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2021 (1) TMI 1312
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....h he was placed under suspension in the first place by order dated 14th August, 1995 and later the charge-sheet dated 11th April, 1996 was served upon him detailing seven charges of misappropriation of funds which he had committed in discharge of his duties as an employee of the Bank. 4. It may be relevant to note that for the self-same misappropriation of bank's money by affording fake credits in his various accounts maintained at the Branch where he was posted, a criminal case was also instituted against him for offences Under Sections 420, 467, 468, 471 Indian Penal Code read with Section 120-B Indian Penal Code and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. 5. After the charge-sheet dated 11th April, 1996 was served, the Respondent delinquent submitted his reply dated 08th May, 1996 denying all the charges. The enquiry officer was thereafter appointed by the competent authority to hold enquiry in terms of Bipartite Settlement applicable for award staff of Nationalized Bank. The Respondent had participated in the disciplinary enquiry and the enquiry officer after holding enquiry in accordance with the procedure prescribed under the ....
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....ugh credit to his current account No. P-15 on the aforesaid dates. To prove the above allegations/charges, the presenting officer produced the following documents: PEX-4: Branch clearing general account Schedule No. 4 dated 25.03.1994 for Rs. 4,87,300. PEX-5: Saving bank credit voucher dated 25.03.1994 for Rs. 4,87,300 pertaining to saving bank account No. 7547 of Shri K.C. Minglani. PEX-6: Debit voucher dated 25.03.1994 for Rs. 2,36,550 pertaining to savings bank account No. 7547 of Shri K.C. Miglani. PEX-7: Current account credit voucher dated 25.03.1994 for Rs. 89,150 pertaining to current account No. P-51 of Shri Ajay Kumar Srivastava. PEX-8: Debit voucher dated 04.04.1994 for Rs. 2,40,750 pertaining to saving bank account No. 7547 of Shri K.C. Miglani. PEX-9 Current Account credit voucher dated 04.04.1994 for Rs. 10,600 pertaining to current account No. P-51 of Shri Ajay Kumar Srivastava, actually the voucher is for Rs. 10,000. PEX-10 Current account day book dated 04.04.1994. PEX-11 Ledger sheet of current account No. P-15 of Shri Aja....
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....Rashmi Srivastava PEX-20-Current A/c credit voucher dated 30.05.1995 Rs. 2,30,000/- pertaining to current a/c No. P-51 of Smt. Srivastava. PEX-21-Saving bank daybook dated 30.05.1995 The charge is proved. Allegation/Charge No. 6: On 31.05.1995, Shri Srivastava fraudulently raised a fake debit of Rs. 3,60,000 in the S.B. A/c No. 11068 fvg. Smt. Rashmi Srivastava (his wife) wherein no credit balance was available and got its part amount of Rs. 3,00,000 credited to his current account No. P-51 with a view to defraud the Bank. To prove the above allegation/charge, the presenting officer produced the following documents: PEX-22-Current A/c credit vouchers dated 31.05.1995 for Rs. 3,00,000/- pertaining to current a/c No. P-51 of Sri Ajay Kumar Srivastava PEX-23-Ledger sheet pertaining to saving bank a/c No. 11068 PEX-24-Ledger sheet pertaining to current a/c No. P-51. PEX-25-Saving bank daybook dated 31.05.1995 PEX-26-Current a/c daybook dated 31.05.1995 The charge is proved. Allegation/Charge No. 7: On 20.10.1993, Shri Srivastava borrowed Rs. 35,000.00 from Shri ....
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....tigation/trial instituted against him in a pending criminal case, has caused great prejudice to him. 9. Despite no specific objection being raised by the Respondent delinquent in reply to the show-cause notice, still the disciplinary authority revisited the record of enquiry including the enquiry report, the explanation furnished by the Respondent while affirming the finding by the enquiry officer in its report, confirmed its prima-facie opinion which he has expressed in his communication dated 29th June, 1999 and in terms of Para 521(5)(a) of the Sastry Award read with Para 18, 28 of the Desai Award as modified by the 12th Bipartite Settlement dated 14th February, 1995 between the State Bank of India and All India State Bank of India Staff Federation, confirmed the penalty of dismissal from service by its order dated 24th July, 1999. 10. The Respondent preferred departmental appeal against his dismissal from service. A bare perusal of the appeal preferred by the Respondent would indicate that it was just a reflection of the general objection raised in reply to the show-cause notice with no specific averment in the appeal as to what was the procedural error being committed by....
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....ed Court of Special Judge, CBI Court No. 1, Lucknow, by a judgment dated 31st May, 2019 and sentenced to ten year rigorous imprisonment with fine and in default to undergo imprisonment of three months. 14. Learned Counsel for the Appellants submits that fair opportunity of hearing was afforded to the Respondent delinquent in the course of enquiry and it was never the case of the Respondent that either the procedure prescribed under the disciplinary Rules have not been followed or the enquiry was held by the authority who was not competent under law or the findings or conclusions which have been arrived at by the enquiry Officer in his report and confirmed by the disciplinary authority are not supported by the evidence on record or there was a violation of the principles of natural justice. In the absence whereof, the plea raised by the Respondent holding that the disciplinary authority has passed a non-speaking order without application of mind lacks merit and is not substantiated from the material on record. 15. To the contrary, the Enquiry Officer in his detailed report recorded cogent reasons in holding the Charge Nos. 2-7 proved against the delinquent employee. The discip....
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....y interfered by the High Court in the impugned judgment. 18. Learned Counsel further submits that when the enquiry officer has not found charge No. 1 proved and the disciplinary authority disagreed with the finding recorded by the enquiry officer in his report, should have served in the first place, a note of disagreement, calling for his explanation and only thereafter it was open for him to examine the record of enquiry independently in taking its decision in accordance with law and the procedure which was adopted by the disciplinary authority in holding the Respondent guilty in reference to Charge No. 1 was not only a procedural error but is a great prejudice being caused to the Respondent and such defect could not have been cured by the post-decisional hearing, which has been rightly upheld by the High Court in the impugned judgment and needs no interference by this Court. 19. We have heard learned Counsel for the parties and with their assistance perused the material available on record. 20. At the outset, it may be noted that the enquiry officer has noticed in his enquiry report that the Respondent delinquent neither produced any document nor witness in self-defence.....
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....be payable to him. The above order was passed against him on the charges contained in the charge-sheet dated 11.4.1996 and he was given an opportunity to make submissions, if any, against the above punishment within 7 days of its receipt, extended to 15 days on his request, failing which it would be deemed that he has nothing to submit in this regard and final order will be passed without any further reference to him. 2. Shri A.K. Srivastava has submitted that it is highly illegal to have passed the tentative order of dismissal dated 29.6.1999 on the basis of the findings of the Enquiry Officer without seeking his comments thereon. In his view, the report of the Enquiry Officer must have been forwarded to him for seeking his submissions, if any, which has not been done. No such procedure is laid down followed in the bank to forward the enquiry report to the charged employees before finalization of the proposed punishment. The procedure in this regard has been followed by enquiry report and related documents have been forwarded to him along with the tentative order to enable him to submit his defence as to why the proposed punishment should not be imposed on him as per the ....
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....Bank of India Staff Federation. I also order that the period spent by Shri Srivastava as suspended be treated as such and no salary and allowances, except the subsistence allowance already paid, will be payable to him. I order accordingly. Sd/- ASSTT. GENERAL MANAGER(IV) DISCIPLINARY AUTHORITY, DATED: 24th July, 1999 22. The departmental appeal which was preferred by the Respondent employee was revisited by the appellate authority and taking note of the objections, all have been separately dealt with by the appellate authority in its order dated 15th November, 1999, the relevant portion of which is extracted as under: 3. In order to examine the aforesaid points by the Appellant, I have gone through the charge-sheets, reply of charge-sheets submitted by the charged employee, enquiry proceedings, findings of the Enquiry Officer, tentative order dated the 29th June, 1999, final order dated the 24th July, 1999, his service sheet and other relevant records of the case. My views are as under: i) Almost all points raised by Shri Srivastava, as above, have been suitably replied in the Enquiry Officer's reply and in the final order dated the 24t....
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....e representative. It appears that he could not get any representative to defend his case in view of serious charges against him. He neither asked any document nor desired to produce any witness/defence evidence during the enquiry proceedings till its conclusion on 12.5.1998. When he felt that the prosecution has produced enough evidences as per enquiry proceedings which will prove his involvement in the conspiracy to defraud the bank, he started levelling the baseless allegations against the bank to delay the decision against him. 4. Thus, the points raised by Sri Srivastava in his appeal have no merit. The punishment ordered by the Disciplinary Authority is commensurate to the charges levelled against him and the contention of the Appellant does not hold good in view of the charges proved otherwise as discussed in the preceding paragraphs. After careful consideration of the matter in its entirety, I am of the view that the Disciplinary Authority is fully justified in awarding the punishment of dismissal without notice and treating the period spent by Shri Srivastava as suspended as such and no payment of salary and allowances, except the subsistence allowance already paid....
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....iry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact. 26. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the Court is to examine and determine: (i) whether the enquiry was held by the competent authority; (ii) whether Rules of natural justice are complied with; (iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion. 27. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the f....
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....that the Respondent stated in the course of enquiry that he neither wants to say anything about the prosecution document nor he wants to ask any question to the presenting officer and never requested to seek permission to defend the representative of his choice. 31. After affording an opportunity of hearing at the conclusion of the departmental enquiry, along with the written note submitted by the presenting officer and by the Respondent delinquent, the enquiry officer marshalled the record of enquiry and based on the documentary evidence produced by the presenting officer in reference to each charge recorded a finding in holding charge No. 1 not proved and charges Nos. 2-7 stood proved against the delinquent Respondent. 32. It was later revisited by the disciplinary authority and apart from the note of disagreement in reference to charge No. 1, the disciplinary authority accepted the finding of fact recorded by the enquiry officer in his report for charge Nos. 2 to 7 and with its prima facie opinion, called upon the Respondent to submit his explanation and after affording an opportunity of hearing and dealing with the objections raised by the Respondent in his written reply ....
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....ing out objections raised by the Respondent delinquent in his written brief furnished at different stages. 36. If the order of dismissal was based on the findings of charge No. 1 alone, it would have been possible for the Court to declare the order of dismissal illegal but on the finding of guilt being recorded by the Enquiry Officer in his report in reference to charges Nos. 2-7 and confirmed by the disciplinary/appellate authority was not liable to be interfered and those findings established the guilt of grave delinquency which, in our view, was an apparent error being committed by the High Court while interfering with the order of penalty of dismissal inflicted upon the Respondent employee. 37. It is supported by the judgment of the Constitution Bench of this Court in State of Orissa and Ors. v. Bidyabhushan Mohapatra (supra) wherein it has been observed as under: 9. The High Court has held that there was evidence to support the findings on heads (c) and (d) of Charge (1) and on Charge (2). In respect of Charge 1(b) the Respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of Charges 1(a) and 1(e) in the view of....
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....r view that principle can have no application to the facts of this case. Although the enquiry officer found in fact that the Respondent had behaved insolently towards the Warehouse Master, he did not come to the conclusion that this act of indiscipline on a solitary occasion was sufficient to warrant an order of dismissal.... 39. Yet again, in Sawarn Singh and Anr. v. State of Punjab and Ors. AIR 1976 SC 232, this Court held: 19. In view of this, the deficiency or reference to some irrelevant matters in the order of the Commissioner, had not prejudiced the decision of the case on merits either at the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non-existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision [see State of Orissa v. Bidyabhushan Mohapatra [AIR 1963 SC 779]. 40. The Constitution Bench has clearly ....