Allahabad High Court

C/M Distt Cooperative Bank Ltd vs U.P. Cooperative Institutinal ... on 13 March, 2019

Bench: Govind Mathur, Chief Justice, Saurabh Lavania




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 

 

 
Chief Justice's Court
 

 
Case :- SPECIAL APPEAL No. - 175 of 2005
 

 
Appellant :- C/M Distt Cooperative Bank Ltd
 
Respondent :- U.P. Cooperative Institutinal Service Board And Anors
 
Counsel for Appellant :- A.R.Khan,A. Shukla,R.N. Tripathi
 
Counsel for Respondent :- A.Kalra,Amit Bose,R.K.Chaudhary
 

 
Hon'ble Govind Mathur,Chief Justice
 
Hon'ble Saurabh Lavania,J.

(Dictated by Hon'ble Saurabh Lavania, J.)

Heard Sri A.R. Khan, learned counsel for the appellant and Sri Akhilesh Kalra, learned counsel for the respondents.

This is an appeal under Chapter VIII Rule 5 of the Rules of Court, 1952, against the judgment and order dated 02.03.2005 passed in Writ Petition No. 6894 (S/S) of 2001 (Anil Batra Vs. District Cooperative Bank Ltd.).

Vide judgment under appeal dated 02.03.2005, the learned Single Judge quashed the order of punishment dated 01.08.2001, whereby the Respondent No. 2 was dismissed from the service by the Appellants.

The learned Single Judge interfered in the punishment order dated 01.08.2001 broadly on the ground that due opportunity of hearing to the Respondent No. 2 was not provided during the disciplinary proceedings. The disciplinary enquiry was conducted in gross violation of principles of natural justice. The witnesses cited in the charge sheet were not examined nor opportunity to cross examine was provided to the Respondent No. 2. The findings of facts are not based upon the material or evidence on record.

Assailing the judgment under appeal, the counsel for the Appellants Sri A. R. Khan submitted that in enquiry proceedings, the charge sheet/modified charge sheet was duly provided to the delinquent employee-Respondent No. 2. Relevant documents were also provided. The Respondent No. 2 submitted its reply to the charge sheet thereafter the enquiry officer conducted the enquiry. Respondent No. 2 did not appear on the dates fixed in the enquiry proceedings nor he led any evidence in support of his case. The enquiry officer on the basis of documentary evidence prepared and submitted his report. On the basis of documentary evidence, the enquiry officer proved the charges against the Respondent No. 2. After submission of enquiry report, the show cause notice was issued and in response to which the petitioner submitted his reply. The disciplinary authority after considering the material available on record passed the order of dismissal dated 01.08.2001. The enquiry was properly conducted the order of dismissal is reasoned as also is just and proper, in the facts of the case. No oral enquiry was required as the charge sheet was based on documentary evidence and on the basis of the same the enquiry officer prepared his report and proved the charges against the Respondent No. 2.

In support of his contention on the issue of fixing date, time and place for oral enquiry and proving the charges as well as documentary evidences the learned counsel for the Appellant placed reliance on the judgment of the Apex Court in the State Bank of India Vs. Narendra Kumar Pandey, reported in (2013) 2 SCC 740.

In reply the counsel for the Respondent No. 2 submitted that in the facts of the case, particularly the charges and documentary evidence mentioned in the charge sheet/modified charge sheet the oral enquiry was required and for which the enquiry officer was under obligation to fix date, time and place for examination and cross examination of the persons whose statements were relied upon in the charge sheet as documentary evidence and relied upon by the enquiry officer while preparing the enquiry report. Further submitted that the enquiry officer was also under obligation to fix date, time and place for producing the witnesses in defence. Further submitted that considering the requirement of oral enquiry in the facts of the case, the learned Single Judge interfered in the order of dismissal and in view of the settled law also provided the opportunity to Appellants to hold the enquiry afresh. The order under appeal is sustainable in law and is not liable to be interfered in the Appellate Jurisdiction of this Court.

In regard to the judgment of State Bank of India (supra) the counsel for Respondent No. 2 submitted that the judgment is not applicable in the instant case as (i) in the case of State Bank of India (supra) the original documents were produced before the enquiry officer whereas in the present case the original documents were not produced before the enquiry officer in the enquiry to prove the evidence and charges; and (ii) the statements of the persons relied upon as documentary evidence in the charge sheet were to be proved by the persons concerned, who never appeared before the enquiry officer in enquiry, as appears from the enquiry report itself.

Before dealing with the facts of the case this Court feels it proper to refer certain aspects related to departmental/disciplinary proceedings in the matter of awarding major punishment against the delinquent officer/employee.

It is now settled principle that the disciplinary proceedings are quasi-judicial proceedings and the authority exercising the quasi-judicial power has to act in good faith, without bais and in a fair/reasonable/impartial manner. It is also settled principle that in enquiry proceedings the principles of natural justice are required to be adhered/followed. Due/fair/reasonable opportunity of hearing should be given to the delinquent employee in the departmental proceedings. The enquiry report, orders of punishing authority and appellate authority, as the case may be, should be based on material evidence and should be reasoned.

In the case of Roop Singh Negi v. Punjab National Bank (2009) 2 SCC 570, the Apex Court observed as under:-

"14. 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.

21. Yet again in M.V. Bijlani v. Union of India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919] this Court held: (SCC p. 95, para 25)

"25. ... Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."

In the case of Mohd. Yusus Khan v. State of U.P. (2010) 10 SCC 539, the Apex Court in Para 16 observed as under:-

"16. We have to proceed keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a punishment on his being found guilty of misconduct under the statutory rules is in the nature of quasi-judicial proceedings. Though the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of natural justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the enquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice. (See Bachhittar Singh v. State of Punjab [AIR 1963 SC 395] , Union of India v. H.C. Goel [AIR 1964 SC 364] , Anil Kumar v. Presiding Officer [(1985) 3 SCC 378 : 1985 SCC (L&S) 815 : AIR 1985 SC 1121] , Moni Shankar v. Union of India [(2008) 3 SCC 484 : (2008) 1 SCC (L&S) 819] and Union of India v. Prakash Kumar Tandon [(2009) 2 SCC 541 : (2009) 1 SCC (L&S) 394].)"

In the case of Union of India v. Ram Lakhan Sharma (2018) 7 SCC 670, the Apex Court observed as under:-

"24. The disciplinary proceedings are quasi-judicial proceedings and the Enquiry Officer is in the position of an independent adjudicator and is obliged to act fairly, impartially. The authority exercising quasi-judicial power has to act in good faith without bias, in a fair and impartial manner.

25. Rules of natural justice have been recognised and developed as principles of administrative law. Natural justice has many facets. All its facets are steps to ensure justice and fair play. This Court in Suresh Koshy George v. University of Kerala [Suresh Koshy George v. University of Kerala, AIR 1969 SC 198] had occasion to consider the principles of natural justice in the context of a case where disciplinary action was taken against a student who was alleged to have adopted malpractice in the examination. In para 7 this Court held that the question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions. The following was held in paras 7 and 8: (AIR p. 201)

"7. ... The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions.

8. In Russell v. Duke of Norfolk [Russell v. Duke of Norfolk, (1949) 1 All ER 109 (CA)] , Tucker, L.J. observed: (All ER p. 118 D-F)

''There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.' "

26. A Constitution Bench of this Court has elaborately considered and explained the principles of natural justice in A.K. Kraipak v. Union of India [A.K. Kraipak v. Union of India, (1969) 2 SCC 262 : AIR 1970 SC 150] . This Court held that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The concept of natural justice has undergone a great deal of change in recent years. Initially recognised as consisting of two principles, that is, no one shall be a judge in his own cause and no decision shall be given against a party without affording him a reasonable hearing, various other facets have been recognised. In para 20 the following has been held: (SCC p. 272)

"20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely, (1) no one shall be a judge in his own case (nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and, that is, that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. ..."

27. In State of U.P. v. Saroj Kumar Sinha [State of U.P. v. Saroj Kumar Sinha, (2010) 2 SCC 772 : (2010) 1 SCC (L&S) 675] , this Court had laid down that Enquiry Officer is a quasi-judicial authority, he has to act as an independent adjudicator and he is not a representative of the department/disciplinary authority/Government. In paras 28 and 30 the following has been held: (SCC p. 782)

"28. An Enquiry Officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The Enquiry Officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."

In addition to above, the Apex Court as well as this Court in various judgments considered the requirement of recording of oral evidence and of fixing date, time and place for the same in disciplinary/departmental proceedings and held that the oral enquiry is must. On requirement of oral enquiry the Division Bench of this Court in the judgment passed in Radhey Kant Khare v. U.P. Cooperative Sugar Factories Federation Ltd. 2003 (21) LCD 610 after relying upon the judgments of the Apex Court as well as of this Court observed as under:-

"7. In a Division Bench of this Court in Subhash Chandra Sharma v. U.P. Co-operative Spinning Mills, 1999 (4) AWC 3227 : 2000 (1) UPLBEC 541. in which one of us (Hon'ble M. Katju, J.) was a member, this law has been laid down. The law is as follows :

"After a charge-sheet is given to the employee, an oral enquiry is a must, whether the employee requests for it or not. Hence, a notice should be issued to him indicating him the date, time and place of the enquiry. On that date the oral and documentary evidence against the employee should first be led in his presence vide, A.C.C. Ltd. v. Their Workmen, (1963) U LLJ 396 (SC). Ordinarily, if the employee is examined first, it is illegal vide Anand Joshi v. M.S.F.C., 1991 LIC 1666 (Bom) ; S. D. Sharma v. Trade Fair Authority of India, (1985) II LLJ 193 and Central Railway v. Raghubir Saran, (1983) II LLJ 26. No doubt, in certain exceptional cases, the employee may be asked to lead evidence first, vide Firestone Tyre and Rubber Co. Ltd. v. Their Workmen, AIR 1968 SC 236, but ordinarily the rule is that first the employer must adduce his evidence. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. Where no witnesses were examined and no exhibit or record is made but straightaway the employee was asked to produce his evidence and documents in support of his case it is Illegal vide P. C. Thomas v. Mutholi Co-operative Society Ltd.. 1978 LIC 1428 (Ker) and Meengles Tea Estate v. Their Workmen, AIR 1963 SC 1719.

It is also necessary that ordinarily the statement of all the witnesses of the employer should be recorded in presence of the employee unless there are compelling reasons to act otherwise vide Kesoram Cotton Mills v. Gangadhar, AIR 1964 SC 708 and Central Bank of India v. Prakash Chand, AIR 1969 SC 983, etc. If the witnesses are examined in the absence of the employee and their recorded statements were also not supplied to him this procedure is illegal vide Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) II LLJ 78 ; India General Navigation and Rly. Co. Ltd. v. Its Employees, (1961) II LLJ 372 (SC) ; Bharat Sugar Mills Co. Ltd. v. Jai Singh, (1961) II LLJ 644 (SC) : Sur Enamel and Stamping Works Ltd. v. Their Workmen. AIR 1963 SC 1914 and Vysya Bank v. N. M. Pat, 1994 LIC 1429 (Kant) etc.

In Meenglas Tea Estate v. Their Workmen. AIR 1963 SC 1719, the Supreme Court observed "It is an elementary principle that a person who is required to answer the charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of ah enquiry of this character and this requirement must be substantially fulfilled if the result of the enquiry can be accepted.

In S.C. Girotra v. United Commercial Bank, 1995 (Supp) 3 SCC 212. the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross-examination. In State of U.P. v. C.S. Sharma. AIR 1968 SC 158, the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry, the witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine those witnesses and to lead evidence in his defence. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160 (vide paragraph 66), the Supreme Court held that in such enquiries evidence must be recorded in presence of the charge-sheeted employee and he must be given opportunity to rebut such evidence.

In Subhash Chandra Sharma's case (supra), it was held that a dismissal order has serious consequence and should be passed only after complying with the rules of the natural justice as mentioned above. Against that decision, an S.L.P. was filed which was dismissed.

The decision of the Division Bench of this Court in Subhash Chandra Sharma's case (supra), was followed by a learned single Judge in Om Pal Singh v. District Development Officer. 2000 (3) AWC 1909 : 2000 (2) UPLBEC 1591.

In Sahngoo Ram Arya v. Chief Secretary, 2002 (2) AWC 902 : 2002 ALJ 993. a Division Bench, in which also one of us (Hon'ble M. Katju. J.) was a member, took the same view relying on another Division Bench decision in Radhey Shyam Pandey v. Chief Secretary, 2001 (3) AWC 2043 : 2001 ALJ 1859.

The same view was also followed in another Division Bench decision (unreported) in Writ Petition No. 39410 of 2000, Dharmpal Singh v. Appellate Authority, decided on 16.5.2001."

In the case of Roop Singh Negi (supra) the Apex in paragraph 14 has categorically observed that "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."

The Division Bench of this Court, after considering the catena of judgments on the issue of holding the disciplinary enquiry i.e. a regular enquiry, in the judgment dated 28.11.2018 passed in Writ Petition No. 34093 (S/B) of 2018 (State of U.P. v. Deepak Kumar) has observed as under:-

"It is settled by the catena of judgments that it is the duty of Enquiry Officer to hold ''Regular Enquiry'. Regular enquiry means that after reply to the charge-sheet the Enquiry Officer must record oral evidence with an opportunity to the delinquent employee to cross-examine the witnesses and thereafter opportunity should be given to the delinquent employee to adduce his evidence in defence. The opportunity of personal hearing should also be given/awarded to the delinquent employee. Even if the charged employee does not participate/co-operate in the enquiry, it shall be incumbent upon the Enquiry Officer to proceed ex-parte by recording oral evidence. For regular enquiry, it is incumbent upon the Enquiry Officer to fix date, time and place for examination and cross-examination of witnesses for the purposes of proving of charges and documents, relied upon and opportunity to delinquent employee should also be given to produce his witness by fixing date, time and place. After completion of enquiry the Enquiry Officer is required to submit its report, stating therein all the relevant facts, evidence and statement of findings on each charge and reasons thereof, and thereafter, prior to imposing any punishment, the copy of the report should be provided to charged officer for the purposes of submission of his reply on the same. The punishment order should be reasoned and speaking and must be passed after considering entire material on record. (vide: Jagdish Prasad Vs. State of U.P. 1990 (8) LCD 486; Avatar Singh Vs. State of U.P. 1998 (16) LCD 199; Town Area Committee, Jalalabad Vs. Jagdish Prasad 1979 Vol. I SCC 60; Managing Director, U.P. Welfare Housing Corporation Vs. Vijay Narain Bajpai 1980 Vol. 3 SCC 459; State of U.P. Vs. Shatrughan Lal 1998 (6) SCC 651; Chandrama Tewari Vs. Union of India and others AIR 1998 SC 117; Anil Kumar Vs. Presiding Officer and others AIR 1985 SC 1121; Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories 2003 (21) LCD 610; Roop Singh Negi Vs. Punjab National Bank and others (2009) 2 SCC 570; M.M. Siddiqui Vs. State of U.P. and others 2015 (33) LCD 836; Moti Ram Vs. State of U.P. and others 2013 (31) LCD 1319; Kaptan Singh Vs. State of U.P. and others 2014 (4) ALJ 440."

In the abovementioned legal preposition and submissions of the counsel for the parties, this Court is only considering the issue that "whether in the instant case the oral enquiry was required or not".

At this juncture it is relevant to refer that the disciplinary proceedings were conducted against the Respondent No. 2 under Regulation 85 of the U.P. Co-operative Societies Employees' Service Regulations, 1975. The Regulation 85 is reproduced below:-

"Disciplinary proceedings.-(i) The disciplinary proceedings against an employee shall be conducted by the Inquiring Officer [referred to in clause (iv) below] with due observance of the principles of natural justice for which it shall be necessary that-

(a) the employee shall be served with a charge-sheet containing specific charges and mention of evidence in support of each charge and he shall be required to submit explanation in respect of the charges within reasonable time which shall not be less than fifteen days;

(b) such an employee shall also be given an opportunity to produce at his own cost or to cross-examine witnesses in his defence and shall also be given an opportunity of being heard in person, if he so desires;

(c) if no explanation in respect of charge-sheet is received or the explanation submitted is unsatisfactory, the competent authority may award him appropriate punishment considered necessary.

(ii) (a) Where an employee is dismissed or removed from service on the ground of conduct which has led to his conviction on a criminal charge; or (b) Where an employee has absconded and his whereabouts are not known to the society for more than three months; or

(c) Where the employee refuses or fails without sufficient cause to appear before the Inquiring Officer when specifically called upon in writing to appear; or

(d) Where it is otherwise (for reasons to be recorded) not possible to communicate with him, the competent authority may award appropriate punishment without taking or continuing disciplinary proceedings.

(iii) Disciplinary proceedings shall be taken by the society against the employee on a report made to this effect by the inspecting authority or an officer of the society under whose control the employee is working.

(iv) The Inquiring Officer shall be appointed by the appointing authority or by an officer of the society authorised for the purpose by the appointing authority:

'Provided that the officer at whose instance disciplinary action was started shall not be appointed as an Inquiring Officer nor shall the Inquiring Officer be the appellate authority.'

(v) In the case of an erring employee falling in sub-clause (c) of clause (i) or sub-clause (a) of clause (ii) of Regulation No, 5, the committee of management of the society, and if so provided in the bye-laws, the Chairman or the Secretary of the society, shall draw up a duplicate charge-sheet against the employee and the same shall be communicated to the parent employer who shall, if prima facie case has been made out by the reporting authority, withdraw him from the society and take disciplinary action against him.

(vi) An employee other than one referred to in clause (v) may be placed under suspension in the following circumstances by the appointing authority or any other officer authorised for the purpose-

(a) when the said authority is satisfied that a prima facie case exists, which is likely to result in the removal, dismissal or reduction in rank of the employee;

(b) when an enquiry into his conduct is immediately contemplated or is pending and his further continuance on his post is considered detrimental to the interest of the society;

(c) when a complaint against him of any criminal offence is under police investigation for which he has been arrested or he is undergoing trial in a court of law for offence under the Indian Penal Code, U.P. Co-operative Societies Act, 1965 or any other Act or charges have been framed against him by the criminal court :

Provided that suspension shall be obligatory where it is called for in terms of clause (i) of Regulation No. 83.

(vii) (a) An employee under suspension shall be entitled to a subsistence allowance as per relevant rules applicable to State Government employees from time to time :

Provided that an employee who is under suspension on the date of coming into force of these regulations shall continue to draw such portion of pay and such allowances as he was allowed to draw for the period of suspension :

Provided further that no payment of the subsistence allowance shall be made unless the employee has furnished a certificate, and the authority passing the order of suspension is satisfied that the employee was not engaged in any other employment, business, profession or vocation and had not earned remuneration therefor during the period under suspension.

(b) (1) When an employee is reinstated, the authority competent to order the reinstatement shall make specific order regarding pay and allowance to be paid for the period of suspension and whether or not the said period shall be treated as a period spent on duty :

Provided that where the authority passing the order of reinstatement is of the opinion that the employee has been fully exonerated or the suspension was wholly unjustified, the employee shall be given the full pay and allowances to which he would have been entitled had he not been suspended.

(2) In cases not covered by the proviso to foregoing sub-clause (1) the employee shall be given such proportion of pay and allowance as the competent authority may order.

(viii) In case of fine, the total amount of fine shall not exceed half month's pay or maximum fine, chargeable under the Payment of Wages Act, 1936, where this Act is applicable to the employee concerned and it shall be deducted from his pay in monthly instalments, each such instalment not exceeding one-fourth of his monthly salary.

(ix) The order of suspension may be revoked by-

(a) the authority which passed the orders, or

(b) the appointing authority, if there are sufficient reasons for revocation and the same shall be recorded in the order of revocation.

(x) No employee shall ordinarily remain under suspension for more than 6 months :

Provided that this condition shall not apply to such cases where the suspension is made on criminal charge on the direction of the court.]"

The above quoted provision speaks that principles of natural justice are to be followed in the disciplinary proceedings by the enquiry officer and an employee shall also be given an opportunity to produce at his cost or to cross-examine witnesses in his defence and an opportunity of being heard in person, if he so desire. In what manner the principles of natural justice have to be followed in the departmental/disciplinary proceedings has already explained by the Apex Court as well as by this Court, as noted above.

The relevant facts, as appears from the pleadings on record, on the aforesaid issue are that the Respondent No. 2 was appointed in the year 1979 as clerk-cum-cashier in the District Cooperative Bank, Lucknow (in short "Bank") and was initially posted at Basti. He was transferred to Kakori branch, Lucknow in the year 1992. While he was posted at Kakori the fire broke out in the premises of bank on 29.01.1998 and with respect to the said incident an FIR was lodged. The Respondent No. 2 was transferred at Head Officer at Lucknow. The local police investigated the matter. The enquiry was also conducted by the Bank with respect to incident of fire and in the enquiry some financial irregularities were found. The Respondent No. 2 was suspended on 24.03.1998 by the Bank. The suspension order contains the allegation of embezzlement of huge amount of Bank. The suspension order was issued on the basis of enquiry report submitted by the two members committee constituted by the Bank for enquiring in the reasons of fire incident.

On 06.01.1999 a charge sheet was issued containing 14 charges. It appears from the charge sheet that the Respondent No. 2 was charge sheeted for embezzlement of amount of the Bank, absence from the Bank on the date of incident of fire at Kakori Branch, handing over the Key of the Bank through some relative on the said date, the records were kept in another room on the ground that white washing of the Branch of the Bank was going on and that was done without taking permission from the Head-Quarters and the absence of the Respondent No. 2 from Head-Quarter since 03.07.1998 without obtaining permission from the competent authority.

In the charge sheet to the prove the charges the documents have been mentioned, which includes enquiry report dated 21.02.1998 and the statements of following persons:-

Sri Ram Raj Sharma,

Sri Munna Lal,

Sri Khalid Ahmad Abbasi,

Sri Ram Prakash Pandey,

Sri J.P. Nigam,

Sri Mahabir Prasad,

Sri Ram Naresh, and

Sri Vishnu Prasad.

After receiving the charge sheet, the Respondent No. 2 demanded some documents through letters and the main letter is of 10.08.1999 and the same was duly replied by the Bank vide letter dated 04.09.1999. It appears from the letter dated 04.09.1999 that some documents were provided and some were not provided and for some documents the Respondent No. 2 was asked to visit the branch office at Kakori for perusal of the documents asked for.

The Respondent No. 2 (under compelling circumstances and in absence of necessary documents, as alleged in the writ petition) submitted his reply dated 15.05.2000.

The enquiry officer submitted his report dated 12.05.2001 before the disciplinary/competent authority.

At this stage it would not be out of place to point out the scope of judicial review in the matter of departmental/disciplinary proceedings.

This Court under its power conferred by Article 226 of Constitution of India, can interfere in the matter of disciplinary proceedings if the disciplinary/enquiry proceedings were conducted in violation of manner prescribed and against Principle of Natural Justice and if the order of concerned authority is non speaking and unreasoned. This Court can interfere in the matter of disciplinary proceedings if the decision making process is in violation of Rules or against Principle of Natural Justice. The judicial review in the matter of departmental proceedings is permissible with respect to decision making process and not against the decision itself unless it is shown that the decision is without any evidence or suffers from malafide or malice or harsh or without jurisdiction.

In the case of Indian Oil Corpn. Ltd. v. Ashok Kumar Arora, (1997) 3 SCC 72 the Hon'ble Supreme Court has held as under:-

"At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee. There is a catena of judgments of this Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of this Court on this topic viz. State of A.P. v. S. Sree Rama Rao [(1964) 3 SCR 25 : AIR 1963 SC 1723 : (1964) 2 LLJ 150] , State of A.P. v. Chitra Venkata Rao [(1975) 2 SCC 557 : 1975 SCC (L&S) 349 : (1976) 1 SCR 521] , Corpn. of the City of Nagpur v. Ramchandra [(1981) 2 SCC 714 : 1981 SCC (L&S) 455 : (1981) 3 SCR 22] and Nelson Motis v. Union of India [(1992) 4 SCC 711 : 1993 SCC (L&S) 13 : (1993) 23 ATC 382 : AIR 1992 SC 1981]".

In the case of Lalit Popli v. Canara Bank, (2003) 3 SCC 583 the Hon'ble Supreme Court has held as under:-

"17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.

18. In B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32 ATC 44] the scope of judicial review was indicated by stating that review by the court is of decision-making process and where the findings of the disciplinary authority are based on some evidence, the court or the tribunal cannot reappreciate the evidence and substitute its own finding.

19. As observed in R.S. Saini v. State of Punjab [(1999) 8 SCC 90 : 1999 SCC (L&S) 1424] in paras 16 and 17 the scope of interference is rather limited and has to be exercised within the circumscribed limits. It was noted as follows: (SCC p. 96)

"16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.

17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring authority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority. Likewise, the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard."

In the case of Allahabad Bank v. Krishna Narayan Tewari, (2017) 2 SCC 308 the Hon'ble Supreme Court has held as under:-

"7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the enquiry officer or the disciplinary authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the enquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority."

For coming to the conclusion to the question required to be answered, framed above, and keeping in view the principles of judicial review, this Court is of the view that in the instant case, the charge-sheet and enquiry report are the most relevant documents and are required to be considered.

On considering the contents of charge-sheet and enquiry report this court found that:

(i) the enquiry officer considered the statements of some persons named above (named in the charge-sheet) that too without examination and cross examination of the said persons, though as per law statement can only be relied upon if the same is proved by the person who made the statement and for proof examination and cross examination of person concerned is necessary;

(ii) no right/opportunity was provided by the enquiry officer to the Respondent No. 2 for cross examination of the persons named above, whose statements have been relied upon by the enquiry officer against the Respondent No. 2, by fixing date, time and place under intimation to the Respondent No. 2;

(iii) the documents, other than statements of the persons mentioned above, including the enquiry report dated 21.02.1998 relied upon by the enquiry officer to prove the charges against Respondent No. 2 were not proved by the Bank by placing original documents before the enquiry officer during the enquiry or by oral evidence; and

(iv) no opportunity was given to respondent No. 2 as per Regulation 85 (i) (b), under which an opportunity to an employee should be given to produce witnesses in defence.

The aforesaid observations/findings on the enquiry report by this Court are based on recitals/contents of the charge-sheet and enquiry report.

In light of the facts of the present case, relevant regulation and principles settled by the Apex Court as well as this Court on issues of holding regular enquiry, we have considered the principle settled by the Apex Court in the case of State Bank of India (supra), relied upon by the appellants, and on due consideration, this Court is of the view that same would not apply in the present case broadly for the reasons that (i) in the case of State Bank of India (supra) the original documents were produced before the enquiry officer to prove the documents and in the instant case the original documents were not produced by the Bank before the enquiry officer; (ii) for considering the statements of the persons, named above, the statements ought to have been proved by the persons who made the statement(s) and for which their examination and cross examination was required and for the same the date, time and place ought to have been fixed by the enquiry officer under intimation to the delinquent employee/Respondent No. 2 and (iii) no opportunity to produce witnesses in defence was given to respondent No. 2 in enquiry, as per regulation 85 (i) (b).

Considering the facts of the present case, language of the relevant Regulation 85 of the Regulations of 1975, the observations/findings on enquiry report recorded by this Court and settled law relating to conducting the departmental/disciplinary proceedings, this Court is of the firm view that in the instant case, oral enquiry was required by the enquiry officer i.e. in enquiry, the witnesses ought to have been examined by enquiry officer and in not doing so, the enquiry officer failed to conduct the enquiry as required under the law. Thus, the enquiry is vitiated and the order of dismissal dated 01.08.2001, based on vitiated enquiry report, would also not stand.

Another aspect of the case, though not argued, is also to be taken note of that the order of dismissal/punishment is an unreasoned order. The relevant portion which shows that reasons have not been recorded for coming to the conclusion for awarding major punishment of dismissal is quoted below:-

";r% izcU/k [email protected];qfDRk izkf/kdkjh }kjk Jh vfuy c=k] deZpkjh oxZ&3 ds fo:) xfBr vkjksiksa] Jh c=k dk [email protected]"Vhdj.k ,oa dkj.k crkvks uksfVl ds lEcU/k esa Jh c=k }kjk iszf"kr Li"Vhdj.k rFkk vU; vfHkys[kksa dk xgu ijh{k.k ds i'pkr Jh vfuy c=k ij yxk;s x;s lHkh vkjksi fl) ik;s tkus ds dkj.k m0iz0lgdkjh lfefr deZpkjh lsok fofu;ekoyh ds fofu;e la[;k&87 ds izkfo/kkuksa ds rgr lsokP;qr ¼fMlfel½ fd;s tkus ds lEcU/k esa m0iz0 lgdkjh laLFkkxr lsoke.My] y[kuÅ ls [email protected] izkIr djus dh dk;Zokgh fd;s tkus dk Hkh fu.kZ; fy;k x;kA izcU/k [email protected];qfDRk izkf/kdkjh }kjk ;g Hkh fu.kZ; fy;k x;k fd m0iz0lgdkjh lfefr vf/kfu;e] 1965 ds izkfo/kkuksa ds rgr vigfjr /kujkf'k dh olwyh dh dk;Zokgh dh tk;sA vkSj

;r% izcU/k [email protected];qfDr izkf/kdkjh ds mijksDr fu.kZ; ds dze esa Jh vfuy c=k] fuyfEcr deZpkjh oxZ&3 dks lsok ls lsokP;qr fd;s tkus gsrq vuqeksnu izkIr djus gsrq bl dk;kZy; ds i=kad&[email protected]'[email protected]&02 fnukad&11&7&2001 }kjk m0iz0 lgdkjh laLFkkxr lsoke.My] y[kuÅ dks izsf"kr fd;k x;k] ftl ij m0iz0 lgdkjh laLFkkxr lsoke.My] y[kuÅ }kjk vius i=kad&[email protected]&[email protected]@2001fnuakd&26&7&2001 }kjk Jh vfuy c=k] deZpkjh oxZ&3 dks m0iz0lgdkjh lfefr deZpkjh lsok fofu;ekoyh ds fofu;e la[;k&87 ds izkfo/kkuksa ds rgr lsok ls lsokP;qr ¼fMlfel½ fd;s tkus dh [email protected]`fr iznku dj nh xbZ gSA

vr% izcU/k [email protected];qfDRk izkf/kdkjh] ftyk lgdkjh cSad fy0] y[kuÅ ds }kjk fy;s x;s fu.kZ; ,oa m0iz0 lgdkjh laLFkkxr lsokeaMy y[kuÅ }kjk m0iz0lgdkjh lfefr deZpkjh lsok fofu;ekoyh] 1975 ds fofu;e la[;k&87 ds izkfo/kkuksa ds rgr nh xbZ [email protected]`fr ds dze esa Jh vfuy c=k] fuyfEcr deZpkjh oxZ&3 dks rRdky izHkko ls cSad dh lsok ls lsokP;qr ¼fMlfel½ fd;k tkrk gSA"

As per settled principle, the reasons should be recorded in the order having civil consequence.

The recording of reasons are necessary. It is well known that "conclusions" and "reasons" are two different things and reasons must show mental exercise of authorities in arriving at a particular conclusion.

In Breen Vs. Amalgamated Engg. Union, reported in 1971(1) AIIER 1148, it was held that the giving of reasons is one of the fundamentals of good administration.

In Alexander Machinery (Dudley) Ltd.Vs. Crabtress, reported in 1974(4) IRC 120 (NIRC) it was observed that "failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at.

In Union of India Vs. Mohan Lal Kapoor (1973) 2 SCC 836, as under:

"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached."

The Apex Court in the case of Uma Charan Vs. State of Madhya Pradesh & Anr. AIR 1981 SC 1915 said:

The Hon'ble Supreme Court of India in the case of S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, has explained that reasons are necessary links between the facts and the findings recorded in the administrative orders, which visit a party with evil civil consequences. In absence of reasons such an order cannot be permitted to stand.

The Hon'ble Supreme Court of India in the case of Raj Kishore Jha v. State of Bihar and others, (2003) 11 SCC 519, has held that reasons are the heartbeat of every conclusion and without the same, it becomes lifeless.

In Mc Dermott International Inc. Vs. Burn Standard Co. Ltd. & Ors. (2006) 11 SCC 181 Apex Court referring to Bachawat's Law of Arbitration and Conciliation, 4th Edn., pp. 855-56 in para 56 said:

"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions..."

The Apex Court in Kranti Associates Private Limited & Anr. Vs. Masood Ahmed Khan & Ors. (2010) 9 SCC 496 referring to the judgment in Mohan Lal Capoor (supra) in para 23 said:

"Such reasons must disclose how mind was applied to the subject-matter for a decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. This Court held that the reasons in such context would mean the link between materials which are considered and the conclusions which are reached. Reasons must reveal a rational nexus between the two."

The Apex Court also in Competition Commission of India Vs. Steel Authority of India Ltd. & Anr. JT 2010 (10) SC 26 in para 68 referring to the judgment in the case of Gurdial Singh Fijji (supra) said:

"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. By practice adopted in all courts and by virtue of judge- made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and therefore, proper reasoning is foundation of a just and fair decision."

For the reasons recorded hereinabove, we are in the agreement with the findings recorded by the learned Single Judge and accordingly we find that no interference is required in the judgment, under appeal, dated 02.03.2005.

Accordingly the appeal is dismissed with no order as to costs.

Order Date :- 13.3.2019

Arun/-