1985 as first instalment and the remaining amount of Rs.10,000/- was to be paid after completion of the work of taking possession of the aforesaid building. Shri Sharma lodged a written complaint with the Anti Corruption Bureau Ahmedabad in this regard. Shri Ojha received Rs.5,000/- as bribe from the said Shri Sharma on the 24th July, 1985 and was caught by the Anti Corruption Bureau, Ahmedabad. He, thus, exhibited lack of integrity and acted in a manner unbecoming of Bank Official.”
11. It is pertinent to note here on the basis of complaint before the Anti Corruption Bureau, trap was laid. However, no criminal proceedings were initiated against the petitioner but the respondent bank decided to hold departmental inquiry against the petitioner for above mentioned charges. Though I find that the petitioner was given ample opportunity in the inquiry proceedings, there was no legal evidence adduced in the inquiry to prove the charge against the petitioner. I find that it is a case of no evidence against the petitioner. I also find that the order of penalty of dismissal against the petitioner cannot stand scrutiny of law because before passing the order of penalty of dismissal against the petitioner, the appointing authority which was higher in rank than the disciplinary authority did not give opportunity of hearing to the petitioner. I have reached to the above conclusions on the basis of following reasons based on the record of the inquiry proceedings. I am conscious of the established principles of law to the effect that there is a limited scope of judicial review in respect of the departmental proceedings and it is not open for this Court to re-appreciate the evidence in the inquiry proceedings and to substitute the view taken by the inquiry officer. However, as held by Hon'ble the Supreme Court in the case of Moni Shankar versus Union of India and another, reported in (2008) 3 SCC 484; Union of India and others versus Gyan Chand Chattar reported in (2009) 12 SCC 78; Union of India and others versus Naman Singh Shekhawat, reported in (2008) 4 SCC 1, it is always open to the Court to find out from the evidence on the record of inquiry whether there was legal evidence available on record to prove the charge against the delinquent and whether the decision making process was strictly adhered or not. It is true that in departmental inquiry, the procedure under the Evidence Act is not required to be followed. However, in respect of the serious charges like corruption against an officer, procedure analogous to the Evidence Act should be followed as far as possible.
12. Keeping in mind the above principles of law settled by Hon'ble the Supreme Court and the arguments made by the learned advocates for the parties, I scanned through entire inquiry proceedings and I find the following glaring aspects from the inquiry proceedings.
(1) On behalf of the respondent bank, in all ten witnesses were examined. Out of ten witnesses, seven witnesses [P.W.1 – Complainant, P.W.5 – S.
D. Pandya, Dy. S.P., C.B.I, Ahmedabad; P.W.6 Panch NO.1 Mohanlal Mathurasdas Panchal; P.W. 7 Auto Rickshaw Driver Shri Adambhai Ibrahimbhai;
P.W.8 another Auto Rickshaw Driver Rajnikant Shantilal Shah; P.W. 9 Ashokbhai Jayantilal Bhatt, P.I., ACB;PW 10 Umeshbhai Solanki Panch witness No.2] were examined to prove the charge of bribe against the petitioner.
(2) All the above seven witnesses did not give any independent evidence to prove the charge against the petitioner but through these witnesses,their statements recorded before the police were placed on record of inquiry and such statements before the police have been considered to be an evidence in inquiry by the inquiry officer to record the finding about guilt of the petitioner.
(3) Each of the above seven witnesses was cross examined by the petitioner. Evidence given in cross examination did not support and prove the charge leveled against the petitioner.
(4) From the first day of inquiry proceedings, the petitioner raised objection against the appointment of inquiry officer by stating that the inquiry officer would be bias against him as he had already taken part in one inquiry against the petitioner. During the course of inquiry also, petitioner made complaint in writing with supporting statement of three other officers to the effect that the inquiry officer was enjoying hospitality of the complainant and two other officers who collusively decided to work against the petitioner.
(5) The petitioner was not permitted to complete the cross examination of the complainant, by the inquiry officer and in the midst of his cross examination, inquiry officer ruled that since the another witness was present, his examination in chief should be taken up first and later on, the complainant would be called for examination. Then, on repeated calls, the complainant did not remain present and virtually at the end of inquiry,when the complainant remained present, the petitioner was informed to come within short duration which the petitioner could not come because of non availability of confirmed ticket in railway and ultimately without giving him further opportunity to complete the cross examination of the complainant, the evidence was closed.
(6) There is no evidence on record that any witness had seen the petitioner accepting bribe from the complainant. Finding recorded by the inquiry officer about the acceptance of bribe of Rs.5000/- by the petitioner is not supported by any evidence. The finding recorded by the inquiry officer in his report that the bribe was accepted by the petitioner while sitting in rickshaw bearing registration No. GRT 218 is not supported by evidence. At this stage, police statement of Panch Witness Shri Mohanlal Mathuradas Panchal (PW 6) is required to be referred. His following statement before the police was made part of examination in chief :
“Then, after Oza Saheb told me come with me in auto ixa towards bank premises and finish your work so I complainant and Oza Saheb seated in the rixa. Rixa went to shah alam Tolnaka road in the middle old Dhor Bazar,GOrdhanwadi our rixa put in trouble so we seated in another rixa No. GRT 218 this Rixa came from shah alam toldnaka to Bhulabhai Char Rasta at about 100 steps Oza Saheb tolk to Rixawala stop it, Oza Saheb told him give me five thousand and remaining ten thousand give me after two days. I will finish your bank premises work and we will take possession of your premises. Complainant given 5000/- notes from his left side pocket of the paint to Oza Saheb. Oza Saheb accepted it by his right hand and put in right side pocket of his paint and told me to go from rixa and order to rixa driver to drive forward so I and complaint came from rixa and rixa went towards Bhlabhai Char Rasta side at that time panch No.2 and other raided party person came in jeep behind us. Complainant signed his hand on his head during this period rixa went away so I and complainant seated in jeep and went. Rix. NO. GRT 218 went on and not found Patil Saheb asked complainant in Isanpur so we went to State Bank of Patiala at Bhlabhai Park and Oza Saheb not came to the bank. One person keep thei for watch and we went to Isanpur with raided party persons in the middle we found jeep No. 218 near Javaharnagar Ramuji Hall and asked driver where this tall man he replied he went near Bhatuya nagar where Oza went driver shown Inspector Shri Ashok Bhatt came in Rixa to Bhaduatnagar remaining persons come in jeep after rixa from JavaharnagarChar Rasta toBhaduatnagar, Isanpur, Oza Saheb was seen near went behind them and Oza Saheb tired to seat in Rixa No. GRR 22779 But Saheb stop him and Oza thrown notes bundle behind rear seat of rixa and tried to ran away but Bhatt Saheb caught him and stopped during this period Patil Saheb and other raided persons came there.Bhatt Saheb and Patil Saheb caught his Oza hands but Oza tried to ran away so Patial Saheb told him I am Police Inspector Anti Corruption Branch and shown his identity card. Oza told to go him at Maninagar Police Station Complaint lodged to CBI, so call CBI Police, so I come ABC Officer requested him to seat in jeep but he denied to seat in jeep but forcibly. So many persons gathered there. Auto Rixa No. GRR 2779 stopped and found ultraviolet lamp on the anthrocine powder notes which is lying in the autorixa No.GRR 2779and found light on the said notes and told him and rixa driver to Maninagar police station at that time Patil Saheb asked his name to Oza and instruction Nanalal to continue his lamp and except Mr.Oza, no have any sign on any pers on hand.”
13. Now this panch witness, when he was cross- examined, has stated as under:
“On side table of Trupti hotel I i.e.Shri Mohanlal Mathuradas Panchal along with One more person from police was also sitting beside us. Thereafter, Shri Rajeev Kumar and Shri Suresh B. Sharma order for Dosai. They finished the Dosai. At this stage, Shri Suresh B. Sharma offered Rs.5000/- on the table and Shri Rajeev Kumar refused to accept it. And said we will go out and see. Thereafter, Shri Rajeev kumar and Shri Sureshbhai Sharma came out and sat in an auto rickshaw The No. of the rickshaw was 218. And they left the place. We i.e. I, Patel Saheb Inspector ACB, Umeshkumar Solanki, Nanalal Barot, Head Constable, Ashok Bhatt, Inspector, ACB, and another person whose name I do not recollect came out of Trupti Hotel. Thereafter, I, i.e.”Shri Mohanlal Mathuradas Panchal along with Shri Ashokbhatt, Inspector, ACB sat in a rickshaw and followed the rickshaw of Shri Rajeev kumar and Shri Suresh bhai Sharma. Rest of the members of the trading party ie Shri Patel Saheb, Nanalal Barot Head Constable,Umesh kumar Solanki and another person whose name probably Paggi, sat in the police jeep. The said jeep was driven by one police driver. The jeep was following the auto rickshaw in which I ie Mohanlal Mathuradas Panchal along with Shri Ashok Bhatt were travelling. After approx., about 1 km, Suresh bhai got down from the auto rickshaw No.218. Our rickshaw was following their rickshaw No. 218 and when our rickshaw stopped in front of Shri SB Sharma, he told both of us that the money has taken. In the mean time, Shri Rajeev kumar had gone ahead in the rickshaw No.218. Thereafter, I ie Mohanlal Mathuradas Panchal,Ashok Bhatt and Shri SB Sharma sat in the auto rickshaw which followed the Rickshaw No. 218 and the police jeep was following us. This road was Dhor Bazar Road. Thereafter, at a distance of 50/100 yards from where our rickshaw started, there was a heard of 4/5 cows/buffalows. That increased the gap between our rickshaw and the rickshaw in which between Shri Rajeev kumar was travelling. The police jeep also stopped behind our rickshaw.Then we came to State Bank of Patiala, branch ie old branch. I do not recollect the exact location of the said branch. Thereafter, I got down from my rickshaw and accompanied Shri Paggi who got down from the police jeep and entered the branch gate. I, Mohanlal Mathuradas Panchal enquired from one of the employees whose name and identity I cannot recollect as it is a matter of 1 ½ years back, informed that Shri Rajeev kumar has gone out and he has not come back. Thereafter, we came out of the branch and informed Shri Patil Saheb inspector of ACB who was standing near the police jeep. Thereafter, Patial Saheb thought a little while and asked Shri Sureshbhai whether he knew the resident of Shri Rajeev kumar to which he said that he knew that Shri Rajeev kumar was staying somewhere in Isanpur, thereafter, the police jeep and the said rickshaw in which I ie Mohanlal Mathuradas Panchal and Ashokbhatt Inspector ACB were sitting rushed towards Isanpur. When the jeep along with the rickshaw reached the crossing of Jawahar Chowk, auto rickshaw was returning which was seen by Shri Ashok bhatt, Inspector ACB who was travelling in my rickshaw.The auto rickshaw was stopped by Shri Ashok Bhatt
Shri Ashok Bhatt Inspector ACB inquired from the driver of auto rickshaw 218 the whereabouts of the person who travelled in the rickshaw ie 218. I do not know the name of the driver of the auto rickshaw 218. The said driver said that he had dropped that person at Bhaduwatnagar. Thereafter, we proceeded approx., 100 steps when Shri Ashok Bhatt Inspector ACB saw Shri Rajeev Kumar on the left side of the road coming from south to north direction. Thereafter, Shri Rajeev kumar proceeded towards another rickshaw standing on the left side of the road from south to north direction. Thereafter, Nanalal Barot,Head Constable sat that the money was thrown in another rickshaw,which Mr. Rajeev was going to engage. Shri Nanalal was earlier travelling in the police jeep.”
14. Here, it is pertinent to note that during the inquiry, an attempt was made to establish that the money was given to the petitioner by the complainant while sitting in the auto rickshaw bearing No. GRT 218 in presence of Panch (P.W.-6 Mohanlal Mathuradas Panchal). Now, as per the above said evidence of the Panch (P.W. Mohanlal Mathuradas Panchal), he had never sat in the auto rickshaw bearing registration No. GRT 218 and though it was recorded in his police statement that he had accompanied the complainant in rick shaw No. GRT 218 but the statement recorded before the police cannot be treated as evidence without there being any independent evidence adduced in inquiry proceedings whereas in cross examination which is the only evidence by this very witness, it is clearly stated by this witness that he has not gone in the auto rickshaw bearing registration No.GRT 218 and, therefore,the charge of acceptance of bribe in the said rickshaw cannot be said to have been established against the petitioner. Except the above said panch witness, there is no other witness who has stated about the acceptance of the bribe by the petitioner. Therefore, the finding recorded by the inquiry officer about acceptance of bribe by the petitioner is not supported by any evidence.
15. The inquiry officer has also recorded the finding that the auto rickshaw bearing registration No. GRT 218 was followed by the officers of the ACB, another panch witness Shri Solanki (PW 10) and Shri Nanalal, Head Constable in another auto rickshaw as also one jeep and after the petitioner left the auto rickshaw bearing registration No. GRT 218 and was trying to board another rickshaw bearing registration No. GRR 2779, the petitioner was seen throwing away Rs.5,000.00 in the auto rickshaw bearing registration No. GRR 2779 on seeing the ACB Officers. Now, this allegation is also not supported by any evidence. Panch No.1 Mohanlal M. Panchal (P.W. 6) has stated in his cross that the Head Constable Nanalal had seen the petitioner throwing away money in the auto rickshaw bearing registration No.GRR 2779, however, said Head Constable Shri Nanalal has not been examined as witness at all.
16. Rickshaw Drivers are also not supporting the allegation about throwing away Rs.5000.00 in the auto rickshaw bearing registration No.GRR 2779. Rick shaw driver Adambhai Ismailbhai Patel (PW 7) has stated as under in his police statement:
“One person who was of the age of 25 to 30 years dropped money in the rickshaw standing there and ran away.”
17. Another rickshaw driver Rajnikant S.Shah (PW 8) has stated as under in his cross examination:
“They asked me who had thrown money in rickshaw, I said I do not know who has placed money in my rickshaw. I had seen bundle of Rs.5000/- in my rickshaw on the rear seat of my rickshaw.”
18. Thus, as regards allegation of throwing of money by the petitioner in the rickshaw, except the above said statement by panch witnesses, there is no other evidence, therefore, even on the allegation of throwing away money by the petitioner in the rickshaw,the finding recorded by the inquiry officer is not supported by any evidence.
19. The inquiry officer then based his finding about acceptance of bribe by the petitioner on the basis of the test alleged to have been conducted with the help of ultrasonic lamp to find out the presence of anthracine powder. Panch witnesses in their statements before the police stated that this test was carried out by the Head Constable Nanalal and it was he who found anthracine powder on the hands and on the clothes of the petitioner. Surprisingly, said constable Nanalal is not examined. Not only this but there is no independent evidence to prove the existence of anthracine powder on the hands and clothes of the petitioner. The statement of panch witnesses and the investigating officer about carrying out test by Head Constable Nanalal are forming part of the police investigation which are sought to be brought on record in the inquiry proceedings. As stated earlier, since the Head Constable Shri Nanalal is not examined and since there is no legal evidence adduced before the inquiry officer, this allegation about presence of anthracine powder on the hands and clothes of the petitioner cannot be said to have been proved.
This Court, having found the above said glaring aspects from the inquiry proceedings itself, is of the firm opinion that there was no legal evidence adduced before the inquiry officer to prove the charge against the petitioner. This Court is also of the opinion that even if the statements recorded by the police which are brought on record in the inquiry proceedings are treated to be evidence adduced by the respondent bank, then also, they cannot be considered to be sufficient evidence so as to prove the charge against the petitioner. Under the circumstances, the order of penalty of dismissal based on the inquiry report is illegal and cannot stand the scrutiny of law.
20. The order of dismissal is otherwise required to be quashed and set aside on the ground of not affording opportunity of hearing to the petitioner by the punishing authority (appointing authority) before passing the order of penalty. At this stage, Regulation 68 (3) (iii) is required to be quoted, as under:
“(iii) If the Disciplinary Authority, having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in regulation 67 should be imposed on the officer, it shall notwithstanding anything contained in sub-regulation (4),make and order imposing such penalty.
Provided that where the Disciplinary Authority is of the opinion that the penalty to be imposed is any of the major penalties specified in clauses (e), (f), (g) and (h) of regulation 67 and if it is lower in rank to the Appointing Authority in respect of the category of officers to which the officer belongs, it shall submit to the Appointing Authority the records of the enquiry specified in clause (xxi) (b) of sub regulation (2), together with its recommendations regarding the penalty that may be imposed and the Appointing Authority shall make an order imposing such penalty as it considers in its opinion appropriate.”
21. Thus, the proviso to above said regulation 68(3) (iii) provides that the Disciplinary Authority is of the opinion that the penalty to be imposed is any of the major penalties specified in clauses (e), (f), (g) and (h) of regulation 67 and if it is lower in rank to the Appointing Authority in respect of the category of officers to which the officer belongs, it shall submit to the Appointing Authority the records of the enquiry specified in clause (xxi) (b) of sub regulation (2), together with its recommendations regarding the penalty that may be imposed and the Appointing Authority shall make an order imposing such penalty as it considers in its opinion appropriate.
22. As found from the impugned order dated 6th August, 1987 page 76-77, the disciplinary authority has sent its recommendation to the appointing authority and the appointing authority thereupon passed the order of major penalty of dismissal against the petitioner straightway. However, before passing the order of dismissal, the petitioner was not given any opportunity of hearing. Reliance is placed by the learned Advocate on the decision of Hon'ble the Supreme Court in the case of State Bank of India & Ors. Versus Ranjit Kumar Chakraborty & Anr., reported in 2009-I-CLR 66, which covers this very issue of hearing on the interpretation of the above said clause from the regulation. Hon'ble the Supreme Court has ruled that when the disciplinary authority is not competent to pass the order of major penalty, that is of removal or other major penalty prescribed in the rule, papers are required to be placed by the disciplinary authority before the appointing authority which is competent to pass the order of major penalty and the appointing authority is required to hear the delinquent before passing the order of major penalty against the delinquent. Hon'ble the Supreme Court has observed that simply by recommending the matter and sending papers to appointing authority does not mean that the incumbent is not required to be heard in the matter. Hon'ble the Supreme Court has held that such order which is on the face of it is against the principles of natural justice, cannot be countenanced as it is void ab initio. In the present case also, the petitioner was not given any opportunity of hearing by the appointing – punishing authority after the disciplinary authority made recommendation on the basis of the inquiry conducted against the petitioner. Therefore, on this ground also, the impugned order of penalty passed against the petitioner cannot be sustained and is, therefore, required to be quashed and set aside. Since I have found that there was no legal evidence in the inquiry to prove the charge against the petitioner and since the impugned order of penalty imposed against the petitioner is in breach of the principles of natural justice, I do not accept any of the arguments made on behalf of the respondent bank.
23. Mr. KM Patel, learned Senior Advocate appearing for the petitioner has made submission that the order of suspension had lived its life on dropping of criminal proceedings and, therefore, the petitioner was entitled to be treated as having been on service and was entitled to full salary during the period of suspension. IN fact, this contention of the learned Senior Advocate Mr. Patel cannot be accepted in view of Regulation 69(5) of the Regulations. In the present case, though criminal charges were not proceeded further, still, since the departmental inquiry was initiated and since the respondent authority had not decided to modify or revoke the order of suspension and since the suspension of the petitioner had continued till the final order of punishment was passed against the petitioner, it cannot be said that the petitioner's suspension had come to an end on dropping of criminal charges against him. Therefore, reliance placed by the learned Senior Advocate for the petitioner on the judgment of Hon'ble the Supreme Court cannot be accepted, as the case of the petitioner is governed by regulation 69(5) of the Regulations of the Bank. I, therefore, do not accept the contention raised by the learned Senior Advocate Mr. Patel that the petitioner is entitled to full salary for the period of suspension by treating the petitioner on service after the criminal charges against the petitioner were dropped. In fact, since I have held that the very order of penalty of dismissal passed against the petitioner itself is bad in law, above said contentions about treating the suspension period on duty was not required to be gone into, still, said contention is dealt with.
24. In that view of the matter, petition is allowed and accepted. Impugned order dated 6th August, 1987 imposing penalty of dismissal against the petitioner confirmed in appeal and revision is hereby quashed and set aside. The petitioner is held entitled to be in continuous service till the age of his superannuation with all consequential benefits. However, as far as the actual monetary benefit of salary and other allowances for the period during which the petitioner remained out of job is concerned, the petitioner shall be entitled to only 50 per cent of such monetary benefits (back wages) from the date of order of dismissal from service till the date of his superannuation. The respondent bank is directed to pay above said benefits with other consequential benefits to the petitioner within three months from the date of service of this order to the respondents. Period of suspension of the petitioner shall be treated as period spent on duty for the purpose of continuity of service only. Rule is made absolute to the extent indicated herein above with no order as to costs.
(C.L. Soni,J.) an vyas Learned advocate for the respondent Bank requests to stay operation of the judgment pronounced by this Court today, for a period of four weeks. Since I have already directed the respondent bank to give benefits to the petitioner within the period of three months, I do not think it fit to accept the request made by the learned advocate for the respondent bank. Hence, the request made by the learned advocate for the respondent is rejected.
(C.L. Soni,J.) an vyas