Anurag Kumar vs Union Of India And Others
2013 Latest Caselaw 396 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 28
 

 
Case :- WRIT - A No. - 24618 of 2006
 

 
Petitioner :- Anurag Kumar
 
Respondent :- Union Of India And Others
 
Petitioner Counsel :- S.N. Dubey,S.N. Pandey,S.S. Singh,Shashi Nandan
 
Respondent Counsel :- A.K. Nigam, A.S.G.I.,S.C.,Saumitra Singh,Vipin Sinha
 

 
Hon'ble B. Amit Sthalekar,J.

This writ petition has been filed by the petitioner challenging the order dated 31.3.2006 passed by the Assistant General Manager, Bank of Baroda, Regional Office (Agra Region) in exercise of power under Section 12 (c) of "Memorandum of Settlement dated 10th April, 2002 on Disciplinary Action and Procedure" against the petitioner.

Briefly stated the facts of the case are that a chargesheet dated 9.2.2005 was issued to the petitioner wherein it was alleged that on 23.12.2000 the petitioner purchased two demand drafts of Rs.25,000/- each bearing No. NK 330838 and N.K. 330839 drawn on Saharanpur Branch from the Begum Bridge Branch, Meerut in favour of one Sri Dinesh Chandra while posted at the Bank's Modinagar Branch. The DDs are stated to have been paid by the Saharanpur (M) Branch through clearing to Vijaya Bank for crediting the payee account. It was further alleged that the petitioner misrepresented the Begum Bridge Branch that the said DDs Purchased on 23.12.2000 had been lost in transit and requested for cancellation for the same and, thereafter, he requested the Begum Bridge Branch to pay the proceeds by issuing two DDs of Rs.25,000/- each in favour of the petitioner payable at Modinagar Branch. It was also alleged that the petitioner executed an indemnity bond duly witnessed by Sri M.M.Jindal and Sri A.D.Sharma, staff of the Modinagar Branch and the proceeds of the DDs dated 2.11.2001 were credited to the account of the petitioner at Modinagar Branch.

The allegation is that thus the petitioner fraudulently obtained payment of Rs.50,000/- of the DDs no.N.K.330838 and N.K.330839, which had already been paid.

The petitioner submitted his reply to the chargesheet on 1.7.2005 denying the allegations made against him. An enquiry was held and the Enquiry Officer submitted his enquiry report on 25.7.2005 holding the petitioner guilty of charges no.1 to 5. Notice was issued to the petitioner on 12.8.2005 to submit his reply to the enquiry report and the petitioner submitted his reply on 27.8.2005 denying the allegations and assailing the findings of the Enquiry Officer. The Disciplinary Authority after considering the enquiry report and charges against the petitioner passed an order of penalty dated 31.3.2006 imposing the following punishment:-

"Be discharged from service with salary equivalent to one month notice. Suspension period of Mr.Anurag Kumar shall not be treated as period spent on duty and therefore Mr. Anurag Kumar shall not be entitled to any pay and allowances for the period of suspension except subsistence allowance which has already been paid to him."

I have heard Sri S.N.Dubey, learned counsel for the petitioner and the learned counsel for the Bank.

At the outset Sri S. N. Dubey submitted that prior to the punishment awarded to the petitioner by the impugned order dated 31.3.2006 the Disciplinary Authority had proposed the following penalty:-

"Be removed from service with superannuation benefits as would be due otherwise at that stage and without disqualification from future employment. Suspension period of Mr. Anurag is hereby confirmed and will be treated as period not spent on duty. He will not be entitled for any pay and allowance except whatever has been paid as subsistence allowance."

Information regarding this proposed penalty order was obtained by the petitioner through R.T.I. application dated 12.8.2011 under the Government's letter dated 8.9.2011, which has been filed as Annexure-1 to the supplementary affidavit dated 4.1.2012. This proposed punishment finds mention in the letter of the Assistant General Manager (Vigilance),Central Vigilance Department, BCC, Mumbai dated 12.1.2006. In the said letter the Assistant General Manger (Vigilance) has recommended the penalty, which was finally imposed against the petitioner through the impugned order of the Disciplinary Authority dated 31.3.2006.

Reasons for the proposed change of penalty has been given in the letter dated 12.1.2006 itself which reads as under:-

"Under the circumstances if we go for Punishment as suggested by DA, i.e.

"Be removed from service with superannuation benefits as would be due otherwise at that stage and without disqualification from future employment." Suspension period of Mr.Anurag Kumar is hereby confirmed and will be treated as period not spent on duty. He will not be entitled for any pay and allowances except whatever has been paid as subsistence allowance," there is every chance that the punishment order may be challenged in a court of law at a later date, and would be difficult for the bank to defend effectively." However it is also clear that though DDs in question were already paid to the payee, the CSE misled the Bank and obtained payment of the same. Thus Bank has sufficient ground to doubt integrity of the CSE. Past record of Mr. Anurag Kumar is not satisfactory. Continuing the services of persons like him is fraught with risk. It is therefore suggested that we may invoke Section 12(C) of the Bipartite Settlement against Mr.Anurag Kumar and advise DA to examine and submit revised recommendations."

Sri S.N. Dubey has drawn the attention of the Court to last two lines of the recommendation made by the Assistant General Manager (Vigilance) wherein he has stated that the penalty under Section 12 (C) of the Bipartite Settlement be invoked against Mr.Anurag "and advise DA to examine and submit revised recommendations".

The learned counsel for the petitioner submitted that this was virtually a direction given by the Assistant General Manger ( Vigilance) on behalf of the Central Vigilance Department to the disciplinary authority to pass the penalty order in the manner as proposed in the letter dated 12.1.2006 and the words 'submit revised recommendations' did not leave any scope for independent exercise of mind by the Disciplinary Authority with regard to the penalty to be imposed against the petitioner.

In support of his submission Sri S.N.Dubey further referred to the final penalty order dated 31.3.2006 wherein the penalty imposed against the petitioner is in the same language as proposed by the Central Vigilance Department, Mumbai in the letter dated 12.1.2006.

In this regard Sri Dubey has placed reliance upon a decision of the Supreme Court reported in 1991 (3) SCC 219, Nagaraj Shivarao Karjagi vs. Syndicate Bank, Head Office, Manipal and another wherein in the same circumstances the Disciplinary Authority had passed the order of penalty in the same terms as proposed by the Central Vigilance Department and the Supreme Court held that the Disciplinary Authority exercising quasi judicial power has the power to exercise his own views on the merits of the matter and impose any appropriate punishment on the delinquent officer and the bank cannot be told by the Central Vigilance Department to impose a particular penalty.

Paras 15 and 16 of the Nagaraj Shivarao Karjagi judgement (Supra) reads as follows:-

"15. We are not even remotely impressed by the arguments of counsel for the Bank. Firstly, the Bank itself seems to have felt as alleged by the petitioner and not denied by the Bank in its counter that the compulsory retirement recommended by the Central Vigilance Commission was too harsh and excessive on the petitioner in view of his excellent performance and unblemished antecedent service. The Bank appears to have made two representations; one in 1986 and another in 1987 to the Central Vigilance Commission for taking a lenient view of the matter and to advise lesser punishment to the petitioner. Apparently,those representations were not accepted by the Commission. The disciplinary authority and the appellate authority therefore have no choice in the matter. They had to impose the punishment of compulsory retirement as advised by the Central Vigilance Commission. The advice was binding on the authorities in view of the said directive of the Ministry of Finance, followed by two circulars issued by the successive Chief Executive of the Bank. The disciplinary and appellate authorities might not have referred to the directive of the Ministry of Finance or the Bank circulars. They might not have stated in their orders that they were bound by the punishment proposed by the Central Vigilance Commission. But it is reasonably foreseeable and needs no elaboration that they could not have ignored the advice of the Commission. They could not have imposed a lesser punishment without the concurrence of the Commission. Indeed, they could have ignored the advice of the Commission and imposed a lesser punishment only at their peril.

16.The power of the punishing authorities in departmental proceedings is regulated by the statutory Regulations. Regulation 4 merely prescribes diverse punishment which may be imposed upon delinquent officers. Regulation 4 does not provide specific punishments for different misdemeanours except classifying the punishments as minor or major. Regulations leave it to the discretion of the punishing authority to select the appropriate punishment having regard to the gravity of the misconduct proved in the case. Under Regulation 17, the appellate authority may pass an order confirming, enhancing, reducing or completely setting aside the penalty imposed by the disciplinary authority. He has also power to express his own views on the merits of the matter and impose any appropriate punishment on the delinquent officer. It is quasi- judicial power and is unrestricted. But it has been completely fettered by the direction issued by the Ministry of Finance. The Bank has been told that the punishment advised by the Central Vigilance Commission in every case of disciplinary proceedings should be strictly adhered to and not to be altered without prior concurrence of the Central Vigilance Commission and the Ministry of Finance."

Learned counsel for the bank per contra submitted that the letter dated 12.1.2006 of the Assistant General Manager (Vigilance) is only an opinion and cannot be construed to be a direction issued to the Disciplinary Authority to impose a particular penalty.

I am not inclined to agree with the submission of the learned counsel for the Bank for the simple reason that in the letter of Assistant General Manager (Vigilance) dated 12.1.2006 the punishment, which was ultimately imposed against the petitioner was clearly mentioned as the punishment recommended by the Central Vigilance Department and the Disciplinary Authority was advised to "submit his revised recommendations" although the letter itself seems to mention the word 'examine' but the word 'examine' has to be considered in the light of the subsequent word used which are "submit revised recommendations". It is a matter of record that the initial penalty proposed by the Disciplinary Authority was one of the removal from service with superannuation benefits without disqualification for future employment but the Disciplinary Authority was directed to submit his revised recommendations in the light of the punishment proposed in the letter dated 12.1.2006, which ultimately was the penalty imposed against the petitioner.

In this view of the matter, the impugned order dated 31.3.2006 cannot be stated to have been passed by the Disciplinary Authority in free and independent exercise of his own mind to the allegations against the petitioner but rather it has been passed on the diktat of the Central Vigilance Department,Mumbai.

For reasons stated above, the impugned order dated 31.3.2006 is, therefore, quashed.

The writ petition is allowed.

It will be open for the Disciplinary Authority, respondent no.3, Assistant General Manager, Bank of Baroda, Regional Office (Agra Region) to pass fresh orders in the light of the observations above without being influenced by the letter of the vigilance department dated 12.1.2006

Order Date :- 5.4.2013

Asha