IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.56 of 2011 IN Civil Writ Jurisdiction Case No. 13568 of 2002 =========================================================== 1. The Bank of India through its Chairman-Cum-Managing Director, Bank of India, Head Office, Express Tower, Nariman Point, Mumbai-400021. 2. The Chairman-Cum-Managing Director-Cum-Appellate Authority, Bank of India, Head Office, Express Tower, Nariman Point, Mumbai-400021. 3. The Deputy General Manager, Bank of India (Personnel) Head Office, Express Tower, Nariman Point, Mumbai-400021. 4. The Chief Manager-Cum-Disciplinary Authority, Bank of India, Zonal Office, Patna Zone, Chanakya Place, Birchand Patel Marg, Patna-800001. 5. The Enquiry Officer, Bank Of India, Patna Zone, Chanakya Place, Birchand Patel Marg, Patna-800001. 6. The Branch Manager, Biharsharif Branch, Bank of India, Ramchandarpur, Dist. Nalanda (Bihar). .... .... Respondents/Appellants Versus Smt.Snehlata Saran @ Snehlata, W/o Late Shambhu Sharan, Cashier-Cum- Accountant, Bank of India, Biharsharif Branch, Ramchandrapur, Nalanda and Resident of Village Mandachch, P.O. Sohsarai, P.S. Noorsarai, Dist. Nalanda. .... .... Petitioner/Respondent =========================================================== Appearance : For the Appellants : Mr. Rupak Kumar, Advocate For the Respondent : Mr. S.B.K. Mangalam, Advocate =========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL JUDGMENT Date : 8th December 2011 (Per: HONOURABLE THE CHIEF JUSTICE) Patna High Court LPA No.56 of 2011 dt.08-12-2011 2 / 7 2 Feeling aggrieved by the judgment and order dated 6th October 2010 passed by the learned single Judge in C.W.J.C. No. 13568 of 2002, the respondent-Bank of India (hereinafter referred to as ‘the Bank’) has preferred this Appeal under Clause 10 of the Letters Patent. The respondent-writ petitioner (hereinafter referred to as ‘the delinquent’) was at the relevant time serving in the Bank as Cashier-cum-Accounts Clerk. While serving as Cashier-cum- Accounts Clerk, a disciplinary proceeding was initiated against the delinquent in respect of an incidence of withdrawal of a sum of Rs.30,000/- from the savings bank account of one Sangita Rani. It was alleged that on 14th August 2000, the delinquent illegally withdrew the aforesaid sum of Rs.30,000/- from the savings bank account of the said Sangita Rani on the pretext that the mother of the said Sangita Rani had come to withdraw the amount. It was alleged that it was the delinquent who had signed on the reverse of the withdrawal slip. However, with a view to removing the evidence she scored off the signature and signed in the name of D. Sinha, the mother of the aforesaid Sangita Rani. After due enquiry, the imputation of charge was held to be proved. Under communication dated 28th November 2001, the delinquent was issued a notice to show cause why she should not be held to be guilty and for the guilt proved against her why she should not be dismissed from service. The said show cause notice was accompanied by the copy of the report of the enquiry officer. The delinquent refused to receive the said notice. The notice sent to her at her official address by registered post also returned undelivered. For the guilt established against the delinquent, by order dated 24th December 2001, she was ordered to be dismissed from service. Feeling aggrieved, the delinquent preferred appeal before the appellate authority. The said appeal came to be dismissed on 10th October 2002. Feeling aggrieved, the delinquent filed above C.W.J.C. Patna High Court LPA No.56 of 2011 dt.08-12-2011 3 / 7 3 No. 13568 of 2002 under Article 226 of the Constitution. The delinquent challenged the order of dismissal from service on the ground that the order was arbitrary and discriminatory; that the same was made in violation of principles of natural justice; the delinquent was not furnished the report of the enquiry officer; that she was denied the right to defence and to prove her innocence; she was not allowed to cross-examine the witnesses; that the delinquent was singled out as several other officers were also involved in the transaction in question and that the finding of guilt recorded against the delinquent was based on conjectures and surmises. The petition was contested by the Bank. According to the Bank, the disciplinary proceeding was conducted against the delinquent in accordance with the principles of natural justice and in accordance with the terms of settlement between the Bank and its employees. In course of preliminary enquiry the delinquent had accepted the factum of her withdrawing and receiving the sum of Rs.30,000/- from the account of the account-holder Sangita Rani. The Bank denied that the delinquent had not been given the proper opportunity of defence. The delinquent had been given opportunity. The delinquent had been given copy of the report of the enquiry officer. She was allowed to make representation against such report. She was also given opportunity to make representation against the proposed punishment of dismissal from service. The delinquent, however, did not avail of that opportunity. She or her representative did not appear before the disciplinary authority for personal hearing although adequate time was granted to the delinquent and her representative for personal hearing. The learned single Judge having considered the record and after hearing the parties has allowed the writ petition. The learned single Judge has held that a composite show cause notice accepting the finding of guilt and proposed punishment of dismissal was Patna High Court LPA No.56 of 2011 dt.08-12-2011 4 / 7 4 contrary to the directions of the Hon’ble Supreme Court and that vitiated the order of punishment made on 24th December 2001. In view of the said finding learned single Judge has set aside the order of punishment and consequently, the appellate order. The learned single Judge has referred the matter to the disciplinary authority to reconsider the enquiry report and to issue fresh show cause notice calling upon the delinquent to explain why the finding of guilt recorded in the enquiry report be not accepted. The learned single Judge has also indicated that the Bank should enquire of the enquiry officer why he had not called for the production of the original withdrawal slip from the Court record. The learned single Judge has also directed the Bank to make enquiry against the Token Clerk, who accepted the withdrawal slip from the delinquent and gave her the token for withdrawal of money and also to make enquiry against the Paying Clerk for making payment to a stranger and to make enquiry how the delinquent came into possession of the withdrawal slip so as to score off her signature on the reverse of the withdrawal slip. Feeling aggrieved, the Bank has preferred this Appeal. Learned advocate Mr. Rupak Kumar has appeared for the Bank. He has assailed the order of the learned single Judge. He has submitted that the learned single Judge has examined the validity of finding of guilt recorded against the delinquent by re-appreciating the evidence. He has submitted that it is beyond the power of judicial review conferred upon the Court under Article 226 of the Constitution to re-appreciate the evidence in the disciplinary proceeding and to record its own finding. He has submitted unless it is a case of no evidence or some procedural infirmity in conducting the disciplinary proceeding; the High Court exercising power of judicial review under Article 226 of the Constitution shall not interfere with the finding of guilt or the quantum of punishment. He has submitted that the learned single Judge, having accepted that the delinquent had participated in Patna High Court LPA No.56 of 2011 dt.08-12-2011 5 / 7 5 the departmental proceeding and had signed the proceedings and the order-sheet on every date, should not have interfered with the finding of guilt or the quantum of punishment. He has submitted that the Bank employees are in the fiduciary relationship with the Bank as well as the customers. Once, the Bank has lost confidence in the delinquent, the order of dismissal from service was wholly justified. In support of his submissions Mr. Rupak Kumar has relied upon the judgments of the Hon’ble Supreme Court in the matters of Indian Oil Corporation Ltd. and another v. Ashok Kumar Arora, [(1997) 3 SCC 72]; of State Bank of India & Ors. v. Ramesh Dinkar Punde, [(2006) 7 SCC 212] and of State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, [(2011) 4 SCC 584]. Learned advocate Mr. S.B.K. Mangalam has appeared for the delinquent. He has contested the Appeal. He has submitted that the disciplinary proceeding held against the delinquent is vitiated for violation of principles of natural justice. He has submitted that the delinquent or her representative was not allowed to cross-examine the witnesses as demanded. The delinquent was not afforded opportunity to meet with the finding of guilt recorded by the enquiry officer or to make representation against the proposed punishment of dismissal from service. He has submitted that a composite notice accepting the finding of guilt against the delinquent and indicating the proposed punishment was contrary to the settled law and was unsustainable. He has also submitted that the allegation of delinquent signing the withdrawal slip on the reverse is a matter of dispute. At no point of time the withdrawal slip was produced on the records of the disciplinary proceeding. Mr. Mangalam has taken us through the memo of departmental appeal. He has submitted that there was gross violation of principles of natural justice in holding the disciplinary proceeding against the appellant. Mr. Mangalam has also made an Patna High Court LPA No.56 of 2011 dt.08-12-2011 6 / 7 6 attempt to allege mala fide. In the submission of Mr. Mangalam, the delinquent had been offered employment in the Bank on compassionate ground after the death of her husband. The death of her husband was caused by certain Bank officials. The attempt of the Bank officials was, therefore, to remove the delinquent from the service. The entire incidence of withdrawal of money by the delinquent from the account of the aforesaid Sangita Rani was stage managed and could not be proved in the disciplinary proceeding. We have perused the judgment of the learned single Judge. Although the learned single Judge did not notice any infirmity in the disciplinary proceeding held against the delinquent, the learned single Judge has proceeded to examine the evidence on record and to re-appreciate the evidence led in the disciplinary proceeding. In our opinion, the learned single Judge has manifestly erred in re-appreciating the evidence led in the disciplinary proceeding. The learned single Judge has also misdirected himself by holding that the Bank should have taken action against the Token Clerk and other personnel involved in the transaction. While exercising power of judicial review conferred by Article 226 of the Constitution, the High Court is not supposed to make a fishing enquiry against other persons. The only questions the High Court is required to examine is whether or not the charge framed against the employee is specific and precise; the employee has been furnished materials relied upon by the employer; the employee has been given due opportunity to defend his/her case and to prove his/her innocence; the employee has been given opportunity to demolish the finding of guilt recorded by the enquiry officer; whether any other requirement under the relevant service rules/regulations or terms and conditions of service are complied with. In the present case, although Mr. Mangalam has vehemently argued that the delinquent was not given fair opportunity Patna High Court LPA No.56 of 2011 dt.08-12-2011 7 / 7 7 of defense and that the disciplinary enquiry is vitiated for violation of principles of natural justice, he has not been able to demonstrate any incidence of violation of principle of natural justice or of any legal requirement under the relevant service regulations or terms and conditions of service. In absence of any procedural infirmity in the disciplinary proceeding, the learned single Judge was not justified in making a deeper probe to find the element of malice. The learned single Judge is also not right in holding that the notice issued to the delinquent to show cause why she should not be held guilty or to show cause why the guilt recorded against her be not accepted could not have contained the proposed punishment also. There is no legal infirmity in issuing a composite notice to show cause why the finding of guilt should not be accepted and why the punishment as proposed should not be imposed upon the delinquent. As recorded above, the delinquent was found guilty of illegally withdrawing the money from the customer’s account. For such a guilt proved against the delinquent, there could not have been any punishment but the dismissal from service. The order of dismissal from service made against the delinquent is legal and appropriate. For the aforesaid reason, we allow this Appeal. The impugned order dated 6th October 2010 passed by the learned single Judge in C.W.J.C. No. 13568 of 2002 is set aside. C.W.J.C. No. 13568 of 2002 is dismissed. The parties will bear their own cost. (R.M. Doshit, CJ) (Birendra Prasad Verma, J) Patna High Court The 8th December 2011 Pawan/A.F.R.