1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P.NO 1093 of 1994 Rattan Singh Sandhu ...PETITIONER VERSUS Punjab and Sind Bank and another ..RESPONDENTS CORAM: HON'BLE MR.JUSTICE S.S.NIJJAR PRESENT: Mr. H.S.Sran, Advocate for the petitioner Mr.Kanwaljit Singh, Advocate for respondents. S.S.NIJJAR, A.C.J. The petitioner has filed this writ petition under Articles 226/227 of the Constitution of India, seeking the issuance of a writ in the nature of Certiorari quashing the order of dismissal dated 31.5.1993 passed by the Regional Disciplinary Authority, Amritsar (Annexure P-3) and the order dated 29.9.1993 (Annexure P-5) passed by the Appellate Authority, rejecting the appeal filed by the petitioner against the order of dismissal. The petitioner was charged as under:- “Article of Charges. Sh. Rattan Singh Sandhu Officer while working as Branch Incharge of BO Chak Kare Khan, Distt. Amritsar disbursed subsidy in cash to 78 individuals which was 2 received from Punjab Scheduled Castes, Land Development and Finance Corporation, Chandigarh and Rural Development Agency. The subsidy was paid in cash without raising loans in their names and thus without creating the assets. Sh. Rattan Singh Sandhu is, therefore, charged as under:- 1.That Sh. Rattan Singh Sandhu failed to take all possible steps to ensure and protect the interests of the Bank. 2.That Sh. Rattan Singh Sandhu failed to discharge his duties with utmost integrity, honesty, devotion and deligence. 3.That Sh. Rattan Singh Sandhu committed acts unbecoming of a Bank Officer. 4.That Sh. Rattan Singh Sandhu failed to act otherwise than in his best judgment in the performance of his official duties and in exercise of powers conferred on him. The above acts of Sh. Ratan Singh Sandhu constitute acts of misconduct in terms of Punjab and Sind Bank Officer Employees (Conduct) Regulations 1981 particularly under regulations 3 (i), (3) read with regulation 24. The above referred charges are based on statement of allegations mentioned in Annexure -II.” The allegations against the petitioner, on the basis of which the charge-sheet 3 had been framed, have been summarized by the Enquiry Officer in the Enquiry Report as under:- “Allegations: The main allegation against the CSO in brief are as under:- a) That he paid subsidy of Rs.1,36,499/- to 78 beneficiaries in cash without raising any loan in violation of bank lending norms. b)In only two cases loan application duly recommended were on record. ii)In six cases applications are on record, but without any recommendation of sponsoring agency. iii)In 70 cases, no sponsored application is on record. c)That CSO has misutilised his official position confidence reposed by bank in him and has misappropriated bank money, tarnished bank's image and has worked against the Govt. policies meant for the weaker section.” In the list of allegations, it was observed as follows:- “That above said acts of Sh. Rattan Singh Sandhu are in violation of HQ instructions and Banking norms issued from time to time. It transpires that Sh.Rattan Singh 4 Sandhu misutilised his official capacity and confidence reposed in him by the Bank as Br. Incharge and misappropriated the amount to the tune of Rs.1,36,499.00. In connivance of the individuals (mentioned in Schedule IIA) in the manner stated above. His acts which besides tarnishing the image of the Bank also violated the Govt. Schemes framed for ameliorating the condition of weaker section of the society and upliftment of their economic and social status.” The petitioner submitted a detailed reply to the charge-sheet. He produced evidence in defence by appearing himself as his own witness. The statement made by the petitioner in his defence was corroborated by DW2 to DW5. The petitioner did not deny before the Enquiry Officer the allegation of making payments of subsidy in cash and non-disbursement of loan. This fact was also confirmed by the defence witnesses. The petitioner had contended that he was a victim of circumstances and the then existing law and order situation specifically in the area where the Branch Office at Chapkara Khan is situated. On appreciation of the entire evidence, the Enquiry Officer, therefore has held as under:- “It is, therefore, proved that the C.S.O has violated the Bank's lending norms by releasing the subsidy without raising loans. However, element of pressure due to disturbed condition in the area has also come to light.” With regard to the allegation at (c) in the list of allegations, the Enquiry 5 Officer has noted the evidence of MW-1 to MW4. The evidence of these witnesses reveals that they have not received any complaint against the CSO specifically from Government sponsoring agency recommending non- recommendation of loan cases of their respective departments. The Presenting Officer has also failed to produce any supporting evidence with regard to this allegation. The conclusion reached by the Enquiry Officer is as follows:- “The allegation is, therefore, proved to the extent that in 70 cases sponsored loan applications are not on record, but non-sponsoring/recommending of cases by sponsoring agency is not proved due to insufficient evidence brought on record.” With regard to allegation at C, it has been further observed by the Enquiry Officer that this allegation is very closely related to allegations no.1 and 2. The Enquiry Officer, therefore, states that while discussing and appreciating the evidence on allegations 1 and 2, the following facts have surfaced:- “i)That the CSO has released subsidy amount without raising the loan. ii)That the beneficiaries were interested in subsidy only and they were not interested in creation of assets. Iii)No complaint against CSO were reported. iv)That the CSO was working under pressure due 6 to disturbed condition in the area. His successors S. Jodh Singh also remained tense and left the branch subsequently as stated by MW4. However, the P.O. has not produced any evidence which could substantiate the charge that the C.S.O. misappropriated the amount of subsidy in connivance with the borrowers. The allegation is, therefore, not proved.” On the basis of the aforesaid findings on each allegation, the Enquiry Officer has held as follows:- “ Articles of charges: In view of my above observations/findings on each allegation: i)It is proved that the C.S.O. has disbursed subsidy amounting to Rs.1,36,499/- without raising any loan. ii)The allegation that in 70 cases no sponsored loan application is on record is proved. However, non- sponsoring the cases could not be held as proved due to insufficient evidence brought on record. Iii)Allegation of misappropriation of subsidy amount in connivance with borrower is not proved. The act of C.S.O. having disbursed subsidy 7 amount without raising loan in violation of Bank norms & condition of Govt. Schemes though do affect tarnish the overall image of the Bank but the element of pressure due to disturbed condition may not be ignored altogether.” The Enquiry report together with a complete record was sent to the Disciplinary Authority. After examining the enquiry report, the Disciplinary Authority came to the conclusion that the findings recorded by the Enquiry Officer are result of non-application of mind. By order dated 31.5.1993, the Disciplinary Authority did not fully agree with the findings of the Enquiry Officer and held that the allegations of the charges as per the charge-sheet are true. The Disciplinary Authority also noted that the petitioner is in habit of flouting instructions of superior for which he was charge-sheeted on 27.4.1989. But taking a lenient view, disciplinary authority censured him vide order dated 27.4.1989. Considering the question of the appropriate punishment, the Disciplinary Authority considered all the aggravating and extenuating circumstances, past record, and arrived at the conclusion that the following punishments shall meet the end of justice:- “CHARGE: That Sh. Rattan Singh Sandhu failed to take all possible steps to ensure and protest the interest of the Bank. PUNISHMENT: Dismissed from Bank's service. CHARGE: That Sh.R.S.Sandhu failed to discharge his 8 duties with utmost integrity, honesty, devotion and diligence. PUNISHMENT: Dismissed from Bank's service. CHARGE: Sh.R.S.Sandhu committed acts unbecoming of bank officer. PUNISHMENT: Dismissed from Bank's service. CHARGE: Sh. Rattan Singh Sandhu failed to act otherwise than in his best judgment in the performance of his official duties and in exercise of powers conferred on him. PUNISHMENT: Dismissed from Bank's service.” The petitioner submitted a statutory appeal against the order dated 31.5.1993 to the Appellate Authority. The appeal has been dismissed, by order dated 29.9.1993, with the following observations:- “On scrutinising the contentions raised by the appellant, enquiry findings of the inquiring authority, order of Disciplinary Authority, and other relevant material on record, it does not absolve him of the allegations levelled against him. Considering the case in totality and after giving due weightage to overall situation, I do not find any justifiable grounds to disagree with the order of the Disciplinary Authority and I am of the view that punishment awarded by the Disciplinary 9 Authority, Regional Manager RD-II, Amritsar is in consonance with the gravity of misconduct. As such I hereby confirm the punishment so awarded. The appeal is as such disposed off. Sd/-Deputy General Manager, (Appellate Authority)” The petitioner has challenged the aforesaid orders, on a number of grounds. He submits that the impugned orders suffer from the vice of non- application of mind. According to the learned counsel for the petitioner, this is evident, for a number of reasons. He submits that copy of the Enquiry Report was not sent to the petitioner to file an effective representation before the Enquiry Officer differed and reversed the findings recorded by the Enquiry Officer. He points out that both the Disciplinary Authority as well as the Appellate Authority have totally ignored that there was no complaint from the public or from the authorities who had sanctioned the subsidy. Both the Disciplinary Authority and the Appellate Authority ignored the categoric finding of the Enquiry Officer about the disturbed law and order situation in the area in which the Branch was located. Both the authorities also ignored that absolutely no loss was caused to the Bank. There was no misappropriation of any funds by the petitioner. The favourable record of the petitioner was totally ignored. At the time when the petitioner joined the Branch, it had 30 lacs to its credit, but when the petitioner left the Branch, the assets had increased to Rs.1.25 crores. Adverse past record was taken into consideration by the authorities, without issuing any show-cause notice to the petitioner. 10 The respondents have filed written statement. In the Preliminary Objections, it has been stated that the petitioner has failed to avail the remedy of review, as provided under Regulation 18 of the Punjab and Sind Bank Officers Employee (Discipline and Appeal) Regulations, 1981. The petition, therefore, deserves to be dismissed on this score alone. In the second preliminary objection, it is stated that Regulation 9 of the Bank lays down that the report of the enquiry shall be communicated alongwith the order. The said Regulation has been reproduced as under:- “9. Communication of orders. Orders made by the Disciplinary Authority under Regulation 7 or the regulation 8 shall be communicated to the officer employee concerned, who shall also be supplied with a copy of the report of inquiry, if any.” It is thereafter stated that the Enquiry proceeding and the copy of the day to day enquiry proceedings is always provided at the time of hearing. However, in the case of the petitioner, DisciplinaryAuthority sent the Enquiry report in advance and before imposing the penalty on the petitioner. It is further pleaded that as per the Regulation 7 (2) and (3), the Disciplinary Authority has statutory right to disagree with the findings of the Enquiry Officer and correctly passed a well reasoned order, taking into account all aspects of the matter. On merits, it is stated that “the conditions in Village Chapkar Khan were disturbing like other places in the State of Punjab in the said year. Therefore, it is irrelevant for the purposes of the instant case”. The petitioner has admitted that subsidy is to be disbursed 11 alongwith the loan. The loan is to be granted to ensure the implementation and the liability of the beneficiary. Since the petitioner disbursed the subsidy without the loan, there could not be any creation of assets by the borrower. The petitioner has, therefore, illegally and in utter disregard of the standing instructions and norms of the Bank released the amount of subsidy, but did not advance the loan, thereby defeating the very object of the Government for the welfare of the people. It is further stated that an FIR dated 29.5.1993 has also been lodged against the petitioner for having embezzled and fabricated the documents and played fraud on the Bank. The respondents have also denied the allegation of the petitioner that the Enquiry report was not supplied, before the Disciplinary Authority passed the order dated 24.5.1993. The petitioner had enough time to make a representation. Since the petitioner did not respond or failed to state anything, after receiving the enquiry report in time, the order of dismissal was passed. In any case, no prejudice has been caused to the petitioner nor it is alleged or shown. It may be noticed that the reply was filed by the respondents on 20.10.1994. The petitioner has filed replication. During the course of hearing of this petition, the petitioner filed CM No.12008-09 of 2006, seeking permission to place on record an additional affidavit. In the application, it is stated that at the time of the filing of the replication dated 11.3.1995, facts stated in this affidavit were not available, and therefore, could not be explained in the replication. The application has been allowed and the additional affidavit has been taken on record. In this additional affidavit, reference has been made to the case FIR dated 29.5.1993 under 12 Sections 409, 468, 471 IPC registered at Police Station Verowal. It has been stated that a detailed investigation was conducted by the various Investigating Officers. During the investigation, statement of Paramjit Singh, A.G. And Zonal Manager, Punjab and Sindh Bank was recorded under Section 161 Cr.P.C. on 18.12.1994. In the statement, it has been stated that the petitioner has been falsely implicated in the case. It was stated that the petitioner is in no way responsible for any lapse. He has given clean chit to the petitioner by stating that the charge-sheet has been falsely issued to the deponent. Similarly, statements of some customers were also recorded whose accounts were subject matter of the charge- sheet/FIR. Further queries from the concerned Branch were answered by the Bank Manager in its letter dated 25.7.1995. In this letter, it has been stated that the balance of current accounts have been tallied till 30.4.1995, loan account upto 30.6.1995 and FDR upto 31.3.1995. The account holders also gave statements to the police during investigation and had all praise for the petitioner. The statement of the Branch Manager was supported by an official certificate dated 20.1.1995. On the basis of the investigation, the Investigating Officer through letter dated 5.12.1995 recommended the discharge of the petitioner. On 6.12.1995, the petitioner has been discharged by the Court of Competent jurisdiction. I have heard the learned counsel for the parties at length and perused the paper-book. Mr. Sran, learned counsel appearing on behalf of the petitioner has submitted that non-supply of the enquiry report to the petitioner before the 13 Disciplinary Authority differed with the findings of the Enquiry Officer has rendered the order of the Disciplinary Authority null and void. In support of this submission, the learned counsel has relied on the judgment of the Supreme Court in the case of Managing Director, ECIL Hyderabad vs. B. Karunakar, JT 1993 (6) S.C. 1. According to the learned counsel, the order passed by the Disciplinary Authority is also liable to be quashed on the ground that the past record of the petitioner has been taken into consideration, without issuing show-cause notice to the petitioner. In support of this submission, the learned counsel has relied on the decisions of this Court in the case of Surjit Singh Aulakh vs. High Court of Punjab and Haryana, 1992(2) SLR 150 and M.S.Bajwa vs. Punjab National Bank and others, 1994(1) SLR 131, and the judgment of the Supreme Court rendered in the case of The State of Mysore v. K. Masnche Gowda, AIR 1964 S.C. 506. Learned counsel further argued that the disciplinary authority has wrongly relied on its own impressions about the period of terrorism in Punjab in order to come to the conclusion that the findings of the Enquiry Officer are based on no evidence. This, according to the learned counsel, is in breach of rules of natural justice. Learned counsel for the petitioner submitted that the order of the Appellate Authority is liable to be quashed as the petitioner was not given opportunity of hearing. Even otherwise, the order of the Appellate Authority is a non-speaking order, and therefore, liable to be quashed. He relies on the judgments rendered in the cases of State of Punjab vs. K.R. Erry and Sobhag Rai Mehta, 1972 S.L.R. Page 836, Ram Chander vs. 14 Union of India and others, 1986 (2) SLR 608 and A.L. Kalra vs. The Project and Equipment Corporation of India Ltd. 1984 (2) SLR 446. An FIR was registered against the Officer on the same allegations. The Zonal Manager, has himself in a statement u/s 161 Cr.P.C., exonerated the petitioner. Other witnesses of the locality have totally supported the petitioner. According to the learned counsel, the petitioner deserved to be rewarded for working at a branch where his life was in danger. According to the learned counsel, the entire proceedings against the petitioner, reminds one of a witch hunt. Learned counsel further submitted that the petitioner is entitled to be reinstated with all consequential benefits on the quashing of the orders of the disciplinary authority and the appellate authority. Mr. Kanwaljit Singh, learned counsel appearing for the respondents submitted that the disciplinary authority has acted under the statutory service regulation. There is no provision for supplying the enquiry report to the delinquent Officer under Regulation 9 before the order is passed by the Disciplinary Authority. The Disciplinary Authority as well as the Appellate Authority have passed well-reasoned speaking orders. The Enquiry Officer had given virtually no reason in support of its findings exonerating the petitioner. The Disciplinary Authority examined the entire record itself and came to the conclusion that the findings of the Enquiry Officer have been recorded, without application of mind. The consideration of the relevant past record is permissible at the time when the disciplinary authority considers the question of punishment at the time when the order was passed 15 by the Disciplinary Authority as well as the Appellate Authority. The criminal, case against the petitioner on the basis of the FIR dated 29.5.1993 was still pending. Subsequent discharge of the petitioner would not affect the merits of the decision taken by the Disciplinary Authority as well as the Appellate Authority, on the basis of the material on record at the relevant time. In any event, no prejudice has been caused to the petitioner. Therefore, no relief can be granted to the petitioner. The writ petition deserves to be dismissed. I have anxiously considered the submissions made by the learned counsel for the parties. I am of the considered opinion that the orders passed by the Disciplinary Authority and the Appellate Authority are liable to be quashed on a number of grounds. It was incumbent on the respondents to supply a copy of the enquiry report to the petitioner before the Disciplinary Authority decided to accept or reject the findings recorded by the Enquiry Officer. This view of mine finds support from the judgment of the Supreme Court rendered in the case of Managing Director, ECIL, Hyderabad (supra). In this case, the Supreme Court formulated the legal proposition, as follows:- “ 2.The basic question of law which arises in these matters is whether the report of the Inquiry Officer/authority who/which is appointed by the disciplinary authority to hold an inquiry into the charges against the delinquent employee, is required to be furnished to the employee to enable 16 him to make proper representation to the disciplinary authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the punishment, if any, to be awarded to him. This question in turn gives rise to the following incidental questions: [i] Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it? XXX XXX XXX [iv] Whether the law laid down in Mohd. Ramzan Khan's case (supra) will apply to all establishments- Government and non-Government, public and private sector undertakings? [v] What is the effect of the non-furnishing of the report on the order of punishment and what relief should be granted to the employee in such cases? In answer to the aforesaid questions, the Supreme Court referred to the genesis of the law, on the subject of furnishing the report of the Enquiry Officer/authorities to the delinquent employee. On consideration of the proposition of law postulated in paragraph 2 of the judgment, the answer is given in paragraph 29, as under:- “29. Hence it has to be held that when the Inquiry 17 Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the Inquiry Officer's report before the disciplinary authority arrives at its conclusion with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.” The impugned orders having been passed in breach of rules of natural justice cannot be sustained on the basis of the ratio of law extracted above. Mr.Kanwaljit Singh has, however, submitted that there is no provision under Rule 9 of the Service Regulation to supply a copy of the inquiry report to the delinquent official. This submission of the learned counsel is to be rejected, in view of the law laid down by the Supreme Court in the case of Managing Director, ECIL, Hyderabad (supra). In paragraph 30 (i) and (iv) it has been held as under:- “30. Hence the incidental questions raised above may be answered as follows:- 18 (i)Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject. XXX XXX XXX (iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan's case (supra) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of 19 the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against