Heard Sri Siddharth Khare, learned counsel for the petitioner as well as Sri P.K. Singhal, learned counsel for the respondents-Bank and perused the record.
Pleading between the parties have been exchanged and with their consent, the present petition is being decided finally at the admission stage itself.
Present petition has been filed challenging the impugned order dated 30.6.2012 passed by the General Manager of the Prathma Bank and the order dated 27.12.2012 passed by the Chairman, Prathma Bank, Moradabad. A further prayer has been made to direct the respondents to forthwith reinstate the petitioner on his post with all consequential benefits of continuity of service with all arrears of salary.
By the impugned order dated 30.6.2012 passed by the General Manager of the Bank, the petitioner, who was working as Clerk/Cashier, was dismissed from service under Regulations 18, 20, 22 & 23 of the Prathama Bank (Officers and Employees) Service Regulations, 2010. Departmental appeal filed by the petitioner was dismissed by the Chairman of the Bank vide order dated 27.12.2012. The aforesaid two orders are under challenge.
Brief facts of the present case are that the petitioner was working as Clerk/Cashier in the respondent-Bank. He was issued a charge-sheet dated 10.6.2011. Two charges were levelled against him; (i) that the petitioner had been absent from Bank service for a total of 414 days unauthorizedly and (ii) that the petitioner had been found engaged in commercial dealings with "Maxima Trade Incorporation" without permission from the competent authority. The petitioner was given an opportunity to submit his reply. After receiving the charge-sheet, vide letter dated 5.7.2011 he demanded certain documents, which were supplied to him by the enquiry officer along with covering letter dated 26.7.2011. Thereafter he appeared in the enquiry proceedings and submitted affidavits of two persons namely, Harpal Singh s/o Sri Nanak Singh and Prabhu Singh Saini s/o Sri Ram Singh Saini in his favour. From the record, however, it appears that he did not file any reply to the same. A perusal of the enquiry report indicates his participation in the enquiry proceedings and cross-examination of witnesses produced by the Management of the Bank. He, however, submitted his written submission dated 28.10.2011 as an opportunity was granted to him by the enquiry officer to submit such written submission, if he so desires. The enquiry report was submitted against the petitioner and the petitioner was found guilty of the charges. The petitioner was admittedly supplied copy of the charge-sheet and was grated opportunity to submit his representation/comments along with covering letter dated 9.12.2011. In response to the same, the petitioner submitted his representation dated 29.12.2011. Thereafter a show cause notice dated 9.2.2012 was given to the petitioner regarding proposed punishment, to which he submitted his reply dated 28.2.2012. Subsequently, the impugned order dated 30.6.2012 was passed by the respondent no. 2- General Manager, Prathama Bank. Appeal again the same was also dismissed vide order dated 27.12.2012. Hence the present petition.
Submission of the learned counsel for the petitioner is that the enquiry proceedings are vitiated on several counts. He submits that reply of the petitioner was not at all considered by the enquiry officer. The petitioner has been shown to be absent in unauthorized manner for a period of 414 days whereas he was entitled for more than 500 days leave and therefore, this charge in itself is incorrect and baseless. He further submits that in fact for the absence of the petitioner, his salary had already been deducted and annual increments have also been stopped. Submission, therefore, is that the petitioner can not be punished twice for the same charge. In other words, submission is that it is a case of double jeopardy and impugned order is not sustainable. It was next submitted that two persons, who have filed complaint, have filed their affidavits, which were filed during the enquiry proceedings, wherein they have stated that they have no grievance against the petitioner, have not at all been considered by the enquiry officer. Drawing attention to the show cause notice dated 9.2.2012, annexure-13 to the writ petition, it was submitted that before issuing the show cause notice, a conclusion had already been arrived at by the disciplinary authority that the charges levelled against the petitioner stand proved beyond any doubt. Submission is that since before issuing the show cause notice the disciplinary authority has already drawn conclusion against the petitioner, therefore, the same is vitiated and dismissal based on the same is not sustainable in the eye of law. To press this points, learned counsel for the petitioner has placed reliance on a judgement of Hon'ble Apex Court rendered in the case of H.P. State Electricity Board Ltd. vs. Mahesh Dahiya, 2017 (2) ESC 289 (SC) (para 26). Submission, therefore, is that in view of the law laid down in the above noted Mahesh Dahiya's case, re-hearing of the case is required from the stage of defect and the impugned orders are not sustainable in the eye of law. It was next submitted that one Mamta Waliya had initiated criminal proceedings against the petitioner wherein when charge-sheet was submitted, the petitioner's name figured in the list of the witnesses and he has not been accused in the aforesaid case and he has not been chargesheeted, therefore, second charge levelled against the petitioner is not proved. It is submitted that criminal complaint was filed by Smt. Mamta Waliya whereas her husband Ravi Waliya has appeared as witness in the departmental enquiry and she did not appear in the department proceeding, therefore, the conclusion drawn on the basis of the statement of Ravi Waliya is not sustainable.
Per contra, Sri P.K. Singhal, learned counsel appearing for the respondent-Bank has supported the impugned orders. He has drawn attention to the enquiry proceedings annexed as Annexure-3 to the counter affidavit and submitted that the petitioner had never filed any reply to the charge-sheet and has, in fact, submitted his written submission only after conclusion of the charge-sheet pursuant to the permission granted by the enquiry officer and they have been duly considered by the enquiry officer. It was further pointed out that the petitioner has admittedly filed only two affidavits in the shape of documentary evidence as noticed above. Sri Singhal has taken me through the enquiry proceedings to indicate that at every stage the petitioner was granted opportunity to rebut the allegations levelled against him and he has cross-examined each and every witness and therefore, there was no defect in the enquiry proceedings and no interference is warranted under Article 226 of the Constitution of India. It was further pointed out that despite of the sufficient opportunity granted by the enquiry officer he did not produce any witness and a categorical statement to this effect was made by him. Attention was also drawn to pages 36 and 47 of the counter affidavit in this regard. It was next submitted that on the earlier occasion petitioner was awarded punishment for which attention was drawn to the punishment order dated 7.1.1998 annexed as annexure 2 to the counter affidavit. Submission is that insofar as the charge no. 1 is concerned, the petitioner is habitual absentee and in this regard, as back as in the year 2006 vide letter dated 2.3.2006 at page 52 of the counter affidavit, he was warned to follow leave rules in future, otherwise disciplinary action shall be initiated against him. Submission, therefore, is that the petitioner is habitual of unauthorized absence and was being constantly warned, informed and punished in this regard but he did not improve himself. Insofar as the other charge is concerned, submission is that the same is based on the documentary as well as oral evidence and the petitioner had cross-examined the witnesses and as such, there is no defect in the same and that the criminal proceedings as well as the departmental proceedings are different in nature and it is the settled law that criminal proceedings would not affect the conclusion drawn in the disciplinary proceedings.
In support of his argument, learned counsel for the respondent-Bank has placed reliance on a judgement of this Court in Dinesh Chandra Jain vs. Syndicate Bank and others rendered in Civil Misc. Writ Petition No. 39652 of 2000 decided on 26.5.2006 and another judgement of Hon'ble Division Bench of this Court in Special Appeal No. 798 of 2007 (Syndicate Bank vs. Ashok Kumar) dated 17.8.2016. Submission, therefore, is that the Bank has lost faith in the petitioner because of his working detrimental to the interest of the bank and therefore, no interference is warranted in the orders impugned herein.
I have considered the rival submissions and perused the record.
On perusal of the record, I find that the petitioner has in fact not given specific reply to the charge-sheet but he had actively participated in the enquiry proceedings and had also cross-examined the witnesses. Two affidavits of Harpal Singh s/o Sri Nanak Singh and Prabhu Singh Saini s/o Sri Ram Singh Saini was filed in his support to indicate that the complaint filed against him was redressed and therefore, they did not press the complaint any further. These two affidavits have been specifically noticed by the enquiry officer and he found that as a matter of fact the complaint was withdrawn by them as the complaint was redressed, therefore, it is clear that the complaint was filed against the petitioner, which was subsequently redressed. In such view of the matter, I find that the finding recorded by the enquiry officer is not perverse on this count. Insofar as the appreciations of other statement are concerned, statement of witnesses who were duly cross-examined by the petitioner, clearly proves the charges levelled against the petitioner and I find that the conclusion drawn on the basis of such evidence is not perverse so as to attract interference by this Court under a very limited powers of re-appreciation of evidence under Article 226 of the Constitution of India.
It is the settled law that the principle of double jeopardy does not apply in the field of service law and therefore, submission of learned counsel for the petitioner that for unauthorized absence the petitioner has already been punished and his salary was also deducted, is of no help. Further, charge no. 2 is specifically regarding working of the petitioner with some other firm engaged in financial activities and was directly detrimental to the working of the Bank. For this charge the petitioner never faced disciplinary proceedings earlier. Hence question of award of punishment twice for same charge does not arise.
Insofar as submission of learned counsel for the petitioner that reply was not at all considered in the enquiry proceedings, I find that as a matter of fact the petitioner had never filed any reply to the charge-sheet and he has submitted only his written submission dated 28.10.2011 pursuant to the opportunity granted by the enquiry officer as is reflected from perusal of page 47 of the counter affidavit. Thus, clearly this written submission was filed after conclusion of the enquiry proceedings. Further, as already indicated above at pages 36 and 47 of the counter affidavit, the petitioner in his categorical terms has clearly stated that he does not want to produce any document or witness in his support. Further, perusal of the written submission dated 28.10.2011 and enquiry report submitted clearly indicates that this written submission has been considered at relevant stages where the relevant charge is dealt with. Under such circumstances, I find that there was not defect in the enquiry proceedings.
Insofar as submission of learned counsel for the petitioner that before issuing show cause notice since disciplinary authority has already set up his mind that the charges levelled against the petitioner stands proved beyond any doubt, therefore, the matter is liable to be remanded back is concerned, in view of judgement of Hon'ble Apex Court in Mahesh Dahiya (supra) suffice it to note that along with covering letter dated 9.12.2011 (annexure 11 to the writ petition) enquiry report was supplied to the petitioner and he was also granted time to file his representation/comments, if any, within 7 days. Annexure 12 is representation dated 29.12.2011 filed in pursuance thereof. The judgement of Hon'ble Apex Court is to the effect that if the disciplinary authority forms any opinion to punish the petitioner without forwarding the enquiry report to the delinquent and before obtaining his comments on the enquiry report then the enquiry proceeding is vitiated. This is not clearly applicable in the present case and therefore, the ratio of the said judgement is not applicable in the present case.
It is the settled law that in the public financial institution the employees of fraudulent nature are detrimental to the interest of the bank and such employee should not be allowed to continue in the service. The bank has lost the trust reposed on the employee.
A reference may be made to a judgement of Hon'ble Division Bench of this Court passed in Special Appeal No. 798 of 2007 (Syndicate Bank Head Officer Manipal Thru' M.D. & others vs. Ashok Kumar) dated 17.8.2017 as noted above, relevant extract of paragraphs 14, 22 & 22 whereof is quoted as under:
"14........ In the public financial institution the employees of fraudulent nature are detrimental to the interest of the bank and such employee should not be allowed to continue in the service. The bank has lost the trust reposed on the employee. The Disciplinary Authority as well as the Appellate Authority had duly considered the objections raised by the petitioner in connection of quantum of punishment and the findings recorded by the learned Single Judge are contrary to the record.
22. In Regional Manager and Disciplinary Authority SBI Hyderabad vs. S. Mohad. Gaffar AIR 2002 (SC) 3037 the Supreme Court interpreted the words 'gross misconduct' as against the 'minor misconduct' under the 'Shashtriya Award' and 'Desai Award' applicable to the employees of the bank and held that the expression 'gross misconduct' is not to be viewed or considered as it may appear or appeal to the perception of the court. It has to be construed in the context of the definition. If any act is done prejudicial to the interest of the bank or gross negligence involves, or is likely to involve the bank in serious loss and where the employee of the bank knowingly makes a false statement in any document pertaining to or in connection with the employment with the bank, the findings on such issue would amount to gross misconduct. The penalty or punishment imposed by the disciplinary authority or appellate authority will not be treated to be excessive, shocking conscious of the court, if it is permissible. The High Court does not normally interfere or substitute its own opinion and impose some other punishment or penalty than the punishment imposed by the bank.
23. Similar view was also taken in Union of India and ors vs. K.G. Singh (2006) 3 ESC 373 (SC) limiting judicial review to the deficiency in the decision making process and not the decision itself. In State Bank of India vs. T.J. Pal (1999) 4 SCC 759 the Supreme Court obserJved that proof of actual loss was not necessary for punishing a bank employee. In Union of India vs. Vishwa Mohan 1998 (4) SCC 310 it was held by the apex court that absolute devotion, diligence and integrity is required from the employees in the banking business, otherwise the confidence of the public will be impaired."
A reference may also be made to a judgment in the case of Union of India Vs. P. Gunasekaran 2015 (2) SCC 610. Paragraphs 13, 14 19, 20 and 21 of the judgment in the case of P. Gunasekaran supra are quoted as under:
"13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience.
14. In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao, AIR 1963 SC 1723, many of the above principles have been discussed and it has been concluded thus:
"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."
"19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to reappreciate the evidence in exercise of its jurisdiction under Articles 226/227 of the Constitution of India.
20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values.
21. The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service. That view has been endorsed by the Central Administrative Tribunal also. Thereafter, it is not open to the High Court to go into the proportionality of punishment or substitute the same with a lesser or different punishment. These aspects have been discussed at quite length by this Court in several decisions including B.C. Chaturvedi v. Union of India and others, 1995 (6) SCC 749, Union of India and another v. G. Ganayutham, 1997 (7) SCC 463, Om Kumar and others v. Union of India, 2001 (2) SCC 386, Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Association and another, 2007 (4) SCC 669, Coal India Limited and another v. Mukul Kumar Choudhuri and others, 2009 (15) SCC 620 and the recent one in Chennai Metropolitan Water Supply (supra)."
In such view of the matter, I do not find any legal infirmity in the order impugned.
Present petition lacks merit and is accordingly dismissed. There shall be no order as to costs.
Order Date :- 28.3.2018 Abhishek