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SHIV KUMAR SHARMA versus DEPUTY GENERAL MANAGER CENTRAL BANK OF INDIA AND OTHERS

High Court of Judicature at Allahabad

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Shiv Kumar Sharma v. Deputy General Manager Central Bank Of India And Others - WRIT - A No. 23610 of 2003 [2006] RD-AH 9464 (12 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

CIVIL MISC. WRIT PETITION NO. 23610 OF 2003

Shiv Kumar Sharma

Versus

Deputy General Manager, Central Bank of India and others.

HON. SHISHIR KUMAR, J.

The present writ petition has been filed for quashing the order dated 9.2.1998 passed by Regional Manager, Central Bank of India, Meerut, Annexure-13 to the writ petition and the order dated 28.3.2003 passed by Deputy General Manager, Central Bank of India, Annexure-16 to the writ petition.

The facts arising out of the present writ petition are that the petitioner was appointed on 12.5.1981 as a clerk-cum-cashier godown keeper in Central Bank of India and thereafter the petitioner continued in service on the said post till date the service of the petitioner has been removed. Since October 1983 the petitioner was posted at District Bulandshahr. On 18.10.1995 an order was passed placing the petitioner under suspension. Thereafter, a first information report dated 10.11.1995 was lodged against the petitioner. On the basis of the said information, Case Crime No.660 of 1995 was registered at Kotwali, district- Bulandshahr under Sections 468, 420,409-B IPC. While criminal proceeding initiated in pursuance of the first information report was still pending, a departmental charge-sheet was issued to the petitioner on 22.4.1996. A copy of the said charge-sheet is annexed as Annexure-2 to the writ petition. By a separate order dated 22.4.1996, Chief Officer, Regional Office, Meerut was appointed as Inquiry Officer to conduct the inquiry against the petitioner. The inquiry against the petitioner was totally without jurisdiction. Chief Manager, Bulandshahr Branch was not the competent authority prescribed in terms of Clause 19.14 of the Bipartite Settlement dated 19.10.1996. As modified Clause 3 (II) of the Bipartite Settlement dated 31.7.1999 is being reproduced below:

"The Chief Executive Officer or the Principal Officer in India of a Bank or an Alternate Officer at the Head Office or principal office nominated by him for the purpose shall decide which officer (i.e. the Disciplinary Authority) shall be empowered to take disciplinary action in the case of each office or establishment. He shall also decide which office or body higher in status than the officer authorized to take disciplinary action shall act as the appellate authority to deal with or hear and dispose of any appeal against orders passed in disciplinary matters. These authorities shall be nominated by designation to pass original order or hear and dispose of any appeal against orders passed in disciplinary matters. These authorities shall be nominated by designation to pass original order or hear and dispose of appeals from time to time and a notice specifying the authorities so nominated shall be published from time to time on the bank's notice board, or appoint another officer as Enquiry Officer for the purpose of conducting an enquiry."  

An objection to this effect was raised by the petitioner by means of a representation-dated 22.6.1996 and the petitioner has also protested for non payment of subsistence allowance. The petitioner has also objected to the initiation of disciplinary proceedings with regard to the same charge, which was also subject matter of the criminal proceedings against the petitioner. In addition to Clause 19.4 of the Settlement under which it is open to the management to initiate the departmental proceeding in case where steps for prosecuting an employee has also been taken only in case the employee has not put on trial within a period of one year. In spite of the filing of the representation nothing has been done. Due to the non-payment of subsistence allowance and unauthorized deduction the petitioner was compelled to file a writ petition, which was numbered as Writ petition No. 31655 of 1996. The writ petitioner was entertained and on 8.10.1996 the respondents were directed to pay the subsistence allowance, which is admissible in law during the pendency of the inquiry.

However, it has been submitted by the petitioner that in spite of the aforesaid order, the respondents have failed to pay the subsistence allowance to the petitioner. On account of non-payment of subsistence allowance to the petitioner, the petitioner was seriously prejudiced in defending his case before the inquiry officer. On 26.7.1997 the petitioner filed another representation along with a medical certificate and requested for some further date. Without noticing any objection filed on behalf of the petitioner, the Inquiry Officer proceeded to hold inquiry and concluded the same on 23.6.1997. It has been stated that the inquiry proceedings were conducted between the period 8.11.1996 to 23.6.97 and has been held behind the back of the petitioner. After submission of the inquiry report a show cause notice dated 19.12.1997 was issued against the petitioner calling upon the petitioner to show cause as to why the petitioner should not be discharged from the bank service without disqualification for further employment. In response to the aforesaid show cause notice the petitioner filed a detailed reply dated 21.1.1998. Copy of the same has been filed as Annexure-10 to the writ petition. The Regional Manager issued a notice-dated 29.1.1998 along with extract of the inquiry proceeding and 2.2.1998 was fixed for oral hearing before the disciplinary authority. The petitioner made an application for adjournment but the Regional Manager has passed an order dated 9.2.1998 inflicting a penalty of discharge from the bank service. Copy of the same has been annexed as Annexure-13 to the writ petition.

Aggrieved by the order passed by the disciplinary authority, the petitioner filed an appeal and the appeal was treated as time barred and was rejected. Aggrieved by the aforesaid order dated 28.12.1998 the petitioner filed a writ petition before this Court as writ Petition No.50094 of 1999. The said order dismissing the appeal was set aside and a direction was issued to the respondents to decide the appeal of the petitioner as a fresh. Then by order dated 28.3.2003 the appeal filed by the petitioner has been dismissed. Copy of the same has been filed as Annexure-16 to the writ petition.

It has been submitted on behalf of the petitioner that the initiation of disciplinary proceedings against the petitioner is wholly without jurisdiction. The petitioner was not afforded an opportunity and the authority who had initiated the action against the petitioner is wholly incompetent for initiating the proceeding. There exists a specific stipulation that it is only after the expiry of one-year period that any such departmental proceeding could have been imitated in case the trial of the criminal offence has not been done within the said period. The respondents ought to have waited for the criminal proceeding initiated against the petitioner because non-payment of suspension allowance, the petitioner's right has been affected and due to the aforesaid fact, the petitioner was not able to participate in the disciplinary proceeding.

Notices were issued and counter affidavit has been filed. It has been stated that the contention of the petitioner to this effect that Chief Manager, Sri C.L.Duggal who has issued the charge-sheet was not competent to act as a disciplinary authority. Regarding payment of the subsistence allowance the said fact has been denied and it has been stated that it was being paid regularly to the petitioner. As regards the initiation of the departmental proceeding it has been stated that as the matter was under investigation and charge sheet was not submitted, as such the management had no option except to proceed for the departmental inquiry. A specific averment has been made in para 10 of the counter affidavit that in spite of the notice to the petitioner, the petitioner did not present himself in spite of  having full knowledge regarding each and every date, which was being fixed by the Inquiry Officer. The dates fixed were 8.11.1996, 2.12.1996, 11.1.1997, 10.2.1997 and 4.3.1997 and the petitioner was regularly informed to be present on the dates fixed but the petitioner deliberately did not present himself and as the petitioner was not participating in the disciplinary proceeding, there was no option except to proceed exparte.  From the record the charges leveled against the petitioner have been fully proved. Further submission has been made on behalf of the respondents that immediately after submission of the inquiry report before the disciplinary authority, a show cause notice was served and 29.12.1997 was fixed but the petitioner sent a letter for another date for hearing for 25.1.1998. Accordingly the next date was fixed for 2.2.1998 but the petitioner by letter-dated 20.1.1998 raised certain objections and demanded certain documents of the inquiry proceeding. The petitioner did not appear for personal hearing on 2.2.1998. Again the petitioner has sent telegram showing the inability to appear before the disciplinary authority for personal hearing on 2.2.1998 but no reasons have been assigned. Under such circumstances the disciplinary authority had no option except to pass appropriate orders on the basis of the inquiry report and on the basis of the relevant record. The appellate authority has also considered the case of the petitioner and has come to the conclusion that the charges leveled against the petitioner has been fully proved during the course of inquiry and as such the appeal is liable to be rejected.

I have heard the learned counsel for the petitioner and the counsel for the respondents and have perused the record. From the record it is clear that the charge leveled against the petitioner was that while working in the bank the petitioner on 11.9.1995 when one Smt. Basanti Devi came to the branch to deposit Rs.50,000/- cash in her Savings Bank Account No. 16916, the petitioner working on cash receipt counter received the cash voucher from the account-holder and returned the counterfoil of pay slip with his initial but has not deposited the said amount in the cash receipt wing of the cash department. When on 21.5.1995 Smt. Basanti Devi came to the branch for withdrawal of her money, he immediately prepared pay slip of Rs.50,000/- of Savings Bank Account and then released the vouchers after putting cash receipt stamp and his initials on it without depositing the cash in bank and himself  has deposited the said credit voucher in savings ledger and debited the withdrawal for Rs.50,000/-. The same charge of non-depositing of Rs.50,000/- has again been committed by the petitioner on 7.8.1995 and various other charges regarding the misappropriation of the amount has been done by the petitioner. The petitioner was suspended and an F.I.R has also been lodged against the petitioner for misappropriating the said amount. A charge sheet was given to the petitioner and from the finding recorded by the Inquiry Officer it is clear that various notices were issued by the Inquiry Officer to be present and to participate in the disciplinary proceeding but the petitioner has deliberately in spite of receiving the notices has not participated in the disciplinary proceeding The petitioner was fully aware regarding the dates, time and place fixed by the Inquiry Officer. When the petitioner has not appeared, the Inquiry Officer had no option except to submit an inquiry report to the disciplinary authority. As the bank record itself reveals regarding misconduct of the petitioner and on the basis of the aforesaid record, the Inquiry Officer has submitted a report and found the petitioner guilty of misconduct by misappropriating the amount, as such has submitted a report to the disciplinary authority and the disciplinary authority too after issuance of the show cause notice, a reply was invited, various dates were fixed for oral hearing but the petitioner deliberately sought frivolous adjournments without any cause as such the disciplinary authority has passed an order of punishment holding the petitioner guilty of the charges leveled against him.

From the perusal of the inquiry report it is clear that a finding to this effect has been recorded that the charges leveled against the petitioner is fully proved. He made vague entries in the savings ledger of Account No. 16916. Further on 6.9.1995 when Smt. Vidyawati gave withdrawal form of Rs.20,000/- to withdraw the amount, the petitioner made a vague entry of Rs.20,000/- as of date of 5.6.1995 in the Ledger Account of HSS A/C No. 16599. Charge no. 6 has also been proved against the petitioner of misappropriating Rs.50,000/-. The contention raised on behalf of the petitioner that the petitioner has not been afforded full opportunity during the course of inquiry and the disciplinary authority has also not given any personal hearing, as such the total punishment awarded against the petitioner is vitiated. The said submission of the petitioner cannot be accepted as from the record admittedly the petitioner has misappropriated various amounts and made forged entries in the bank record. The petitioner being a bank employee was expected to act in accordance with the norms fixed by the bank. The petitioner being a casher receiving the cash from the customers was having full responsibility to deposit the amount of the customers immediately when the said money is received. If the same has not been deposited, the said action of the petitioner is misconduct and the charges leveled against the petitioner have fully been proved from the record, therefore, it cannot be said that the punishment which has been awarded against the petitioner is in any way disproportionate. If such charge has been proved and misconduct is proved, then no punishment other than dismissal removal or termination can be awarded. In the present case also, the charges leveled against the petitioner have fully been proved. As such in my opinion the punishment, which has been awarded against the petitioner, cannot be said to be disproportionate.

It is now well settled that if the proper procedure has been followed in the departmental proceeding and a punishment has been awarded, the High Court while exercising the jurisdiction under Article 226 of the Constitution of India cannot set aside the said punishment as it is a total domain of the disciplinary authority awarding the punishment. This Court should not interfere.

In view of the aforesaid fact I find no merit in the present writ petition. The writ petition is devoid of merit and is hereby dismissed. No order as to costs.

May    ,2006

V.Sri/-

 


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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