Yashwant Singh vs State Of U.P. And 3 Others
2019 Latest Caselaw 4399 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 

 
Case :- WRIT - A No. - 5638 of 2019
 

 
Petitioner :- Yashwant Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Manoj Yadav,Kunwar Bahadur Srivastava
 
Counsel for Respondent :- C.S.C., Abhishek Misra
 

 
Hon'ble Manoj Kumar Gupta,J.

Heard counsel for the petitioner, learned Standing Counsel for respondent No.1 and Sri Abhishek Misra for respondents 2, 3 and 4. With their consent, the instant petition is being disposed of finally at this stage itself.

The petitioner was posted as Branch Manager of District Cooperative Bank Ltd. Kanpur, Branch Rajpur. He was placed under suspension by order dated 20.7.2018 passed by the second respondent. The petitioner was served with a charge sheet dated 12.9.2018 on 19.9.2018. The allegation against the petitioner was that he, in collusion with the cashier of the Bank, had transferred various amount from the accounts of different account holders to the account of other persons and have thus misappropriated these amounts, resulting in lowering of the image and reputation of the Bank. The petitioner replied to the charges by submitting reply on 3.10.2018 in which the main defence was that these entries came to be made on account of technical and clerical mistake but as soon as the said fact came to the notice of the petitioner, the entries were reversed and that thereby no loss has been caused to any account holder nor any amount has been misappropriated. After the petitioner submitted the reply, no date was fixed for oral hearing nor opportunity was given to the petitioner to lead evidence in support of his defence. The enquiry officer straight away submitted his report dated 5.10.2018 opining that the charges stand proved. The petitioner was issued a show cause notice on 27.12.2018. He replied to it on 4.1.2019. Thereafter, the Committee of Management of the Bank in its meeting dated 15.10.2018 vide resolution No.2 resolved to dismiss the petitioner from service. The Board accorded approval to the same and thereafter the order of dismissal was communicated to the petitioner by the second respondent by impugned order dated 28.3.2019.

On 7.5.2019, the following order was passed :-

"The submission is that the service of the petitioner has been terminated without holding proper enquiry. The petitioner had duly replied to the charges but thereafter no oral enquiry was held. The petitioner was not given any opportunity to lead evidence in defence. The report submitted by the department stating that all the charges stand proved was taken as gospel truth in terminating the service of the petitioner.

Sri Abhishek Misra, learned counsel appearing on behalf of the respondent-Bank undertakes to produce the original record before this Court on the next date.

Put up as fresh on 13 May 2019."

In compliance of the said order, Sri Abhishek Misra, learned counsel for the respondent-Bank has produced before this Court, the entire record. The record placed by him contains only the enquiry report dated 5.10.2018, show cause notice dated 27.12.2018, and reply given by the petitioner to the same dated 4.1.2019.

The court pointed out that the documents placed before this Court does not appear to be complete record of the enquiry proceedings. However, Sri Abhishek Misra stated that there is no other record available with the Bank in respect of the disciplinary proceedings. In fact, according to him, the petitioner in his reply virtually admitted the charges, therefore, there was no need of holding any oral enquiry or providing opportunity to the petitioner to lead evidence.

Learned counsel for the petitioner submitted that the procedure adopted by the respondent is wholly illegal and in gross violation of the principles of natural justice. It is urged that under Regulation 85 of U.P. Co-operative Societies Employees Service Regulations, 1975 (hereinafter referred to as 'the Regulation') a detailed procedure for holding disciplinary enquiry is provided, which was not followed.

Relevant part of Regulation 85 is reproduced below :-

85. 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 his appropriate punishment considered necessary."

Admittedly, in the instant case, the petitioner was served with a charge sheet containing specific charges and it mentions the documents and other evidence in support of each charge. The petitioner had replied to the same and as noted above, the defence taken by him was that certain wrong entries came to be made on account of technical fault and clerical error, but which were verified as soon as the mistake was noticed. His further defence was that as a result of wrong entries, no loss has occasioned to any one nor he had embezzled any money. He also specifically denied that as a result thereof, there has been any dent to the image of the bank.

Once the petitioner has submitted his reply and has taken a specific defence that wrong entries came to be made because of technical fault and clerical mistake, it was but necessary for the enquiry officer to have fixed date giving opportunity to the petitioner to produce evidence and witnesses in support of his defence as stipulated under clause (b) of Regulation 85 (i). It is also implicit in the said provision that for bringing home the charges, the department should have led its own evidence. In that event, the petitioner would have got opportunity to cross-examine the witnesses examined by the department. Whereas after the enquiry, if the explanation submitted is found to be unsatisfactory, the competent authority could have proceeded to award punishment. However, in the instant case, admittedly neither any date for oral enquiry was fixed nor the same was held nor even the petitioner was given any opportunity to lead evidence in support of his defence. The respondents have thus failed to observe basic principles of natural justice. The enquiry was concluded in great haste without following the procedure prescribed under the Regulations.

The Supreme Court in the State of Uttar Pradesh v. Saroj Kumar Sinha, (2010) 2 SCC 772, held that :-

"An inquiry 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.

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 inquiry 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."

Again in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570, the Supreme Court reiterated the importance of holding oral enquiry to prove the documents being relied upon in the charge sheet, observing thus :-

"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."

Having regard to the above legal position this Court is of the considered opinion that the enquiry, in the instant case, was just an eye wash. In fact, it could not be said to be an enquiry at all, nor on basis of same, major punishment of dismissal could be awarded. The court is not at all impressed by the submission that the petitioner had admitted the charge, therefore, no further enquiry was necessary. As noted above, the defence taken by the petitioner even if assumed to be a weak one, would not absolve the respondents of the statutory duty to follow the procedure prescribed for holding the enquiry. Consequently, there is no escape from the conclusion that the dismissal order based on such enquiry is rendered vulnerable and is accordingly quashed.

In normal course, since the dismissal order has been held illegal on the ground of breach of principles of natural justice, the necessary consequence would have been to permit respondent no.1 to hold fresh enquiry after following the principles of natural justice but for an important supervening fact i.e., retirement of the petitioner on 30.4.2019, which fact is admitted even to Sri Abhishek Misra, learned counsel for the respondent-bank.

According to learned counsel for the petitioner there is no provision under the Regulation nor under the contract of service or Rules governing the employees of Co-operative Banks which extends the relationship of employer and employee beyond the date of superannuation, in case an enquiry is pending. He submitted that Regulation 351-A of the Civil Service Regulations under which such a course is permissible, is not applicable to the employees of the Cooperative Societies. It is urged that in such circumstances, the disciplinary proceedings cannot continue after retirement of the petitioner. In support of his submission he has placed reliance on judgement of the Supreme Court in Dev Prakash Tewari vs. U.P. Cooperative Institutional Service Board, Lucknow and others, 2014 (7) SCC 260 where the Supreme Court has taken the same view.

Sri Abhishek Misra, learned counsel for the respondent-Bank does not dispute the above legal position. Consequently, the respondents would have no power to hold disciplinary proceedings after retirement of the petitioner.

In consequence, the petition succeeds and is allowed. The impugned order of dismissal dated 28.3.2019 is quashed.

Order Date :- 13.5.2019

skv

(Manoj Kumar Gupta, J.)