Full Text
HIGH COURT OF DELHI
Date of Decision: 03rd February, 2023
RAJ KUMAR ..... Petitioner
Through: Mr. G.S. Chaturvedi and Mr. Shrinkar Chaturvedi, Advocates
Through: Mr. Jagat Arora and Mr. Rajat Arora, Advocates
JUDGMENT
1. This writ petition was filed by the Petitioner assailing orders dated 25.11.2014, 24.07.2015 and 30.12.2015 and seeking reinstatement with all consequential benefits. Writ of Mandamus is sought for directions to the Respondents/Bank (hereinafter referred to as ‘the Bank’) for releasing an amount of Rs.6,19,814/- to the Petitioner, kept in the Sundry Creditor (Suspense) Account in the Bank.
2. Factual matrix to the extent relevant and as brought forth by the Petitioner is that Petitioner joined the Bank on 11.06.1987 and worked as a Clerk/Cashier till February, 1993. On being promoted as an Officer on 01.03.1993, he was transferred to various Branches of the Bank between 1993 to 2008.
3. Petitioner avers that he was instrumental in averting a fraud involving Rs.19.20 lakhs at one of the Delhi Branches of the Bank, for which he was given an Appreciation Letter. On account of his excellent track record, Petitioner was promoted as Manager on 30.04.2008 and subsequently as Senior Manager in MMGS-III Scale on 12.09.2011.
4. As the chronology goes, Petitioner was placed under suspension on 23.12.2011, due to certain allegations and on 08.09.2012, showcause notice was served upon him, to which he filed a detailed reply. This was followed by issuance of a charge sheet on 26.09.2013, pursuant to which Departmental Inquiry was held, which culminated into punishment of ‘dismissal’ on 25.11.2014. Appeal filed by the Petitioner against the penalty of dismissal was rejected on 24.07.2015 and the Review Petition also met the same fate on 30.12.2015. All these orders have been challenged by the Petitioner before this Court.
5. It is pertinent to mention at this stage that in the charge-sheet issued to the Petitioner, the allegations inter alia were that he in connivance with Sh. Gurjant Singh, Officer and Sh. Sukhdev Singh, Gunman and Neel Kamal, Officer debited excess amounts to some irrelevant accounts on certain dates for personal gains, took away/stole certain records of the Bank, credited amounts of unavailed KCC limits to earn interest, cancelled the drafts of the customers and credited the amounts to irrelevant accounts, etc. Departmental proceedings were initiated against Sh. Gurjant Singh and Sh. Sukhdev Singh also and on charges being proved, the disciplinary authority imposed penalty of lowering by two stages on Sh. Gurjant Singh, while Sh. Sukhdev Singh was compulsorily retired. Petitioner was, however, awarded the punishment of ‘dismissal’ from service. In the Appeal, Petitioner alleged bias against Respondent No.4 herein and discrimination in awarding higher punishment compared to the co-delinquents, but no relief was granted to him.
6. Before proceeding further, it would be pertinent to mention that on the first date of listing of the writ petition on 12.12.2017, this Court had disposed of the petition setting aside the orders dated 24.07.2015 and 30.12.2015, with a direction to the Appellate Authority to award appropriate penalty to the Petitioner, in light of Regulation 4 of the Punjab and Sind Bank Officer Employees’ (Discipline and Appeal) Regulations, 1981, on principle of parity with the co-delinquents. This order was challenged by the Petitioner before the Division Bench in LPA No. 708/2018 to the extent the Court had not gone into the merits of the matter, as according to the Petitioner he was innocent and the charges had been wrongly proved. The appeal was allowed and the Division Bench directed the writ Court to examine the matter on all aspects.
7. When the matter was taken up today, at the outset, learned counsel for the Petitioner, on instructions, submits that for various reasons including his age and prolonged litigation, Petitioner does not wish to pursue the case on merits of the disciplinary proceedings and restricts the challenge only to quantum of punishment, on ground of parity with co-delinquents who have been awarded lesser punishments for similar charges. Learned counsel for the Bank states that he can have no objection if the Petitioner wishes to restrict his challenge to disciplinary proceedings only to the quantum of penalty and would demonstrate that there is no parity between the co-delinquents and thus no discrimination meted out to him, as alleged.
8. In light of the Petitioner restricting his challenge to the disciplinary action only to quantum of the punishment imposed, this Court is not entering into the correctness or otherwise of the charges levelled and/or alleged illegalities or irregularities in the procedure adopted during the inquiry proceedings. The moot point that is required to be examined is whether the action of the Bank in awarding higher punishment to the Petitioner compared to co-delinquents, amounts to discrimination and violates Article 14 of the Constitution of India as well as the binding dictum of the Supreme Court that those equally placed and found guilty, must be treated equally, even while considering imposition of punishments.
9. The first and foremost contention of the Petitioner is that a mere perusal of the entire evidence before the Inquiry Officer including his Report, would show that there is no evidence to prove the charges, save and except, two letters authored by the Petitioner and deposit of a total amount of Rs.6,19,214/- which was deposited under immense pressure and threats. The submission is that the letters have been misread and misinterpreted by the Bank and the Inquiry Officer to erroneously conclude that Petitioner had admitted his guilt. In the letter dated 02.01.2012, exhibit MEX-1A, Petitioner has only stated that if during the period 30.04.2008 to 10.09.2011, when the Petitioner was posted as Branch Manager, if the Bank had suffered any loss, he is ready to deposit the same and had already deposited Rs.2,00,000/-. In the second undated letter, exhibit MEX-3A, Petitioner had stated that the work in the Bank was new to him and not belonging to Delhi, he had a language problem. It was, however, categorically stated that he had not committed any mistake and was depositing a sum of Rs.4,19,214/- only on account of extreme pressure and to save his social prestige. Read in any manner, the contents of these letters cannot be construed to mean or convey that Petitioner confessed or admitted the charges levelled against him. There being no other evidence, Petitioner ought to have been exonerated, but was instead held guilty of the charges levelled and awarded the extreme punishment of dismissal, which requires interference, being highly disproportionate.
10. It is further submitted that penalty of dismissal is not only disproportionate but is in the teeth of the well settled principles of parity in awarding punishments to co-delinquents in an inquiry relating to the same incident and/or allegations of connivance. Succinctly put, the argument is that without an exception, all the charges levelled in the charge-sheet pertain to acts of commission or omission in ‘connivance’ with the co-delinquents, Sh. Gurjant Singh and Sh. Sukhdev Singh, relating to the same transactions/incidents and yet there is disparity in the punishments awarded to the three. Learned counsel for the Petitioner places reliance on the judgment of the Supreme Court in Rajendra Yadav v. State of Madhya Pradesh and Others, (2013) 3 SCC 73, wherein the Supreme Court has held that a comparatively lighter punishment on the co-delinquent and harsher punishment of dismissal on the Appellant therein was unsustainable, since both were involved in the same incidents.
11. It is also urged that while normally Courts do not interfere in the quantum of punishment in departmental inquiries, that being the domain of the disciplinary authority, however, this general rule is open to exceptions and in harsh cases, Courts have modified the punishments. Reliance is placed on the judgment of a Co-ordinate Bench of this Court in Sneh Aggarwal v. Punjab National Bank, 2023 SCC OnLine Del 248, wherein the Court while not interfering with the findings of the Inquiry Report, interfered with the punishment awarded to the Petitioner on the ground that the Petitioner therein had served the Bank for 13 years without any complaint and relying on the judgment of the Supreme Court in Umesh Kumar Pahwa v. Board of Directors Uttarakhand Gramin Bank and Others, (2022) 4 SCC 385, this Court reduced the punishment of ‘removal from service’ to ‘compulsory retirement’. Based on this, it is prayed that the extreme punishment of dismissal awarded to the Petitioner be modified to that of compulsory retirement at par with the punishment awarded to Sh. Sukhdev Singh, which will at least entitle the Petitioner to receive pensionary/terminal benefits.
12. Learned counsel for the Bank, on the other hand, contends that Petitioner had admitted his delinquency and had on his own volition deposited the money towards the loss caused to the Bank. This is evident from the two letters written by the Petitioner, being exhibits MEX-1A and MEX-3A, wherein he confessed his guilt and undertook to deposit a total sum of Rs.6,19,214/- towards the loss caused to the Bank. In these circumstances, it is not open to argue that the punishment is disproportionate or there is disparity and discrimination viz-a-viz the other two employees. It is argued, albeit conceding that incidents and transactions were the same, that Petitioner cannot allege any discrimination since Sh. Gurjant Singh and Sh. Sukhdev Singh were holding different posts and the allegations were not identical and that being a Branch Manager and overall in-charge of the Bank, Petitioner had higher responsibility and therefore greater culpability.
13. I have heard the learned counsels for the parties and examined their contentions.
14. The only issue that this Court is required to delve into is to test the correctness and legality of the action of the Bank in awarding the punishment of dismissal to the Petitioner while awarding lesser punishment to those alleged and proved to have acted in ‘connivance’. Before embarking on this examination, I may allude to a judgment in the case of Man Singh v. State of Haryana and Others, (2008) 12 SCC 331, wherein the Supreme Court emphasized on the requirement of fair play even while awarding penalties and punishments and relevant passages are as follows:- “20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of “fair play” and reasonableness.
21. We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the excise staff of Andhra Pradesh for violating the excise prohibition orders operating in the State. The appellate authority exonerated HC Vijay Pal mainly on the ground of his acquittal by the criminal court in the excise case and after exoneration, he has been promoted to the higher post, whereas the appeal and the revision filed by the appellant against the order of punishment have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the excise offence by him in the State of Andhra Pradesh. The order of the disciplinary authority would reveal that for the last about three decades the appellant has served in the Police Department of Haryana in different capacities with unblemished record of service.
22. In the backdrop of the abovementioned facts and circumstances of the case, we are of the view that the order of the disciplinary authority imposing punishment upon the appellant for exhibiting slackness in the discharge of duties during his visit to Hyderabad when HC Vijay Pal was found involved in excise offence, as also the orders of the appellate and revisional authorities confirming the said order are unfair, arbitrary, unreasonable, unjustified and also against the doctrine of equality. The High Court has failed to appreciate and consider the precise legal questions raised by the appellant before it and dismissed the second appeal by an unreasoned judgment. The judgment of the High Court, therefore, confirming the judgments and decrees of the first appellate court and that of the trial court is not sustainable. The appellant deserves to be treated equally in the matter of departmental punishment initiated against him for the acts of omissions and commissions vis-à-vis HC Vijay Pal, the driver of the vehicle.”
15. In Rajendra Yadav (supra), the Supreme Court observed that the doctrine of equality applies to all who are equally placed and even among those persons who are found guilty and I quote:- “8. We have gone through the inquiry report placed before us in respect of the appellant as well as Constable Arjun Pathak. The inquiry clearly reveals the role of Arjun Pathak. It was Arjun Pathak who had demanded and received the money, though the tacit approval of the appellant was proved in the inquiry. The charge levelled against Arjun Pathak was more serious than the one charged against the appellant. Both the appellants and other two persons as well as Arjun Pathak were involved in the same incident. After having found that Arjun Pathak had a more serious role and, in fact, it was he who had demanded and received the money, he was inflicted comparatively a lighter punishment. At the same time, the appellant who had played a passive role was inflicted with a more serious punishment of dismissal from service which, in our view, cannot be sustained.
9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.
10. The principle stated above is seen applied in a few judgments of this Court. The earliest one is DG of Police v. G. Dasayan [(1998) 2 SCC 407: 1998 SCC (L&S) 557] wherein one Dasayan, a police constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The disciplinary authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on the Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among codelinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India.
11. In Shaileshkumar Harshadbhai Shah case [(2006) 6 SCC 548: 2006 SCC (L&S) 1486] the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit.
12. We are of the view that the principle laid down in the abovementioned judgments would also apply to the facts of the present case. We have already indicated that the action of the disciplinary authority imposing a comparatively lighter punishment on the co-delinquent Arjun Pathak and at the same time, harsher punishment on the appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the appellant and order that he be reinstated in service forthwith. The appellant is, therefore, to be reinstated from the date on which Arjun Pathak was reinstated and be given all consequential benefits as were given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs.”
16. From a conspectus of the aforementioned judgments, it is luminously clear that doctrine of equality enshrined in Article 14 of the Constitution of India is not an abstract doctrine and is enforceable in Court of Law. It is applicable to all equally placed even if they are guilty and the principle of parity has to be kept in mind by the disciplinary authority tasked to decide the quantum of punishment. It is no doubt true that the scope of judicial review in matters relating to imposition of punishments, awarded pursuant to disciplinary proceedings is limited, as this is the domain of the disciplinary authority, but it is equally settled that there are carve outs to this rule. In a recent judgment in Umesh Kumar Pahwa (supra), taking into account the fact that there was no financial loss caused to the Bank although the charges were proved in the departmental proceedings and the fact that Appellant had worked for over 28 years, with no blemish in the said period, the Supreme Court substituted the punishment of ‘removal from service’ to that of ‘compulsory retirement’, holding the punishment awarded to be harsh and disproportionate. Following the said judgment, this Court in Sneh Aggarwal (supra) modified the punishment awarded to the Petitioner therein from ‘removal’ to ‘compulsory retirement’.
17. Examining the facts of the present case on the anvil of the principles elucidated by the Supreme Court, this Court finds that the charges levelled and proved against the Petitioner pertained to various acts of omission and commission in different portfolios of the concerned Branch of the Bank, such as failing to follow the Guidelines/Instructions with respect to working of the Bank, debiting excess amounts, crediting lesser amounts on loans and advances, siphoning of funds to other accounts for personal gains etc. in ‘connivance’ with Sh. Gurjant Singh and Sh. Sukhdev Singh. Chargesheets issued to the two co-delinquents are not on record, however, the show cause notices issued to them have been filed and it is not disputed that the allegations in the charge-sheets were the same as in the notices. As a ready reference, I may refer to some of the charges against Sh. Sukhdev Singh, who was awarded the punishment of compulsory retirement:-
18. Illustratively, the charges against the Petitioner, were as follows:- “1. You in connivance with S. Gurjant Singh Officer and Sukhdev Singh Gunman and Neel Kamal Officer of the Branch debited excess amount to the Bank's Head (Intt. Paid on Fixed Deposits) and credited the excess debited amount to some irrelevant accounts on certain dates as per Annexure I, to the tune of Rs. 607594/- for your personal gains and took away/ stolen the relevant record of the bank. Further being the Incharge of the Branch, the Day Books (Day's Transaction Report) of the dates mentioned in the Annexure are checked/ signed by you.
2. You in connivance with S. Gurjant singh officer and Sukhdev Singh Gunman of the Branch debited excess amount to Bank's Herad (Intt. Paid to Savings Bank Deposits and credited the excess debited amount to some irrelevant accounts on certain dates as per Annexure-II to the tune of Rs. 185150 for your personal gains and took away/ stolen the relevant Bank's record.
SAVINGS BANK DEPOSIT (As per annexure "B") and took away/ stolen the record of the Bank. Further you being the Incharge of the Branch, the Day Books (Day's
3. You in connivance with S. Gurjant singh officer and Sukhdev singh Gunman credited less amount to the Bank income Head INTEREST CHARGED ON LOAN AND ADVANCES) (INCOME HEAD OF BANK) and credited that amount to some irrelevant accounts on certain dates as per Annexure III to the tune of Rs. 83405/- for your personal gains and took away/ stolen the relevant record of the Bank. Transaction Report) of the dates mentioned in the Annexure were
4. You in connivance with Gurjant Singh Officer, Sukhdev singh Gunman & Neel Kamal Officer debited Bank's Borrowers Agriculture loan Limits (ZCC Accounts) without any authority/ consent of the borrowers during the period 1.04.2009 to 30.09.2009 for Rs.16511/-, 1.10.2009 to 31.3.2010 for Rs. 294768/-, 1.04.2010 to 30.09.2010 for Rs.79960/-, 1.10.2010 to 31.03.2011 for Rs.236179/- and 1.04.2011 to 30.09.2011 for Rs. 369468/- as per Annexure IV to the tune of Rs. 9968866/- for your personal gains and took away/ stolen the relevant record of the Bank. checked/ signed by you.”
19. Having perused the respective charges, it is amply clear that the charges against the Petitioner and the two co-delinquent employees related to the same transactions/incidents and the gravamen of the allegations was the same. Significantly, each act of omission/commission was alleged to have been committed in connivance between the three. Simply put, Petitioner has been blamed for acting in connivance with Sh. Gurjant Singh and Sh. Sukhdev Singh, in debiting excess amounts to the Bank’s Head for personal gains, stealing away relevant record, crediting less amounts to the Income Head on account of interest charged on loan and advances, etc., the other two have been blamed for same acts of commission and omission, in connivance with the Petitioner. This Court is unable to find any substantial difference in the charges levelled against the three co-delinquents, which would justify a differential treatment in punishment, save and except, that the Petitioner in his capacity as Bank Manager had signed the documents and/or checked the transactions in question. This by itself is not an aggravating factor of such a magnitude, which would justify one co-delinquent being sent home on compulsory retirement, remaining entitled to pensionary and terminal benefits for life and thereafter family pension to his family and the other being dismissed, entailing forfeiture of the entire past service, not only depriving him of all retiral/terminal benefits but leaving the dependents in his family in a state of penury. There can be no quarrel that in any employment, more particularly in Banking sector, once an employer has loss of faith in an employee, he is entitled to and in fact is justified in dispensing with the services of such an employee, however, what is not justified is discrimination in the mode and manner of severing relationships between two charged employees held guilty of similar charges.
20. In my view, Bank has been unable to substantiate and justify why the Petitioner was awarded the extreme punishment of dismissal while the other two have been let off with lesser punishment. It has been repeatedly held by the Courts that ‘dismissal from service’ is the harshest punishment in service jurisprudence and must be awarded with great caution as it results in loss of livelihood not just for the employee, but the entire family is left to live in a state of penury for the rest of its life. The Supreme Court in Union of India & Ors. v. Sri Sankar Prosad Ghosh & Anr., (2008) 5 SLR 170 observed as under:- “12. It would be naive to say as on today that livelihood is not a part of right to life. By this time, by a large number of decisions, it has been held by the Hon'ble Supreme Court as well as High Courts in this country that livelihood is an integral facet of right to life. In this connection, a decision of the Hon'ble Supreme Court rendered in the case of State of Himachal Pradesh v. Raja Mahendra, reported in (1999) 4 SCC 43: AIR 1999 SC 1786 may be remembered.
13. Dismissal from services undoubtedly is taking away the livelihood of a person at an advanced stage because at that stage, it is impossible for a person to get any employment elsewhere as the order of dismissal will be treated as a disqualification. Loosing a job in an establishment amounts to a civil death, as the concerned person will not be in a position to earn livelihood at the advanced stage, when all his energies and endeavours have almost come to a diminishing stage.”
21. Useful would it be to note that in Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) and Another v. Rajendra Singh, (2013) 12 SCC 372, the Supreme Court culled out the following guiding principles which the Disciplinary Authorities must keep in the backdrop while deciding the penalties:-
22. In para 19.[5] of the judgment, the Supreme Court has held that while it is not the Court’s domain to either award/substitute punishments awarded in disciplinary proceedings by the Disciplinary Authorities, however, exceptions can be carved out and one such exception is where the co-delinquent is awarded lesser punishment by the disciplinary authority even where the charges of misconduct are similar.
23. Examining the present case in light of the guiding principles laid down by the Supreme Court, this Court finds merit in the grievance ventilated by the Petitioner that he has not received fair treatment at the hands of the Bank and while co-delinquents have been given lesser punishments, he has been awarded the harshest punishment in service jurisprudence. Looking at the punishments awarded to the co-delinquents for same incidents/transactions and acts of connivance and testing the impugned action on the anvil of Article 14 of the Constitution of India as well as keeping in mind the long and unblemished spell of service of the Petitioner, save and except, the present delinquency, this Court is inclined to convert the punishment from ‘dismissal’ to one of ‘compulsory retirement’.
24. Accordingly, the writ petition is allowed to the limited extent of converting the punishment awarded to the Petitioner to ‘compulsory retirement’. Needless to state that the Petitioner shall be entitled to all consequential benefits, which shall be disbursed within 2 months from today.
25. Before drawing the curtain, it needs a mention that an amount of Rs.6,19,814/-, deposited by the Petitioner is lying in the Sundry Creditor (Suspense) Account of the Bank. While the stand of the Petitioner is that he had deposited the same under pressure and threats, the stand of the Bank is that the Petitioner had voluntarily deposited the money while admitting the allegations and he is not entitled to refund of the said amount.
26. Counsel for the Petitioner submits that liberty may be granted to the Petitioner to make a representation to the Bank for release of the amount of Rs.6,19,814/-. Without going into the merits of this issue, it is left open to the Petitioner to represent to the Bank and if and when such a representation is received, needless to state, the Bank shall take a decision in accordance with law and communicate the same to the Petitioner.
27. Writ petition stands disposed of in the aforesaid terms along with the pending applications.