L.K.Jain vs P.N.B. And Others
2013 Latest Caselaw 7510 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 

 
Case :- WRIT - A No. - 16504 of 1996
 

 
Petitioner :- L.K.Jain
 
Respondent :- P.N.B. And Others
 
Counsel for Petitioner :- P.K.Saxena,A.K. Srivastava,Sumit Srivastava
 
Counsel for Respondent :- K.L.Grover,Ramesh Singh,Sc
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Bharat Bhushan,J.

(Delivered by Hon'ble Rakesh Tiwari, J.)

This petition challenges the legality and correctness of impugned orders dated 30.1.1995 and 10.10.1995 passed by the D.G.M., the disciplinary Authority (respondent no. 3), and the General Manager, the appellate Authority of Punjab National Bank (respondent no. 2), appended as Annexures 14 and 15 respectively to the petition. Petitioner has further prayed for a writ of mandamus commanding the respondents to treat him with continuity of service and all consequential service benefits.

Factual matrix of the case are that the petitioner was working as officer in Punjab National Bank in JMG Scale-1 since 16.9.1986. He was served with a charge sheet dated 13.4.1992 for certain misconduct said to have been committed by him while working as an Accountant at Private Sector cell at Branch Office, C.L. Bulandshahr during the period 09.12.1989 to 24.5.1991. The two Articles of charges against him reads as under:-

Article -I

He recommended loan proposals prompting reckless lending in connivance with borrowers/middlemen and with the purported suppliers by disregarding the prescribed pre-sanction appraisal and post-sanction control thereby faciliating misappropriation/mis-utilization of bank's huge funds thus putting the bank's interests to jeopardy as also tarnishing the image of the bank.

Article- II

He defaulted in discharge of his primary responsibility, disobeyed the express instructions of higher authorities and misreported the facts in order to his connivance with manager/borrowers/purported suppliers thus jeopardizing Bank's interest.

He thus, failed to take all possible steps to protect the interest of the Bank and did not discharge his duties with utmost honesty, integrity, devotion and diligence and committed misconduct in terms of Regulation 3 (1) of Punjab National Bank Officer Employee (conduct) Amendment Regulation, 1989.

The statement of amputation of charges in support of the charges in details for providing his misconduct and allegations are given in Annexure No. 2 to the writ petition. Reply to the charge sheet was submitted by him on 25.6.1992. Thereafter inquiry was instituted in the matter on 9.11.1992. Sri C.S. Pasricha (Sr. Manager) and Mr. Gochawar (Manager Regional Office) were appointed as the inquiry officer and presenting officer respectively.

Since a common enquiry was set up into the truth of amputation of lapses against Sri R. P. Singh, Manager and Sri L. K. Jain the petitioner, who were both under suspension, the department decided to conduct their enquiries separately vide order dated 5.12.1992. The enquiry against the petitioner commenced on 30.4.1994 when he was called upon by the inquiry officer to attend the proceedings at Branch Office, Bulandshahr.

The petitioner claimed that he was not charged for any connivance with Sri R.P. Singh hence fresh charge sheet ought to have been issued but no fresh charge sheet was issued to him. On 8.11.1993 Sri Ramesh Vijh, Chief Manager was to be examined as management witness of which the petitioner had not been informed, he was provided with photocopies of a number of documents which were not legible and a list of witnesses as the original documents were in the custody of the CBI. In the circumstances, he prayed for adjournment so that he could have find list of the documents to prepare his defence but the Enquiry Officer denied his request. Therefore, the petitioner reserved his right to produce any other documents/witnesses on his behalf before closure of presentation of his case.

Before noting the contention of the counsel for the parties the proceedings of enquiry may be referred to as averred in the writ petition in the background of which submissions have been made by the counsel for the petitioner. On 4.6.1993, the petitioner was compelled to attend the enquiry proceedings at CBI Office, 5, Tej Bahadur Marg, Dehradun as the management had referred the matter for CBI enquiry which had neither found the petitioner guilty of any offence till then nor had recommended any punitive measures against him. The petitioner protested that in absence of his defence assistant, who could not be informed due to paucity of time, as such he is unable to efficiently examine those documents, he was compelled to go through the formality of examination of documents. On the next date of the enquiry proceedings i.e. on 16.6.19993 the Presiding Officer again submitted a fresh list of documents the admissibility of which was objected to by the petitioner on the ground of having been filed at a belated stage and that these documents had no nexus with the charges; that on the next date of enquiry proceedings i.e. on 2.8.1993 the petitioner is said to have again protested against the incomplete and illegible copies delivered to him and demanded the copies of those documents which were to be relied upon against him, more particularly, specifically demanding the original enclosures of the special investigation reports dated 17.7.1991 and 14.8.1991 by the Investigating Officer Sri Ramesh Vijh to be shown to him which is said to be referred by the Enquiry Officer and the Presiding Officer and he was called upon to submit his list of defence documents and witnesses in support of his case which were submitted by him. It is alleged that he was thus also wrongfully deprived of an effective opportunity to prepare his defence.

The enquiry officer vide his order dated 19.8.1993 directed the petitioner to submit the list of admitted defence documents to the Presiding Officer by 23.8.1993 which was complied by the petitioner and the Enquiry Officer then fixed 1.9.1993 for production of defence documents and presentation of the management and defence witnesses.

It is averred that the Presiding Officer insisted the petitioner to cross examine the Management witnesses on 8.11.1993 which was vehemently objected to by the petitioner who requested for grant of reasonable time for the inspection and verification and examination of the defence documents in order to prepare himself for the effective cross examination of the Management witnesses. However, Sri Ramesh Vijh, Manager, was examined as Management Witness (MW-1) on 8.11.1993 and 9.11.1993 was fixed without providing the petitioner with an opportunity to effectively cross examine him by not providing copies of defence documents to the petitioner whose list had been submitted by him earlier.

It is further averred that thereafter the enquiry proceedings commenced on 6.1.1994. As the Presiding Officer had the legal background and also as there was voluminous documentary evidence on record to be scrutinized the petitioner requested for the assistance of a lawyer which was also rejected by the enquiry officer illegally directing the presenting officer to go ahead with the examination of the MW-2 Management witness Sri Vishwas Gautam again without supplying copies of the entire defence documents which had earlier been allowed by the enquiry officer, compelling him to cross examine the management witness MW-2 without aid of the defence documents. It was only after the cross examination of the MW-2, that Presiding Officer submitted a few of the remaining defence documents which were hurriedly taken on record by the enquiry officer who illegally and despite objections of the petitioner allowed the Presiding officer to re-examine the MW-2 on the basis of these papers. On 7.1.1994, MW-3 Sri N.S. Chandel was examined and cross examined who categorically confirmed that the recovery of the loan payment in all the disputed loan accounts was up to the mark.

After the examination of MW-4, Sri Y. K. Govil, the petitioner was asked by the Enquiry Officer to submit his list of defence witnesses along with their relevancy which was immediately submitted by him. Thereafter, the defence witnesses were examined and cross examined at length who confirmed that the attitude and work of the petitioner was neither irresponsible nor of disobedience of the instructions of the higher authorities nor misrepresentation of facts or in violation of Rules in order to conceal any connivance with Manager/Borrower/Suppliers.

SUBMISSIONS BY THE PETITIONER.

It is submitted by the learned counsel for the petitioner that it was not at all possible for the petitioner to go through all the illegible photocopies of the documents which were not made available to him before and effectively cross-examine the management witness. It is contended that the petitioner's request for inspection of the records of the separate enquiry proceedings of Sri Raj Pal Singh, the Manager with whom the connivance was alleged in commission of misconduct and his prayer for cross-examination of Sri R.P. Singh, Manager was illegally rejected without any basis violated his right of defence.

According to him, the duty and power to sanction the loan as well as of its disbursement was of Sri Raj Pal Singh, Manager (Advances) and the Senior Branch Manager, who appeared in the enquiry proceedings as witness and confirmed that the petitioner was not responsible for sanction of loan and disbursement.

This is also supported by a duty chart appended as Annexure-13. The relevant extract are reproduced thus:

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Therefore, dismissal of the petitioner from service is illegal in utter violation of the banking regulations and hit by the principles of natural justice.

SUBMISSIONS BY THE RESPONDENT COUNSEL

Per contra, learned counsel for respondent contended that while the petitioner was posted at branch office, Civil Lines, Bulandshahr on 26.7.1989, he was placed under suspension vide order dated 2.12.1991 for committing series of grave irregularities by facilitating impersonation involving middlemen and non-existing suppliers without ensuring verification from the end-user of the loan advanced by the bank which resulted in its mis-utilization. It is stated that a charge sheet dated 13.4.1992 was served upon the petitioner and that though list of documents was not provided to the petitioner along with charge-sheet but it was subsequently provided to him prior to commencement of regular hearing; that documents were also got verified by the petitioner with original records during the course of enquiry itself; that charges levelled upon the petitioner were in terms of clause-6 of the Punjab National Bank Officer Employees (Discipline and Appeal Regulations) and; that though according to order dated 9.11.1992 the disciplinary authority had ordered joint enquiry in both these matters, however, it was thought prudent to proceed against them separately accordingly order dated 9.11.1992 was modified by order dated 15.12.1992 in this regard. It is stated that when the petitioner sought time for filing documents, which was granted by the Enquiry Officer, therefore, no prejudice was caused to him as the regular hearing in the enquiry proceedings commenced only after the final submission of the list after verification by the petitioner.

We have heard learned counsel for the parties and perused the record. We find that the petitioner has been punished solely on the basis of preliminary enquiry conducted by the same officer who was appointed as the Ist Enquiry Officer and who later on was also produced as a witness on behalf of the Bank before the 2nd Enquiry Officer. The departmental enquiry was not conducted properly where the bank was to prove all the documents collected by producing witnesses connected with those documents or secondary documents and the enquiry officer to have allowed reasonable opportunity to the petitioner to defend in accordance with law. It is trite law that document, evidence and statement of witnesses collected during preliminary enquiry as well as the preliminary enquiry report are also required to be provided to the delinquent employee and afford him opportunity to cross-examine the witnesses in the regular departmental enquiry. Not only this, these documents are required to be proved and an opportunity to cross-examine the witnesses is also required to be afforded to him. Without complying with such procedure, the report of preliminary enquiry which was based on alleged testimony in preliminary enquiry can not be accepted. Moreover, we find that some vital documents were provided to the petitioner after close of evidence. Therefore stand of the respondent bank that regular hearing or arguments proceeded only after the documents demanded by him were made available to the petitioner is a lean fatal to their case.

In the present case, neither witnesses were produced to prove the documents collected by Sri Vijh during his preliminary investigation nor any witness was produced to prove the misconduct by the oral testimony, referred to in his report. The case of the petitioner appears to be a case of no evidence. None of the individual account holders who are alleged to be imposters said to have given their statement in writing in the preliminary enquiry were produced in the regular departmental enquiry to prove their statement. We also find that copy of the investigation report was also not provided to the petitioner which was relied upon by the department for proving the charges levelled against him. The Enquiry Officer, who had conducted the investigation in the preliminary enquiry prior to the departmental enquiry proceedings, was called upon and examined as management witness in the same departmental enquiry, which itself vitiates the enquiry proceeding further for the reason that materials collected by him were not even supplied to the petitioner prior to or alongwith the charge-sheet or even before examination of the witnesses concerned or close of evidence.

It is relevant to state here that the documents demanded by the petitioner by means of application were not supplied to him whereas they were crucial piece of evidence for his defence. Non supply of these documents to the petitioner by the respondents inspite of the demand made by the petitioner before cross examination of the witnesses and placing reliance upon the same for proving the charges, caused prejudiced to him and not only this, these documents were provided to him only after cross-examination was over and when a request was made by the petitioner to recall those witnesses so that they could be further cross-examined his request was refused without any reasonable cause is fatal to their case.

We also find that Sri Raj Pal Singh, Manager (Advances) and Senior Manager who had appeared as witness in the enquiry. The relevant extract of the question-answer is reproduced thus:

" During your incumbency at the above office had you come across any middleman in PS Cell for purpose of making advances ?

DW-2 :- No.

Q. 11:- Can you inform that recommending the sanctioning of loans by loan officer, and the Mgr respectively can be turned as connivance between the loan officer and the Manager when joint signatures of both of them are made at the time of disbursement of loan ?

DW 2:- No.

Q 12:- can you tell that a C.R. signed by any Bank official on the proposed borrower, can be taken as an evidence of pre-sanction appraisal in that a/c ?

DW 2:- It is a point of pre-sanction appraisal."

The bias of the management is evident as the photocopies of a large number of unreadable documents were given to the petitioner on the very same day Sri R.P. Singh,the manager was produced by the management in the inquriy as a witness, due to which the petitioner could not prepare effective defence or to cross examine him denying him reasonable opportunity to defend himself. In this regard reference can be made to Article 311 of the Constitution of India as well as decision in the case of Ram Singh versus Union of India (1988) 8 ATC 882. Relevant extract of the judgment reads thus:

"The learned counsel for the applicant has also argued that the appellate authority did not give him hearing before rejecting his appeal. Discussing in detail the obligations of the appellate authority after the 42nd Amendment to the Constitution of India by which the second opportunity of showing cause as to why the proposed punishment should not be given, was taken away, the Supreme Court in Ram Chander versus Union of India 1986) 3 SCC (L&S) has observed as follows :

An objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the authority regarding the final orders that may be passed on his appeal. Considerations of fair play and justice also require that such a personal hearing should be given.

We feel that in view of the aforesaid ruling the appellate authority should have given him a personal hearing even though the applicant did not ask for such a hearing.

In view of the aforesaid discussion, because of the procedural infirmities, technically the case could be remitted back to the respondents for de novo inquiry in accordance with law. However, on an overall view of the matter we find that the procedure followed by the inquiry officer/disciplinary authority did not in any way prejudicially affect the defence of the applicant nor has it resulted in miscarriage of justice except to the extent of punishment which according to us is not commensurate with the degree of delinquent on his part. Permitting the case will put the clock back by several years and the final outcome may see the light of the day after some years as the possibilities of further litigation cannot also be ruled out. In order to avoid further litigation can not also be ruled out. In order to avoid further wastage of time and state of suspense, we feel that no useful purpose will be served by a de novo inquiry and that having regard to what has already come out before us from records and the arguments of the learned counsel for both the parties, it will suffice if the case is decided in following terms by replacing the punishment of compulsory retirement which according to us appears to be disproportionate to the charges levelled against the applicant, to that of stopping of increments for three years without calculative effect.

The application is accordingly allowed to the extent of modifying the impugned order of punishment of compulsory retirement dated 15.12.1986 and the appellate order dated 16.9.1987 to the effect that the punishment of compulsory retirement is reduced to the punishment of stoppage of increments for three years without cumulative effect and reinstatement of the applicant to his original post with immediate effect. The period of absence from the date of compulsory retirement to the date of his reporting for duty on reinstatement will be treated as 'die non' without pay and allowances but keeping continuity of service intact. The respondents are directed to issue orders within a period of one month from the date of communication of this order reinstating the applicant and modifying the order of punishment on the above lines. The applicant will be reinstated w.e.f. the date he joins duty but not later than 10 days from the date of order of reinstatement."

All these go to show that the action of the respondent was not only mala fide, and irrational but also in violation of the principles of natural justice. The biased attitude of the enquiry officer is evident from the very manner in which the departmental enquiry was proceeded with by him. This is established from the manner in which reply was asked from the petitioner by the disciplinary authority on the report of the finding of the Enquiry Officer. It is apparent that the disciplinary authority as well as the appellate authority appear to have passed the impugned orders against the petitioner without even evaluating the facts. The disciplinary authority in his report has not considered the contentions of the petitioner submitted by him by means of the representation dated 5.12.1992 on the finding of the enquiry officer for conducting enquiry afresh. No fresh charge sheet was served upon him and evidence having brought on record without supplying any fresh charge sheet to the delinquent employee has rendered the enquiry as null and void. The impugned orders appear to have been passed without appreciating the facts and circumstances which has been affirmed by the disciplinary authority is neither speaking order nor justified, hence the removal of the petitioner from service is liable to be quashed.

It is apparent from the record that some of the evidence have been recorded in absence of the petitioner who was denied reasonable opportunity of cross examining them, therefore, the enquiry proceedings conducted against the petitioner was against the principles of natural justice and not in accordance with law for this reason also.

For all the reasons stated above, the writ petition is allowed. The impugned orders dated 30.1.1995 and 10.10.1995 passed by respondent nos. 3 and 2 are hereby quashed. Though the petitioner has not been allowed to work on the pretext of disciplinary proceedings and dismissal from service, therefore, it would be too harsh in the aforesaid circumstances to deny him back wages for not fault of his own. While quashing the impugned orders, we further direct the Bank to pay his full back wages with interest and notional promotion to the petitioner from the date of his suspension till the date of his re-instatement in service with 9 per cent interest if he has attained the age of superannuation then in that case, with all consequential benefits of service from the aforesaid date.

Order Date :- 18.12.2013.

SU.