Patna High Court
The Madhya Bihar Gramin Bank (Now … vs Dudheshwar Ram on 17 December, 2024
Author: Chief Justice
Bench: Chief Justice
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.188 of 2024
In
Civil Writ Jurisdiction Case No.563 of 2019
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1. The Madhya Bihar Gramin Bank (Now Dakshin Bihar Gramin Bank)
through its Chairman, Sri Vishnu Commercial Complex, Ashochak Chowk,
New Bypass Road, Patna-800016.
2. The General Manager, Madhya Bihar Gramin Bank (Now Dakshin Bihar
Gramin Bank) Sri Vishnu Commercial Complex, Ashochak Chowk, New
Bypass Road, Patna-800016.
3. The Regional Manager of the Madhya Bihar Gramin Bank (Now Dakshin
Bihar Gramin Bank) Aurangabad.
4. The Branch Manager of the Madhya Bihar Gramin Bank (Now Dakshin
Bihar Gramin Bank) Sonbhadra Banshi Branch, Arwal.
... ... Appellant/s
Versus
Dudheshwar Ram son of Late Babu Ram, Vill and P.O.-Sahar Telpa, P.S.-
Karpi, District-Arwal, PIN-804419.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr.Ranjeet Kumar Pandey, Advocate
For the Respondent/s : Mr. Vivek Prasad, Advocate
Mr.Sanjay Kumar, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 17-12-2024
By the impugned judgment in appeal, the order of
punishment of dismissal issued by the General Manager-cum-
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Disciplinary Authority, confirmed by the Chairman-cum-
Appellate Authority of the respondent-bank; pursuant to a
departmental proceeding, was set aside. The respondent-bank is
aggrieved by the judgment.
2. Mr. Ranjeet Kumar Pandey learned Counsel appearing
for the appellant-bank submits that the appellant was proceeded
against on an allegation of taking bribe. It is pointed out that the
fardbeyan of the FIR was marked as MEx3, FIR MEx4 and the
arrest memo has been marked as MEx11. This more than
demonstrates the complicity of the delinquent employee and
validates the allegation. It is argued that insofar as departmental
proceedings are concerned, the standard of proof is
preponderance of probability as distinguished from proof
beyond reasonable doubt; which is the standard of proof in
criminal cases. The delinquent employee's name was not found
in the FIR only since it was added later when Rs. 1000/- was
recovered from his possession. Reliance is placed on State of
Uttar Pradesh Vs. Ranjeet Singh reported in 2022 (2) PLJR
196 (SC) to contend that even if there is defect in enquiry, the
employer should be permitted to resume the enquiry from the
stage at which the defect occurred. The appellant-bank while
seeking to uphold the punishment, in the alternative seeks for
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resumption of the enquiry proceedings for the purpose of
examining witnesses.
3. Mr. Vivek Prasad learned Counsel appearing for the
respondent-petitioner relies on two Division Bench Judgments
of this Court in LPA No. 415 of 2023 (State of Bihar and Ors
Vs. Bharat Purbey) dated 06.12.2023 and LPA No. 389 of
2024 (Ram Lagan Ram Vs. the State of Bihar & Anr) dated
06.08.2024
, to contend that without any witness there can be no
valid proof of the delinquency; even for the purpose of
preponderance of probability. Both the decisions as relied upon
relies upon Roop Singh Negi Vs. Punjab National Bank
reported in (2009) 2 SCC 570. On the question of remand, it is
pointed out that the disciplinary authority having not conducted
the enquiry properly and having not examined any witness, the
employer cannot be given a premium for its own default.
Reliance is placed on the decisions of co-ordinate benches of
this Court in LPA No. 446 of 2024 (State of Bihar Vs. Vikash
Kumar) dated 21.08.2024, LPA No. 58 of 2024 (Srikant Singh
Vs. State of Bihar) dated 03.09.2024 and LPA No. 770 of 2024
(State of Bihar Vs. Anil Kumar Sinha) dated 20.11.2024.
Reliance is also placed on the decision of the Hon’ble Supreme
Court in Satyendra Singh Vs. State of Uttar Pradesh & Anr
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reported in 2024 SCC OnLine SC 3325, to further buttress the
above contentions.
4. Admittedly, no witness was examined during the
enquiry. The allegation was also that the petitioner was arrested
on an accusation of taking bribe due to which the image and
interest of the bank had suffered. The enquiry was initiated on
the basis of Annexure-P/1 wherein there was no allegation
against the delinquent employee. However, as submitted by the
learned Counsel for the appellant bank, the delinquent
employee was implicated later, on recovery of money from the
delinquent employee. True, the allegations are serious especially
with respect to the employee of a financial institution who is
acting in a fiduciary capacity. Be that as it may, only based on
the gravity of allegation, there can be no finding of guilt entered
even in a departmental enquiry, without any valid evidence
regarding the allegations levelled.
5. We fully concur with the submission of the learned
Counsel for the appellant-bank that the standard of proof is
preponderance of probabilities in a departmental proceeding.
But, even for the enquiry officer and the disciplinary authority
to enter satisfaction on the preponderance of probabilities, there
should be some evidence led at the enquiry.
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6. In this context, we notice the decision of the Hon’ble
Supreme Court in the case of Roop Singh Negi (supra) wherein,
it was held that mere production of documents would not be
proof even in a departmental enquiry. The legal position is that
the documents produced will have to be proved by examining
witnesses who are either the author of such document or from
whose custody the document was produced. In fact, in the cited
decision, it was held that an FIR in itself is not evidence without
actual proof of facts stated therein. Mere production of a. first
information statement and an FIR cannot be looked into by an
enquiry officer or a disciplinary authority to find the allegations
to be true, even on preponderance of probabilities. The
department would have to examine the witnesses or the person
who registered the FIR or the person who arrested the
delinquent employee or at least the person who recovered the
money from the possession of the delinquent employee. The
mere production of documents regarding the FIR and the arrest
would not suffice.
7. Now we come to the issue of remand, which was
considered in the following manner, in paragraph no. 8 to 12 of
Vikash Kumar (supra):-
“8. The decisions in Union of India v.
Mohd. Ramzan Khan, (1991) 1 SCC 588 and ECIL
v. B. Karunakar, (1993) 4 SCC 727; considered the
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issue of denial of reasonable opportunity, when the
enquiry report was not supplied to the delinquent
employee; after the 42nd amendment of the
Constitution of India. Before the 42nd amendment of
the Constitution, there was a requirement to issue
notice to the delinquent employee to show-cause
against the punishment proposed, for which a
reasonable opportunity of making representation on
the penalty proposed was a mandatory condition
under Article 311 (2) of the Constitution of India. The
42nd amendment removed the above condition and it
was the contention of the employers that there was no
requirement to supply the enquiry report. It was
categorically held that whenever the Enquiry Officer
is someone other than the Disciplinary Authority and
the report of the Enquiry Officer holds the employee
guilty of all or any of the charges; with proposal for
any punishment or not, the delinquent employee is
entitled to a copy of the report to enable him to make
a representation to the Disciplinary Authority against
the findings in the report.
9. The non-furnishing of the report, hence
amounts to violation of principles of natural justice;
in which context a remand is necessitated, to supply
the enquiry report and afford a reasonable opportunity
to the delinquent to represent against the prejudicial
findings. The remand is to cure the technical defect,
so as to avoid any prejudice being caused to the
delinquent, by reason of denial of a reasonable
opportunity, before being penalized and not to clear
up the lacuna committed by the Management in the
conduct of the enquiry; especially when the enquiry
was carried out in a negligent manner without
adducing any valid evidence.
10. ECIL (supra) by a larger Bench, on a
reference made, reaffirmed the dictum in Mohd.
Ramzan Khan (supra). These were cases in which
the Hon’ble Supreme Court found that a reasonable
opportunity, to defend the allegation of misconduct
levelled and represent against the findings of the
enquiry report, was not afforded to the delinquent
employee; in which case alone there could be a
remand made for the purpose of curing the defect and
affording a reasonable opportunity to the delinquent
employee.
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11. The learned Single Judge has relied on
Union of India v. P. Gunasekaran; (2015) 2 SCC
610 from which we extract Paragraph 12 and 13:
12. Despite the well-settled position,
it is painfully disturbing to note that the High
Court has acted as an appellate authority in
the disciplinary proceedings, reappreciating
even the evidence before the enquiry officer.
The finding on Charge I was accepted by the
disciplinary authority and was also endorsed
by the Central Administrative Tribunal. In
disciplinary proceedings, the High Court is
not and cannot act as a second court of first
appeal. The High Court, in exercise of its
powers under Articles 226/227 of the
Constitution of India, shall not venture into
reappreciation of the evidence. The High
Court can only see whether:
(a) the enquiry is held by a
competent authority;
(b) the enquiry is held according to
the procedure prescribed in that behalf;
(c) there is violation of the principles
of natural justice in conducting the
proceedings;
(d) the authorities have disabled
themselves from reaching a fair conclusion
by some considerations extraneous to the
evidence and merits of the case;
(e) the authorities have allowed
themselves to be influenced by irrelevant or
extraneous considerations;
(f) the conclusion, on the very face
of it, is so wholly arbitrary and capricious
that no reasonable person could ever have
arrived at such conclusion;
(g) the disciplinary authority had
erroneously failed to admit the admissible
and material evidence;
(h) the disciplinary authority had
erroneously admitted inadmissible evidence
which influenced the finding;
(i) the finding of fact is based on no
evidence.
13. Under Articles 226/227 of the
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Constitution of India, the High Court shall
not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in
the enquiry, in case the same has been
conducted in accordance with law;
(iii) go into the adequacy of the
evidence;
(iv) go into the reliability of the
evidence;
(v) interfere, if there be some legal
evidence on which findings can be based.
(vi) correct the error of fact however
grave it may appear to be;
(vii) go into the proportionality of
punishment unless it shocks its conscience.”
(underlining & bold font supplied,
for emphasis)
8. We also extract paragraph no. 17 from Satyendra
Singh (supra):-
“Thus, even in an ex-parte inquiry, it is sine qua
non to record the evidence of the witnesses for proving
the charges. Having tested the facts of the case at hand on
the touchstone of the Rules of 1999, and the law as
expounded by this Court in the cases of Roop Singh Negi
(supra) and Nirmala J. Jhala Vs. State of Gujarat and
Anr reported in (2013) 4 SCC 301, we are of the firm
view that the inquiry proceedings conducted against the
appellant pertaining to charges punishable with major
penalty, were totally vitiated and non-est in the eyes of
law since no oral evidence whatsoever was recorded by
the department in support of the charges.”
9. With the above precedents in mind, we have to find
that mere production of documents would not be valid evidence
as has been held in Roop Singh Negi (supra). We also reiterate
that a remand, on finding the enquiry proceeding to be vitiated
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on a technical ground, is to avoid prejudice to the delinquent
employee when the enquiry has not been carried out in
accordance with the fundamental principles, thus causing
prejudice to the employee. Then we cannot permit the employer
to further conduct an enquiry; which in fact would prejudice the
delinquent employee. The employer’s laxity cannot be condoned
and in such circumstances, we find absolutely no reason to
interfere with the judgment of the learned Single Judge. We
direct the appellant-bank to reinstate the employee, if the date of
superannuation is not reached and pay him the entire back
wages during the period of suspension and when he was kept
out of employment due to the termination; relying on Deepali
Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya
& Ors reported in (2013) 10 SCC 324 and Pawan Kumar
Agarwala Vs. General Manager-II and Appointing Authority,
State Bank of India reported in (2015) 15 SCC 184.
10. If the respondent-petitioner has reached the age of
superannuation his pay and benefits from the date of suspension
till the date of retirement; minus the subsistence allowance shall
be paid, and the retirement benefits shall also be computed and
paid to him.
11. The LPA would stand dismissed.
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12. Interlocutory application(s), if any, shall stand
disposed of.
(K. Vinod Chandran, CJ)
(Nani Tagia, J)
ranjan/-
.
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 23.12.2024
Transmission Date NA