Subhash Chandra Srivastava vs Syndicate Bank, General Manager (Personnel), Syndicate Bank, Industrial Relation Division and Deputy General Manager, Syndicate Bank

Vineet Saran, J.—The petitioner is an employee of the Syndicate Bank. Certain charges were levelled against him, and after enquiry, by an order dated 17.3.2001 passed by the disciplinary authority (respondent No. 3) the punishment of dismissal from service was imposed on the petitioner. The appeal filed by the petitioner was dismissed on 5.7.2001 by the appellate authority, respondent No. 2. Aggrieved by the aforesaid orders, this writ petition has been filed. A further prayer has been made that the petitioner be reinstated in service with full benefits of continuity of service, arrears of salary, promotion etc.

I have heard Sri Satish Chaturvedi, learned Counsel appearing for the petitioner as well as Sri P.K. Singhal, learned Counsel appearing for the respondent-Bank and have perused the record.

Brief facts of this case are that the petitioner was appointed as a Clerk in the Syndicate Bank on 23.3.1982. By order dated 18.7.1998 passed by the respondent-Bank, the petitioner was transferred from Faizabad Branch to Mandi Dhanaura Branch in district Jyotiba Phuley Nagar. Consequently he joined at Mandi Dhanaura Branch on 23.7.1998. On 14.11.1998 the petitioner submitted his traveling allowance bill for a sum of Rs. 8493/- which, amongst other things, included the expenses for carrying his personal effects (household goods) by road transport. Out of the claimed amount, the petitioner was sanctioned and paid an amount of Rs. 2512/- only. Thereafter by order dated 9.6.1999, the petitioner was re-transferred from Jyotiba Phuley Nagar to Faizabad. Pursuant thereto, the petitioner joined at Faizabad Branch on 5.7.1999. Then, on 19.9.1999, the petitioner submitted his travelling allowance bill for a sum of Rs. 5559.50p. which, amongst other things, included the transportation of his household goods by road transport. As against the claimed amount, the petitioner was sanctioned and paid only Rs. 3058. 10p. Thereafter, an enquiry was conducted by the Vigilance Officer of the Bank in the matter of payment of travelling allowance bills of the petitioner and pursuant thereto, on 2.6.2000, a charge-sheet was issued to the petitioner.

The summary of the charges levelled against the petitioner is that the petitioner had submitted fabricated travelling allowance bills for transporting his household goods and also for breakage of goods during transportation. In the first bill dated 14.11.1998, which was for a sum of Rs. 8493/-, the petitioner had claimed a sum of Rs. 6,000/- for transporting his household goods (personal effects) from Faizabad to Jyotiba Phuley Nagar by road transport through M/s Agrawal Carriers. A further sum of Rs. 950/- was claimed for breakage of goods during transportation. In the second bill dated 19.9.1999, for a sum of Rs. 5559.50p., an amount of Rs. 3500/- had been claimed for transportation of household goods (personal effects) from Jyotiba Phuley Nagar to Faizabad by road transport through M/s Laxmi Truck Toyota Transport Co. and a further sum of Rs. 500/- was claimed for breakage of goods during transportation. Out of the aforesaid, as against the first bill a sum of Rs. 1219/- only was paid to the petitioner towards transportation of household goods and Rs. 500/- towards breakage of goods, i.e. only Rs. 1719/- had been paid to him. As against the second bill, a sum of Rs. 1323.60P. was paid to the petitioner towards transportation and Rs. 500/- for breakage of goods. Thus a sum of Rs. 1719/- plus Rs. 1823.60p. (total Rs. 3542.60p.) had been paid to the petitioner as against the heads of transportation and breakage of goods which was for both the bills of the petitioner. The charge against the petitioner is only with regard to payment of the said amount made to him.

On receipt of the charge-sheet dated 2.6.2000, the petitioner submitted his reply on 23.6.2000. On 26.8.2000 an Enquiry Officer was appointed to conduct the departmental enquiry. In the enquiry proceedings, two witnesses were examined by the Bank, namely, K.A. Sitaram (M.W. 1) who was the Vigilance Officer of the Bank who had made vigilance enquiries; and M.P. Vishwanathan (M.W. 2) who had assisted the Vigilance Officer during such enquiry. The petitioner examined himself as the sole witness (W.W. 1). Thereafter, the enquiry report was submitted on 25.1.2001, wherein it was concluded that the charge of ''gross misconduct of doing acts prejudicial to the interest of the Bank'' as per Clause 19.5(J) of the Bipartite Settlement was found established and proved. On the basis of the enquiry report, vide notice dated 7.3.2001, the disciplinary authority proposed to award punishment of ''dismissal from services of the bank with immediate effect.'' The petitioner submitted his reply and was provided personal hearing on 16.3.2001 and thereafter on 17.3.2001, the punishment order of ''dismissal from service'' was passed by the disciplinary authority. The appeal filed by the petitioner on 12.4.2001 has also been dismissed vide order dated 5.7.2001.

The charges against the petitioner are based on the endorsement dated 13.4.2000 made on the back of the photo copy of the receipt of M/s Agrawal Carriers issued in favour of the petitioner for a sum of Rs. 6,000/-. In the said endorsement, made by Sri Sundar Lal Agrawal, proprietor of M/s Agrawal Forwarding Agency, it was stated that the M/s Agrawal Carriers had been closed down in the year 1996 and thereafter the firm, M/s Agrawal Forwarding Agency had been constituted by the same proprietor. It was further mentioned that the said receipt had not been issued by M/s Agrawal Forwarding Agency. A written statement, in the form of a letter, was also submitted on the same date i.e. 13.4.2000, by Sunder Lai Agrawal to the Assistant Vigilance Officer M.P. Vishwanathan. In the said letter it has been mentioned by Sunder Lai Agrawal that it appeared that the said receipt may have been issued by some employee, of which he had no information as the employee had not informed him of the same; and that since the firm had been closed, he did not possess the duplicate copy of the receipt. In the case of the other transportation bill issued by M/s Laxmi Truck Toyota Transport Company, the endorsement made by the partner of the firm (Ajai Kumar) on the back of the photocopy of the receipt has been relied upon, which was to the effect that the said receipt had not been issued by the firm. The said endorsement is also of 13.4.2000 and was given to the Vigilance Officer of the Bank. Relying on such evidence, the enquiry report had been submitted by the Enquiry Officer of the Bank.

The submission of Sri Satish Chaturvedi, learned Counsel for the petitioner is that the entire enquiry proceedings are in violation of the statutory provisions as well as in violation of the principles of natural justice and that the enquiry report itself is vitiated, as neither there is any discussion of the evidence adduced nor are there any reasons given by the Enquiry Officer for arriving at the conclusion. It has also been submitted that the charges against the petitioner rest on the letter issued by Sunder Lai Agrawal on 13.4.2000 as well as the endorsements made by the said Sunder Lai Agrawal and Ajai Kumar (both on 13.4.2000), on the back of the photo copies of the receipts and also the letter of Rakesh Mohan Agrawal, the Pigmy Agent of the bank, stating that he had signed the said receipts; and that none of these persons were called as witnesses by the Bank to prove the said letters or endorsements. It has been contended that the said letters or endorsements could not have been proved merely by the evidence of the Vigilance Officer in whose favour the same had been issued. The author of the letters or endorsements alone could have proved the same, who were not called as witnesses by the bank and the petitioner was thus deprived of the opportunity to cross examine them. It has thus been submitted that the entire enquiry proceedings would be vitiated as being based on certain letters and documents which had not been proved by the Bank itself. Even otherwise, it has been contended that the entire enquiry report only gives the narration of facts, and without analyzing the documents produced by the parties and without discussion of the evidence adduced, the enquiry officer has jumped to the conclusion that the petitioner was found to be guilty of the charges. According to the petitioner, the only discussion made in the enquiry report is with regard to the letter dated 14.12.2000 issued by the said Sunder Lal Agrawal addressed to the Assistant Enquiry Officer M.P. Vishwanathan, wherein it had been stated that by inadvertence the said receipt in question had been issued in favour of the petitioner on 19.8.1998 by his employee, even though the said firm M/S Agrawal Carriers had already been closed, of which he (Sunder Lai Agrawal) got to know after talking to such employee who had accepted that by mistake the receipt had been issued on the stationery of the erstwhile firm. In the enquiry report, the Enquiry Officer declined to rely on the said letter dated 14.12.2000 merely because of the absence of the author of the letter having been produced as a witness. It has thus been contended that when the author of the earlier letter and endorsements dated 13.4.2000 had also not been produced before the enquiry officer, even then the same have been relied upon to prove the charges against the petitioner, then although the position of the letter dated 14.12.2000 was the same, it should have also been accepted as correct and relied upon. It has thus been urged that the acceptance of one such letter without proof, and requiring the petitioner to prove the other letter issued by the same person, would be against the principles of law, and sufficient proof of the arbitrary action of the Enquiry Officer. It was thus submitted that the entire enquiry was a farce, held with a predetermined mind to hold the petitioner guilty, even when the payment to the petitioner was not made on the basis of the disputed bill but only in accordance with the prescribed Rules of the Bank. In the end Sri Chatuvedi submitted that the punishment of dismissal from service was grossly disproportionate to the charge proved against the petitioner.

On the other hand Sri P.K. Singhal, learned Counsel for the respondent-bank has submitted �hat the scope of interference in writ jurisdiction with regard to the findings recorded by the enquiry officer in departmental proceedings is very limited, and in case if there is any evidence to support the charge against the employee, this Court in writ jurisdiction, would not interfere with the findings recorded by the enquiry officer. It has further been contended by Sri Singhal that technical rules of evidence and the principles of proof beyond doubt, would not be applicable in departmental proceedings. The further submission is that the charge proved against the petitioner is well covered under Clause, 19.5J of the Bipartite Settlement as the submission of false transportation receipts would be nothing but an act prejudicial to the interest of the bank. As regards the quantum of punishment, Sri Singhal has contended that once the charge stands proved, since the employees of the Bank hold a position of trust, where honesty and integrity are inbuilt requirement of functioning, the punishment of dismissal from service cannot be said to be unjustified.

Having heard learned Counsel for the parties and considering the facts and circumstances of this case, in my view, on the basis of the enquiry report as well as the evidence adduced by the parties, the charge of submitting false bills by the petitioner cannot be said to be fully proved, and as such the punishment of dismissal from service awarded to the petitioner in this case would not be justified.

Clause 10 of the Bipartite Settlement which deals with grant of compensation on transfer of a bank employee, reads as under:

An employee on transfer shall be paid the cost actually incurred for transporting his personal effects by road, if there is no railway station or railway out agency at the old or new place of posting upto the nearest railway station/out agency. If both the places do not have railway station/out agency actuals shall be paid for transporting the personal effects by road up to the stipulated weights by an IBA approved transport operator.

The limits for the weight of such goods which can be carried by a bank employee on transfer have also been specified in the said clause.

It is not denied that the petitioner had joined duties and had worked at the place of transfer at Jyotiba Phuley Nagar for almost one year. The personal effects or household goods are permissible to be taken on transfer, the expenses for which are to be reimbursed by the bank. In normal case, the presumption would be that a person going on transfer would take his personal effects. alongwith him. The amount paid for transportation of such personal effects or household goods is as per the prescribed Rules of the bank and since there were Railway stations at both the places, the fare for such transportation as per the railway rates had been paid to the petitioner by the Bank and not what had been charged by the petitioner through the road transport receipts.

Although it has been contended by the learned Counsel for the petitioner that even if proved, the said act would not amount to doing any act prejudicial to the interest of the bank as the same was not in performance of the day to day business of the bank, but I am not inclined to accept such submission of the petitioner.

However, considering the enquiry report, wherein all what has been done by the enquiry officer is narration of facts and reproducing the provisions of the Bipartite Settlement and the evidence which was adduced (i.e. the letter and the endorsements made by the proprietor and partner of the transport agencies) the enquiry officer has not at all discussed as to why the said letter or endorsements are to be relied upon. When the enquiry officer has relied on the initial letter dated 13.4.2000 issued by the proprietor of M/s Agrawal Forwarding Agency, it is not understood as to why the subsequent letter, issued by the same person in same handwriting and on the same letter head, has not been relied upon merely on the ground that the petitioner has not produced such person as a witness. It was for the bank to initially prove the endorsements and the letter filed by them and the bank neither produced the persons issuing such letter/endorsements as witnesses to prove the same, which formed the basis of the entire enquiry report, nor has the enquiry officer in his report discussed as to why reliance should be placed on the letters issued in favour of the Vigilance Officer of the bank. The Enquiry Officer cannot be permitted to blow hot and cold at the same time by relying on one letter, which is in favour of the Bank, and not relying on other letter issued by the same person, but in faovur of the petitioner, and also requiring the petitioner to prove the same. As such, proceeding to decide the case merely on surmises and conjectures without there being any proof, would amount to holding a person guilty without there being any cogent evidence and without the charge having been validly proved against him.

It is true that when there is some evidence to reasonably support the finding of the enquiring authority, this Court, in exercise of writ jurisdiction, would not reverse the finding on the ground of insufficiency of evidence as has been held by the Apex Court in the case of R.S. Saini Vs. State of Punjab and Others, but in the present case, in the aforementioned facts and on reading of enquiry report, it appears that there was no cogent evidence at all to prove the charge levelled against the petitioner. The technical rules of evidence and requirement of proof beyond doubt, would also not be required in departmental proceedings as has been held by the Apex Court in the case of High Court of Judicature at High Court of Judicature at Bombay through ite Registrar Vs. Udaysingh Nimbalkar and Others, but nonetheless the enquiry officer has a duty to apply his mind to the evidence and act judicially, which has not been done in the present case. In the case of Anil Kumar Vs. Presiding Officer and Others, the Apex Court has, while allowing the appeal of a terminated employee, held that "it is well settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not credit-worthy."

Section 3 of the Bipartite Settlement deals with the procedure for taking disciplinary action. Para 521(10) specifies the procedure. For ready reference the same is quoted below:

521 The procedure in such cases shall be as follows:

(1) ...

(9) ...

(10) (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 by a representative of a registered union of bank employees or, with the bank''s permission, by a lawyer. He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him.

(b) ...

(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."

(emphasis supplied)

Cross examination of a witness on whose evidence the charge rests, is the right of an employee. In the present case, the author of the letters/endorsements on whose evidence the charge rests, have not been produced by the Bank as witnesses before the Enquiry Officer. As such, let aside the chance of cross examination given to the petitioner, the Bank itself has failed to produce the relevant witnesses to prove the charge as levelled against the petitioner. Even otherwise, it has been provided that while awarding punishment by way of disciplinary action, the authority concerned would be required to take into account the gravity of misconduct and previous record, if any, of the employee. It has been categorically submitted that the petitioner has never been charged or punished by the Bank earlier in his nearly two decades of service. While awarding the punishment, the same has also not been taken into consideration. As such, since statutory provisions had not been followed and the prescribed procedure had also not been complied with and no discussion of evidence and documents having been made on the basis of which the finding has been recorded by the Enquiry Officer while holding the petitioner guilty of charge levelled against him, in my view, the enquiry proceedings had themselves been vitiated and consequently the punishment imposed on the basis of the said enquiry report, would also be liable to be set aside. In the facts and circumstances of this case, I am of the definite view that on the basis of the evidence adduced by the bank, the charge against the petitioner was not proved and hence the orders impugned in this writ petition are liable to be quashed.

For the foregoing reasons, this writ petition stands allowed. The orders dated 17.3.2001 and 5.7.2001 passed by the Deputy General Manager, Syndicate Bank, Zonal Office, Meerut and the General Manager (Personnel), Syndicate Bank, Manipal respectively are quashed. The petitioner shall be entitled to all consequential benefits.