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Judgment
S.N. Hussain, J.—This writ petition has been filed by the petitioner for the following reliefs:-- (i) To quash the decision/order dated 3.5.2001 passed by respondent No. 1 communicated by respondent No. 4 by letter dated 15.6.2001.
(ii) To quash the order dated 31.1.2000 passed by respondent No. 2 communicated by respondent No. 3 by letter dated 31.1.2000.
(iii) To quash the enquiry report dated 23.12.1999 submitted by respondent No. 5.
(iv) To restore increments reduced.
It is not in dispute that the petitioner joined the service in the Nalanda Gramin Bank (hereinafter referred to as ''the Bank'' for the sake of brevity) in the year 1980 as Clerk-cum-Cashier, whereafter considering his satisfactory service he was taken as direct recruit to the post of an officer in the Bank in the year 1983 and since then he has been working as Branch Manager in several Branches of the Bank, receiving appreciation letters but while he was posted as Manager in Wadi Branch of the Bank, charge-sheet dated 13.9.1995 (Annexure-5) was sent to him by the Chairman-cum-Disciplinary Authority of the Head Office of the Bank at Biharsharif alleging fifteen charges against the petitioner relating to his working in Chandiman Branch of the Bank, where he had served from 29.5.1986 to 28.5.1990. 2. In response to the said letter, petitioner replied on 24.9.1995 requesting the said disciplinary authority to grant him permission to visit Chandiman Branch to inspect the documents for preparing reply, but neither the said letter was answered nor any time was granted by the said authority, who sent another letter dated 15.5.1996 (Annexure-7) intimating the petitioner about the departmental enquiry, which was going to be conducted by one Shri Ramanandan Prasad Singh, Sr. Manager. Thereafter, the petitioner again requested the disciplinary authority vide letter dated 20.5.1996 (Annexure-8) for permitting him to visit Chandiman Branch to inspect the records relating to the charges and in response thereto, the enquiry officer sent letter dated 7.6.1996 (Annexure-9) asking the petitioner to lake part in the enquiry and if during the course of enquiry it was found necessary, he might be permitted to go to Chandiman Branch of the Bank along with the Presenting Officer.
In view of the aforesaid letter of the enquiry officer, the petitioner filed applications dated 13.6.1996 (Annexure-10) and 17.8.1996 (Annexure-11) to accord permission to visit Chandiman Branch to inspect the relevant records for filing his reply, but no permission was accorded to him to visit Chandiman Branch, although the charge-sheet was with respect to the charges relating to Chandiman Branch, from where he was transferred as back as on 28.5.1990.
Learned counsel for the petitioner further staled that the enquiry officer sent letter dated 1.8.1996 intimating that 23.8.1996 was fixed as the date of enquiry and he must give the name of his defence representative and in response thereto the petitioner sent his letter dated 23.8.1996 appointing Shri Uday Kant Tewary, Ex-Manager, Belchi Branch of the Bank as his defence representative and, thereafter, sent letter dated 18.9.1996 to the enquiry officer requesting him to supply necessary documents to defend his case in course of enquiry, but no such document was supplied to the petitioner and the enquiry officer vide letter dated 19.9.1996 (Annexure-14) advised the petitioner to go to the Head Office to see papers relating to item Nos. 1 to 2 and for item Nos. 3 to 7 of the list of documents he could see the papers at the time of enquiry proceeding when the documents would be submitted by the Presenting Officer.
Thereafter, the petitioner again sent letter dated 11.10.1996 to the disciplinary authority as well as to the enquiry officer of the Bank requesting them to supply the relevant documents and papers before the date fixed in the enquiry so that he might defend his case. The petitioner again sent letters dated 28.12.1996, 14.1.1997, 26.3.1997 and 3.4.1997 to the enquiry officer specially referring to circular of the Bank dated 3.9.1987 in that regard as the date in the enquiry proceeding was fixed on 10.4.1997 and when no heed was paid to the petitioner''s repeated applications, he was constrained to send letter dated 5.7.1997 to the disciplinary authority requesting to change the enquiry officer due to his bias attitude, but the said request was rejected by the disciplinary authority vide letter dated 9.9.1997 (Annexure-20).
Learned counsel for the petitioner submitted that the enquiry officer proceeded with the enquiry adopting partisan and bias attitude against the petitioner, without making him available the relevant documents demanded by him to defend his case, whereas, he admitted documents of the Bank without any formal proof by any witness as the Bank Management did not produce even a single witness in support of the charges levelled against the petitioner. The said enquiry was conducted on 20.8.1999 in complete violation of the principle of natural justice as well as legal provision''s and the law settled by the Court. Thereafter, respondent-Bank filed a written statement on 6.9.1999 (Annexure-22) and the petitioner also filed his reply on 20.9.1999 (Annexure-22/1), whereafter, the enquiry officer submitted his enquiry report dated 23.12.1999 (Annexure-23) holding that charges Nos. 3, 6, 14 and 15 were fully proved, whereas, charges Nos. 1, 2, 4, 5 and 7 to 11 were partially proved.
Learned counsel for the petitioner also averred that after receipt of the enquiry report, the disciplinary authority issued show-cause notice dated 30.12.1999 to the petitioner for his written comments within fifteen days, which was subsequently extended up till 21.1.2000 and within that time the petitioner submitted his show-cause (Annexure-25) in detail with respect to all the charges levelled against him. Thereafter, the disciplinary authority vide his order dated 31.1.2000 (Annexure-1/1) rejected the claim of the petitioner and punished him by reduction of two increments in the time scale of pay with immediate effect. Against the said order, the petitioner filed an appeal before the Board of Directors of the Bank through proper channel vide letter dated 4.3.2000 raising all the grounds available to him to show that the order of the disciplinary authority was bad in law. However, the appellate authority, namely, the Board of Directors of the Bank rejected the appeal filed by the petitioner in its 134th meeting dated 3.5.2001 and the said order was communicated by the Sr. Manager. Personnel of the Bank vide his letter dated 15.6.2001 (Annexure-1).
Learned counsel for the petitioner argued that the order of the Board of Directors of the Bank quoted in letter dated 15.6.2001 (Annexure-1) is as follows:--
On consideration of the records of the matter concerned, it has been found that the charged officer Shri Mahesh Kumar Sinha had violated the existing Rules and traditions of the Bank and by misusing his authority and by not doing Bank service with integrity had adversely affected the interest and image of the Bank by doing irregular and objectionable acts. After considering all the relevant aspects seriously, the Appellate Board found that the order of the Chairman-cum-Disciplinary Authority dated 31.1.2000 reducing two increments in the time scale of pay of the petitioner with immediate effect was proper.
Hence the appeal dated 4.3.2000 filed by Shri Mahesh Kumar Sinha, Officer, is dismissed and the final order of the Chairman-cum-Disciplinary Authority dated 31.1.2000 by which two increments in the time scale of pay of Mahesh Kumar Sinha, Officer were reduced with immediate effect, was upheld.
Against the aforesaid orders of the disciplinary authority as well as of the appellate authority, the petitioner has filed the instant writ petition claiming that the entire enquiry proceeding as well as the disciplinary proceeding and the impugned orders of the authorities concerned were vitiated due to the following grounds:--
(i) No witness was produced for examination by the Bank in support of the charges.
(ii) The alleged charges were not comprehended as misconduct in the service regulation.
(iii) The charges were stale and vague; inasmuch as they did not speak the manner in which the alleged irregularities were committed with particular difference to the circulars and orders of the Bank, which were claimed to have been violated.
(iv) The disciplinary authority or the enquiry officer did not supply the documents demanded by the petitioner nor did they allow the petitioner to inspect the documents of the Branch concerned to file his reply, which is a clear case of violation of the principles of natural justice.
(v) The domestic enquiry proceedings were held in violation of the departmental circulars.
(vi) The disciplinary authority did not change the enquiry officer against whom bias was reported by the petitioner as he was a member of the rival association.
(vii) The domestic enquiry as well as the disciplinary proceeding were conducted much against the principle of law settled by this High Court in case of Brij Nandan Sinha Vs. State of Bihar and Others, .
On the other hand, learned counsel for the respondents vehemently opposed the contentions of learned counsel for the petitioner and stated that all due steps were taken by the enquiry officer during the course of departmental enquiry and no vital document was concealed from the petitioner and several opportunities were given to the petitioner to defend the charges levelled against him. Hence there was no violation of the principles of equity and natural justice.
Learned counsel for the respondents further claimed that the charges against the petitioner were very heinous and in proportion thereof punishment of reduction of two increments was quite small and no major punishment was awarded to the petitioner. It was also averred that neither any rule or settled law had been ignored nor any mistake has been committed in law or on facts by the authorities while passing the impugned orders. Hence he averred that this writ petition is absolutely frivolous and misconceived and is fit to be dismissed.
From the arguments of learned counsel for the parties as well as from the materials on record, it is quite apparent that during the relevant period i.e. from 29.5.1986 to 28.5.1990 while the petitioner was posted as Branch Manager in the Chandiman Branch of the Bank, he had been granted letters of appreciation dated 1.12.1988 and 11.6.1990 (Annexures-2 series) from the General Manager of the Bank acknowledging his efficiency and integrity and, thereafter, also letters of appreciation dated 1.12.1993 and 4.5.1995 (Annexures 3 and 4) were issued by the authorities in that regard.
However, the Chairman of the Bank-cum-Disciplinary Authority sent letter dated 13.9.1995 in the nature of charge-sheet alleging that during the period from 29.5.1986 to 25.8.1990, he had violated the rules and tradition of the Bank and had misused his authority and had badly affected the interest and reputation of the Bank by his irregular and objectionable acts. In the said charge-sheet, 15 charges were levelled against him,
On the basis of the aforesaid charges, an enquiry was held and the enquiry officer submitted his report on 23.12.1999 (Annexure-23) holding that charge Nos. 3, 6, 14 and 15 were fully proved against the petitioner, whereas, charge Nos. 1, 2, 4, 5 and 7 to 11 were only partially proved. On the basis of the aforesaid enquiry report, the disciplinary authority passed the impugned order dated 31.1.2000 (Annexure-1/1) punishing the petitioner by reduction of two increments in the time scale of pay with immediate effect. The order of the disciplinary authority was also affirmed by the appellate authority vide order dated 13.5.2001, which was communicated to the petitioner vide letter 15.6.2001 (Annexure-1).
From the charges, it is apparent that the money, which was meant to be given to the poor, was given to the poor and no portion thereof was consumed by the petitioner and hence the charges levelled against him were not enumerated as misconduct under the Service Regulation of the Nalanda Gramin Bank as it has not been specified as misconduct specially when sooner or later the loan has to be refunded by the loanee and if not, the Bank has the power and authority to recover the said loan amount.
From the materials on record, it is quite-apparent that the petitioner from the very beginning had been sending letters dated 24.9.1995 (Annexure-6), 20.5.1996 (Annexure-8), 13.6.1996 (Annexure-10), 17.8.1996 (Annexure-11), 18.9.1996 (Annexure-13), 11.10.1996 (Annexure-15 series). 14.1.1997 (Annexure-17), 26.3.1997 and 3.4.1997 (Annexure-18 series) to the enquiry officer (respondent No. 5) and the disciplinary authority (respondent No. 2) repeatedly for granting him permission to visit the Branch in question for inspection of record and to provide to him copies of the relevant documents to submit his reply. Although statements have been made on behalf of the respondents that due opportunities were granted to the petitioner, but they are mere bald statements, not supported by any material whatsoever nor any evidence has been produced by respondent-authorities to show that either copies of the documents were supplied to him or he was ever permitted to inspect the records for the relevant period in the concerned Branch of the Bank.
In the said circumstances, the petitioner had also written to the disciplinary authority (respondent No. 2) on 15.7.1997 (Annexure-19) to change the enquiry officer due to his bias altitude being the member of the rival Association of employees of the Bank and had also violated the principle of natural justice ignoring circular No. 14/87 dated 3.9.1997 of the Bank, but the disciplinary authority by letter dated 9.9.1997 refused to change the enquiry officer without assigning any reason and without referring to the valid objections raised by the petitioner,
The principle of law is well-settled in this regard and is also confirmed by the circular of the Bank that the proceedee is entitled to inspect the relevant records and also to obtain copies of the relevant papers from the authorities, but in the instant case the facts clearly show that those principles and directions had been utterly violated by the authorities and the petitioner was deprived of the opportunity to inspect the records or to obtain copies of the relevant documents. This was done not only by the enquiry officer, but also by the disciplinary authority, which is a clear illegality. Reference in this regard may be made to a decision of this Court in case of Brij Nandan Sinha Vs. State of Bihar and Others, .
The second point raised by learned counsel for the petitioner was that although some documents were produced by the authorities before the enquiry officer, but no witness came forward either to prove the said documents or to support the charges or even to depose against the petitioner. This fact has not been denied by the respondents. The charges have to be proved by the department and if the department fails to support the charges against the proceedee by not producing a single witness then it has to be held that the department has not proved its case and in such circumstances, the recording of findings by the enquiry officer holding the petitioner guilty of those charges cannot be held to be legal and proper. In this regard reference may be made to a decision of a Bench of this Court in case of Kumar Upendra Singh Parimar Vs. B.S. Co-Opt. Land Dev Bank Ltd. and Others, .
In the said circumstances, it is quite apparent that the order of the enquiry officer, as also of the disciplinary authority were passed without giving any opportunity to the petitioner to properly contest the allegations as neither he was permitted to visit the concerned Branch of the Bank to inspect the record nor he was supplied the relevant papers even after his repeated requests and no witness was produced by the Bank whom the petitioner could have cross-examined. In the said circumstances, the report of the enquiry officer and the impugned order of the disciplinary authority cannot be held to be legal and proper due to clear irregularities committed by them in the proceeding and also due to violation of all norms of justice and fair play and also due to ignorance of the specific provisions in that regard.
The law is well-settled that if the authorities did not intend to give copies of the documents to the proceedee, then it should have been indicated to the proceedee in writing that he might inspect those documents. Merely saying that the proceedee could have inspected the documents at any time is not enough. The proceedee has to be informed that the copies of the documents, which were asked by him, may be inspected and access to the records must have been assured to him. This is what has been held by the Apex Court in case of State of U.P. Vs. Shatrughan Lal and Another, .
So far the order of the appellate authority dated 13.5.2001 communicated to the petitioner vide letter dated 15.6.2001 (Annexure-1) is concerned, it is quite apparent that it has not at all considered the aforesaid points as well as other points raised by the petitioner in his memorandum of appeal and a vague, cryptic and unconsidered order has been passed by the appellate authority, which cannot be sustained in the eye of law, specially when the disciplinary authority had also failed to consider the points raised by the petitioner in its impugned order dated 31.1.2000 (Annexure-1/1).
The law is well-settled that when an appeal is disposed of on merit, the impugned order merges in the order passed by the appellate authority and hence if one is found to be illegal, the other also has to be set aside, specially when the points, involved at both the stages, were exactly similar. In this connection, reference may be made to a decision of the Apex Court in ease of Sharda Singh Vs. State of U.P. and Others, .
Furthermore, from the materials on record, it transpires that the alleged cause of action in this matter had arisen in the year 1986 when the petitioner was posted at Chandiman Branch of the Bank, from where he was transferred in the year 1990, but the enquiry started much later in the year 1995 and on its basis the disciplinary authority passed its impugned order dated 31.1.2000. In the said circumstances, the disciplinary proceeding was initiated after 9 years and had continued for a period of five years and hence the delay in the initiation of the disciplinary proceeding, as also its continuance thereafter for about 14 years is evidently prejudicial to the proceedee and no satisfactory explanation for such inordinate delay in issuing the charge memo and continuing the departmental proceeding for such a long period could be given by respondent-authorities. It is quite apparent that the sufferings and mental agony of the proceedee due to the aforesaid long drawn procedure has been much more than the punishment to the petitioner and hence for such delay caused by the authorities, the proceedee should not be allowed to suffer. In this regard reference may be made to two decisions of the Apex Court in case of P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, as well as in case of M.V. Bijlani Vs. Union of India (UOI) and Others, . Due to the aforesaid irregularities in the procedure adopted and the illegalities committed by respondent-authorities in their impugned orders, the impugned orders of the authorities cannot be legally sustained. Accordingly, this writ petition is allowed and the impugned appellate order of the Board of Directors of the Bank dated 13.5.2001, communicated vide letter dated 15.6.2001 (Annexure-1), the impugned order of the disciplinary authority dated 31.1.2000 (Annexure-1/1) as well as the enquiry report of the enquiry officer dated 23.12.1999 (Annexure-23) are hereby quashed.