Chairman,State Bank Of ... vs Om Prakash
2014 Latest Caselaw 3516 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved 
 
Court No.-24
 
Case :- SPECIAL APPEAL No. - 388 of 2013 
 
Appellant :- Chairman,State Bank Of India,Bombay & Ors. (310 S/S 1993) 
 
Respondent :- Om Prakash 
 
Counsel for Appellant :- D.P. Dwivedi 
 
Counsel for Respondent :- Gaurav Mehrotra 
 

 
Hon'ble Rajiv Sharma,J. 

Hon'ble Zaki Ullah Khan,J.

(Delivered by Hon'ble Mr.Justice Zaki Ullah Khan)

1. The instant special appeal has been preferred by the appellants against the judgment and order dated 9.5.2013 passed by learned Single Judge in Writ Petition No.310 (S/S) of 1993 (Om Prakash v. Chairman, State Bank of India and others).

2. By the impugned judgment and order, learned Single Judge has set-aside the termination order passed against the respondent-petitioner and quashed Annexures No.1 and 2 submitted along with the writ petition with the direction that the Enquiry Officer as well as Disciplinary Authority may proceed with the enquiry in accordance with the settled principle 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 order, in accordance with law, after affording opportunity to the respondent-petitioner of being heard within six months, failing which the petitioner shall be entitled to salary and other service benefits for the period during which he remained dismissed. Learned Single Judge further directed that re-enquiry be conducted within a period of six months as stipulated period and the fate of the respondent-petitioner shall be subject to the result of final enquiry.

3. Brief facts of the case, as narrated in the appeal are that the respondent-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 respondent-petitioner submitted his reply on 27.4.1991.The copy of the memo as well as reply are contained as Annexures No.3 and 4 respectively to the petition. Thereafter the respondent-petitioner was served with charge sheet dated 12.06.1992, by which disciplinary enquiry was initiated against the respondent-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 respondent-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 respondent-petitioner was not given opportunity to produce any evidence or to cross-examine the witnesses and all of sudden the respondent-petitioner was dismissed from services vide order dated 12.8.1992, without notice. After receiving the proposed punishment the respondent-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 respondent-petitioner terminated the services of the respondent-petitioner on 9.11.1992.

4. Learned counsel for the appellants during the arguments pointed out that it is not disputed that respondent-petitioner has not accepted the money in question handed over by the customer in good faith to the Bank Cashier i.e. respondent-petitioner. The respondent-petitioner, however, disputed the contention and submitted reasons behind the incident and nowhere he has disputed the facts. Only thing is that he twisted the facts and submitted otherwise. Smt. Lachmina came to Bank on 19.7.1989 to deposit the money and she handed over the money to the respondent-petitioner and received receipt. Similarly, Shri Riaz Ahmed has handed over Rs.6300/- and obtained the receipt. Shri Ghanshyam has also deposited the money and obtained the receipt and the fraud was discovered when they made complaint to the Bank that the money has not been deposited despite the fact that the money has been entered into the pass book. It is crystal clear that the respondent-petitioner is an employee of the Bank. He made the entries in the ledger and pass book in respective account holders but subsequently pleaded otherwise.

5. Learned counsel for the appellants argued that under Section 58 of the Evidence Act, the charges having been admitted were not required to be proved. The respondent-petitioner admitted the charges as mentioned at page nos.29 to 34 in the writ petition.

6.In the case of Chairman & Managing Director, V.S.P. And Others v. Goparaju Sri Prabhakara Hari Babu, reported in (2008) 5 S.C.C. 569. In paras 8 and 9 are reproduced herein below :

"8.A disciplinary proceeding was initiated, wherein again, he accepted his guilt whereupon the enquiry proceeding was closed stating : "When asked whether he accepts or denied (sic) the charges as contained in the charge sheet No.WK/TPP/107613/95/2255 dated 5.6.1995, it is true that he has not attended duties during the period mentioned in the charge sheet i.e., thirty days in April 1995 and 30 days from 1.5.1995 to 30.5.1995 for the reasons mentioned in his explanation dated 19.6.95 submitted in reply to the above charge sheet. A photocopy of the above referred explanation has been produced by the CE in the enquiry. The same has been taken on record. The CW has stated that due to his mother's severe illness at his native place, he could not attend his duties as his presence was necessary there to attend his ailing mother. The CW further stated that the CE was facing financial problem as he has not declared his mother as his dependent due to which he was facing lot of mental strain. The CE has stated that he accepted the charges voluntarily and without pressure from any side. In view of the voluntary admission of the charges, the enquiry is closed."

9. The disciplinary authority, upon consideration of the said enquiry report, found the respondent guilty of the said charges and an order of removal from service was passed by it on 9.7.1996, stating : "I find from your personal records, that even after issue of the above three charge sheets dated 18.3.91, 22.9.92 and 5.6.95 and also after enquiries were conducted, there is no improvement in your attendance and I am constrained to observe that you are absenting from duty unauthorisedly without prior sanction of leave from duty unauthorisedly without prior sanction of leave from June 95 to July 96 as shown below. This was even after a commitment made by you that you will be regular in attending to duties and that an opportunity should be given to you to improve upon."

7. Learned counsel for the appellants further pointed out that there is limited scope of Hon'ble the High Court to make a judicial review and well reasoned order of the departmental enquiry cannot be interfered with on the basis of sympathy or sentiments. It is settled principle of law that ordinarily ought not to disturb penalty where procedural requirements have been complied by departmental authority, except that principle of proportionality can be invoked in appropriate cases.

8. Learned counsel for the appellants has placed reliance judgment of Hon'ble the Apex Court in the case of

Dharmarthmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal and Another, reported in (1997) 7 S.C.C. 332, in which, legal proposition "where the charges are almost admitted, the case reveals itself and is apparent on the face of the record it would not be a fit case to interfere with the termination order". In para - 8 of the said judgment Hon'ble the Apex Court held as under :

"8. The contention of learned counsel for the respondent is confined that there was no enquiry in terms of Section 6 of the said Act. There is no submission of any defence on merit. Even before us when we granted learned counsel an opportunity to give any prima facie or plausible explanations on record to defend her actions, nothing could be placed before us. Giving of opportunity or any enquiry of course is a check and balance concept that no one's right be taken away without giving him/her opportunity or without enquiry in a given case or where the statute requires. But this cannot be in a case where allegation and charges are admitted and no possible defence is placed before the authority concerned. What enquiry is to be made when one admits violations ? When she admitted she did not join M.Phil. Course, she did not report back to her duty which is against her condition of leave and contrary to her affidavit which is the charge, what enquiry was to be made ? In a case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record, and in spite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with the termination order."

9. Learned counsel for the appellants has also cited a judgement of Hon'ble the Apex Court in the case of

Union Bank of India v. Vishwa Mohan, reported in AIR 1998 S.C. Page 2311, in which, legal proposition "It is to be seen, how prejudice was caused to charged employee due to non - supply of inquiry authority's report. Whether non furnishing of inquiry report would have made any difference to the result of the case. In the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular bank officer. If this is not observed the confidence of the public/depositor would be impaired." In paras 9 and 11 Hon'ble the Apex Court held as under :

"9. We are totally in disagreement with the above quoted reasoning of the High Court.The distinction sought to be drawn by the High Court that the first charge sheet served on the respondent related to the period when he was a clerk whereas other three charge sheets related to the period when he was promoted as a bank officer. In the present case, we are required to see the findings of the Inquiry Authority, the order of the Disciplinary Authority as well as the order of the Appellate Authority since the High Court felt that the charges levelled against the respondent after he was promoted as an officer were not of serious nature. A bare look at these charges would unmistakably indicate that they relate to the misconduct of a serious nature. The High Court also committed an error when it assumed that when the respondent was promoted as a bank officer, he must be having a good report otherwise he would not have been promoted. This finding is totally unsustainable because the various acts of misconduct came to the knowledge of the bank in the year 1989 and thereafter the first charge sheet was issued on 17th February, 1989. The respondent was promoted as a bank officer some time in the year 1988. At that time, no such adverse material relating to the misconduct of the respondent was noticed by the bank on which his promotion could have been withheld. We are again unable to accept the reasoning of the High Court that in the facts and circumstances of the case "it is difficult to apply the principle of severability as the charges are so inextricably mixed up."If one reads the four charge sheets, they all relate to the serious misconduct which include taking bribe, failure to protect interest of banks, failure to perform duties with utmost devotion diligence, integrity and honesty, acting in a manner unbecoming of a bank officer etc. In our considered view, on the facts of this case, this principle has no application but assuming that it applies yet the High Court has erred in holding that the principle of severability cannot be applied in the present case.The finding in this behalf is unsustainable. As stated earlier, the appellant had in his possession the inquiry report/findings when he filed the statutory appeal as well as the writ petition in the High Court.The High Court was required to apply its judicial mind to all the circumstances and then form its opinion whether non-furnishing of the report would have made any difference to the result in the case and thereupon pass an appropriate order.In paragraph 13, this Court in Managing Director, ECIL, Hyderabad and others (supra) has very rightly cautioned: "The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts."

In our considered view, the High Court has failed to apply its judicial mind to the facts and circumstances of the present case and erroneously concluded that non supply of the inquiry report/findings has caused prejudice to the respondent.

11.After hearing the rival contentions, we are of the firm view that all the four charge sheets which were inquired into relate to serious misconduct. The respondent was unable to demonstrate before us how prejudice was caused to him due to non supply of the Inquiry Authority's report/findings in the present case. It needs to be emphasized that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this is not observed, the confidence of the public/depositors would be impaired. It is for this reason, we are of the opinion that the High Court had committed an error while setting aside the order of dismissal of the respondent on the ground of prejudice on account of non furnishing of the inquiry report/findings to him."

10. Learned counsel for the appellants thus argued that nothing is left because there is admission of the respondent-petitioner that he has accepted the money and the moment the money is received, the act is complete because he was discharging his duties and now at this stage he cannot plead that the money was adjusted because of some eventuality and by trick, he settled his personal scores with the person depositing the money. It has been submitted that if the respondent wants to settle the dues of any customer to his personal matter then it cannot be taken through the Bank transaction. While working in Bank he is only an employee. The Bank is place of work and he has been deputed to discharge the duties assigned by Bank in accordance with the rules, and cannot take liberty to settle his personal scores by utilizing the business of Bank. It is absolutely disgusting that an employee has committed fraud, shown deceitful gestures, and therefore this is purely a case of mis-embezzlement and breach of service rules that is why he has been punished severely. He is guilty of misconduct.

11. In reply learned counsel for the respondent-petitioner submitted that learned Single Judge has rightly allowed the writ petition passed a detailed order as to how the termination order has been quashed on the ground that there is a breach of norms of natural justice. Rules of Evidence Act are not applicable during enquiry and quasi judicial matters. Conducting enquiry is quasi judicial matter, therefore, respondent-petitioner cannot presumed to be guilty unless he be afforded an opportunity and due consideration be given to circumstances and to his conduct and his own explanation, which alone is enough to explain the facts and circumstances. Learned counsel for the respondent-petitioner argued that the answer of the aforesaid question has been given in negative. No opportunity has been afforded but it has been presumed that he has committed wrongful Act. It is incumbent upon the Enquiry Officer to examine the relevant witnesses and particularly account holders, in respect whereof the misappropriation was alleged. 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.

12. Learned counsel submitted that the aforesaid issue has already been dealt in the judgment and order of Hon'ble Single Judge of this Court. In Roop Singh Negi v. Punjab National Bank and others, reported in (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."

13. Learned counsel for the respondent-petitioner has also cited a judgment of Hon'ble the Apex Court in the case of Moni Shanker v. Union of India , reported in (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."

14. Learned Counsel for the respondent-petitioner further submitted that the impugned order of dismissal which has been passed without following the proper procedure i.e. after examining the most relevant evidence namely the concerned account holders, can sustain in spite of the established procedural irregularities in the disciplinary proceedings ?

15. Learned counsel for the respondent-petitioner further submitted that the answer of the aforesaid question is also in negative. It is no more res-integra that order based on improper enquiry report which is vitiated due to not following principle of natural justice is not sustainable. The column for defense witness in the enquiry report is blank, this blank column itself makes it evident that the relevant witness of defence was not examined at all. The aforesaid submission is based on the law laid down by Hon'ble Supreme Court of India in a catena of pronouncements one of them being, the matter reported in (2006) 5 SCC 88 In Re : MV Bijlani vs. Union of India and this Hon'ble Court in the matter reported in (2005) 1 UPLBEC 276 In Re: Atul Kumar vs. U.P. Export Corporation and 2011 (5) ESC 3643 In Re: Kishori Lal vs. Chairman Board of Directors, Aligarh Gramin Bank, Aligarh, wherein it has been, inter-alia, held that "A vague averment in the counter affidavit that petitioner was given full opportunity to defend is not sufficient, and particulars ought to be provided that how principles of natural justice have been complied with." It has also been held that "Lack of good behaviour does not itself constitute 'misconduct' and in the facts accepting money from neighbours but causing no loss to the bank held is not misconduct, for disproportionate punishment should not be imposed." Not only so this Hon'ble Court has further been pleased to hold that "When no loss is caused to the bank, and for a petty amount, disproportionate punishment cannot be imposed."

16. In a recent pronouncement of a co-ordinate Division Bench of this Hon'ble Court reported in 2012 (1) ADJ 183 (DB) In Re : BM Nigam v. Chairman, State Bank of India, in which appellant Bank was also one of the parties, this Hon'ble Court has been pleased to hold that "When charges are not proved the inquiry report does not stand and is liable to be quashed." It has also been held that " No loss is caused to the bank and misappropriation has not been proved, no disproportionate punishment can be imposed."

17. We have heard learned counsel for the parties and perused the case laws submitted by the appellants and the respondent.

18. The main contention here is that the respondent himself has admitted that he has taken the money from the person while he was working as cashier in Bank. All those customers who have later complained and handed over the cash in good faith and obtained the receipt. Subsequently, the respondent retracted from his admission and imputed reasons and he has refuted that though he accepted the money from Smt. Lachmina who came to Bank on 19.7.1989 and he handed over her receipt but subsequently she came back on the pretext that her husband does not want that she should deposit the money in Bank and he returned the money to her but did not ask her to return the counterfoil. Similarly, regarding Shri Riaz Ahmad who has handed over Rs.6300/- and obtained the receipt, the respondent attributed motive that he owed certain amount to him and he was not paying and he obtained the money this way. These explanation itself cannot be sustained in the light of his own admission when the employee of the Bank committed such type of act, that means he was not acting in good faith. Since he has admitted, therefore, under Section 58 of the Evidence Act, the charges have not to be proved. The respondent even admitted at page 29 to 34 in the writ petition all these events. Merely saying that rules of the Evidence Act are not applicable in departmental enquiry which is quasi-judicial in nature cannot be accepted because in quasi-judicial proceeding principle of natural justice to be applied. Principle of natural justice have to be evaluated on the basis of the legal principle if the law is very clear regarding admission then it must be obeyed. It is no ground that it is not principle of natural justice.

19. Hon'ble the Apex Court in the case of Chairman & Managing Director, V.S.P. And Others v. Goparaju Sri Prabhakara Hari Babu (Supra) has held in affirmative regarding admissibility of the admission before the disciplinary authority. Similarly, Hon'ble the Apex Court in the case of Dharmarthmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal and Another (Supra) has laid fundamental regarding admission of charges. Therefore, in the light of all the deliberations, it is apparent on record that the enquiry report cannot be set-aside and the order passed by Hon'ble learned Single Judge lacks clarity. The Enquiry Officer during quasi-judicial proceeding has a duty arrived at particular findings for taking into consideration material on record. It was not necessary for the Enquiry Officer to examine the relevant witness and particularly account holders in respect of where misappropriation was alleged because under Section 58 of the Evidence Act, charges have been admitted are not required to be proved.

20. In Roop Singh Negi v. Punjab National Bank and others (Supra) Hon'ble the Apex Court has clearly laid down that departmental proceeding is a quasi-judicial proceeding and the enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be proved. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of 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.

21. Learned counsel for the respondent based on his arguments on judgments of Hon'ble the Apex Court in the cases of In Roop Singh Negi v. Punjab National Bank and others (Supra) and Moni Shanker v. Union of India (Supra), laid stress that all those witnesses who have complained that they have paid the money that has not been deposited should have been produced as a witness. The admission of the respondent alone is not enough when he is submitting explanation regarding that.

22. We are of the opinion that the view taken by Hon'ble learned Single Judge is not in accordance with principle of natural justice and settled legal principle applied in quasi-judicial proceedings. It was incumbent upon the respondent to examine the witnesses in defence as per his own averment. Since otherwise has been established a duty was casted on him to rebut those facts, which have been established against him. Had the respondent produced these witnesses in his defence, the matter would have been different. As a banker, he was duty bound to discharge onerous obligation as per banking rules and regulations. Learned Single Judge definitely erred in holding otherwise. The judgment and order passed by Hon'ble Single Judge suffers from gross irregularities and liable to be set-aside.

23. Accordingly, the special appeal is allowed and the judgment and order passed by Hon'ble learned Single Judge is set-aside.

Order Date :- 23rd July, 2014

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