Bashir Ahmad Dar vs J&K Grameen Bank & Others

Sanjay Dhar, J

1) The petitioner has challenged order bearing reference No.JKGB/HRD/17-8084 dated 23.03.2017, whereby punishment has been imposed upon him on the charges that were framed by the respondent Bank against him. The petitioner has sought a further direction upon the respondents not to effect recovery in pursuance of the impugned order and to release salary as well as arrears of salary in his favour with promotion to the level of Officer Scale-III.

2) As per the case of the petitioner, he is working with the respondent Bank as Manager (Officer Scale-II) and during his service career, he came to be placed under suspension in terms of order bearing reference No.DISP/JKGB/CS/13-2858 dated 20th February, 2013. It is submitted that prior to issuance of suspension order, charge sheet bearing reference No.DISP/JKGB/12-392 dated 3rd December, 2012, was served upon the petitioner and he was asked to submit his reply within a period of 30 days. According to the petitioner, he sought extension of time in filing reply to the charge sheet as he was not provided the supporting record/documents. It is the case of petitioner that he was not supplied these documents, as a result of which he could not file his reply.

3) A second charge sheet dated 01.03.2013 with supplementary charge dated 29.06.2013 were also served upon the petitioner. Again, he sought extension of time to file reply to the charge sheet and when he filed his reply, the same was treated as unsatisfactory by the respondents.

4) Vide reference dated 19.09.2014, fourth charge sheet was served upon the petitioner and he was asked to submit his reply by or before 20th October,2014. Thereafter vide orders dated 04.03.2013 and 18.04.2013, departmental proceedings were ordered in respect of first and second charge sheets only. As per these orders, the enquiry was to be completed within two months but the same was not concluded within the aforesaid period and it continued for about three years.

5) On 19.09.2013, an order bearing No.Dis/2013-31 dated 19.09.2013, came to be issued whereby a new enquiry officer was designated for conducting enquiry in third charge sheet. The report of enquiry was submitted by the enquiry officer on 11th January, 2016, to the Head Office, wherein major charges levelled against the petitioner were returned ‘not proved’.

6) After the submission of enquiry report, notice dated 08.03.2016, was served upon the petitioner, in terms whereof the respondents proposed the punishment of dismissal from service. In response to the said notice, the petitioner submitted his representation and he further sought time for furnishing additional documents.

7) According to the petitioner, the respondents despite placing him under suspension assigned official duties to him which is in violation of Circular No.89 of the respondent Bank. According to the petitioner, while working as a Recovery Officer, he discharged his duties and recovered huge amount in crores of rupees from the defaulters. It is averred that the petitioner was not provided the requisite documents and, in the meantime, vide order No.PSF/JKGB/2017 dated 23.03.2017, he was reinstated and posted at Regional Office, Sopore, Kashmir, as Recovery Officer and his disciplinary case was disposed of vide order bearing reference No.JKGB/HRD/17-8084 dated 23.03.2017, according to which as many as seven punishments were handed over to the petitioner.

8) The petitioner has challenged the imposition of punishment upon him on the grounds that he has been treated harshly without adhering to the provisions of the law and the rules. It has been further contended that though the petitioner was honourably reinstated in service but still then seven punishments have been imposed upon him which is not in accordance with law. It is contended that the impugned action taken by the respondents against the petitioner smacks of malafides as the Bank had already proceeded and initiated action against the defaulters and, as such, there was no reason for the Bank to implicate the petitioner. It has been contended that no opportunity of hearing was given to the petitioner before imposing harsh punishment upon him.

9) The writ petition has been contended by the respondents by filing a reply thereto. In their reply, the respondents have submitted that the disciplinary proceedings were initiated against the petitioner in accordance with the rules and regulations holding the filed and the principles of natural justice and fairness were adhered in the case of the petitioner. It has been submitted that four separate charge sheets were served upon the petitioner in respect of series of acts of misconduct committed by the petitioner at different places of his posting as Incharge Branch Manager. According to the respondents, the petitioner has advanced huge loans to non-existent persons whose whereabouts are unknown, that too on fake and fictitious documents of security. It has been submitted that despite the fact that the petitioner did not respond to charge sheets dated03.12.2012, 01.03.2013 and 19.03.2013, he was allowed to participate in the enquiry proceedings that were conducted in the aforesaid three charge sheets. It has been submitted that the petitioner was granted every opportunity to examine the records and to plead his case so as to justify his innocence by rebutting the allegations made against him.

10) According to the respondents, after holding a full-dressed enquiry, the Enquiry Officer has found the petitioner guilty of most of the charges levelled against him. It was found that the petitioner was guilty of serious lapses/irregularities while discharging his duties at Branch Manager, New Colony, Sopore, and Sangrama. It is alleged by the respondents that the petitioner has shown undue favours by lending bank’s funds in favour of one family of Shri Mohammad Akbar Bhat as also to another family of Brath Kalan. According to the respondents, after holding of enquiry, the petitioner was issued notice to make a representation against the proposed punishment and he was also afforded personal hearing by the disciplinary authority. It is the case of the respondents that the reply of the petitioner and the entire documentary evidence was thoroughly considered by the disciplinary authority whereafter the impugned order of punishment dated 23.03.2017 was issued.

11) It has been contended by the respondents that the petitioner was put on duty as a Recovery Officer during his suspension period so that gravity of charges levelled against him could be mitigated and that the duty was not assigned to him so as to extract work from him during the suspension period.

12) I have heard learned counsel for the parties and perused the material on record including the record relating to the enquiry that has been produced by learned counsel for the respondents.

13) The main grounds that have been urged by learned counsel for the petitioner during the course of arguments are that no enquiry was held by the respondents in respect of the charge sheets that were served upon the petitioner. It has been further contended that the principles of natural justice have been observed in breach by the respondents while holding the enquiry, inasmuch as the petitioner has not been given a right of hearing. Learned counsel for the petitioner has also argued that the punishments imposed upon the petitioner are not contemplated under the relevant Service Regulations and, as such, the impugned order, whereby punishment has been imposed upon the petitioner, is liable to be set aside. It has also been argued that the petitioner could not have been put on duty during his suspension as the same is in violation of the Circular of the respondent Bank.

14) Before dealing with the contentions of learned counsel for the petitioner, it would be apt to notice legal position as regards the power of judicial review in disciplinary matters.

15) The Supreme Court has time and again observed that scope of judicial interference in the departmental enquiry is very limited. In State of A.P. vs. S. Sree Rama Rao, (1964) 3 SCR 25, The Supreme Court has, while explaining the scope of judicial review in disciplinary matters, observed as under:

"7. There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition I ... under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

16) Again, in the case of Apparel Export Promotion Council vs. A. K. Chopra, (1999) 1 SCC 759, the Supreme Court has observed as under:

"16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole fact- finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well- settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141 HL] observed:

"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the court."

Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority."

17) In Union of India vs. P. Gunasekaran, (2015) 2 SCC 610, the Supreme Court has, while discussing the scope of interference in a departmental enquiry, observed as under:

“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.

Under Articles 226/227 of the 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."

18) Recently, the Supreme Court in the case of State of Rajasthan and others vs. Heem Singh, 2020 SCC Online SC 886, after noticing its previous judgments on the issue, observed as under:

“In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible. The rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy – deference to the position of the disciplinary authority as a fact-finding authority and autonomy of the employer in maintaining discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re-appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle which has been outlined above. The ultimate guide is the exercise of robust common sense without which the judges’ craft is in vain.”

19) From the foregoing analysis of the law on the subject, it is clear that the High Court while exercising its jurisdiction under Article 226/227 of the Constitution cannot reappreciate the evidence that has been produced before the Enquiry Officer. It can only see the procedural irregularities and violation of principles of natural justice and fair play or it can ascertain whether the findings are based on no evidence.

20) Coming to the instant case, there is no denial to the fact that the petitioner has been served with four different charge sheets in respect of alleged acts of misconduct. The petitioner does not deny the receipt of these charge sheets. According to the petitioner, he was not given time to respond to some of these charge sheets but, in their reply, the respondents have clearly stated that even if the petitioner did not file his reply to first three charge sheets, still then he was allowed to participate in the enquiry proceedings and to present his side of the case as also to rebut the material produced by the respondent Bank. This is also borne out from the record of the enquiry proceedings. Thus, it cannot be stated that the petitioner’s right to make a representation against the charges and to produce the material before the Enquiry Officer, has been circumvented or denied in any manner by the respondents.

21) The record further reveals that a notice was also issued to the petitioner by the disciplinary authority proposing imposition of punishment of dismissal from service and the petitioner was asked to submit his representation against the proposed punishment. Admittedly, the petitioner has submitted his representation and he has admitted in the writ petition that he was even allowed personal hearing by the respondents. Upon consideration of his reply, the competent authority, instead of imposing the punishment of dismissal upon the petitioner, has imposed the following punishment upon him:

i) Reduction of basic pay to lowest stage in the pay scale with entitlement to next increment subject to satisfactory performance;

ii) Debarred for future promotion;

iii) Subsistence allowance drawn during the period of suspension shall be treated as his salary for the period so spent by him;

iv) He shall be personally responsible for the smooth recovery of the loan accounts and also be liable to reimburse any financial loss caused or likely to be caused to the bank by reasons of the charges provided and established against him;

v) Any arears of salary, terminal benefits etc. accrued or due to him shall be kept in Sundry account towards adjustment of the loan accounts and no credit facility under Staff Loan Scheme of the bank be sanctioned in his favour;

vi) He is censured and sternly warned to be careful and not to repeat such acts if future;

vii) He should not be given independent charge of the branch/office to handle henceforth and his future postings shall be considered accordingly;

22) Thus, it is a case where the competent authority has, after considering the response of the petitioner and after giving him right of hearing, decided not to impose punishment of dismissal upon the petitioner and instead imposed a lesser punishment upon him. The respondents, in these circumstances, appear to have followed all the principles of natural justice and the Service Regulations contained in the Regulations of 2010 relating to J&K Grameen Bank Officers and Employees.

23) The contention of learned counsel for the petitioner that the findings of the Enquiry Officer on the charges have been rendered without following the prescribed procedure and without holding any enquiry is belied from the record of the enquiry. A perusal of the record shows that the Enquiry Officer has conducted a full-dressed enquiry and referred to the relevant documents and the material produced by the respondent Bank on the basis of which the charges have been established against the petitioner. It is not a case where the findings recorded in the enquiry report are based on no evidence. There was definitely material available before the Enquiry Officer to record these findings. This Court, in exercise of its writ jurisdiction, would not go into the question as to whether the said material was adequate or reliable for returning these findings nor can this Court reappreciate the material on record so as to test the merits of the findings arrived at by the Enquiry Officer.

24) It has been contended by the petitioner that the punishments imposed upon him are not contemplated in the Service Regulations of 2010. In this regard it is to be noted that so far as the reduction of basic pay is concerned, the same is contemplated in Regulation 39(a)(v) of the Regulations of 2010. The punishment regarding debarring from future promotions is covered under Regulation 39(b)(iii) of the Regulations. So far as treating of subsistence allowance as alary is concerned, it is upto the employer to take a decision as to what should be fate of the period for which an employee has been placed under suspension and it is under that power that the respondent Bank has decided to grant only subsistence allowance in lie of salary in favour of the petitioner during the period of suspension. So far as punishment regarding reimbursement of loss caused or likely to be caused to the Bank by reason of misconduct, which has been proved against the petitioner, is concerned, the same is covered under Regulation 39(a)(iv). The punishment of censure is covered under Regulation 39(a)(i). Similarly, the recovery of loss caused to the Bank from the terminal benefits of an employee is covered under Regulation 39(a)(iv).

25) Therefore, the respondents have not imposed any punishment upon the petitioner which is not contemplated under the Regulations of 2010. The contention of learned counsel for the petitioner in this regard is without any merit.

26) Lastly, it has been argued by learned counsel for the petitioner that as per own Circular of the respondents they were debarred from putting the petitioner on duty during the period of suspension but in spite of this, he was assigned the duties of Recovery Officer. In this regard, the respondents have clearly indicated in their reply that this was done only to give a chance to the petitioner to effect recoveries of the loans which he had advanced in his capacity as Manager without following the norms so that the charge of causing loss to the Bank by the misconduct of the petitioner would get mitigated to some extent. So, the step taken by the respondents was, in fact, beneficial to the petitioner and it has not caused any prejudice to him. Therefore, the same cannot be a ground to quash the impugned order .

27) For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed.

28) The record be returned to learned counsel for the respondents.