Dharam Pal Singh vs Zila Sahkari Bank Ltd. and Others

S.R. Singh, J.—By means of the present petition, the Petitioner Dharam Pal Singh seeks issuance of a writ of certiorari quashing the order of dismissal dated 4-7-1988 and for a writ of mandamus connecting the Respondents is not to give effect to the aforesaid order dated 4-7-1988 and further not interfere in my manner with his functioning as Senior Branch Manager. Zila Sakari Bank Ltd. Bareilly on the beds of the order dated 4-7-1988. The relief of directing Respondents by means of a mandamus, to pay entire salary to the Petitioner with effect from 2-8-1985 has also been sought for.

Facts which are material and bear upon the merit of the case in hand, are encapsulated below. The facts are; while the Petitioner was working as Senior Branch Manager, Zila Sahkari Bank Ltd., Bareilly Branch Bareilly he was placed under suspension with effect from 1-8-1985 by means of the order dated 2-8-1985. The suspension order was followed by lodging of a First information Report dated 11-8-1985 on the basis whereof a cast it being case Crime No. 864 of 1985, was registered against the Petitioner under Sections 409/467/468/471 IPC at Police Station Kotwali Bareilly. In the course of time, an enquiry officer was appointed and the Petitioner was served with a charge-sheet dated 25-4-1987 (Annexure 8 to the writ petition). The Petitioner was indicted of as many as five charges as listed in the charge-sheet, but substantially, there were two charges-one of falsifying the record and thereby to make a bid to embezzle certain amount i.e. Rs. 68301 50P, which was the subject matter of charge No. 1 and the other was that he defalcated a sum of Rs. 67.409.48P in varied transactions covered by charges 2 to 5 After concluding the enquiry, the Enquiry officer submitted a report holding that all the charges which the Petitioner was indicted of were brought home to the Petitioner. A copy of the enquiry report is annexed as Annexure 10 to the writ petition. Subsequently, a show cause notice dated 6-9-1987 was issued to the Petitioner and he was also afforded opportunity of personal teasing vide letter dated December 11, 1987 (Annexure 12 to the petition), the Petitioner submitted his reply to the show cause notice vide letter dated 18-12-87. The Punishing Authority (District Magistrate/Administrator) upon a consideration of the material on record took a decision on 24-4-87 to inflict punishment on the Petitioner as proposed accordingly the papers were transmitted to the Institutional Service Board for concurrence. Institutional Service Board accorded its concurrence by letter dated 16-6-1988 where after the District Magistrate/Chairman of the Society exercising the powers of the Administrative Committee conferred upon him by means of a resolution No. 5 dated 13-4-1988 decided on 29-6-1988 to dismiss the Petitioner from service with immediate effect end to recover interest at the rate of 18% on the amount said to be embezzled for the period during which the embezzled amount remain in unauthorised custody of the Petitioner. It was also ordered that the amount if any, payable to the Petitioner would be adjusted towards his liability to pay interest at the rate of 18% per annum awarded against him vide order dated 29-6-1988 It was also ordered that the Petitioner would not be paid any amount other than what he had already received by way of subsistence allowance during his suspension period. The Petitioner was accordingly informed of the decision vide order dated 4-7-1988, the validity of which is under challenge in the petition in hand.

I have heard Sri A. Kumar, learned Counsel appearing for the Petitioner and Sri Trilokinath, learned Counsel for the Respondents.

Admittedly, the service of the Petitioner was governed by the U.P. Cooperative Societies Employees Service Regulation. 1975 (in short the Regulation'') framed by the U.P. Cooperative Institutional Service Board and approved by the Governor and published as required by Sub-section (2) of Section 122 of the U.P. Cooperative Societies Act 1965 Regulation 84 of Regulations lays down the penalty that an employee, who commits a breech of duty enjoined upon him or has been convicted for criminal offence or an offence u/s 103 of the Act or does anything prohibited by these Regulations may with. Regulation 85 of the Regulations provides that the disciplinary proceeding against an employee shall be con-ducted the Enquiry Officer with due observance of the principles of natural Justice for which it shall be necessary that.

(a) the employee shall be served with a charge-sheet containing specific charges and mention of evidence in support of each of charge and he shall be required to submit explanation in respect of the charges within reasonable time which shall not be less than fifteen days.

(b) such an employee shall also be given an opportunity to produce at his own cost or to cross-examine witnesses in his defence and shall also be given an opportunity of being heard in person, if he so desires.

(c) if no explanation in respect of charge sheet is received or the explanation submitted is unsatisfactory the competent authority may award him appropriate punishment considered necessary.

Regulation 87 visualises that the order imposing penalty under Sub-clauses (b) to (g) of Clause (1) of Regulation 84 shall not be passed except with the prior concurrence of the Board.

The first submission advanced by Sri A. Kumar, learned Counsel appearing for the Petitioner, was that the Petitioner wan not supplied with complete copy of the Enquiry report inasmuch as the copy of the report served upon him, was an accompanied by the recommendation as to punishment made by the Enquiry Officer and the failure to do so, urged the learned Counsel, resulted in breach of principles of natural justice, it is true, as held by the Supreme curt in State of Gujarat Vs. R.G. Teredesai and Another, , that the requirements of a reasonable opportunity would not be satisfied unless the entire report of the Enquiry Officer including his views in the matter of punishment are disclosed to the delinquent servant. The above view was quoted with approval in Union of India and others Vs. Mohd. Ramzan Khan, , wherein it was held as under:

We make it clear that wherever these has been an Enquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the enquiry holding the delinquent guilty of fell or any of the charges with proposal for any particular punishment or not, the delinquent his entitled to a copy of such report and will also be entitled to nuke a representation against it, if he so desires and non-furnishing of the report would amount to violation of the rules of natural justice and making a final order liable to challenge hereinafter.

It was specifically ruled by the Supreme Court in the aforesaid case of Mohd Ramzan Khan that supply of a copy of the enquiry report alongwith recommendation, if any, in the matter of proposed punishment to be inflicted, would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The proposition of law that a delinquent employees was entitled to get a copy of the enquiry report including the recommendation, If any, as to punishment to be inflicted upon, may he taken as established though the decision in Mohd. Ramzan''s case is pending reconsideration before a larger bench of the Supreme Court but in the instant case, it does not appear to be correct that the Petitioner was not supplied the complete copy of the enquiry report, which was sent to the Petitioner alongwith show cause-notice dated September 6, 1987 In his reply dated 18-12-1987 given to the show cause notice, the Petitioner did not challenge the correctness of the enquiry report on any count nor did he say that the report supplied to him was not a complete one. All that was Said by the Petitioner in his reply dated 18-12-1987 was that a final report in case Crime aforesaid u/s 409, 469, 467 IPC registered against him submitted to the court, had since been accepted by the Chief Judicial Magistrate, Bareilly on 2-12-1987 and that the Bank had not suffered any financial loss and therefore, it was prayed that appropriate decision be taken in the matter. To the same effect was the letter dated 19-2-1988 written by the Petitioner to the Administrator, Zila Sahkari Bank Limited Bareilly. Under the circumstances, it cannot be said that the enquiry report supplied to the Petitioner, copy of which he has annexed to the petition as Annexure 10 was not the complete report. In the show cause notice, the punishment was no doubt proposed, but it cannot be said that the proposed punishment was also recommended by the Enquiry Officer.

Sri A. Kumar, than urged that the Petitioner was also entitled to an opportunity of bearing at the stage of concurrence by the Institutional Service Board under Regulation 87 of the Regulations and also that the Institutional Service B and while giving its concurrence under Regulation 87 was duty bound to record reasons He placed reliance upon my own decision dated 24 9-91 in Civil Misc. Writ Petition No. 1 7904/91 S.K. Sharma v. Director of Technical Education Kanpur and Ors. .

The enquiry contemplated under Regulation 85 is a quasi-Judicial one. The Enquiry Officer as well as the punishing Authority are (sic) bound to observe the rules of natural justice to the extent these rules are embodied in the Regulations and are not expressly or impliedly excluded or truncated in any manner. But so for as the Institutional Service Board is concerned, it appears to mo that in exercise of its power, It is cot required to observe audi alteram partem'' rule of natural justice and further that while giving its concurrence to the proposed punishment, it is not required to record reasons. It exercises an administrative power of supervision All that the Institutional Service Board has to do is to act reasonably and not arbitrarily or capriciously in discharge of its duty in giving the concurrence sought for.

In Jaswant Sugar Mills Ltd., Meerut Vs. Lakshmichand and Others, , the Conciliation Officer while granting or refusing permission to alter the terms of employment of workmen, in exercise of the power conferred upon him by Clause 29 of the order issued by the Governor of Uttar Pradesh under the U.P. Industrial Disputes Act, 1947, was held not to be a tribunal under Article 136 though the Conciliation Officer was required to act judicially It was observed:

He is concerned in granting leave to determine whether there is a prima facts case for dismissed or discharge of an employee or for altering terms of employment, and whether the employer is actuated by unfair motives; he has not to decide whether the proposed step of discharge or dismissal of the employees was within the rights of the employer. His order merely removes a statutory ban in certain eventualities, laid upon the common law right of an employer to dismiss, discharge or alter the terms of employment according to contract between the parties. The Conciliation Officer has undoubtedly to act judicially in dealing with an application under Clause 29 but he is not invested with the judicial power of the State, he cannot therefore be regarded as a ''tribunal'' within the meaning of Article 136 of the Constitution.

In Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd. (1992) 3 JT (SC) 446 : (AIR 1992 SCW 1378 ), on a conspectus of the earlier decision, it was held by the Constitution Bench that the appropriate Government or authority while granting or refusing permission for retrenchment of workmen u/s 25-N of the Industrial Disputes Act, 1947 is not a tribunal, on the view that the position of the appropriate Government or authority exercising the said power was not very different from that of a Conciliation Officer who was held to be not a tribunal in Jaswant Sugar Mills Ltd., Meerut Vs. Lakshmichand and Others, .

Hon, J.S. Verma J. speaking for she majority in Union of India and others Vs. M/s. Cottage Arts Emporium and others, at p. 2445-46 paras 55 and 56 has noticed the above decisions with approval.

In S.K. Sharma''s case (supra), the provision which was up for consideration before me was the one contained in Section 22-G of the U.P. Pravedhik Shitaha Adhiniyarn, 1962. It was in the context of the nature and ambit of the Director''s power under the said provisions of law that I held in that case that "the Director of Technical Education is under an obligation to record reasons for approval or disapproval of the proposed punishment or reduction or enhancement there of u/s 22-G of the Adhiniyam". The provisions contained in Section 22-G of the Adhiniyam or Section 16G(3) of U.P. Intermediate Education Act 1921 are not in pari-materia with those contained in Regulation 87 of the Regulations under consideration in the present case The proviso to Sub-section (2) of Section 22-G of the Adhiniyam clearly provides that Director shall give an opportunity to the principal or the Teacher to show cause within a fortnight of the receipt of the notice why the proposed punishment should not be approved. That being so, the Director was statutorily obliged to give opportunity to the principal or the teacher as the case may be to show cause as to why the proposed punishment be not approved The proviso Implicitly casts a duty upon the Director to record reasons while according or refusing to accord approval to the proposed punishment. Under Regulation 87 of the Regulations, the Institutional Service Board, as held hereinbefore, is not required to observe ''audi alteram partem'' rule nor is it required to give reasons while giving its concurrence to the proposed punishment. The case of refusal to give concurrence may be different for in that case, the institutional Service Board may be required to record its reasons in consonance with the principles of natural justice used in wider sense of the term. It was under these circumstances that I held in S.K. Sharma''s case (supra) as under:

The power vested in the Director is cot an absolute power in the sense that the Director may approve or disapprove as he likes, rather he has to approve the proposed punishment if the facts and circumstances of the case so warrant and disapprove the proposed punishment if it is not warranted on the facts and circumstances of the case. The Director has power to reduce or enhance the punishment or to approve or disapprove of the notice of termination of service proposed by the Management and this power has to be exercised reasonably and not capriciously. For all those reasons it is implicit in the nature of the power conferred upon the Director u/s 22G that the potter of approval or disapproval, as the case may be, must be based upon reasons and the Director while approving or disapproving, reducing or enhancing the proposed punishment must record reasons.

The decision in S.K. Sharma''s case (supra), is therefore of no avail to the Petitioner.

Lastly, Sri A. Kumar urged that the extreme penalty of dismissal from service was not warranted in the facts, and circumstances of the case. The submission made by the learned Counsel, does not carry conviction with me inasmuch as the charge of embezzlement having been brought home to the Petitioner, it cannot be said that the penalty of dismissal from service erred on the side of severity merely because the entire money embezzled had been deposited by the Petitioner and the bank did not suffer any loss.

No other point was pressed by the learned Counsel appearing for the Petitioner.

Having regard to the above discussions and conclusions, the petition larks merit and is accordingly dismissed.