Biswanath Parhi vs United Commercial Bank &
2023 Latest Caselaw 11738 Ori

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               IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  OJC No.7096 of 1999

          In the matter of an application under Article 226 and 227 of the
          Constitution of India

           Biswanath Parhi                    ....                  Petitioner


                                        -versus-

           United Commercial Bank &
           others                             ....           Opposite Parties


                      For Petitioner : Mr. S.N. Panda, Advocate
                      For Opposite Parties : Mr. A.K. Nath, Advocate

               CORAM: JUSTICE V. NARASINGH
                               Date of hearing : 01.05.2023

                              Date of judgment : 27.09.2023

V. Narasingh, J.

1. The Petitioner while working as Assistant Manager of UCO Bank, Dola Sahi Branch, a show cause was issued to him for alleged irregularities committed during his incumbency at Khaira Branch from 15.06.1987 to 06.02.1993. On consideration of his reply, charge sheet was issued to him on 14.03.1997 detailing allegations on three counts and subsequent to issuance of such charge sheet and after conduct of inquiry, an inquiry report was submitted to the disciplinary authority who after giving the Petitioner opportunity of personal hearing affirmed the order passed by the inquiry authority vide dated 30.12.1998 at Annexure-9 and

OJC No.7096 of 1999 the same was affirmed by the appellate authority vide order 4.5.1999 at Annexure-11.

1.A The writ petition has been filed assailing the order of framing of charge, initiation of the proceeding, the finding arrived at the inquiry officer, the order of the disciplinary authority and the order of the appellate authority at Annexures- 5(a), 7(a), 9 and 11 respectively.

2. For convenience of ready reference the Charge Nos.1 to 3 are extracted hereunder:

"Charge No.1 :

Shri Biswanath Parhi received cash deposit from LBY agent which was less than the amount mentioned in the daily collection sheets submitted by the agent, on various dates, spread over a period of 3 ½ years, without verification. On account of his such action, a sum of Rs.3,32,396/- was less deposited in the Bank. Shri Parhi by his such action as committed a grave misconduct and failed to protect the interest of the Bank and did not discharge his duties with integrity, devotion, honesty and diligence and thereby contravened Regulation 3(1) of UCO Bank Officers Employees Conduct Regulation 1976 as amended.

Charge No.2 :

Shri Biswanath Parhi not only failed to receive cash deposit from LBY agent as per the daily collection sheet but also paid commission to the LBY agent based on the amount mentioned on the daily collection sheet, even though full amount has not been deposited in the Bank.

He has thus caused payment of excess commission of Rs.5051/- to the agent. By his such acts, Shri Parhi had committed grave misconduct and failed to protect the interest of the Bank and did not perform his duties with diligence, devotion, honesty and integrity and thereby

OJC No.7096 of 1999 contravened Regulation 3(1) of the UCO Bank Officer Employees (Conduct) Regulation 1976 as amended. Charge No.3 :

Shri B. Parhi had acted in an irregular and negligent manner in his dealing of LBY accounts, viz.

(i) Permitted closure of LBY No.727 of Laxmidhar Jena without adjusting the loan given against that deposit by him earlier.

(ii) By giving credit to LBY A/c No.1078 without corresponding credit voucher.

(iii) Transferring an amount of Rs.5000/- from LBY A/c No.270 to FD A/c. By his such action, he had caused pecuniary loss to the Bank of Rs.5719/-, Rs.2650/- and Rs.4985/- in the 3 A/cs respectively. Shri Parhi had by his such actions committed a grave misconduct and failed to protect the interest of the Bank. He did not perform his duties with utmost integrity, honesty, devotion and diligence thereby contravened Regulation 3(1) of UCO Bank Officer Employees (Conduct) Regulations 1976 as amended.

3. To substantiate the article of charges, statement of allegation was annexed thereto. In response thereof, as the Petitioner denied the charges, the Enquiry Officer was appointed and he conducted enquiry and submitted his report dated 30.11.1998 to the disciplinary authority. It is apt to note here that the Enquiry Officer found the Petitioner guilty of all the charges. The disciplinary authority gave an opportunity of hearing before imposing proposed penalty and subsequently by the final order at Annexure-9 exercising power vested in him as a disciplinary authority in terms of Regulation of UCO Bank Officer Employees (Conduct) Regulation 1976 (hereinafter referred to as "Regulation 1976") as amended with Regulation 4 thereof levied the following penalties on the Petitioner. The same is quoted hereunder:

OJC No.7096 of 1999 "Charge No.1 - PROVED - Sri Biswanath Parhi, PF No.27164 be removed from Bank's service which will not be a disqualification for his future employment.

Charge No.2 - PROVED - The basic pay of Sri Biswanath Parhi, PF No.27164 be brought down by three stages from Rs.7820/- to Rs.7130/- in the scale of pay applicable to him for a period of three years. It is further directed that during the said period Sri Biswanath Parhi will not earn any increment and on expiry of the said period the reduction in basic pay will have the cumulative effect of postponing his future increments.

Charge No. 3 - PROVED - The basic pay of Sri Biswanath Parhi, PF No.27164 be brought down by three stages from Rs.7820/- to Rs.7130/- in the scale of pay applicable to him for a period of three years. It is further directed that during the said period Sri Biswanath Parhi will not earn any increment and on expiry of the said period the reduction in basic pay will have the cumulative effect of postponing his future increments."

4. The appeal was preferred by the Petitioner which is on record at Annexure-10. In the appeal while contesting the finding of the disciplinary authority it was, inter alia, stated that the punishment awarded is highly disproportionate and it was the further submission that there has been patent violation of Regulation 6(17) of Regulation 1976.

5. Paragraph-9 of the memorandum of appeal relates to violation of Regulation 6 (17) of Regulation 1976. The copies of the said Regulation have been placed on record by way of memorandum. Regulation 6 deals with procedure for imposing major penalties.

6. It is the submission of the learned counsel for the Petitioner that since in the case at hand admittedly there has been total violation of Regulation 6(17) of Regulation 1976, the

OJC No.7096 of 1999 disciplinary proceeding and the order of the appellate authority are liable to be quashed. To fortify his submission, he has relied on the judgments of the Apex Court in the case of Union of India and others vrs. P. Gunasekaran, (2015) 2 SCC 610, Commissioner of Police vrs. Sat Narayan Kaushik, (2016) 6 SCC 304, more particularly paragraphs 15 and 19 thereof and Inspector of Panchayats and District Collector, Salem vrs. S. Arichandran and others, AIR 2022 SC 4611.

7. In opposition, learned counsel for the Bank, Mr. Nath submitted that the Petitioner was a Chief Cashier of the Bank and because of his action and inaction a sum of Rs.3,32,396/- was found less deposited in the Bank relating to the collection under the Laghu Batchat Yojana (LBY). He submitted that since the Petitioner did not perform his duty with due diligence which is expected from an employee of a Bank and it is a case of misappropriation by an employee of a public sector employee as such, no leniency can be shown to him and the writ petition is liable to be rejected. To fortify his submission, learned counsel for the Bank relied on the decisions in the case of Deputy General Manager (Appellate Authority) and others vrs. Ajai Kumar Srivastava, (2021) 2 SCC 612 and order of this Court in the case of Ajoy Kumar Praharaj vrs. Chairman, Utkal Gramya Bank and others (WP(C) No.25141 of 2012 disposed of on 02.01.2023) and seeks dismissal of the writ petition.

8. Contours of interference of a disciplinary proceeding have been well outlined. In P. Gunasekaran (supra) relied on by the learned counsel for the Petitioner, the Apex Court expressed its

OJC No.7096 of 1999 dismay that the High Courts are acting as an appellate authority in the disciplinary proceeding, reappreciating the evidence adduced before the enquiry officer and restated the dos and don'ts by the High Courts in matters relating to disciplinary proceeding. Paragraphs 12 and 13 thereof are extracted as under for convenience of ready reference:

"12. 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, reappreciating even the evidence before the enquiry officer. The finding on Charge I 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 Articles 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.

13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate the evidence;

OJC No.7096 of 1999

(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."

9. The same view has also been reiterated by the Apex Court in the case of Ajai Kumar Srivastava (supra).

10. The statutory rules governing the disciplinary proceeding have been placed on record. It is one of the submissions of the learned counsel for the Petitioner that there has been violation of Regulation 6(17) of Regulation 1976. The said Regulation reads as under :

"(17) The inquiry authority may, after the officer employee closes his evidence, and shall, if the officer employee has not got himself examined, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer employee to explain any circumstances appearing in the evidence against him."

11. In the case at hand admittedly the delinquent officer has not got himself examined and hence it was incumbent upon the inquiry authority to give an opportunity of hearing in terms of the said Regulation. The same allegedly having not been done such ground was taken in the memorandum of appeal filed by the present Petitioner. Paragraph-9 of the memorandum of appeal refers to the same and is quoted hereunder:

"9. Sub-Regulation (17) of Regulation 6 of UCO Bank Officer Employees (Discipline & Appeal) Regulations, 1976, lays down as follows: -

OJC No.7096 of 1999 The inquiring, authority may, after the officer employee closes his evidence and shall, if the officer employees has not got himself examined, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer employee to explain any circumstances appearing in the evidence against him."

In paragraph no.10, 16 (Page No.60) of Manual on Disciplinary Action and Related Matters, the Head Office directs as follows:-

"The charge-sheeted officer employee may examine himself in his own behalf if he so prefers. After the officer employee closes his evidence, the Enquiry Officer must, if the officer employee has not got himself examined during the inquiry, generally question him on the circumstances appearing against him......"

The above must-procedure was not followed by the Enquiry Officer. Even though I did not examine myself in the inquiry in my own behalf, the Enquiry Officer did not give me the chance scope of explaining my position as contemplated in the above obligatory provisions."

(Emphasized)

12. The appellate authority while passing the order at Annexure-11 confirmed the order of the disciplinary authority dealt with the charges leveled against the delinquent officer and the findings relating to the same and concurred with the views expressed by the disciplinary authority and referring to Regulation 1976 dismissed the appeal preferred by the delinquent-Petitioner.

But conspicuously there is no reference to the stand of the Petitioner relating to infraction of Regulation 6(17) of Regulation 1976 in the memorandum of appeal adverted to hereinabove.

13. In paragraph-15 of the writ petition the Petitioner has taken a specific stand relating to violation of mandatory requirement of giving

OJC No.7096 of 1999 opportunity in the given circumstances since he has not got himself examined. Recitals in the said paragraph are extracted hereunder:

"xxx xxx xxx In the appeal, the petitioner raised the contentions in para-9 and 23 of the appeal memo regarding non affording of the mandatory requirement of giving opportunity of hearing of both the instances i.e. by the enquiring officer and the disciplinary authority, besides the contention that he is not liable for the charges."

14. The Opposite Party-Bank chose to give a vague reply to such specific assertion of the Petitioner in the writ petition as well as the memorandum of appeal. Recitals of which have already been taken note of. The averments in paragraph-14 of the counter are quoted under:

"14. That the averments made in para-15 of the writ application, it is humbly submitted, that the appellate authority disposed of the appeal after considering all the materials available and following the provisions of the Regulations. The allegation that the Inquiring Officer and the Departmental Authority did not give any personal hearing to the petitioner is misconceived. As stated earlier, the Inquiring Officer as well as the Departmental Authority followed the procedures laid down in the Regulations. At the same time, the said Authorities also given adequate opportunities of personal hearing to the petitioner in consonance with the rules. Thus the allegations leveled are mischievously false and the same are hereby stoutly denied."

15. And, Opposite Party-Bank have chosen to ignore such specific assertion.

16. In paragraph-16 of the rejoinder, the Petitioner has reiterated the violation of the mandatory provisions relating to Regulation 6(17) of Regulation 1976.

OJC No.7096 of 1999

17. On a bare perusal of the said Regulation, it can be seen that in the event delinquent officer has not got himself examined during the inquiry, it would be incumbent upon the inquiry officer to generally question him on the circumstances appearing against him. This is a self- contained safeguard against arbitrariness as a facet of principles of natural justice, which in the case at hand, has been violated in toto.

Hence, the question has to be answered to what relief the Petitioner would be entitled to in the face of such violation.

18. In this context, it is apposite to refer to the judgment of the Apex Court in the case of Chairman, LIC of India & others vrs. A. Masilamani, (2013) 6 SCC 530 wherein it has been held that once the Court sets aside an order of punishment on the ground of improper conduct of the enquiry, it must remit the matter to the disciplinary authority to conduct the enquiry from the point that it stood vitiated and conclude the same. Para-9 thereof is quoted hereunder:

"9. It is a settled legal proposition, that once the Court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the Court cannot reinstate the employee. It must remit the concerned case to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same....."

18-A. Following the above dictum wherein the case law governing the field till the date of the said judgment has been referred to and the latest judgments of the Apex Court in the case of S. Arichandran (supra) and State of Uttar Pradesh and others vrs. Rajit Singh, 2022 SCC OnLine SC 341, since there is patent violation of Regulation 6(17) of Regulation 1976 by the Opposite Party-Bank, this Court has no alternative but to relegate the matter to the stage where the Petitioner shall be given an

OJC No.7096 of 1999 opportunity in terms of Regulation 6(17) of Regulation 1976 and consequentially the order of the disciplinary authority as well as appellate authority are hereby set aside.

19. The exercise in terms of Regulation 6 (17) of Regulation 1976 relating to the materials collated during inquiry shall be completed within a period of two months from the date of receipt/production of a certified copy of this order and consequential order as envisaged under the said Regulation shall be passed within one month thereafter.

20. It is needless to state that the Petitioner shall be at liberty to invoke the jurisdiction of the appellate authority in the event the order passed by the disciplinary authority is adverse to him.

21. The writ petition is accordingly disposed of. No costs.

(V. NARASINGH) Judge

Orissa High Court, Cuttack Dated the 27th September, 2023/ Pradeep

Signature Not Verified Digitally Signed Signed by: PRADEEP KUMAR SWAIN Designation: A.R.-cum-Sr. Secy.

Reason: Authentication Location: Orissa High Court, Cuttack Date: 29-Sep-2023 16:53:50

OJC No.7096 of 1999