The court can’t interfere with the conclusion of the Inquiry report if it has been conducted in accordance with law: Odisha HC

ORISSA HIGH COURT: CUTTACK W.A. No.620 From the judgment dated 24.12.2019 passed by the learned Single Judge in W.P.(C) No.65502 Chairman Odisha Gramya Bank versus … Appellant … Mr. Manoj Kumar Mishra Senior Advocate along with M s. T. Mishra S. Senapati S. S. Parida and A. Mishra Mr. Jayant Kumar Rath Senior Advocate along with M s. D. N. Rath P. K. Rout A. K. Saa and N. Panda A Rama Chandra Behera For Appellant For Respondent P R E S E N T: THE HON’BLE KUMARI JUSTICE SANJU PANDA THE HON’BLE MR. JUSTICE S. K. PANIGRAHI Date of hearing : 11.11.2020 Date of judgment : 27.11.2020 S. K. Panigrahi J. This Writ Appeal assails the judgment dated 24.12.2019 passed by learned Single Judge in W.P.(C) No.6558 of 2002 which allowed the Writ Petition filed by the present respondent while interfering in the inquiry process by setting aside the appointment of Sri P. K. Bose as an Inquiry Officer along with all proceedings conducted by him including the second show cause notice in holding that the inquiry proceedings initiated against the present respondent by Sri P.K. Bose is unsustainable illegal improper unjust and also contrary to the settled principle of law. 2. The factual conspectus of the case rests on the fact that the present respondent was appointed as Clerk cum Cashier Balasore Gramya Bank on 13.01.1982 and posted in Mitrapur Branch of Balasore Gramya Bank in the District of Balasore on 12.06.1985. Subsequently he was promoted to the Officer Scale I w.e.f. 28.04.1989. However later he was placed under suspension on the ground of financial irregularities fraudulent activities misappropriation of public Bank’s money and manipulating Bank’s record while working as an Additional Officer in Mitrapur Branch of Balasore Gramya Bank. 3. On the basis of breadth and depth of charges levelled hereinabove the Respondent was slapped with Article of Charges with statement of allegations on 24.09.1998 and additional Article of Charges with statement of allegations on 25.10.1998. The said Article of Charges and statement of allegations portrays the commission of major financial irregularities by way of fraudulent activities misappropriation of public Bank’s money disbursement of loans and advances by manipulating bank records deliberate flouting of Bank’s Rules and procedures displaying gross negligence in duty failure to serve the Bank faithfully and honestly which is grossly deviated from the proverbial ‘reasonable person’. 4. Accordingly the present respondent submitted his reply statement of defence in respect of both the charge sheets. He was afforded opportunity of being heard and procedural fairness. However the competent authority was not very satisfied with the reply given by the delinquent officer present respondent and the said competent authority directed commencement of domestic inquiry by appointing Sri P. K. Bose as an Inquiry Officer. The said inquiry was conducted with a view to prove the allegations or framed against the present respondent without compromising the principles of natural justice. 5. Upon completion of the inquiry the report was submitted by the Inquiring Officer with a finding that the charge sheet levelled against the respondent are proved. The said inquiry report was also concurred by the Chairman and competent authority and came to a conclusion that the respondent had indulged in gross negligence of duty and failed to exercise due care and caution while discharging his duty and responsibility. In addition to this he was also charged with commission of fraud and misappropriation causing withdrawal from the SB Account and wilfully flouting the Rules and Regulations of the Bank by misutilizing his official position. 6. The inquiry report was submitted on 02.12.2002 and reply was sought in the second show cause notice issued to the present respondent within fifteen days from the date of receipt of letter. 7. Aggrieved with the aforesaid report the present respondent sought to challenge the second show cause notice by way of W.P.(C) No.6558 of 2002 with a prayer to quash the second show cause notice. After hearing the said Writ Petition preferred by the respondent herein the learned Single Judge passed the judgment vide order dated 24.12.2019 setting aside the appointment of Sri P.K. Bose as Enquiry Officer along with all proceedings conducted by him including the second show cause notice. He has also held that the appointment of Sri P. K. Bose as an Inquiring Officer remains unsustainable and perverse since it is contrary to provision of Bank’s Service Regulation. Hence it is illegal improper and unjust. 8. Combating the aforesaid view by the learned Single Judge Mr. M.K. Mishra learned Senior Counsel for the appellant assailed the impugned judgment and order dated 24.12.2019 wherein the appointment of Sri P. K. Bose as an Inquiring Officer was set aside and all proceedings conducted by him including the second show cause notice was quashed. He further contended that the jurisdiction of learned Single Judge is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice but not otherwise. He further averred that the present respondent has participated in the inquiry proceeding before the Inquiring Officer appointed by the competent authority without raising tantrum. The procedural fairness and principles of natural justice were duly complied in a substantive sense. He further reiterated that the findings recorded by the Inquiry Officer are basically findings of fact based on evidence on record and there is no perversity. 9. While the inquiry report was not palatable to him he turned around and subsequently contended that the appointment and competency of Sri P. K. Bose as an Inquiry Officer was unsustainable. The Respondent herein has waived his right to question the competency of the Inquiry Officer at this stage. The findings of the learned Single Judge quashing the appointment of Sri P. K. Bose as an Inquiring Officer and the proceeding connected the Second show cause notice unsustainable perverse and contrary to the facts on record. 10. In the second limb of his argument he submitted that as per Section 17(1) of RRBs Act 1976 which states that the sponsored bank is permitted to send such number of officers or other employees on deputation to Regional Rural Banks as may be necessary or desirable for the efficient performance of the Bank. The said provision is extracted herein below: “17. Staff of Regional Rural Banks. A Regional Rural Bank may appoint such number of officers and other employees as it may consider necessary or desirablefor the efficient performance of its functions and may determine the terms and conditions of their appointment and service: Provided that it shall be lawful for a Sponsor Bank if requested so to do by a Regional Rural Bank sponsored by it to send such number of officers or other employees on deputation to the Regional Rural Bank as may be necessary or desirable for the efficient performance of its functions: Provided further that the remuneration of officers and other employees appointed by a Regional Rural Bank shall be such as may be determined by the Central Government and in determining such remuneration the Central Government shall have due regard to the salary structure of the employees of the State Government and local authorities of comparable level and status in the notified area. 2) Notwithstanding anything contained in the Industrial Disputes Act 1947or any other law for the time being in force no award judgment decree decision or order of any industrial tribunal Court or other authority made before the commencement of this Act shall apply to the terms and conditions in relation to the persons appointed by a Regional Rural Bank. 3) The officers and other employees of a Regional Rural Bank shall exercise such powers and perform such duties as may be entrusted or delegated to them by the Board.” According to the above percepts Sri P. K. Bose who is an Officer in the rank of Middle Management Grade Scale II by sponsored Bank was brought on deputation to Orissa Gramya Bank from Uco. Bank which is the sponsoring Bank which was perfectly as per the provisions of the RRBs Act. 11. He further drew support from the certificatory letter with respect to the question of appointment on deputations as Inquiry Officer from other Banks like Sri P. K. Bose in the instant case. In fact as per Sponsor Bank letter No.PD RRB HO 390 X 14 90 dated 23.02.1990 which has been issued as clarificatory Letter by the NABARD Head Office Mumbai wherein it is stated that the officer of sponsored bank on deputation can be appointed entrusted with the task of Inquiry. In view of the matter appointment of Sri P. K. Bose as an Inquiring Officer is not per se illegal or wrong as canvassed by the counsel for the Respondent. 12. The contention of the present respondent with regard to the seniority of Sri P. K. Bose is also grossly erroneous and not based on facts. Learned Counsel for the Appellant contended that Regulation of Section 30(3) of Balasore Gramya Bank Service Regulations stipulates that the Inquiry Officer to be appointed by the competent authority and he should be a grade higher to the delinquent officer which is in sync with spirit of the said regulation which is extracted herein below: “30(3) The inquiry under this regulation and the procedure with the exception of the final order may be delegated in case the person against whom proceedings are taken as an officer to any officer who is in a grade higher than such officer and in the case of an employee to any officer. For purpose of inquiry the officer or employee may not engage a legal practitioner.” In the present case the Inquiring Officer was a grade higher than that of the present respondent which is also completely in conformity with regulation hence there is no procedural failing. 13. The contentions of the present respondent as articulated by Mr. J K Rath learned Senior Advocate regarding unsuitability of Sri P. K. Bose to be appointed as an Inquiring Officer because of his deputationist status wrongly premised because there is nothing in the Regulation which excluded an officer to be appointed to the service in the RRB fold on deputation. Therefore an officer of the Sponsored Bank on deputation to the RRB is also an officer of RRB for all practical purposes and he is covered within the meaning of definition of officer as contained in Regulation 2(i) of Model Service Regulations. The said Regulation 2(i) is extracted herein below: 2(i) “officer” means a person appointed to any of the posts specified in sub regulationof regulation 3. In view of the above the learned Single Judge has failed to navigate the facts in proper prospective and set aside the appointment of Sri P. K. Bose as Inquiring Officer. 14. We have carefully considered the submission of the learned counsels for the parties and perused the records. On bare perusal of the inquiry report shows that the Appellant was confronted with the oral documentary evidences and procedural fairness have been duly complied. The allegations against the present respondent are quite serious in nature and the competent authority has concurred with the findings of the Inquiring Officer appointed to prove against the delinquent officer. The objection raised by the Counsel for the respondent with respect to the competency of Sri P. K. Bose as an Inquiring Officer is quite erroneous contrary to the RRB Act and the Service Regulations. As per the conjoint reading of the provisions of Regional Rural Bank’s Act 1976 read with Model Staff) Service Regulations and the relevant provisions which have been extracted hereinabove the appointment of Sri P. K. Bose to conduct the inquiry against the delinquent officer does not portray any departure from law. Despite the well settled position it is painfully disturbing to note that the learned Single Judge has acted like an appellate authority of the disciplinary proceedings and quashed the proceedings wrongly. In exercise of its powers under Article 226 227 of the Constitution of India the Writ Court should not venture into re appreciation of the evidence. The High Court can only see whether: a. the Inquiry is held by a competent authority b. the Inquiry is held according to the procedure prescribed in that behalf c. there is violation of the principles of natural justice in conducting the proceedings d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case e. the authorities have allowed themselves to be considerations the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion g. the disciplinary authority had erroneously failed to admit the admissible and material evidence h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding the finding of fact is based on no evidence. Under Article 226 227 of the Constitution of India the High Court shall not: re appreciate the evidence interfere with the conclusions in the Inquiry in case the same has been conducted in accordance with law iii. go into the adequacy of the evidence iv. go into the reliability of the evidence interfere if there be some legal evidence on which findings can be based vi. correct the error of fact however grave it may vii. go into the proportionality of punishment unless it appear to be shocks its conscience. The conclusions drawn in the impugned Inquiry Report over the particularized allegations are based on consideration of relevant materials and evidence. This Court while exercising powers under Article 226 227 of the Constitution of India cannot re appreciate the evidence nor can it interfere with the conclusion of the Inquiry report if it has been conducted in accordance with law. This aspect of law has been succinctly echoed in Union of India New Delhi v. Niranjan Singh1 State of Andhra Pradesh and others v. S. Sree Rama Rao 2 Chennai Metropolitan Water Supply and Sewarage Board v. T. T. Murali Babu3 B.C. Chaturvedi v. Union of India and others4 Union of India and another v. G. Ganayutham5 Om Kumar and others v. Union of India6 Coimbatore District Central Co operative Bank v. Coimbatore District Central Co operative Bank Employees Association and another7 and Chairman cum Managing Director Coal India Limited and another v. Mukul Kumar Choudhuri and others8. 16. The Respondent’s objection regarding the deuptationist status of the Inquiry officer is also unsustainable because such status of Sri P. K. Bose does not bar his appointment as an Inquiring Officer by the competent authority. This position of law further draws 12 AIR 1963 SC 1723 3 AIR 2014 SC 1141 46 SCC 749 52 SCC 386 74 SCC 669 credence from Section 17(1) of the Regional Rural Bank’s Act 1976. Hence the proposed inquiry report by the Inquiring Officer and the second show cause notice cannot be held to be non est or void 17. Another intriguing aspect of the matter forming part of the substantive argument advanced by the Respondent regarding the competency of the Inquiring Officer which was never raised during entire proceedings but when he saw the adverse wind blowing against him after conclusion of the inquiry he raised such issues before the learned Single Judge. With the present set of facts the inquiry has been held in précised factual contours and report has been submitted. The report has been prepared on considering the weight of evidence and materials on record after following due procedure of law. In view of the Inquiry Report the findings cannot be interfered. 18. The Respondent cited some of the precedents like Chiranjib Parida V. State of Orissa represented by the Secretary to the Govt. in Education & Youth Services and others9 Central 8OLR 70 Bank of India v. C. Bernard10 Jalandhar Improvement Trust v. Sampuran Singh11 Harshad Chiman Lal Modi v. D.L.F. Universal Ltd. And another12 and so on to buttress his points but these precedents cited by him do not have any factual resemblance to the set of facts involving the present case. 19. Recounting such an issue Justice V. R. Krishna Iyer has frowned upon in State of Haryana and another v. Rattan Singh13 “….the essence of a judicial approach needs to be based on objectivity exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course fair play is the basis and if perversity or arbitrariness bias or surrender of independence of judgment vitiates the conclusions reached such finding even though of a domestic tribunal cannot be held good. …." In the light of such observation the findings of the learned Single Judge and reducing the Inquiry report to nothingness warrants a meaningful review by this Court. In view of the above discussions and aforenoted decisions the learned Single Judge has failed to establish intelligibly a rational 101 Supreme Court Cases 319 11 AIR 1999 Supreme Court 1437 12 AIR 2005 Supreme Court 446 132 SCC 491 nexus between the submissions of the Respondent herein and the correct position of law. The impugned order embarks upon a wrong conclusion postulating an adverse decision. The Court Tribunal should not mechanically set aside the disciplinary proceedings on such flimsy grounds without application of juridical mind leading to erosion of institutional autonomy of the disciplinary authority. In the result the Writ Appeal is allowed and the impugned judgment dated 24.12.2019 passed by the learned Single Judge in W.P.(C) No.65502 is set aside. No order as to cost. … Sanju Panda J. I agree. .. … Orissa High Court Cuttack The 27th November 2020 AKK LNB AKP 

Summary: Does the court have power and discretion to interfere in the inquiry procedures, where they can decide the eligibility of an inquiry officer or his appointment?, is the underlying question of this case. The Odisha HC in the writ appeal case of Chairman, Odisha Gramya Bank v. Rama Chandra Behera, [W.A. No.62 of 2020, chaired by Justice Sanju Panda &amp; Justice S. K. Panigrahi forwarded a remarkable stand to the above question, answering in negative the court opined that, “Despite the well-settled position, it is painfully disturbing to note that the learned Single Judge has acted like an appellate authority of the disciplinary proceedings and quashed the proceedings wrongly.” The respondent was originally appointed for the post of a clerk-cum-cashier in the Mitrapur Branch of Balasore Gramya Bank in the District of Balasore on 12.06.1985. By the year 1989 the respondent was a promoted several times, yet later that year he was suspected of being involved in various fraudulent and criminal activities which was assumed to have been committed during his time in office as an additional officer. The appointment of Mr. P.K. Bose as the inquiry officer was made and the inquiry against the respondent was initiated. Further upon the completion of the inquiry, the inquiry report was submitted on 02.12.2002 and reply was sought in the second show-cause notice issued to the present respondent within fifteen days from the date of receipt of letter. Respondent sought to challenge the second show-cause notice by way of W.P.(C) No.6558 of 2002 with a prayer to quash the second show-cause notice. The learned Single Judge passed the judgment in favor of respondent, setting aside the second show-cause notice and appointment of P.K. Bose, as inquiry officer. The present writ appeal was brought before the Odisha HC to challenge the judgment dated on 24th December 2019. After examining all the submissions, arguments and evidences forwarded by the councils, the hon’ble HC observed that, “The Respondent’s objection regarding the deuptationist status of the Inquiry officer is also unsustainable because such status of Sri P. K. Bose does not bar his appointment as an Inquiring Officer by the competent authority. Hence, the proposed inquiry report by the Inquiring Officer and the second show-cause notice cannot be held to be non est or void abinitio.” The bench further added that, the decision made by the learned single judge remained unsuccessful in drawing a “reasonable nexus between the submissions of the Respondent herein and the correct position of law”.