Full Text
HIGH COURT OF DELHI
Date of Decision: 09th December, 2024
AJAY KUMAR GULATI .....Petitioner
Through: Petitioner in person.
INDIA) & ORS .....Respondents
Through: Mr. Rajiv Kapur, Standing Counsel
JUDGEMENT
JYOTI SINGH, J. (ORAL)
JUDGMENT
1. This writ petition has been preferred on behalf of the Petitioner under Article 226 of the Constitution of India assailing the inquiry report dated 28.03.2002 and order of imposition of punishment dated 26.07.2002 as well as the appellate order dated 03.10.2002. Direction is sought to State Bank of India earlier State Bank of Bikaner and Jaipur (‘Bank’) to reinstate the Petitioner with full back wages and consequential retiral benefits.
2. Case of the Petitioner is that he joined State Bank of Bikaner and Jaipur on 05.01.1979 as Cashier-cum-Godown Keeper and served in that capacity in different branches of the Bank. While the Petitioner was working as All Ledger Posting Machine Operator (‘ALPMO’) at Amar Colony Branch of the Bank, he was placed under suspension w.e.f. 26.02.1991. Charge sheet was served on the Petitioner on 24.09.1991 and Inquiry Officer (‘IO’) was appointed on 03.12.1991. Almost two years later, the IO gave his report on 14.10.1993 with the finding that 2 out of 7 charges were proved against the Petitioner. On 16.12.1993, Petitioner represented to the Disciplinary Authority (‘DA’) against the inquiry report inter alia pointing out various illegalities in the conduct of the inquiry such as non-furnishing of legible documents relied upon by the Bank; non-furnishing of defence documents which were in the custody of the Management of the Bank; denial of opportunity to bring a defence representative etc.
3. Petitioner avers that agreeing with the Petitioner, DA directed a de novo inquiry vide order dated 29.04.1994, to which the Petitioner objected and prayed that the proceedings and inquiry report be set aside and he be reinstated. Not getting a favourable response, Petitioner challenged this order before this Court in CWP No. 405/1995 bringing forth the alleged illegalities in the inquiry proceedings. Bank filed its counter affidavit and stated therein that after considering the representation of the Petitioner, DA had found that he was not given reasonable opportunity to defend himself and denial of access to basic documents was unjustified as also that vital defence documents were disallowed by the IO without proper reasons and directed re-inquiry. The writ petition was partially allowed and the Division Bench held that there was no need to hold an inquiry from the very beginning since Department’s evidence had been completed and some evidence of the Petitioner was also recorded, however, it was directed that the new IO would proceed to give opportunity to the Petitioner to produce his documentary and oral evidence and consider the question of recalling any witness for further cross-examination by the Petitioner and then proceed to decide afresh. SLP (C) No. 4616/1996 filed by the Bank was dismissed by the Supreme Court on 16.07.1996.
4. It is averred that the new IO conducted the second inquiry between 06.09.2001 to 23.11.2001 but without complying with the directions of the Division Bench. Report was rendered by the IO on 28.03.2002 and show cause notice was issued to the Petitioner on 01.06.2002, calling upon him to show cause why penalty be not imposed on him, which was challenged before this Court in CWP No. 3821/2002. During the pendency of the writ petition, Bank passed an order on 26.07.2002, imposing the penalty: “Condone the gross misconduct and merely discharge with immediate effect” under Article 19.[6] (e) of Bipartite Settlement dated 19.10.1966. As far as the suspension period was concerned, salary and allowances were denied and Petitioner was held entitled only to the subsistence allowance already paid. Against the penalty order, Petitioner preferred an appeal in terms of Para 19.14 of the Bipartite Settlement dated 19.10.1966 but the appeal was dismissed vide order dated 03.10.2002 and Petitioner approached this Court in the same year.
5. Petitioner appears in person and submits that the allegations levelled against him were completely false. Petitioner was holding a clerical post in the concerned branch of the Bank and was dealing with the savings bank accounts along with Sh. A.D. Doss (Computer Operator) on the current account seat, Sh. S.K. Joshi as In-charge of savings and current account sections, Sh. Arun Sharma and Sh. J.B. Gupta as Accountants as also several other officers under the overall supervision of the Branch Manager Sh. V.K. Verma. The Branch Manager was granting overdraft limits to many customers between 1989 to 1990. It is factually incorrect that Petitioner was responsible for any fraud as no voucher could have been cleared without the consent and knowledge of the other officers responsible for clearing. Audit was carried out in the Amar Colony Branch of SBI on 15.11.1990 and even the CBI in its charge sheet in the criminal case mentioned that all 5 accounts in question were regular accounts of the Bank and Petitioner had no role in any alleged irregularity and which is why Petitioner was acquitted in CBI Case No. RC71A/91.
6. It is submitted that the manner in which the departmental inquiry was conducted shows complete bias of the Bank. Mandatory procedures of a departmental inquiry as well as principles of natural justice were violated to the hilt. Bias is evident from the fact that no charge sheet was issued to other officers such as Arun Sharma, S.K. Joshi etc. albeit they were directly responsible for sanction of overdrafts and day-to-day banking. Petitioner repeatedly asked for legible copies of relied upon documents as also defence documents but his requests were overlooked. On a representation to the DA after the first inquiry report was rendered, clearly, even DA was of the view that IO had been unfair and unjust in denying reasonable opportunity to Petitioner to defend his case. Division Bench of this Court had directed that Petitioner will be given a chance to produce documentary and oral evidence, yet the same illegality continued in the second inquiry and despite repeated requests, defence documents were denied. IO denied the documents without ascertaining and ruling on their relevancy, on the ground that relevancy had been decided by the first IO. This has prejudiced the case of the Petitioner and by way of illustration, Petitioner points out that one of the documents asked for by the Petitioner were copies of weekly and monthly reports and overdraft lists for the periods December, 1989 to May, 1990 and then November, 1990, sent by the Branch Manager to the Zonal Office. The document would have shown that the overdrafts were granted by the Branch Manager and Arun Sharma during 1989-1990 and with the consent and knowledge of senior officers in the Zonal and the Head Offices. The documents sought for included audited report dated 15.11.1990 which would have shed light on every transaction in the Bank for the relevant period and proved the innocence of the Petitioner, but these were not supplied.
7. It is further argued that despite the fact that Court had directed reinquiry from the stage of defence evidence and consequentially and impliedly the first inquiry report dated 14.10.1993 was set aside, the IO took into account the same while rendering his inquiry report on 28.03.2002 and to compound the illegality even the DA while imposing penalty considered the said report and this glaring illegality vitiates the inquiry report as well as the penalty order. Petitioner further submits that plain reading of the penalty order shows that punishment of discharge was imposed invoking Article 19.[6] (e) of the Bipartite Settlement dated 19.10.1966, however, the said Article provides for a penalty of reduction to a lower stage in the scale of pay upto a maximum of two stages and not discharge.
8. Per contra, Mr. Kapur, learned Standing Counsel for the Bank submits that the charges against the Petitioner are grave and serious as he was inter alia charged for misappropriation and manipulation of accounts and records of the Bank. Petitioner was granted ample opportunity by the IO to defend his case effectively. Charges were proved during the inquiry proceedings wherein Petitioner admitted that he had prepared 5 vouchers which were fictitious and it was also established that M/s. R.K. Stationery was a non-existing firm. Petitioner cannot blame the other officers for the illegalities committed as he was working in the seat of ALPMO and had full control of the operating system starting from entry in the computer and preparing the vouchers in the accounts. One of the accounts pertained to his mother as a proprietor of M/s. S.G. Copy House and the other account of the firm M/s. Kashvi Traders was of his sister and was fictitious. Sh. V.K. Verma was also dismissed from service and therefore, there was no bias against the Petitioner. Acquittal in the criminal proceedings was on benefit of doubt and cannot be an impediment in holding the Petitioner guilty in departmental proceedings, if charges are proved.
9. Insofar as the conduct of inquiry proceedings are concerned, Mr. Kapur argues that the defence documents were supplied to the Petitioner on 11.09.2001 and Petitioner sought time to bring a defence representative. On 26.09.2001, Petitioner sought permission to be represented by Sh. Dubedi, but the permission was declined as a charged officer is permitted to be defended only by a representative of a registered union of Bank employees as per the Bipartite Settlement dated 19.10.1966. Petitioner continued to insist on providing legible copies of relied upon documents but was explained that most of the documents were photocopies as supplied by CBI and better copies were not available. As for defence documents, the IO in the earlier inquiry had dealt with the relevancy of the documents, which he was empowered to and thus the second IO rightly rejected the request. Petitioner himself chose to submit a written brief which was earlier submitted on 19.08.1993 in the previous inquiry and since no new document or witness was produced by the Petitioner, basis the evidence on record the IO rendered his report on 28.03.2002 and no infirmity can be found with the procedure.
10. Mr. Kapur further argues that the DA has passed a well-reasoned order on 26.07.2002 after examining the inquiry record and the report including the written briefs of the parties. DA is not required to author an order like a judgment and it is enough if it reflects application of mind. It is not for this Court to reappreciate the evidence as an IO or substitute the view of the DA in a judicial review. Bank has suffered a loss of Rs.31.72 lakhs on account of the misconduct of the Petitioner in collusion with the Branch Manager and the penalty of discharge is proportionate to the misconduct. It is also urged that the penalty order cannot be set aside only because a wrong provision has been mentioned in the penalty order due to a typographical error. DA had intended to discharge the Petitioner, looking at the seriousness of the charges and discharge is a penalty under the Bipartite Settlement.
11. Heard the Petitioner and learned Standing Counsel for the Bank and examined their rival submissions.
12. The undisputed facts are that Petitioner was placed under suspension on 26.02.1991 while working as ALPMO in one of the branches of the Bank and a charge sheet was issued against him on 24.09.1991 with 7 Articles of Charges, more or less relating to overdrafts issued to the customers specially those pertaining to alleged fictitious accounts or accounts pertaining to his relatives. Inquiry report was rendered by the IO on 14.10.1993, against which Petitioner made a representation to the DA alleging violations of principles of natural justice in the conduct of the inquiry, more specifically non-furnishing of legible copies of relied upon documents as well as defence documents, which were stated to be in the custody of the Bank. DA passed an order on 29.04.1994 for a de novo inquiry to provide opportunity to the Petitioner to set up his defence in the interest of justice. Aggrieved by the direction to hold a de novo inquiry instead of setting aside the inquiry and reinstating the Petitioner, he approached this Court and filed CWP NO. 405/1995.
13. It is significant to point out at this stage that the Bank filed a counter affidavit in the said writ petition and in response to paragraphs 6 and 7 thereof, categorically averred as under:-
14. The writ petition was disposed of vide order dated 06.09.1995. The Division Bench noted that a new IO had been appointed on the direction of the DA for a de novo inquiry for the reason that Petitioner was not given proper opportunity for defending his case by leading documentary and oral evidence. Court was, however, of the view that there was no need to hold an inquiry from the very beginning since evidence of the department was concluded and some evidence of the Petitioner was also recorded and thus directed that the new IO will proceed to give opportunity to the Petitioner to produce his “documentary and oral evidence” and also consider the question of recalling any witness for further examination by the Petitioner and then proceed to decide the matter afresh. SLP (C) No. 4616/1996 filed by the Bank was dismissed by the Supreme Court against the said order on 16.07.1996.
15. In furtherance of the direction of the Division Bench, as upheld by the Supreme Court, proceedings were held by the IO between 06.09.2001 to 23.11.2001. Order sheets have been placed on record by the Petitioner which reflect that Petitioner requested the IO several times to supply the defence documents as also legible copies of the documents relied upon by the PO. On 19.10.2001, Petitioner participated in the inquiry under protest, inasmuch as legible copies of relied upon documents was not given to him. He referred to the documents which were illegible or incomplete, particularly, documents marked as B-9 to B-24, which were cheques of different parties. He requested the IO to supply a full set of defence documents as per the list furnished by him, from serial No. 1 to serial No. 16, which also finds reference in the daily order sheet. Petitioner categorically stated that only after these documents were supplied to him, he would be in a position to give a list of further defence documents and call the defence witnesses. The order sheet reflects that the IO adjourned the hearing to 06.11.2001 to decide on this issue but on the adjourned date, rejected the request on the ground that relevancy of the defence documents had been discussed in the earlier inquiry proceedings and this Court had only directed the inquiry to proceed further and not to conduct a de novo inquiry. Reliance was placed on the objection of the PO in the proceedings held on 26.09.2001 on the same lines. Petitioner persisted with his request and again sought the defence documents as the same were in custody of the Management and explained their relevancy, pointing out that the documents were vital to his defence, but the IO did not accede to his request to provide the documents and proceeded further with a direction to the PO and the Petitioner to file their written briefs.
16. From a conjoint reading of the order sheets, it is clear that the Petitioner made repeated requests to the IO for providing defence documents mentioned in the list given by him as they were in the custody of the Bank and which according to him were vital to his defence for proving his innocence. He also stated that in the absence of the defence documents, he was not in a position to call the defence witnesses. Clearly, the only reason coming forth in the order sheets for denying the defence documents was that the relevancy was decided in the earlier inquiry proceedings, which, in my view, was wholly unwarranted and untenable in law and in the teeth of the order of this Court and the earlier order of the DA and in total ignorance of the fact that after these orders, no reliance could be placed on the earlier proceedings to the extent of denial of documents. Perusal of the 16 documents sought by the Petitioner shows that they were in the nature of credit vouchers, monthly reports, account ledger sheets, audit reports, account opening forms, daily overdraft lists, pay in slips, statements of accounts of various firms with respect to which allegations were levelled and were in the custody of the Bank and could not be produced by the Petitioner on his own. As per procedure, the defence documents are to be produced by the charged officer, however, if they are not in his custody, he can request the IO to summon them from the custodian of the said documents. Petitioner sought the defence documents as they were in the custody of the Bank and rightly so. In my view, at the cost of repetition, the IO completely erred in rejecting the request on the sole ground that the relevancy of the documents was discussed in the earlier proceedings for multiple reasons: (a) after the first inquiry, on a representation by the Petitioner, DA itself directed de novo inquiry on the ground that proper opportunity was denied to the Petitioner to defend his case; (b) in the counter affidavit filed in CWP No. 405/1995, Bank had taken a clear stand that denial of access to the basic documents, vital to Petitioner’s defence, was without proper reasons; and (c) the Division Bench had directed the IO to ensure that Petitioner is permitted to produce his documentary and oral evidence as also consider recalling witnesses for cross-examination before proceeding further with a caveat that the decision will be taken afresh. Refusal of the IO to provide defence documents has virtually relegated the Petitioner to the initial stage when he was denied the defence documents and not only the DA but this Court had come to his aid.
17. There can be no two opinions on the legal proposition that denial of defence documents as also legible copies of relied upon documents causes grave prejudice to a charged officer. Petitioner has taken a consistent stand that the documents sought for will enable him to establish his innocence and yet the IO overlooking this important facet of principles of natural justice and the directions of this Court chose to follow a path, whereby he has violated principles of natural justice, procedure of departmental inquiries and direction of the Court and this vitiates the entire inquiry proceeding. To compound the illegality, the IO and the DA have taken into consideration the findings and observations in the first inquiry report, while rendering the second report and imposing the penalty, respectively. This is a glaring illegality in as much as once the Division Bench held that the new IO would conduct re-inquiry from the stage of further defence evidence providing opportunity to the Petitioner to lead documentary and oral evidence as also re-calling witnesses for cross examination, the first inquiry report dated 14.10.1993, was impliedly set aside and could not be relied upon. This is more so, as the same was admittedly based on illegal and perverse inquiry proceedings in which Petitioner was denied the opportunity to effectively defend himself. The second report and the penalty order become vulnerable and deserve to be set aside even on this ground, as rightly flagged by the Petitioner. As far as the argument of the Petitioner that the Bank has invoked an incorrect provision Article 19.[6] (e) of the Bipartite Settlement dated 19.10.1966 to discharge him is concerned, I do find that the said Article relates to the punishment of reduction in lower stages scale of pay and not discharge. However, Mr. Kapur points out that the provision mentioned in the penalty order is due to a typographical error as the DA had intended to discharge the Petitioner looking at the nature of charges and not to reduce him in the scale of pay and it is a settled law that merely mentioning a wrong provision cannot take away the sanctity of the order itself. I agree with Mr. Kapur that reference to Article 19.[6] (e) was only a typographical error and therefore, this argument does not aid the Petitioner.
18. Ordinarily, in these circumstances, Court would have relegated the matter back to the IO for holding re-inquiry from the stage of furnishing the defence documents to the Petitioner but this course of action does not appeal at this stage for the reason that even on earlier occasion when the Division Bench had remitted the matter, the directions were flouted and secondly, the charge sheet was issued in the year 1991 and Petitioner has already suffered two inquiry proceedings in the last nearly 4 decades. Accordingly, the charge sheet dated 24.09.1991, inquiry report dated 28.03.2002, penalty order dated 26.07.2002 and the appellate order dated 03.10.2002 are hereby quashed and set aside.
19. At this stage, Petitioner submits that he has already reached the age of superannuation and therefore, directions be issued to grant retiral benefits from the date when he would have retired but for the discharge order and in support, he has filed documents evidencing that he had opted for pension in the Bank. While learned counsel for the Respondent had taken time to ascertain the authenticity of the option form and related documents, as it is the case of the Bank that Petitioner did not opt for pension, even today, Mr. Kapur does not take a position that the documents handed over by the Petitioner are fabricated. From the documents placed by the Petitioner, it is evident to this Court that he had indeed opted for pension.
20. Accordingly, this writ petition is allowed quashing the charge sheet, inquiry proceedings, inquiry report dated 28.03.2002, punishment dated 26.07.2002 as well as the appellate order dated 03.10.2002 and directing the Bank to reinstate the Petitioner notionally from the date of discharge. Petitioner is held entitled to pension from the date of superannuation. Arrears of pension shall be released to the Petitioner within three months from today.
21. Writ petition stands disposed of in the aforesaid terms.
JYOTI SINGH, J DECEMBER 9, 2024 YA/shivam