Shiv Nath Singh vs Union Of India And 4 Others
2021 Latest Caselaw 11183 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33                                                         AFR
 

 
Case :- WRIT - A No. - 54836 of 2017
 

 
Petitioner :- Shiv Nath Singh
 
Respondent :- Union Of India And 4 Others
 
Counsel for Petitioner :- Dinesh Kumar Yadav,Ashok Khare,Rajeshwar Prasad Sinha,Siddharth Khare
 
Counsel for Respondent :- A.S.G.I.,Gyan Prakash Shrivastava
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. Petitioner was employed as Office Assistant in Kashi Gomti Sanyukt Gramin Bank, Branch Gohana, District Mau. On 25.04.2014 he was placed under suspension alongwith one Chandra Bhanu Singh, Assistant Manager, posted in the same branch. Services of petitioner were governed by Kashi Gomti Sanyukt Gramin Bank (Officers and Employees) Service Regulations, 2010. A charge sheet was issued to petitioner on 07.11.2014 levelling following charges:

"1. निष्ठापूर्वक अपने कर्तव्यों एवं दायित्वों का निर्वहन न करना।

2. बैंक ग्राहकों के खातों में निजी लाभ एवं शाखा के अन्य कार्मिकों को लाभ पहुँचाने के उद्देश्य से धोखाधड़ी एवं कपटपूर्ण प्रवृष्टियॉ करना।

3. बैंक के ग्राहकों एवं बैंक के विश्वास को भंग करते हुए बैंक के ऊपर जानबूझकर आर्थिक क्षति का भार खड़ा करना।

4. काशी गोमती संयुक्त ग्रामीण बैंक (अधिकारी एवं कर्मचारी) सेवा विनियम 2010 के विनियम 18, 20 एवं 27 का उल्लंघन करना।

5. बैंक कर्मचारी होने जैसा कार्य न करना।"

2. Particulars of charges were enclosed with the charge sheet, according to which, petitioner unauthorizedly withdrew a sum of Rs.2,25,000/- from saving bank account no.201400262, belonging to Lavtu Ram, on 24.01.2014 and again on 28.01.2014 a sum of Rs.1,36,789/- was transferred from his account to the account of Chandra Bhanu Singh, who was working as Assistant Manager, in his COD Account No.4020020112. This was done without knowledge and consent of account holder. After complaint of account holder Lavtu Ram the petitioner withdrew a sum of Rs.3,62,000/- from account of one Jai Karan Ram bearing no.201400188 and deposited it in the account of Lavtu Ram on 07.02.2014. It was found that in all three transactions the transfer vouchers, signatures of account holder and details varied. The account holders Lavtu Ram and Jai Karan Ram disputed their signatures on the documents used for such transfer of funds. The act of withdrawing Rs.3,62,000/- from account of Jai Karan Ram was a fraudulent transaction performed by the petitioner for causing loss to the bank and also breached the trust reposed by account holders in the bank and its authorities. It was also found that the amounts deposited in the account of Assistant Manager Chandra Bhanu Singh was diverted in his provident fund loan account. These transactions were allegedly performed by the petitioner.

3. The second incident/transaction was of withdrawing Rs.2,05,000/- on 04.02.2014 and Rs.27,000/- on 06.02.2014 from the accounts of Jai Prakash Yadav and Imtiyaz Ahmad and depositing it in the account of petitioner without consent and knowledge of the account holder. These transactions were absolutely fraudulent, without consent of the account holders and allegedly breached the trust imposed by the bank in the petitioner.

4. The third charge was of unauthorized withdrawal of Rs.604 expenditure towards news account.

5. The charges were denied by the petitioner and a detailed enquiry followed which has culminated in submission of enquiry report dated 30.09.2015, contained in Annexure-17 to the writ petition.

6. On the first charge the Enquiry Officer held that transfer of funds from the saving bank account of account holder without his consent and knowledge, and transferring it to the account of Chandra Bhanu Singh is clearly a deliberate and intentional act contrary to the service rules and the specific instructions of the bank, and is wholly unbecoming of a bank employee in view of the regulations 18, 20 and 27 of the Service Regulations of 2010. The second charge of transferring funds in the account of petitioner himself, in similar fashion, is also found violative of regulation 27. The third charge was also found proved. In view of such conclusions drawn the enquiry report was forwarded to the disciplinary authority by the Enquiry Officer.

7. A show cause notice thereafter was issued to petitioner on 10.03.2016. The disciplinary authority after examining the charges and evidences led in the enquiry prima facie found the charges to be proved. The show cause notice also indicated the punishment proposed to be given to the petitioner. A reply to such notice was submitted on 11.04.2016. The disciplinary authority, however, did not find substance in the defence of the petitioner to the show cause notice and vide order impugned dated 09.06.2017 dismissed the petitioner from service. Aggrieved by the order of dismissal the petitioner is before this Court.

8. Order of dismissal is assailed on the following grounds:

(i) It is urged that enquiry was initiated in respect of the same transaction against three persons, namely, the petitioner, Chandra Bhanu Singh and Brijendra Kumar Singh, Branch Manager, but instead of holding a composite enquiry separate enquiries were conducted which has resulted in distinct punishment being offered to the officers charged of misconduct in respect of the same transaction.

(ii) It is also contended that enquiry proceedings were not conducted in a fair and transparent manner, particularly on account of distinct enquiries being conducted against officers charged of same misconduct and the account holders were also not produced in evidence.

(iii) It is next contended that show cause notice issued to petitioner on 11.03.2016 was a farce as the disciplinary authority had already made up its mind to dismiss the petitioner even before issuing the show cause notice.

(iv) A grievance is also raised about denial of opportunity to make representation against the findings of Enquiry Officer which has resulted in denial of fair opportunity to the petitioner. Reliance is placed upon para 26 of the judgment of Supreme Court in the case of H P State Electricity Board Limited vs. Mahesh Dahiya, (2017) 1 SCC 768.

(v) It is lastly urged that punishment imposed upon the petitioner is excessive and is also discriminatory inasmuch as the Branch Manager Brijendra Kumar Singh for his misconduct based on same transaction has been awarded punishment of reduction by one stage in time scale of pay, with cumulative effect, while petitioner has been dismissed from service.

9. A counter affidavit has been filed on behalf of the respondent Bank disputing the assertions made in the writ petition. It is submitted on behalf of the respondents that a fair and transparent process was evolved for enquiry and that holding of separate enquiry has neither vitiated the enquiry proceedings nor any prejudice was otherwise caused to the petitioner for such reasons. It is also urged that transactions may have been same but the charges against the petitioner are separate and distinct from the charges levelled against the Branch Manager, which is essentially in nature of supervisory lapse whereas petitioner's act is deliberate and intentional with an intent to defraud the bank/account holders and to derive unfair advantage. It is also pointed out that Chandra Bhanu Singh, who was also a beneficiary of transaction has also been dismissed from service. It is also argued that considering seriousness of charges levelled against the petitioner as also the materials placed before the enquiry to prove petitioner's guilt no interference in the writ petition is warranted.

10. I have heard Sri Ashok Khare, learned Senior Counsel assisted by Sri D. K. Yadav for the petitioner, Sri Gyan Prakash Srivastava, learned counsel for the respondent Bank and have perused the materials brought on record.

11. So far as the first submission advanced on behalf of the petitioner is concerned, records clearly reveal that the transaction giving rise to the disciplinary proceedings against three officers/employees of the bank were same, but the charges were distinct. The charge sheet issued to Chandra Bhanu Singh has not been placed on record but it is admitted that he was also dismissed from Service. The petitioner has essentially sought parity with Brijendra Kumar Singh and his charge sheet has also been brought on record vide counter affidavit in which particulars of incident is the same. However, the charges against Brijendra Kumar Singh are clearly distinct as would be apparent from comparison of Annexure-2 to the writ petition and Annexure-2 to the counter affidavit. Though the same transactions formed the basis of disciplinary action against both but the charges against Branch Manager were clearly distinct. The specific charges against the Branch Manager were as under:

"1. निष्ठापूर्वक अपने कर्तव्यों एवं दायित्वों का निर्वहन न करना।

2. काशी गोमती संयुत ग्रामीण बैंक (अधिकारी एवं कर्मचारी) सेवा विनियम 2010 के विनियम 18, 20 एवं 27 का उल्लंघन करना।

3. बैंक अधिकारी होने जैसा कार्य न करना।"

12. There was no charges against Brijendra Kumar Singh, Branch Manager, of fraudulent conduct by wrongfully withdrawing amounts from the saving accounts of account holders and crediting it in the account of petitioner and Chandra Bhanu Singh. The charges of loss of confidence for causing financial loss to the bank is also not the charge against the Branch Manager. The petitioner cannot assert that merely because transaction giving rise to distinct charge was the same, therefore, non-holding of composite enquiry has caused any prejudice to the petitioner. The object of disciplinary enquiry is to ascertain facts with an object to determine whether charges against delinquent employee are proved or not? Procedure for enquiry is by now well established to enable the delinquent employee to defend himself in a fair and transparent enquiry proceedings. Unless delinquent employee can demonstrate that holding of separate enquiry has actually prejudiced the employee on account of reasons as contradictory conclusions etc. on the same issue or any other specific prejudice is shown the holding of separate enquiries in itself may not be bad.

13. A Division Bench of this Court in Neeraj Kumar Dixit vs. Union of India and others, 2014 (3) ADJ 586 had occasion to examine a similar issue and proceeded to hold as under in paragraph nos.16 to 19 of the judgment:

"16. In light of the aforesaid facts, we have examined the next contention of the petitioner that holding of separate enquiry has prejudiced him. It is admitted that the charge levelled against the petitioner, of unauthorizedly sanctioning overdraft, without any existing arrangement and approval of competent authority, is specific to petitioner himself. This charge is not levied against any other officer. The petitioner is a field officer and the nature of duties assigned to him is separate and distinct. The other officers, senior to the petitioner, essentially had supervisory functions to perform and the fact of purchase of bills had been clearly intimated by them to the higher authorities. In such circumstances, the petitioner cannot claim that he is similarly placed, merely because the transaction, giving rise to the misconduct, is the same.

17. A specific transaction may give rise to different nature of misconduct, for different officials, depending upon their duties and nature of responsibility. Even imposition of separate penalty, arising out of similar charge can also be justified depending upon nature of duties and responsibilities to be performed. The Apex Court in Akhilesh Kumar Singh vs. State of Jharkhand reported in (2008) 2 SCC 74 observed that quantum of punishment imposed on a delinquent employee by the appointing authority, however, depends upon several factors. Conduct of delinquent officer as also the nature of charges, play a vital role in this behalf.

18. In a subsequent decision of the Apex Court in Administrator, Union Territory of Dadra and Nagar Haveli vs. G.M. Lad reported in (2010) 5 SCC 775, which related to levy of different punishments against different officers subjected to a joint enquiry was also held to be valid. It was held that if the nature of charges were not exactly identical or substantially similar then no fault can be found with imposition of separate penalty.

19. Since in the present case, the nature of duty of the petitioner as well as charges levelled against him is different, therefore, the petitioner cannot claim parity with others. We, therefore, cannot accept the argument of Sri Khare that petitioner was discriminated on account of imposition of penalty of dismissal."

14. In the facts and circumstances of the present case also a detailed departmental enquiry has been conducted against the petitioner in which all materials in support of the charges levelled against him has been furnished to him and he has been given the right to cross-examine the witnesses. The allegation that saving bank accounts of other persons were operated and funds were diverted to the account of petitioner and a fellow bank employee is an extremely serious charge, which are found proved against the petitioner. The Enquiry Officer has categorically found that without consent and knowledge of account holder Lavtu Ram the petitioner credited amount in the account of fellow bank employee Chandra Bhanu Singh and that upon objection raised by Lavtu Ram in respect of such fraudulent transaction the petitioner debited account of one Jai Karan Ram on 07.02.2014 again without his consent and knowledge. The account holders Lavtu Ram and Jai Karan Ram have denied their signatures on debit vouchers of the respective account. Signatures on the debit vouchers have also not matched with admitted signatures of the account holders. The diversion of funds for adjusting provident fund loan account of Chandra Bhanu Singh and another employee resulting in customers being defrauded of an amount of Rs.3,62,000/- without their consent and knowledge is found proved. The conclusions drawn by the Enquiry Officer are clearly shown to be based on materials on record. Sufficiency or otherwise of the evidence need not be commented upon by this Court once material in respect of the conclusions drawn is otherwise reflected on record. Petitioner's reply that postings were done on the asking of Chandra Bhanu Singh has been disbelieved for valid reasons. The further defence that petitioner was not aware of the incorrect description in the transfer vouchers has also been disbelieved with a categorical finding returned that posting in ME 2/24-27 was by the petitioner himself.

15. In Tara Chand Vyas v. Chairman and Disciplinary Authority, (1997) 4 SCC 565, the Supreme Court observed as under in para 3:

"3. Shri B.D. Sharma, learned counsel for the petitioner, contends that for proof of the charges none of the witnesses was examined nor any opportunity was given to cross-examine them and the petitioner has disputed his liability. As a consequence, the entire enquiry was vitiated by manifest error apparent on the face of the record. We find no force in the contention. The thrust of the imputation of charges was that he had not discharged his duty as a responsible officer to safeguard the interest of the Bank by securing adequate security before the grant of the loans to the dealers and had not ensured supply of goodsto the loanees. It is based upon the documentary evidence which has already been part of the record and copies thereof had been supplied to the petitioner. Under those circumstances, we do not think that there is any manifest error apparent on the face of the record warranting interference.------"

(Emphasis supplied)

16. In Chairman & Managing Director, United Commercial Bank and others vs. P. C. Kakkar, (2003) 4 SCC 364, the standard of honesty and integrity required from a bank officer has been emphasized in para 14, which is reproduced hereinafter:

"14. A bank officer is required to exercise higher standards of honesty and integrity. He deals with the money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager vs. Nikunja Bihari Patnaik, it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court."

(Emphasis supplied)

17. Similar view has been expressed in UCO Bank and another vs. Rajinder Lal Copoor, (2007) 6 SCC 694.

18. In view of the fact that charges of misconduct attributed to petitioner are distinct and much more serious, holding of a separate enquiry against him would not be bad. Even otherwise, Service Regulations of 2010 merely enables holding of common enquiry on the basis of an order passed by the Chairman and is neither mandatory nor can be claimed as a matter of right. Regulation 42 of the Regulations of 2010 is relevant for the present purposes and is reproduced hereinafter:

"42. Common enquiry. - Notwithstanding anything contained in these regulations, if two officers in different grades or an officer and an employee are involved jointly in an incident and disciplinary proceedings are sought to be instituted against both of them and the Chairman is of the opinion that having regard to the facts and circumstances of the case, the Competent Authority in respect of both the officer and employee should be the same, the Chairman may direct that the Competent Authority in respect of the officer shall be held into the charges against both of them."

19. The above provision clearly reveals that holding of common enquiry is left to the discretion of the Chairman, if he is of the opinion that having regard to the facts and circumstances of the case where competent authority in respect of both the officer and employee are not the same may also direct the competent authority in respect of the officer to conduct enquiry against him involved in the matter. The above extracted provision does not suggest that it is mandatory or obligatory for the disciplinary authority or the enquiry officer to necessarily conduct a common enquiry just because transactions constituting substance of charge is one of the same. It is always open for the employer to determine whether a common enquiry ought to be conducted in the matter or not. The plea of prejudice will have to be necessarily established by the employee if he has to successfully contend that non holding of common enquiry has affected outcome of disciplinary proceedings. No such prejudice is shown to have occurred in the facts of the present case. Substance of charge otherwise was distinct. The argument of Sri Khare that non holding of common enquiry has vitiated the enquiry proceedings, therefore, must fail.

20. The second limb of petitioner's submission that disciplinary enquiry was not fair and proper on account of non holding of common enquiry is again not liable to be accepted in view of the findings specifically returned while answering the previous issue formulated for consideration in the matter. The disciplinary enquiry has been initiated in accordance with Regulations of 2010 and the procedure stipulated therein has been followed. Though it is urged that enquiry is not fair and proper but no specific ground is substantiated to support the petitioner's challenge in that regard. It is otherwise not disputed that petitioner has been furnished all materials that have relied upon against him and that he has been given right to cross-examine the witnesses. The finding returned by the Enquiry Officer on the basis of materials placed on record against the petitioner otherwise is not shown to be perverse or erroneous. The test to withstand enquiry is preponderance of probability on the admitted material placed on record. On such yardstick if the facts of the present case are examined it is abundantly clear that enquiry conducted against the petitioner is fair and transparent and is in accordance with the principles of natural justice wherein the charges are found proved. The second contention advanced on behalf of the petitioner is also liable to be rejected.

21. Sri Ashok Khare, learned senior counsel for the petitioner has laid much emphasis in his argument that the disciplinary authority had formed opinion to dismiss the petitioner on the basis of findings returned by the Enquiry Officer without right of representation to the petitioner to object to the enquiry report. This contention is advanced with reference to the specific assertions made in the show cause notice, which would suggest that disciplinary authority examined report of the Enquiry Officer and had referred to the charges as also the evidence adduced before indicating proposed punishment to be awarded to the petitioner. Reliance is heavily placed upon para 26 of the judgment of the Supreme Court in the case of Mahesh Dahiya (supra), which is reproduced hereinafter:

"26. Both the learned Single Judge and the Division Bench have heavily relied on the fact that before forwarding the copy of the report by letter dated 02.04.2008 the Disciplinary Authority-cum-Whole Time Members have already formed an opinion on 25.02.2008 to punish the writ petitioner with major penalty which is a clear violation of principle of natural justice. We are of the view that before making opinion with regard to punishment which is to be imposed on a delinquent, the delinquent has to be given an opportunity to submit the representation/reply on the inquiry report which finds a charge proved against the delinquent. The opinion formed by the Disciplinary Authority-cum-Whole Time Members on 25.02.2008 was formed without there being benefit of comments of the writ petitioner on the inquiry report. The writ petitioner in his representation to the inquiry report is entitled to point out any defect in the procedure, a defect of substantial nature in appreciation of evidence, any misleading of evidence both oral or documentary. In his representation any inputs and explanation given by the delinquent are also entitled to be considered by the Disciplinary Authority before it embarks with further proceedings as per statutory rules. We are, thus, of the view that there was violation of principle of natural justice at the level of Disciplinary Authority when opinion was formed to punish the writ petitioner with dismissal without forwarding the inquiry report to the delinquent and before obtaining his comments on the inquiry report. We are, thus, of the view that the order of the High Court setting aside the punishment order as well as the Appellate order has to be maintained."

22. Reliance is also placed upon a judgment of this Court in Smt. Manjesh Kumari vs. State of U.P. and others being Writ Petition No.16829 of 2018, decided on 03.09.2021, in which judgment of the Supreme Court in Mahesh Dahiya (supra) has been relied upon in following words:

"The essence of Mahesh Dahiya is a reiteration of the well settled principle that the delinquent employee is entitled to an opportunity to establish and prove before the Disciplinary Authority that the findings of guilt as recorded by the Enquiry Officer are not liable to be accepted. That is the quintessential purpose for the Disciplinary Authority being required to forward a copy of the enquiry report to the employee. At that stage and before the employee has had an occasion to respond to the report, the Disciplinary Authority must establish that the issue of guilt was one which is open for consideration and dependent upon the response that the employee is yet to furnish. The Authority in any case cannot proceed as if the issue is already predetermined. That would clearly render the opportunity of hearing as provided to the employee wholly otiose and meaningless. The question of punishment which is liable to be ultimately imposed likewise must be one which is established to be an issue which awaits consideration of the reply of the employee. A delinquent employee must not get the impression that his furnishing of a reply to the show cause notice will be an empty formality and the delinquent employee facing what the Supreme Court chose to describe as the "impenetrable fortress of prejudged opinion" in Oryx Fisheries Private Limited Vs. Union of India [(2010) 13 SCC 427]. If these inherent inhibitions were to be ignored it would inevitably lead to an allegation of bias being levelled on the part of the Disciplinary Authority.

Tested in the above light, it is manifest that the impugned action of the respondents cannot be sustained. The Disciplinary Authority had not only prejudged the issue of guilt but also the quantum of punishment which was liable to be imposed. In view of the aforesaid, this Court is of the firm opinion that the matter would have to be remitted to the Disciplinary Authority to redraw proceedings from the stage of receipt of the enquiry report and the issuance of the show cause notice forwarding the same to the petitioner. "

23. On behalf of the respondent Bank, however, reliance is placed upon subsequent judgment of the Supreme Court in Bolaram Bardoloi vs. Lakhimi Gaolia Bank and others, (2021) 3 SCC 806. In para 7 of the judgment the Supreme Court has been pleased to recognize the right of the disciplinary authority to arrive at a tentative conclusion of proposed punishment while enclosing copy of the enquiry report in following words:

"7. The appellant was working as a Manager of the respondent­bank. A perusal of the charges, which are held to be proved by the Enquiry Officer, reveal that he has sanctioned and disbursed loans without following the due procedure contemplated under law and also there are allegations of misappropriation, disbursing loans irregularly in some instances to (a) units without any shop/business; (b) more than one loan to members of same family etc. The Enquiry Officer, after considering oral and documentary evidence on record, has held that all the charges are proved. Based on the findings recorded by Enquiry Officer, the disciplinary authority has tentatively decided to impose punishment of compulsory retirement. Disciplinary authority has issued show cause notice dated 30.07.2005 by enclosing a copy of the enquiry report. In response to the show cause notice, the appellant has submitted his comments vide letter dated 16.08.2005 indicating that due to work pressure some operational lapses have occurred. Further he has also pleaded that if the bank has sustained any loss due to his fault, he is ready to bear such loss from his own source. After filing the response to the show cause notice, order is passed by disciplinary authority imposing punishment of compulsory retirement. After Enquiry Officer records his findings, it is always open for the disciplinary authority to arrive at tentative conclusion of proposed punishment and it can indicate to the delinquent employee by enclosing a copy of the enquiry report. Though the learned counsel for the appellant has argued that even before tentative conclusion is arrived at by the disciplinary authority, the enquiry report has to be served upon him, but there is no such proposition laid down in the judgment of this Court in the case of Managing Director, ECIL, Hyderabad (supra). In the aforesaid judgment of this Court it is held that delinquent employee is entitled to a copy of the enquiry report of the enquiry officer before the disciplinary authority takes a decision on the question of guilt of the delinquent. Merely because a show cause notice is issued by indicating the proposed punishment it cannot be said that disciplinary authority has taken a decision. A perusal of the show cause notice dated 30.07.2005 itself makes it clear that along with the show cause notice itself enquiry report was also enclosed. As such, it cannot be said that the procedure prescribed under the rules was not followed by respondent­bank. We are of the view that the judgment of this Court in the case of Managing Director, ECIL, Hyderabad (supra) is not helpful to the case of the appellant. Further, it is well settled that if the disciplinary authority accepts the findings recorded by the Enquiry Officer and passes an order, no detailed reasons are required to be recorded in the order imposing punishment. The punishment is imposed based on the findings recorded in the enquiry report, as such, no further elaborate reasons are required to be given by the disciplinary authority. As the departmental appeal was considered by the Board of Directors in the meeting held on 10.12.2005, the Board's decision is communicated vide order dated 21.12.2005 in Ref. No.LGB/I&V/Appeal/31/02/2005­06. In that view of the matter, we do not find any merit in the submission of the learned counsel for the appellant that orders impugned are devoid of reasons."

The Court also observed as under in para 8:

"8. Even, the last submission of the learned counsel for the appellant that the punishment imposed is disproportionate to the gravity of charges, also cannot be accepted. The charges framed against the appellant in the departmental enquiry are serious and grave. If we look at the response, in his letter dated 16.08.2005, to the show cause notice issued by the disciplinary authority, it is clear that he has virtually admitted the charges, however, tried to explain that such lapses occurred due to work pressure. Further he went to the extent of saying - he is ready to bear the loss suffered by the bank on account of his lapses. The manager of a bank plays a vital role in managing the affairs of the bank. A bank officer/employee deals with the public money. The nature of his work demands vigilance with the in­built requirement to act carefully. If an officer/employee of the bank is allowed to act beyond his authority, the discipline of the bank will disappear. When the procedural guidelines are issued for grant of loans, officers/employees are required to follow the same meticulously and any deviation will lead to erosion of public trust on the banks. If the manager of a bank indulges in such misconduct, which is evident from the charge memo dated 18.06.2004 and the findings of the enquiry officer, it indicates that such charges are grave and serious. Inspite of proved misconduct on such serious charges, disciplinary authority itself was liberal in imposing the punishment of compulsory retirement. In that view of the matter, it cannot be said that the punishment imposed in the disciplinary proceedings on the appellant, is disproportionate to the gravity of charges. As such, this submission of the learned counsel for the appellant also cannot be accepted."

24. The judgments of the Supreme Court in Mahesh Dahiya (supra) and Bolaram Bardoloi (supra) have again been examined by the Supreme Court in Chief General Manager, State of India vs. V. P. Srivastava being Civil Appeal No.4755 of 2021, decided on 12.08.2021 and the judgment in Mahesh Dahiya (supra) has been distinguished as laying down law on facts of its own. The Court proceeded to observe as under:

"We have also gone through the objections taken by the respondent in the departmental appeal. We find no grounds of any procedural irregularity vitiating the inquiry. As observed earlier, the respondent had cross examined witnesses also. The order of the Appellate Authority adequately notices that the opening of the account of M/s. Sunrise International was not bona fide, because the introducer of the account had deposed in the inquiry that he did not know the proprietor of M/s. Sunrise International and he had introduced the accounts at the behest of the respondent. Similarly in the case of M/s. Sharda Transport Company, the respondent admitted that the procedures for opening an account were not followed by him and they were not even complied with subsequently.

Mahesh Dahiya (supra), relied upon by Shri Mishra, is distinguishable on its own facts. A decision to terminate had already been taken without having the benefit of comments from the delinquent and because of which it was held that issuance of the notice for termination on a preconceived opinion was bad in the law. In that context it was held that there was violation of the principle of natural justice by the disciplinary authority when opinion was formed to punish without forwarding the inquiry report to the delinquent for obtaining his comments.

In Allahabad Bank (supra), after recording that a writ court should be slow in interfering with finding of facts recorded in departmental proceedings on the basis of evidence available on record, it was concluded that there had been grave procedural irregularities in the conduct of the proceedings as the delinquent was not given a fair chance to lead evidence in defence. It was in that background that this Court came to the conclusion that failure to deal with the objections to the inquiry report by the disciplinary authority would vitiate the final order.

At this stage, we consider it very necessary to take note of certain observations in Boloram (supra) with regard to the post that the respondent held, of public trust, dealing with public money as follows :

"13. The manager of a bank plays a vital role in managing the affairs of the bank. A bank officer/employee deals with the public money. The nature of his work demands vigilance with the inbuilt requirement to act carefully. If an officer/employee of the bank is allowed to act beyond his authority, the discipline of the bank will disappear. When the procedural guidelines are issued for grant of loans, officers/employees are required to follow the same meticulously and any deviation will lead to erosion of public trust on the banks. If the Manager of a bank indulges in such misconduct, which is evident from the charge memo dated 18.06.2004 and the findings of the enquiry officer, it indicates that such charges are grave and serious. In spite of proved misconduct on such serious charges, disciplinary authority itself was liberal in imposing the punishment of compulsory retirement. In that view of the matter, it cannot be said that the punishment imposed in the disciplinary proceedings on the appellant, is disproportionate to the gravity of charges. As such, this submission of the learned counsel for the appellant also cannot be accepted." In the result, the order of the High Court is held to be not sustainable and is set aside. The appeal is allowed."

25. In the facts of the present case the disciplinary authority appears to have taken note of the findings returned by the Enquiry Officer with an intent to form his prima facie satisfaction for issuing show cause notice while specifying the proposed punishment. The object of notice apparently was to acquaint the delinquent employee with the findings of the Enquiry Officer so that he may submit his explanation considering the fact that the charges were serious against bank employee. The course adopted in that regard cannot be said to be violative of principles of natural justice in view of what has been observed by the Supreme Court in the case of Bolaram Bardoloi (supra). The judgment in the case of Mahesh Dahiya (supra) has otherwise been found to be on facts of its own and has been distinguished by the Supreme Court in the case of Chief General Manager, State Bank of India (supra).

In light of the above discussions it is held that the show cause notice is not vitiated for the reasons urged by the petitioner and the challenge laid in that regard accordingly fails.

26. This takes the Court to the last issue i.e. proportionality of punishment imposed as also the plea of discrimination based upon the punishment awarded to Branch Manager Brijendra Kumar Singh, who has been let off with lesser punishment. It has already been noticed that the charge against the Branch Manager and the petitioner were quite distinct. There was no allegation of fraudulent withdrawal of money from other account holders and the charge on part of the Branch Manager is clearly distinct from such serious charges levelled against the petitioner. It is otherwise settled that in respect of same transaction distinct punishment can always be imposed upon delinquent employee based upon the nature of guilt attributed and established on part of the employee concerned. Law is settled that distinct allegations against employee charged in the same transaction would be justified being based on a valid classification and no perversity or arbitrariness can be alleged in the process.

27. In view of the above deliberations and discussions, this petition fails and is, accordingly, dismissed.

Order Date :- 05.10.2021

Ashok Kr.