Harinarayan Shrivastava vs The United Commercial Bank and Others

Seeking exemption to an order dated 23.6.2011 passed by this Court in W.P. No. 5932/1998, this writ appeal has been filed under Section 2 (1) of the Madhya Pradesh Uchha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005.

Appellants are the legal heirs of Late Harinarayan Shrivastava, who was working as a clerk in the United Commercial Bank Bhopal. A charge-sheet was issued to him on 18.4.1995, a departmental enquiry was conducted and, thereafter, his services were terminated. Challenging the termination, the writ petition was filed. During the pendency of the writ petition, the employee Late Harinarayan Shrivastava having expired, the present appellants, his legal heirs are brought on record. The learned Writ Court having dismissed the writ petition by the impugned order, hence this writ appeal.

Facts that have come on record go to show that while the employee concerned Late Shri Harinarayan Shrivastava was posted in Inthkhedi Branch as a Peon and subsequently, when he was promoted as a Clerk in the year 1989 and was posted in Marwari Road branch in Bhopal, it was alleged that during the period from 1990-91, he obtained seven demand drafts amounting to Rs. 40,000/- from Inthkhedi Branch issued in favour of non-existing persons and delivered these drafts to M/s. Sudarshan Trading Company Bhopal and in lieu of the same, he received certain agricultural equipments, namely, submersible, pump set and various other agricultural accessories worth Rs. 1,62,035/- and these accessories were installed in the agricultural field of the petitioner and his brother. On the basis of the allegation, which amounted to gross misconduct under a settlement, a charge-sheet was issued to the petitioner and a criminal case was registered by the Central Bureau of Investigation and based on the departmental enquiry conducted, his services were terminated.

Records indicate that the enquiry was conducted ex parte and in the enquiry, the allegations having been found to be proved, the impugned action was taken. The learned Writ Court has in detail dealt with the various aspects of the matter including the conduct of the ex parte departmental enquiry, the scope of judicial review in such matters and after applying principles of law laid down in various cases has refused to interfere into the matter.

During the course of hearing of the writ appeal, Shri Ankit Saxena, learned counsel raised the following grounds :

It was first contended by him that the petitioner was never posted in the Inthkhedi Branch and, therefore, the question of petitioner''s committing the misconduct while posted in Inthkhedi Branch does not arise. Shri Manoj Sharma, learned counsel for the respondent refuted the aforesaid and argued that the allegation against the petitioner is not with regard to misconduct committed by him while being posted in Inthkhedi Branch, it is only with regard to obtaining draft in an illegal manner from Inthkhedi Branch.

Accordingly, we find that on such consideration, interference into the matter is not called for. The allegation against the petitioner is that he fraudulently got the drafts prepared from a Branch in the name of non-existing persons. For the said purpose, it is not necessary that the petitioner should have been posted in that Branch, where the draft was prepared, nor is the allegation against the petitioner that he has committed misconduct while working in the Inthkhedi Branch. That being so, on this ground, we see no case made out for interference.

The second ground canvassed was that as per the requirement of the rules for conduct of departmental enquiry, the petitioner was entitled to take the assistance of a co-worker but as this assistance was denied to the petitioner, the enquiry is illegal.

We have gone through the material available on record and we find that infact the ex parte enquiry was conducted and the petitioner did not avail of the opportunity granted to him. That apart, when the procedural irregularity in the matter of conduct of department enquiry is alleged, mere allegation or violation of the procedural irregularity will not ipso facto make the departmental enquiry vitiated or illegal. The employee concerned making an allegation of procedural irregularity has to consequently demonstrate before the Court as to what prejudice was caused to him for violation of the procedural aspect and in the absence of prejudice being established, interference particularly, by a Writ Court is not called for. In this regard reference may be made to the law laid down by the Supreme Court to the case of State Bank of Patiala and others Vs. S.K. Sharma, (1996) 3 AD 349 : AIR 1996 SC 1669 : (1996) 3 JT 722 : (1996) 2 LLJ 296 : (1996) 3 SCALE 202 : (1996) 3 SCC 364 : (1996) 3 SCR 972 : (1996) 2 UJ 338 . This principle has been subsequently followed by the Supreme Court in various cases. Accordingly, on both these counts, we see no case made out for interference.

That apart, from Paragraph-4 of the judgment rendered by the learned Writ Court, it is seen that the learned Court after going through the proceedings of the enquiry, the statement of the witnesses examined in the enquiry and various aspects of the matter has come to the conclusion that the allegations levelled against the employee in the charge-sheet were proved and has refused to interfere into the matter. Except for contending that in the enquiry, the allegation has not been proved, the petitioner is unable to demonstrate before us as to what is the perversity in the finding recorded by the enquiry officer. That part, once in an departmental enquiry, the allegation of misconduct are found to be proved, a Writ Court exercising jurisdiction in a petition under Article 226 of the Constitution does not sit over the decision of the departmental authorities by exercising further powers of an appellate authority. A Writ Court has powers of judicial review only if the findings recorded by the enquiry officer and the decision taken by the disciplinary authority are found to be perverse to such an extent that a prudent man approach has not been adopted and the findings recorded in the given facts and circumstances of the case could not be arrived at by any stretch of imagination. No such material or submission is made before us to say that the perversity in the finding of the enquiry officer falls in the category of perversity as detailed herein above.

Accordingly, learned Writ Court having examined all the aspects of the matter in detail, we see no error in the same warranting reconsideration.

The appeal is, therefore, dismissed.