JUDGMENT
A.K. Banerjee, J.
1. This is an appeal directed against the order dated 5th February, 2001 passed by a learned single Judge whereby the learned single judge allowed the writ petition. Aggrieved against this order the present appeal was filed.
2. Brief facts which are necessary for disposal of this appeal is that at the relevant time the respondent/writ petitioner was the sub-Manager in Netaji Subhas Road Branch of appellant/Syndicate Bank. He was dismissed from service on the allegation that he issued four delivery orders to M/s. National Screw & Wire Products Limited, a constituent of the appellant without having adequate security and/or credit and without conforming to the rules and regulations of the bank.
3. In or about 1976 the appellant was working as Sub-Manager under one B. Vasantha, Branch Manager of the said branch of the appellant. On the relevant date Mr. Vasantha was absent and during his absence the respondent/writ petitioner was officiating as Branch Manager. According to the respondent/writ petitioner on the verbal instruction of Mr. Vasantha he released four delivery orders to the said constituent without following the regulations. According to the respondent/writ petitioner, although he was reluctant to issue such delivery order, he was compelled to do on the basis of oral instruction by Mr. Vasantha. The subject incident took place during the period of emergency and the respondent/writ petitioner was afraid of being harassed by his superior in case he disobeyed the order of Mr. Vasantha.
4. On or about 14th October, 1976 when the respondent/writ petitioner was on leave at Bombay, he received a telegram from one P.S.V. Mallya, the then Regional Development Manager, New Delhi to appear before a selection committee in connection with his request for posting. He went to New Delhi on the next date and met Mr. Mallya and found that the purpose for which he was called was something different. He was asked to give a written confession taking the entire responsibility of issuing the said four delivery orders on him without implicating Mr. Vasantha. The respondent/writ petitioner was assured that no step would be taken against him. Immediately, on receipt of the said written confession, Mr. Mallya arranged air ticket for the respondent/writ petitioner and directed him to join his duty at Calcutta on 18th October, 1976. Upon return to Calcutta the respondent/writ petitioner met Mr. Vasantha and B. Vittal Pal, the then Regional Development Manager, Calcutta wherein he was asked to modify the earlier letter of confession written by him at New Delhi on 16th October, 1976. Accordingly, the respondent/writ petitioner acceded to the request and gave a further written confession; there also he took the burden of the said transaction on himself.
5. The respondent/writ petitioner was charge sheeted by the appellant/ bank on 25th March, 1977. In the charge sheet it was categorically stated that the respondent/writ petitioner made a confession on 17th October, 1976 having issued such delivery orders without credit in bank books as also pleaded for mercy.
6. The respondent/writ petitioner gave reply to the charge sheet and pleaded not guilty. The defence of the respondent/writ petitioner in the written statement was as follows;
I. Issuance of delivery orders was made as per oral instruction of Mr. Vasantha;
II. The subject constituent subsequently furnished adequate security covering the said delivery orders and thereby the interest of the bank was protected;
III. The so called confession was made by him at the instance of Mr. Mallya at New Delhi and at the instance of Mr. Vasantha and Vittal Pai at Calcutta. Such confessions were made on the assurance of the superior officers that no step would be taken against the respondent/writ petitioner. The respondent/writ petitioner was also afraid of being harassed at the subject incident took place during the period of emergency;
IV. The subject confession was made on 17th October, 1976 which was a Sunday and the same was not made in the usual course of business and was not binding upon the respondent/writ petitioner.
7. In the list of witnesses, the bank disclosed that they would be examining Mr. Vasantha, Mr. Mallya and Mr. Vittal Pai, and the same would be evident from page 144-145 of the Paper Book. In the said letter the appellant/bank also disclosed that they would be relying upon two letters of confessions written by the appellant on 16th October, 1976 and 18th October, 1976.
8. Before the Enquiry Officer none of these three persons, who were involved in the incident, were examined. Instead one Sarangapani was examined as the sole witness. Mr. Sarangapani was the officer who took charge from the respondent/writ petitioner after his suspension. Mr. Sarangapani in his evidence only proved the fact that four delivery orders were issued by the respondent/writ petitioner without having any supporting credit or security, violating the bank regulations. Mr. Sarangapani in his evidence also submitted that oral instructions were often issued in the bank. He, however, was not in a position to contradict the defense of the respondent/writ petitioner to the extent that Mr. Vasantha issued the oral instruction and the respondent/writ petitioner acted on the basis of such oral instruction. In fact, Mr. Sarangapani was not at all competent to apprise the Enquiry Officer on such issue. He took over charge after the order of suspension was issued to the respondent/ writ petitioner. The Enquiry officer came to a finding that since the charge was proved to the extent that the said four delivery orders were issued violating the regulations of the appellant bank, the respondent/writ petitioner was found guilty of the charges. The Disciplinary Authority on the basis of the Enquiry Report duly awarded punishment of dismissal from service.
9. Mr. Rajasekhar, learned counsel for the appellant bank contended as follows:
I. Since the chargers was proved and considering the gravity of the charges, the punishment of dismissal from service was accurate and there was no occasion for the learned single Judge to quash the order of punishment.
II. Since the charge was proved the appellant bank thought it fit not to call upon any other witnesses as those were not at all necessary. Similarly, the appellant bank did not feel it relevant to produce those two ‘letters of confessions’;
III. Since the respondent as and by way of defense contended that he acted on the basis of oral instruction, it was incumbent upon him to prove such allegation. Having not done so the respondent was not entitled to question the order of punishment;
IV. Assuming the respondent acted on the basis of oral instruction, there was no contemporaneous ratification made by the respondent/ writ petitioner as appears from the records.
V. The charges were so grave and the respondent being a responsible officer of the bank dealing with public money, the order of punishment was appropriate;
VI. The defense of the respondent/writ petitioner was contradictory to the extent that on the one hand he contended that he acted on the basis of oral instruction and at the same time he contended that he was reluctant to carry out such instruction as the instruction did not conform to the bank regulations. Hence such defense of the respondent/writ petitioner was nothing but an afterthought;
VII. Once the charges were proved, the bank could not be compelled to produce other witnesses to prove those subsequent incidents referred to by the respondent/writ petitioner in his defence particularly when the appellant bank did not produce those two letters of confessions in evidence.
10. In support of this contention Mr. Rajasekhar, learned counsel for the appellant, has relied on the following decisions:
Debotosh Pal Chowdhury v. Punjab National Bank, State Bank of India v. T.J. Paul,
Disciplinary Authority cum Regional Manager v. Nikunja Bihari Patnaik,
K.L. Sinde v. State of Mysore, Nand Kisore v. State of Bihar, State Bank of Patiala v. S.K. Sharma, Syed T.A. Naqshbandi v. State of J&K,
State Bank of India v. Samarendra Kishor Endow,
Union of India v. Tulsiram Patel,
Maharastra State Board of Secondary and Higher Secondary Education v. K.S. Ganghi,
Union of India v. Harjeet Singh,
11. Relying on the aforesaid decisions, Mr. Rajasekhar contended that the order of punishment could not have been interfered with by the learned single Judge and the same was liable to be quashed and set aside.
12. Mr. L.K. Gupta, learned counsel for the respondent/writ petitioner contended that once the appellant/bank took a stand that the respondent admitted the charges in presence of those three superior officer and relied upon those two letters of confessions withholding such best evidence by the bank warranted adverse inference to be drawn as against the bank. Mr. Gupta also drew our attention to the fact that not only the bank did not suffer any loss by virtue of issuance of such delivery orders but also the subject constituent subsequently secured further financial accommodation from the appellant bank and such fact, although pleaded in paragraph 9 of the writ petition, was not denied by the bank. Hence there was no occasion for the bank to issue chargesheet upon the respondent and award punishment of dismissal from service in those peculiar circumstances.
13. Mr. Gupta further contended that the appellant bank deliberately shielded Mr. Vasantha, Mr. Mallya and Mr. Vittal Pai by not producing them before the Enquiry Officer and by not doing so the appellant bank deprived the respondent/writ petitioner from getting the opportunity of proving himself not guilty of the charges.
14. In support of his contention, Mr. Gupta cited the following decisions:
Hardwari Lal v. State of Uttar Pradesh, Union of India v. MB. Patnaik, Subtrata Chaki v. State of West Bengal 90 CWN 290
15. We have carefully considered the evidence laid before the Enquiry Officer. We have also carefully gone through the records of the disciplinary proceeding appearing in the Paper Book. It would appear from the charge sheet appearing at page 59-61 of the paper book, that a composite charge was made as against the respondent/writ petitioner to the fact that he violated the bank regulations while issuing those four delivery orders with ulterior motive and when he was questioned by the superior officer on 17th October 1976, he admitted the charges and pleaded for mercy. This composite charge, in our considered view, is inseparable. On the basis of this charge, the respondent/writ petitioner was called upon to place his defence, the respondent did so. The Enquiry Officer proceeded to inquire into the charge on the basis of materials placed before him. On analysis of the evidence it would appear that the bank produced the sole witness, Mr. Sarangapani, who was not at all involved in the incident. He took charge from the respondent after the respondent was served with the notice of suspension. The appellant bank deliberately neither produced the other witnesses to prove the other limb of the charge not produced those two letters of confessions relied upon by them. The factum of issuance of such delivery orders without being backed by any security or credit was all through out an admitted position and there was nothing further to be proved on that count. When the respondent issued those four delivery orders he pleaded to have done the same as per verbal instruction of Mr. Vasantha. It is difficult for us to conceive that even if the respondent had violated bank regulations while issuing such delivery orders and thereby was liable for punishment, why the appellant bank did not allow the other fact to come on record as to whether such oral instruction was in fact issued by Mr. Vasantha or not. In case, Mr. Vasantha is produced in evidence and in case it was found that he issued such oral Instruction, the bank would have proceeded against Vasantha too. Having not done it creates a suspicion in our mind.
16. Since the factum of issuance of delivery orders was not in dispute, the respondent/writ petitioner could have been absolve from the charges if he could prove that he did it in a compulsive situation as per dictates of his superior. Such opportunity was not given to there respondent/writ petitioner. The apprehension of the respondent/writ petitioner that he could be harassed during the said period of emergency cannot be brush aside.
17. We have considered the cases cited by the parties. We are not oblivion of the fact that Court of law should not impose their own decision considering the fact and circumstances in a disciplinary proceeding. We are also aware of the fact that the apex Court repeatedly observed that Court of law should take a rigid attitude in case of bank officers seeing faced with charges of financial irregularities.
18. In the Instant case the composite charge as discussed herein before was not proved by the bank although they had opportunity to prove the same. It was also contended on behalf of the appellant bank that had those superior officers been produced in evidence they would have denied the charges leveled against them by the respondent/writ petitioner and that would not have improved the situation. It might be true that those superior officers could have denied the charges, but things would not have been so simpler. Had those persons have been brought as witness especially when two letters of confession having hand-written corrections, relief upon by the appellant bank and had those witnesses been confronted with those two letters of confession, we are not sure what would have happened at that point of time.
19. We are only to see whether the disciplinary proceeding was properly conducted following the principles of natural justice or not. Composite charge of issuance of delivery orders and admitting the same before the superior officers and pleading mercy therefor was leveled against the respondent. The respondent in his defence pleaded that he acted on the basis of oral instructions of his superior. The bank considering the reply disclosed the list of witnesses as well as those two letters of confessions. After disclosing those, the bank chose not to produce those witnesses as also those documents and thereby denying the respondent opportunity of proving his case through those witnesses and letters of confession. Had it been a civil case things would have been different but in a disciplinary proceeding if a person is being deprived of his livelihood he should be afforded with all opportunity to absolve himself from the charges brought against him. We are of the view that having not produced those witnesses, the bank withheld the best evidence and the Enquiry Officer erred in holding that the charge was proved. We reiterate that the factum of issuance of delivery orders was never in dispute and there was no occasion for the same to be inquired into. The other limb of the charge that the delinquent admitted the said charge and pleaded mercy by way of written confession were not at all attempted to be proved. Had that attempt been made by the bank, the respondent could have got an opportunity to absolve himself form the charges by placing his case before those witnesses. If this is not violation of principles of natural justice, we are not aware what more it could be.
20. It also appears from the Enquiry Report that the Enquiry Office came to a finding that the respondent exposed the bank to financial loss although the facts borne out from the rival pleadings and documents as recorded herein above say otherwise. In this regard, Mr. Rajasekhar tried to contend that even if the bank by dint of such wrongful act gained that would also amount to misconduct as held by the Apex Court in the case of Disciplinary Authority cum Regional Manager v. Nikunja Bihari Patnaik (supra). In our view, the enquiry officer totally misdirected himself while coming to the conclusion. As we have already observed that violation of bank regulations at the time of issuance of delivery orders was never in dispute, the Enquiry Officer was only to find out whether the reason for such issuance of delivery orders so disclosed by the respondent was justified or not. The exposure to financial loss was not a fact found out from the facts recorded herein before.
21. We have perused the judgment and order of the learned single Judge. The learned single Judge found several irregularities and illegalities apart from those pointed out by us herein before. We are complete agreement with the finding of the learned single Judge as well as conclusion thereof. Hence we are also of the view that the proceeding was conducted in a manner violative of principles of natural justice and the settled principles of law relating to service jurisprudence.
22. Having held that the disciplinary proceeding was not conducted in proper manner, if we remand this matter back to the authorities at this stage for an incident of 1976 and particularly when the concerned officers and/or witnesses including the respondent have already reached the age of superannuation it would not be just at this belated stage.
23. The learned single judge by his order quashed the proceeding and directed payment of all back wages till the date of superannuation in usual course. Considering the fact that the respondent was a responsible officer of the bank, we are of the view that the ends of justice would be sub-served if we direct payment of back wages to the extent of 50% of the salary together with all pecuniary benefits payable to the respondent had he been serving the bank in usual course till the date of his superannuation.
24. This order of denial of back wages to the extent of 50% by modifying the order of punishment is passed by us in these peculiar facts and circumstances being prompted by the decision of the apex Court in the case of Om Kumar v. Union of India, reported in AIR 2000 SC 3689.
The appeal is disposed of accordingly. There would be, however, no order as to costs.
Urgent Xerox certified copy of this judgment may be supplied to the learned advocates for the parties, if applied for, upon completion of all formalities.
A.K. Mathur, C.J.
25. I agree.