Jharkhand High Court

Pravir Kumar Minj vs Jharkhand Rajya Gramin Bank ... on 9 August, 2023

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   IN THE HIGH COURT OF JHARKHAND AT RANCHI
               L.P.A. No. 221 of 2022

Pravir Kumar Minj, aged about 57 years, son of Late Eliazer
Minj resident of village/muhalla Chetar P.O & P.S Gumla
District Gumla, Jharkhand.
                      ...       ...   Petitioner/Appellant
                 Versus

1.Jharkhand Rajya Gramin Bank through its Chairman
having its office at Rajendra Palace, 5 Main Road, Ranchi,
P.O. & P.S.Chutia, District Ranchi at present at 3rd Floor
Zila Parishad Bhawan Court Road Ranchi Court Road
Ranchi, P.O. G.P.O. Ranchi P.S. Sadar, District Ranchi,
Jharkhand PIN 834001.
2.The Chairman-cum-Appellate Authority, Jharkhand
Rajya Gramin Bank through its Chairman having its office
at Rajendra Palace, 5 Main Road, Ranchi, P.O. &
P.S.Chutia, District Ranchi at present at 3rd Floor Zila
Parishad Bhawan Court Road Ranchi Court Road Ranchi,
P.O. G.P.O. Ranchi P.S. Sadar, District Ranchi, Jharkhand
PIN 834001.
3.The General Manager & Competent Authority, Jharkhand
Rajya Gramin Bank through its Chairman having its office
at Rajendra Palace, 5 Main Road, Ranchi, P.O. &
P.S.Chutia, District Ranchi at present at 3rd Floor Zila
Parishad Bhawan Court Road Ranchi Court Road Ranchi,
P.O. G.P.O. Ranchi P.S. Sadar, District Ranchi, Jharkhand
PIN 834001.
4.Sri Satyendra Kumar Singh, son of not known to the
petitioner/appellant, Enquiry officer, the then Senior
Manager Lohardaga Branchi, Ranchi Region, now at
present posted as Senior Manager Jharkhand Gramin Bank
Bari Bazar Branch Singhbhum Region, P.O. P.S. Chaibasa,
District West Singhbhum.
                        ...     Respondents/Respondents
                            -------

CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR

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For the Appellant :Mr. Sahadeo Choudhary, Advocate For the Respondents :Mr. A Allam, Sr. Advocate

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th Order No. 09/Dated 9 August, 2023 Per Sujit Narayan Prasad, J:

1. The instant intra-court appeal, under Clause 10 of the

Letters Patent, is directed against judgment/order dated

23.03.2022 passed by learned Single Judge in W.P. (S) No.

5455 of 2015, whereby and whereunder the order of

punishment of removal from service passed by original

authority dated 09.04.2015 as also order passed by the

appellate authority dated 10.06.2015 affirming the order

passed original authority has been refused to be interfered

with by dismissing the writ petition.

2. Brief facts of the case, as per the pleadings made in writ

petition, reads as under:

The writ petitioner was appointed on the post of

clerk-cum-cashier in Jharkhand Gramin Bank on

01.04.1985. While working as such, an explanation, as

contained in memorandum dated 29.06.2013, was sought

for from the petitioner to which he replied but the reply

having been found not satisfactory, charge was framed

against the petitioner and enquiry proceeded against the

petitioner. The enquiry officer concluded the enquiry and

submitted its report before the disciplinary authority. The

disciplinary authority on the basis of finding so recorded by

the enquiry officer inflicted punishment of „removal from

service which shall not be a disqualification for future

employment‟ upon the petitioner, against which, the

petitioner preferred appeal which was also dismissed.

3. Being aggrieved with the order passed by the disciplinary

and appellate authority the petitioner approached this

Court by filing writ petition being W.P. (S) No. 5455 of

2015, which was dismissed vide order dated 23.03.2022

refusing to grant any relief to the petitioner, against which,

the instant intra-court appeal has been preferred.

4. It is evident from the facts, as referred hereinabove,

based upon the pleading made in the writ petition, that the

writ petitioner while working as clerk-cum-cashier at

Baghma Branch, Jharkhand Gramin Bank was subjected

to departmental proceeding by calling upon preliminary

reply on the charge that on 06.09.2011 during his tenure

as Cashier of Baghma Branch he visited Gumla Branch

where he received cash Rs. 5.00 lakh from staff Officer, Mr.

Jayant Kumar Ram in the premises of S.B.I. Gumla Branch

and carried to JGB Gumla Branch. He kept the bag

containing Rs. 5.00 lakh on the floor of Jharkhand Gramin

Bank, Gumla Branch without the knowledge of anyone and

went to cash counter to hand over the voucher related to

cash lifting/remittance. Later on cash bag containing Rs.

5.00 lakh was found lost resulting in financial loss to the

bank. Further, when he was posted at Chainpur Branch as

Cashier it is alleged that he paid amount of KCC

withdrawal Rs. 24,000/- each of 15 borrowers to a

mediator/broker Mr. Ajmal Khan @ Mantu instead of

paying the same directly to the borrowers/account holders,

which he confessed in his written statement dated

06.07.2012.

5. The writ petitioner denied the said charges by submitting

his reply but the same having been found to be not

satisfactory, charge was framed against the petitioner-

appellant vide letter dated 12.03.2014, which contains two

charges, which are quoted as under:

"Statement of Allegations in support of Article. I During you posting at Baghma branch, you were deputed to Gumla Branch on 06.09.2011 for cash lifting of Rs. 5.00 lacs. You received the cash for Rs. 5.00 lacs and the bag containing cash was stolen from the Bank's Gumla Branch. You are alleged to have committed following misconduct in this regard.

1) When you went to SBI Gumla branch for taking the cash, you did not submit the required debit voucher duly signed at its back at Gumla Branch.

II) You did not proceed to your branch directly after receiving the cash from SBI, Gumla branch.

III) You came to Gumla Branch on a motorcycle driven by your cousin, an outsider and an outsider should not be involved officially in cash movement in view of the security of cash. IV) You kept the cash inside the branch near the chair where branch manager Shri Krishna Kumar Keshri was working without informing him and outsiders had an easy access to that area. You abandoned the bag containing cash and parted with the cash irresponsibly and negligently. Statement of Allegations in support of Article. II You were posted at Chainpur Branch as Clerk-cum-Cashier during the period 16.01.2012 to 09.07.2012. You are alleged to have made cash payments to 15 KCC account holders on 26.05.2012 where you have committed following irregularities.

I) Against the withdrawal of Rs. 24000/- given by 15 KCC account holders, you paid the aggregate sum of Rs. 3,60,000/- to a third party Mr. Md. Azmal Khan alias Mantu. II) However, it was revealed that the borrowers received only Rs. 7,000/- each against their withdrawal slip of Rs. 24,000/- .

III) In connivance with the branch manager of Chainpur branch, you encouraged corrupt practices in KCC lending and allowed involvement of brokers like Md. Aznial Khan in the branch lending.

In the aforesaid manner, you remained gross negligent and irresponsible for safeguard the interest of the Bank which if proved, would amount to breach of Regulation No. 18 and 20 of the Jharkhand Gramin Bank (Officers and Employees) Service Regulations, 2010 and shall be liable for punishment under Regulation No. 39 of the same Regulations."

6. The enquiry officer accordingly submitted its finding

before the disciplinary authority which was accepted by the

disciplinary and order of 'removal from service which shall

not be a disqualification for future employment‟ was passed,

which was affirmed by the appellate authority. Being

aggrieved the writ petitioner approached this Court by filing

writ petition, which was also dismissed, hence, the present

appeal.

7. Mr. Sahdeo Choudhary, learned counsel for the

appellant-petitioner has submitted that there is no laches

on the part of appellant-employee since the amount which

was to be brought to the Baghma branch was having at

some distance and there was no security to carry the cash

amount from the main branch to Baghma Branch and

while he was depositing the voucher link bank, the bag

containing the cash was stolen, for which, the appellant-

petitioner lodged F.I.R. It has further been contended that

the said amount was insured as such the claim was raised

by the concerned bank and the insurance company paid

the said amount.

8. So far as second allegation is concerned, it has been

submitted that the entire amount was paid to be

beneficiary. Referring to enquiry report, it has been

submitted that the presenting officer did not produce

documents and witnesses to prove this charge and further

observe that the defence representative could not counter

the claim during cross-examination and also did not

submit his written brief despite giving sufficient time but in

spite of recording such finding the enquiry officer held the

charge under Article II proved, which is contrary to the fact

that three KCC beneficiary all along supported the case of

appellant and deposed that they have received their

amount from the bank, as such the finding recorded by the

enquiry officer is perverse. It has been submitted that the

rest beneficiaries ought to have been examined by the

enquiry officer but the same was not examined and enquiry

was closed finding the charge proved against the petitioner,

which was accepted by the disciplinary authority basis

upon which the impugned punishment was imposed, but

the learned Single Judge without appreciating these

aspects of the matter since has passed the order as such

the same requires interference by this Court.

9. Learned counsel for the appellant has submitted that the

enquiry report suffers from perversity as the enquiry has

been concluded without giving opportunity of hearing to the

appellant and charge has not been proved, more

particularly charge no. 2 has been found to be proved by

the enquiry officer even though taking note of the fact that

presenting officer did not produce documents and

witnesses to prove this charge and further observe that the

defence representative could not counter the claim during

cross-examination and also did not submit his written brief

despite giving sufficient time.

10. It has further been contended that the disciplinary

authority has taken into consideration the imputation of

charge of involving the cousin in carrying the cash of Rs.

500000/- [five lakhs], however, there is no reply to that

effect by the appellant but there is no finding to that effect

by the enquiry officer also but even then the same has been

accepted by the disciplinary authority basis upon which the

punishment of removal from service has been passed,

which is a major punishment and without taking into

consideration that the writ petitioner has rendered

unblemished service since 1985 i.e., about 29 years.

11. Learned counsel appearing for the appellant, on the

aforesaid premise, has submitted that the learned Single

Judge instead of considering the ground of perversity,

violation of principle of natural justice and inconclusive

report of the enquiry officer has gone into scope of judicial

review, which is to be considered by the High Court under

Article 226 of the Constitution of India.

12. It has been contended that the law is well settled

that there should be least interference by the High Court

sitting under Article 226 of the Constitution of India

wherein the re-appraisal of the evidence is not permissible

but even then if the enquiry report is perverse or there is no

proper consideration or due application of mind or violation

of principles of natural justice, then the order passed by the

disciplinary authority can well be interfered with by the

High Court under Article 226 of the Constitution of India

but this aspect of the matter has not been appreciated by

the learned Single Judge in right prospective, which is not

sustainable in the eye of law.

13. Per contra, Mr. A. Allam, learned senior counsel

appearing for the respondent-Bank has submitted by

defending the order passed by learned Single Judge by

taking the ground that the writ petitioner has been

provided with adequate and sufficient opportunity to defend

his case since there is no complaint whatsoever that the

principle of natural justice has ever been violated. It has

been contended that the enquiry officer has proceeded with

the enquiry after giving full opportunity to the writ

petitioner even for cross-examination of the witnesses and

hence it cannot be alleged that there was violation of

principles of natural justice.

14. Further contention has been raised that since the

enquiry officer has found both the charges proved and

same having been accepted by the disciplinary authority

which led the disciplinary to inflict the major punishment

of removal from service and as such the learned Single

Judge if has refused to interfere with the impugned order

by taking into consideration the fact that there will be least

interference by the Court in exercise of power conferred

under Article 226 of the Constitution of India, the same

cannot be said to suffer from any error.

15. In support of his argument, learned senior counsel

relied upon the judgment rendered in Union of India &

Ors Vs. P. Gunasekaran [AIR 2015 SC 545].

16. We have heard learned counsel for the parties,

perused the documents available on record as also the

finding recorded by learned Single Judge.

17. The issue which requires consideration is as to:

(i).Whether the High Court in exercise of power conferred

under Article 226 of the Constitution of India is strictly barred

from exercising the said jurisdiction in a case where the order

of dismissal is based upon enquiry report wherein charge has

not conclusively been proved due to want of cogent evidence

as per the recording to that effect made by the enquiry officer?

(ii).Whether the disciplinary authority has got jurisdiction to

go beyond the finding of the enquiry report while exercising

the power of disciplinary authority.

18. So far issue no. (i) is concerned, the law is well

settled so far as the scope of judicial review is concerned,

reference in this regard be made to the judgment rendered

by Hon'ble Apex Court in Indian Oil Corporation Ltd.

and Another Vs. Ashok Kumar Arora [ (1997) 3 SCC 72]

wherein at paragraph 20 it has been pleased to hold as

under :-

"20. At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/Authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non- observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and or the punishment is totally disproportionate to the proved misconduct of an employee. There is catena of judgments of this Court which had settled the law on this topics and it is not necessary to refer to all these decisions. Suffice it to refer to few decisions of this - 17 - Court on this topic viz., State of Andhra Pradesh Vs. S.Sree Rama Rao [1963 (3) SCR 25], State of Andhra Pradesh Vs. Chitra Venkata Rao [1976(1) SCR 521], Corporation of City of Nagpur and Anr. Vs. Ramachandra [1981 (3) SCR 22] and Nelson Motis Vs. Union of India and Anr. [AIR 1992 SC 1981]."

19. The Hon'ble Apex Court in the judgment rendered in

Lalit Popli Vs. Canara Bank & Ors [(2003) 3 SCC 583]

has been pleased to hold at paragraph 17 as under:

"17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate 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 adjudication of the case on merits as an appellate authority."

20. Likewise, the Hon'ble Apex Court in B.C.

Chaturvedi Vs. Union of India & Ors [(1995) 6 SCC 749]

at paragraph 12 held as under:

12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the

authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."

21. Further the Hon'ble Apex Court in the case of R.S.

Saini Vs. State of Punjab & Ors [1999 8 SCC 90], at

paragraph 16 and 17 held as under:

"16.Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non- application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.

17.A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring authority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority. Likewise, the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard."

22. It is evident from the aforesaid judgments that the

scope of power of judicial review is very limited and to the

extent that if there is perversity in the finding recorded by

the enquiry officer or there is violation of principles of

natural justice then only the decision taken by the

disciplinary/administrative authority can be interfered with

otherwise not. If finding of the enquiry officer is based upon

the cogent evident then the High Court in exercise of power

conferred under Article 226 of the Constitution of India

cannot be supposed to re-apprise the evidence. The

aforesaid law is well settled and subsequent thereto the

Hon'ble Apex Court has carved out the guideline to which

nature of cases, the interference is to be shown by the High

Court in exercise of power conferred under Article 226 of

Constitution of India and in which cases, the interference is

not permissible.

23. Reference in this regard be made to the judgment

rendered by Hon'ble Apex Court in the judgment rendered

in Union of India & Ors Vs. P. Gunasekaran (supra),

which is the case upon which learned counsel for the

respondent is also placing reliance, relevant paragraph 13

is quoted as under:

"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-

appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a 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 considerations extraneous to the evidence and merits of the case; e. 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.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in 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."

24. The Hon'ble Apex Court in the case

of Management of State Bank of India vs. Smita

Sharad Deshmukh and Anr. reported in (2017) 4 SCC

75, has laid down that it is equally settled position of law

that the High Court sitting under Article 226 of the

Constitution of India can certainly interfere with the

quantum of punishment, if it is found disproportionate to

the gravity of offence.

25. The Hon'ble Apex Court in Central Industrial

Security Force and Ors. vs. Abrar Ali, AIR (2017) SC

200, has laid down following guidelines at paragraph 8 for

interference by the High Court in the matter of punishment

imposed on conclusion of the departmental proceeding,

which is quoted herein below:

"8.Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence."

26. It is thus evident that it is not that there is absolute

bar under Article 226 of the Constitution of India in

showing interference with the administrative decision of the

disciplinary authority rather the same can be interfered

with depending upon the facts and circumstances the

particular case is coming under the guideline formulated by

Hon'ble Apex Court in Union of India & Ors Vs. P.

Gunasekaran (surpa) and others cases, as referred

hereinabove, or not.

27. Further, the Hon'ble Apex Court in the judgment

rendered in Allahabad Bank & Ors Vs. Krishna

Narayan Tewari [(2017) 2 SCC 308]; wherein the law has

been settled regarding the scope of judicial review which

has been held to be very limited but it has been laid down

therein that it is equally true that in a case where the

disciplinary authority records a finding that is unsupported

by any evidence whatsoever, the writ Court would be

justified, if not duty bound to examine the matter and grant

relief in appropriate cases.

28. For ready reference, relevant paragraph 7 of the

judgment is quoted as under:

"7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in

appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non- application of mind by the enquiry officer or the disciplinary authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the enquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority."

29. This Court is now proceeding to examine the factual

aspect of the given case. Admitted position is that the writ

petitioner was working as Clerk-cum-Cashier in Baghma

Branch, Jharkhand Gramin Bank and on a particular day

he was asked to carry an amount of Rs. 500000/- (five

lakhs) by way of remittance from Gumla Branch to Baghma

Branch. The writ petitioner received the cash which he put

in his bag but the bag containing cash was stolen from

Bank's Gumla Branch. The writ petitioner instituted an

F.I.R. to that effect, in which, final report was submitted. It

has been alleged that management of the bank has also

claimed the stolen amount, as the same was insured with

insurance company. However, decision was taken for

initiation of disciplinary proceeding, wherein two charges

were framed, which has been quoted above. The first charge

speaks that due to misconduct and negligence on the part

of appellant cash of Rs. 5 lakhs was stolen. The second

charge speaks that while making payment to 15 KCC

account holders, the appellant in connivance with the

branch manager of Chainpur branch encouraged corrupt

practices in KCC lending and allowed involvement of

brokers by making payment of aggregate sum of Rs.

3,60,000/- to a third party.

30. The writ petitioner replied to the said charge but the

reply having been found not satisfactory the enquiry

proceeded, in which, the enquiry officer found both the

charges proved and accordingly impugned punishment of

removal from service was passed, which was affirmed by

appellant authority.

31. This Court, in order to appreciate the argument

advanced on behalf of parties as to whether the case is

coming under the fold of violation of principles of natural

justice or the enquiry can be said to suffer from perversity,

deems it fit and proper to go through the enquiry report

which is available on record.

32. It is evident from the enquiry report so far it relates

to charge no. 1 is concerned, the same has been discussed

by the enquiry officer and found to be proved. It appears

from the reply submitted by the appellant that the writ

petitioner has shown its difficulty in carrying the amount of

Rs. 5 lakhs by way of remittance from the Gumla Branch to

the Baghma Branch of the bank, which is located at a

distance of 25 km but no commutation facility was provided

by the management of the bank and in that view of the

matter the appellant made his own arrangement for

carrying the said amount and when the appellant reached

to linked branch of the bank i.e., Gumla Branch, it was

stolen.

33. The issue of institution of F.I.R. was also raised by

the appellant. The enquiry officer has not dealt with the

issue of inconvenience caused to the appellant while going

for remittance of the amount in question by giving a finding

to that effect that what option was left with the appellant to

carry the amount from one branch to another, which is

located at a distance of 25 km. The imputation of charge is

for the purpose of security measure that he has taken the

services of his cousin as would appear from imputation of

charge.

34. However, the enquiry officer has not given any

finding with respect to aforesaid imputation as to why the

cousin, a third party, has been engaged whose services has

been taken by the writ petitioner in carrying out the

remittance amount of Rs. 5 lakhs.

35. This Court at this juncture needs to refer the

discussion made by the disciplinary authority so far as

charge no. 1 is concerned, wherefrom it is evident that the

enquiry officer has taken into consideration the fact that

the service of the third party i.e., cousin of the writ

petitioner was taken.

36. The question arises the disciplinary authority can

be said to have jurisdiction if the imputation of charge has

not been discussed at all by the enquiry officer?

37. The law is well settled that the disciplinary

authority is to act upon the finding recorded by the enquiry

officer either by accepting it or differing with the said

finding. In the case of acceptance the order of punishment

is to be inflicted as enshrined under the list of punishment.

But in a case of difference, the reason for such difference of

opinion with the enquiry officer is to be referred by giving

an opportunity to the delinquent-employee to make a

comment upon the same and thereafter the order of

punishment is to be passed but in no case the disciplinary

authority is to consider and pass order of punishment

based upon the imputation of charge if not at all discussed

by the enquiry officer. The relevant part of the enquiry

report is quoted as under:

Findings on Article-I On regular hearing dated 21.08.2014 Shri Kameshwar Oraon (MW-5) acknowledged that Shri Pravir Kumar Minz has received cash of Rs. 5.00 lacs at SBI, Gumla Branch and came along with him at Jharkhand Gramin Bank, Gumla Branch. The cash was found missing from Gurla Branch due to his inapt handling of cash and gross negligence as he did not take proper care of the cash lying in his bag.

On regular hearing dated 29.08.2014 Shri Krishna Kumar Keshri (MW-4) also confirmed thut Shri Minz came to Jharkhand Gramin Bank, Gumla Branch with cash of Rs. 5.00 lacs but the cash was found missing due to negligence of Shri Minz. The defence representative did not submit his written brief despite giving sufficient time and several reminders over telephone to submit the written brief.

As such the charges under Article-I is proved. Findings on Article-II On regular hearing dated 20.08.2014, Shri Rakesh Verma (MW-

1) acknowledged that no third party payment is allowed in payment of KCC accounts and cancellation of vouchers is required for above Rs. 20,000/-. On regular hearing dated 20.08.2014 Shri Mahendra Bhagat (MW-3) acknowledged that no KCC beneficiary came to the Chainpur branch on 26.05.2012 at the time of the payment of KCC accounts. During cross examination by the D.R., lie has confirmed that beneficiary must come to the branch to receive the cash. On regular hearing dated 21.08.2014, Shri Isidor Bara (MW-7) confirmed that duly discharged KCC withdrawals of all 15 KCC accounts were given to Shri Pravir Kumar Minz for payment. During cross examination of D.R., he denied of getting any complain regarding less payment by the cashier. But Shri Mahendra Bhagat confirmed that no KCC beneficiary came to branch on 26.05.2012.

More so as per ME-28, Shri Pravir Kumar Minz has acknowledged that he paid the KCC withdrawal amount to Shri Azmal Khan on the advice of the some of the present customers. Shri Azmal Khan has assured of giving the amount to KCC beneficiaries. As per ME-27 Shri Isidor Bara has confirined that the withdrawal amount of KCC beneficiaries were paid to Shri Azmal Khan due to posting done by the cashler before cancellation of the vouchers by him. Thus it is clear that withdrawal of KCC beneficiaries were paid to Shri Armal Khan by Shri Minz with the consent of branch manager. The MW-3 (Shri Mahendra Bhagat) has also confirmed that no beneficiary came to the branch on 26.05.2012. hearing dated 10.09.2014. All of them confirmed of taking payment of Rs. 24,000/- on 26.05.2012 but this is in contradictory of statement of MW-3 Shri Mahendra Bhagat who said The D.R. produced 3 KCC beneficiaries out of 15 to contradict the charges on regular that no KCC beneficiary came to the Branch on 26.05.2012.

In my opinion, some irregularities did occur during the payment of all 15 KCC accounts In spite of less documentary evidence to prove that only Rs. 7,000/- paid to each beneficiaries and the rest amount of Rs. 17,000/- paid to the said middle man Shri Azmal Khan. The presenting officer Shri Ashok Kumar Das also did not produce documents and witnesses to prove this charge.

The defence representative could not counter the claim during the cross examination. He also did not submit his written brief despite giving sufficient time to him.

Hence in my opinion the charges levelled against Shri Pravir Kumar Minz are proved on the basis of deposition of witnesses and documentary evidences.

As such the charges under Article-II is proved. This matter is being submitted for your kind perusal."

38. Now comparing it with the finding recorded by the

disciplinary authority wherein even though the fact of

service of man has not been discussed by the enquiry

officer but that has been considered while passing the order

of removal from service by the disciplinary authority.

39. This Court therefore is of the view that while doing

so the disciplinary authority has acceded its jurisdiction

and reason being that on the basis of imputation of charge,

even though the said imputation has not been discussed

and not proved by the enquiry officer, order of punishment

has been passed.

40. Mr. A. Allam, learned senior counsel appearing for

the bank has submitted that even accepting that there is

no discussion with respect to third party by the enquiry

officer but even then the fact about missing of Rs. 5 lakhs

since is proved therefore, the punishment imposed on that

ground cannot be said to suffer from error.

41. This Court is not in agreement with such

submission since the conduct of the disciplinary authority

is to be seen while exercising the power of the disciplinary

authority and if the disciplinary authority is acting with

malice mind or with vileness, as the case herein, even

though the enquiry officer has not discussed the charge of

taking service of third party (cousin) even then the

disciplinary authority on the basis of imputation of charge

has considered the case fit to impose major punishment of

removal from service. So far as missing of Rs. 5 lakhs is

concerned, it can be said to be negligence on the part of the

writ petitioner at best but there is no mala fide which can

be gathered from the conduct of the writ petitioner since

immediately thereafter he lodged F.I.R., wherein final form

has been submitted and it is stated that the said amount

may claim by the management of bank from the insurance

company since the same was insured. It is the case where

amount although has been stolen but the question is that

on that ground whether the punishment of removal from

service is the only punishment, which is the major

punishment and that too the same has been inflicted

without taking care of the fact that the writ petitioner was

in service since 1985 and he has rendered 29 years of

unblemished service with the bank.

42. This Court, therefore, is of the view that while

inflicting the major punishment even though with the rider

that removal from service shall not be a disqualification for

future employment is there but the question is that a man

of more than 50 years of age how he can be able to get a job

and in that circumstance the order of 'removal from service'

will have same effect as of 'removal from service which shall

not be a disqualification for future employment'.

43. The matter would have been different if the age of

delinquent-employee was within the consideration zone of

fresh appointment then it can be said to be lesser in gravity

to that of order of dismissal but this is not the fact herein.

44. Now shifting to the second charge, as would appear

from the report of the enquiry officer, that when two

grounds has been taken i.e., all the beneficiary have not

been permitted to brought for their examination rather only

three out of 15 beneficiaries have been permitted and all

the three have disclosed that they have got the amount in

entirety i.e., total amount of Rs. 24,000/- each. It is not the

case that the writ petitioner did not make prayer to that

effect but it appears from the enquiry proceeding that the

enquiry officer has refused to grant time on the ground that

the ample opportunity has already been given. The question

arises that when the three beneficiaries have been

examined then why not rest and what was the difficulty to

the enquiry officer in granting time to examine the

witnesses since the basic allegation was that the beneficiary

have been only paid Rs. 7000/- and 17000 has been taken

by the middle man and in such scenario it was incumbent

upon the enquiry officer who has interaction with the

beneficiary so as to come to the rightful conclusion

regarding the aforesaid charge but the said opportunity was

not given.

45. It is not in dispute that the enquiry officer while

working as enquiry officer is used to exercise quasi judicial

power meaning thereby he is to act independently with the

view of the disciplinary authority.

46. But it appears to this Court by denying the

aforesaid time to allow the writ petitioner to bring the rest

of the beneficiates the enquiry officer has failed in

discharging its quasi judicial function. Further, it would be

evident from the finding of the enquiry officer so far it

relates to charge under Article No. II that it has been

observed therein that the presenting officer Sri Ashok

Kumar Das also did not produce witnesses and document

to prove the charge.

47. But very surprisingly the enquiry officer has given a

finding that Charge No. II is proved on the basis of

deposition of witnesses and documentary evidence.

48. Then again the question arises when it is the

finding of the enquiry officer that the presenting officer did

not produce the witnesses and documentary evidence to

prove this charge then on what basis the charge no. II has

been found to be proved by the enquiry officer, it is not

apparent.

49. But the disciplinary authority also accepted the said

charge and thereafter the order of punishment has been

passed.

50. This Court on the basis of discussion made

hereinabove is now to assess as to whether the case is

coming under the fold of the guideline so as to interfere

with the impugned order so as to exercise power of judicial

review, as per the judgment rendered by Hon'ble Apex

Court in the case of Union of India & Ors. P.

Gunashekar (supra).

51. The aforesaid judgment propounded the guideline

that in a case of violation of principles of natural justice the

perversity in finding and if the disciplinary authority

exceeds its jurisdiction there can well be exercise of power

of judicial review by the High Court under Article 226 of the

Constitution of India.

52. Here, we are of the view on the basis of discussion

made hereinabove that by denying time to the delinquent-

employee (writ petitioner) to allow him to bring the

remaining beneficiaries is in violation of principles of

natural justice since the enquiry officer has not provided

adequate and sufficient opportunity.

53. Further, non-consideration of the reply submitted

by the writ petitioner regarding difficulties and no proper

arrangement having been provided by the management

shows that the enquiry officer has discarded the said

version, as was brought to the notice by the writ petitioner

hence on that ground we are not hesitant in coming to the

conclusion that due to non-consideration of the aforesaid

fact the report of the enquiry officer suffers from perversity.

Perversity means if any issue is being raised and it

remained unconsidered.

54. The position of law is well settled that the judgment

can be interfered with if the judgment suffers from

perversity and perverse finding is one if it is arrived at

without any material or if it is arrived or inference is drawn

without any material, which would not have been accepted

or relied upon by reasonable opportunity conversant with

the law. Reference in this regard be made to the judgment

rendered by the Hon'ble Apex Court in Kuldeep Singh vs.

Commissioner of Police and Ors., (1999) 2 SCC 10

wherein it has been held that "a broad distinction has,

therefore, to be maintained between the decisions which are

perverse and those which are not. If a decision is arrived at

on no evidence or evidence which is thoroughly unreliable

and no reasonable person would act upon, howsoever

compendious it may be, the conclusions would not be treated

as perverse."

55. This Court, on the basis of aforesaid discussion is of

the view that enquiry report suffers from perversity so far

charge no. 1 is concerned.

56. So far charge no. 2 is concerned, when the enquiry

officer has made an observation that the presenting officer

has not produced the witnesses and cogent evidence to

prove the charge but even then the charge has been proved

which according to our considered view is sufficient reason

to interfere with the impugned order under Article 226 of

the Constitution of India.

57. This Court, after having discussed the factual legal

aspect and coming to the order passed by the learned

Single Judge, wherefrom it is found that the learned Single

Judge has gone into the memorandum of charge, the

conduct but without taking into consideration the issue of

consideration of propriety of the decision taken by the

disciplinary authority if the enquiry report suffers from

perversity from the decision by the disciplinary authority is

excess to the jurisdiction or if the enquiry officer himself

has not found cogent evidence including the charge so far

charge no. 2 is concerned but even then the charge has

been proved, is of the considered view that the impugned

order passed by learned Single Judge suffers from an error.

58. Now the question would be that on the technical

ground if the interference is being shown whether the same

will be said to be proper?

59. The law is well welted that on technical ground no

one can be allowed to take advantage but that principle

depends upon facts of the case. Reference in this regard be

made to the judgment rendered in the case of Punjab

National Bank & Ors Vs. Kunj Behari Misra [(1998) 7

SCC 84] wherein exactly in similar case where due to

laches committed on the part of disciplinary authority the

order of punishment has been quashed by the Hon'ble Apex

Court but on the point of remand, the observation has been

made why to remand if any illegality has been committed

by the disciplinary authority that too when the concerned

delinquent employee has been forced to face the rigor of the

departmental proceeding fairly for a long period. The

relevant paragraph 21 of the same is quoted as under:

"21.Both the respondents superannuated on 31-12-1983. During the pendency of these appeals, Misra died on 6-1-1995 and his legal representatives were brought on record. More than 14 years have elapsed since the delinquent officers had superannuated. It will, therefore, not be in the interest of justice that at this stage the cases should be remanded to the disciplinary authority for the start of another innings. We, therefore, do not issue any such directions and while dismissing these appeals, we affirm the decisions of the High Court which had set aside the orders imposing penalty and had directed the appellants to release the retirement benefits to

the respondents. There will, however, be no order as to costs."

60. Same view has been taken by the Hon'ble Apex

Court in the case of Allahabad Bank & Ors Vs. Krishna

Narayan Tewari (supra), wherein also the issue was that

on the illegality committed by the disciplinary authority

why to put the delinquent employee again on rigor of

departmental proceeding. It is not that the disciplinary

authority is not knowing about its power and jurisdiction

and if they are discharging its duty of conducting the

departmental proceeding either of enquiry officer or the

disciplinary authority then why the delinquent employee

will suffer. Since herein the memo of charge was issued in

the year 2014 and delinquent employee was put in rigor of