Jharkhand High Court
Raj Narayan Dubey vs Central Bank Of India on 30 November, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 1060 of 2016
Raj Narayan Dubey ... ... ... Petitioner
Versus
1. Central Bank of India, through the Chairman-cum-Managing Director, having
office at Nariman Point, Mumbai.
2. The General Manager/Reviewing Authority, Central bank of India, having
office at Central Bank of India, Zonal office, Mourya Complex, Bailey Road,
PO-GPO, P.S.- Kotwali, Town and District-Patna.
3. The Senior Regional Manager/Appellate Authority, Central Bank of India,
having office at Krishna Arcade, 2nd Floor, Bootymore, P.O. & P.S.-Bariatu,
Town and District-Ranchi.
4. The Assistant General Manager/Disciplinary Authority, Central Bank of India,
having office at Krishna Arcade, 2nd Floor, Bootymore, P.O. & P.S.- Bariatu,
Town and District-Ranchi.
5. The Chief Manager/Enquiry Authority, Central Bank of India, having office at
Krishna Arcade, 2nd Floor, Bootymore, P.O. & P.S.- Bariatu, Town and District-
Ranchi. ... ... .... Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
(Through: Video Conferencing)
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For Petitioner : Mr. Manoj Tandon, Advocate
: Mr. Amit Kumar Tiwari, Advocate
For Resps.-Bank : Mrs. Darshana Poddar Mishra, Advocate
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CAV on 22.07.2021 Pronounced on 30.11.2021
Dr. S.N. Pathak, J. Petitioner has approached this Court with the following prayers.
(i) For quashing/setting aside the entire departmental proceeding
initiated against the petitioner including the memo of charge dated
07.05.2014, the memo (supplementary) charge dated 05.06.2014 and
the report of the Enquiry Authority dated 11.11.2014.
(ii) For quashing/setting aside the penalty order contained in
Administrative Order dated 21.11.2014 passed by the Disciplinary
Authority, whereby and whereunder, punishment of the "Compulsory
Retirement" has been inflicted upon the petitioner.
(iii) For quashing/setting aside the appellant order dated 07.04.2015
passed by the Appellate Authority, whereby the appeal preferred by
the petitioner against the penalty order has been rejected.
(iv) For further quashing/setting aside the final order of Reviewing
Authority dated 10.11.2015 (communicated by letter dated
23.11.2015), whereby and whereunder, the review preferred by this
petitioner has been rejected.
(v) For directing the respondents to pay the full gratuity with admissible
interest thereon to the petitioner as the services of the petitioner has
not been terminated, and as such, the respondents had no power and
authority to withhold the gratuity or part of the gratuity.
(vi) For further directing the respondents authorities to pay full pension
and leave encashment to the petitioner with admissible interest
thereon.
(vii) For any other appropriate relief or reliefs for which the petitioner is
found to be entitled to in the facts and circumstances of this case as
also to do conscionable justice to the petitioner.
Factual Matrix:-
1. Petitioner was appointed on 18.08.1978 on the post of Agricultural
Assistant. Subsequently he was promoted from the post of Agricultural
Assistant to the post of Agricultural Filed Officer, thereafter to the post of
Manager. Considering the unblemished service career of the petitioner,
petitioner was further promoted to the post of Senior Manager on
31.03.2003. It is the case of the petitioner that while posted at Central Bank
of India, Piska More Branch, a memorandum of charge dated 07.05.2014
was framed against him and Article of Charge was submitted on 07.05.2014
under the pen and signature of Disciplinary Authority/Assistant General
Manager. It was inter alia alleged that petitioner committed lapses while
sanctioning loan in capacity of Senior Manager, Piska More Branch.
Petitioner Submitted his reply denying all the charges levelled against him
following the procedures of law. The Enquiry Officer submitted Enquiry
Report on 11.11.2014 holding therein that charges against the petitioner
stood proved and the same was communicated to the petitioner vide letter
dated 13.11.2014. Petitioner submitted a detailed reply to the enquiry
report. It is the case of the petitioner that without considering the reply of
the petitioner in right perspective, the Disciplinary Authority passed the
penalty order dated 21.11.2014 imposing the punishment of compulsory
retirement and the same was communicated to the petitioner by the Senior
Regional Manager vide letter dated 21.11.2014. Petitioner preferred the
appeal assailing the punishment order before the Appellate Authority on
08.01.2015. The Appellate Authority agreeing with the views of the
Disciplinary Authority rejected the appeal, thereafter review was preferred
on 21.07.2015 and the same also stood rejected on 10.11.2015. Petitioner
was also issued notice dated 10.04.2015 as to why the gratuity amount of
Rs.10,00,000/- be not forfeited in accordance with the provisions enshrined
in Section 4 (6) (a) of the Payment of Gratuity Act, 1972.
2. Learned counsel for the petitioner argues that the impugned order of
punishment as well as withholding the gratuity and leave encashment and
pension amount are absolutely illegal, arbitrary, unconstitutional and in
colourable exercise of power. Learned counsel further argues that the
Disciplinary Authority and Appellate Authority are the same and as such on
this score itself the order is not tenable in the eyes of law. It has been
submitted that even assuming that it is a communication order, it is unheard
that order of Disciplinary Authority is communicated by the Appellate
Authority. Learned counsel further argues that the penalty order speaks of
compulsory retirement and after final order of penalty the order of forfeiture
of gratuity and leave encashment is against the provisions of law, which
amounts to a fresh order which is not tenable in the eyes of law. Learned
counsel further argues that payment of gratuity cannot be permitted to be
withheld by the respondents for the reasons that the petitioner has not been
terminated from service, but he has been compulsorily retired. It has been
also argued that so called charges which were levelled against the petitioner
could not have been construed as misconduct and as such the entire
departmental proceeding is fit to be quashed and set aside. Learned counsel
further argues that the impugned orders are absolutely illegal, arbitrary,
unconstitutional and in the teeth of the provisions enshrined in the Payment
of Gratuity Act, 1972 and as such fit to be quashed and set aside and also
for the reasons that authorities have not appreciated the reply of the
petitioner in right perspective.
3. Per contra, counter affidavit has been filed, Mrs. Darshana Poddar
Mishra, appearing on behalf of Bank vehemently opposes the contention of
learned counsel for the petitioner. Learned counsel emphatically argues that
from very perusal of the orders it is crystal clear that Disciplinary Authority
and Appellate Authority are different and the same has also been accepted
by the petitioner. From perusal of page 69 of the writ petition it is clear that
they are not the same persons. It has been argued that no bias or prejudiced
has been caused by the Administrative order and as such it cannot be said
that the orders are illegal and arbitrary rather they are fully justified.
Learned counsel placing heavy reliance on the judgment of the Hon'ble
Apex Court submits that once the Enquiry Officer has come to a finding by
leading evidence, the same cannot be re-appreciated by this Court, unless
the report is set to be perverse. Learned counsel further argues that there is
concurrent finding of the authorities and the same requires no interference.
Since the petitioner has lost the confidence of bank, he cannot be allowed to
be reinstated into the services and the impugned orders are fully justified.
Learned counsel further submits that in view of the Bank Regulations, the
consequences of the penalty order are forfeiture of leave encashment and
gratuity and the same cannot be faulted with.
4. Be that as it may having gone through the rival submissions of the
parties, across the bar, this court is of the considered view that no
interference is warranted in this writ petition for the following facts and
reasons, (i) This Court sitting under Article 226 of the Constitution of India
cannot re-appreciate the evidence and substitute its own finding. The
Hon'ble Apex Court in the case of B.C. Chaturvedi Vs. Union of India &
Ors., reported in (1995) 6 SCC 749 has held thus;
" The High Court does not act as appellant authority. Its jurisdiction is
circumscribed by limits of judicial review to correct errors of law or
procedural errors leading to manifest injustice or violation of principles
of natural justice. Judicial review is not akin to the decision of a case on
merit as an appellate authority."
(ii) Insufficiency of materials cannot be a ground to annul the findings
of the Enquiry Officer neither can a substituted view be taken in place of
Enquiry officer/disciplinary authority in cases of departmental
proceeding.
The Hon'ble Supreme Court in the case of Deputy General
Manager (Appellate Authority) and Ors. Vs. Ajai Kumar Srivastava
reported in 2021 SCC OnLine SC 4 at paragraph-23 has held thus:-
"23. The power of judicial review in the matters of disciplinary inquiries,
exercised by the department/appellate authorities discharges by
constitutional Courts under Article 226 or Article 32 or Article 136 of the
Constitution of India is circumscribed by limits of correcting errors of law
or procedural errors leading to manifest injustice or violation of principles
of natural justice and it is not akin to adjudication of the case on merits as
an appellate authority which has been earlier examined by this Court in
State of Tamil Nadu v. T.V. Venugopalan and later in Government of T.N. v.
A. Rajapandian and further examined by the three Judge Bench of this
Court in B.C. Chaturvedi v. Union of India wherein it has been held as
under:-
"13. The disciplinary authority is the sole judge of facts. Where appeal is
presented, the appellate authority has coextensive power to reappreciate
the evidence or the nature of punishment. In a disciplinary enquiry, the
strict proof of legal evidence and findings on that evidence are not
relevant. Adequacy of evidence or reliability of evidence cannot be
permitted to be canvassed before the Court/Tribunal. In Union of India v.
H.C. Goel [(1964) 4 SCR 718] this Court held at p. 728 that if the
conclusion, upon consideration of the evidence reached by the
disciplinary authority, is perverse or suffers from patent error on the face
of the record or based on no evidence at all, a writ of certiorari could be
issued."
The same view has been reiterated in a later decision of this Court in
Himachal Pradesh State Electricity Board Limited v. Mahesh Dahiya
reported in 2015 SCC online HP 818 and recently by the three Judge
Bench of this Court in Pravin Kumar v. Union of India.
The Hon'ble Supreme Court in the case of Director General of
Police, Railway Protection Force vrs. Rajendra Kumar Dubey, reported in
2020 SCC OnLine SC 954; at paragraphs- 33 and 34 has held thus:-
"33. In State of Andhra Pradesh v. S. Sree Rama Rao,- a three judge
bench of this Court held that the High Court under Article 226 of the
Constitution is not a court of appeal over the decision of the authorities
holding a departmental enquiry against a public servant. It is not the
function of the High Court under its writ jurisdiction to review the
evidence, and arrive at an independent finding on the evidence. The High
Court may, however interfere where the departmental authority which has
held the proceedings against the delinquent officer are inconsistent with
the principles of natural justice, where the findings are based on no
evidence, which may reasonably support the conclusion that the
delinquent officer is guilty of the charge, or in violation of the statutory
rules prescribing the mode of enquiry, or the authorities were actuated by
some extraneous considerations and failed to reach a fair decision, or
allowed themselves to be influenced by irrelevant considerations, or
where the conclusion on the very face of it is so wholly arbitrary and
capricious that no reasonable person could ever have arrived at that
conclusion. If however the enquiry is properly held, the departmental
authority is the sole judge of facts, and if there is some legal evidence on
which the findings can be based, the adequacy or reliability of that
evidence is not a matter which can be permitted to be canvassed before
the High Court in a writ petition."
"34. These principles were further reiterated in the State of Andhra
Pradesh v. Chitra Venkata Rao. The jurisdiction to issue a writ of
certiorari under Article 226 is a supervisory jurisdiction. The court
exercises the power not as an appellate court. The findings of fact
reached by an inferior court or tribunal on the appreciation of evidence,
are not re-opened or questioned in writ proceedings. An error of law
which is apparent on the face of the record can be corrected by a writ
court, but not an error of fact, however grave it may be. A writ can be
issued if it is shown that in recording the finding of fact, the tribunal has
erroneously refused to admit admissible and material evidence, or had
erroneously admitted inadmissible evidence. A finding of fact recorded by
the tribunal cannot be challenged on the ground that the material
evidence adduced before the tribunal is insufficient or inadequate to
sustain a finding. The adequacy or sufficiency of evidence led on a pint,
and the inference of fact to be drawn from the said finding are within the
exclusive jurisdiction of the tribunal.
37. In Union of India v. P. Gunasekaran this Court held that the High
Court in exercise of its power under Articles 226 and 227 of the
Constitution of India shall not venture into re-appreciation of the evidence.
The High Court would determine whether: (a) the enquiry is held by the
competent authority; (b) the enquiry is held according to the procedure
prescribed in that behalf; (c) there is violation of the principles of natural
justice in conducting the proceedings; (d) the authorities have disabled
themselves from reaching a fair conclusion by some consideration which
are extraneous to the evidence and merits of the case; 9e) the authorities
have allowed themselves to be influenced by irrelevant or extraneous
considerations; (f) the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person could ever have arrived
at such conclusion; (g) the disciplinary authority had erroneously failed to
admit the admissible and material evidence; (h) the disciplinary authority
had erroneously admitted inadmissible evidence which influenced the
finding; (i) the finding of fact is based on no evidence.
38. In paragraph-13 of the judgment, the court held that;
"13. Under Articles 226/227 of the Constitution of India, the High
Court shall not;
(i) Re-appreciated the evidence;
(ii) Interfere with the conclusion in the enquiry, in the case the
same has been conducted in accordance with law;
(iii) Go into the adequacy of the evidence;
(iv) Go into the reliability of the evidence;
(v) Interfere, if there be some legal evidence on which findings
can be based;
(vi) Correct the error of fact however grave it may appear to be;
(vii) Go into the proportionality of punishment unless it shocks
its conscience."
In view of the charges and the findings of the Enquiry Officer and
the views expressed by the Disciplinary Authority, the Appellate Authority
as well as Reviewing Authority, it can be comfortably inferred that the loss
of confidence is the primary factor and not the amount of money
misappropriated and the sympathy or generosity cannot be a factor which is
impermissible in law. When an employee is found guilty of pilferage or of
misappropriating the Bank's funds, there is nothing wrong in the Bank
losing confidence or faith in such an employee and awarding punishment of
compulsory retirement. In such cases, there is no place for generosity or
misplaces sympathy on the part of judicial forums and interfering therefore
with the quantum of punishment. The Hon'ble Supreme Court in the case of
State Bank of India vrs. Ramesh Dinkar Punde, reported in (2006) 7
SCC 212 at paragraph-21 has held as under:-
"21. Confronted with the facts and the position of law, learned
counsel for the respondent submitted that leniency may be shown to
the respondent having regard to long years of service rendered by
the respondent to the Bank. We are unable to countenance such
submission. As already said, the respondent being a bank officer
holds a position of trust where honesty and integrity are inbuilt
requirements of functioning and it would not be proper to deal with
the matter leniently. The respondent was a Manager of the Bank
and it needs to be emphasized that in the banking business absolute
devotion, diligence, integrity and honesty needs to be preserved by
every bank employee and in particular the bank officer so that the
confidence of the public/depositors is not impaired. It is for this
reason that when a bank officer commits misconduct, as in the
present case, for his personal ends and against the interest of the
bank and the depositors, he must be dealt with iron hands and he
does not deserve to be dealt with leniently."
In view of the concurrent findings of the authorities no interference
is warranted.
As per the Circular No. CO/PRS/05-06/22 dated 06.06.2005, the
benefit of leave encashment is not available to an employee who is
compulsorily retired from service or removed, discharged or dismissed
from bank's service by way of punishment and as per Regulation 33,
employees retired compulsorily as a penalty may be granted Compulsory
Retirement Pension at the rate of not less than 2/3rd and not more than full
pension. Hence petitioner was rightly granted 2/3rd pension.
As a sequel to the aforesaid rules and guidelines and judicial
pronouncements this Court is not inclined to interfere in the writ petition.
The impugned orders are fully justified. This writ petition is dismissed. No
order as to cost.
(Dr. S.N. Pathak, J.)
Rohit/-
