Patna High Court
Shailendra Kumar Sinha vs The Uttar Bihar Khetriya Grami on 16 December, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4129 of 2008
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Shailendra Kumar Sinha, son of Shri Rajendra Kumar Sinha, Resident of
Back of Zology Department, L.S. College, Mohalla- Damachok, P.S.- Kazi
Mohammadpur, District- Muzaffarpur.
... ... Petitioner/s
Versus
1. The Uttar Bihar Khetriya Gramin Bank, Head Office, Muzaffarpur.
2. Competent Authority cum Chairman, Uttar Bihar Khetriya Gramin Bank,
Head Office, Muzaffarpur.
3. Chief Manager, Uttar Bihar Khetriya Gramin Bank, Head Office,
Muzaffarpur.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Manoj Kumar Manoj, Advocate
For the Respondent/s : Mr. Prabhakar Jha, Advocate
Mr. Mukund Mohan Jha, Advocate
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
ORAL JUDGMENT
Date : 16-12-2021
In the instant petition, the petitioner has prayed for the
following releifs:
That this writ application/petition is being
filed on behalf of the petitioner before this Hon'ble
High Court for issuance of an appropriate writ/writs,
order/orders, direction/directions for quashing the
order dated 13.12.2007 passed by the Board of
Directors headed by Sri R.B. Yadav, Chief Manager,
head office, Uttar Bihar Khetriya Gramin Bank, Head
Office, Muzaffarpur whereby and where-under the
board illegally as well as in arbitrary manner has
upheld the punishment of dismissal awarded by the
disciplinary authority without considering the fact that
petitioner was dismissed after waving the departmental
proceeding and no reason for doing so has been
recorded in writing and place before board which is
Patna High Court CWJC No.4129 of 2008 dt.16-12-2021
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mandatory according to the regulation 39(b) of
Vaishali Khetriya Gramin Bank (officer & employees)
service regulation 2000."
2. The petitioner was an officer of the respondent Bank
as on the date of dismissal i.e. 18.05.2006.
3. While the petitioner was in service, he was involved
in a criminal proceeding on the alleged demand and acceptance of
illegal gratification and it was the subject matter of criminal case
in which he was convicted on 02.05.2006.
4. Based on the conviction order dated 02.05.2006, the
respondent Bank proceeded to dismiss the petitioner from service
on 18.05.2006 (Annexure-3). Feeling aggrieved and dissatisfied
with the order of dismissal, petitioner preferred appeal before the
Appellate Authority on 01.07.2006 and it was rejected on
13.12.2007 (Annexure-5). Thus the petitioner is before this Court
in respect of challenge to the order of dismissal and the Appellate
Authority order.
5. Learned counsel for the petitioner submitted that the
petitioner was convicted in criminal proceeding with reference to
offences under the Prevention of Corruption Act, 1988 read with
Indian Penal Code on 02.05.2006 in RC No. 4(A) 2003. Based on
the conviction, he has been dismissed from service on 18.05.2006
and the order of dismissal dated 18.05.2006 is not in terms of
Patna High Court CWJC No.4129 of 2008 dt.16-12-2021
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Vaishali Kshetriya Gramin Bank (Officer & Employees) Service
Regulation, 2000, now renamed as Uttar Bihar Gramin Bank, 2006
(for short "Regulation 2006"). The petitioner's counsel submitted
that there is non-compliance of Regulation no. 39 relating to
Waiver of the procedure of Regulation 2006.
6. Learned counsel for the respondent resisted the
aforesaid contention and submitted that dismissal order dated
18.05.2006 is in terms of Regulation No. 38 and 39 is not attracted
in the present case.
7. Heard learned counsels for the respective parties.
8. Undisputed facts are that the petitioner was working
with the respondent Bank as an Officer. He was involved in a
criminal case relates to demand and acceptance of illegal
gratification, for which he was subjected to criminal proceeding
and it was concluded in conviction on 02.05.2006.
9. Based on the conviction order dated 02.05.2006, the
respondent proceeded to dismiss the petitioner from service on
18.05.2006. Order of dismissal dated 18.05.2006 reads as under:
UBKGB/HO/DAW/02/06-07/No. 29 date: 18-05-2006
ORDER
Sri Shailendra Kumar Sinha, Officer is hereby informed that in
Special Case No.5/03 / R.C. 4(A) 2003 the Special Judge,
Central Bureau of Investigation North Bihar Patna has sentenced
him for two years rigorous imprisonment on 02-05-2006.
Patna High Court CWJC No.4129 of 2008 dt.16-12-2021
In view of above conviction of Sri Shailendra Kumar Sinha, he
is hereby dismissed from the service of bank with effect from
02-05-2006 under Regulation 29(3)(a) read with regulation
38(1)(b)(v) of Earstwhile VAISHALI KSHETRIYA GRAMIN
BANK (OFFICER & EMPLOYEES) Service Regulation, 2000
and notification of Govt. of India, Ministry of Finance,
published in Gazette of India, extraordinary in part II section 03,
sub-section (ii) dt. 1st March 2006.
(S.N. MEHROTRA)
COMPETENT AUTHORITY
CUM CHAIRMAN
10. The petitioner had preferred appeal. The Appellate
Authority passed the following order:
"Head Office Letter No. DAW/03/2007-08/616 date: 13.12.2007
Sri Shailendra Kumar Sinha
S/O Sri Rajednra Kumar Sinha
Dhamuchak
Behind of University (Biology Deptt.,)
Muzaffarpur
Reg.: Your appeal dated 01.07.2006 against the order of
Disciplinary Authority in respect of penalty awarded to you.
Sri Shailendra Kumar Sinha, Branch Manager (Dismissed) is
hereby informed that his appeal dated 01.07.2006 against the
order of Disciplinary Authority dated 18.05.2006 inflicting upon
him the penalty of "Dismissal from the service of bank w.e.f.
02.05.2006 under Regulation 29(3)(a) read with regulation
38(1)(b)(v) of Vaishali Kshetriya Gramin Bank (Officers &
Employees) Service Regulation, 2000" The appeal of Mr Sinha
dated 01.07.2006 was placed before Sub Committee constituted
Patna High Court CWJC No.4129 of 2008 dt.16-12-2021
by Board Of Directors and decision of Sub Committee was
placed before the Board Of Directors in their meeting held on
31.10.2007. The Board of Directors approved the following
decision of the Sub Committee.
The Sub Committee observes that Mr Sinha has been convicted
by the CBI Court for criminal offence attracting moral turpitude.
So, The Disciplinary Authority has rightly issued the order of
dismissal from the bank's service. Further, the Hon'ble High
Court, has not granted any relief in the case of prosecution given
by the CBI Court.
It is settled law that the disqualification to continue in service in
a case where a person has been convicted for an offence
involving moral turpitude attached to the conviction, not to the
sentence. Being released on bail has the effect only of
suspending the sentence. So, even if he is released on bail, it is
of no help to him. As such, the Sub Committee do not find any
merit in his appeal and uphold the punishment of dismissal
awarded by the Disciplinary Authority.
However, the sub committee decided that the appellant may be
paid the salary of the intervening period i.e. the date of effect of
punishment and the date of receiving of the punishment order up
to which he worked in the bank."
Sd/-
(R. B. YADAV)
CHIEF MANAGER
11. Undisputedly, based on the conviction order dated
02.05.2006, the respondent Bank has not initiated disciplinary
proceeding so as to impose penalty, since Bank is not required to
initiate proceedings and impose any one of the penalty under
Patna High Court CWJC No.4129 of 2008 dt.16-12-2021
Regulation 38. In other words, there is provision called as Waiver
of the procedure, which is Regulation No. 39, which reads as
under:
"39. Waiver of the procedure
The requirements of Regulation 38 may be waived by
the Competent Authority:
(a) If the facts on the basis of which penalty is to be
imposed on the officer or employee have been
established in the Court of Law or Court martial; or
(b) Where the officer or employee has been convicted
on a criminal charge; or
(c) Where the officer or employee has been absconding;
or
(d)Where it is for any other reason impracticable to
communicate with him; or
(e) Where it is reasonably not practicable to observe
the procedure prescribed under Regulation 38:
Provided that no requirements of Regulation 38 may be
waived unless reasons for doing so are recorded in
writing and placed before the Board."
12. Regulation 29 relating to Officer or employee
arrested for debt or on a criminal charge reads as under:
29. Officer or employee arrested for debt or on a
criminal charge
(1) An officer or employee who is arrested
for debt or on a criminal charge or is detained in
pursuance of any process of law, may, if so directed by
the Competent Authority, be treated as being or having
been under suspension from the date of his arrest, or as
Patna High Court CWJC No.4129 of 2008 dt.16-12-2021
the case may be, of his detention, up to such date or
during such period as the Competent Authority may
direct:
Provided that in respect of the period in
regard to which he is so treated he shall be paid
subsistence allowance as specified in Regulation 44.
(2) Any payment made to an officer or
employee under Sub-Regulation (1) shall be subject to
adjustment of his pay and allowances which shall be
made according to the circumstances of the case and in
the light of the decision as to whether such period is to
be accounted for as a period of duty or leave:
Provided that full pay and allowances shall
be admissible only if the officer or employee-
(a) is treated as on duty during such period,
and
(b) is acquitted of all charges or satisfies the
Competent Authority, in case of his release from
detention or his detention being set aside by the
Competent Court, that he had not been guilty of
improper conduct resulting in his detention.
(3) (a) An officer or employee shall be
liable to dismissal or to any of the other penalties
referred to in Regulation 38, if he is committed to
prison for debt or is convicted of an offence which in
the opinion of the Competent Authority, either
involves moral turpitude, or has a bearing on any of
the affairs of the Bank or on the discharge by the
officer or employee of his duties in the Bank, the
opinion in this respect of the Competent Authority
shall be conclusive and binding on the officer or
employee.
Patna High Court CWJC No.4129 of 2008 dt.16-12-2021
(b) Such dismissal or other penalty may be
imposed as from the date of his committal to prison or
conviction and nothing in Regulation 38 shall apply to
such imposition.
(4) Where an officer or employee has been
dismissed in pursuance of Sub-Regulation (3) and the
relative conviction is set aside by a higher court and the
officer or employee is honourably acquitted, he shall be
reinstated in service.
(5) Where the absence of an officer or
employee from duty is without leave or his overstayal is
due to his having been arrested for debt or on criminal
charge or to his having been detained in pursuance of
any process of law, the provisions of Regulation 22
shall also apply and for the purpose of that Regulation
as so applied, the officer or employee shall be treated as
having absented himself without leave or as the case
may be, overstayed otherwise than under circumstances
beyond his control."
13. In order to ascertain whether is there any compliance
to Regulation 39 in particularly Proviso that the "Provided that no
requirements of Regulation 38 may be waived unless reasons for
doing so are recorded in writing and placed before the Board."
Emphasis supplied
14. Perusal of dismissal order dated 18.05.2006
extracted above do not reveal of recording reasons in writing so as
to waive of the procedure and imposition of any one of the penalty
under Regulation 38.
Patna High Court CWJC No.4129 of 2008 dt.16-12-2021
15. Regulation 29 cited on behalf of the respondent
Bank is relating to Officer or employee arrested for debt or on a
criminal charge. No doubt Sub-Rule 3 empowers the competent
authority to dismiss or to impose any other penalty under
Regulation 38, if employee/officer his committal to prison for debt
or for convicted for an offence. At the same time, it is to be noted
that in the present case no enquiry has been held, therefore, what is
attracted is Regulation 39 cited (supra). The respondents counsel
contention that if Regulation 29 is read with Regulation 38 is
invoked in that event the matter need not be placed before the
Board.
16. On the other hand, reading of the Appellate
Authority order dated 3.12.2007, it is evident that matter was
placed before the Board with reference to Sub-Committee decision
dated 31.10.2007 i.e., during pendency of the petitioner's appeal
and not before dismissal order.
17. In other words, the matter was placed before the
Board at the time of deciding the petitioner's appeal pursuant to
his appeal dated 01.07.2006. Meeting was held by the Board of
Directors on 31.10.2007. Therefore, the petitioner has made out a
prima facie case that there is non-compliance of Proviso to
Regulation No. 39 cited (supra), which is one of the requirement
Patna High Court CWJC No.4129 of 2008 dt.16-12-2021
before imposing any of the penalty under Regulation 38 recording
of reasons in a Board meeting.
18. In the light of these facts and circumstances, the
petitioner has made out a case, so far as interfere with dismissal
order dated 18.05.2006 (Annexure-3) and Appellate Authority
order dated 13.12.2007 (Annexure-5) and they are set aside.
19. The petition stands allowed.
20. The concerned Bank respondent is hereby directed to
extend all consequential benefits pursuant to quashing of dismissal
order dated 18.05.2006 (Annexure-3) and Appellate Authority
order dated 13.12.2007 (Annexure-5) within a period of three
months from the date of receipt of this order.
(P. B. Bajanthri, J)
uday/-
AFR/NAFR NAFR
CAV DATE 23.12.2021
Uploading Date NA
Transmission Date NA
