ORDER
A.K. Sikri, J.
1. First, the factual matrix:
The petitioner was working with UCO Bank. He was appointed as Assistant Cashier on 26.8.1967 and was promoted as Special Assistant on 16.11.1977. As a Special Assistant he was in the workmen category. The workmen staff in the banks are governed by Bipartite Settlement, Shastri and Desai Awards in respect of various service conditions. He was promoted to the post of Junior Management Grade (Scale-I) (hereinafter referred to as JMGS-1 “for short”) w.e.f. 1.5.91. As JMGS-1 he came in Officer rank. Officers in the bank in disciplinary matters, are governed by “United Commercial Bank Officer Employees” (Discipline and Appeal) Regulations, 1976 [hereinafter to be referred as (Discipline and Appeal) Regulations].
2. While petitioner was working as Special Assistant and was posted in Chawri Bazar Branch of the Bank, three FDRs of Rs. 25,000/- each on the basis of transfer voucher were prepared in the name of one Shri Ramesh Kumar on 23.3.81 for a period of 46 days. Petitioner was one of the signatories on these three FDRs. Other signatories being Shri Mohan Jotwani, the then Manager of the FDR Department. These FDRs matured on 8-5-81 and said Shri Ramesh Kumar encashed these FDRs by withdrawing money along with interest. Later it came to the notice of the bank that these FDRs were fictitious. Bank lodged FIR against petitioner and two other persons, namely, Shri Satish/Respondent No.6 and Shri S.K. Mehrotra/Respondent No.7 in this writ petition. On the basis of this FIR, criminal case under Section 120 read with Section 420 IPC and Section 5(2) of the Prevention and the other two accused named above. Accordingly, Respondent Bank informed petitioner about the registration of the aforesaid case on 7.4.82 and suspended the petitioner by the said order. After investigation CBI submitted its report in April, 1983 exonerating the petitioner of any criminal act stating that there was no evidence to prosecute the petitioner in court of law for the alleged offences of fraud and corruption.
3. However, vide letter dated 5.12.83 petitioner was informed that it had been decided to take disciplinary action against the petitioner and he was asked to submit his explanation. Letter/Show cause Notice dated 5.12.83, which was served upon the petitioner earlier was treated as charge-sheet. Petitioner submitted his explanation denying the charges. The explanation was found to be unsatisfactory and bank decided to conduct enquiry against the petitioner. Accordingly, vide Memorandum dated 25.5.84 Shri R.K. Samaiya was appointed as Enquiry Officer and Shri D.K. Parwani was appointed as Presenting Officer.
4. The Enquiry Officer fixed 30.8.84 as the first date of enquiry on which date petitioner appeared and submitted his written objection objecting to the appointment of Shri R.K. Somaiya as Enquiry Officer on the ground that it is Shri Somaiya who had made preliminary enquiries on the basis of which he formed the opinion that petitioner was guilty and had recommended the case to be handed over to the CBI and also that he continued to be associated with the investigation by the CBI. On this basis petitioner pleaded that Shri Somaiya was biased as he had already formed an opinion in the matter against the petitioner and, therefore, petitioner would not get justice or impartial conclusion by Shri Somaiya. However, Shri Somaiya was not changed as Enquiry Officer and he continued to act as such. After holding the enquiry he submitted his report dated 28.3.85 holding that charges levelled against the petitioner stood proved. His report was accepted by Area Manager i.e. Respondent No. 3 and he passed order dated 30.5.85 imposing upon the petitioner penalty of dismissal from service of the bank. Petitioner preferred Appeal dated 21.7.85 against the same, which was dismissed by Dy. General Manager acting as Appellate Authority vide his Order dated 25.8.85. It is in the background of these facts that petitioner has filed the instant petition challenging the impugned order of penalty passed by Area Manager as Disciplinary Authority and upheld by the Dy. General Manager as Appellate Authority.
5. Mr. M.R. Bhardwaj, counsel for the petitioner has assailed the aforesaid orders on the following grounds:
1. The charge-sheet was not issued in an appropriate format and show cause notice dated 5.12.83 could not be treated as charge-sheet.
2. Enquiry conducted against the petitioner as per provisions of Bipartite Settlement/Awards was illegal as petitioner being an Officer was governed by (Discipline and Appeal) Regulations.
3. Respondent Bank had furnished list of 19 witnesses but examined only 5 witnesses, which was not proper.
4. The impugned order dated 30.5.1985 passed by Area Manager was illegal as Area Manager was not his Disciplinary Authority.
5. Shri R.K. Somaiya could not be appointed as Enquiry Officer as he was biased against the petitioner.
6. I would deal with the aforesaid contentions in seriatim:
7. 1. It was contended by counsel for the petitioner that such cause notice dated 5.12.83 was treated as charge-sheet, which was not in proper format and further it could not be treated as charge-sheet as competent authority decided only on 25.5.84 to hold enquiry and charge-sheet could not be of a date earlier than 25.5.84. However, this argument merits out-right rejection. A perusal of Memo dated 5.12.83 would show that the allegations against the petitioner are mentioned in detail and they constitute complete particulars of charges. It may not be in any format. It is the substance which matters and merely because it is not in particular format, it cannot be treated as illegal. A perusal of Memo dated 5.12.83 would show that complete particulars of allegations made against the petitioner are mentioned and on reading the same the petitioner could understand as to what charges are levelled against him. Therefore, no prejudice was caused to the petitioner in treating this show cause as charge-sheet. When the decision is taken on 25.5.84 to hold enquiry it is on that date this Memo dated 5.12.83 is treated as charge-sheet and the petitioner is asked to submit his reply to the same. Therefore, this argument is devoid of any merit.
8. 2. It was also contended by the petitioner that the enquiry was conducted against the petitioner as per the provisions of Bipartite Settlement/Awards, which was wrong as the petitioner was an officer governed by Discipline and Appeal Regulations and the provisions of Bipartite Settlement were not applicable to the petitioner. It may be so and it would have been proper, if the enquiry was conducted under Discipline and Regulations. However, counsel for the petitioner could not point out as to how the enquiry conducted by following the procedure laid down under Bipartite Settlement/Awards was in any case less favorable to him than the procedure prescribed under Discipline and Appeal Regulations. These Regulations are meant for affording proper opportunity to the charge-sheeted to defend himself inconsonance with Principles of Natural Justice. If the procedure contained in Bipartite Settlement/Awards is not prejudicial to the petitioner and petitioner was afforded full opportunity to defend himself then it can be said that the petitioner was not prejudiced in any manner and, therefore, enquiry cannot be set-aside on this ground. In fact respondents have mentioned that at a time when the misconduct was committed petitioner was working as Special Assistant and it was for this reason the respondent Bank thought it proper to adopt the procedure contained in Bipartite Settlement and, therefore, this course adopted was bona fide. Be that as it may, since no prejudice is caused to the petitioner on this account, this argument of the petitioner also merits rejection.
9. 3. It was next contended by counsel for the petitioner that respondent Bank examined 5 witnesses out of 19 names of witnesses which were given in the list of witnesses and this has prejudiced his defense. This argument again has no force. If management had given 19 names in the list of wit-nesses, it is not obligatory upon the respondent Bank to examine all the witnesses. If only 5 witnesses were examined and the respondent bank was of the opinion that it should establish the charges on the basis of these 5 witnesses, it had right to drop the other witnesses. If petitioner thought that some of the witnesses not examined by the Bank are relevant, petitioner could always summon them as his witnesses.
10. 4. Counsel for the petitioner submitted that Area Manager was not the Disciplinary Authority of the petitioner. According to him in case of person like the petitioner who was working as JMGS-1 the appointing authority was Dy. General Manager and impugned order was issued by Area Manager who was supporting to the appointing authority. He referred to the appointment order of the Petitioner as JMGS-1, which is signed by Dy. General Manager (Personnel) on the basis of which he contended that appointing authority is Dy. General Manager. He further argued that even the suspension order of the petitioner was signed by Dy. General Manager. He further submitted that even as per United Commercial Bank Officer Employees (Discipline & Appeal) Regulations, the Disciplinary Authority in the case of the petitioner is Divisional Head/Assistant General Manager. Rule-5 of the aforesaid Regulations in this respect is relevant as per which Manager Director or Executive Director or other authority empowered by either of them by General or Special Order may institute or direct the Disciplinary Authority to institute disciplinary proceedings against an officer employee of the bank. Schedule is appended to the Regulations as per which Disciplinary Authority in respect of JMGS-1 officers is shown as Divisional Head/Assistant General Manager. Counsel for the petitioner contended that Area Manager is lesser in rank than the Divisional Head or Assistant General Manager and, therefore, the order was bad in law. In support of his argument, counsel relied upon the following judgments:
i) Municipal Corporation of Delhi Vs. Ram Pratap Singh 1979(2) SLR-324-S.C.
ii) Smt. Pramila Ghai Vs. Union of India and another 1983 (2) SLR-619, Delhi High Court.
iii) Baldev Krishan Sharma Vs. State of Haryana 1969(3) SLR-249 (Punjab & Haryana High Court).
11. Insofar as contention of the petitioner to the effect that Dy. General Manager being appointing authority should be the Disciplinary Authority has no force. In view of the fact that respondent Bank has Discipline and Appeal Regulations which enumerate Disciplinary and Appellate Authorities in respect of various categories of officers and when the petitioner is governed by these Regulations it is the Authority mentioned in these Regulations, which would be Disciplinary Authority in the case of the petitioner. This is clear from even order dated 17.10.83 passed by Chairman & Managing Director (Chief Executive Officer) of the United Commercial Bank, relevant portion of which reads as under:
“Serial No.1 relates to those divisions headed by Assistant General Manager and Serial No. 2 relates to those divisions which are headed by Divisional Managers.”
12. The question, therefore, to be determined is as to whether Area Manager can be, treated as ‘Divisional Head’ because he is certainly lesser in rank than Assistant General Manager. Inasmuch as Area Manager belongs to Scale-IV whereas Assistant General Manager belongs to Scale-V. Counsel for the respondents submitted that Area Manager is equivalent to Divisional Head inasmuch as both are in Scale-IV. In the counter-affidavit filed by the respondents, it is explained that Respondent No. 3 was the Disciplinary Authority and he was appointed as such vide order dated 17.10.83 by the Chief Executive Officer of the respondent Bank. However, a perusal of order dated 17.10.83 shows that the same is passed by the Chief Executive Officer, namely, Chairmen and Managing Director in exercise of powers conferred on him by and under clause 19.14 by the Bipartite Settlement and, therefore, it relates to the category of workmen staff and not officers. Therefore, this order is not relevant to determine the controversy in hand. Knowing this limitation in the counter-affidavit, respondent Bank during the course of final hearing of arguments filed affidavit dated 20.7.99 in the court wherein it is stated that Divisional Head and Area Manager are/were of the same rank, being officers in same rank, namely, Senior Manager Grade-IV. However, this does not appear to be correct position as “Divisional Head” is not any post. The official who heads a particular division is called as Divisional Head. Such an official may be an officer in Scale-IV or even in higher scale. If at a particular time Area Manager was heading the division, he should be treated as Divisional Head. In view of this matter respondent-Bank was asked by this court time and again to show as to whether Respondent No. 3 who was Area Manager was heading the division and was treated as Divisional Head. However, no material could be placed on record by the respondent Bank in spite of giving opportunities to show that Area Manager was the Divisional Head at particular time. It may be stated that in the writ petition filed by the petitioner, a specific plea was taken that Area Manager was not his Disciplinary Authority and he was subordinate to Divisional Head/Assistant General Manager. In the counter-affidavit filed by the respondents, the respondents tried to state that Area Manager was the Disciplinary Authority by relying upon order dated 17.10.83, which is applicable in the case of workmen staff as noticed above. It may be mentioned that on 21.7.88 Rule was issued keeping in view this specific arguments as is clear from the said order, which is reproduced below:
“The main argument of the learned counsel for the petitioner is that the petitioner was an officer of the Junior Management Grade-Scale-I, in which grade he was also confirmed and thus the disciplinary authority of the petitioner to impose any punishment was Divisional Head/Assistant General Manager. The impugned order has been passed by Area Manager, who is subordinate to Divisional Head/Assistant General Manager. This is so, Rules.”
13. In spite of the above, no attempt was made by the respondent bank to show as to how Area Manager was the Divisional Head. Even in the affidavit dated 20.7.99 the only averment made is that Divisional Head and Area Manager are of the same rank, which is belied by respondents, own document, namely order dated 17.10.83 as per which even Assistant General Manager can be the Divisional Head.
14. In view of the aforesaid discussion, I am inclined to accept the argument of the petition that the Area Manager is not the Disciplinary Authority in the case of the petitioner and he was lower in rank than the Disciplinary Authority as per Discipline and Appeal Regulations. Therefore, the impugned order warrants to be set-aside on this ground itself.
15. 5. Next argument of the petitioner was that the enquiry is vitiated on the ground that Enquiry Officer was biased against him as he was associated with the preliminary enquiry as well as in the investigation conducted by CBI. It is the Enquiry Officer who had reported the matter to CBI stating that case was made out against the petitioner and, therefore, he could not act as Disciplinary Authority. In support of this submission, petitioner relied upon the following judgments:
1. Sahib Ram Vs. Delhi Administration [1984(2) SLR-133] wherein the Inquiry Proceedings were quashed on the ground that the Assistant Commissioner of Police, who had conducted the investigations and found a prima facie case against the petitioner, could not be appointed as Inquiry Officer, because he had been biased.
2. Subhash Chander Sharma & Others Vs. State of Haryana & Others [1984(1) SLR-165 (Punjab & Haryana High Court)] wherein it was held that factum of bias need not be proved and if the petitioner can show reasonable possibility or likelihood of bias, he would succeed.
3. In A.K. Kraipak & Others Vs. Union of India & Others, [1969(3) SLR-445-SC] where Supreme Court made similar observations.
16. In the present case the admitted facts are that Shri R.K. Somaiya was entrusted with preliminary investigation who, after conducting the said investigation found prima facie case against the petitioner and handed over the matter to CBI to register a criminal case against the petitioner and other co-accused. The petitioner also contended that the fact that during CBI investigation Shri Somaiya continued to assist CBI is not denied. In these circumstances he should not have been appointed as Enquiry Officer. On the very first date of enquiry i.e. 30.8.84 the petitioner had objected to his appointment as Enquiry Officer but Shri Somaiya was not changed as Enquiry Officer and continued to conduct the enquiry and ultimately returned the findings holding that charges levelled against the petitioner stood proved. Thus it is a case of “likelihood of bias” inasmuch as a person who has conducted the preliminary investigation and has come to the prima facie conclusion that charges against the petitioner are proved would not sit with open mind when he acts as an Enquiry Officer in an enquiry into the same charges.
17. The test of personal bias of the decision maker is not whether there was actual prejudice against the petitioner or not. The courts do not go into the facts of the case to see whether or not the petitioner had been prejudiced in fact. The court would interfere, if, the facts tend to establish that there was “real likelihood of bias” or “reasonable suspicion of bias”. In A.K. Kraipak & Others Vs. Union of India & Others (supra) the Supreme Court emphasised that the real question was not whether the person concerned was biased “because it is difficult to prove the state of mind of a person” but whether facts on record “raise a reasonable ground for believing that he was likely to have been biased”. The court further held that there must be a reasonable likelihood of bias. In deciding the question of bias one has to take into consideration human probabilities and ordinary course of human conduct. Likewise in S. Parthasarathi Vs. Andhra Pradesh the Supreme Court applied the “real likelihood of bias” test, which was based on “reasonable apprehension of a reasonable man fully cognisant of the facts”. Thus in deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration. In Kamini Kumar Vs. West Bengal the Supreme Court observed that a person should not act both as a Judge and a witness, or as a Judge and the prosecutor, or as a complainant and a Judge at one and the same time.
18. Keeping in view the law laid down in aforesaid cases, it is clear that there was a real likelihood of a bias in the present case and the apprehension of the petitioner about this real likelihood of a bias was reasonable and well founded. A person who has held preliminary enquiry and prima facie found that the charges levelled against the petitioner are established, as an Enquiry Officer he would be interested in substantiating the charges and also to establish that his preliminary enquiry was right. It would have been, therefore, proper that the enquiry is held by completely fresh mind having no association with the case.
19. In view of my aforesaid discussion, this petition has to succeed on two counts, namely: (1) Shri Somaiya should not have been appointed as Enquiry Officer and (2) the impugned order was not passed by the Disciplinary Authority and the Area Manager/Respondent No. 3 who acted as Disciplinary Authority was lessor in rank than Divisional Head/Assistant General Manager.
20. Accordingly, Rule is made absolute. The impugned order dated 30.5.85 imposing the penalty of dismissal upon the petitioner and consequently order dated 21.7.85 of the Appellate Authority are hereby set-aside. Resultantly petitioner is entitled to reinstatement in service with consequential benefits. However, the arrears of salary and admissible allowances are limited to 50%.
21. Writ petition stands disposed of in the above terms. There shall, however, be no orders as to costs.