Sh. Chander Prakash vs Reserve Bank Of India And Ors.
2013 Latest Caselaw 1776 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 1819/2004
%                                                         22nd April, 2013

SH. CHANDER PRAKASH                                  ......Petitioner
                 Through:                Mr. B.B. Sawhney, Senior Advocate with
                                         Mr. Sunil Kumar, Advocate.


                            VERSUS

RESERVE BANK OF INDIA AND ORS.                      ...... Respondents

Through: Mr. K.N. Bhat, Senior Advocate with Mr. H.S. Parihar, Advocate and Mr. K.S.

Parihar, Advocates for R-1.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?    Yes.


VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by the petitioner Sh. Chander Prakash

impugning the orders passed by the Departmental Authorities viz the Disciplinary

Authority and the Appellate Authority whereby the petitioner has been imposed the

punishment as under:-

"(i) In terms of Regulation 7 of Reserve Bank of India Pension Regulations, 1990, the pension of Shri Chander Prakash, Assistant Treasurer (Retired) be withdrawn by 50% of his basic pension for a period of three (3) years from the date of passing the final order i.e March 11, 2003. The dearness relief will be payable to him on 50% amount of basic pension. After the expiry of the said period of 3 years from the date of

passing of final orders, he will be eligible to draw normal pension with dearness relief admissible under the provisions of Reserve Bank of India Pension Regulations, 1990.

(ii) An amount of Rs.2,00,000/- (Rupees two lakh only) being part of pecuniary loss caused to the Bank, be recovered from the ROCM."

2. The charge which was held against the petitioner was that the

petitioner was found guilty of gross negligence in the discharge of his duties while

working in Chest Note Vault No.1 leading to abstractions/pilferage of three

bundles of Rs. 500/- denomination notes thereby acted in a manner detrimental to

the interest of the Bank and causing pecuniary loss of Rs. 15,00,000/- to the bank.

The aforesaid charge was on the basis of the following facts:-

"i) On 3rd July 1999 a remittance, in 12 boxes, was received in Chest Note Vault No.1 from Oriental bank of Commerce, Adarsh Nagar, Jalandhar. Five boxes from this remittance were opened on 6 th July 1999 and after preliminary verification a part of the remittance composing 150 bundles of Rs. 500/- denomination were kept in bin No. 265-R-4.

ii) Shri Chander Prakash was working as Assistant Treasurer for the purpose of guiding the regular Assistant Treasurer Smt. Chitra Rani Gupta, in the Chest Vault No.1 of Issue Department, Reserve Bank of India, New Delhi on 6th July 1999.

iii) During the course of special physical verification of the note balances held in the Chest Note Vault No.1, carried out on 20 th December 2001 in the presence of chest representative of Oriental bank of Commerce, Adarsh Nagar, Jalandhar Currency Chest, it was found that the bin No. 265-R-4 contained 147 bundles of Rs. 500/-(value Rs.7.35 crore ) instead of 150 bundles of Rs.5000/- denomination (value Rs.7.50 crore) as indicated and initiated by you on the tag attached to the Bin, and also in the balances of Bin Book kept inside the said bin. Therefore, total cash reported missing from the bank's vault is to the tune of Rs.15,00,000/- (Rupees fifteen lakhs only)."

3. The petitioner was served with the chargesheet dated 31.8.2002.

Enquiry proceedings were thereafter held and which culminated in the report of the

Enquiry Officer dated 27.11.2002. I may note that two charges in the alternative

were imputed against the petitioner. The first was of committing grave misconduct

by extracting cash of Rs.15,00,000/-from the bin. Second alternative charge was

of displaying gross negligence leading to the loss of Rs. 15,00,000/- to the bank.

In the enquiry proceedings, the first charge was not pressed on behalf of the

respondent-bank i.e there was no charge against the petitioner of his abstracting

cash of Rs.15,00,000/- and only the alternative charge was pressed of loss to the

bank on account of gross negligence of the petitioner.

4. Before I turn to the report of the Enquiry Officer and the arguments

urged on behalf of the learned senior counsel for the petitioner before me, two

important aspects, and which will be very relevant to the determination of the

present case, need to be noted and which are as under:-

(i) The scope of a Court while hearing a writ petition under Article 226 of the

Constitution of India for challenging the orders passed in the departmental

proceedings is limited. It is settled law that this Court hearing a writ petition under

Article 226 of the Constitution of India does not act as an Appellate Court and re-

apprise the evidence before the Enquiry Officer. Courts only interfere in cases of

clear cut perversity or illegality in the enquiry report or violation of principles of

natural justice.

(ii) The petitioner, in spite of opportunity, chose to lead no evidence in the

departmental proceedings. Petitioner not only did not lead evidence of any

witness, but also he himself did not step into the witness box, and it is not the case

of the petitioner that he wanted to lead evidence by stepping into the witness box

and that he was prevented from doing so.

5. In view of the aforesaid two points and the scope of the hearing before

me, let me turn to the main heads of arguments which have been addressed before

me on behalf of the petitioner. These arguments are:

i) The presence of the petitioner on 6.7.1999 was not proved in the

departmental proceedings;

ii) The initials on the bin book and bin tag were not proved to be of the

petitioner;

iii) The bin containing the cash, and which was ostensibly opened for

verification on 20.12.2001 when missing cash was reported, is not the

only date of operation of the bin as the bin was operated even on

19.12.2001 and thereby possibility of the bin having been opened earlier

and mis-appropriation having been taken earlier cannot be ruled out;

iv) Principles of natural justice have been violated as documents which were

asked for from the petitioner being three documents to show that the

petitioner was not posted at the Chest Note Vault No. 1 on 6.7.1999 and

hence it should be held that the petitioner was not present at the Chest

Note Vault No. 1 on 6.7.1999;

v) As per the relevant pension rules, pension cannot be withheld unless there

is a case of grave mis-conduct or negligence and the facts of the present

case do not prove to show that there was any grave mis-conduct or

negligence. Reference is drawn to Regulation 7 of the relevant Pension

Regulations;

vi) Even assuming the order passed by the disciplinary authority is correct,

yet, that did not entitle the respondent-bank to withhold pensionary

benefits to the petitioner and which pensionary benefits became payable

on 1.1.2002 as the petitioner was retired on 31.10.2001 and since

pensionary benefits were only paid to petitioner on 31.3.2003 for the

period of delay the petitioner must be compensated by interest.

6. On behalf of the respondent-bank all the arguments urged on behalf of

the petitioner have been emphatically refuted and the Enquiry Officer's report has

been argued to be correct. It is argued that the enquiry report should not be

interfered with by this Court in exercise of its powers under Article 226 of the

Constitution of India in view of the limited jurisdiction that this Court has, and

especially because neither there is any perversity, nor any illegality nor any

violation of principles of natural justice.

7. On behalf of the petitioner the learned senior counsel took me through

various documents as also the cross examination of the witnesses whose evidence

was led on behalf of the bank to argue that the respondent-bank has failed to prove

in the enquiry proceedings that the petitioner was in fact present in the Chest Note

Vault No. 1 on 6.7.1999 i.e it was argued that though the respondent-bank

contended that the petitioner was in fact posted for his duties in the Chest Note

Vault No.1 on 6.7.1999 this aspect was not established. On this aspect, I must

note that the witnesses who have deposed on behalf of the respondent-bank have

specifically stated that the petitioner was posted as per the records of the

respondent-bank in Chest Note Vault No. 1 on 6.7.1999. Mere cross examination

of the witnesses cannot mean that it should be held that the petitioner was not

present in the Chest Note Vault No. 1 on 6.7.1999 inasmuch as unless and until

there is a clear cut admission in the cross examination of the petitioner not being

posted and not being present at Chest Note Vault No. 1 on 6.7.1999, I cannot agree

that it should be held that the petitioner's presence in Chest Note Vault No. 1 on

6.7.1999 has not been proved. Departmental proceedings are not proceedings in a

criminal court where a case has to be proved beyond all reasonable doubts. It is

also not as if the proceedings in the departmental enquiry are strictly civil law

proceedings and there has to be technically a clear cut discharge of onus of proof.

No doubt that on the general principles there must be discharge of onus of proof in

the sense that it must be proved that the petitioner was present in Chest Note Vault

No. 1on 6.7.1999, in my opinion however this stands proved from the depositions

of the witnesses of the respondent-bank. If the petitioner was so confident of his

case, he ought to have had the minimum basic courage to stand up and depose in

his own favour and subject himself to the test of cross-examination. Petitioner not

having the courage of conviction to stand in the witness box to depose in his own

support or stand the test of cross-examination, in my opinion, this aspect totally

turns all the issues against the petitioner in the present case. This I am stating so

because even with respect to the subsequent arguments which I am dealing with

hereinafter with respect to initials of the petitioner not being there on the bin book

or bin tag, or the bin having allegedly been operated not on 20.12.2001 but also on

19.12.2001, these arguments are such arguments which will be covered by this

conclusion that once in the departmental proceedings evidence is led by the

respondent-bank, such evidence ordinarily ought to be believed when a charged

official does not even step into the witness box in support of his own case, leave

aside leading evidence of witnesses.

8. I, therefore, reject the arguments that there is any perversity in the

findings of the Enquiry Officer that petitioner was held to have been found to be

present in the Chest Note Vault No.1 on 6.7.1999. To this aspect I must also state

that the Enquiry Officer has suggested in his report vide sub-para (iii) in para 7 of

the report that the petitioner did not strenuously contend with regard to his non-

presence in Chest Note Vault No.1 on 6.7.1999. I have not found any averment in

the writ petition that the petitioner has averred that the Enquiry Officer has

wrongly noted this particular aspect. Therefore, the argument that there is any

perversity in the finding of the Enquiry Officer of the petitioner actually being

present in Chest Note Vault No.1 on 6.7.1999 is not correct or it can be interfered

under Article 226 of the Constitution of India.

9. The second argument raised is as to whether the Enquiry Officer has

correctly arrived at a conclusion that the petitioner's initials did appear on the bin

book and the bin tag. It may be noted that when cash is put in a bin, signatures

have to be taken of the concerned officer in the bin book as well as the bin tag.

These initials which appeared on the bin book and bin tag have been deposed to by

the officer of the respondent-bank being the petitioner. As already stated, petitioner

has cross-examined and contended that the initials on the bin book and bin tag are

not his but the petitioner has not had the courage, or the basic minimum conviction

to stand in the witness box and depose in his own favour that the initials are not

his. As already stated above, mere cross-examination cannot mean that it should

have been held by the Enquiry Officer that initials were not of the petitioner. Once

onus of proof in the departmental proceedings is discharged by leading evidence

on behalf of the bank by witnesses who deposed that the initials appeared to be that

of the petitioner, the Enquiry Officer was justified in arriving at a conclusion that

the initials in the bin book and the bin tag were of the petitioner. To this aspect,

the Enquiry Officer, in my opinion, has correctly observed that in the books which

are maintained outside the bin, there were also initials showing that the petitioner

was posted at the Chest Note Vault No.1 on 6.7.1999. These initials of the

petitioner were on the relevant books namely CD-3, CD-9 and CD-50 and this

finding the Enquiry Officer has arrived at on the basis of the stand of the petitioner

in the departmental proceedings that these related registers CD-3, CD-9 and CD-50

were authenticated by both the Joint Custodians viz. Smt. Chitra Gupta who was

the Assistant Treasurer posted at the Chest Note Vault No.1 and the petitioner, who

as an Assistant Treasurer was posted to guide Smt. Chitra Gupta in her duties. In

the departmental proceedings, it is perfectly permissible for the Enquiry Officer to

draw inferences on the basis of existing record and I do not find any perversity in

the report of the Enquiry Officer drawing necessary inferences from initials of the

petitioner on CD-3, CD-9 and CD-50. The Enquiry Officer was further justified in

ruling out any complicity of Smt. Chitra Gupta because Smt. Chitra Gupta did not

dispute that her signatures did appear on CD-3, CD-9 and CD-50 and therefore,

there was no point for her to dispute her presence on 6.7.1999 and therefore, for

her in any manner having to do with the existence of initials of the petitioner on the

bin book and the bin tag. In any case, more and more I go into the aspect of

appreciation of evidence further and further I will go from the applicable law

which states that I am not entitled to re-apprise the evidence unless a clear cut

perversity is pointed out to me. A wrong conclusion here and there, assuming there

is one, is definitely not a perversity more so in the facts of the present case because

the conclusions of the Enquiry Officer are based on the evidence which has been

led by the respondent- bank in the enquiry proceedings and the petitioner failing to

lead any evidence whatsoever.

10. I may also note that there is no requirement that the initials of a person

have only to be proved through a handwriting expert. I also feel that handwriting

expert would hardly have a role in a case like this when initials were admittedly in

some way similar and some way different from other admitted initials of the

petitioner. A handwriting expert has to have such amount of clear cut admitted

signatures for being compared with disputed signatures and only thereafter can a

handwriting expert prepare his report. A handwriting expert's report on initials

cannot and is not final in law. Also, in my opinion, it was permissible for the

Enquiry Officer himself to compare disputed initials with the admitted initials of

the petitioner so as to arrive at finding that the disputed signatures on the bin book

and bin tag were of the petitioner. I note that in fact even in civil cases Courts are

empowered under Section 73 of the Evidence Act, 1872 in appropriate cases to

itself compare disputed signatures with admitted signatures. Therefore, I cannot

agree with the contention that initials on the bin book and the bin tag have been

held to be of the petitioner without the requisite evidence. The third argument of

the petitioner is also rejected for the self-same reasons as regards the first two

arguments.

11. The next argument urged on behalf of the petitioner is that the

petitioner was not supplied the three documents, and which were asked for with

respect to his posting record on 6.7.1999 in the respondent-bank. The petitioner

claims that he was not expected to remember his postings in the bank which

happened for a period which was much earlier, and therefore, once documents

asked for by the petitioner with respect to his posting on 6.7.1999 are not supplied,

principles of natural justice have been violated.

12. Firstly, I must note that I do find it quite strange that a person must

contend that as an officer of a bank he does not know where he was posted just

three years prior to the proceedings before the Enquiry Officer. Proceedings

before the Enquiry Officer took place in and around the year 2002 and we are

talking of the relevant period of July, 1999. I, therefore, do not feel that the period

is so long from July, 1999 to the proceedings being conducted in the year 2002 for

the petitioner to have ignorance and lack of knowledge about his postings with the

bank on 6.7.1999 and therefore, the requirement is of the bank to produce the

records with respect to the posting of the petitioner on 6.7.1999. As already stated

above, for this aspect to have had significance the petitioner should have stood in

the witness box and at least deposed with respect to the minimum evidence in his

own support, but the petitioner as repeatedly stated above, did not step into the

witness box and had no courage to stand the test of the cross-examination.

13. Accordingly, I do not feel that the principles of natural justice have

been violated in the facts of the present case. Principles of natural justice are not

inflexible principles and they have to be applied with respect to facts of each case

to determine whether or not prejudice has been caused. The Supreme Court in the

judgment of State Bank of Patiala & Ors. Vs. S.K.Sharma, 1996 (3) SCC 364 has

held that when the issue raised is of violation of principles of natural justice, two

aspects have to be examined. One aspect is that natural justice has not at all been

followed i.e it is a case of no hearing. The second aspect is violation of a facet of

the principles of natural justice such as non supplying of documents etc. So far as

the second aspect is concerned, the Supreme Court has observed that mere non

supplying of documents cannot amount to violation of principles of natural justice

unless and until it is established that the charged official is gravely and greatly

prejudiced by the non-supplying of the documents. In the facts of the present case,

I do not find that the petitioner has at all been prejudiced because as I stated above,

not only the petitioner cannot plead selective amnesia with respect to his posting

on 6.7.1999, but also that the aspect of posting of the petitioner in Chest Note

Vault no.1 is duly deposed to and hence proved by the witnesses of the respondent-

bank.

14. That takes me to the issue as to whether the enquiry proceedings are

to be faulted because in terms of Rule 7, no case of grave negligence or

misconduct is made out. Surely, loss of Rs.15,00,000/- to the bank is something

serious. It cannot be contended that once it is proved that an amount of Rs.

15,00,000/- is lost on account of negligence of the petitioner, yet it is not a case of

grave negligence or misconduct. In my opinion, loss of Rs.15,00,000/- to the bank

from bundles of notes which were put in the bin of the bank, is quite clearly a case

of grave negligence and misconduct. This argument of the petitioner is also

therefore rejected.

15. That leaves us with the final argument urged on behalf of the

petitioner with respect to the claim of interest inasmuch as the petitioner is said to

have been paid the pensionary benefits on 31.3.2003/1.4.2003 and the entitlement

of the petitioner is w.e.f 1.1.2002, inasmuch as learned senior counsel for the

petitioner states that pension becomes payable two months after the date of

retirement being 31.10.2001. Issue thus is the claim of interest from 1.1.2002 till

31.3.2003/1.4.2003. Learned senior counsel for the petitioner has relied upon

Regulation 7 of the Regulations which provides that the entitlement of the

respondent no.1 to withhold pension is only after an employee is found guilty of

grave misconduct in departmental proceedings. It is argued that till there is a final

finding of the Departmental Authority of the petitioner being guilty of grave

misconduct, pension cannot be withheld. Regulation 7 of the Pension Regulations

of the respondent no.1-Bank, reads as under:-

"7. Right of the Bank to withhold or withdraw pension

The competent authority may withhold or withdraw a pension or a part thereof, whether permanently or for a specific period, and order recovery from pension of the whole or part of any pecuniary loss caused to the Bank if in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re- employment after retirement, provided that the Central Board shall be consulted before any final orders are passed".

16. In response, learned senior counsel for the respondent no.1 has placed

reliance upon Regulation 6(3) of the said Regulations to argue that on the

petitioner having been prima facie found guilty of grave misconduct, there is

entitlement of the respondent no.1 to withhold the pension. The relevant Rule 6

reads as under:-

"6. Pension subject to future good conduct (1) (a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these Regulations.

(b) The competent authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a specific period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. Provided that where a part of pension is withheld or withdrawn, the amount of pension drawn by a pensioner shall not be less than Rs. 375/- per mensem in the case of a full-time employee, and proportionate amount thereof in relation of wages applicable in the case of a part-time employee.

(2) Whether a pensioner is convicted of a serious crime by a court of law, action under sub-regulation (1) shall be taken in the light of the judgement of the court relating to such conviction.

(3) In a case not falling under sub-regulation (2), if the authority referred to in sub-regulation (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under sub-regulation (1).

(a) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the competent authority such representation as he may wish to make against the proposal; and

(b) take into consideration the representation, if any, submitted by the pensioner under clause (a).

(4) Where the authority competent to pass an order under sub-regulation (1) is the Governor, the Central Board shall be consulted before the order is passed.

(5) An appeal against an order under sub-regulation (1), passed by any authority other than the Governor, shall lie to the Governor and the Governor shall, in consultation with the Central Board, pass such orders on the appeal as he deems fit".

17. I am unable to agree with the arguments as urged on behalf of

respondent no.1, and I agree with the argument as urged on behalf of the petitioner,

because, Regulation 7 of the Regulations reproduced above specifically provides

that the entitlement to withhold pension is only when the employee is found guilty

of grave misconduct in the departmental proceedings. In the present case,

departmental proceedings resulted in passing of the impugned order by the

Disciplinary Authority on 11.3.2003. Therefore, till 11.3.2003, there was no

finding against the petitioner in departmental proceedings of his being guilty of

gross misconduct so as to enable the respondent to withhold the pension under

Regulation 7 of the Regulations. In my opinion, Regulation 6 relied on behalf of

the respondent no.1 cannot apply because this provision entitles withholding of

pension for future period and not on the first day on which the same is granted.

That this is so becomes clear from the heading itself of the Regulation 6 which is

"Pensions subject to future good conduct". If there is any doubt, the same is

removed from Regulation 6(1) (a) and which provides that it is the future good

conduct which would be the basis for pension and its continuance under these

regulations. Surely, future good conduct would be after the retirement and not

with respect to conduct prior to the retirement of an employee. Therefore, in the

facts of the present case since the misconduct which is alleged of the

petitioner/employee is prior to the period of retirement, it is Regulation 7 which

will come into application and not Regulation 6 of the Regulations. Therefore, the

petitioner will be entitled to interest for the amount of pensionary benefits not paid

from 1.1.2002 till 11.3.2003.

18. In view of the above, the writ petition is dismissed so far as the same

challenges orders of the Disciplinary Authority and the Appellate Authority

imposing punishment on the petitioner, however, petitioner will be entitled to

interest at the rate of 12% per annum simple from 1.1.2002 till 11.3.2003 with

respect to the amount of pensionary benefits which became due to the petitioner,

but were not paid from 1.1.2002 till 11.3.2003. Parties are left to bear their own

costs.

APRIL 22, 2013                                        VALMIKI J. MEHTA, J.

ib/Ne