Partly allowed

Jag Pal Singh v. Union of India and 3 Others

Allahabad HC21 Mar 2018WRIA/18744/2016

Case brief

AI extract

What is this about?

A bank employee challenged dismissal for alleged fraud. The court rejected the claimed bar on disciplinary proceedings but found non-supply of alleged confession recordings and failure to consider objections. It quashed the dismissal and appellate orders, directed fresh consideration, and continued suspension with subsistence allowance.

What did the court decide?

Dismissal and appellate orders quashed; fresh disciplinary order directed, expected within three months. Suspension continued with subsistence allowance from suspension until the fresh order.

Jag Pal Singh Vs Union of India and 3 Others — Service and Employment | Allahabad HC (2018)

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Reserved on 6.3.2018 Delivered on 21.3.2018

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Court No. - 28

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Case :- WRIT - A No. - 18744 of 2016

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Petitioner :- Jag Pal Singh Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Sunil Kumar Srivastava,Ashok Khare Counsel for Respondent :- A.S.G.I.,Satish Chaturvedi Hon'ble Siddharth,J.

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Heard Sri Ashok Khare, learnedSenior Advocate assisted by Shri Sunil Kumar Srivastava learned counsel for the petitioner and Sri Satish Chaturvedi, learned Counsel for the respondents.

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The petitioner has filed the above noted writ petition, praying for quashing the departmental charge sheet dated 28.02.2015 and all proceedings in pursuance thereto, including the order of disciplinary authority, Regional Manager, Region-II, Regional Business Office, State Bank of India, Aligarh, dated 10.12.2015 and also the appellate order dated 21.03.2016 passed by Deputy General Manager (Business and Operations) State Bank of India, Administrative Office, Agra. Further prayer has been made to permit the petitioner to function as Assistant in the Clerical Cadre and to pay his regular salary including arrears within specified period by the respondent Bank.

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The petitioner’s case is that he was selected and

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appointed on the post of Assistant in the Clerical Cadre of the State Bank of India and while working at Gonda Branch as Cashier, a Cheque Book was issued on 31.05.2014 regarding account of one Asha Pundir. The application for issuance of Cheque Book was fake and the Counter Clerks, Meenu Prakash Bhantu and Satya Dev Sharma issued the Cheque Book on a fake application. On the basis of the cheques in this cheque book certain amounts were withdrawn from the account of Asha Pundir between 07.06.2014 to 11.06.2014. On an unnamed F.I.R. dated 20.06.2014, lodged by the aforesaid Account holder, under Section 406, 419 and 420 I.P.C., Police Station Gonda, District Aligarh, the petitioner was arrested on 26.11.2014 and released on Bail on 09.02.2015. After filing of Charge Sheet dated 18.04.2015, a criminal case was pending, when a departmental charge sheet dated 28.02.2015 was also issued to the petitioner, placing him under suspension from service. A reply dated 11.03.2015 was submitted by the petitioner to the departmental charge sheet and an enquiry officer , Sri H.C. Sarkar, was appointed as enquiry officer. By means of an application dated 30.06.2015, the petitioner sought certain documents to defend himself and some of them were supplied along with covering letter dated 08.7.2015 by the respondents. Some of the documents which were not supplied were stated as not available in the Branch and some were declined on the ground of being privileged documents.

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Written briefs were presented by the presenting officer of the respondents on 17.09.2015 and defence brief dated 06.10.2015, was submitted on behalf of the petitioner and the enquiry officer submitted his enquiry report dated 09.10.2015 to the disciplinary authority, holding each of the charges against the petitioner as fully proved. Second show cause notice dated 16.11.2015 was issued to the petitioner to show cause against the finding recorded by the enquiry officer and the petitioner submitted the same on 01.12.2015. On 10.12.2015, the punishment order of dismissal was passed by the disciplinary authority against which the petitioner preferred an appeal before the appellate authority on 21.01.2016. After direction by this Court in Writ-A No.7048 of 2016, the appellate authority rejected the appeal of the petitioner by the order dated 21.03.2016 and hence this writ petition has been filed by the petitioner against the aforesaid punishment and appellate orders passed by the respondents.

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At the time of admission of the writ petition, the following order was passed by this Court, on 27.04.2016,

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“Submission is that in view of clause 4 of the Settlement dated 10.04.2002, as the criminal proceedings have been instituted within a period of one year from the date of offence, the disciplinary proceedings were liable to have been kept in abeyance, and the order of dismissal passed against the petitioner is bad in law.

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Sri Harsh Vardhan Chaubey, learned Counsel appearing

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for respondent no.1 and Sri Pankaj Srivastava, holding brief of Sri Satish Chaturvedi, learned Counsel appearing for respondent nos. 2 to 4 may obtain instructions in the matter within a week.

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Put up as fresh on 5.5.2016.”

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The respondents filed a short counter affidavit stating that petitioner never took the plea of Clause-4 of the Settlement dated 10.04.2002 in his reply to the charge sheet or in the departmental appeal and it has been raised for the first time before this Court. It ought to have been raised in departmental proceedings to enable the Bank to take appropriate decision thereon. The petitioner has already been punished for committing fraud, leaking the secrecy of the Bank and also causing financial loss to the tune of Rs.55.20 lacs. There is no bar to simultaneous criminal and disciplinary proceedings and the petitioner has permitted to conclude the latter, since in the case of M.Paul Anthony, the Hon’ble Supreme Court has held that the standard of proof in both the proceedings are different. Same view has been upheld in the case of Divisional Controller, Karnataka State Road Transport Corporation Vs. M.G. Vittal Rao.

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Another Short Counter Affidavit has been filed by the respondents stating that the petitioner has alterative remedy of approaching the Industrial Tribunal and this Court should not exercise its extraordinary jurisdiction in this case. The criminal and departmental proceedings are not based same charges. Criminal case is for the

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criminal acts punishable under Section 419, 420, 467, 468, 471, 409, 120-B and 34 I.P.C., whereas the departmental proceedings are based upon the charges of leaking secretary of the Bank, for committing fraud and for causing monitory loss and damage to the reputation of the Bank. The audio /video clip of 27.11.2014 was not available when the petitioner made an application, therefore it was not supplied. Investigation Report being privileged document was also not supplied to him. The respondents have again reiterated the averments made in the Short Counter Affidavit. Along with the petitioner proceedings were initiated against 20 other employees mentioned in paragraph no.23 of the Counter Affidavit and appropriate punishments were awarded to them. The petitioner is not entitled to any relief prayed in the writ petition, which is devoid of merits and deserves to be dismissed.

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The petitioner has filed Short Rejoinder Affidavit stating that an objection regarding jurisdiction of the respondents to proceed against the petitioner is fundamental in nature and it proves that the entire disciplinary proceeding against the petitioner was without jurisdiction. The Case Laws which have been cited in the short counter affidavit do not interpret the provisions of the Settlement and therefore, have no application to the facts of the present case.

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The petitioner has filed Rejoinder Affidavit stating that the general principle of service law may permit

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simultaneous departmental and criminal proceedings but in the present case the right of the Bank to proceed departmentally has been curtailed on account of the provisions contained in memorandum of settlement dated 10.04.2002. The charges against the petitioner are wholly unfounded and the petitioner is not guilty of any such charge. The charges have been held to be proved even without valid material in support of the charges. The names of the 20 employees of the Bank have been mentioned in paragraph no.23 of the Counter Affidavit of the respondents, who were alleged to have been punished, but what punishment was awarded to them has not been stated in the aforesaid paragraph.

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The petitioner has filed a Supplementary Rejoinder Affidavit stating that any dispute between the awardee staff and the Bank is required to be adjudicated by the Industrial Tribunal. The settlement dated 10.04.2002 is applicable to the petitioner which provides that if the delinquent employee is not put on trial within a period of 1 year, then the Bank should initiate disciplinary proceedings, but the same shall remain stayed in case the employee is put to trial within a year of commencement of criminal proceedings. The criminal proceedings were initiated by lodging of First Information Report on 20.06.2014 and charge sheet has been submitted on 18.04.2015 within a year and therefore, the respondent Bank was precluded from taking disciplinary proceedings against the petitioner. The interpretation of

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settlement can be done by this Court. The criminal and departmental proceedings are based on same set of facts and therefore the departmental proceedings should have been stayed, the petitioner has already exhausted the departmental remedy of appeal before approaching this Court.

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The learned Senior Counsel for the petitioner has argued that the petitioner being an awardee staff, his conditions of service are governed by memorandum of settlement dated 10.04.2002 between the management of 52 ‘A’ Class Banks represented by Indian Banks Association and their Workmen represented by All India Bank Employees’ Association, National Federation of Bank Employees, Indian National Bank Employees Federation under Section 2(p) and Section-18(1) of the Industrial Disputes Act, 1947, read with Rule-58 of the Industrial Disputes (Central) Rules, 1957. He has referred to the procedure provided under the settlement for disciplinary action against the employee of the respondent Bank as follows,

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“1. A person against whom disciplinary action is proposed or likely to be taken shall in the first instance, be informed of the particulars of the charge against him and he shall have a proper opportunity to give his explanation as to such particulars. Final orders shall be passed after due consideration of all the relevant facts and circumstances. With this object in view, the following shall apply.

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2. By the expression “offence” shall be meant any offence involving moral turpitude for which an employee is liable to

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conviction and sentence under any provision of Law.

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3. (a). When in the opinion of the management an employee has committed an offence, unless he be otherwise prosecuted, the bank may taken steps to prosecute him or get him prosecuted and in such a case he may also be suspended.

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(b). If he be convicted, he may be dismissed with effect from the date of his conviction, or be given any lesser form of punishment as mentioned in Clause 6 below.

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(c). If he be acquitted, it shall be open to the management to proceed against him under the provisions set out below in Clauses 11 and 12 infra relating to discharges. However, in the event of the management deciding after enquiry not to continue him in service, he shall be liable only for termination of service with three months’ pay and allowances in lieu of notice. And he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full pay and allowances minus such subsistence allowance as he has drawn and to all other privileges for the period of suspension provided that if he be acquitted by being given the benefit of doubt he may be paid such portion of such pay and allowances as the management may deem proper and the period of his absence shall not be treated as a period spent on duty uness the management so directs.

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(d). If he prefers an appeal or revision application against his conviction and is acquitted, in case he had already been dealt with as above and he applies to the management for reconsideration of his case, the management shall review his case and may either reinstate him or proceed against him under the

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provisions set out below in Clauses 11 and 12 infra relating to discharge, and the provision set out above as to pay, allowances and the period of suspension will apply the period up-to-date for which full pay and allowances have not been drawn being treated as one of suspension. In the event of the management deciding, after enquiry not to continue him in service, the employee shall be liable only for termination with three months pay and allowance in lieu of notice, as directed above.

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4. If after steps have been taken to prosecute an employee or to get him prosecuted, for an offence, he is not put on trial within a year of the commission of the offence, the management may then deal with him as if he had committed an act of “gross misconduct” or of “minor misconduct”, as defined below, provided that if the authority which was to start prosecution proceedings refuses to do so or comes to the conclusion that there is no case for prosecution it shall be open to the management to proceed against the employee under the provisions set out below in Clauses 11 and 12 infra relating to discharge, but he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full wages and allowances and to all other privileges for such period. In the event of the management deciding, after enquiry, not to continue him in service, he shall be liable only for termination with three months pay and allowances in lieu of notice as provided in Clause-3 above. If within the pendency of the proceedings thus instituted he is put on trial such proceedings shall be stayed during the completion of the trial, after which the provisions mentioned in Clause-3 above shall apply.”

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He has argued on the basis of Clause-4 of the

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Settlement that if within a year of commission of offence, the delinquent employee is not put to trial, the management may deal with him as he has committed an act of gross or minor misconduct. If during the pendency of disciplinary proceedings, the employee is put on criminal trial, then the departmental proceedings shall be stayed pending the completion of the trial and after conclusion of the Trial, the provisions mentioned in Clause-3 shall apply. Reliance has been placed upon the Judgment in the case of State Bank of India and others Vs. Neelam Nag and another, (2016) 9 SCC 491, which is as follows,

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“19. The next question is: whether Clause 4 of the Settlement would denude the appellants from continuing with the disciplinary proceedings pending against the respondent. Clause 4 of the Settlement reads thus:

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“4. If after steps have been taken to prosecute an employee or to get him prosecuted, for an offence, he is not put on trial within a year of the commission of the offence, the management may then deal with him as if he had committed an act of “gross misconduct” or of “minor misconduct”, as defined below; provided that if the authority which was to start prosecution proceedings refuses to do so or comes to the conclusion that there is no case for prosecution it shall be open to the management to proceed against the employee under the provisions set out below in Clauses 11 and 12 infra relating to discharge, but he shall out below in Clauses 11 and 12 infra relating to discharge, but he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full wages and allowances and to all other privileges for such period. In the event of the management deciding, after enquiry, not to continue him in service, he shall be liable only for termination with three months’ pay and allowances in lieu of notice as provided in Clause 3 above. If within the pendency of the proceedings thus instituted is put on trial such proceedings shall be stayed pending the completion of the trial, after which the provisions mentioned in Clause 3 above shall apply.” (emphasis supplied)

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20. Ordinarily, the scope of Clause 4 of the Memorandum of

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Settlement pressed into service would be a matter of an Industrial Dispute, to be adjudicated by the competent Forum, if the respondent can be termed as a workman. The respondent herein was appointed in a clerical cadre of the appellant-bank; but when the alleged misconduct was committed on 29th May 2006, she was working as Assistant (Clearing). Neither before the learned Single Judge, the Division Bench nor before us any argument has been canvassed on the factum of whether the respondent can be treated as a workman within the meaning of the Industrial Disputes Act, 1947. Both sides, however, have relied on the said Clause and invited us to spell out its purport.

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21. On the plain language of Clause 4, in our opinion, it is not a stipulation to prohibit the institution and continuation of disciplinary proceedings, much less indefinitely merely because of the pendency of criminal case against the delinquent employee. On the other hand, it is an enabling provision permitting the institution or continuation of disciplinary proceedings, if the employee is not put on trial by the prosecution within one year from the commission of the offence or the prosecution fails to proceed against him for want of any material.

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22. As can be culled out from the last sentence of Clause 4, which applies to a case where the criminal case has in fact proceeded, as in this case, for trial. The term “completion of the trial” thereat, must be construed as completion of the trial within a reasonable time frame. This clause cannot come to the aid of the delinquent employee - who has been named as an accused in a criminal case and more so is party to prolongation of the trial.

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23. Notably, in the present case inspite of a peremptory direction of the Division Bench given on 28th June 2010 to the concerned criminal Court to proceed with the trial on day-to-day basis, as noted above, no effective progress has been made in that trial (except recording of evidence of three prosecution witnesses out of eighteen witnesses) so far. In the last six years, evidence of only two additional prosecution witnesses has been recorded. The respondent has not pointed out any material on record to even remotely suggest that she had tried her best to dissuade the criminal Court from adjourning the trial, in breach of direction given by the Division Bench of the High Court to proceed on dayto- day basis and to conclude the trial within one year from 28th June, 2010. Pendency of criminal trial for around 10 years, by no means, can be said to be a reasonable time frame to withhold the disciplinary proceedings. We are fortified in taking this view on the principle underlying the former part of the same clause, which envisages that if the Authority which has to start the prosecution refuses (read fails) to do so within one year from the

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commission of the offence, the departmental action can proceed under the provisions as set out in Clauses 11 and 12 of the Settlement.

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24. In the fact situation of the present case, it is possible to take the view that the first part of Clause is attracted. In that, respondent has been put on trial in connection with the alleged offence, by framing of charges on 12th June 2007. That has happened after one year from the commission of the offence.

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25. Be that as it may, the remedy of writ being an equitable jurisdiction and keeping in mind the larger public interests (atleast in cases of involvement of the employees of the Public Sector Banks in offence of breach of trust and embezzlement), the arrangement predicated in the case of Stanzen (supra) would meet the ends of justice. For, the disciplinary proceedings instituted against the respondent cannot brook any further delay which is already pending for more than 10 years.

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26. We make it clear that we may not be understood to have expressed any final view on the scope of Clause 4 of the Settlement.”

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Per contra, the learned Counsel for the respondent Bank has argued that the objection regarding bar of Clause-4 of the Settlement was never raised during the departmental proceedings and for the first time this plea has been raised in writ jurisdiction before this Court. His further objection is that it is the Industrial Tribunal, which is competent to adjudicate upon the violation/enforcement of the terms of settlement in dispute and the petitioner should be relegated to avail the alternative remedy available to him under the Industrial Law. He has pointed out that for deciding when actually the trial commenced, the adjudication of relevant dates of police investigation/criminal trial shall be required to be proved to compute the relevant period of 1 year, which has not been proved by any documentary

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evidence by the petitioner. He has only stated in paragraph no.6 of his Supplementary Rejoinder Affidavit that the First Information Report has been lodged against the petitioner on 20.06.2014 and the same has culminated in criminal charge sheet dated 18.04.2015, within a period of 1 year. The learned Counsel for the respondent Bank has pointed out that the dates given in the Supplementary Rejoinder Affidavit as 20.06.2014, is the date of F.I.R. and the date of 18.04.2015 is relating to the filing of the Charge Sheet by the Police against the petitioner, after concluding the investigation. Therefore, the petitioner has not brought on record the relevant date when the trial had commenced. Mere filing of charge sheet does not amounts to commencement of the trial. His argument is that a perusal of paragraph no.21 of the Judgment in the case of State Bank of India and others Vs. Neelam Nag and another (supra) clearly proves that the provision in Clause-4 does not prohibits the institution or continuation of disciplinary proceedings only because of pendency of criminal trial against the delinquent employee. It is only an enabling provision permitting the Institution for continuation of disciplinary proceedings. The last sentence of Clause-4 applies to a case where the criminal trial has started and the term “completion of trial” means completion of the same within a reasonable time. This clause can not be employed by the delinquent employee to delay the disciplinary proceedings indefinitely. Therefore, he has stated that

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the respondent Bank rightly proceeded as per Clause-3 of the Settlement and he has been tried departmentally and punished according to his misconduct and the appellate authority has also affirmed the punishment order.

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The second submission of the learned Senior Counsel for the petitioner is that the Branch Manager of the Bank, Sri Manoj Kumar Singh, stated before the enquiry officer that the petitioner has confessed his guilt at the time of his arrest before the Police officers, Chief Manager (Administration) of the Bank, Srichand Meena and Branch Manager, Sri Manoj Kumar Singh. He further stated that he gave the details how petitioner committed fraud in the Bank and who are the persons involved in the entire incident. It was further stated by the Branch Manager that he has got the Audio and Video recording of the confession of the petitioner. He repeated this allegation before the enquiry officer and when the defence representative demanded the copy of the same, it was not provided to him. Srichand Meena, Chief Manager (Administration) initially appeared before the enquiry officer, but he was never produced for crossexamination. The Branch Manager, Sri Manoj Kumar Singh, could also not be cross-examined on his claim of having the Audio and Video recording of the confession of the guilt by the petitioner, since the same was not provided to the petitioner. This conclusively proved that the claim of the Branch Manager, Manoj Kumar Singh, of

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having the Audio and Video recording of the confession of the petitioner was false. From the proceedings dated 26.06.2015, also it is clear that the Audio/ Video Clip along with 3 other documents were demanded but the management failed to provide the same. By e-mail dated 30.06.2015, the petitioner required 4 documents from the respondents, (1), Audio/Video Clip of 27.11.2014, (2). Investigation Report of the investigation conducted by the Bank against him, (3). Complete Case Diary after the lodging of F.I.R. and (4) Copy of F.I.R., but by the letter dated 08.07.2015, only the document nos.3 and 4 were provided to him and document nos.1 and 2 were denied on the grounds of non-availability in Branch and being privileged document respectively. Therefore, grave prejudice was caused to the rights of the petitioner since he could not cross-examine the witnesses of the management on the basis of the alleged confession made in the Audio/Video Clip.

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The learned Counsel for the respondent Bank has stated that it was not open for the petitioner to demand the document/ evidence from the management for creating his defence before the enquiry officer. The petitioner was required to defend himself from the evidence available with him. He has further pointed out that in the enquiry proceeding dated 13.07.2015, 4 documents D1 to D4 were given by the Bank representative to the defence representative and this included the alleged Audio and Video recording. The

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Bank representative has also stated that he has provided the required documents available at the Branch and which are not available the certificate has been provided by the Branch to the petitioner/his defence representative.

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The third submission of the learned Senior Counsel for the petitioner is that after the conclusion of the enquiry and receipt of the enquiry report dated 09.10.2015, the disciplinary authority issued a provisional punishment order dated 16.11.2015 proposing punishment of dismissal from service and directed the petitioner to show cause, why such a punishment should not be awarded to him and he was directed to appear before him on 27.11.2015 for personal hearing, in case, he likes to avail the same. The petitioner submitted his reply dated 01.12.2015 to the show cause notice stating that he has already submitted his objection dated 06.10.2015 to the enquiry report submitted by the enquiry officer by e-mail and without taking the same into account the proposed punishment order dated 16.11.2015 has been issued to the petitioner. He denied all the 3 charges leveled against him in the charge sheet and stating that the cheque book which was issued on the basis of forged application in the name of Smt. Asha Pundir was not issued by him, it was also not entered in the computer by him. The request for changing the registered mobile number of the account holder was also made on the basis of forged

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signature which was accepted and mobile number was changed without any involvement of the petitioner. The accounts in the name of fictitious persons and opening of account on the basis of forged documents in the Branches of Atrauli, Chandaus and Krishi Vikas was not done by him and the cheques of such account holders were passed on the basis of forged signature by the Bank Officers without his involvement. The Postman delivered the cheques to unknown persons instead of the address given in the Account of the Account holder and there was no role of the petitioner therein. He further stated that the role of the petitioner regarding the above incidents should have been examined and findings should have been recorded. The allegation of loss of Rs.55.20 lacs of the Bank on account of misconduct of the petitioner is baseless and none of the charges were based on any material. The entire disciplinary proceedings are biased and based on no evidence. The Bank’s witness, the Chief Manager (Administration), Sri Srichand Meena was never produced for crossexamination before the enquiry officer. Sri Manoj Kumar Singh, Branch Manager alleged before the enquiry officer that he has got the Audio and Video Clip of confession of the petitioner accepting his guilt but it was not given to the petitioner despite repeated demands and therefore, it is clear that the Bank had no evidence to prove the charge against the petitioner. The petitioner is being punished only on the basis of report lodged with

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the police and the pendency of the criminal case, which is not justified and he strongly opposed the proposed punishment of dismissal from service. By the order dated 10.12.2015, the disciplinary authority has passed the final punishment order without considering any of the objections raised by the petitioner raised in his objection dated 01.12.2015. He has not recorded any finding about the personal hearing granted to the petitioner on 01.12.2015 in the final punishment order dated 10.12.2015, which records that the petitioner presented his case before the disciplinary authority on 01.12.2015. What case was presented by the petitioner has neither been mentioned nor discussed. Even his written objection dated 01.12.2015, raising number of objections to the proposed punishment have been ignored by the disciplinary authority.

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The learned Counsel for the respondent Bank has stated that all the grounds raised by the petitioner in his objection dated 01.12.2015 to the order of proposed punishment were answered by the enquiry officer and where the disciplinary authority confirms the enquiry report, he is not required to record elaborate considerations and findings like the Judgment of the Court. He is required to pass the final order of punishment on the basis of the record of proceedings and the enquiry report of the enquiry officer. Even otherwise, the petitioner was granted opportunity to show cause against the punishment in accordance with

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the Article -14 of the Constitution of India and it was only after the receipt of his objection dated 01.12.2015 that the final order of punishment dated 10.12.2015 was passed by the disciplinary authority which can not be faulted with.

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After hearing the Counsels for the parties, the conclusion of the Court are as follows,

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The first argument raised on behalf of the petitioner that as per Settlement dated 10.12.2002, the disciplinary proceedings against the petitioner ought to have been stayed since the charge sheet was filed by the police in the criminal proceedings within one year of the lodging of the first information report. The argument is not correct since mere filing of a police report/charge sheet under section 173 Cr.P.C. does not amounts to commencement of trial. The charge sheet is filed by the Investigating Officer, after concluding his investigation, before the Magistrate empowered to take cognizance of the alleged offence in the prescribed form giving the details required under Section 173 (2) (i) Cr.P.C. Thereafter, the Magistrate is required to take cognizance of the offence of the charge sheet/police report under Section 190 Cr.P.C. After the cognizance is taken by the Magistrate, the proceeding of trial commences before the Magistrate under Section 204 Cr.P.C. The petitioner has not brought on record to prove that the trial in pursuance of the charge sheet also commenced within the period of one year provided under Clause-4 of the Settlement

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aforesaid. Therefore, the argument on behalf of the respondent Bank that they have rightly proceeded against the petitioner in accordance with Clause-11 and 12 of the Settlement as provided in Clause-4 of the Settlement itself is well founded.

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“11. When it is decided to take any disciplinary action against an employee such decision shall be communicated to him within three days thereof.

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12. The procedure in such cases shall be as follows:-

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(a) An employee against whom disciplinary action is proposed or likely to be taken shall be given a charge sheet clearly setting forth the circumstances appearing against him and a date shall be fixed for enquiry, sufficient time being given to him to enable him to prepare and give his explanation as also to produce any evidence that he may wish to tender in his defence. He shall be permitted to appear before the Officer conducting the enquiry, to cross examine any witness on whose evidence the charge rests and to examine witnesses and produce other evidence in his defence. He shall also be permitted to be defended-

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(i) (x) by a representative of a registered trade union of bank

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employees of which he is a member on the date first notified for the commencement of the enquiry.

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(y). where the employee is not a member of any trade union of bank employees on the aforesaid date, by a representative of a registered trade union of employees of the bank in which he is employed. OR

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(ii). at the request of the said union by a representative of the state federation or all India Organization to which such

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union is affiliated:

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(iii). with the Bank’s permission, by a lawyer.

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He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him.

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(b). Pending such inquiry or initiation of such inquiry he may be suspended, but if on the conclusion of the enquiry it is decided to take no action against him he shall be deemed to have been on duty and shall be entitled to the full wages and allowances and to all other privileges for the period of suspension; and if some punishment other than dismissal is inflicted the whole or a part of the period of suspension, may, at the discretion of the management, be treated as on duty with the right to a corresponding portion of the wages, allowances, etc.,

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(c). In awarding punishment by way of disciplinary action the authority concerned shall take into account the gravity of the misconduct, the previous record, if any, of the employee and any other aggravating or extenuating circumstances, that may exist. Where sufficiently extenuating circumstances exist the misconduct may be condoned and in case such misconduct is of the “gross” type he may be merely discharged, with or without notice or on payment of a month’s pay and allowances, in lieu of notice. Such discharge may also be given where the evidence is found to be insufficient to sustain the charge and where the bank does not, for some reason or other, think it expedient to retain the employee in question any longer in service. Discharge in such cases shall not be deemed to amount to disciplinary action.

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(d). If the representative defending the employee is an

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employee of the same bank at an outstation branch within the same State, he shall be relieved on special leave (on full pay and allowances) to represent the employee and be paid one return fare. The class of fare to which he will be entitled would be the same as while traveling on duty. In case of any adjournment at the instance of the bank/ enquiry officer, he may be asked to resume duty and if so, will be paid fare for the consequential journey. He shall also be paid full halting allowance for the period he stays at the place of enquiry for defending the employee as also for the days of the journeys which are undertaken at the bank’s cost.

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Explanation:

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‘State’ for the purpose, shall mean the area which constitutes a political State, but this explanation will not apply to SBI.

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(c). An enquiry need not be held if,

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(i). the bank has issued a show cause notice to the employee advising him of the misconduct and the punishment for which he may be liable for such misconduct,

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(ii). the employee makes a voluntary admission of his guilt in reply to the aforesaid show cause notice, and (iii). The misconduct is such that even if proved the bank does not intend to award the punishment of discharge or dismissal.

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However, if the employee concerned requests a hearing regarding the nature of punishment, such a hearing shall be given.”

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The reliance upon the Judgment in the case of State Bank of India and others Vs. Neelam Nag and another (supra) will not help the petitioner since as

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discussed above the Clause-4 of the Settlement is not applicable to the facts of his case.

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The second argument made on behalf of the petitioner is that the Branch Manager, Sri Manoj Kumar Singh, stated before the enquiry officer that he has got the Audio and Video recording of the confession of the petitioner before the police officer, Chief Manager (Administration) and Sri Manoj Kumar Singh himself regarding the acceptance of his guilt and the manner in which the petitioner committed the fraud, but he never produced the aforesaid evidence before the enquiry officer. The learned Counsel for the respondent Bank pointed out to the proceedings dated 13.07.2015, stating that the defence representative was handed over 4 defence documents from D1 to D4 and it included the Audio and Video recording does not appears to be correct. In the reply dated 01.12.2015 to the notice dated 16.11.2015 of the disciplinary authority proposing punishment of dismissal against the petitioner, the petitioner has clearly stated that the Audio and Video recording of his confession, alleged by the Branch Manager, Sri Manoj Kumar Singh to be available with him, was never given to him.

¶108

While, passing the order dated 10.12.2015, confirming the proposed punishment, the disciplinary authority has not considered at all any of the objections raised by the petitioner to the proposed punishment order, including objection regarding non furnishing of

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¶110

Audio and Video recording of his alleged confession. Therefore, the argument regarding non supply of the Audio and Video recording raised on behalf of the petitioner is correct. It proves that either a false claim was made regarding possession of evidence in the form of Audio and Video recording of the acceptance of guilt by the petitioner before the enquiry officer or there was no such evidence in possession of the Bank to prove the charges against the petitioner.

¶111

The last argument raised on behalf of the petitioner is that his objections to the enquiry report sent by e-mail on 06.10.2015 to the enquiry officer and also his objection dated 01.12.2015 to the notice of the proposed punishment dated 16.11.2015 issued by the disciplinary authority, was not considered before confirming the punishment of dismissal from service by the order dated 10.12.2015 by the disciplinary authority. The learned Counsel for the respondents has replied that he was given opportunity of hearing before passing of order and thereafter taking into consideration the entire material on record, the order dated 10.12.2015 was passed by the disciplinary authority confirming the punishment of dismissal proposed by him on the basis of the enquiry report dated 09.10.2015 submitted by the enquiry officer. The disciplinary authority was not required to pass a detailed order like the Court.

¶112

A perusal of the impugned punishment order dated 10.12.2015, passed by the disciplinary authority shows

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¶114

that it has been passed stating that he has granted opportunity of personal hearing to the petitioner on 01.12.2015, as disciplinary authority, exercising his discretion in just and legal manner by going through the charge sheet issued to the petitioner, his reply, his earlier service record and concerned file and personal hearing granted to him, etc. He has come to the conclusion that the petitioner is guilty of the lapses mentioned in the proposed punishment order and therefore, he does not finds any reason to convert the proposed punishment order and has passed the order of dismissal dated 10.12.2015, against the petitioner.

¶115

This order does not records what consideration was done by the disciplinary authority regarding the charges against the petitioner, his reply thereto, his service record and concerned file and also what was stated by the petitioner during personal hearing granted to him on 01.12.2015 and how it was considered by the disciplinary authority. It is proved that the procedure of granting hearing to the delinquent employee, prior to the passing of the proposed punishment order was observed in the case of the petitioner but what consideration of his reply was made by the disciplinary authority has not been recorded at all. The procedure does not requires ritualistic compliance of procedure by the disciplinary authority, in disciplinary proceedings, rather, its purposes to arrive at the truth with the help of the procedure. The consideration of reply was required to be proved by

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¶117

recording of reasons but in the impugned final punishment order, there are no reasons recorded regarding any consideration mentioned in the order itself. No punishment order can be held to be legal, if it is not based on any consideration and reasons arising out of the consideration duly recorded in the order. Therefore, the impugned punishment order dated 10.12.2015, passed by the disciplinary authority can not be sustained. The appellate order wrongly confirmed the punishment order of the disciplinary authority, which suffers from gross illegality of non consideration of the reply of the petitioner to the proposed punishment order.

¶118

In view of the above facts and the legal position emerging from the record, the order of disciplinary authority, Regional Manager, Region-II, Regional Business Office, State Bank of India, Aligarh, dated 10.12.2015 and also the appellate order dated 21.03.2016 passed by Deputy General Manager (Business and Operations) State Bank of India, Administrative Office, Agra are hereby quashed. The respondent no.4, the Disciplinary Authority is directed to pass afresh order taking into account, the Objection dated 01.12.2015 of the petitioner and also after complying with Clause-12 (c) of the Settlement dated 10.04.2002 by recording his findings regarding the gravity of misconduct, the previous record, if any, of the petitioner and other aggravating or extenuating circumstance. The disciplinary authority shall consider

¶119

¶120

the findings of the enquiry officer recorded in the enquiry report dated 09.10.2015 after consideration whether the findings are based on evidence or not. The petitioner shall be continued under suspension and shall be paid his subsistence allowance from the date of his suspension till the date of passing of the fresh order of the disciplinary authority in accordance with law. The disciplinary authority is expected to pass fresh order in accordance with law within a period of 3 months from today. Since the respondents are represented, the information of this order is deemed on them through their Counsel.

¶121

The writ petition is allowed to the extent stated above. There shall be no order as to costs. Order Date :- 21.3.2018 Aks.

Jag Pal Singh v. Union of India and 3 Others

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Jag Pal Singh v. Union of India and 3 Others

Case brief

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