Patna High Court
Mahesh Kumar Sinha vs The Board Of Directors And The on 1 July, 2024
Author: Rajesh Kumar Verma
Bench: Rajesh Kumar Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.23184 of 2011
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Mahesh Kumar Sinha S/o Late Lal Babu Sinha Resident of Mahallah Ambair
P.O. And P.S. Biharsharif, Distt Nalanda ... ... Petitioner/s
Versus
1. The Board of Directors And The Appellate Authority, Madhya Bihar Gramin
Bank, Meena Plaza, South Museum, Patna-1
2. The General Manager, Madhya Bihar Gramin Bank Meena Plaza South
Museum, Patna - 1
3. The Chairman And Disciplinary Authority Madhya Bihar Gramin Bank,
Meena Plaza Patna - 1
4. The Board of Directors And Appellate Authority of Nalanda Gramin Bank
Now Merged With Madhya Bihar Gramin Bank Biharsharif, Nalanda
5. The Chairman And Disciplinary Authority of Nalanda Gramin Bank Null
Now Merged With Madhya Bihar Gramin Bank Biharsharif, Nalanda
6. The Senior Manager Adm. Nalanda Gramin Bank Now Merged With
Madhya Bihar Gramin Bank Biharsharif
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Devi Kant Jha, Advocate
For the State : Mr. Sita Ram Yadav, GP 16
For the Bank : Ms. Archana Palkar Khopde, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL JUDGMENT
Date : 01-07-2024
Heard learned counsel for the petitioner, learned counsel
appearing on behalf of the respondent bank as well as learned
counsel appearing on behalf of the State.
2. The present writ petition has been filed for
quashing the order dated 17.11.2009 passed by the respondent no.
1 contained in letter dated 07.01.2010 communicated by
respondent no. 2 vide letter dated 07.01.2010 rejecting the appeal
dated 11.07.2009 of the petitioner without assigning any reason.
3. Learned counsel for the petitioner submits that the
petitioner has joined service in the erstwhile bank in the year 1980
as a clerk-cum-cashier. He further submits that the petitioner was
Patna High Court CWJC No.23184 of 2011 dt.01-07-2024
2/11
a Branch Manager at Branch Maraura in Nalanda Gramin Bank,
Biharsharif from 27.08.1990 to 09.03.1994. The bank later on
merged with the Madhya Bihar Gramin Bank and subsequently
merged in Dakshin Bihar Gramin Bank. He further submits that
the petitioner while working as an officer at Badi Branch of
erstwhile bank he was served with a show cause notice on
07.02.1995
alleging 7 points of charges enumerated in the
chargesheet under the provisions of Nalanda Gramin Bank
Karamchari Bind Service Regulation, 1980. The charges levelled
against the petitioner were not enumerated as misconduct under
said service regulation of erstwhile bank and called for
explanation. The petitioner requested the authority concerned to
supply the relevant documents to submit his explanation vide his
letter dated 07.04.1995 but the respondent no. 5 of the erstwhile
bank did not supplied the same and ordered for holding domestic
enquiry vide his letter dated 16.05.1995.
4. Learned counsel for the petitioner submits that
the respondent no. 5 of the erstwhile bank failed to supply the
documents as requested for, the petitioner could not prepare and
submit his explanation to the chargesheet. However, in absence of
the documents and non-submission of the explanation the
petitioner participated in the proceedings and again in the course
of proceedings requested the enquiry officer to direct the Bank
Patna High Court CWJC No.23184 of 2011 dt.01-07-2024
Management to supply the documents duly certified by the
Management of erstwhile Bank. The enquiry officer has submitted
his enquiry report dated 03.08.1999 in which he has admitted that
the presenting officer of the erstwhile bank failed to produce a
single witness in support of the charge levelled against the
petitioner and even then he gave finding the charge no. 4 is
partially proved and charge no. 5 is proved. The rest of the
charges i.e. 1, 2, 3, 6 and 7 are not proved. The respondent no. 5
differed with the findings of the enquiry officer with regard to the
charge no.1 and 4 and without affording any opportunity to the
petitioner awarded punishment as herein below:-
(i) Reduction of one annual increment in the time scale of pay
with immediate effect.
(ii) Not to treat the period of suspension from 20.07.1995 to
01.02.1998 as on duty.
5. The petitioner filed an appeal before the
appellate authority against the order of punishment but the
appellate authority rejected the appeal without assigning any
reason vide order dated 03.05.2001 communicated to the
petitioner vide letter dated 15.06.2001. Aggrieved by the action of
the respondents the petitioner has filed a writ petition bearing
CWJC No. 4198 of 2002 challenging the order of the respondent
nos. 4 and 5. The High Court after hearing the parties has been
Patna High Court CWJC No.23184 of 2011 dt.01-07-2024
pleased to quash the order of respondent nos. 4 and 5 vide order
dated 10.01.2008.
6. Learned counsel for the petitioner submits that the
in compliance of the order of the Hon'ble Court dated 10.01.2008
passed in CWJC No. 4198 of 2002, the respondent no. 3 served a
letter dated 04.12.2008 with a copy of enquiry report dated
03.08.1999 and called for comments from the petitioner within 15
days. The petitioner submitted his comments vide his letter dated
13.12.2008. The respondent no. 3 after receiving the reply from
the petitioner sent a letter dated 29.01.2009 for proposed
punishment and called for comments from the petitioner. The
respondent no. 3 sent a letter dated 13.02.2009 proposing
punishment and called for comments by 02.03.2009. The
petitioner informed the respondent no. 3 that since he was not held
guilty of charges, there was no question of awarding punishment
and no comments was needed to the proposed punishment. The
respondent no. 3 vide his letter dated 26.03.2009 intimated the
petitioner that in the last para of page no. 9 of the Memo dated
13.02.2009 the name of Sri Arbind Kumar was inadvertently
typed and it should be read as Sri Mahesh Kumar Sinha and
extended time for submission of reply by 27.04.2009. The
petitioner has submitted his reply to the memo dated 26.03.2009
of the proposed punishment in detail but the respondent no. 3 did
Patna High Court CWJC No.23184 of 2011 dt.01-07-2024
not considered the reply of the petitioner and vide his order dated
29.05.2009 confirming the punishment of the respondent no. 5 of
erstwhile bank dated 12.06.2000 and once again awarded the
same punishment.
7. The petitioner preferred an appeal before the appellate
authority stating therein that the findings of the disciplinary
authority that the charges are being based on documents is
therefore, against the law laid down by the Hon'ble High Court as
well as Hon'ble Apex Court. It is stated that the Circular No. 4 of
1990 dated 16.02.1990 and Circular No. 74 of 1990 dated
30.07.1990 did not specifically debarred that assets should not be
supplied to the borrowers from the supplier other than the supplier
listed in the circular approved by DRDA. In this case the
borrowers brought the quotations which were duly approved by
the purchaser committee members including the office of the
Block Office and DRDA Nalanda and assets were supplied by the
above said committee and the committee members duly signed it.
Hence, there was no irregularity in supplying the assets in face of
the approval of the purchase committee members. But the appeal
of the petitioner was rejected vide order dated 07.01.2010 without
assigning any reason as to how the points raised in the said appeal
was not satisfactory and the same was passed in violation of the
principles of natural justice for the reason that the respondent no.
Patna High Court CWJC No.23184 of 2011 dt.01-07-2024
1 (appellate authority) failed to afford an opportunity of hearing
before rejection of appeal as per the law settled by the Apex
Court.
8. Learned counsel for the petitioner submits that the
respondents have taken instance that all the charges are document
based and as such there is no necessity to examine or cross
examine the witnesses physically. He further relied upon the
paragraph nos. 6 and 7 of the judgment reported in 2000 (3)
PLJR 10 (Kumar Upendra Singh Parimar Versus B.S.Co-opt.
Land Dev Bank Limited) which are quoted hereinbelow;
"6. It has been urged by the respondents
that the charge sheet along with evidence
was served on the petitioner and the
petitioner was requested to see the D.V. file
on 20.9.91 and 15.6.92. A shadow file was
shown and a copy of the same was made
available to him. It has been stated that
since the original D.V. files were in the
custody of the police in connection with the
police case, therefore, the petitioner was
advised to see the original file by contacting
the police officer. It is further stated that the
petitioner did not file any application giving
the list of documents or the list of witnesses
to get them examined in the proceeding.
About the non-examination of the witnesses
in the enquiry, it has been stated in the
counter affidavit that the departmental
proceeding is not a judicial trial, and there
is no necessity to follow strictly the law of
evidence in such a proceeding.
7. The respondents further urged that in the
instant case charges are based on
documents and the authenticity of such
documents are not challenged. Therefore,
no witnesses need be examined. About
payment of subsistence allowance, the stand
taken in the counter affidavit is that the
Patna High Court CWJC No.23184 of 2011 dt.01-07-2024
petitioner has not co-operated in the
departmental proceeding. He did not
appear on the date fixed, and for giving him
notice to appear in the proceeding the
enquiry officer has to make publication in
the daily newspaper."
9. Learned counsel for the petitioner further submits
that appellate authority has relied upon L and A Circular No. 18 of
1989 dated 12.10.1989 and Circular No. 36 of 1988 dated
28.10.1988 while holding the petitioner guilty. It would be clear
from the chargesheet itself the the documents were not supplied to
him along with the chargesheet. He relied upon the judgment
reported in 1999 2 SCC 10 (Kuldeep Singh vs. Commissioner of
Police and ors.). The Hon'ble Apex Court held that the enquriy
officer did not sit with an open mind to hold an impartial domestic
enquiry which is an essential component of principle of natural
justice as also that no opportunity contemplated in Article 311(2)
of the Constitution of India. And in the aforesaid judgment it was
held that the reliance on the documents which was not mentioned
in the chargesheet could not be relied on or even recorded by the
disciplinary authority.
10. Learned counsel for the petitioner submits that
from perusal of the chargesheet that there is allegation that there
was violation of Circular No. 36 of 1988 the petitioner has
controverted the same. Now in the enquiry report the enquiry
officer for the first time recommended for violation of Circular
Patna High Court CWJC No.23184 of 2011 dt.01-07-2024
No. 36 of 1988 and in view of the aforesaid judgment (Kuldeep
Singh vs. Commissioner of Police and ors.) the case of the
respondents is not in accordance with the rule of the departmental
proceeding and the appellate authority also did not considered the
contention of the petitioner and the whole proceeding is based
upon the wisenest of the respondent authority and they have
predetermined to punish the petitioner. He further relied upon the
paragraph nos. 23 and 24 of the judgment passed in CWJC No.
7641 of 2004 passed on 23.08.2012 which are quoted
hereinbelow;
"23. So far the order of the appellate
authority dated 13.05.2001 communicated
to the petitioner vide letter dated
15.06.2001 (Annexure 1) is concerned, it is
quite apparent that it has not at all
considered the aforesaid points as well as
other points raised by the petitioner in his
memorandum of appeal and a vague,
cryptic and unconsidered order has been
passed by the appellate authority, which
cannot be sustained in the eye of law,
specially when the disciplinary authority
had also failed to consider the points raised
by the petitioner in its impugned order
dated 31.01.2000 (Annexure 1/1).
24. The law is well-settled that when an
appeal is disposed of on merit, the
impugned order merges in the order passed
by the appellate authority and hence if one
is found to be illegal, the other also has to
be set aside, specially when the points,
involved at both the stages, were exactly
similar. In this connection, reference may be
made to a decision of the Apex Court in
case of Sharda Singh vrs. State of Uttar
Pradesh and others, reported in (2009) 2
SCC (L&S) 665."
Patna High Court CWJC No.23184 of 2011 dt.01-07-2024
11. He further relied upon the paragraph nos. 3 and 4
of the judgment reported in 1998 (3) PLJR 413 (Brij Nandan
Sinha Versus State of Bihar) which is quoted herein below;
"3. Only grievance of the Petitioner in this
writ application is that for filing written
statement in the departmental proceeding
initiated against the Petitioner by order,
contained in air filing written suested the
conducting officer to supply seven papers,
details of which have been given in the
petition filed by the Petitioner before
enquiry officer on 15.7.1998, but the same
have not been supplied to him as yet.
4. In my view, prayer is reasonable and
must be granted. In view of these facts, Shri
Tilak Raj Gauri, Under Secretary-cum-
Enquiring Officer, Finance Department,
Government of Bihar, Respondent No. 3, is
hereby commanded to supply the aforesaid
papers to the Petitioner within a period of
one month from the date of
receipt/production of a copy of this order by
the Petitioner before Respondent No. 3, so
that the Petitioner' may file written
statement before the enquiry "officer. The
enquiry officer shall not take any step in the
disciplinary proceeding, so long he does not
furmish the aforesaid papers to the
Petitioner. With the aforesaid direction, the
writ application is, thus, disposed of."
12. Learned counsel appearing on behalf of the
Bank submits that the petitioner while posted at Branch Office,
Muraura committed several serious loan and routine irregularities
violating the bank's norms and abusing his official position. A
chargesheet dated 07.02.1995 was served upon the petitioner and
he was asked to submit his reply of the said chargesheet within 15
days and after giving due opportunity to the petitioner the
Patna High Court CWJC No.23184 of 2011 dt.01-07-2024
impugned order was passed in accordance with rule and there is
no infirmity in the impugned order and the petitioner was given
reasonable opportunity to defend his case and the respondent bank
was fair and partial to the petitioner in holding departmental
enquiry for aserting the veracity of charges attributed against the
petitioner and the respondent bank has given adequate opportunity
to the petitioner to defend his case and with respect to the
documents which was demanded by the petitioner were not
supplied to him as they were not relevant and were demanded
with sole intention to delay the enquiry. However, several other
relevant documents as demanded by the petitioner were made
available to him during enquiry proceeding and the proceeding
charges against the petitioner were based on documentary
evidence so there was no necessity to examine or cross examine
the witnesses physically and in the quasi judicial proceeding is not
mandatory to prosecute by adducing total evidence where charges
are totally based on documentary evidence. Having regard to the
rival submissions of the party, it would be clear that relevant
documents were not supplied to the petitioner, no witnesses were
examined in the present case and even the author of the
documents was not examined.
13. In view of the aforesaid and settled principle of
law, the order dated 17.11.2009 is hereby set aside and the writ
Patna High Court CWJC No.23184 of 2011 dt.01-07-2024
petition stands allowed. The respondent bank is directed to pay all
the consequential benefits to the petitioner within a period of 8
weeks from the date of production/receipt of copy of the order and
if the respondent bank fails to pay the consequential benefits
within the aforesaid time, the interest at the rate of 7% per annum
be charged on all the consequential benefits and the petitioner will
be made entitled from the date of dismissal till the date of actual
payment.
(Rajesh Kumar Verma, J)
Vanisha/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 01.07.2024
Transmission Date N/A
