•(X .'^^ ^ ^sli '^Q' H(dl^i i-N^ ^sgl iS^SI ^SSi SNS'S R^^-t '^ssi f^ ig ig «' 1•• ^ "ef 03® ^ 1 1 a? >0 1 o 3^ fr< ^ •^\r- ^^' •__^^^,,_, ^: ^' A F ^ HIGHCOURTJ)FCKHATTISGARHATBILASPUR Writ Petition No. 1756 of 1992 Petitioner Kamaljet Singh Bhatia Versus Respondents The Chainnan, BUaspur Raipur Kshetriya Gramin Bank, Dayal Bandh, Bilaspur SB: Honl3le Mr. Justice Satish K. Agnihotri, J Shri N. K. Vyas, Advocate for fhe petitioner. Shri P. K. Bhadiid, Advocate for fhe respondent. r ORAL ORDER (10th July, 2006) 1. This petition filed under Article 226/227 of fhe Oonstitution of India impugns fhe order of dismissal dated 26.4.1988 (Annexurc P/29-B) and the oider dated 23.5.1989 (Annexure P/31) passed by the appeUate authonty. 2, The brief facts ui nutsheU, are fhat fhe petitioner was working as Braach Manager and posted at Baloda braach of Bilaspur Raipur Kshetoriya Gramin Bank (for short <fhe Bank'). The petitioner was holding fbe independent charge of Braach Maaager at Hasod suice 1981. The petitioner was served wifh the order dated 3.3.1982 (Axmexiire P/1) that a prctmunaiy enquiry would be coaducted with regard to fhe compladnt made by Shri Naakuram Saliu aad Shri Sabhapati Sahu aad he was directed to participate in fhe preliminary enquiry conducted by Shri J.I,Saiyad, 3. Thereafter, first charge sheet dated 27.4.1982 (Aimexurc P/2) was ser^ed to fhe petitioner contamiag foUowin.g charges:- (a) That while maldng payment of Rs. 2500/- to Shri Nanku Ram Sahu oa 6.2.82 you have paid less Rs. 230/- aod thus inisappropriated fhe amount. 6. (b)That wliUe maldng tihie said payiaent you have not foUowed fhe estabUshed procedures, such as, entry in the receipt-cum-payiaent register, cash scroU, vault register etc and fhat ffae mstructions laid down for such transactions aad yoii are ftius guflty ofviolafmg the bank^s Histructions, (c) That by proposing to finance a second hand raachiae as new to Shri Sabhapati Sahu you have acted ia a inanner detrimental to fhe Baak's mterest. (d) That your above actions aaiount to violatk>n of Regulation 19 of Staff Service Regulations appUcable to you. (e) That your above actions amount to negligence and you are guflty of that (J^ That your above actions amouat to iiiefficiency and that you are gmltyoffhat (g) That fhe above actions amount to misconduct on your part." The petitioner submitted his reply on 4.5,1982 (Aunexure P/3) to fhe charge sheet dated 27,4.1982, pleadiag not guUty. The second charge sheet was issued to fhe petitioner on 16.2.1985 (Anuexure P/9) for fhe following charge:- "Charpes You are hereby charged with deniaading of and ac^eptiag firoisi Shri Preia Chaad Sande resident of Villa^e Hasod an iflegal gratification aggregatiag Rs. 400/- for disburseiaent of loaa sanctioned to hiai. Your above act is h^hly prejudicial to fhe mterest of fhe Baiik aiid tantamounts to gross misconduct beiag in contravention of Rule 19 of Stafi* Service Regulations goveming your sendces and caUiag for discipUnaiy action under fhe said regulations.>? The petitioner submitted his reply on 5.3.1985 (Annexure P/ 11) to the charge sheetdated 16.2.1985. On tiie basis of fhe reply subniitted by fhe petitioner new de uovo enquiry was ordered by letter dated 21*3.1987 (Aiuiextire P/ 15) ia to the first charge sheet No. 33/1937 dated 27.4.1982 and second charge sheet No. 94/P/312 dated 16.2.1985. The enquiry officer submitted his two reports on 12,3.1988. The disciplinaiy aufhority, agreemg wifh the enquiry reports vide his letter dated 2.4.1988 (Annexure P/27) issued fhe show cause notice to fhe petitioner proposing the penalty of dismissal from service. The petitioner submitted his reply to fhe second show cause notice on 23.4.1988 (Annexure P/28), denyiag all fhe aUegations. 8. After havmg considered fhe eaquiry report as weU as fhe repfy ffled by the petitioner, the discipUiiaay aufhority by order dated 26.4,1988 (Anaexm-e P/29-B) dismissed tihie petitioner from seryice. The petitioner preferred appeal before fhe Board of Directors, which was also dismissed vide order dated 23.5,1989 (Annexure P/31) passed by fhe appellate aufhority. 9. Beiag aggrieved, fhe petitioner has field this ^tition on ffae followmg grounds:- (a) Firstiy, fhe petitioner was not given prc-reconled statemeiits, fhree days prior to fhe enquiry. (b) Secondly, fhe enquiry rcport is vitiated on the ground that the charge-sheet was issued on fhe basis of fhe coniplaint filed by one Shri Nanku Raiii Sahu and Shri Sabhapati Sahu which have been later on withdrawn by letter dated 6.5.1982 and 14.6.1982, respectively. (c) Thirdly, the ^titioner was not permitted to engage seivices of a lawyer or a person weU versed wifh law, as per Rule 30 (3) of fhe Bflaspur RaipiirKshetdya Gramia Bank (Staff Seryice) Regulations 1980. 10. Shri N. K. Vyas, leamed counsel appearmg for ffae ^titioner subxnite fhat fhe entibre enquiry was perverse as the enquiry officer has based his enquiry on fhe basis of fhe pre-recorded statem.eats aiid fhe petitioner was not afForded adequate and suf&cient opportiinity for cross-exaDimmg fhe witoaesses. Leamed counsel further submits fhat the enquiry could not have been initiated whea fhe complainants theroiselves have wifhdrawn ttie coiiiplaints. The enquiry was vitiated on fhe ground fhat fhe petitioner was iiot permitted to eagage tiie services ofa lawyer or a man who is well versed wifh the law, also. 4 '^y 11, Shri P, K. Bhadiiri, learaed counsel appearing for the respondent, on fhe contraiy, subniits that it is not correct fhat the enquiry, particularly, wifh regard to fhe first set of charges is based on fhe pre-recorded statemente. The complainaats fheniselves were produced aad examiaed. The petitioner was granted sufficient opportunity to cross-examme them but the petitioner decUned to cross-examiae ffae witoaesses on fhe ground fhat he was not pennitted to engage seryices of a lawyer or person weU versed wifh law. Secondly, even if, the coDipIamts have been wifhdrawii, ia fhe prcUminaiy enquiry it was found fhat fhe petitioner has comimtted gross misconduct and as such it was necessaxy m the intercst of justice to conduct fuU-fledged departmental enquiiy to fmd out the toruth. The charges contaiaed in first set of charges have been fouiid proved ou the basis of fhe reliable evidence. Leamed counsel furfher contends thiat Riile 30 (3) of fhe Regulations is not mandatoiy but discretionary, as it reads fhat afhe oflficer or eniployee may not engage a legal practitione^. With regard to fhe second charge-sheet, leamed counsel submite that it appears fliat fhe charge is proved not 011 fhe basis offhe evidence but ou fhe basis ofthe prc-reconied statements, as tlie witnesses who had deposed earlier m preUmmary enquiiy have come fonvard aiid stated that they do not want to say anythmg m the enqiiury, 12- Learaed counsel lastiy contended fhat it has been held ia catena of decisions and now it is weU settled pnnciple of law fhat fhie High Court, in. fhe cases of departniental enquiry can exercise fhe power of judicial review to fmd out whefher fhe charges have been proved on fhe basis of sonie evidence or on fhe b^is ofno evidence but the High Court does not sit as an appeUate Court to re-appreciate fhe evidence to reach to a dififerent conclusion when fhe charges are proved on the basis ofsufficient evidence. 13. Haviag heard learaed counsel for the parties and perusing fhe rccords appended to fhe petition aad rctiun, it is evident fhat the first set of charges have been found proved on fhe basis of sufficient evidence. Shri Naaku Ram Sahu aad Shri Sabhapati Sahu, who had niade complamts that fhe petitioner/delinquent officer paid Rs. 230/- less fhaa what was saactioned to Shri Naaku Ram Sahu, fheir prc- recorded statements m fhe case of first set of charges were shown to fhe witaesses aad a copy of fhe same was given to the defence, onty for fhe purpose of cross-examinmg tiie witnesses on the statement niade in fhe enquiry. Accordiagly, it cannot be held that the first set of charges were found proved on fhe basis of fhe pre-recorded stateinents. 14. So far as fhe ofher grounds are concemed, Uke coniplaiats m.ade by fhe coDiplabiaats were withdrawn, is not sustaiaable in law as it appears fhat fhe coniplauits were wiftidrawn not iii exercise of fheir iadependent niiad but on the basis of certain circunistaaces which have not come on rccord. However, fhey have clearly stated m the enquiry that fhe petitioner has coianiitted inisconduct by not payiiig fhe fiill amount sanctk)ned to hiai and Rs. 1000/- was paid for a sewiaig niachine agauist grant ofloaa ofRs.1500/-. 15. Wifh rcgard to the fhird contention fhat the petitioner was not granted permission to engage services of a lawyer or a person weU versed wifh the law is also not tenable ia law. It is weU settled principle of law that if the presenting officer of the ofher side is represented through a lawyer, fhe deliaquent officer cannot be denied the assistaace of a lawyer but in fhe prcsent case no lawyer is engaged by fhe presenting oflftcer. Rule 30 (3) does not provide for eagagement oflegal practitioner on behalfoffhe deUnquent employee. 16. The Supreme Court in the cases of Indiaa Overseas Baiik Vs. - Indian Overseas Bank Officers' Association and anothw {AIR 2001 4007}, whUe consideruig the right to have assistaiace of soineone else to represeut him to contest fhe charges of misconduct, has clearly held fhat "the law in this Country does not concede aa absolute right of rcprcsentation to an employee ia domestic enquuy as part of his right to be heard and fhat fhere is no nght to representation by somebody else unless fhe rules or regulation and staadiag orders, if any, regulating fhe conduct of discipUnaiy proceedings speci&caUy recognize such a right and provide for such rcpresentation^ In fhe present case fhere is no rule to provide assistance of a legal niaa to fhe delmqueat employee in domestic or disciplmary enquiry. 17. Now, wifh regard to ftie second charge-sheet, I have gone through the depositious of Preinchand Saade, Kirtan Panch aud Tokeraxa Lahre, who have allegedly niade the stateDients duriiig the preUnunary enquiry fhat fhe petitioner had comiaitted misconduct as contaiaed in fhe second charge sheet dated 16.2.1985. Said witaesses have clearly stated iu their depositions before fhe enquiry officer that fhey do not want to say anything with rcgard to the prelmiinary enquiry as weU as fhe present enquiiy on tlie second charge aUeged agauist fhe petitioner. No ofher docuuient was produced beforc fhe enquiry officer aiid fhe petitioner was not given aa opportunity to cross-exaniuie the aufhors of ftie earUer statenients before fhe preliiiiinaiy enquuy. It is therefore clear fhat fhe second charges were proved on the basis ofno evidence aad fhe saaie stends quashed. 18. The position of law is clear in. view of the decision of fhe Siiprcme Comt ia fhe case of Yoginath D. Badge (AIR 1999 SC 3734) which has been referred ia a decision of this Court in the case of Surendra Kumar Tfaakur Vs« State Bank of ladia aad others (2006 Labour and Industrial Cases I.C. 1977) whereia the Siipreme Coiirt has held fhat fhis Court inay iaterferc wifh fhe conclusions offhe departmental enqniry if fhe same is found proved on the basis of no evidence. If ^' Thakur fhere is sonie evidence, the High Court should not sit as aa appeUate Court to come to a different conclusion. 19. Leamed counsel for fhe respondent heavily rclied on a decision of the Suprcme Court in the case of Ganesh Santa Ram 8i»ur Vs. State Bank of India and another { (2005) 1 SCC 13) m oider to support his conten.tion fhat even if one charge of serious nature is proved^ it is szifficient to pass fhe appropriate penalty OD fhe deluiquent employee. 20. In the preseut case one set ofcharges has been proved but fhe second charge has not been found proved. The discipUnaiy authority has passed the disniissal order after haviag considered both fhe charges which have beea found proved. May be, ifone charge, which has been quashed, is considered along wifh ofher proved charges, may result into different conclusioa by fhe discipliaaiy aufhority. It is, fherefore, desirable ia fhe iiiterest of justice to reniit back fhe matter to fhe discipUiiaiy aufhorily to consider its decision of fhe penalty on fhe petitioner in fhe Ught of the decision passed by fhis Court in the matter. 21. In view of ftie foregoisig, fhe petitioa is allowed m part to the above extent No order as to costs. Sd/- Satish K. Agnihotri Judge