Dalbir Singh Sohi vs Punjab & Sind Bank & Anr.
2018 Latest Caselaw 4858 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                         Reserved on: 23rd February, 2018
                         Pronounced on: 17th August, 2018
+      W.P.(C) 8614/2003
       DALBIR SINGH SOHI                              ..... Petitioner
                                  Through: Ms.Geetanjali Mohan,
                                  Advocate
                                  versus
       PUNJAB & SIND BANK & ANR.              ..... Respondents
                         Through     Mr.Jagat       Arora   and
                         Mr.Rajat Arora, Advocates
       CORAM:
       HON'BLE MR. JUSTICE C.HARI SHANKAR

       %                          JUDGMENT

C. HARI SHANKAR, J.

1. Dalbir Singh Sohi, the petitioner, joined the services of the Respondent No. 2-Bank (hereinafter referred to as "the Bank") in 1974. On 30th March, 1991, he applied, to the Bank, for being sanctioned two months‟ earned leave, w.e.f. 10th April, 1991, to enable him to attend the marriage of his niece in Canada. Leave, as prayed for, was admittedly sanctioned, to the petitioner, by the Bank, for the period 7th May, 1991 to 6th July, 1991 (the Bank calls it "privilege leave").

2. The petitioner, thereafter, applied for extension of leave, on 29 th June, 1991 and 28th July, 1991, for thirty days on each occasion, on the ground of ill-health. The petitioner has also annexed, with the writ petition, a medical certificate, dated 25th July, 1991, issued by one Dr.

P.S. Aulakh, which, according to the petitioner, was submitted by him in support of the request leave. The respondent, however, contends that no such medical certificate was submitted. Owing to various circumstances that transpired thereafter, however, this aspect has lost much of its significance, as the recital that follows would reveal.

3. On 15th October, 1991, a charge-sheet was issued, to the petitioner, by the Asst. General Manager of the Bank as disciplinary authority (hereinafter referred to as "the DA"). The charge-sheet contained two charges. The 1st charge was of the petitioner having been unauthorisedly absent from duty after 6th July, 1991. It was acknowledged, in the charge-sheet, that the petitioner had sought extension of the leave granted to him, by his letters dated 29 th June, 1991 and 28th July, 1991; however, it was asserted that can a vide letter dated 27th August, 1991, issued by the Zonal Office, the petitioner was informed that his absence from duty was unauthorized, and was advised to report for duty by 15 th September, 1991, failing which action was threatened against him. The petitioner had failed to do so; ergo, alleged the charge-sheet, the petitioner was guilty of unauthorized absence from work, as well as disobedience of the order issued by his superior. It was further stated, in the charge-sheet, that the petitioner had been issued a show cause notice in this regard, but that there was no response thereto. The second allegation, in the charge-sheet, was that the petitioner had been asked to submit his property returns for the years ending 31st March, 1988, 31st March, 1989 and 31st March, 1991, but that he had failed to do so. These actions/inactions, on the part of the petitioner, it was alleged, breached

Regulations 3(1), 3(2), 13(2) and 20 of the Punjab & Sind Bank Conduct Regulations (hereinafter referred to as "the Conduct Regulations").

4. The petitioner responded, to the aforementioned charge-sheet, submitting that he was on sanctioned leave, in Canada, till 6 th July, 1991, and that he had sought extension of his leave, vide letters dated 29th June, 1991 and 28th July, 1991 only because of his medical condition, in support whereof he had furnished the requisite medical certificates. The petitioner denied having ever received the letter, dated 27th August, 1991, stated to have been written to him by the Zonal Office. He also denied having received the show cause notice, to which reference was made in the charge-sheet. The property returns for the years ending 31st March, 1988 and 31st March, 1989, it was asserted, had been personally submitted by him, at the Zonal Office at New Delhi, whereas the property returns for the years ending 31 st March, 1990, was, submitted by him at the Zonal Office, Bombay. As such, contending that there was no substance in either of the charges against him, the petitioner prayed that the proceedings be dropped.

5. Apparently finding the petitioner‟s response to be unsatisfactory, the Bank informed the petitioner, on 30th November, 1991, that a departmental inquiry was being initiated against him, on the charges contained in the aforementioned charge-sheet dated 15th October, 1991.

6. According to the petitioner, the respondent advised the petitioner to get himself medically examined by a doctor to be nominated by the Indian High Commissioner in Canada, to which, too, he agreed, as communicated vide letter dated 28th January, 1992 addressed to the Bank. No response, submits the petitioner, was received to the said communication.

7. Vide letter dated 5th February, 1992, the petitioner sought to resign from his job, and prayed for waiver of the stipulated notice period of three months, as a specific case.

8. Without responding to the said letter of resignation, an Inquiry Officer (hereinafter referred to as "the IO") was appointed, to inquire into the charges contained in the charge-sheet dated 15th October, 1991. The IO found the charges, against the petitioner, not to be proved and, accepting the recommendations of the IO, the DA, vide the following order dated, 7th October, 1993, completely exonerated the petitioner of all charges against him:

" ORDER Sh. D.S. Sohi, Senior Manager, Zonal Office, Bombay was issued a charge sheet dtd. 15.10.91 consisting of Article of charges supported by statement of Allegations. Sh. D.S. Sohi was advised to send his reply to the charge sheet within 10 days of the receipt of the same. Since Sh. D.S. Sohi did not reply within the stipulated time an enquiry was ordered vide Disciplinary Authority letter dated 30.11.91 and Sh. P.S. Bains was appointed Inquiring Authority and Sh. R.S. Saini, Manager was appointed as Presenting Officer. Later on because of the transfer of Sh. R.S. Saini, Mr. V.K. Dhawan, Manager, Z.O., Bombay was appointed as Presenting Officer vide this office letter dated 15.5.93 and Sh.D.S. Sindhar was

appointed Inquiring Authority vide this office letter dated 6.3.93 because of the transfer of earlier Inquiring Authority, Sh. P.S. Bains.

I have gone through all the records viz. chargesheet dated 15.10.91 report of the Inquiring Authority; written briefs of the Presenting Officer, final arguments of Sh. D.S. Sohi and other documents presenting by P.O. as well as mentioned by Sh. D.S. Sohi.

While going through all the record I find that Sh. D.S. Sohi proceeded to Canada with prior permission of the bank and after obtaining „NO OBJECTION‟ Certificate. His leave was sanctioned upto 6th July‟ 91 but he requested for the extension of leave vide his letter dated 29.6.91. There is lot of correspondence on the subject between the bank and Sh. D.S. Sohi. Bank refused to extend the leave but Sh. D.S. Sohi did not return to join the duties on medical grounds and also submitted medical certificate from Dr. Paramjit Singh Aulak. Finally he was asked to produce himself before a doctor to be nominated by the Indian High Commission. But before contacting Indian High Commission. But before contacting Indian High Commission for his medical checkup as suggested by Indian High Commission vide their letter dated 21.04.92, Sh.D.S. Sohi sent his resignation letter dated 5.2.92. It is entirely the prerogative of management to accept or reject the leave and leave cannot be demanded as matter of right. But in this case considering all the circumstances and the medical certificate submitted by Sh. D.S.Sohi I agree with the findings of the Inquiring Authority and come to the conclusion that benefit of doubt may be given to Sh. D.S.Sohi.

As such I agree to the findings that charge is not proved. Further with reference to the allegation regarding non submission of property returns by Sh. D.S. Sohi, I agree to the findings of Inquiring Authority and have come to the conclusion that charge is not proved. From the record and documents it is inferred that he submitted the P.R. for the year 31.03.88. P.R. as on 31.3.90 was due from him which he undertook to submit within a week‟s time from joining the

duties after returning from Canada. But since he has resigned there is no question of his further joining his duties. As such since charges do not stand proved I am of the opinion that Sh. D.S. Sohi should be exonerated and as per Regulation 7 sub-regulation 4 I pass the order exonerating Sh. D.S. Sohi of the charges alleged against him vide charge sheet dated 15.10.91.

Sd/-

7.10.93 Deputy General Manager (Disciplinary Authority)"

9. Despite his exoneration, by the DA, of the charges contained in the charge-sheet dated 15th October, 1991, no action was taken on the petitioner‟s request for resignation, as contained in his letter dated 5 th February, 1992.

10. Rather, on 9th March, 1995, a second charge-sheet was issued to the petitioner, which, according to the petitioner, was received by him on 15th June, 1995. This charge-sheet contained allegations against the petitioner, relating to five bills, submitted by one M/s Rajendra Bros., which, it was alleged, the petitioner had entered in the wrong ledger, resulting in exchange loss of ₹ 7,96,865/-.

11. Inasmuch as the petitioner has not chosen to challenge either these proceedings or the order that ultimately came to be passed thereon, it is not necessary to delve into the specifics of the inquiry proceedings that followed on the said second charge-sheet dated 15th June, 1995. Suffice it to state that the IO, appointed in the said proceedings, vide Inquiry Report dated 20th December, 1997, held the

charge against the petitioner, as contained in the charge-sheet dated 15th June, 1995, not to have been proved come about that the DA, in his order, dated 21st July, 1998, noticed the exoneration of the petitioner, by the IO, in his Inquiry Report but went on to hold, nevertheless, as under:

"Considering all the points, I do not find the C.S.O. the guilty of the Charges/Allegations leveled against his vide charge sheet dated 09.03.95, but I find that C.S.O. was negligent in taking appropriate steps to inform the factual position of the case to HEAD OFFICE well in time. So I award punishment of minor penalty of CENSURE terms of Punjab & Sind Bank Officer Employees (Discipline and Appeal) (Amendment) Regulation 1981 which shall met the ends of justice."

12. This decision of the DA, in my view, may not be legally sustainable for two reasons; firstly, that it was not permissible for the DA to return an adverse finding, against the petitioner, without, in the first instance, placing on him on notice in that regard, as held by the Supreme Court in Narayan Mishra V. State of Orissa, 1969 (3) SLR 657 and Yoginath D Bagde v. State of Maharashtra, 1999 (7) SCC 739 and secondly, that, having once held the charges against the petitioner, as contained in the charge-sheet issued to him, not to have been proved, can a there could be no question of awarding any penalty to the petitioner, even if it were a censure. The petitioner, however, has not chosen to challenge the order dated 21 st July, 1998, or the penalty of censure awarded to him thereby. As such, no occasion arises, for this court to interfere with the said order, which may be regarded, therefore, as having attained finality.

13. On 5th October, 1998, and 5th November, 1998, the petitioner again represented, to the respondent, requesting that his resignation can tendered as far back as on 5th February, 1992, be accepted, in view of the conclusion of all inquiry proceedings against him, and his exoneration, on merits, therein.

14. On 13th February, 1999, the Bank wrote to the petitioner, informing him that "due to administrative reasons and pending criminal proceedings against you, resignation tendered by you is declined by Competent Authority", and advising the petitioner to report the Zonal Office, Bombay.

15. The petitioner responded vide letter dated 10th April, 1999, pointing out that there were no criminal proceedings pending against him and that he had been summoned on 14th September, 1995, in RC- 8/85-5 IO (X), only as a witness. He pointed out that another employee, Mr. Sushil Vig, who had also been summoned as a witness had submitted his resignation, which was accepted by the Bank. As such, the petitioner reiterated his request for acceptance of the resignation submitted by him.

16. This, the petitioner would submit, resulted in the issuance, to him, of a third charge-sheet, dated 15th July, 1999, styled as a show cause notice, the proceedings in which have been called into question by the petitioner in this writ petition, terming them to be utterly illegal and capricious in nature.

17. I am inclined to agree.

18. The Show Cause Notice, dated 15th July, 1999, may be reproduced as under:

"ZONAL OFFICE JAYANT PALEKAR MARG, WORLI, MUMBAI 400 018 Phones: 4947007 Ref: ZO/WS4/IR/DSS/99179 Dated: 15.07.1999

UPC

Shri Dalbir Singh Sohi, 8232, NECHACKO DRIVE, DELTA BC, CANADA V4C 3x3

Dear Sir,

Reg: Your unauthorised absence from Bank

We are referring to a letter dated 13.02.1999 of Chief Manager, H.O. (Personnel) Dept., New Delhi whereby it was informed to you that the resignation tendered by you was declined by the Competent Authority. You are also advised to report for duty is at Zonal Office, Mumbai.

It has been observed that you have been absent in yourself from duties since 07.07.91 and are avoiding the resumption of duties on one pretext or other. Please note that you were permitted to visit abroad from 07.05.91 206.07.91 only. Your stay beyond this period is unauthorised.

It appears that you have taken some outside employment due to which, you are not resuming duties.

You have also failed to submit your property Return for the period 31.03.92 to 31.03.99.

Your unauthorised absence is also hampering the banks work.

Your above acts together with wilful defiance to the instructions of resuming duties are acts of misconduct in terms of Punjab & Sind Bank Officer Employees (Conduct) Regulations 1981.

You are advised to show cause within 15 days from date of receipt of this letter, as to why disciplinary action should not be taken against you for your above acts of misconduct under Regulation 3(1), 6, 13, 20(1) & (2) of Punjab and Sindh Bank officers Regulations, 1981. If you failed to submit your reply within the stipulated period, it will be presumed that you have nothing to say in this regard and accordingly, we shall proceed further for taking disciplinary action against you in terms of Punjab and gaps in the Bank Officer Employees (Discipline and Appeal) Regulation, 1981.

Also, you are hereby again advised to report for duty is at Zonal Office, Worli Mumbai within 15 days from the receipt of this letter.

Yours faithfully,

Sd/-

Dy. General Manager"

19. The petitioner responded vide letter dated 30th July, 1999, drawing the attention of the respondent to the earlier orders dated 7 th October, 1993 and 21st July, 1998, passed by the disciplinary authority. He also submitted that he had resigned on 5th February, 1992, which fact had been noted, by the disciplinary authority in his order dated 7th October, 1993. He denied the fact that he was absenting himself unauthorisedly from duty.

20. Apparently rejecting the above representation of the petitioner, Memorandum dated 25th September, 1999 (hereinafter referred to as "third charge-sheet"), was issued, by the respondent, initiating

disciplinary proceedings against the petitioner, in terms of the Punjab & Sind Bank Officer Employees‟ (Discipline and Appeal) Regulations, 1981.

21. The Articles of Charges and Statement of Allegations, constituting Annexure-I and II to the said charge-sheet, merit reproduction, in extenso, as under:

       "                Article of Charges

                           Annexure-I

       1)    Sh. D.S.Sohi, Sr. Manager Zonal Office, Mumbai has

been absenting himself from duties since 07.07.1991.

2) He was informed vide H.O. Personnel Deptt., New Delhi letter dated 13.02.1999 that his resignation from Bank‟s service was declined by the Competent Authority. He was also advised to report at Zonal office, Mumbai but he has failed to do so.

3) He was permitted to leave his place of posting and was allowed to visit Canada from 07.05.1991 to 06.07.1991. He has been away from his station of posting unauthorisedly w.e.f. 07.07.1991.

4) Sh.D.S.Sohi, Sr. Manager has failed to submit his statement of Property Return as on 31.03.1992 to 31.03.1999.

The above acts of Sh.D.S.Sohi tantamount to acts of misconduct in terms of Clause No. 3(1), 3(2), 13 (1), 13(2) and 20 of Punjab & Sind Bank Officer Employees (Conduct) Regulation, 1981 to be read with Clause 24 of said Regulation.

Sd/-

Zonal Manager Disciplinary Authority

Statement of Allegations (Annexure-II)

1) Sh.D.S. Sohi, Sr. Manager, Zonal Office, Mumbai, was sanctioned Privilege Leave upto 06.07.1991 to visit Canada. He subsequently sought for extension of leave for 30 days on medical grounds without submitting medical certificate, vide his letter dated 29.06.1991 and 28.07.1991. Accordingly, his request was declined vide Zonal Officer letter dated 27.08.1991 and was informed that his absence from duties was unauthorized. In the same letter, he was informed that action shall be taken if he fails to report for duties. He subsequently tendered a resignation from Bank‟s service. He was informed by H.O. Personnel Deptt., New Delhi vide letter dated 13.02.1991 that his resignation from Bank‟s service was declined by the Competent Authority. But he failed to do so thereby willfully disobeying the reasonable and lawful orders of the superior office.

2) He was permitted to leave his place of posting by allowing him to visit Canada from 07.05.1991 to 06.07.1991. He has been away from his station of posting unauthorisedly w.e.f. 07.07.1991.

3) Sh.D.S.Sohi, Sr. Manager has failed to submit Property Return as on 31.03.1992 to 31.03.1999."

22. The petitioner responded, vide letter dated 5th October, 1999, drawing the attention of the disciplinary authority to the various communications, between him and the respondents, theretofore. The allegations in the charge-sheet were also denied.

23. Despite the above response of the petitioner, an IO was appointed, to enquire into the allegations contained in the aforementioned third charge-sheet. The inquiry report, dated 28th January, 2001, of the said IO, reads as under:-

"The Zonal Manager, Disciplinary Authority, Punjab & Sind Bank, Zonal Office, Mumbai-18.

Dear Sir,

Reg: Sh. Dalbir Singh Sohi, Sr. Manager.

I was appointed E.O. vide Z.O. letter dated 28.10.1999 to conduct an enquiry into the alleged charges against the above named official. Accordingly he was directed to appear before me on 17.11.1999 at 4.00 P.M. in my office for preliminary enquiry and the P.O. Sh. R.S. Gupta was directed to present the management‟s case.

The enquiry proceeding were conducted on 17.11.1999 and 28.01.2000, copies of the proceedings are enclosed herewith. Both the proceedings were conducted against the C.S.O. in absentia.

The charges against the C.S.O. inter-alia area as under:

1. That Sh. Dalbir Singh Sohi, Sr. Manager, Z.O. Mumbai has not submitted his property returns as on 31.03.1992 to 31.03.1999.

2. That Sh. Dalbir Singh Sohi was sanctioned leave from 07.05.1991 to 06.07.1991. He applied for extension of leave for 30 days on medical grounds without submitting medical certificate vide his letter dated 29.06.1991 and 28.07.1991. His request was declined and he was directed to report for duties at Z.O., Mumbai. Instead of joining the duties he submitted his resignation from the bank service which was declined by competent authority and he was informed accordingly vide H.O., Personnel Department letter dated 13.02.1999.

He has not jointed the duties so far and is thus absenting unauthorisedly w.e.f. 07.07.1991.

The charges are a matter of fact and same stand substantiated merely by the fact that he has not joined his

duties which he was supposed to do once his leave was not sanctioned and also when his resignation was not accepted. As he continues to be the employee of the bank, C.S.O. is bound to submit his property returns, which he has failed to do.

From the proceedings and the arguments given by the P.O. the charges levelled against the C.S.O. stand proved."

24. Following on the above inquiry, the DGM, as disciplinary authority, issued order dated 7th February, 2000, the operative portion of which reads thus:

" Allegations have been proved against Sh. D.S. Sohi, Sr. Manager to establish the misconduct as per Regulation 3(1), 13(1 & 2) and 20 of Punjab & Sind Bank officer Employees‟ (Conduct) Regulation, 1981 read with regulation 24 of the said Regulations.

Looking into the seriousness of allegations which have been proved against Sh. D.S. Sohi, Sr. Manager, I am of the considered opinion that it is not at all desirable to keep him in service of Bank as it would be prejudicial to the interests of Bank. Therefore, in my opinion that the ends of justice would be duly met by awarding him the punishment it of "Dismissal" from bank‟s Service.

I, therefore, in my capacity as Disciplinary Authority, hereby impose the punishment of "Dismissal" from bank‟s Service which shall not be disqualification for future employment, on Sh. Dalbir Singh Sohi, Sr. Manager, with immediate effect within the meaning of Regulation 4 (i) of Punjab & Sind Bank Officer Employees (Discipline & Appeal) Regulations, 1997 (Amended)."

25. The petitioner appealed, against the above order dated 7th February, 2000, to the General Manager, H.O. (Personnel), Department of the respondent Bank. It was pointed out, by the

petitioner, in the said appeal, that he had been vexed twice for the same alleged "misconduct" of which he had been completely exonerated once. He denied all the allegations against him, and prayed that the order dismissing him from service be recalled.

26. Vide corrigendum dated 6th June, 2000, the DGM modified the order, dated 7th February, 2000 (supra), punishing the petitioner for the misconduct perceived to have been committed by him, by substituting the word "dismissal" as contained in the said order with the word "removal".

27. Vide order dated 18th August, 2000, the appeal of the petitioner was dismissed by the DGM (Personnel) purporting to act as "appellate authority".

28. This Court is unable to fathom how a DGM could be an appellate authority over an order of another DGM.

29. Be that as it may, the petitioner filed an application to the General Manager, H.O. (Personnel) Department of the respondent Bank for review of the aforementioned appellate order dated 18 th August, 2000. Inasmuch as the averments contained in the said review application were substantially similar to those urged by him before the authorities below, it is not necessary to burden this order by any detailed reference thereto.

30. Vide order dated 15th June, 2002, the General Manager (Personnel) in his capacity as reviewing authority, rejected the above review application of the petitioner and upheld the orders passed by the disciplinary authority and appellate authority.

31. Aggrieved thereby, the petitioner is before this Court.

32. To this Court, the manner in which the Bank has treated the petitioner is appalling, to say the least. The petitioner has obviously been hounded. Once the disciplinary authority had, vide order dated 7th October, 1993, exonerated the petitioner of the charge of unauthorized absence after 6th July, 1991, there could be no question of the same charge, forming subject matter of a fresh proceeding against the petitioner. It is also seen, from the order dated 7th October, 1993, that the petitioner‟s resignation has been accepted as a matter of record. In fact, the said order states that "since he has resigned there is no question of his further joining his duties." This is, ex facie, contrary to the observation, in the inquiry report dated 28 th November, 2001 (supra), that the petitioner continued to be the employee of the Bank and was, therefore, required to submit his property returns.

33. That the entire exercise of issuance of the third charge- sheet, as well as all proceedings following thereupon, was tainted by malice in law as well as on facts, and targeted at removing the petitioner from the establishment of the Bank, any which way, is

also apparent from the summary nature of the inquiry report, dated 28th January, 2001, as well as the total non-application of mind, by the disciplinary authority, the appellate authority as well as the reviewing authority, to the petitioner‟s repeated references to the earlier proceedings against him, which had culminated in his exoneration.

34. Resultantly, this writ petition is allowed. The order, dated 7th February, 2000, read with corrigendum dated 6th June, 2000, whereby the petitioner stood dismissed from service, as well as the appellate order dated 18th August, 2000 and review order dated 15th June, 2002, are quashed and set aside.

35. The request of the petitioner, for being permitted to resign from his job, shall be treated as having been accepted by the respondent, on the date of his resignation i.e. 5th February, 1992.

36. Should the petitioner be entitled to any benefits consequent to this judgment, they shall be disbursed to the petitioner within a period of two weeks from the date of receipt, by the respondent, of a certified copy of this judgment.

37. The petitioner shall be entitled to costs from the respondent, which are quantified at ₹ 50,000/-.

C.HARI SHANKAR (JUDGE) AUGUST 17, 2018/rk/dsn