Shri Sanjai Kr.Gupta vs State Bank Of India & Others
2018 Latest Caselaw 3756 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 16.08.2018
 
Delivered on 16.11.2018
 
Court No. - 34
 

 
Case :- WRIT - A No. - 19389 of 1996
 
Petitioner :- Shri Sanjai Kumar Gupta
 
Respondent :- State Bank of India & Others
 
Counsel for Petitioner :- Ashok Khare,Anoop Trivedi,P.K. Singh,S.K. Srivastava,S.R. Singh
 
Counsel for Respondent :- Satish Chaturvedi,Navin Sinha,S.C.,Satish Kishore Kakkar
 

 
Hon'ble Sudhir Agarwal,J.

1. This writ petition under Article 226 of Constitution of India has been filed by Sanjai Kumar Gupta, a Clerk-cum-Cashier in State Bank of India (hereinafter referred to as "Bank"), at Katghar Branch, District Moradabad assailing punishment order of dismissal, dated 08.5.1996 (Annexure 23 to the writ petition), passed by Assistant General Manager, State Bank of India, Region-II, Bareilly (hereinafter referred to as "Disciplinary Authority").

2. The facts in brief giving rise to present writ petition are that petitioner was appointed as Clerk-cum-Cashier in the Bank in March, 1982. After serving at different branches of Bank, in August, 1992, he was posted at Katghar Branch of the Bank in Moradabad. An order of suspension was passed by Disciplinary Authority on 04.08.1992 placing petitioner under suspension on the allegation that certain fraudulent withdrawals amounting to Rs.81,000/- in the Bank have been noticed. A First Information Report (hereinafter referred to as "FIR") as Case Crime No.392 of 1992 under Section 420 IPC was registered against petitioner at Police Station Mugalpur, District Moradabad by one Bhola son of Chaila alleging fraudulent withdrawal from his saving bank account no.8590 in the Bank. During investigation by Police, Bank officials furnished original documents relating to Saving Bank A/c No.7322 of Madhav Dutt Dwivedi, A/c No.8590 of Bhola, A/c No.7274 of Gulshan Kumar and A/c No.7386 of Dinesh Chandra Sharma to Investigating Officer. Investigating Officer submitted charge-sheet dated 31.5.1994 in the Court of III Additional Chief Judicial Magistrate, Moradabad alleging that while posting as Cashier in the Bank during 1992, petitioner has made fraudulent withdrawal from various accounts of Accounts Holders in particular, Gulshan Kumar, Madhav Saran, Bhola and Dinesh Chandra Sharma.

3. When criminal trial was pending, petitioner was served with a charge sheet dated 14.02.1994 for initiating disciplinary proceedings by Disciplinary Authority, levelling charge of fraud in saving bank accounts of Madhav Dutt Dwivedi, Bhola, Dinesh Kumar Sharma and Gulshan Kumar. Two more charges were also levelled stating that balance in bank account of petitioner suddenly got inflated and then substantial amount was withdrawn and also that some persons made complaints that some payments have been received by petitioner for depositing in complainants' account but the same were not actually deposited. Charge-sheet did not disclose any oral or documentary evidence to be relied by Bank to prove the charges and no document was appended with charge sheet. Petitioner, however, was required to submit his defence statement/reply to charge-sheet within seven days.

4. Petitioner submitted letter dated 11.4.1994 requesting Disciplinary Authority to supply relied on documents on the basis whereof charges were founded so that he may give effective reply.

5. Disciplinary Authority, instead of supplying documents, issued a letter dated 07.05.1994 stating that petitioner's letter dated 11.4.1994 did not give any satisfactory reply and therefore, a departmental inquiry is ordered appointing Sri G.G.Pushp as Inquiry Officer. Inquiry Officer fixed various dates i.e. 03.6.1994, 30.6.1994, 12.7.1994, 25.7.1994, 16.8.1994, 30.8.1994, 15.9.1994, 26.9.1994 and 17.10.1994 for oral inquiry. The proceedings were adjourned on all these dates and ultimately on 14.11.1994 Inquiry Officer proceeded ex parte. Thereafter, Inquiry Officer submitted report dated 21.11.1994 holding six charges proved against petitioner. Inquiry Officer, before submitting report, neither examined any witness nor any documents nor any list of relied on documents in support of charges was supplied to petitioner.

6. Thereafter, Disciplinary Authority issued a letter dated 09.12.1994 informing petitioner that Inquiry Officer has closed the proceedings ex parte on 14.11.1994 and photocopy thereof and documents submitted by Presenting Officer were supplied to petitioner along with letter dated 09.12.1994. Petitioner was asked to submit his defence within 15 days.

7. Petitioner, vide letter dated 28.12.1994, informed Disciplinary Authority that on 14.11.1994, he alongwith his Defence Assistant was present in Regional Office, Bareilly where Inquiry Officer was conducting inquiry and had fixed earlier dates but on that date Inquiry Officer was not present in Regional Office, Bareilly and instead held its meeting at Katghar Branch, Moradabad, therefore, ex parte inquiry held on 14.11.1994 was not valid and in violation of principles of natural justice. Disciplinary Authority, however, by letter dated 04.01.1995 informed petitioner that information of holding inquiry at Katghar Branch, Moradabad on 14.11.1994 was also communicated to petitioner on 24.10.1994. However, petitioner was given three days' further time to submit reply/defence.

8. Petitioner vide letter dated 14.01.1995 requested Disciplinary Authority that since his Defence Assistant was not available, he needed some more time to submit defence.

9. Disciplinary Authority, vide letter dated 27.03.1995, informed petitioner that there is no justification to grant any further time to petitioner to give his reply but he is being given opportunity to place his defence before Inquiry Officer himself, who will inform about date, time and place to petitioner.

10. Petitioner then submitted reply dated 01.6.1995 pointing out that entire proceedings conducted by Disciplinary Authority are in utter violation of principles of natural justice. Again Disciplinary Authority vide letter dated 06.06.1995 informed petitioner to submit his defence before Inquiry Officer, who would inform date, time and place to petitioner. In the meantime, pursuant to Disciplinary Authority's letter dated 27.03.1995, Inquiry Officer fixed 23.5.1995, 02.6.1995, 04.09.1995, 21.09.1995, 12.10.1995 and 02.11.1995 for recording defence of petitioner. Petitioner requested Inquiry Officer to summon all four account holders connected with charges but only two namely Dinesh Chandra Sharma and Bhola appeared before Inquiry Officer, who were cross examined by petitioner through his Defence Assistant on 12.10.1995. Inquiry Officer also informed petitioner during aforesaid proceedings that original documents were submitted to Police in Criminal Trial and petitioner may inspect the documents in criminal court. Disciplinary Authority, however, supplied photocopies of documents. On 15.12.1995 Inquiry Officer informed petitioner that now he is closing proceedings and any further correspondence may be made by petitioner to Disciplinary Authority.

11. Disciplinary Authority passed a tentative order dated 11.01.1996 recording his own findings on six charges holding all charges proved and proposed punishment of dismissal from service. Alongwith tentative decision, Disciplinary Authority also supplied inquiry report dated 21.11.1994.

12. Against above tentative decision, petitioner filed an appeal before Chairman/Managing Director vide memo of appeal dated 30.01.1996. Vide letter dated 19.03.1996, Disciplinary Authority required petitioner to appear before him for availing personal hearing whereagainst petitioner filed representation dated 30.03.1996 informing that he has already filed appeal. However, Disciplinary Authority fixed 01.05.1996 for personal hearing. Petitioner attended the office of Disciplinary Authority on 01.05.1996 but Assistant General Manager, Region-II, was not available hence no oral hearing took place. Thereafter, Disciplinary Authority passed final order of punishment dated 08.5.1996 confirming his tentative decision of penalty of dismissal upon petitioner.

13. Learned counsel for petitioner contended that entire proceedings held against him are patently illegal and in violation of principles of natural justice, inasmuch as, (a) relied on documents were not supplied to petitioner till Inquiry Officer submitted report dated 21.11.1994; (b) Disciplinary Authority allowed petitioner to avail defence whereafter in 1995, on various dates, Inquiry Officer recorded defence of petitioner and also statement of various witnesses, who were cross examined by petitioner but no further inquiry report was submitted considering the above defence. Order of punishment has been passed on the basis of inquiry report dated 21.11.1994, which is patently illegal and in utter violation of procedure prescribed under the Rules; (c) the alleged statement of accounts holders that they made complaints against petitioner were not supported by them in cross-examination, held before Inquiry Officer on various dates in 1995 but the said defence has not at all been looked into by Disciplinary Authority as also Inquiry Officer and on the basis of inquiry report dated 21.11.1994, though oral inquiry was held thereafter in 1995 on various dates, impugned order of punishment has been passed, which is patently illegal; (d) Inquiry Officer has held charge no.3 partly proved while Disciplinary Authority, in the tentative decision, without recording any reasons for disagreement held charge 3 completely proved. In absence of any reasons recorded by Disciplinary Authority for disagreement with Inquiry Officer's finding, entire proceedings stands vitiated since Disciplinary Authority has imposed punishment upon the charges, which were not found by Inquiry Officer 'proved' and no reasons for disagreement has been recorded by Disciplinary Authority; (e) it does not appear that any witness was examined by Inquiry Officer on 14.11.1994 when Bank admits that proceedings were conducted by Inquiry Officer ex parte and on the basis of inadmissible evidence, entire findings were recorded against petitioner.

14. Bank contested the matter by filing counter affidavit stating that various dates were fixed by Inquiry Officer for holding inquiry. On first two dates, petitioner did not appear without any reason. On the next few dates, he sought adjournment on the ground of illness and thereafter again failed to appear before Inquiry Officer. Hence Inquiry Officer had no option but to proceed ex parte. Thereafter, perusing documents produced before him by Presenting Officer, he has submitted report hence it does not lie in the mouth of petitioner to claim that no opportunity was afforded to him. Charges levelled against petitioner were established by Presenting Officer and petitioner did not adduce any evidence in defence. Original documents though submitted to Police in Investigation but photocopies of documents were made available in disciplinary proceedings. Proceedings held by Inquiry Officer on 23.05.1995 and thereafter are admitted. It is said that members of public i.e. Account Holders were called at the instance of petitioner and Bank could not have forced their presence hence only two were present and cross-examined by petitioner. Inquiry Officer concluded proceedings and vide letter dated 11.01.1996 informed that he does not find any fact to influence his report already submitted. Letter dated 11.01.1996 submitted by Inquiry Officer is Annexure 10 to the counter affidavit. Disciplinary Authority has passed order not only on the basis of report of Inquiry Officer but on the basis of his own appreciation of entire material. No appeal could have been filed against tentative decision, hence, appeal preferred by petitioner was misconceived. The decision of punishment has been taken on the basis of material and findings recorded by Disciplinary Authority and hence requires no interference. It is said that petitioner himself has not cooperated in the proceedings and therefore, he has to blame himself.

15. In the rejoinder affidavit petitioner has reiterated basically facts stated in the writ petition.

16. Learned counsel for Bank has defended order of punishment as per the stand taken in counter affidavit.

17. I have heard Sri Anoop Trivedi, learned counsel for the petitioner, Sri Sumit Kakkar, learned counsel for respondents-Bank and perused record.

18. In my view, one of the issue needs adjudication is as follows:

"Whether relied on documents were supplied to petitioner by Disciplinary Authority or Inquiry Officer till report was submitted by Inquiry Officer on 21.11.1994."

19. I find that copy of charge sheet is Annexure 5 to writ petition. It does not mention about documentary or oral evidence, if any, to be relied by Bank to prove the charges. The averments in this regard have been made by petitioner in para 12 of writ petition, which read as under :

"That the chargesheet dated 14.2.94 was not accompanied by any document whatsoever they had relied upon against the petitioner in support of the charges."

20. Bank has replied para 12 of writ petition in para 15 of counter affidavit admitting that documents in support of charges were not made available. In terms of Sastri Award, the same could have been made available on the first date of hearing but petitioner did not participate hence could not be made available to him. Para 15 of counter affidavit reads as under :

"That the contents of paragraph no.12 of the writ petition as they stand are denied and in reply it is submitted that the charge sheet was issued as per terms of the Sastri Award. The list of documents, inspection thereof and the copies of the documents are made available to the delinquent employee on the first date of enquiry proceedings but since the petitioner never participated in the enquiry proceedings the same could not be made available to him. The petitioner did not even submit a reply to the charge sheet." (emphasis added)

21. It is also stated in para 17 of counter affidavit that complaint of non supply of relied on documents has lost its significance since copies were subsequently made available to petitioner, as is evident from Annexure 6 to the writ petition. This document is a lettter dated 11.04.1994 sent by petitioner in which he has denied all the charges. It says that he would place his defence to prove charges false. He has further said that he can give his detailed reply only when documents, relating to charges and evidence on which charges are founded, at least photocopies thereof, are supplied to him so that he may understand substance of charges and submit his defence. I am reproducing the contents of entire letter dated 11.4.1994 submitted by petitioner, which reads as under :

^^vkids mijksDr vkjksi i= tks fnukad 14 Qjojh 1974 dk gS vkSj tks eq>s 15 ekpZ 1994 dks izsf"kr djk;k x;k] ds v/;;u ls ;g Kkr gks jgk gS fd eq>s fujk/kkj] feF;k vkjksiksa dk izLrqr djds nks"kh Bgjkus dk iz;kl fd;k tk jgk gSA vkids mijksDr vkjksi i= ds ek/;e ls esjs Åij tks Hkh vkjksi yxk;s x;s gS og furkUr] fujk/kkj ,oa xyr gSA eSa lEiw.kZ vkjksiksa dk [k.Mu djrs gq;s vkjksi i= dk fojks/k djrk gwWa vkSj fizfUlfiYl vkWQ uspqjy tfLVl }kjk vkjf{kr lqfo/kk;sa izkIr gksus ij leLr vkjksiksa dks feF;k fl) djds vius vki dks funksZ"k lkfcr djus dks iw.kZ :is.k rS;kj gwWaA

mijksDr ds lEcU/k esa vkidh tkudkjh esa ;g Hkh ykuk vko';d le>rk gWa fd fnukad 11 vxLr 92 dks fdUgh Hkksyw uked [kkrk /kkjd us Jh ,l0lh0xqIrk] 'kk[kk izcU/kd Hkkjrh; LVsV cSad] dV?kj 'kk[kk ds fo:) Fkkuk eqxyiqjk eqjknkckn esa ,d ,Q0vkbZ0vkj0 izsf"kr dh Fkh tks bu fnuksa eqjknkckn U;k;ky; esa fopkjk/khu gSA

egksn;] esjh vkils fouez izkFkZuk gS fd eSa vkidks viuk foLrkjiwoZd Li"Vhdj.k rHkh ns ldrk gS] tcfd eq>s vkids dk;kZy; ls mijksDr vkjksaiksa ls lEcfU/kr lHkh nLrkostksa rFkk mu lk{;ksa dh ftu ij izLrqr vkjksi Ik= vk/kkfjr gS fd ,d&,d QksVks dkih iznku dh tk;s ftlls fd eSa vkjksiksa dk ewy vk/kkj le> ldw vkSj mUgsa feF;k fl) djds iw.kZ Li"Vhdj.k ns ldwWaA

vr% egksn; ls esjh fouez izkFkZuk gS fd mDr fo"k; ls lEcfU/kr lkexzh ftudks vk/kkj cukdj vkjksi cuk;s x;s gSa fd ,d&,d izfrfyfi iznku djus dk rqjUr d"V djsa ftlls fd eSa vkids mijksDr vkjksi i= dk iw.kZ:is.k [k.Mu djrs gq;s vius vkidks funksZ"k fl) djus ds fy;s foLr`r Li"Vhdj.k vkidh lsok esa izsf"kr dj ldwWaA

d`i;k bl i= dh izkfIr dh iqf"V djsaA**

"On perusal of your aforesaid charge-sheet dated 14 March 1994 sent to me on 15 March 1994, it transpires that attempts are being made to hold me guilty by levelling baseless and false charges. Whatever charges I have been levelled with through your aforesaid charge-sheet, are utterly baseless and wrong. Denying all the charges, I oppose the charge-sheet; and I, if permitted to benefit from the principles of natural justice, am fully prepared to prove myself innocent by proving all the charges false.

With respect to the aforesaid, I consider it to be necessary to bring it to your knowledge that someone named Bholu, an account holder, had lodged an FIR against Shri SC Gupta, Branch Manager, State Bank of India, Katghar Branch, at PS-Mugalpura, District - Moradabad, which is under the consideration of the court in Moradabad.

Sir, it is my humble submission that I can give my detailed explanation only when photocopies, one each of the documents and evidences, the present charge-sheet is based upon, are given to me, so that I can understand the basic grounds of the charges, and can prove such charges wrong.

Hence, you, sir, are requested that photocopies, one each of the materials related to the aforesaid subject, which were used as grounds for the charges, be provided immediately to me, so that I may submit to you, sir, a detailed explanation in complete denial to the aforesaid charge-sheet of yours, and may prove myself innocent.

Kindly, acknowledge the receipt of this letter."

(English Translation by Court)

22. The aforesaid letter, therefore, shows that petitioner had made a request to supply even photocopy of relied on documents on the basis whereof charges are supposed to be proved. I do not find from reply contained in the counter affidavit that till 21.11.1994, when Inquiry Officer admittedly submitted inquiry report, even photocopies of relied on documents, on which charges were sought to be proved, were supplied to petitioner. On the contrary, Annexure 8 to writ petition is a letter dated 9.12.1994 issued by Disciplinary Authority, which shows that Inquiry Officer closed inquiry ex parte on 14.11.1994 and photocopies of documentary evidence produced by Presenting Officer were supplied to petitioner alongwith letter dated 09.12.1994 and thereafter petitioner was required to submit his defence. The contents of letter dated 09.12.1994 issued by Disciplinary Authority reads as under :

^^mDr lanHkZ esa vkidks lwfpr djuk gS fd vkidks fn;s x;s vkjksi i= la[;k % ch-vkj- [email protected]@,[email protected],[email protected] fnukad 14-2-94 ds laca/k esa py jgh foHkkxh; tkWap dk;Zokgh dks tkWap vf/kdkjh us fnukad 14-11-94 dks ,di{kh; lekIr dj fn;k gS] ftldh Nk;kizfr;ka ,oa izLrqfr vf/kdkjh }kjk izLrqr nLrkosth lk{;ksa dh Nk;kizfr;kWa vkids voyksdukFkZ izssf"kr dh tk jgh gSaA vc ;fn vki pkgsa rks] vkidks viuk cpko i{k izLrqr djus gsrq ¼bl i= dh izkfIr ls½ 15 fnuksa dk le; fn;k tkrk gS vU;Fkk fu;ekuqlkj dk;Zokgh dh tk;sxhA

2- d`i;k i= dh f}rh; izfrfyfi ij fnukafdr ikorh nsA**

(emphasis added)

"With reference to the above, this is to inform you that in connection with the charge-sheet no. BRY/R2/FC/PN/356 dated 14.02.1994 served upon you, the Inquiry Officer has on 14.11.1994 has ex-parte closed the departmental inquiry proceedings; photocopies whereof and the photocopies of the documentary evidences produced by the presenting officer are being sent for your perusal. You are hereby given 15 days (from the date of receipt of this letter) to put forth your submissions in your defence, if you so desire, otherwise proceedings shall be conducted as per rules.

2. Kindly acknowledge the receipt of this letter by endorsing with date on its second copy.

(English Translation by Court)

23. This letter shows that, for the first time, only on 09.12.1994 documents and evidence relied on by Bank to prove charges, as allegedly, presented by Presenting Officer before Inquiry Officer, were made available to petitioner and not prior thereto. Inquiry report was already submitted on 21.11.1994. I do not find any other document on record to show that documents or evidence relied to prove charges were made available to petitioner, if not original even by way of photostat copies, on any date prior to 21.11.1994 when enquiry report was submitted. These documents, in fact, were made available to petitioner alongwith letter dated 09.12.1994. Moreover, even Disciplinary Authority or Inquiry Officer did not allow inspection of documents, relied in support of charges, in the Bank or even before submitting inquiry report, therefore I have no hesitation in recording a finding that inquiry was conducted wholly illegally and in utter violation of principles of natural justice since even relied on documents were not supplied to petitioner till Inquiry Officer submitted report on 21.11.1994.

24. It is now well settled that it is employer under an obligation to supply copies of relied on documents and if documents are bulky or voluminous, to allow inspection of those documents before proceeding with oral inquiry and if such documents are not supplied, the same would vitiate entire proceedings.

25. In Kashinath Dikshita vs Union Of India and others AIR 1986 SC 2118, Court has held that documents relied on in support of charge-sheet are to be supplied to delinquent employee and this requirement is mandatory.

26. Following Kashinath Dikshita (supra) in State of U.P. Vs. Shatrughan Lal & Anr. (1998) 6 SCC 651, Court said that when charge sheet is issued and documents are proposed to be utilized against the employee concerned, if he is required to submit reply without furnishing documents relied by the Department it would amount to denial of effective opportunity of defence.

27. Following the above authority in Kashinath Dikshita (supra) in State of U.P. and Ors. Vs. Saroj Kumar Sinha (2010) 2 SCC772 Court said :

"Non-disclosure of documents having a potential to cause prejudice to a government servant in a enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant."

28. Court further held that proposition of law that a government employee facing a departmental enquiry is entitled to all relevant statement, documents and other materials to enable him to have a reasonable opportunity to defend himself in department enquiry against charges, is too well established to need any further reiteration.

29. This Court has also taken same view in Writ Petition (Writ-A) No. 1019 of 2002 (Shant Deo Tripathi Vs. Dy. General Manager/Appellate Authority S.B.I. & Others) decided on 16.09.2011.

30. In view of above discussion and exposition of law, as noticed above, the first question, formulated above, is answered by holding that disciplinary proceedings including impugned order of punishment are vitiated since relied on documents were not supplied to petitioner till Inquiry Officer submitted report and, therefore, material not disclosed to petitioner has been relied against him and this procedure followed by respondents is clearly in utter violation of principles of natural justice. Question 1, therefore, is answered in favour of petitioner and against respondent-Bank.

31. The second question, which needs be answered is :

"Whether procedure adopted by Bank allowing petitioner to submit his defence subsequent to submission of inquiry report dated 21.11.1994 is valid in law."

32. Here also I find that Bank has adopted a very strange procedure. When petitioner made complaint that inquiry has not been conducted in accordance with principles of natural justice and he has not been afforded adequate opportunity of defence, Disciplinary Authority, it appears, realized that there were serious irregularities in the inquiry procedure followed by Inquiry Officer, and therefore, permitted petitioner to adduce his defence before Inquiry Officer. This is evident from letter dated 09.12.1994, contents whereof I have already reproduced. Thereafter, on 27.03.1995, Disciplinary Authority directed petitioner to submit his defence before Inquiry officer, who would fix date, place and time and communicate the petitioner. Contents of letter dated 27.3.1995 sent by Disciplinary Authority to petitioner read as under :

^^vkids i= fnukad 14 tuojh 1995 ds lanHkZ esa d`i;k gekjs i= la[;k % cjsyh @[email protected] 271 fnukad 4-1-95 dk voyksdu djsa ftlesa vkidks vafre :i ls ,d fo'ks"k volj iznku djrs gq,] vius cpko laca/kh fyf[kr izfrosnu nsus gsrq rhu fnu dk le; iznku fd;k x;k Fkk ijUrq vkius bl vof/k esa Hkh viuk izfrosnu izLrqr ugha fd;k blls Li"V gS fd vkidks vius cpko esa dqN ugha dguk o vkidh :fp] vokafNr i=&O;ogkj dj] cSad dk;Zokgh dks yafcr djuk ek= gSA vr% vkidks vkSj vf/kd le; fn;s tkus dk dksbZ vkSfpR; ugha gS fQj Hkh ;fn vki vius cpko esa dqN dguk pkgrs gSa rks] vius cpko izfrfuf/k lfgr ¼;fn vki pkgsa rks½] tkap vf/kdkjh] Jh th-th- iq"i ds lEeq[k mifLFkr gksdj viuk cpko laca/kh c;ku ntZ djk ldrs gSaA fu/kkZfjr frfFk] le; o LFkku vfr 'kh?kz tkap vf/kdkjh }kjk vkidks lwfpr djok fn;k tk;sxkA** (emphasis added)

"Please peruse to our letter: Bareilly/A.Ka.Pra./271 dated 04.01.1995 in response to your letter dated 14th January, 1995, whereby three days' time was given for submission of written statement in defence, while affording a special opportunity as of last opportunity. However, you did not submit your statement even in this period. It shows that you have nothing to say in your defence and are interested just in delaying bank proceedings by making unnecessary correspondence. Hence, no justification is there for giving more time to you. However, if you want to say anything in your defence, you may present yourself with your defence representative ( if you so wish) before Sh. G G Pushp, Enquiry Officer and get your defence statement recorded. The date, time and place fixed for the purpose shall shortly be communicated to you by the Enquiry Officer." (English Translation by Court)

33. Interestingly, Inquiry Officer then fixed various dates for recording defence of petitioner. In this regard, minutes of proceedings have been placed on record by respondent-Bank itself alongwith counter affidavit. A detailed defence statement of employee i.e. petitioner was recorded by Inquiry Officer on 23.5.1995, as is evident from Annexure CA-7 to counter affidavit. It is pointed out therein that on 14.11.1994 Presenting Officer produced documents P.E.X-1 to P.E.X-30 before Inquiry Officer but these documents were neither verified nor proved by competent authority. This question was raised by petitioner in his defence before Inquiry Officer.

34. Inquiry Officer on the next date i.e. 02.06.1995 told petitioner and his Defence Assistant that proceedings are not being conducted by him as per procedure of inquiry but as per directions of Disciplinary Authority, a separate procedure is being followed. Relevant extract of minutes of proceedings conducted on 02.6.1995 showing as to what was said by Inquiry Officer to Defence Assistant is reproduced as under :

^^cpko i{k }kjk mijksDr oDrO; ds lUnHkZ esa eSa Li"V djuk pkgwaxk fd ;g dk;Zokgh tkap dk;Zokgh ds izk:i ds Lo:i esa lEikfnr ugha dh tk jgh gS cfYd vuq0vf/k0 ds funsZ'kkuqlkj LFkkfir dh x;h vyx izfdz;k ds Lo:i fu"ikfnr dh tk jgh gSA blesa tks cpko i{k us vkifRr;kWa mBk;h gS mlds lEcU/k esa vuq0 vf/k0 dks vyx ls i= ds ek/;e o bl dk;kZokgh dh izfrfyfi Hkstdj voxr djk;k tk;sxk o muls Li"V funsZ'k izkIr fd;s tk;saxs D;ksafd vHkh eq>s mDr i= ds vfrfjDr dksbZ Hkh lkexzh vuq0 vf/k0 }kjk iznku ugha djk;h x;h gS ftlls ;g Li"V gks lds fd bl dk;Zokgh dk Lo:i tkap dk;Zokgh dh izfdz;k ds Lo:i gSA blh vk/kkj ij izLrqfr vf/kdkjh dh mifLFkfr Hkh lqfuf'pr dh tk;sxhA**

(emphasis added)

"As regards the aforesaid statement given by the defence, I would like to make it clear that these proceedings are not being conducted in conformity with the format of inquiry proceedings; rather, are being conducted by following a separate procedure evolved under the direction of the Disciplinary Officer. As respects the objections raised by the defence in this regard, the Disciplinary Officer shall be informed by sending a copy of these proceedings through a separate letter, and because I have been provided no material except the said letter by the Disciplinary Officer, clear instructions shall be obtained from him showing whether these proceedings are in conformity with the process of the inquiry proceedings. On this very basis, the presence of the presenting office shall also be ensured." (English Translation by Court)

35. On 26.6.1995 and 24.8.1995, proceedings could not be held and adjourned due to absence of petitioner. Then on 04.09.1995, petitioner's request for verification of documents with original was directed to be arranged on next date and his request for examination of J.C.Madan was allowed. On the next date, i.e. 21.9.1995, it was pointed out by petitioner and his Defence Assistant that verification of certain documents was not possible whereupon Inquiry Officer passed an order that he would write to concerned authority and issue necessary instructions. The extract of order passed by Inquiry Officer reads as under :

^^vkidh mDr ekax ds lEcU/k esa lEcfU/kr vf/kdkjh dks fy[kk tk;sxk rFkk vxyh frfFk ij ewy nLrkostksa o okafNr f'kdk;rdrkZvksa ds dk;Zokgh esa mifLFkr djus gsrq mfpr funsZ'k rnkuqlkj fn;s tk;saxsA l{ke vf/kdkjh }kjkA vc vkt dh dk;Zokgh lekIr dh tkrh gS tks iqu% 12 vDVwcj 1995 dks dV?kj 'kk[kk esa 11-00 cts izkr% ls gksxhA lHkh i{k uksV dj ysaA**

"The concerned officer shall be written to in connection with the aforesaid demand of yours; and accordingly, appropriate directions shall be issued to ensure presence of the desired complainants in the proceedings along with original documents on the next date of hearing. By the competent authority. Proceedings for the day are being deferred now and the same shall begin on 12th October, 1995 at 11:00 am at Katghar Branch. All the parties please note the same." (English Translation by Court)

36. On the next date i.e. 12.10.1995, one Account Holder namely Dinesh Chandra Sharma was allowed to be cross-examined and he stated that regarding withdrawal, he was informed by one Mr. Mehrotra and he himself is not aware as to who withdrew the amount and did not recognize petitioner.

37. Another Account Holder, Bhola, was also allowed to be cross-examined. He denied of having written any letter. He stated that it was brought to him by Branch Manager and he only put on his thumb impression. He has no suspicion on any bank employee with regard to withdrawal and he also did not identify petitioner.

38. On 02.11.1995, no other Account Holder appeared with regard to verification of documents. Inquiry Officer told that Branch Manager has written to Police authorities for such verification and after receiving information, it shall be produced. However, he allowed Sri Madan, an employee of Bank, to be cross-examined, who admitted that he allowed withdrawal after verifying signature of Sri Gulshan Kumar from available record of his signature in the Bank. In reply to question 14, he categorically admitted and said as under :

 
^^iz'u 14& eSa vkidks cSad fjdkMZ esa miyC/k Jh xqy'ku dqekj ds gLrk{kj fn[kk jgk gwWa bUgsa ns[kdj crk;sa fd ;gh nLr[kr xqy'ku dqekj ds ns[kdj vkius foMªky ikl fd;kA
 
mRrj&th gkWaA**                            (emphasis added)
 
"Question-14 - I am showing you the signatures of Shri Gulshan Kumar available with the bank records; kindly look at them and state whether it is the same signature of Shri Gulshan Kumar seeing which you had okayed the withdrawal.
 
	Answer - Yes."                      (English Translation by Court)
 

39. The minutes of the above proceedings further show that after recording statement of Madan, Bank representative i.e. Presenting Officer said that signatures of Gulshan Kumar are different and this fact is also noticed in the proceedings. Thereafter proceedings were adjourned to 10.11.1995. On this date, Defence Assistant could not appear. Inquiry Officer recorded minutes that original documents have been submitted in the Court and, therefore, disciplinary inquiry can be held only on the basis of photostat copies. The order of Inquiry Officer recorded on 10.11.1995 reads as under :

^^'kk[kk izcU/kd dV?kj us lwpuk nh gS fd okafNr nLrkost iqfyl }kjk dsl Mk;jh ds lkFk U;k;ky; esa tek fd;s tk pqds gSa tks dsl dh lekfIr ds mijkUr gh fey ldsaxsA ,slh fLFkfr esa Nk;k izfr;ksa ds vk/kkj ij gh cpko i{k izLrqr fd;k tk ldrk gS vU;Fkk vk0d0 ls lacaf/kr U;k;ky; esa dsl dh lquok;h dh frfFk ij cpko i{k }kjk ewy nLrkostksa dk voyksdu fd;k tk ldrk gSA ,slh fLFkfr esa cpko i{k }kjk fu.kZ; fy;s tkus ds mijkUr viuk cpko c;ku fyf[kr esa nsdj dk;Zokgh dks vfUre :i fn;k tk;s vU;Fkk cpko i{k dks fdlh vU; izdkj bl dk;Zokgh dks vfUre :i fn;s tkus ds lEcU/k esa fopkj fd;s tkus ds mijkUr dh lEHkkoukvksa dks Hkh fn'kk nh tk ldrh gSA mDr dh lwpuk Jh eqjyh euksgj vxzoky dks vkjksfir deZpkjh }kjk nh tk;s rkfd os le; ls bl dk;Zokgh dks okafNr fn'kk ns lsaA bl dk;Zokgh dh ,d izfr vk0 d0 dks iznku djk nh x;h gSA^^

(emphasis added)

"The Branch Manager, Katghar, has informed that the desired documents have been submitted in the court along with the case diary by the police, which documents can be obtained only after the conclusion of the case proceedings. In such a case, the defence can put forth its submissions on the basis of photocopies only, otherwise the original documents can be perused by the defence on the date of hearing of the case of the charged employee in the court concerned. In such a situation, the defence if it so decides, may submit its written statement so as to pave the way for the proceedings to attain finality. On the other hand, if consideration is had to bringing these proceedings to finality in some other way, the defence may be apprised of all possibilities. The aforesaid information be given to Murli Manohar Agarwal by the charged employee so that he can move these proceedings in the desired direction in a timely manner. A copy of these proceedings has been provided to the charged employee."

(English Translation by Court)

40. Inquiry Officer sent a letter dated 15.12.1995 stating that since Defence Assistant was absent on 10.11.1995 now nothing further was to be done and proceedings were being closed and petitioner may directly contact Disciplinary Authority. The extract of letter dated 15.12.1995 reads as under:

^^mijksDr fo"k; ls fnukad 10-11-95 dks dV?kj 'kk[kk esa gq;h dk;Zokgh dk lanHkZ ys ftlesa vkids cpko izfrfuf/k fcuk fdlh dkj.k ds vuqifLFkr jgsA tSlk fd 'kk[kk izcU/kd dV?kj us lwfpr fd;kA mlds vuqlkj vkidks cpko i{k ls lacaf/kr mu nLrkostksa dks lquok;h dh frfFk ij U;k;ky; esa nlrkostksa dks voyksdu dj viuk cpko c;ku fyf[kr esa nsdj dk;Zokgh dks vfUre :i fn;s tkus ij fopkj djus dh ckr Li"V :i ls dgh x;h Fkh ijUrq ,d ekg ls vf/kd le; O;rhr gks tkus ij Hkh bl lEcU/k esa dksbZ lwpuk izkIr ugha gqbZA vr% dk;Zokgh dks vfUre :i nsrs gq,] fjdkMZ fd;s x;s cpko lEcU/kh c;ku vuq'kklukRed vf/kdkjh dks vfxze dk;Zokgh gsrq Hkst fn;s x;sA bl lEcU/k esa vc dksbZ Hkh i= O;ogkj lh/ks lEcfU/kr vuq'kklukRed vf/kdkjh ls djsaA**

(emphasis added)

"Kindly, have reference of the proceeding held at the Katghar branch on 10.11.1995 in relation to the aforementioned subject, from which the representative in your defence remained absent without any rhyme or reason, as informed by the Branch Manager, Katghar. According to that, you were specifically required to see the documents in relation to the defence and to submit written statement in your defence in the court on the day of hearing, so that finalisation of the proceeding might be considered; but despite the fact that more than one month has passed, no information in this respect has been obtained. Hence, giving finality to the proceeding, the recorded statements with respect to the defence has been sent to the disciplinary officer for further action. Any correspondence in this respect should from now on be done directly with the disciplinary officer."

(English Translation by Court)

41. Inquiry Officer also sent a letter dated 11.01.1996 addressed to petitioner, copy whereof is Annexure 10 to counter affidavit and contents thereof reads as under :

^^gekjs i= la[;k % cjsyh v0dk0iz0AbZ0vks0A95A65 fnukad 16-12-95 ds dze esa ,oa vkids ekSf[kd vkns'kkuqlkj eq>s lwfpr djuk gS fd vkjksfir deZpkjh ds cpko lEcU/kh c;ku esa ,sls dksbZ rF; Li"V ugha gq, tks esjs iwoZ esa nh x;h fu"d"kZ fjiksVZ dks izHkkfor djsaA** (emphasis added)

"In pursuance of our letter no.: Bareilly A.Ka.Pra./E.O./95/65 dated: 16.12.1995 and under your oral order, I am to inform that, in the statement related to the defence of the charged official, no fact has been disclosed that may affect the finding report given by me earlier." (English Translation by Court)

42. Interestingly, on the same date i.e. 11.01.1996 Disciplinary Authority also issued show cause notice alongwith tentative order holding all the charges fully proved and proposing punishment of dismissal. Aforesaid show cause notice dated 11.1.1996 was appended with the findings of Inquiry Officer i.e. Inquiry Report dated 21.11.1994.

43. This inquiry report shows that entire enquiry was made by Inquiry Officer from Presenting officer and no witness was present or examined on 14.11.1994 on which date Inquiry Officer proceeded ex parte and closed proceedings on that very date. It is also evident that statement of Presenting Officer was foundation to prove all charges but Presenting Officer was neither witness to prove any document nor his statement as such was recorded by Inquiry Officer. It is also clear that no witness was examined though alleged complaint letters of various Account Holders have been relied. In subsequent proceedings, two Account Holders were cross examined but they disputed making of complaints against petitioner.

44. It is now well settled that oral inquiry is an integral part and mandatory before holding an employee guilty. For the purpose of imposing major penalty, oral inquiry include fixing of date, time and place. It is not a mere formality. An oral inquiry means that employer will adduce evidence to prove charges before Inquiry Officer. Inquiry Officer himself cannot be a prosecutor or witness to prove the charges.

45. I do not find, per se, any illegality in producing photocopies of documents to prove charges but where documents include some letters or complaints made by certain individuals, authors of such documents must be examined to verify and prove truth of contents of such documents. In the present case, two Account Holders, who were subsequently allowed to be cross examined by petitioner, disputed making of any complaint against petitioner. Meaning thereby, their complaints relied by Inquiry Officer and Disciplinary Authority to prove charges against petitioner stands discredited. Unfortunately, these subsequent proceedings have been completely ignored by Bank and its authorities. On the basis of report dated 21.11.1994, punishment has been awarded. Even Disciplinary Authority, in the ultimate order, has not referred to subsequent proceedings at all. Therefore, I have no manner of doubt that disciplinary inquiry, in the present case, cannot said to have been conducted in a well recognized manner of prescribed procedure of departmental inquiry. This would have the effect of denying adequate opportunity of defence to petitioner.

46. Petitioner, no doubt, did not properly behave, remained absent on various dates or sought adjournments on various dates but that conduct of petitioner by itself cannot be treated, an admission of him as proof of charges.

47. Petitioner vide letter dated 11.4.1994 clearly denied all the charges levelled against him. That being so, it was incumbent upon Employer to prove charges against petitioner by adducing admissible evidence in law. In Disciplinary Inquiry, Evidence Act is not applicable but simultaneously it is also well established that hearsay evidence cannot be allowed.

48. When a document is relied, unless its contents are verified or owned by its author and he is made available for cross-examination by delinquent employee, contents of such document cannot be treated to be true and proved so as to form an admissible evidence against delinquent employee in a disciplinary inquiry. I am fortified in taking this view by Apex Court's judgment in M/s Bareilly Electricity Supply Co. Ltd., Vs. The Workmen and others, AIR 1972 SC 330 where Court in para 14 of judgment has observed as under:

"But the application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the question that naturally arises is, is it a genuine document, what are its contents and are the statements contained therein true. When the Appellant produced the balance-sheet and profit and loss account of the Company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the Appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognised and admit of no doubt." (para-14) (emphasis added)

49. Similar view has also been taken in Union of India Vs. Sardar Bahadur, 1972(4) SCC 618; Rajesh Prasad Mishra Vs. The Commissioner Jhansi Division, Jhansi and others, 2011(1) ADJ 135 and State of U.P. Vs. Aditya Prasad Srivastava and another (Service Bench No. 585 of 2011), decided on 17.01.2017.

50. Moreover, in the present case, when Disciplinary Authority reopened proceedings by permitting petitioner to adduce his defence before Inquiry Officer and as such defence was recorded by Inquiry Officer on various dates from 23.5.1995 and onward, thereafter, it was incumbent upon respondent authority concerned to look into such defence, which has come on record and thereafter further to record its findings on various charges but that has not been done. Letter dated 11.1.1996 sent by Inquiry Officer to petitioner cannot said to be an inquiry report in the light of subsequent proceedings conducted by him by giving defence opportunity to petitioner. Hence I have no hesitation in holding that entire proceedings conducted by the authorities of Bank are not in accordance with law and can safely be held seriously vitiated in law and patently illegal. Second question therefore is also answered in favour of petitioner.

51. In view of my answer to questions, formulated above, the ultimate conclusion is that impugned order is illegal and not sustainable. In the result, this writ petition is allowed. The impugned order dated 08.05.1996 (Annexure 23 to the writ petition) is hereby set aside. The petitioner shall be entitled to all consequential benefits. However, this order shall not preclude respondents from passing fresh order in accordance with law, if permissible under the relevant rules.

52. No costs.

Order Date :- 16.11.2018

KA