Krishna Narayan Tewari vs Allahabad Bank Through Chairman ...
2013 Latest Caselaw 6626 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?AFR
 
Court No. - 14
 

 
Case :- SERVICE SINGLE No. - 2867 of 2006
 

 
Petitioner :- Krishna Narayan Tewari
 
Respondent :- Allahabad Bank Through Chairman And 2 Others
 
Counsel for Petitioner :- S.M.K.Chaudhary,Adnan Ahmad
 
Counsel for Respondent :- Lalit Shukla
 

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

By means of this writ petition, under Article 226 of the Constitution of India, the petitioner has prayed for writ in the nature of certiorari quashing the order dated 05.01.2006 passed by the Appellate Authority (Opposite party no. 2) and order dated 29.07.2005 passed by the Disciplinary Authority (Opposite party no. 3) as contained in Annexure nos. 1 and 2 of the writ petition; and writ in the nature of mandamus, directing the opposite parties not to give effect to the orders dated 05.01.2006 and 29.07.2005 passed by Opposite party nos. 2 and 3 respectively.

Brief facts of the case are that, admittedly, the petitioner was an employee of the opposite parties and was posted at the relevant time, as Officer in Charge- Vikas Bhawan Extension Counter of the Allahabad Bank, District- Sultanpur w.e.f. 14.02.2000 to 18.12.2001. During his posting, he was placed under suspension vide order dated 10.12.2004 on the ground of mis-conduct under the Allahabad Bank Officers' Employee (Conduct-regulation, 1976) and on 12.02.2005 he was served the charge-sheet dated 10.02.2005. The petitioners submitted the reply on 15.02.2005. The enquiry was conducted from 10.03.2005 and completed on 25.04.2005. The Enquiry Officer vide his report dated 27.05.2005 held the petitioner guilty. On 01.07.2005, the petitioner submitted his reply against the enquiry report. Ultimately, the Disciplinary Authority has awarded the punishment of "Removal from the service" to the petitioner, which is a major punishment. The petitioner filed departmental appeal which was also dismissed. Hence, the petitioner filed this writ petition in which affidavits have been exchanged.

I have heard both the parties and gone through the record.

During the course of hearing, it was found that the Appellate Authority has pasted the findings of the disciplinary authority and there is not even change in the comma or full stop. While observing this, the Court issued notice to the Appellate Authority to appear in person to assist the court on 22.08.2013. But in spite of orders, he did not appear and the court again issued notices to him to appear in person on 10.09.2013 but he did not appear and the service report mention the remark "Chale Gaye" as observed in the order dated 10.09.2013. Later on, the petitioner moved an application for deciding of the writ petition by modifying the order dated 13.08.2013 by which the Appellate Authority was summoned in person through C.M. Application No. 88882 of 2013, which was not opposed by learned counsel for the opposite parties. Hence, the petition was heard on merits.

As observed by various orders as mentioned earlier, this is a petition in which the Appellate Court did not act, as such, and has violated the rules of natural justice in a blatant manner. It is needless to mention here that right of appeal is a substantive right, particularly, when it is provided under the statute/rules and it is the basic principle of administrative law that rules of natural justice have to be followed by every authority-judicial or executive. The basic principle of application of rules of natural justice is that the authority passing an order must give reasons. The recording of reasons is an assurance that authority concerned consciously apply its mind to the facts on record. It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court under Article 226 or the appellate jurisdiction of the Supreme Court under Article 136 to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person. The omnipresence and omniscience of the principles of natural justice act as deterrence to arrive at arbitrary decisions in flagrant infraction of fair play.

In Maharashtra State Board of Secondary and Higher Secondary Education vs. K.S. Gandhi and Ors. [(1991) 2 SCC 716], the Hon'ble Apex Court has held, as under:-

"The reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at. They also exclude the chances to reach arbitrary, whimsical or capricious decision or conclusion. The reasons assure an inbuilt support to the conclusion/decision reached. When an order affects the right of a citizen or a person, irrespective of the fact whether it is a quasi-judicial or administrative order, and unless the rule expressly or by necessary implication excludes recording of reasons, it is implicit that the principles of natural justice or fair play require recording of germane and precise relevant reasons as a part of fair procedure."

As far as the question of proof of the guilt of the petitioner regarding misconduct is concerned, the standard of proof is the same in domestic inquiries which is required in civil or criminal cases.

In the authority as mentioned above, the Hon'ble Apex Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education (supra) has held, as under:-

"20. Unless the rule expressly or by necessary implications excludes recording of reasons, it is implicit that the principles of natural justice or fair play does require recording of reasons as a part of fair procedure. In an administrative decisions, its order/decision itself may not contain reasons. It may not be the requirement of the rules, but at the least, the record should disclose reasons. It may not be like a judgment. But the reasons may be precise. In S.N. Mukherjee v. Union of India [(1990)4 SCC 594], the Constitution Bench of this Court surveyed the entire case law in this regard, and we need not burden the judgment to reiterate them once over and at page 614, para 40 it held that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. In para 36 on pp. 612-13 it was further held that recording of reasons... excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said principle would apply equally to all decisions and its applications cannot be confined to decisions which are subject to appeal, revision or judicial review. "It is not required that the reasons should be as elaborate as in the decision of a court of law." The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons. If the appellate or revisional authority disagrees, the reasons must be contained in the order under challenge.

21. Thus it is settled law that the reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at. It also excludes the chances to reach arbitrary, whimsical or capricious decision or conclusion. The reasons assure an inbuilt support to the conclusion/decision reached. The order when it affects the right of a citizen or a person, irrespective of the fact, whether it is quasi-judicial or administrative fair play requires recording of germane and relevant precise reasons. The recording of reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record. It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court under Article 226 or the appellate jurisdiction of the Supreme Court under Article 136 to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person.

22. From this perspective, the question is whether omission to record reasons vitiates the impugned order or is in violation of the principles of natural justice. The omnipresence and omniscience (sic) of the principle of natural justice acts as deterrence to arrive at arbitrary decision in flagrant infraction of fair play. But the applicability of the principles of natural justice is not a rule of thumb or a strait-jacket formula as an abstract proposition of law. It depends on the facts of the case, nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances."

The appellate Authority who is opposite party no. 2 before this Court has totally ignored about his satisfaction of standard of proof on a balance of probabilities, in view of the paragraph 19 of volume 17 of Halsbury's Laws of England, 4th edn. at page 16.

In Sodhi Transport Co. v. State of U.P [(1986) 2 SCC 486], Hon'ble the Apex Court has held, as under:-

"A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the facts presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established. The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts and circumstances."

In view of these authorities, the judgment/order of the Appellate Authority deserves to be declared as non-est. Now the judgment and order is recorded by the Disciplinary Authority deserves to be taken into consideration.

The charges relate to reckless and negligent opening of account without obtaining photographs, without deposit of any cash account and transferring of some amount unauthorizedly. The amount was withdrawn in cash and withdrawal forms were not available in the records of the Bank. The account has been closed but without any letter of request, which shows that the account was opened in the name of fictitious person with intent to defraud the Bank. The relevant vouchers were stolen/removed from the records in order to conceal the acts of fraud/embezzlement. At the relevant time, the petitioner was posted and functioning as Officer-in-charge at Bank's Vikas Bhawan Extension Counter for the period from 14.02.2000 to 08.12.2001; without obtaining any cash deposit, the account was opened contrary to Bank's norms and no letter of thanks were issued to the account holders and introducer. The aforesaid act of the petitioner has undermined the integrity and confidence reposed in him by the Bank, who acted in an irregular manner in debiting some amount; the petitioner failed to maintain Bank's prescribed system and procedures inasmuch as no records of cash payment and receipt books were maintained; the excess amount of interest of Rs. 28,616/- was transferred. The Disciplinary Authority considered the chargesheet and reply to the chargesheet. No evidence was recorded by the Disciplinary Authority to substantiate the charges of fraud/embezzlement. The fraud/embezzlement cannot be presumed so as to constitute mis-conduct. The petitioner submitted objection against the Enquiry Report, which was also not considered and the punishment was awarded. No voucher was produced before the Enquiry Officer. Similarly, sundry deposit is a miscellaneous deposit and the account is not traceable. How the petitioner could have been held guilty for want of evidence ? The petitioner has taken a specific plea that he left the extension counter on 08.12.2001 and at that time the entire record was entact and no complaint was made at the time of handling of charge. The Enquiry Officer did not consider the certificate, which was marked as Management Exhibit No. 48. Similarly, the charge in regard to difference of interest was not substantiated by any evidence. There was a change in the rate of interest from 4.5 per cent to 4 per cent which was not available on the extension counter nor it was available on the computer. The report of the enquiry Officer was, thus, devoid of merits, but the Appellate Authority did not apply its mind, at all.

It is pertinent to mention here that on 30.11.2011, the petitioner attained the age of superannuation. It has been deposed in affidavit that the petitioner sustained Heart Attack in May, 2007 and, thereafter, paralysis attack on 12.05.2009 and, he is confined to bed.

On the totality of circumstances, the matter has to be determined finally.

I have carefully considered the documents annexed to the petition, the procedure followed by the Department of Enquiry and the findings recorded by the Disciplinary Authority and the Appellate Authority. I have also considered the submissions made by learned counsels appearing for the parties. Ordinarily, this Court does not interfere with the findings recorded in the departmental proceedings and does not enter into the merits of the findings and the judicial review made by this Court is limited to the observance of rules to find out whether the principles of natural justice have been observed. A perverse finding is one, which is based on no evidence or one that no reasonable person could have arrived at, on such evidence, unless it is found that some relevant evidence has not been considered or that inadmissible material was taken into consideration.

I am, thus, of the opinion that the entire exercise of Departmental enquiry was undertaken to victimize the petitioner. None of the charges were proved against him. The findings of proof of some of the allegations as discussed above, are entirely perverse as no reasonable person could have come to such conclusion on the material produced by the Bank to prove the allegations.

While holding this, I rely upon the law laid down by the Division Bench of this Court in B.M. Nigam vs. State Bank of India and Others [2012 (2) ALJ 275]. In Roop Singh Negi vs. Punjab National Bank & Ors. [2009 (2) SCC 570, Hon'ble the Apex Court has held, which is as under:-

''A departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled 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.

"Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials 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 provisions of the Evidence Act may not be applicatble in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ispe dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."

In the case of Kuldeep Singh vs. Commissioner of Police & Ors [(1999) 2 SCC 10], Hon'ble the Apex Court has held, as under:-

6. It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority.

7. In Nand Kishore vs. State of Bihar, (1978) 3 SCC 366, it was held that "the disciplinary proceedings before a domestic Tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which, and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Enquiry Officer would be perverse."

8. The findings, recorded in a domestic enquiry, can be characterised as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of the that evidence. This principle was laid down by this Court in State of Andhra Pradesh vs. Sree Rama Rao. [1964 (3) SCR 25], in which the question was whether the High Court, under Article 226, could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India vs. Prakash Chand Jain, [AIR 1969 SC 983] and Bharat Iron Works vs. Bhagubhai Balubhai Patel & Ors. [1976 Labour & Industrial Cases 4 (SC) : (1976) 1 SCC 518]. In Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) and Others. [AIR 1984 SC 1805], it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are his mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.

9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny."

In the case of Kailash Nath Gupta vs. Enquiry Officer, (R.K. Rai), Allahabad Bank & Ors.[(2003) 9 SCC 480], Hon'ble the Apex Court has held as under:-

"11. In the background of what has been stated above, one thing is clear that the power of interference with the quantum of punishment is extremely limited. But when relevant factors are not taken note of, which have some bearing on the quantum of punishment, certainly, the Court can direct reconsideration or in an appropriate case to shorten litigation, indicate the punishment to be awarded. It is stated that there was no occasion in the long past service indicating either irregularity or misconduct of the appellant except the charges which were the subject-matter of his removal from service. The stand of the appellant as indicated above is that through small advances may have become irrecoverable, there is nothing to indicate that the appellant had misappropriated any money or had committed any act of fraud. If any loss has been caused to the Bank (which he quantifies at about Rs. 46,000) that can be recovered from the appellant. As the reading of the various articles of charges go to show, at the most there is some procedural irregularity which cannot be termed to be negligence to warrant the extreme punishment of dismissal from service."

In State Bank of Bikaner & Jaipur vs. Nemi Chand Nalwaya [2011 (4) SCC 584], Hon'ble the Apex Court has held as under:-

" 7. When a court is considering whether punishment of 'termination from service' imposed upon a bank employee is shockingly excessive or disproportionate to the gravity of the proved misconduct, the loss of confidence in the employee will be an important and relevant factor. When an unknown person comes to the bank and claims to be the account-holder of a long inoperative account, and a bank employee, who does not know such person, instructs his colleague to transfer the account from dormant to operative category (contrary to instructions regulating dormant accounts) without any kind of verification, and accepts the money withdrawal form from such person, gets a token and collects the amount on behalf of such person for the purpose of handing it over to such person, he in effect enables such unknown person to withdraw the amount contrary to the banking procedures; and ultimately, if it transpires that the person who claimed to be account holder was an imposter, the bank cannot be found fault with if it says that it has lost confidence in the employee concerned. A Bank is justified in contending that not only employees who are dishonest, but those who are guilty of gross negligence, are not fit to continue in its service.

11. However having regard to the fact that the proven charge did not involve either misappropriation or fraudulent conduct and the other circumstances of the case, we are of the view that the punishment of dismissal should be substituted by compulsory retirement, which does not involve reinstatement."

In view of the discussions made above and in view of the law on the subject, the writ petition deserves to be allowed. But since the petitioner is confined to bed and has already attained the age of superannuation, no fresh inquiry can be initiated in the matter, particularly, because of the dormant attitude of the appellate Authority and the opposite parties, who did not bother to procure the attendance of the appellate Authority before this Court.

I rely upon the dictum of the Hon'ble Apex Court in Mohd. Yunus Khan vs. State of U.P. & Ors.[ 2010 (10) SCC 539], wherein it was held:-

"37. In view of the above, we are of the considered opinion that the present case is squarely covered by the decision of the Constitution Bench in Arjun Chaubey (supra). The order of punishment is null and void and therefore, cannot be given effect to. The appeal deserves to be allowed. The appellant had already reached the age of superannuation and no fresh enquiry can be initiated in the matter if the earlier proceedings are rendered null and void for the violation of the statutory provisions and principles of natural justice. In the facts and circumstances of the case and in order to meet the ends of justice, it is desirable that the appellant be paid 50% of the wages from the date of removal from service till the date of reaching the age of superannuation and he be granted retiral benefits in accordance with law from the date of his retirement. In view of the above, appeal stands disposed of. No order as to costs."

In a similarly situated position, Hon'ble the Apex Court has held in Nirmala J. Jhala vs. State of Gujarat & Anr. [2013 (4) SCC 301], as under:-

"30. In view of the above, we have no option except to allow the appeal. The appeal succeeds and is accordingly allowed. The order of punishment imposed by the High Court in compulsorily retiring the appellant is set aside. However, as the appellant has already reached the age of superannuation long ago, it is not desirable under the facts and circumstances of the case, to grant her any substantive relief, except to exonerate her honourably of all the charges, and allow the appeal with costs, which is quantified to the tune of Rs.5 lacs. The State of Gujarat is directed to pay the said cost to the appellant within a period of 3 months from today."

The petition is accordingly allowed and the enquiry and the punishment awarded to the petitioner is set aside.

The opposite parties are directed to treat the case of the petitioner by ignoring the orders dated 05.01.2006 and 29.07.2005 as contained in Annexure nos. 1 and 2 to the petition and to provide all service/retiral benefits to the petitioner within ninety days from today.

Order Date :- 28.10.2013

Nitesh