--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITITION NO. 5131 / 2008 SURESH KUMAR NAGAR Vs. ADHYAKSHA NIRDESHAK MANDAL NARMADA MALWA GRAMIN BANK INDORE AND OTHERS * * * * * O R D E R ( ___/5/2011) The petitioner before this Court has filed this present writ petition being aggrieved by the order dt. 15/7/08, passed by the appellate authority dismissing the appeal of the petitioner as well as order dt. 14/6/01 passed by the disciplinary authority dismissing the petitioner from service by way of punishment in a Departmental Enquiry. The contention of the petitioner is that he was an employee of Narmada Malwa Gramin Bank and was appointed as a staff officer on 15/11/84. He has further stated that he was placed under suspension by an order dt. 18/2/2000 and a charge sheet was also issued along with the suspension order for allegedly committing misconduct, --- 2 --- while he was posted at Jhadmhow Branch of Distt. Rajgarh for the period w.e.f. 1995 – 1999. Petitioner has further stated that a reply was submitted by him on 6/3/2000 and one Mr. AK Awasthi was appointed as an enquiry officer. The petitioner has also stated that the enquiry officer conducted the enquiry in the month of April and an application was submitted before the competent authority to change the enquiry officer as well as the presenting officer on 23/6/2000 and the same was turned down by the competent authority on 30/6/2000. Petitioner has further stated that the enquiry officer ignored the procedure prescribed in respect of the Departmental Enquiry, while conducting the enquiry and committed serious lapse while concluding the Departmental Enquiry. It has been stated that while conducting a preliminary enquiry, the complaints were written by the Investigating Officer and thumb impression and signatures were affixed on the complaints and the complainants did not turn up to give evidence during the regular departmental enquiry. It has also been stated that the petitioner was cross examined before examination of --- 3 --- other witnesses. It has been further argued that the petitioner was not accorded opportunity to defend himself and even he was stopped from asking question to witnesses during cross examination. It has also been argued that the enquiry officer accepted the statement of false complaints without recording any evidence of the witnesses and the person concerned, who did not turn up during the enquiry proceedings for giving evidence and therefore the enquiry officer has not followed the principles of natural justice and fair play as well as the provisions of Rajgarh Sehor Shetriya Gramin Bank Employees Services Regulations, 1983. It has also been argued before this court that enquiry report was submitted on 19/3/01 and the petitioner submitted a detailed reply / comments upon the enquiry report on 23/1/01. Petitioner has further stated that based upon the enquiry report the disciplinary authority has passed an order in respect of dismissal from service on 16/4/01 and the appellate authority has initially passed an order in respect of petitioner's appeal dt. 14/5/01 and the punishment of dismissal was reduced to reduction in pay vide order dt. --- 4 --- 11/6/01. The petitioner has further stated that the order of termination dt. 16/4/01 as well as the appellate order dt. 11/6/01 was subjected to judicial scrutiny before this court in a WP ie., WP No. 2056/01 Shiv Kumar Nagar Vs. Adhyaksha Nirdeshak Mandal, Rajgarh Sehore Kshetriya Gramin Bank, Sehore and others and this court has quashed the appellate order by allowing the writ petition partly vide order dt. 21/9/07. Learned counsel has also argued before this court that the appellate authority was directed to pass a fresh order after taking into account all the grounds raised by the petitioner. The petitioner grievance is that the appellate authority has now passed an order on 15/7/08 affirming the earlier order of dismissal dt. 16/4/01 and has held the earlier order of dismissal in order. The petitioner has challenged the aforesaid order on various grounds. Learned sr. counsel arguing the matter has vehemently argued before this court that the enquiry officer while conducting the enquiry has violated the principles of natural justice and fair play and large number of documents submitted by the petitioner were not at all looked into by the --- 5 --- enquiry officer while conducting the Departmental Enquiry. It has also been stated that the enquiry officer has proceeded ahead in the matter with a biased attitude as an application was submitted by the petitioner for change of enquiry officer and also for change of presenting officer. It has also been argued before this court that the then Chairman of the Bank has deputed one sr. manager to visit the Branch in question ie., Jharmhow and to enquire about the misconduct allegedly committed by the petitioner and while conducting preliminary enquiry, the enquiring authority himself has written certain complaints against the petitioner and later on thumb impression of the borrowers were affixed on those complaints. It has also been stated that not a single borrower has submitted a complaint against the petitioner and in the present case complaints were written by the officer of the Bank and thereafter signatures of the borrowers were obtained in the matter. The petitioner has further stated that out of 5 complaints, 3 of the complainants did not turn up before the enquiry officer and two complainants have given contradictory statements. It has also been stated that the --- 6 --- petitioner was examined first and later on the examination of management witnesses took place. It has also been argued that the complaints were submitted against the petitioner after a lapse of about 4 years from the date of disbursement of loan to the borrowers with oblique and ulterior motive and the enquiry officer without following the prescribed procedure has held the charges proved against the petitioner. It has been argued that the findings arrived at by the enquiry officer are perverse finding and though the scope of judicial interference is very limited in the matter of Departmental Enquiry, the enquiry report as well as the order of punishment in the present case deserves to be quashed as the findings arrived at by the enquiry officer are perverse and it is a case of no evidence. It has also been stated that violation of principles of natural justice is apparent in the matter and the enquiry officer has ignored the circular issued by the Bank dt. 23/9/97 which deals with disbursement of loan, while submitting an enquiry report in the matter. It has also been argued before this court that earlier the petitioner was punished by inflicting punishment of reduction in pay, --- 7 --- however, on remand the petitioner has been dismissed as the dismissal order dt. 16/4/01 has been affirmed by the appellate authority vide order dt. 15/7/08. Learned sr. counsel has placed reliance upon a judgment delivered by the Supreme Court in the case of Roop Singh Negi Vs. Punjab National Bank & Ors., AIR 2008 SC (Supp) 921 and he has placed heavy reliance upon para 10 of the aforesaid judgment. It has been argued that the enquiry officer should have taken into account the materials brought on record by the parties and the disciplinary authority could not have punished the petitioner only because he has made his mind to hold the petitioner guilty. It has also been argued that the earlier judgment delivered by this court in the case of petitioner does not operate as resjudicata as the matter was remanded back to the appellate authority to pass a fresh order after taking into account all the grounds raised by the petitioner. The petitioner has prayed for quashing of the order dt. 15/7/08 and 14/6/01. It has been vehemently argued before this court that the documents submitted by the petitioner during the Departmental Enquiry were not at all --- 8 --- considered by the enquiry officer and therefore the enquiry officer has denied reasonable opportunity of hearing to the petitioner and the findings arrived at are perverse findings. Petitioner has prayed for quashing of the order dt. 15/7/08 and 14/6/01. A reply has been filed in the matter and contention of the respondent is that the petitioner was charge sheeted for committing misconduct under the service regulations and a penalty has been imposed under Regulation 30 of the Regulations. It has also been argued that this is second visit of the petitioner before this court and in the earlier round of litigation this court has remanded the matter back to the appellate authority and once the order of disciplinary authority has not been touched by this court in WP NO. 2056/2001, the question of quashing the order of punishment in the present case dt. 16/4/01 does not arise as the same is barred by the principles of resjudicata. It has also been stated before this court that the petitioner has committed serious misconduct while serving as an officer of the Bank and vide charge sheet dt. 18/2/2000 as many as 12 --- 9 --- charges were levelled against him. It has been argued before this Court that the enquiry officer has examined witnesses and the petitioner was also granted opportunity to cross examine the witnesses. Learned counsel for the respondent Bank has drawn the attention of this Court towards enquiry report and his contention is that as many as 33 documents were produced by the Management before the enquiry officer and all documents were supplied to the petitioner. It has also been stated that 7 witnesses were examined including Ishwar Singh, Gokul Singh and Rajendra Singh and the aforesaid 3 witnesses have categorically stated that the petitioner has committed misconduct in the matter of grant of loan. Not only this, the petitioner has produced 13 documents which were also looked into by the enquiry officer and defence witnesses produced before the enquiry officer by the petitioner were also permitted to participate in the enquiry proceedings. Learned counsel for the respondent Bank has argued before this court that in the present case the petitioner working as a Bank officer has prepared false cases in the matter of grant of loan on papers, false bills were --- 10 --- submitted to the Bank in respect of purchase of machinery / items for which the loan was sanctioned and a fraud was played with the Bank as well as with the farmers. In order to substantiate his arguments he has drawn attention of this court towards the case of Ishwar Singh who was examined and cross examined during the course of the enquiry. Documents have also been brought to the notice of this court and the same reveals that Ishwar Singh has categorically stated that the petitioner has obtained his signatures on blank papers, the amount of loan sanctioned was not granted to him and the petitioner was responsible even for receiving the items for which the loan was granted. Ishwarsingh has also stated that part of the loan amount was kept by the petitioner and the petitioner has also obtained illegal gratification in the matter. It has also been stated that a part of the loan amount was cleared by the petitioner when the matter came to the knowledge of the authorities. Learned counsel for the respondent Bank has also argued before this Court that the petitioner not only in the case of Ishwar Singh but in large number of cases has played fraud with illiterate --- 11 --- villagers by sanctioning loans in their name and the amount has never reached the villagers. He has drawn the attention of this court towards charge sheet issued to the petitioner on 28/2/2000 wherein again similar misconduct is reflected against the petitioner. Loan was sanctioned in respect of villagers and the amount of loan was used by the petitioner himself meaning thereby in large number of other cases also after getting the loan sanctioned, either the loan amount was not paid to the borrower or the loan amount was used by the petitioner himself. In respect of the aforesaid charge sheet the petitioner was punished by an order dt/ 19/12/03 and a punishment of stoppage of 6 increments with cumulative affect has been inflicted upon him. The petitioner has not challenged the aforesaid order. Learned counsel has vehemently argued before this court that the petitioner being a Bank employee has to be dealt with iron hands as held by the apex court in the case of State Bank of India and others Vs. Ramesh Dinkar Punde 2006 (7) SCC 212. Learned counsel for the respondent Bank has also argued before this court that the petitioner is not entitled for any relief of --- 12 --- whatsoever kind as the scope of judicial interference is quite limited as held by the apex court in the case of Smt. Bismillah Vs. Janeshwar Prasad & others 1990 (1) SCC 207 and Naresh Govind Vaze Vs. Government of Maharashtra & others 2008 (1) SCC 514. He has also placed reliance upon the judgments delivered by the apex court as reported in 2010 (11) SCC 233 and 2005 (3) SCC 40. He has prayed for dismissal of the writ petition. Heard learned counsel for the parties at length and perused the record. In the present case the charge sheet in question was issued on 18/2/2000 and the petitioner did submit a reply to the charges levelled against him on 6/3/2000. The petitioner also submitted an application for change of enquiry / presenting officer and the same was turned down by an order dt. 30/6/2000. The enquiry officer after examining the witnesses and on the basis of documents produced during the course of Departmental Enquiry has held the petitioner guilty in respect of most of the charges and enquiry report was submitted on 19/3/01. The petitioner did submit a --- 13 --- representation to the findings of the enquiry officer on 23/1/2001 and thereafter the disciplinary authority Keeping in view the provisions of Regulation 30 of the Service Regulations has inflicted a punishment of dismissal from service by an order dt. 16/4/01. The appeal was preferred against the order of punishment before the appellate authority and the same was dismissed on 11/6/01. Petitioner being aggrieved by order passed by the disciplinary authority dt. 16/4/2001 and the order passed by the appellate authority came up before this court by filing a writ petition and the same was registered as WP NO. 2056/2001. This court in the earlier round of litigation in para 2, 3, 4, 5 and 6 has passed the following order : 2. The only contention which has been put forth by learned counsel for the petitioner is that by the impugned order Annexure-P/8 dated 16/4/2001 passed by disciplinary authority who is also Chairman of Rajgarh Schore Kashetriya Gramin Bank, the petitioner has been dismissed from the services of the post of Manager of Rajgarh- Schore Kshetriya Gramin Bank. It has also been put forth by learned counsel for the petitioner that against the impugned order Annexure-P/8 dated 16/4/2001,the petitioner preferred an --- 14 --- appeal under Regulation 47 which has been decided vide order Annexure-P/1 dated 16/4/2001. The agony of the petitioner is that the disciplinary authority Mr. K.M. Sethuraman who passed the impugned order Annexure- P/8 on 16/4/2001 , was one of the members of the Board of Directors who heard the appeal and, therefore, the impugned order Annexure-P/1 dated 11/6/2001 cannot be allowed to remain stand. In support of his contention learned counsel for the petitioner has placed reliance on the decision of the Supreme Court Amar Nath Chowdhury V. Braithwaite & Co. Ltd and others, AIR 2002 SC 678. 3. On the other hand, Shri Abhishek Tugnawat, learned counsel for the respondents, submits that indeed, Annexure-P/1 dated 11/6/2001 is only communication of the result of the appeal of the petitioner which has been signed by Mr. K.M. Sethuraman. By inviting my attention to the decision in appeal annexed with the covering letter of Annexure P/1, it has been submitted that the appeal was heard by the Board. However, learned counsel for the respondent, could not point out and is not in a position to state whether K.M. Sethuramn was one of the members of the said Board who heard the appeal of of the petitioner. 4. Having heard learned counsel for the parties, I am of the view that this petition deserved to be allowed in part. 5. On bare perusal of Annexure-P/1 which is the decision passed in the appeal of the petitioner, it is gathered --- 15 --- that in a cryptic manner without assigning any reason the same has been decided and, therefore, the said order is arbitrary . On going through Annexure- P/1, it is gathered that the decision of the appeal has been signed by Mr. K.M. Sethuramn, Chairman. It is not disputed by learned counsel for the respondents that said Mr. K.M. Sethuraman was the disciplinary authority who passed the impugned order Annexure-P/8 dated 16/4/2001. On this short ground the impugned order Annexure-P/1 dated 11/6/2001 passed by the appellate authority cannot be allowed to remain stand and the same is hereby quashed. The appellate authority is hereby directed to redecide the appeal of the petitioner in proper perspective by taking into consideration the allegation made by him in the appeal and the grounds raised therein by passing a speaking order. It is further made clear that Mr. K.M. Sethuramn, signatory of Annexure-P/8, should not be a member of the appellate forum. 6. It has been contended at the Bar that after having passed the impugned order Annexure-P/1, diluting the punishment order Annexure-P/8, the petitioner has been reinstated by awarding punishment of reduction in the lowest rank. In this view of the matter, respondents are hereby directed that till the departmental appeal of the petitioner is decided, he shall not be dismissed from the service in compliance to the impugned order Annexure-P/8 dated 16/4/2001. --- 16 --- 7. This petition is, accordingly allowed in part to the extent indicated herein above. Looking to the facts and circumstances, parties are directed to bear their own costs. Keeping in view the aforesaid order passed by this court the matter was heard again by the appellate authority and now the appellate authority has dismissed the appeal preferred by the petitioner meaning thereby his termination vide order dt. 16/4/01 has been upheld. Learned counsel for the petitioner has placed reliance upon a judgment delivered by the apex court in the case of Roop Singh Negi Vs. Punjab National Bank & Ors., AIR 2008 SC (Supp) 921 and para 10 of the aforesaid judgment reads as under : 10. Indisputably, a departmental proceeding is a quasi - judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. We have noticed hereinbefore that the only basic evidence whereupon --- 17 --- reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left. In the present case, there was direct evidence before the enquiry officer in respect of the irregularities committed by the petitioner and Ishwar Singh, Gokul Singh and Rajendra Singh have categorically stated that the petitioner has committed misconduct in the matter of grant of loan. There is direct evidence which establishes that the petitioner while working as a Bank Officer has prepared false cases in the matter of grant of loan, has prepared false bills and a fraud was played with the Bank as well as with the farmers. This Court is of the considered opinion that the petitioner who was a Bank employee has to be dealt with iron hands as held by the apex court in the case of State Bank of India and others Vs. Ramesh Dinkar Punde (supra). Not only this, the --- 18 --- findings arrived at by the enquiry officer are certainly not at all perverse findings and there is enough evidence on the basis of which enquiry officer has held the charges proved and therefore keeping in view the judgment delivered in the case of Smt. Bismillah Vs. Janeshwar Prasad & others (supra), this Court is of the considered opinion that the petitioner has not been able to make out a case for judicial interference. The judgment relied upon by the learned counsel in the case of Roop Singh Negi Vs. Punjab National Bank & Ors., (supra) is distinguishable on facts as in the present case, there was enough material to establish misconduct. Resultantly, no case for interference is made out in the matter. The writ petition is dismissed. No order as to costs. (S. C. SHARMA) J U D G E KR