Ram Milan vs Bank Of Baroda Through Chief ...
2019 Latest Caselaw 4234 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 20
 
Case :- SERVICE SINGLE No. - 4779 of 2014
 
Petitioner :- Ram Milan
 
Respondent :- Bank Of Baroda Through Chief Managing Director Baroda & Ors.
 
Counsel for Petitioner :- Shashank Shekhar Parihar,Meenakshi Singh
 
Counsel for Respondent :- Prashant Kumar Srivastava,Lalit Shukla
 

 
Hon'ble Abdul Moin,J.

C.M.Application No. 11929 of 2018

1. Heard.

2. This is an application for amendment in the writ petition pertaining to the age of the petitioner.

3. Reasons indicated in the affidavit are sufficient.

4. The application is allowed. The petitioner may incorporate necessary amendments in the writ petition during the course of the day.

Order on memo of petition

1. Sri H.G.S.Parihar, learned Senior Advocate assisted by Ms. Meenakshi Parishar, Advocate and Sri Prashant Kumar Singh, learned counsel for the petitioner prays for making formal amendment in the prayer Clause 1 which is not opposed by Sri Lalit Shukla, learned counsel appearing for the respondent. The prayer is allowed. Let the said amendment be incorporated during the course of the day.

2. By means of the present petition, the petitioner has challenged the order dated 30.06.2014 passed by the Disciplinary Authority and Deputy General Manager of the Bank of Baroda i.e respondent no. 2 by which finding that the second inquiry report submitted against the petitioner cannot be considered and making the de novo reference as meaningless, the disciplinary authority on the direction of the Chief Vigilance Officer (hereinafter referred to as "CVO"), has directed for conducting the inquiry de novo and without any delay.

3. Upon filing of the present petition, this Court vide order dated 02.09.2014 had stayed the operation of the impugned order dated 30.06.2014. In pursuance thereof, the inquiry proceedings were not conducted against the petitioner and the petitioner also claims to have retired on attaining the age of superannuation on 31.12.2017. The said statement is not opposed by Sri Lalit Shukla, learned counsel appearing for the respondents.

4. Learned counsel for the petitioner while seeking to challenge the impugned order dated 30.06.2014 contends that the inquiry proceedings against the employees of the Bank are governed by the Memorandum of Agreement dated 10.04.2002 between the Management of the Indian Banks Association and their workman. Copy of the said agreement has been filed as annexure 5 to the petition. Clause 13 of the said agreement categorically provides that it is the provision of the settlement which would prevail even if there is any conflict with the procedure or rules in force in any bank regarding disciplinary action. Thus, it is contended that the agreement would prevail over the rules or procedure which run contrary to the said agreement.

5. Learned counsel for the petitioner contends that initially the petitioner was placed under suspension while working as Head Cashier in the Bank vide suspension order dated 21.02.2011 on the ground of contemplation of disciplinary proceedings. The charge sheet dated 10.12.2011 containing various charges was issued to the petitioner. The petitioner submitted his reply and participated in the inquiry proceedings and thereafter the inquiry report was submitted by the inquiry officer on 20.07.2012. The petitioner was required to submit his representation against the said inquiry report. After considering the representation of the petitioner, the disciplinary authority issued an order dated 10.10.2012 whereby the inquiry report dated 20.07.2012 was rejected. Copy of order dated 10.10.2012 is annexure 9 to the petition. By the said order itself, fresh disciplinary proceedings were directed to be conducted in pursuance to the charge sheet dated 10.12.2011. Learned counsel for the petitioner contends that despite there being no such procedure prescribed under the agreement which governs fresh disciplinary proceedings and no such order could validly have been passed by the disciplinary authority yet the petitioner participated in the de novo inquiry proceedings in pursuance to which the second inquiry report was submitted on 30.10.2013, copy of which is annexure 17 to the petition. The disciplinary authority proceeded to consider the second inquiry report vide his impugned order dated 30.06.2014 and found that the second departmental inquiry is meaningless. However, the disciplinary authority has also recorded in the impugned order dated 30.06.2014 that the CVO has directed to conduct inquiry de novo and without any delay. After obtaining legal opinion, the disciplinary authority has proceeded to appoint an inquiry officer for inquiring into the charges levelled against the petitioner through charge sheet dated 10.12.2011 for a fresh inquiry. It is this order which is under challenge in the present petition.

6. Learned counsel for the petitioner argues that once the entire procedure for conducting of an inquiry is governed by the Memorandum of Agreement dated 10.04.2002 which itself does not provide for any de novo inquiry, consequently no such order could validly have been passed by the disciplinary authority. It is also argued that even if such a procedure could in fact be read into the Memorandum of Agreement yet it is the disciplinary authority alone who is to exercise the power of conducting the de novo inquiry but where the disciplinary authority exercises the said power at the dictates of the CVO, as comes out from a perusal of the impugned order itself, then it would be deemed that the disciplinary authority has not exercised his mind while passing such an order and thus the order would be patently vitiated on this ground also.

7. It is also contended that the Memorandum of Agreement does not provide for continuing of an inquiry after the retirement of the employee concerned and such power has to be vested under the rules and consequently once the petitioner has retired on attaining the age of superannuation on 31.12.2017, no such inquiry can now validly be held against the petitioner. In this regard, Sri Parihar has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Dev Prakash Tiwari Vs. Uttar Pradesh Co-operative Institutional Service Board, Lucknow and Ors reported in (2014) 7 SCC 260.

8. Per contra, Sri Lalit Shukla, learned counsel appearing for the respondents Bank argues on the basis of averments contained in the counter affidavit that so far as the impugned order speaks about the directions given by the CVO, the matter had been forwarded to the Corporate Officer for an opinion on the matter in the form of second stage reference wherein the CVO raised questions on the proceedings conducted and as per his advise, fresh inquiry was initiated. Sri Shukla also argues that extremely grave charges were levelled against the petitioner and as the inquiry proceedings had been stayed by this Court and during the said period the petitioner has also retired on attaining the age of superannuation, as such, permission may be granted by this Court even in the absence of the rules to continue with fresh inquiry. However, Sri Lalit Shukla fairly admits that the Memorandum of Agreement does not provide for continuance of a departmental inquiry after retirement.

9. Heard learned counsels for the contesting parties and perused the records.

10. From a perusal of record, it clearly comes out that the petitioner had been initially placed under suspension on 21.02.2011 and thereafter a charge sheet had been issued to him on 10.12.2011 for conduct of disciplinary proceedings. It is also admitted by the parties that the disciplinary proceedings against the petitioner are governed by the Memorandum of Agreement dated 10.04.2002. The first inquiry report submitted against the petitioner was rejected by the disciplinary authority vide his order dated 10.10.2012 and de novo inquiry was directed to be conducted. Though the Memorandum of Agreement does not contemplate any de novo inquiry yet the petitioner participated in the same and subsequent thereto the second inquiry report was also submitted but again the same was rejected by the disciplinary authority vide impugned order dated 30.06.2014. However, the disciplinary authority instead of applying his own mind proceeded further with the matter on the directions of the CVO, as duly finds mentioned in the impugned order dated 30.06.2014 for conduct of de novo inquiry. The impugned order dated 30.06.2014 categorically records that the CVO has directed to conduct the inquiry de novo and without any delay and after legal opinion, an inquiry officer was being appointed to enquire into the charges against the petitioner. Thus, the impugned order gets patently vitiated on the ground that the disciplinary authority has not applied his own mind after receipt of the inquiry report rather proceeded mechanically on the directions issued by the CVO for holding of a fresh inquiry. Here it would be pertinent to mention that as per clarification to Clause 14 of the Memorandum of Agreement dated 10.04.2002, it is the disciplinary authority who is to conduct the inquiry himself or appoint another officer as the inquiry officer for the purpose of conducting the inquiry meaning therby that the decision of conducting the inquiry is to be taken by the disciplinary authority alone by application of his own mind. Thus, any decision taken by the disciplinary authority at the dictates of the CVO would amount to non application of mind by the disciplinary authority.

11. It is settled proposition of law that where a competent authority proceeds to pass an order not by application of his own mind rather at the dictates of another authority, it would be deemed that there is patent non application of mind. In this regard, the Court may refer to the judgment of the Hon'ble Supreme Court in the case of Anirudhsinghji Karansinghji Jadeja v. State of Gujarat reported in 1995 (5) SCC 302 wherein Hon'ble the Supreme Court has held that where an authority has been vested with a jurisdiction, he has to exercise the said jurisdiction according to his own discretion, but if the discretion is exercised under the direction or in compliance with some other authority's instruction, then it will be a case of failure to exercise the discretion altogether. For the sake of convenience, the relevant observations of the Hon'ble Supreme Court are reproduced as under:-

"This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether. In other words, the discretion vested in the DSP in this case by Section 20A (1) was not exercised by the DSP at all.

12. Reference may be made in this connection to Commissioner of Police vs. Gordhandas Bhanji, 1952 SCR 135, in which the action of Commissioner of Police in cancelling the permission granted to the respondent for construction of cinema in Greater Bombay at the behest of the State Government was not upheld, as the concerned rules had conferred this power on the Commissioner, because of which it was stated that the Commissioner was bound to bear his own independent and unfettered judgment and decide the matter for himself, instead of forwarding an order which another authority had purported to pass.

13. It has been stated by Wade and Forsyth in 'Administrative Law', 7th Edition at pages 358 and 359 under the heading 'SURRENDER, ABDICATION, DICTATION' and sub- heading "Power in the wrong hands" as below:-

"Closely akin to delegation, and scarcely distingushable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with some one else, or may allow some one else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them.....".

"Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise....".

14. The present was thus a clear case of exercise of power on the basis of external dictation. That the dictation came on the prayer of the DSP will not make any difference to the principle. The DSP did not exercise the jurisdiction vested in him by the statute and did not grant approval to the recording of information under TADA in exercise of his discretion."

12. Accordingly, when the impugned order is tested on the touch stone of the law laid down by the Hon'ble Supreme Court in the case of Anirudhsinghji Karansinghji Jadeja (supra) read with Clause 14 explanation of the Memorandum of Agreement what the Court finds is that there is patent non application of mind on the part of the disciplinary authority while directing for inquiring into the charges as levelled through a charge sheet dated 10.12.2011. Thus, the impugned order dated 30.06.2014 is patently vitiated on this score alone and accordingly merits to be quashed.

13. Another aspect of the matter is that the disciplinary proceedings as were sought to be initiated against the petitioner by means of the impugned order have been stayed by this Court. In the interregnum period the petitioner has also retired on attaining the age of superannuation on 31.12.2017. The Memorandum of Agreement does not provide for continuance of an inquiry after retirement.

14. It is settled proposition of law that there has to be a provision for conducting a disciplinary enquiry after retirement. As the Memorandum of Agreement does not contain any such provisions nor Sri Lalit Shukla, learned counsel appearing for the respondents has shown any provision under the Memorandum of Agreement of continuing with the inquiry even after retirement, consequently no inquiry after retirement of the petitioner can be permitted. In this regard, reliance may be placed upon the decision of the Hon'ble Supreme Court in the case of Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and Ors reported in (1999) 3 SCC 666 wherein the Hon'ble Supreme Court has held has under:-

"6. It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of departmental enquiry after superannuation.

7. In view of the absence of such provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.95, there was no authority vested in the Corporation or continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."

15. Likewise, the Hon'ble Supreme Court in the case of Dev Prakash Tewari (supra) has held as under:-

5. We have carefully considered the rival submissions. The facts are not in dispute. The High Court while quashing the earlier disciplinary proceedings on the ground of violation of principles of natural justice in its order dated 10.1.2006 granted liberty to initiate the fresh inquiry in accordance with the Regulations. The Appellant who was reinstated in service on 26.4.2006 and fresh disciplinary proceeding was initiated on 7.7.2006 and while that was pending, the Appellant attained the age of superannuation and retired on 31.3.2009. There is no provision in the Uttar Pradesh Co-operative Employees Service Regulations, 1975, for initiation or continuation of disciplinary proceeding after retirement of the Appellant nor there is any provision stating that in case misconduct is established a deduction could be made from his retiral benefits.

6. An occasion came before this Court to consider the continuance of disciplinary inquiry in similar circumstance in Bhagirathi Jena's case (supra) and it was laid down as follows:

5. Learned Senior Counsel for the Respondents also relied upon Clause (3) (c) of Regulation-44 of the Orissa State Financial Corporation Staff Regulations, 1975.It reads thus:

When the employee who has been dismissed, removed or suspended is reinstated, the Board shall consider and make a specific order:

(i) Regarding the pay and allowances to be paid to the employee for the period of his absence from duty, and

(ii) Whether or not the said period shall be treated as a period on duty.

6. It will be noticed from the abovesaid Regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation.

7. In view of the absence of such a provision in the abovesaid Regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the Appellant.There is also no provision for conducting a disciplinary enquiry after retirement of the Appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the Appellant had retired from service on 30.6.95 there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the Appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the Appellant was entitled to full retiral benefits on retirement.

7. In the subsequent decision of this Court in U.P. Coop. Federation case (supra) on facts, the disciplinary proceeding against employee was quashed by the High Court since no opportunity of hearing was given to him in the inquiry and the management in its appeal before this Court sought for grant of liberty to hold a fresh inquiry and this Court held that charges levelled against the employee were not minor in nature, and therefore, it would not be proper to foreclose the right of the employer to hold a fresh inquiry only on the ground that the employee has since retired from the service and accordingly granted the liberty sought for by the management. While dealing with the above case, the earlier decision in Bhagirathi Jena's case (supra) was not brought to the notice of this Court and no contention was raised pertaining to the provisions under which the disciplinary proceeding was initiated and as such no ratio came to be laid down. In our view the said decision cannot help the Respondents herein.

8. Once the Appellant had retired from service on 31.3.2009, there was no authority vested with the Respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the Appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the Appellant was entitled to get full retiral benefits."

16. Accordingly, keeping in view the aforesaid discussion, the writ petition deserves to be allowed. A writ of certiorari is issued quashing the impugned order dated 30.06.2014 passed by the respondent no. 2, a copy of which is contained as annexure SA 1 to the supplementary affidavit.

17. Consequences to follow.

Order Date :- 8.5.2019

Pachhere/-

(Abdul Moin ,J)