Yogendra Kumar vs Union Of India And 4 Others
2018 Latest Caselaw 294 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 29338 of 2014
 

 
Petitioner :- Yogendra Kumar
 
Respondent :- Union of India and others 
 
Counsel for Petitioner :- Sapan Kumar Singh, Ashok Khare, Shesh Kumar 
 
Counsel for Respondent :- A.S.G.I., D. Vaish, S.C.
 

 
Hon'ble Sudhir Agarwal, J.

Hon'ble Neeraj Tiwari, J.

1. Heard Sri Shesh Kumar, Advocate, for petitioner and Sri Shesn Nath Pandey, Advocate, holding brief of Sri Dharmendra Vaish, for respondent-Bank.

2. The writ petition is directed against punishment order dated 12.05.2011 (Annexure-9 to the writ petition) passed by Assistant General Manager imposing punishment of compulsory retirement in terms of Regulations-4(h) of Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1977 (hereinafter referred to as "Regulation, 1977") and appellate order dated 28.04.2012 passed by General Manager, Personnel, Administrative Division, Punjab National Bank, New Delhi dismissing petitioner's appeal and order dated 10.02.2014 passed by Executive Director, Punjab National Bank dismissing Review Application of petitioner.

3. Sri Shesh Kumar, learned counsel for petitioner, at the outset, stated that there are two charges levelled against petitioner, but none could be proved, and, therefore, entire proceeding is clearly illegal. Secondly it is submitted that order of punishment has been passed by an authority who is lower in rank to appointing authority and, therefore, it is wholly without jurisdiction. Thirdly, it is contended that procedure laid down in Regulation 6(17) of Regulation, 1977 has not been complied with and, therefore, impugned order is liable to be set aside. Lastly, it is contended that punishment is disproportionate to the charges levelled and found proved.

4. Adjudication of the aforesaid issues may require appreciation of facts as born out from pleading in the writ petition.

5. Petitioner was appointed as Clerk/Cashier in the Bank on 20.05.1980. He was promoted as Officer, Junior Management Grade Scale-I on 18.10.1988 and further as Officer, Middle Management Grade Scale-II on 03.01.2013. While working as Manager at Gorakhpur, Disciplinary Authority, i.e., Circle Officer, Gorakhpur issued a charge sheet dated 04.02.2010 alleging certain acts constituting misconduct committed by petitioner while he worked as Manager in Branch Office, Industrial Area, Gorakhpur. The statement of article of Charges contained two charges, as under:

"ARTICLE-I

He has established business relationship with a firm M/S Nancy Constructions, Industrial Area, Gorakhpur and has undertaken transactions through his OD A/C to different accounts, which is disproportionate to his salary/known source of income.

ARTICLE-II

He has taken money from Sri Hari Lal Singh Vill & Post- Sohnariya (Chiutahan) Dist.- Deoria (UP) by assuring him to provide job of peon in Punjab National Bank.

The above acts of Sri Yogendra Kumar constitute misconduct in terms of Regulation 6(1), 3(1) read with Regulation 24 of Punjab National Bank Officer Employees' (Conduct) Regulations, 1977."

6. The details of charges stated in statement of imputation of charge in Annexure-2 to the Charge-sheet divided charge-I in two parts as under:

"Charge I

Charge 1(A)- You have established business relationship with a firm M/S Nancy Constructions, Industrial Area, Gorakhpur, A/C no. 0666002100018446 and its partner(s). In this regard the following transactions have been made from your OD A/C 1236009400016295.

Date

Amount (in Rs.)

Cheque No.

Remarks

20/04/2007

Dr 1,50,000

259909

Cheque issued in favour of Sri K.P. Singh

26/04/2007

Cr 3,50,000

Cash deposited by Sri K.P. Singh

26/04/2007

Dr 3,50,000

Transfer

Credited in A/C no. 0666000100309951 of Sri D.N. Tiwari

28/04/2007

Cr. 3,00,000

Transfer

From A/c no. 0666000100309951 of Sri D.N. Tiwari

28/04/2007

Dr 3,00,000

259918

Cash payment taken by yourself of cheque issue in favour of Sri K.P. Singh

Charge I(B) - Several transactions (debit/credit) of huge amount have been undertaken from your OD A/C 1236009400016295 to different accounts, which is disproportionate to your salary. To quote:

Date

Amount (in Rs.)

Cheque No.

Remarks

20/04/2007

Dr 1,50,000

259909

Cheque issued in favour of Sri K.P. Singh

26/04/2007

Cr 3,50,000

Cash deposited by Sri K.P. Singh

26/04/2007

Dr 3,50,000

Transfer

Credited in A/C no. 0666000100309951 of Sri D.N. Tiwari

28/04/2007

Cr. 3,00,000

Transfer

From A/c no. 0666000100309951 of Sri D.N. Tiwari

28/04/2007

Dr 3,00,000

259918

Cash payment taken by yourself of cheque issue in favour of Sri K.P. Singh

7. Charge-II reads as under:

Charge II- You have taken Rs. 3,00,000 from Sri Hari Lal Singh, Vill & Post- Sohnariya (Chiutahan), Dist.- Deoria (UP) by assuring him to provide job of peon in Punjab National Bank. But when Sri Hari Lal could not get the job, you issued a cheque bearing no. 157666 from your a/c no. 1236009400016295 on 18/07/2007 for Rs. 2,20,000 but the same was returned due to insufficient fund in your account."

8. The evidence in support of charges, documentary and one oral is as under:

"List of Documents:

Copy of following documents:

1. Hari Lal Singh, the Complainant letter dated nil

2. Cheque no. 157666 dated 18/08/2007

3. Cheque Returning Memo dated 21.08.2007.

4. Statement of A/C dated 04.06.2007 of Sri Hari Lal Singh

5. Hari Lal Singh, the Complainant letter dated 05/11/2008

6. Statement of A/C dated 20/10/2008 of Sri Yogendra Kumar

7. Transfer Voucher dated 28/04/2007 for Rs. 3,00,000/-

8. Transfer voucher dated 26/04/2007 for Rs. 3,50,000/-

9. Cheque no. 259918 dated 28/04/2007.

10. Cash Receipt voucher dated 26/04/2007 for Rs. 3,50,000/- of Sri K.P. Singh

List of Witness

Sri K.M. Dubey, Sr. Manager, BO: Industrial Area, Gorakhpur"

9. Petitioner vide letter dated 23.02.2010 denied all the charges. Disciplinary authority appointed Sri M.M. Srivastava, Senior Manager, Circle Office, Gorakhpur as Inquiry Officer. After completion of oral inquiry, Inquiry Officer submitted report dated 22.01.2011. Assessment of evidence by Inquiry Officer in respect to charge-I reads as under:

"Assessment of Evidence

As per arguments and documents produced during the proceedings, it is evident from ME-2, ME-3, ME-4, ME-5, ME-6, ME-7, ME-8, ME-27, ME-9, ME-10 and ME-19 that CSO allowed routing of business transactions of M/s Nancy Constructions from his OD a/c no. 1236009400016295 and thus became party to these transactions. Before termination of partnership part proceeds of Rs. 6,50,000/- have been credited in the a/c of daughter of CSO. Both CSO and DW could not produce any document in defence and their arguments are not convincing.

Findings

In view of the evidences and arguments put forward by PO and CSO, Charge I(B) is proved."

10. Findings in respect to charge-II recorded by Inquiry Officer reads as under:

"As per arguments and documents produced during the proceedings, Complainant in his complaint (ME-25) lodged a complaint that CSO received Rs. 3,00,000/- from his in lieu of peon's job in bank. But when complainant could not get the job, CSO issued cheque no. 157666 (ME-11) dated 18.08.2007 for Rs. 2,20,000/- favouring Sh. Hari Lal Singh. This cheque was presented at BO: Deoria and returned back on account of "insufficient funds" (ME-12)

During course of enquiry proceedings DW & CSO informed that cheque no. 157666 was stolen by Sh. Hari Lal Singh alongwith other papers, during a meeting session on 28.07.2007. CSO immediately came to know about theft of cheque leaf, but instead of stopping payment of the cheque, he preferred lodging of complaint with the Police on 08.08.2007.

Complainant served a notice under Section 138 of NI Act against CSO and filed suit no. 08/2008 in the Court of Civil Judge, Deoria (ME-23). CSO has not rebutted the pending suit.

Break up of Rs. 3,00,000/- is as under:

i) Complainant in his complaint dated 05.11.2008 (ME-26) has alleged that on 08.06.2000 CSO was given cash of Rs. 1,72,000/- at his village and CSO obtained signature of complainant on blank papers. PO could not provide any document to substantiate the contentions of complainant in respect of his amount.

ii) Complainant states that on 30.04.2007 a sum of Rs. 40,000/- was transferred from his SF a/C to CA of M/s Nancy Constructions (ME-13 & ME-14).

iii) Complainant further states that on 01.05.2007 a sum of Rs. 38,000/- was transferred from his SF a/c to CA of M/s Nancy Construction. (ME-15 & ME-16).

DW could not explain as to when the case was given to Sh. Hari Lal Singh for miscellaneous payment through cash voucher, then why amount of Rs. 40,000/- & Rs. 38,000/- was transferred through his bank account.

During proceedings CSO & DW stated that complainant Sh. Hari Lal Singh was employed as 'Munshi' with M/s Nancy Construction to prove DW has submitted, subsequent to conclusion of enquiry proceedings, unattested photocopies of the cash vouchers of the firm bearing signature of Hari Lal Singh, (Annexed with the report).

iv) Complainant further stated that on 03.05.2007 cash of Rs. 50,000/- was deposited in OD a/c of CSO from BO: Shibpur, Howrth (ME-17) through his friend Sh. Aniruddh Singh. This amount was withdrawn by CSO vide cheque no. 259921 (ME-18). This entry was verified by CSO himself through his DB User ID.

During the course of enquiry DW stated that Sh. Aniruddh Singh was his family friend at Kolkata. He has submitted, subsequent to conclusion of enquiry proceedings, unattested photocopy of the letter of Sh. Annirudh Singh bearing his signature (Annexed with the report).

Findings

In view of the evidences and arguments put forward by PO and CSO, Charge II is proved partially."

11. It is thus evident that charge-I was found proved fully and Charge-II was found proved partly inasmuch payment of Rs. 1,72,000/- by complainant to petitioner could not be proved but rest part of charge was found proved.

12. Copy of inquiry report was supplied to petitioner by disciplinary authority vide letter dated 08.02.2011 which was replied by petitioner vide letter dated 15.02.2011. Thereafter, order of punishment was passed by Assistant General Manager, Circle Office, Gorakhpur, the Disciplinary Authority, agreeing with findings of Inquiry Officer and imposing punishment of 'Compulsory Retirement' in terms of Regulation 4(h) of Regulations, 1977. Appeal preferred by petitioner against punishment order has been rejected by Appellate Authority, i.e., General Manager vide order dated 28.04.2012 which was communicated to petitioner by Chief Manager, Personnel (Administration) Division vide letter dated 30.04.2012. Petitioner then preferred a Review Petition under Regulation 18 of Regulations, 1977 before Executive Director vide Review Memo dated 15.10.2012 but the same has also been rejected by Executive Director by order dated 10.02.2014.

13. Counsel for petitioner argued that it could not be proved that petitioner has any interest or business relationship with M/s. Nancy Construction, Industrial Area, Gorakhpur, and, therefore, it cannot be said that the two charges are proved against petitioner and hence findings are incorrect.

14. It is not disputed by learned counsel for petitioner that in M/s Nancy constructions, Sri K.P. Singh and Sri D.N. Tiwari were partners. M/s Nancy Construction had its account in the Bank. Petitioner himself has admitted in his memo of appeal that he issued a bearer cheque in the name of Sri K.P. Singh for Rs. 3 lacs. This amount was deposited by Sri D.N. Tiwari in his (petitioner's) account. When questioned, learned counsel for petitioner could not explain as to why partners of a firm would transit money through petitioner's account, if he had no connection or concern with them. The statement of petitioner in memo of appeal reads as under:

"Mr. Tewari again transferred Rs. 3,00,000/- in my account accordingly I issued a bearer cheque in the name of Sri K.P. Singh for Rs. 3,00,000/-. The amount was taken and handed over to Sri K.P. Singh who refunded it to Mr. Tewari."

15. Similarly, in respect to charge-II, it is evident that petitioner issued cheque no. 157666 dated 18.07.2007 for Rs. 2,20,000/- in favour of Hari Lal Singh who presented the said cheque at Branch Office, Deoria but it was returned on account of "insufficient funds". When questioned, why and in what circumstances petitioner issued the aforesaid cheque to Hari Lal Singh, counsel for petitioner stated that the said cheque was stolen. When we questioned as when cheque was stolen and whether any report was lodge, and, moreover petitioner, being a Bank Manager, whether Bank was informed to stop payment of said cheque, learned counsel could give no reply as to whether such steps were taken or not. This shows that defence of petitioner that cheque was stolen is a pretext. It is a fact that he had issued the said cheque to Sri Hari Lal Singh. Reason for such issue of cheque could not be explained and in these facts and circumstances, we find no reason to take a different view than what has been taken by Inquiry Officer that charge of acceptance of money from Hari Lal Singh on the promise of getting him employment in the Bank was duly proved.

16. In a departmental inquiry, a charge is not required to be proved beyond doubt but if evidence available on record shows that preponderance of probability proves the facts and such view has been taken by the authorities concerned, the same cannot be interfered in judicial review and it cannot be said that findings recorded by authorities concerned on preponderance of probabilities are based on no evidence. Therefore, contention that none of the charges could be proved is totally misconceived and contrary to record.

17. In the matter of departmental inquiry, it is now well established that standard of proof is not like criminal case but altogether different and it is preponderance of probability that constitutes the test to be applied. It has been so held in Divisional Controller, KSRTC Vs. M.G. Vittal Rao (2012) 1 SCC 442 and Management of Bharat Heavy Electricals Ltd. Vs. M. Mani and others (2018) 1 SCC 285.

18. Second submission, which we propose to examine is non compliance of Regulation 6(17). A bare reading of aforesaid provision would show hollowness of arguments advanced by learned counsel for petitioner. We may reproduce Regulation 6(17) as under:

"(17) The inquiring authority may, after the officer employee closes his evidence, and shall, if the officer employee has not got himself examined generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer employee to explain any circumstances appearing in the evidence against him."

(emphasis added)

19. The aforesaid provision enables Inquiry Officer to put questions to the charged officer to explain circumstances appearing in evidence against him after close of evidence of Officer concerned if the Officer has not got himself examined. In the present case, charge-I has been found proved on the basis of documents inasmuch Bank Accounts shows that petitioner issued cheque no. 259918 of Rs. 3,00,000/- from his own OD Account No. 1236009400016295 in favour of Sri K.P. Singh and payment of this cheque was received by petitioner himself. Further when partnership of aforesaid firm was to be terminated, Rs. 6,72,000/- in cash was paid to Sri Guddu Singh vide cheque no. 331253 dated 13.08.2007 and part proceeds of Rs. 6,50,000/- was credited in Account No. 0184001500000056 of Anumeha Singh, daughter of petitioner.

20. Similarly, for the purpose of proving charge-II also though partly, findings are based on documents and not mere circumstances. Hence the question of seeking clarification by Inquiry Officer in respect to the circumstances does not arise and Regulation 6(17), as such, has no application to the case in hand. Therefore, argument that Regulation 6(17) has not been followed is rejected.

21. Even otherwise, in our view Regulation 6(17) is only an enabling provision and any non observance thereof, whether caused any prejudice to petitioner, has never been complained by petitioner either in his representation dated 15.02.2011, which he submitted after receiving a copy of charge-sheet nor any such issue was raised in his memo of appeal submitted to General Manager nor any such ground was taken in the memo of Review. For the first time, this issue has been raised in this writ petition, but in absence of anything to show that petitioner got prejudiced on account of non inquiry of any clarification after close of his evidence, in our view, it cannot be said that departmental proceedings are vitiated in law.

22. Next issue is that order of punishment has been passed by an authority, who is lower in rank to Appointing Authority.

23. In the Schedule of Regulation, 1977 we find that in respect to Officers in Grades-'B' and 'A', and/or Middle Management Grade Scales-II and III, Disciplinary Authority is Assistant General Manager/Deputy General Manager, Appellate Authority is Additional General Manager/General Manager and Reviewing Authority is Executive Director or Chairman and Managing Director. In the present case, petitioner being an Officer in Middle Management Grade Scale-II, his Disciplinary Authority was Assistant General Manager, who has passed the order of punishment. Therefore, we find no lack of authority in this regard. Hence, this point also stands negatived.

24. Lastly it is argued that punishment of compulsory retirement is disproportionate to the charges found proved.

25. The first charge leveled against the petitioner is that he entered into financial transaction with a private party and a client of the Bank and thereby jeopardized Banks' interest and reputation. Second charge is that by giving assurance of getting employment to Hari Lal Singh, he received money from him and when could not arrange job, returned the same but transaction could not be completed due to insufficient fund in the account. Both these charges are very serious. Second charge is nothing but a charge of illegal gratification also. Annexure-1 to the charge-sheet alleges that two charges levelled against petitioner amounts to misconduct in terms of Regulation 6(1), 3(1) read with Regulation 24 of Punjab National Bank Officer Employee's (Conduct) Regulations, 1977 (hereinafter referred to as "Conduct Regulations, 1977"). Despite the fact that charges have been substantially proved, inasmuch charge-I has been found fully proved and charge-II partly, Bank-authorities have taken a considerate view in the matter and have not imposed hardest punishment of Dismissal and Removal, but punishment of "Compulsory Retirement" has been imposed.

26. In Uttarakhand Transport Corporation and Ors. vs. Sukhveer Singh (2018) 1 SCC 231 Court relying on an earlier decision in U.P. State Road Transport Corporation Vs. Suresh Chand Sharma (2010) 6 SCC 555 held that acts of corruption cannot be condoned, even in cases where the amount involved is meagre.

27. In the present case, petitioner obtained illegally a huge amount from Hari Lal Singh on the promise of getting him employed and this is clearly a serious misconduct on the part of petitioner who was holding a responsible office of Manager in the Bank.

28. The adequacy and sufficiency of punishment has to be seen from the point of view of Employer. Court does not sit in appeal over the said discretion. Only limited scope of judicial review in the matter of quantum of penalty, which is recognized in service jurisprudence, is where punishment is so disproportionate that it shocks judicial conscious. (See: State of Jharkhand and others Vs. Kamal Prasad and others (2014) 7 SCC 223).

29. In Deputy Commissioner, Kendriya Vidyalaya Sangthan and others Vs. J. Hussain (2013) 10 SCC 106, it was held that power of review of punishment ordinarily is not availed by a Court or Tribunal. Court while undertaking judicial review of matter is not supposed to substitute its own opinion on reappraisal of facts. In exercise of power of judicial review, Court can interfere with the punishment imposed only when it is found to be totally irrational or is outrageous in defiance of logic. Court further said, "this limited scope of judicial review is permissible and interference is available only when punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the Court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities." It further observed that it is only when punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play.

30. We do not find it appropriate to discuss this doctrine in detail at this stage since it has been discussed in detail, time and again, and one of the celebrated authority on this issue is Ranjit Thakur Vs. Union of India (1987) 4 SCC 611 which has recently been reiterated in Chief Executive Officer, Krishna District Cooperative Central Bank Ltd. and others Vs. K. Hanumantha Rao and others (2017) 2 SCC 528.

31. In Regional Manager, U.P.S.R.T.C., Etawah and others Vs. Hoti Lal and another (2003) 3 SCC 605 Court observed that in the matter of quantum of punishment it is not the amount involved but the mental set up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, highest degree of integrity and trustworthiness is must and unexceptionable.

32. The above view has been reiterated in U.P. State Road Transport Corporation, Dehradun vs. Suresh Pal (2006) 8 SCC 108. We are not giving entire catena of decisions on the subject which are dozens in number. Suffice is to mention that looking to the gravity of charges found proved against petitioner, at least we are not satisfied to hold that punishment imposed upon petitioner is disproportionate or such so as to shock judicial conscious of the Court or is patently illogical. Hence this argument is also rejected.

33. No other point has been argued.

34. The writ petition lacks merits. Dismissed.

Dt. 01.05.2018

PS