1. Heard learned counsel for the petitioner as also learned counsel for the Bank.
2. Petitioner has approached this Court for quashing of order dated 20.8.2014 (Annexure 8), passed by the Appellate authority (respondent no.2),
whereby punishment of dismissal without notice has been inflicted on the petitioner by the Disciplinary Authority vide office order dated 28.12.2013
(Annexure 7) in terms of memorandum of settlement dated 10.4.2002.
3. Learned counsel for the respondent bank has taken preliminary objection regarding maintainability of the proceedings. He submits that the petitioner
being a workman within the definition of the Industrial Disputes Act, 1947 (herein after referred to as „the Actâ€), should have first approached the
appropriate Authority under the said Act. Relevant objection is made in the counter affidavit filed on behalf of the respondent bank.
4. The brief undisputed facts leading to the filing of the writ petition are that pursuant to the examination conducted on 22.11.2009 for appointment of
an assistant in the respondent bank the petitioner had appeared in the selection process. Having been found successful, he joined the service of the
respondent bank. Upon his joining on 15.12.2010, he was posted in Nokha branch of Rohtas district. Some anonymous complaint had been received
against the petitioner that he had not appeared at the examination and somebody else had impersonated him in the process of selection. Relying upon
such complaint, the bank conducted internal investigation. The report of the internal investigation is at Annexure A to the counter affidavit and the
same is dated 5.3.2011.
5. In order to ascertain whether the petitioner had actually appeared in the examination or not, the internal investigation officer has examined
petitionerâ€s signature and thumb impression and compared /verified the same with reference to the signature and thumb impression made at the
examination center. Opinion of the investigation officer casts a doubt on the photograph of the petitioner. Regarding signature he has stated that
signature on the call letter (Annexure II) also almost tallies, if seen with naked eyes, with the signatures taken on his statement/documents taken
subsequently (Annexure III, IV and V). Regarding thumb impression, opinion of the Investigating officer was that the comments regarding similarity
or otherwise of the thumb impression should be made by a technical expert only. On the basis of such findings, the Investigating officer submitted his
conclusion that the report of the Forensic expert/GEQD on the issue is required to arrive at a definite conclusion.
6. The same has been obtained from the Central Forensic Science Laboratory, Directorate of Forensic Science Services, Ministry of Home Affairs,
Government of India, 30, Gorachand Road, Kolkata, which under covering letter dated 26.9.2012 (Annexure B to the counter affidavit) has submitted
the report. Contrary to the recommendation of the Investigating officer, thumb impression had not been sent for technical/expert opinion and only
petitionerâ€s signature had been sent. Opinion on the same has been sent under the said covering letter. The opinion of the expert suggests that there
is a variation in the signature of the petitioner obtained for the propose of comparison with that of other documents.
7. Thereafter, one charge memo dated 21.6.2013 (Annexure 4) was served upon the petitioner. The Enquiry officer thereafter proceeded with the
enquiry and relying solely on the basis of the opinion of the hand writing expert, submitted by the report dated 23.9.2013 (Annexure 5), a conclusion
has been arrived at as follows:-
“FINDING OF ENQUIRY OFFICER
I, have perused prosecution/Defence documents, their written briefs and proceeding recorded in EPR to find out the fact of the allegations:
Since the person who actually wrote the written examination & qualified the written examination for appointment did not execute & signed
the documents pertaining to appointment. Therefore all the documents are forged and all statements made in document pertaining to CSE
employment in the Bank is false. The submission of defence that legal validity of an opinion of handwriting expert as an evidence must be
corroborated by other evidence, direct or circumstantial has no relevance in this case as the charge has been substantiated on the basis of
GDQD (Expert Agency) report which clearly states that „the person who wrote the blue enclosed signatures stamped and marked A1 to
A17 and S1 to S3 did not write the red enclosed signatures similarly stamped and marked Q1 and Q2.
The para 5(m) of Memorandum of settlement of Disciplinary Action Procedure for Workmen dated 10.04.2002 describes the acts and
omissions on the part of an employee of knowingly making false statement in any document pertaining to or in connection with his
employment in the Bank as Gross Misconduct.â€
8. It is pointed out by the learned counsel for the petitioner with reference to the enquiry report, that the defence plea taken in response of allegation
that the hand writing expert, i.e., the author of the report dated 26.9.2012, has not testified, was not considered by the Enquiry officer. The defence
plea that the opinion of the hand writing expert per se could not have been made the basis of proof of impersonation when the author of the report had
not been examined has not been considered. The defence plea was that the opinion of the hand writing expert has not been corroborated by other
evidence. It is also contended that in terms of the internal investigation report dated 5.3.2011 the bank was obliged to take technical/expert opinion on
the petitionerâ€s thumb impression, otherwise the whole purpose of obtaining thumb impression gets defeated. Another submission is that by doing so
grave prejudice has beeen caused to the petitioner as nobody knows what would have been the effect of such examination.
9. The petitioner has filed his reply to the second show cause before the Regional Manager, State Bank of India on 12.12.2013 (Annexure 6). He has
specifically raised the issue that the opinion of the handwriting expert was unreliable and that the author of the said report has not been called to testify
in support of the same. Thus the report could not have been relied upon by the Enquiry officer. This Court notices that non examination of the author
of the adverse handwriting expert opinion which is being relied upon also deprives the petitioner of his vital opportunity to cross examine the author of
the same.
10. It is also submitted by the petitioner in the response to the second show cause that he had given the signature and thumb impression on the Admit
card and Attendance sheet in the Examination Hall on 22.11.2009, but only the signature on the Admit card, marked Q1 and Q2 had been sent for
expert opinion and thus his thumb impression given on the Admit card and the Attendance sheet have not been dealt with in the report of the
handwriting expert. Learned counsel for the petitioner submits that thumb impression of the petitioner given on the Admit card and the Attendance
sheet should also have been sent for technical/expert opinion which would falsify the allegation against the petitioner. Merely on the opinion suggesting
the variation in the petitionerâ€s signature, he has been inflicted with the extreme and harsh punishment of dismissal without notice.
11. This Court would notice that the Disciplinary authority has inflicted the punishment under his order dated 28.12.2013. Perusal of the same shows
that there is no consideration of the aforesaid points raised by the petitioner. The order passed by the Disciplinary authority is without any
consideration whatsoever with respect to the petitionerâ€s plea regarding non examination of the author of the expert opinion against the petitioner
with respect to his signature, as also total non-consideration of the fact that his thumb impression on the Admit card as well as Attendance sheet have
not been sent to the Central Forensic Science Laboratry for expert opinion.
12. None of the pleas of the petitioner have been considered by the Disciplinary authority, though the order dated 28.12.2013 (Annexure 7) proclaims
to be “speaking orderâ€. The cryptic consideration of the Disciplinary authority is as follows:-
“2. On consideration of points raised by you in personal hearing dated 12.12.2013. I found no reason to review the tentative punishment
and hence I confirm my earlier tentative order conveyed to you vide my above mentioned show-cause memorandum inflicting upon you the
punishment of “Dismissal without notice†in terms of paragraph 6(a) OF Memorandum of Settlement of Disciplinary Action for
workmen dated 10/04/2002.â€
13. One of the submissions made by the counsel for the bank is that the fraud vitiates the case of the petitioner. Such submission could have been
taken into consideration if the respondent bank had established the fraud in accordance with law observing procedural fairness and after considering
all the material on record, which has not been done. Mere allegation of fraud cannot vitiate the case of the petitioner.
14. It is prima facie evident that such an order showing total non consideration of the facts as also non application of mind by the Disciplinary authority
in rejecting petitionerâ€s response without assigning any reason for rejecting the points raised in response to the second show cause, would not
subserve the Principle of Natural Justice. In light of the fact that order of Disciplinary Authority is grossly contrary to the Principle of Natural Justice
being a non speaking order, this Court is not inclined to entertain the preliminary objection regarding maintainability of the writ petition raised by the
learned counsel for the respondent bank.
15. Learned counsel for the petitioner submits that the impugned order of dismissal is in violation of the principle of the Natural Justice and the remedy
cannot be precluded by this Court while exercising the jurisdiction under Article 226 of the Constitution of India. Counsel for the petitioner while
submitting that such non-speaking and non reasoned order cannot be sustained has relied upon a decision in case of Sunil Soren Vs. The UCO Bank
through its General Manager and others, reported in 2014(4) PLJR 779. Paragraphs 13, 14 and 15 of the judgment are being reproduced herein:-
“13. Mr. Sinha is right in his submission while relying upon a judgment of this Court reported in 2000 (3) P.L.J.R. 64 (Chandradip Sinha
Vs. The State of Bihar & Ors.) to contend that the disciplinary authority was required to deal in his order as to why the defence of the
petitioner taken by him in course of the disciplinary proceeding and in his comments upon report of the enquiry officer was not acceptable.
14. I am of the view that such lapse on the part of the disciplinary authority not discussing the defence of the delinquent while passing the
order amounts to violation of principles of natural justice.
15. The order of the disciplinary authority impugned in the writ application does not reflect application of mind on the comments of the
delinquent i.e. petitioner on the report of the enquiry officer. The impugned order of the disciplinary authority dated 31.03.2008 (Annexure-
6) therefore cannot be sustained and is accordingly quashed. It is also well settled that if the order of the disciplinary authority is
unsustainable on the ground of lack of reasons, the order of the appellate authority cannot fill up the lacunae.â€
16. The petitioner had also filed an appeal against the said order of the Disciplinary authority. The same has also been rejected by order dated
20.8.2014 (Annexure 8), issued by the Appellate authority, the Deputy General Manager of the Bank. The same has reaffirmed the order of the
Disciplinary authority dated 28.12.2013. It also does not find consideration of the said points raised by the petitioner.
17. In view of the observations and findings recorded herein above, this Court would quash the order passed by the Disciplinary authority dated
28.12.2013 (Annexure 7) as also appellate order dated 20.8.2014 (Annexure 8). As a result of quashing of these two orders, the petitioner would be
entitled to reinstatement and all consequential benefits.
18. This order, however, shall not preclude the respondent bank to proceed against the petitioner from the stage of the second show cause.
19. The writ petition stands allowed to the extent indicated above.
