@JUDGMENTTAG-ORDER
S.P. Singh, J.@mdashThe petitioner, who was an Assistant Manager in Middle Management Grade (hereinafter referred to as "the M.M. Grade") scale in Patna Main Branch, State Bank of India, prior to his suspension and dismissal, prays for the following reliefs:--
(i) For quashing enquiry report dated 15.11.2006 (Annexure-8),
(ii) for quashing of order of disciplinary authority dated 20.2.2007 (Annexure-11) by which punishment of dismissal has been inflicted,
(iii) for quashing the order of appellate authority dated 15.9.2007 (Annexure-13), and
(iv) for appropriate direction to reinstate him in service and to permit him to discharge his function in M.M. Grade Scale (III) in the respondent Bank.
The reliefs of the petitioner are founded on the following grounds:--
(i) The disciplinary proceeding has been conducted in violation of principles of natural justice, fair play and equity.
(ii) The respondents before giving second show-cause notice have pre-judged the guilt of the petitioner. The reliance has been placed upon a decision in case of
(iii) The documents relied upon has not been proved by any witness, which would render them inadmissible in evidence. Reliance has been upon decision in case of
(iv) Order of the appellate authority is cryptic and non-speaking and contains no reasons for affirming the finding of guilt. Reference has been made to decisions in case of
(v) Even if the strict Rules of Evidence Act is not applicable in the Departmental Proceeding, the enquiry has to be conducted in accordance with the Principles of Natural Justice. Reference has been made to a decision in case of
2. Before I examine the grounds of challenge and the submissions made on behalf of the Bank in opposition to the reliefs, it would be relevant to notice the facts of the case in brief:--
(i) The petitioner, Ranjeet Singh, joined the State Bank of India as Clerk-cum-Cashier in 1977. He was promoted to the post of Assistant Manager Grade on 1.1.1985. In 1997, he passed the M.M. grade scale examination and was promoted to M.M. grade scale and was subsequently posted to Patna Main Branch, State Bank of India. On 7.11.2004, he was placed under suspension on allegations of irregularity committed with respect to renewal of maturity payment of S.T.D.R. of one Ganesh Dutt, who had died. The Assistant General Manager vide his letter dated 7.6.2005 (Annexure-3) informed him of allegations and sought his explanations. The petitioner offered his explanation (Annexure-4). The respondent Bank, not being satisfied with the explanations decided to initiate regular departmental proceeding against the petitioner and asked him to submit his explanations to the charges vide its letter dated 4.1.2006. The memo of charge, statement of allegations, list of documents on which the charges were sought to be proved are appended as Annexures-I, II and III to the letter. The petitioner submitted written statement on 26.10.2006 denying the charges.
(ii) On 15.11.2006, the enquiry officer submitted his enquiry report and found the petitioner guilty of 7 out of 17 charges and submitted his report to the Disciplinary Authority. However, the disciplinary authority disagreed with the findings of "not guilty" recording by the enquiry officer with Charge Nos. 7, 9, 10 and 17. The Disciplinary Authority found the said charge proved against the petitioner. Consequently, the disciplinary authority vide his letter dated 13.12.2006 show-caused the petitioner with respect to findings arrived both by him as well as Enquiry Officer seeking his submissions within 15 days, whereupon he would take final decision after examining the enquiry report.
3. The petitioner submitted a detailed show-cause reply with respect to each of the charges held to be proved by both of them.
4. In his cause, he submitted that none of his acts caused any pecuniary loss to the Bank. He merely transferred the STDR of a constituent who had died, into the account of his heirs, to which there was no objection from any one. In respect of other charges, the petitioner submitted that at the best those would be cases of minor adjustments and irregularities. Besides this the enquiry officer did not take into account the relevant documents placed on his behalf.
5. The disciplinary authority not being satisfied with the explanation tendered by the petitioner, dismissed him from service vide order dated 20.2.2007 (Annexure-11). Being aggrieved, the petitioner filed an appeal against the order of disciplinary authority, which too was dismissed on 15.9.2007 vide Annexure-13.
6. It appears that two criminal cases being Khagaria P.S. Case No. 502 of 2004 under Sections 467, 468, 471, 420, 406 and 120-B of the Indian Penal Code as well as Gogri (Maheshkhunt) P.S. Case No. 341 of 2004 under Sections 420 and 468 and 469 of the Indian Penal Code were instituted, in which the petitioner was also arrested, but later released on bail.
7. In respect of Criminal cases, the stand of the petitioner is that the allegations of manipulation and misappropriation were not borne out against him.
8. The stand of the Bank is that the petitioner acted in violation of Banking Regulations while processing cases of STDR maturity during his posting at Khagaria Branch of State Bank of India as well as closure of accounts during his tenure in same capacity at Maheshkhut Branch, which were done without consent of depositor and its transfer to other accounts. The petitioner was initially put under suspension on 7.11.2004 and was given an opportunity to file an appeal against it, if he felt so aggrieved. But he did not choose to prefer any appeal, which would show that he did not have anything to say either against suspension order or the allegations levelled against him. As many as 74 documents were tendered in support of the charges. The petitioner did not examine any witness in support of his case. The petitioner in his show-cause admitted that some mistakes were committed with respect to STDR norms and that due to pressure of work, he may have committed procedural mistakes.
9. According to Bank, the charges were based on documentary evidence, and as many as 74 documents were duly placed before the enquiry officer by the Presenting Officer. Furthermore, it was not necessary that the documents were required to be proved by witnesses in accordance with the Evidence Act, as the principle of Evidence Act is not applicable in disciplinary/departmental proceeding or domestic enquiry. In support of his submissions, learned counsel has relied upon the case of
10. He submits that in order to inspire confidence of the consumers/depositors, an officer and the employees must stand to the highest conduct of honesty and integrity and good moral. In support of his submissions, the Bank has relied upon the case of
11. I have heard the counsel for the parties at length. There cannot be any dispute that in order to inspire public confidence, the relationship of a Bank officer with the Bank and depositors must stand to the highest conduct of honesty and good moral. Similarly, the relationship of a Bank officer with the Bank depositors is too one of immense faith and trust and their conduct must be above Ceaser''s wife. The officers are under obligation to earn the trust and confidence and not only of the Account holder, but also the general public at large.
12. If a Bank employee is found wanting under such circumstances, he can be proceeded against and it would open for the authorities to take a tough stand and not to deal with the matter leniently. But, however, grave allegations, may be, a delinquent must be provided a reasonable opportunity to defend himself and to establish his innocence. The law enjoins that the authorities have to act fairly and with an open mind, without any bias and preconceived conclusions, as the order may visit the delinquent with civil consequences.
13. In the backdrop of the such established principles, we would now examine the case of the petitioner. The petitioner has challenged the impugned proceedings as well as order of the disciplinary authority and the appellate authority on a number of grounds, namely; (a) no witness has been examined to prove the documents and a document cannot be said to be proved merely because it is tendered by the Presenting Officer, (b) the order of disciplinary authority is non-speaking order and thus not sustainable in law, (c) by one single composite notice, the petitioner cannot be asked to file show-cause with respect to both proven and unproven charges, (d) the disciplinary authority cannot pre-judge the issue while issuing a show-cause notice, when the guilt of the accused, still is to be conclusively decided, and (e) the act of the petitioner has not resulted any loss to the Bank.
14. Though the petitioner has challenged the impugned proceeding and the order of the disciplinary authority and appellate authority on more than one ground, I need not examine all of them, as the petitioner would succeed on ground No. (d), which is reframed as follows:--
Whether the disciplinary authority while differing with the view of enquiry officer on some of the charges was correct in arriving at the final conclusion of guilt, at the stage of issuing show-cause seeking response of the delinquent on his conclusive finding as well as finding of Enquiry Officer. In other words, whether the disciplinary authority ought to have recorded only his tentative findings, while differing with the finding of Enquiry Officer, at the stage of issuance of show-cause, without consideration of delinquent''s response on Enquiry report.
15. The adjudication of the issue would necessitate noticing some relevant facts. The enquiry officer vide his enquiry report dated 15.11.2006 (Annexure-8) found only 7 of 17 charges proved. The disciplinary authority disagreed with the findings of the enquiry officer with respect to charge Nos. 7, 9, 10 and 17, which was found to be not proved in the enquiry report. The disciplinary authority vide his letter dated 13.12.2006 addressed to the petitioner observed that he was not in agreement with the findings with respect to charge Nos. 7, 9, 10 and 17, which according to him stood proved and sought his response on findings recorded both by him and Enquiry Officer. The petitioner was given 15 days time to make his submission/representations on his findings, so that a final decision may be taken in the matter. (The underlining is mine for emphasis)
16. The issue in effect would be, whether the disciplinary authority has prejudged the issue by recording a final finding that some of the charges stood proved, at the stage of issuance of show-cause itself. The other issue as noticed above is, whether he could record such finding, without waiting for show-cause reply.
17. In my view, recording of finding of guilt at the stage of issuance of show-cause by disciplinary authority would amount to pre-judging the issue. Once the disciplinary authority on consideration of Enquiry Report holds some of the charges conclusively proved, which were found not proved by enquiry officer, then seeking of response of delinquent on such findings would be an empty formality, as the punishing authority has already come to a conclusion that the guilt are proved. There would in effect, be nothing for the delinquent to reply, as the disciplinary authority had already made its mind.
18. A departmental proceeding is a quasi judicial proceeding. Both the enquiry officer and the disciplinary authority performs a quasi judicial function. The disciplinary authority has to come to a finding upon taking into consideration the response of delinquent on enquiry report which is to be filed within a reasonable time. He has to act fairly, justly and without any bias. Merely, because a disciplinary authority initiates a disciplinary proceeding, he is not under an oath or an obligation to record a finding of guilt, as his decision may visit, the delinquent with severe civil consequence, Determination of a right or a lis without hearing the other side, which, one is otherwise required to do under the law, strike at the very root of fairness and equality of protection, enshrined in Article 14 of Constitution and would negate the constitutional scheme to provide Justice, to its citizen, both social, economic and political.
19. There cannot be any dispute that a disciplinary authority can differ with the findings of the enquiry officer, but while differing with the findings of the enquiry office., he ought not to come to a final conclusion with respect to guilt without providing an opportunity of hearing to the petitioner to defend himself. By the impugned notice dated 13.12.2006, a show-cause did issue to the petitioner, but prior to that the disciplinary authority had already come to the conclusion that some charges were true, though the enquiry officer had found it otherwise.
20. If the disciplinary authority on consideration of enquiry report differs with the findings of the enquiry officer, which he can do by virtue of the power vested in him, the appropriate course for him was to give a notice setting out his tentative conclusion to the charged employee and only after hearing the said employee could have arrived at a final finding of guilt. In the present case, no notice was given to the delinquent before the disciplinary authority recorded its final conclusion with respect to guilt, differing with the findings of the enquiry officer. The Hon''ble Apex Court in case of Lav Nigam vs. ITI Limited & Another, reported in (2006)9 SCC 440 in similar circumstances observed as follows, in paragraph 10 of the judgment, quoted below:--
"10. The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed."
21. The Hon''ble Apex Court in the said judgment further observed that even if the Banking Regulation itself does not provide for giving any notice to the disciplinary authority before differing with the view of the enquiry officer, still principles of natural justice has to be read into the relevant Regulations. The Hon''ble Apex Court approvingly quoted paragraph 19 of the judgment rendered in case of Punjab National Bank vs. Kunj Bihari Misra, which is being reproduced hereinbelow:--
"19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer."
22. In the backdrop of the discussions made in the foregoing paragraphs, I hold that the disciplinary authority erred in recording the findings of guilt at the stage of issuance of show-cause, which virtually left nothing for being decided upon receipt of show-cause reply. The act of the disciplinary authority would amount to prejudging the issue, which is not permissible in law.
23. In the result the impugned notice dated 13.12.2006 and consequential order of punishment including the order of appellate authority dated 15.9.1997 (Annexure-13) are set aside with liberty to proceed from the stage of issuance of a fresh show-cause notice by the disciplinary authority to the employee concerned indicating his tentative disagreement with the findings of the enquiry report. This writ application stands allowed to the extent mentioned above.
