Om Prakash vs Chairman Bank Of India And Others
2013 Latest Caselaw 1868 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?RESERVED/A.F.R.
 
Court No. - 14
 
Case :- SERVICE SINGLE No. - 310 of 1993
 

 
Petitioner :- Om Prakash
 
Respondent :- Chairman Bank Of India And Others
 
Petitioner Counsel :- S.K.Tiwari,Gaurav Mehrotra
 
Respondent Counsel :- M.R.Misra,D.P. Dwivedi
 

 
Hon'ble Saeed-Uz-Zaman Siddiqi,J.

By means of the instant writ petition, the petitioner has sought for a writ in the nature of certiorari quashing the orders of show cause and ultimately dismissal  of the petitioner from services, contained in Annexure Nos.1 and 2 and further prayer to issue a writ in the nature of mandamus, commanding the opposite parties to allow the petitioner to work on the post of Cashier-cum-clerk.

Brief facts, as narrated in the writ petition are that the petitioner was posted as Clerk-cum-Cashier and all of sudden a memo dated 11.03.1991 was served upon him by the Branch Manager containing four charges regarding which the petitioner submitted his reply on 27.04.1991. The copy of the memo as well as reply are contained as Annexure No.3 and 4 respectively to the writ petition. Thereafter the petitioner was served with charge sheet dated 12.06.1992, by which disciplinary enquiry was initiated against the petitioner and he was placed under suspension in spite of the fact that he has submitted reply of charge sheet vide order dated 28.12.1992. The enquiry was closed on 23.01.1992 and the petitioner was not given reasonable opportunity of being heard nor to cross-examine the complainants though, the charges were false. It is stated in para 9 of the petition that the complaint as made by account holders regarding misappropriation of funds regarding which the petitioner was not given opportunity to produce any evidence or to cross-examine the witnesses and all of sudden the petitioner was dismissed from services vide order dated 12.08.1992, without notice. After receiving the proposed punishment the petitioner submitted his submission in respect of the proposed punishment on 1.10.1992, contained as Annexure No.9 to the writ petition. The disciplinary authority, without considering the applications made by the account holders and the statement given by them and reply submitted by the petitioner terminated the services of the petitioner on 09.11.1992. The perusal of the dismissal order shows that the petitioner was not served with any enquiry report. Hence this writ petition was preferred.

In the counter affidavit, it has been stated that when fraudulent action of the petitioner came to light, he was served a Memo of charge dated 11.03.1991 by the Branch Manager, Tanda calling for his explanation to the allegations against him. The petitioner submitted his explanation dated 27.04.1991 which was not found to be correct and satisfactory, the Branch Manager forwarded all the papers to the disciplinary authority who considered the papers and initiated disciplinary proceedings and, as such the charge sheet dated 12.06.1991 was served on the petitioner, containing four charges. The assertion of the petitioner that he did not misappropriated the amount, was found to be false and his returning the amount was found to be an afterthought plea and he had no authority to return the money which has been deposited once in the Bank. Rejoinder affidavit and supplementary affidavits have also been exchanged.

Heard learned counsel for the parties and perused the records.

A perusal of the file shows that the account holders Smt. Lachhmina, Riaz Ahmad, Ghan Shyam and Raghu Nath deposited certain amounts in their savings bank account on different dates and accepted by the petitioner but the same were not entered in ledger of the account holders, have made the complaints to the bank along with receipts on a counter-foil and entry made by the petitioner in their pass-books regarding the factum of showing that the amount has been deposited in their accounts. This is clear case of embezzlement. The petitioner has submitted his reply to the charge sheet and admitted that he accepted the amount and made entry in the relative ledger sheet and pass-books. The petitioner replied to the charges in the following manner:-

"Charge-A. Smt. Lachhmina came to the Bank on 19.07.80 to deposit money. At that time I was towards the Account's Wing. In take the amount and immediately made entry in the relative leader sheet and Pass Book. Then I call her on my counter in Cash Wing, but a person was already waiting to deposit his cash. I received his cash and in the meantime Smt. Lachhmina called for her counter foil. I put next Scroll number on counter foil and handed over to her. While I was counting the Cash tendered by previous customer. Smt. Lachhmina came to me and said that her husband has asked for not to deposit the amount, so please give my money back. I returned her money and cut the entry of her pass book, but forgotten to take counter foil from her.'

'Charge-B Sri Riaz Ahmad has purchased wood of my old house and did not pay remaining amount. He is an influential person and it was not easy to realize money from him by any means. Once he give me Rs.6300/- to deposit in his S.B.A/c. On seeing the opportunity the amount is kept by me and fake receipt was issued to him. After a long and continuous discussion and under compromise the dispute was finalized. A letter to this effect has also been handedover to the presenting officer by Sri Riaz Ahmad (P.Ex. No.18).

Thus I have only acted in contravention to the Bank's Rules in an innocent manner, only with a view to realize my money and not to harm any one as alleged.'

'Charge-C. I use to take money from Sri Ghan Shyam a close friend of mine to meetout my some unavoidable expenses on various occasions and for the sake of memory I entered the amount so take in his S.B. Pass Book on his suggestion and amount so borrowed returned subsequently.

Thus I am guilty for acting against Bank's Rules for which I apologised during enquiry proceedings appearing on Page 5 dt. 23rd, Jan. 1992.'

'Charge-D. Sri Raghu Nath is not residing at Tanda, he is in service somewhere in Assam. He used to come Tanda once a year or two. He was also not available to the Investigating Officer's (Para 2 P.O. to D.C. Page 3 of Enquiry Proceeding dt. 11.12.91) during his investigation."

In view of this report, as contained in Annexure No.9 the petitioner has accepted the money as an employee of the Bank, issued the counter-foil, made entries in the ledger and pass books of the respective account holders but he has pleaded in addition that he has returned the money. This explanation did not find favour and ignored by the enquiry officer, who is an officer in an Institution dealing with basically money matters. It was incumbent upon Enquiry Officer to have examined the account holders. This is not a case of admitted embezzlement. Under Section 58 of the Evidence Act the charges having been admitted are not required to be proved, but admission subject to pleas must be probed. In a catena of decisions in Maruti Udyog. Ltd. v. Ram Lal, (2005) 2 SCC 638, State of Bihar v. Amrendra Kumar Mishra, (2006) 12 SCC 561, SBI v. Mahatma Mishra, (2006) 13 SCC 727, State of Karnataka v. Ameerbi, (2007) 11 SCC 681, State of M.P. v. Sanjay Kumar Pathak, (2008) 1 SCC 456 and Uttar Haryana Bijli Vitran Nigam Ltd. v. Surji Devi, (2008) 2 SCC 3010, it has been settled by the Hon'ble Supreme Court that its power to interfere with disciplinary matters is circumscribed by well-known factors. It cannot set aside a well-reasoned order only on sympathy or sentiments.

The petitioner has established that procedural requirement has not been complied with by the disciplinary authority and, as such it can be said that the punishment inflicted upon the petitioner is disproportionate to the misconduct committed by him. In Chairman & Managing Director, V.S.P. and Others. v. Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 569, the Hon'ble Apex Court has held as under:-

"Once it is found that all the procedural requirements have been complied with, the Courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The Superior Courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. {[See Sangeroid Remedies Ltd. v. Union of India & Ors. [(1999) 1 SCC 259]}.

The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order."

It is noteworthy to mention here that the departmental proceeding is quasi-judicial one. Although, the provision of Evidence Act are not applicable in the said proceeding, principle of natural justice are required to be complied with. The Courts, exercising powers of judicial review are entitled to consider whether while inferring commission of misconduct on the part of a delinquent officer evidence has not been taken into consideration and relevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles.

This is a case of admission on the part of the petitioner., but subject to pleas. There was need for the enquiry officer to examine four account holders when the entire fact is evident from the documents of Bank itself., but pleas of the petitioner were not examined, as all. Personal attachment, will, favour or disfavour cannot be exhibited by an employee while working in an Institution. The conduct of the petitioner has severe consequences and, as such appropriate reasons have to be applied by the Enquiry Officer. If the enquiry officer has relied upon the confession made by the petitioner there was no reason as to why the material pointing out the innocence of the petitioner withheld. The decision has been arrived at on vidence which is legally unsound. The report of Enquiry Officer can be said to be ipse-dixit and surmises or conjectures have been applied.

In Roop Singh Negi v. Punjab National Bank and others (2009) 2 SCC 570, the Hon'ble Apex Court has held as under:-

"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."

Admittedly, there was no direct evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find the petitioner guilty as otherwise he would not have proceeded on the basis that the embezzlement was committed in such a manner that no evidence was left. In the above mentioned case the Hon'ble Apex Court has held that High Court can and must require whether there is any evidence at all in support of the impugned conclusion. In other words if the whole of the evidence led in the enquiry is accepted as to, does the conclusion follow that the charges in question is proved against the petitioner. In Moni Shankar v. Union of India, (2008) 3 SCC 484 the Hon'ble Apex Court has held as under:-

"The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into and irrelevant facts have been excluded therefrom. Inference on the facts must be based on evidence which meet the requirements of legal principles."

It is other legal proposition that in a domestic enquiry fairness in the procedure is a part of principle of natural justice. Exercise of discretionary power involves two elements (i) objective and (ii) subjective and existence of exercise of objective element is a condition precedent for exercise of subjective element. It is not possible to lay out any rigid rules of principles of natural justice. An order of dismissal passed by disciplinary authority have severe civil consequences, appropriate reasons should have been assigned. The material brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence which is legally admissible. The provision of Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. The inference drawn by the enquiry officer in this case apparently is not supported by any evidence. Suspicion as is well known, however, high may be, can under no circumstances be held to be substitute for legal proof.

The petitioner has specifically pleaded that he is a permanent resident of Tanda and, as such many people are known to him and the knowing customers used to come to him for their day to day banking work. He has submitted detailed reply to all the charges but the enquiry officer did not chose to examine any of the witnesses. The petitioner can be held guilty if it is proved that the money were actually tendered by the account holders and was embezzled by him. His plea of refunding the money must have been looked into and probed by the enquiry officer.

Not only this, the impugned order of termination shows that no reasons have been assigned in it by the disciplinary authority as is exhibited from Annexure No.2. Mere making in depositor's pass book and not depositing the money in his savings bank account at the branch cannot be presumed unless the deposit is proved in the branch. The disciplinary authority has mentioned in para 2 of his order "upon consideration of the charge sheet, its reply submitted by Sri Om Prakash, the enquiry proceedings and the findings of the enquiry officer, I tentatively decide that Sri Om Prakash be dismissed from bank services, without notice." The disciplinary authority has not mentioned about evidence taken by enquiry officer. He has omitted to apply his judicial mind that the enquiry report is passed upon no evidence.

Even after holding him guilty by the enquiry officer, the petitioner has submitted to the disciplinary authority, in writing that only written complaint was received by the bank which proved false and fallacistated. He further mentioned that if he has any intention to cheat the customers, he must have left no records which may prove his guilt; he has not put the bank to financial loss or loss of confidence. He has further submitted that the entries made by him, as enumerated, may fall under minor misconduct in view of Sashtri Award as retained by Desai Award. He has specifically mentioned that inferences drawn by the enquiry officer are not based on facts and logic. Nothing has been considered and the enquiry has been conducted in such a fashion that if there was a presumption of guilt of the petitioner. The enquiry officer as well as the disciplinary authority must have exhibited themselves as if they were impartial and right-minded persons as judicial sense is of divine nature.

The Hon'ble Apex Court in the case of Chairman-Cum-Managing Director, Coal India Limited and Others v. Ananta Saha and others, (2011) 5 SCC 142, has held as under:-

"In Managing Director, ECIL, Hyderbad etc. etc. v. B. Karunakar etc. etc., (Supra); and Union of India v. Y.S. Sandhu, Ex. Inspector, AIR 2009 SC 161, this Court held that where the punishment awarded by the disciplinary authority is quashed by the court/tribunal on some technical ground, the authority must be given an opportunity to conduct the inquiry afresh from the stage where it stood before alleged vulnerability surfaced. However, for the purpose of holding the fresh inquiry, the delinquent is to be reinstated and may be put under suspension. The question of back wages etc. is determined by the disciplinary authority in accordance with law after the fresh inquiry is concluded.

The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is re-instated, it would not automatically make him entitled for back wages as entitlement to get back wages is independent of re-instatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide: U.P.SRTC v. Mitthu Singh, AIR 2006 SCC 3018; Secy., Akola Taluka Education Society & Anr. v. Shivaji & Ors., (2007) 9 SCC 564; and Managing Director, Balasaheb Desai Sahkari S.K. Limited v. Kashinath Ganapati Kambale (2009) 2 SCC 288)."

On the basis of discussions made above, the writ petition is allowed and the impugned order contained in Annexure Nos.1 and 2 are quashed. The enquiry officer as well as disciplinary authority may proceed with the enquiry in accordance with the settled principles of natural justice and after recording of evidence in the light of the charge sheet and its reply submitted by the petitioner and may pass fresh orders, in accordance with law, after affording opportunity to the petitioner of being heard within six months from the date of production of a certified copy of this order, failing which the petitioner shall be entitled to salary and other service benefits for the period during which he remained dismissed and in case of re-enquiry and concluding it within six months as stipulated above the fate of the petitioner's services shall be subject to the result of final enquiry.

Order Date :- 09.05.2013.

Ram.