Rajeev Kumar Singh vs Executive Director P.N.B. & ...
2017 Latest Caselaw 6733 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						Reserved on 31.10.2017             
 
						Delivered on  13.11. 2017             
 
Court No. - 35
 

 
Case :- WRIT - A No. - 45996 of 2009
 

 
Petitioner :- Rajeev Kumar Singh
 
Respondent :- Executive Director P.N.B. & Others
 
Counsel for Petitioner :- Anil Kumar Srivastava
 
Counsel for Respondent :- D. Vaish,Dharmendra Vaish,Ramesh Singh,S.C.
 

 

 
Hon'ble Bharati Sapru,J.

Hon'ble Siddharth,J.

(Delivered by Hon'ble Siddharth, J.)

Heard Sri A.K. Srivastava, learned Counsel for the petitioner and Sri Dharamendra Vaish, learned Counsel for the respondents.

Petitioner has filed above noted writ petition challenging the punishment order dated 28.12.2007 passed by respondent no.3, appellate order dated 19.5.2009 passed by the respondent no.1, reviewing authority.

Petitioner was posted at Jogia Branch of the Punjab National Bank from 15.9.1999 to 17.5.2003. Thereafter from 19.5.2003 to 25.6.2003 he was posted as Branch Incharge at Siddharth Nagar.

Petitioner was chargesheeted on 23.6.2006 regrading six charges .Thereafter second charge sheet dated 12.12.2006 was served upon him regarding charges no. 7 and 8. All the charges were regarding omissions and commissions done by the petitioner during the course of his duties. Copy of the documents relied in the charge sheet were not supplied to the petitioner, nor copies of the statements of the witnesses were supplied to him by the respondents, therefore, petitioner could not properly defend his case. As per Regulation 6(3) of the P.N.B. Officer Employees (Discipline and Appeal) Regulation 1977(hereinafter referred to as 'Regulation 1977') he was required to be given documents, name and statements of the witnesses.

Petitioner submitted his reply dated 16.7.2006 to the charge sheet and denied the charges. He stated that except one charge all the charges have been framed on the basis of inspection report dated 20.6.2005 but the same was not supplied to the petitioner. The petitioner also submitted his reply dated 19.1.2007 to the supplementary charge sheet dated 12.12.2006 and denied charges. Initially Shri K.K. Gupta was appointed inquiry officer and on 6.10.2006 the petitioner submitted an application before him for supply of certain documents to defend his case regarding charge sheet dated 23.6.2006. He submitted similar application dated 25.2.2007 regarding supply of supporting documents of supplementary chargesheet dated 12.12.2006. Vide order dated 1.3.2007, the inquiry officer informed the petitioner that all the documents required by him are relevant, except few documents which are not related to the charge and the petitioner was advised to collect the same from the respective custodians of the documents.

The documents could not be supplied to the petitioner and by order dated 19.10.2006 the inquiry officer rejected the prayer of the petitioner for supply of most of the documents, being irrelevant for defending his case. On 4.10.2007 the inquiry officer submitted his report and found the charges proved against the petitioner. A show cause notice dated 8.10.2007 was issued to the petitioner by the respondent no.3 along with copy of the inquiry report for submitting of representation against the finding of the inquiry officer within seven days . The petitioner submitted his reply on 17.10.2007 and by the order dated 28.12.2007 he was awarded punishment of dismissal from service by the respondent no.3.

After unsuccessful challenge to the dismissal order in appeal and review petition, petitioner has approached this court.

Learned counsel for the respondents have filed counter affidavit stating that all the charges were discussed by the inquiry officer and findings have been recorded after consideration of every charge. It is denied that the list of witnesses demanded by the petitioner was not supplied to him. It has also been stated that Regulation 6 (3)of the Regulation 1977 also provides that if it is not possible to serve the copies of the documents, the disciplinary authority shall allow the charged official to inspect the documents within time specified in this behalf.Petitioner was informed that he could inspect bank record which were not attached with the charge sheet. The punishment and appellate and review orders have been justified by the respondents.

The petitioner has filed the rejoinder affidavit rebutting the allegations made in the counter affidavit. The first argument advanced by the learned counsel for the petitioners is that as per Regulation 6(3) of the Regulation 1977, there is provision for supply of list of documents, list of witnesses along with copy of the statements of witnesses on which the charges are based and in the absence of supply of documents, list of witnesses and copy of statements of the witnesses, the disciplinary inquiry gets vitiated. In paragraph-12 of the writ petition Regulations 1977 have been quoted as follows-

" Where it is proposed to hold an enquiry, the Disciplinary Authority shall frame definite and distinct charges on the basis of the allegations against the officer employee and the articles of charges, together with a statement of the allegations, list of documents relied on along with copy of such documents and list of witnesses along with copy of statement of witnesses,if any, on which they are based, shall be communicated in writing to the officer employee, who shall be required to submit, within such time as may be specified by the Disciplinary authority or within such extended time as may be granted by the said Authority a written statement of his defence."

In paragraph-13 of the counter affidavit respondents have stated that Regulation 6(3) of Regulation 1977 also provides that wherever it is not possible to furnish copies of the documents, the same may be inspected from the bank's record with prior intimation to the inquiry officer.In support of their contention respondents have not brought on record any provisions of the Regulation and, therefore, their contention cannot be accepted.

Learned counsel for the petitioner has relied upon the judgement of Apex Court in the case Pawan Kumar Agarwala Vs. General Manager-II and Appointing Authority, State of Bank of India and others, 2016 (148) FLR 865, SC, wherein it has been held in paragraph-17, that the inquiry was not properly conducted due to non furnishing of list of witnesses and copies of the documents and therefore the exercise of power on the basis of C.V.O'S opinion for removal of the appellant from the service entail serious consequences.

This Court in the case of Divisional Railway Manager, Northern Railway , Lucknow and others Vs. Salig Ram Mandal and another, 2014(140) FLR 694 has held in paragraph -9 that

" The law is well entrenched that in any inquiry, department or management desires to rely upon any document in proving of the charge, it is incumbent upon them that the copies of those documents are supplied to the delinquent employee for satisfying principles of natural justice. An Inquiry Officer is an independent person and is not a brief holder of the department. He is a quasi judicial authority whose functioning is to examine the evidence presented by the department and to ensure, even in absence of delinquent official that evidence before him is sufficient to hold the charges as proved. He has to follow the procedure and observe the principles of evidence for proving of the documents submitted by the department in evidence against the employee with regard to the charges levelled against him".

Therefore, we hold that serious prejudice has been caused to the rights of the petitioner on account of non- supply of documents claimed by him to be relevant for replying the charges levelled against him.

The second arguments advanced on behalf of the petitioner is that in the charge sheet the name of only one witness namely, Shri R.K. Chaudhary, Senior Manager, Siddharth Nagar was mentioned and in the supplementary charge sheet dated 12.12.2006, name of no witness was mentioned, but in the departmental inquiry three witnesses, namely, Shri R.K. Chaudhary, Senior Manager, Branch Officer, Shri Raju Prasad, Senior Manager (Credit) Zonal Office, Lucknow and Shri Kamlesh Singh, Officer Branch Office Jogia were produced and their statements were recorded as MW-1, MW-2 and MW-3; respectively.

He has placed relied upon the judgement of High Court of Delhi in the case of Rajeshwar Singh Vs. Union of India in Civil Writ No. 2516 of 1996,SLR 1990 Vol. 1, page 24 wherein paragraph-6 it has been held as under:-

"(6) Learned counsel for the petitioner has further submitted that the department had initially proposed to examine only five witnesses in support of the charge but in actuality as many as "even witnesses were examined. In this behalf, my attention has been drawn by the. learned counsel for the petitioner to Annexures 'A' and 'B'. Annexure 'A' is the charge-sheet and there are four annexures to this Annexure 'A' and perusal of Annexure Iv thereto shows that the department proposed to examine five witnesses namely. Inspector Dharbha Vishwanath (Coy. Commdr.). Si Karam Singh, Hcf R. L. Sawant, Hco N. A. Shinde. and SGN animate Sathe in support of the charge-sheet. However, perusal of Annexure 'B' which is the enquiry report shows that seven witnesses were examined and on comparison of these witnesses in the two annexure (I further find that of the five witnesses mentioned in Annexure A, Hcg N.A. Shinde was not examined at all and further that three more witnesses. namely. Sg Gulab Singh, Sg Manukhthi and Sg Abekar were examined. This certainly would act to the prejudice of the case of the petitioner and principles of natural justice would be deemed to have been violated by adoption of such a course by the enquiry officer. This course tends to prejudice the defense even. Learned counsel for the respondent has not been able to explain the circumstances in which this departure had taken place in the examination of witnesses and consequently also it would be difficult to sustain the enquiry report and the termination orders in the face of such a situation and I hold accordingly."

Further as per Regulation 6(3) of Regulation 1977, the list of witnesses is required to be enclosed with the charge sheet itself and in the charge sheet only one witness Shri R.K. Chaudhary was named and later two move witnesses, namely, Raju Prasad and Kamlesh Singh appeared in the inquiry and their statements were relied upon by the inquriy officer while passing the punishment order.There is no justification of this act on behalf of the respondents on record nor any submission regarding the same has been placed.

Third argument of the petitioner is that the report of the inquiry officer is bad and its findings are vitiated on account of the fact that he has accepted therein that the documents demanded by the petitioner were not available in the branch and presenting officer of the deparatment got non availablity ceritificate regarding those document from the branch and submitted the same in the inquiry. Therefore, how those doucments were made the basis of the charge sheet issued to the petitioner was not considered by the inquriy officer while proceeding with the inquiry against the petitioner.

In the counter affidavit only defence is that petitioner could have examined the record in the bank, but where the documents were not available even in bank and certificate of non-availability was submitted before the inquiry officer, there was no question of exmaning of documents in the bank by the petitioner,therefore, inquiry was clearly vitiated on this account also.

Learned counsel for the petitioner has also argued that documents produced by the management were neither proved by the department nor exhibited by the inquiry officer. Such documents were not worth reliance and no punishmnet order could have been passed against the petitioner on their basis.A perusal of the inquiry report shows that only documents numbers have been mentioned in the inquiry report of the inquiry officer and none of the documents have been exhibited by the inquiry officer in the entire inquiry report. There is no finding that which document was proved by which witnesses.Therefore, the arguments of the petitioner seem to be correct.

Petitioner has further submitted that disciplinary authoirty, appellate authority and review authority have not recorded any finding in regard to the ground raised in his appeal that there was non-supply of documents, in support of charge sheet and have brushed aside the contention of the petitioner while discussing other issues.

A perusal of the punishment order dated 28.12.2007 shows that Disciplinary Authority has not considered the objection of the petitioner that he was not supplied all the documents which were basis of the chargesheets.

In view of the above factual and legal position the punishment order dated 28.12.2007 passed by the respondent no.3, the appellate order dated 31.3.2008 passed by respondent no.2 and the order review authority dated 19.5.2000 passed by the respondent no. 1 are hereby quashed.

In view of the fact, that the petitioner has yet not reached the age of supperanuation, the Disciplinary Authority is directed to get the inquiry re-conducted by providing all the documents forming the basis of the two chargesheets to the petitioner, get the documents filed by the Management and the petitioner proved and exhibited as per the law, afford opportunity of cross examination of witnesses to the petitioner and then get fresh inquiry report on their basis from the inquiry officer. The Disciplinary Authority shall pass fresh order after considering the objection of the petitioner on the inquiry report. This exercise shall be completed within three months from the date production of a certified copy of the order. Certified copy of the order may be produced within next fifteen days.

With the above observations, the writ petition stands allowed.No costs.

OrderDate:-13.11.2017

Atul kr. Sri.