CIVIL WRIT JURISDICTION CASE No.1432 OF 1997 (In the matter of an application under Article 226 of the Constitution of India) DAYA RAM GUPTA, SON OF SHRI KASHI SAH @ KASHI NATH GUPTA, VILLAGE- MAHESUA, P.O.- KURASAN, P.S. KAIMUR, DIST.- BHABHUA, ASSISTANT, ACCOUNTS & CASH, STATE BANK OF INDIA, SASARAM BRANCH, P.S. AND DISTRICT- SASARAM :--------- PETITIONER. Versus 1. THE STATE BANK OF INDIA THROUGH ITS CHAIRMAN, NARIMAN POINT, BOMBAY. 2. THE DEPUTY GENERAL MANAGER, STATE BANK OF INDIA, ZONAL OFFICE, PATNA. 3. ASSISTANT GENERAL MANAGER, STATE BANK OF INDIA, ZONAL OFFICE, PATNA. 4. THE CHIEF MANAGER, STATE BANK OF INDIA, SASARAM. 5. INDIAN INSTITUTE OF BANKERS, THROUGH THE DEPUTY SECRETARY, EXAMINATION, THE ARCADE, WORLD TRADE CENTRE, 2ND FLOOR EAST WING, CUFFE PARADE, BOMBAY (HEREINAFTER REFERRED TO AS THE „INSTITUTE‟). :---------------RESPONDENTS. ----------- For The Petitioner : Dr. S.N.Jha, SENIOR ADVOCATE. & Dr. ANIL KUMAR UPADHYAY, ADVOCATE. For The Respondent : MR. AJAY KUMAR SINHA, ADVOCATE. P R E S E N T THE HON'BLE MR. JUSTICE V.N. SINHA V.N.Sinha,J. Heard learned counsel for the petitioner and the counsel for the State Bank of India (hereinafter referred to as the “Bank”). 2. Petitioner at the relevant time served as - 2 - Clerk Cashier in the Sasaram Branch of the Bank. He is aggrieved by the order of the disciplinary authority dated 04.09.1996, Annexure-12, whereunder after conclusion of the departmental proceeding pursuant to charge-sheet dated 3rd February, 1995, Annexure-4 he has been punished with stoppage of one increment for six months in the light of the findings recorded in the enquiry- report dated 12.12.1995, Annexure-10. Petitioner is also aggrieved by the appellate order communicated to the petitioner under letter dated 26th November, 1996, Annexure-14 affirming the aforesaid punishment. 3. Perusal of charge-sheet dated 3rd February, 1995, Annexure-4 would indicate that petitioner is alleged to have used unfair means in Associate Examination conducted by the Indian Institute of Bankers held in December, 1990 at Sasaram Centre in Book-Keeping (Hindi Medium) as his answer to Question Nos.1,2,3,5,6(a),2,3,5,6(a)(b),3,56(a) were similar to - 3 - that of 10 other examinees, whose name has been mentioned in charge-sheet along with their roll numbers. Further allegation against the petitioner is that his answer of Question No. 5 of Rural Economics was similar to that of Dubey Shashi Bhushan whose Roll number is also given in the charge-sheet. Having received the memo of charge petitioner disputed the allegation vide his reply dated 24.2.1995, Annexure- 5. The Enquiry Officer having considered the written brief filed on behalf of the petitioner by his authorized defence counsel dated 02.05.1995, Annexure-7 without comparing the answer-sheet of the petitioner with that of others named in the charge-sheet submitted Enquiry Report dated 23.5.1995, Annexure-8 holding that charges levelled against the petitioner is not proved. The disciplinary authority considered the report dated 23.05.1995 and under order dated 30.5.1995 set aside the report dated 23.5.1995, Annexure-8 and remitted back the matter to the Enquiry Officer for revisiting the charges with - 4 - reference to the answer-sheet of the petitioner and others named in the charge-sheet. The Enquiry Officer in compliance of the orders of the disciplinary authority dated 30.5.1995 issued notice to the petitioner and his authorized defence counsel requesting them to participate in the further enquiry but petitioner and his authorized representative inspite of due indulgence granted did not choose to participate in the further enquiry after receipt of the answer-sheet of the petitioner and others named in the charge-sheet for comparison. The Enquiry Officer having compared the answer-sheet of the petitioner with that of others named in the charge-sheet submitted further Enquiry Report dated 12.12.1995, copy whereof was served on the petitioner under letter dated 4th June, 1996, Annexure-10 calling upon the petitioner to show-cause as to why he be not punished with stoppage of one increment for six months. In the further Enquiry Report the Enquiry Officer held as follows :- - 5 - “The above illustrations indicate that entries in respect of each sums have been copied from a common source or from answer-sheets of one other. The copying of answers have been done hurriedly resulting in misfiguring in some cases but the examinees have been so mechanical in copying that TOTAL of entries also have been copied without revising the figure. I agree with the submissions made by the Defence Counsel vide Paragraph 7,8 of his written brief that some similarity somewhere in answers can not suggest copying or adopting any unfair means in the examination. However in these cases there are few dissimilarity in answers and there are large similarities. Moreover, by going through the above figures, the Defence will definitely agree to the fact that these examinees have attempted to answer the questions with the help of each other or obtained help of some common material. It is true that - 6 - there is no evidence/material before the enquiry to pinpoint the common source or who has copied from whom. But then, there is no doubt that these candidates named in the charge sheet alongwith the delinquent employee Shri Daya Ram Gupta adopted unfair means and either copied their answers from common source or allowed others to copy from their answer books and both the actions are equally unfair. In view of the above, I hold the charge against the delinquent employee as proved.” Having received the further Enquiry Report under letter dated 4th June, 1996, Annexure-10 petitioner submitted his show-cause reply dated 21st June, 1996, Annexure-11. The disciplinary authority having examined the second show-cause reply dated 21st June, 1996, Annexure-11 passed the impugned order punishing the petitioner with stoppage of one increment for six months. Against the punishment - 7 - order petitioner preferred appeal, memorandum whereof is contained in Annexure-13 to this application. The appellate authority considering the same passed order rejecting the memo of appeal which was communicated to the petitioner under letter dated 26th November, 1996, Annexure-14. 4. Counsel for the petitioner has assailed the order passed by the disciplinary, appellate authority, Annexures- 12 and 14 on the ground that once the petitioner was exonerated of the charge under report dated 23.5.1995, Annexure-8 the disciplinary authority erred in law by remitting back the matter for second enquiry as such second enquiry is not permissible to fill up the lacunae/error noticed in the earlier Enquiry Report dated 23.5.1995. Learned counsel further assailed the order of the disciplinary, appellate authority on the ground that the disciplinary authority while considering the show- cause reply of the petitioner dated 21st June, 1996, Annexure-11 failed to notice the submissions raised - 8 - by the petitioner in the show-cause reply particularly at internal page-3 of the said show-cause i.e. the Enquiry Officer did not record either in the ex parte proceeding or in his report dated 12.12.1995, Annexure-10 the reason for taking into consideration answer-sheet of the three out of 11 examinees. Learned counsel further assailed the finding of the authorities on the ground that from the charge-sheet as also the findings recorded by the Enquiry Officer it does not appear as to whether petitioner was himself indulging in using unfair means or was assisting others named in the charge-sheet in using unfair means and as such fact is not appearing from either the memo of charge or the findings recorded in the Enquiry Report the findings recorded against the petitioner is not beyond the realm of suspicion and cannot take place of proof even in a departmental proceeding as there is no preponderance of probabilities to conclude that petitioner indulged in using unfair means. In this connection learned - 9 - counsel for the petitioner relied on the judgment of the Hon‟ble Supreme Court in the case of Union of India Vs. H.C.Goel, reported in A.I.R. 1964 Supreme Court 364 paragraph 27. Learned counsel further assailed the orders of the two authorities on the ground that the two authorities have not chosen to deal with the submissions raised by the petitioner in his show-cause reply particularly at page-3 and as the authorities have not chosen to deal with the submissions raised their orders suffer from the vice of arbitrariness for not being reasoned dealing with the submissions noted in the show-cause. Failure to provide reasons refuting the submissions raised according to learned counsel is violation of the principles of natural justice. In support of such submission learned counsel relied on the judgment of the Hon‟ble Supreme Court in the case of Nirlon Synthetic Fibres & Chemicals Limited Vs. The Collector of Central Excise, reported in A.I.R. 1990 Supreme Court 1984 paragraph 34 onwards. - 10 - 5. Counsel for the Bank has opposed the submission. He states that the earlier Enquiry Report dated 23.5.1995, Annexure-8 was submitted by the Enquiry Officer without examining relevant material i.e. the answer-sheet of the petitioner and others named in the charge-sheet and as the Enquiry Report was submitted without examining the relevant material the disciplinary authority in its wisdom chose not to accept such report and set aside the same and remitted back the matter for fresh consideration by the Enquiry Officer in the light of the contents of the answer-sheet of the petitioner and others named in the charge-sheet. In compliance of the direction of the disciplinary authority to revisit the answer-sheet of the petitioner and others named in the charge-sheet contained in order dated 30.5.1995 the Enquiry Officer called for answer-sheet from the Indian Institute of Bankers and thereafter compared the answers of the petitioner with that of the three named in the charge-sheet and having - 11 - compared the answer-sheet of the petitioner with that of others concluded that there is similarity in the answer-sheet of the petitioner with that of others and recorded the following findings: “The copying of answers have been done hurriedly resulting in misfiguring in some cases but the examinees have been so mechanical in copying that total of entries also have been copied without revising the figures.” It is, thus, evident that the Enquiry-Officer having compared the answer-sheet of the petitioner and three others recorded a definite finding that answer-sheet of the petitioner and three others were similar so much so that even the mistake(s) of the petitioner and the three others are similar. The disciplinary authority considered the aforesaid finding of the Enquiry Officer along with the submission made by the petitioner in the second show-cause reply dated 21st June, 1996, Annexure-11 and passed - 12 - the punishment order dated 4th September, 1996, Annexure-12 on the basis of the findings recorded by the Enquiry Officer. The appellate authority has also dismissed the appeal agreeing with the findings recorded by the Enquiry Officer and the disciplinary authority. In the circumstances, the disciplinary, appellate authority was only required to have briefly considered the charge along with the findings of the Enquiry Officer and the submission raised by the petitioner in the second show-cause reply which the two authorities have done in their respective orders so submitted the counsel for the Bank. He further submitted that in the light of the findings of the Enquiry Officer, disciplinary authority and the appellate authority this Court should not interfere in the matter. 6. Having heard counsel for the parties and having perused the charge-sheet dated 3rd February, 1995, Annexure-4, the two Enquiry Reports dated 23.5.1995, Annexure-8 and 12.12.1995, Annexure-10 - 13 - as also the order of the disciplinary authority and the appellate authority, I am of the view that petitioner and other examinees are alleged to have used unfair means in the examination conducted by the Indian Institute of Bankers held in December, 1990. The answer-sheet of the petitioner with that of other examinees was compared by the Enquiry Officer after the matter was remitted back by the disciplinary authority under orders dated 30.5.1995 and further the Enquiry Report dated 12.12.1995 was submitted holding that petitioner and others named in the charge-sheet had used unfair means as their answers to different questions of Book-Keeping was similar, even the mistake committed by them was similar. In the circumstances, the finding recorded by the Enquiry Officer that petitioner and others named in the charge-sheet had indulged in unfair means cannot be questioned by me in the writ jurisdiction. The disciplinary authority has also agreed with the Enquiry Report and has given brief reasons in - 14 - support of his finding. Such finding has also been affirmed by the appellate authority. In the circumstances, I do not find any infirmity either in the subsequent Enquiry Report dated 12.12.1995 or the order passed by the disciplinary authority dated 04.09.1996, Annexure-12 and that of the appellate authority communicated to the petitioner under letter dated 26th November, 1996, Annexure-14 and the writ petition questioning the two orders is rejected. The Patna High Court The 21st day of September, 2010 P.K.P./A.F.R. (V.N.Sinha,J.)