# Deepak Joshi v. Asst. General Manager, Central Bank of India

- **Citation:** (2023) 7 ILRA 1137
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-12
- **Case number:** Writ-A No. 792 of 1998
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-joshi-v-asst-general-manager-central-bank-of-india-50501
- **Pages:** 39

## Headnote

N.K. Seth, C.S.C., Gopal K Srivastava

Central Bank of India, disciplinary proceedings,
natural
justice,
suspension,
removal
from
service, Bipartite Settlement - Article 14 - Article
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
311(2)
-
Central
Vigilance
Commission,
subsistence allowance, reinSt.ment, back wages
The petitioner, Deepak Joshi, a Clerk at the
Central Bank of India, was suspended on March
2, 1995, based on an anticipated complaint of
forging a Khazana deposit passbook. A chargesheet dated July 3, 1995, alleged seven acts of
misconduct, including non-deposit of funds and
fake entries. The petitioner denied the charges,
claiming the complaint was fabricated. The
enquiry, commencing July 18, 1995, and
concluding September 18, 1996, relied on exparte St.ments, denied cross-examination of
complainants, and ignored the bank's non-loss.
The petitioner was not paid full subsistence
allowance after one year, as mandated by the
Bipartite Settlement. The Enquiry Officer's
report, submitted ex-parte on December 17,
1996,
ignored
the
petitioner's
written
arguments. The disciplinary authority confirmed
removal from service on May 26, 1997, upheld
by the appellate authority on December 23,

## Text

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7 All. Deepak Joshi Vs. Asst. General Manager, Central Bank of India
1137
the appellant. Thus with all humility, this
Court is unable to accept the submissions
of the learned counsel for the appellant.

36. Having taken a wholesome view
of the facts and situation and also noticing
that
the
appellant
has
a
registered
agreement to sell in his favour in terms
whereof he had already paid a sum of
Rs.2,000/- as earnest money in the year
1979 and has been litigating since last 44
years and considering the fact that the
defendant No.1 did not contest the
proceedings whereas the defendants No.2
and 3 having purchased the property from
the defendant No.1 during the currency of
the agreement executed by the defendant
No.1 in favour of the plaintiff hence, the
defendants No.2 and 3 has stepped into the
shoes
of
the
original
vendor
and
accordingly, looking into the circumstances
even though, the plaintiff may not be
entitled to a decree of specific performance
yet, he is entitled to refund of the aforesaid
sum.

37. This Court taking note of the
decisions of the Apex Court in K. Prakash
vs. B.R. Sampath Kumar, (2015) 1 SCC
597; Zarina Siddiqui vs. A. Ramalingam
(2015)
1
SCC
705
and
U.N.
Krishnamurthy vs. A.M. Krishnamurthy,
2022 SCC Online SC 840, wherein the
issue of escalation in the prices of property
and balancing the equities between the
parties has been considered and noticing
that 40 years have lapsed and the prices of
the property have escalated and the value of
money on account of inflation has also
been affected severely, hence, applying the
dictum of the Apex Court in K. Prakash
(supra), Zarina Siddiqui (supra) and A.M.
Krishnamurthy (supra) and in the given
facts and circumstances, this Court deems
appropriate
that
while
affirming
the
judgment and decree dated 28.04.1986
passed in Civil appeal No.39 of 1982 by the
Second
Additional
District
Judge,
Faizabad, this Court further directs that the
defendants No.2 and 3 shall refund a sum
of Rs. 3 lacs to the plaintiff-appellant
within a period of 60 days from today. In
case, if the aforesaid sum is not paid to the
plaintiff, the plaintiff-appellant shall be
entitled to recover the same from the
defendants No.2 and 3 in accordance with
law by moving an execution application.

38. In light of the aforesaid
discussions and subject to the aforesaid
modification in the judgment and decree
dated 28.04.1986 passed in civil appeal No.
39 of 1982, this second appeal is
dismissed. In the facts and circumstances,
there shall be no order as to costs. The
record of the trial court shall be returned.
----------
(2023) 7 ILRA 1137
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.07.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 792 of 1998

Deepak Joshi ...Petitioner
Versus
Asst. General Manager, Central Bank of
India ...Respondent

Counsel for the Petitioner:
Prashant
Chandra,
Chandra
Shekher
Pandey

Counsel for the Respondent:
N.K. Seth, C.S.C., Gopal K Srivastava

Central Bank of India, disciplinary proceedings,
natural
justice,
suspension,
removal
from
service, Bipartite Settlement - Article 14 - Article
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
311(2)
-
Central
Vigilance
Commission,
subsistence allowance, reinSt.ment, back wages
The petitioner, Deepak Joshi, a Clerk at the
Central Bank of India, was suspended on March
2, 1995, based on an anticipated complaint of
forging a Khazana deposit passbook. A chargesheet dated July 3, 1995, alleged seven acts of
misconduct, including non-deposit of funds and
fake entries. The petitioner denied the charges,
claiming the complaint was fabricated. The
enquiry, commencing July 18, 1995, and
concluding September 18, 1996, relied on exparte St.ments, denied cross-examination of
complainants, and ignored the bank's non-loss.
The petitioner was not paid full subsistence
allowance after one year, as mandated by the
Bipartite Settlement. The Enquiry Officer's
report, submitted ex-parte on December 17,
1996,
ignored
the
petitioner's
written
arguments. The disciplinary authority confirmed
removal from service on May 26, 1997, upheld
by the appellate authority on December 23,
1997. The petitioner challenged these orders,
alleging
violations
of
natural
justice,
discriminatory treatment, and non-compliance
with the Central Vigilance Commission's circular
dated July 3, 1984. The Court emphasized that
disciplinary proceedings are quasi-judicial and
cannot be conducted casually or with bias. The
Enquiry Officer must act impartially, ensuring
fairness is manifestly seen. The failure to
produce complainants or prove the complaint's
authenticity
undermines
the
enquiry's
foundation. The Court noted that the bank's
reliance on a fabricated complaint and unproven
confession reflected a predetermined intent to
punish the petitioner.

The writ petition was allowed.

Precedents Relied Upon:

1. A.K. Saxena Vs St. Bank of Patiala, (2016)
SCC OnLine SC 187.

2. Pawan Kumar Agarwala Vs St. Bank of India,
2015 SCC OnLine SC 1260

3. Kumaon Mandal Vikas Nigam Vs Girja
Shankar Pant, (2001) 1 SCC 182

4. St. Bank of India Vs T.J. Paul, (1999) 4 SCC
759
5. Capt M. Paul Anthony Vs Bharat Gold Mines
Ltd., (1999) 3 SCC 679

6. Kuldeep Singh Vs Commissioner of Police,
(1999) 2 SCC 10

7. P.C. Kacker Vs United Commercial Bank, 1999
(4) AWC 3263

8. R.C. Sood Vs High Court of Rajasthan, (1998)
5 SCC 493

9. St. Bank of India Vs D.C. Aggarwal, AIR 1993
SC 1197

10. Fakirbhai Fulabhai Solanki Vs Presiding
Officer, (1986) 3 SCC 131

11. Anil Kumar Vs Presiding Officer, (1984) 3
SCC 378

12. Pradeep Vs Manganese Ore (India) Ltd.,
(2002) 3 SCC 683

13. St. of U.P. Vs Saroj Kumar Sinha, (2010) 2
SCC 772

14. Roop Singh Negi Vs Punjab National Bank,
(2009) 2 SCC 570

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Shri Prashant Chandra,
learned Senior Advocate assisted by Ms.
Radhika Singh, learned counsel for the
petitioner and Shri Gopal K Srivastava,
learned counsel for the respondent-Bank.

2. By means of the present writ
petition, the petitioner has prayed for the
following reliefs:

(a) issue a writ of certiorari or a
writ, order or direction in the nature of
certiorari
quashing
the
orders
dated
26.5.1997 and 23.12.1997 passed by the
opposite parties nos.2 and 1 contained as
Annexure nos.1 and 2 respectively to the
writ petition.
7 All. Deepak Joshi Vs. Asst. General Manager, Central Bank of India
1139

(b) issue a writ of mandamus or a
writ, order or direction in the nature of
mandamus commanding the respondents
not to give effect to the orders dated
26.5.1997 and 23.12.1997 passed by the
opposite party nos.2 and 1 contained in
Annexure nos.1 and 2 respectively to the
writ petition.

(c) issue a writ of mandamus or a
writ, order or direction in the nature of
mandamus commanding the respondents to
allow the petitioner to resume his duties
forthwith with full back wages/ salary, and
to continue to pay salary to the petitioner
regularly each month as and when its falls
due.

(d) issue an appropriate writ,
order or direction requiring the opposite
parties to pay heavy cost to the petitioner
for
subjecting
him
to
unwarranted
harassment and mental anguish.

(e) issue any other appropriate
writ, order or direction which this Hon'ble
Court may deem just and necessary in the
circumstances of the case may also be
passed; and

(f) to allow the writ petition with
costs."

3. Facts of the case are that the
petitioner was employed as a Clerk with
the Central Bank of India and terms and
conditions of service of the petitioner
were governed by bipartite settlement as
amended from time to time. While posted
at
Vivekanand
Polyclinic
Branch,
Lucknow the petitioner was placed under
suspension vide an order dated 2.3.1995
on the complaint of a customer that he
had prepared a forged Khazana deposit
pass book to defraud the bank.On
18.5.1995 the opposite party no.2 issued
a memo to the petitioner in respect of 7
lapses
allegedly
committed
by
the
petitioner. The petitioner submitted his
reply to the said memo on 8.6.1995
denying the alleged lapses.

On 3.7.1995, the petitioner was
served with a charge-sheet for having
committed
certain
alleged
acts
of
misconduct as detailed therein. It is
pertinent to point out that a bare reading
of the charge-sheet would indicate that it
already recorded findings of guilt and
was not a memo of charge. The said
charge-sheet did not contain list of
documents/ witnesses and copies of prior
statements which is also in violation of
circular dated 23.8.1984 issued by the
Central Office of the Bank to all its Chief
Managers, which is based on directions
issued by the Government of India
through
the
Central
Vigilance
Commission vide letter dated 3.7.1984.

The enquiry commenced on
18.7.1995 and concluded on 18.9.1996.
The said enquiry is vitiated as the
statements of witnesses recorded exparte
were taken into account by the Enquiry
Officer, though despite specific demand
by the petitioner, he was refused cross
examination
of
the
said
witnesses.
Significantly, the so called complainants
informed the enquiry officer that they had
no complaint against the petitioner, but
instead of dropping the charges be
proceeded with the enquiry. The factum
of bank having suffered no losses has
been completely ignored while recording
the findings of the enquiry.

Although
the
report
of
the
vigilance implicated the petitioner along
with other officers as well but no
proceedings have been initiated against the
other officers and the petitioner has been
singled out and subjected to hostile
discrimination in contravention of Article
14 of the Constitution. The said officers are
Mrs R. Natrajan, Branch Manager, K.C.
Jain, Assistant Branch Manager, Prabhat
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
Kapoor,
Sub-Accountant,
Prabhakar
Chaturvedi,
Sub
Accountant,
Navin
Chaturvedi, Cash Officer and Gulab T.
Bhatia, Teller.

The petitioner had requested the
Enquiry Officer to send for certain
documents having material bearing on the
charges levelled against the petitioner but
the Enquiry Officer refused to call for those
documents and proceeded with the enquiry
in breach of principles of natural justice.
The petitioner was suspended on 2.3.1995.
He was paid subsistence allowance at the
rate of 50% of the salary. In accordance
with the provisions of bipartitle settlement
the petitioner was entitled to subsistence
allowance after a lapse of one year at the
rate of full pay. The petitioner was not
given the mandatory subsistence allowance
w.e.f. 2.3.1996 although the petitioner
consistently demanded the same and even
apprised the enquiry officer that failure to
pay the same would vitiate the entire
enquiry proceedings. Non-payment of full
subsistence allowance has handicapped the
petitioner to effectively defend the enquiry
rendering the entire enquiry proceedings
null and void.

On 18.9.1996, at the time of
conclusion of the enquiry the Enquiry
Officer granted 10 days time to the bank's
representative to file arguments with an
advance copy to the petitioner and 10 days
to the petitioner to file counter arguments.
However, the arguments on behalf of the
bank were filed after a lapse of 55 days.
The
petitioner's
representative
had
requested for time upto 20.12.1996 for
filing of counter arguments and the same
were actually filed on 20.12.1996 i.e.
within 37 days. The Enquiry Officer,
however, without awaiting the petitioner's
counter reply and even without considering
his request for extension of time, recorded
his finding on 17.12.1996.

On
20.12.1996,
when
the
petitioner filed his counter arguments
beyond the Enquiry Officer, he himself
acknowledged receipt of the same, but
mischievously did not disclosed that he had
already given his finding without awaiting
the petitioner's reply.

On 30.12.1996, the petitioner
received a memo dated 28.12.1996 issued
by the opposite party no.2 stating therein
that the Enquiry Officer had givenan
exparte report dated 17.12.1996 as the
petitioner failed to submit his written
arguments upto 17.12.1996. There was
absolutely no mention of the fact that the
petitioner's representative had prayed time
upto 20.12.1996 before which he had
received the arguments dated 20.12.1996
but did not deal with the same. The
disciplinary authority vide the said memo
dated 28.12.1996 expressed argument with
the findings of the Eqnuiry Officer and
directed to the petitioner to submit his
explanation
to
the
findings
dated
17.12.1996 and 21.12.1996.

Vide letters dated 6.1.1997 and
13.1.1997 the petitioner submitted his
explanations specifically complaining that
the Enquiry Officer had submitted his
report without considering the written
arguments of the petitioner, to which the
disciplinary authority had mechanically
nodded, reflecting of prejudice and bias.
On 24/25.2.1997 the opposite party no.2
issued proposed consolidated punishment
of removal from service under paragraph
19.6(b) of the bipartite settlement and
explanation was called from the petitioner
requiring of him to show cause why the
proposed punishment be not made final.

On 27.3.1997 and 21.4.1997, the
petitioner
replied
to
the
proposed
punishment inter alia pointing out that the
punishment of removal from service could
not be awarded to the petitioner under
7 All. Deepak Joshi Vs. Asst. General Manager, Central Bank of India
1141
Paragraph 19.6(b) as it was not applicable
at the time of alleged commission of the
charges and the removal from service was
introduced by the Vith bipartite settlement
which came into effect from 14.2.1995.
The petitioner had also prayed that in view
of the various irregularities pointed by him
the enquiry was apparently vitiated and at
best a fresh enquiry be conducted, adhering
to the official circulars and the principles of
natural justice. Nothing was heard by the
petitioner from the opposite party no.2 in
response to the above and no opportunity
was given to the petitioner to explain his
case.

Vide an order dated 26.5.1997,
the punishment of removal from service
was confirmed by the opposite party no.2.
The petitioner thereafter preferred an
appeal dated 26.6.1997 before the opposite
party
no.1
against
the
order
dated
26.5.1997 passed by opposite party no.2.
The order dated 23.12.1997 is illegal,
arbitrary and breft of any reasoning and is
vitiated for want of application of mind as
none of the grounds urged in appeal having
been dealt with. The order of removal from
service is violative of the provisions
contained
in
Article
20(1)
of
the
Constitution.

4. Learned counsel for the petitioner
submitted that the petitioner was employed
as a Clerk in Central Bank of India and the
terms and conditions of his services were/
are governed by Bipartite Settlement (BPS)
as amended from time to time. He next
submitted that while posted at Vivekanand
Polyclinic Branch, Lucknow the petitioner
was placed under suspension vide order
dated 2.3.1995 on an apprehension that
some complaint would be lodged against
him for preparing a forged Khajana deposit
pass book with an intention to defraud the
bank.

5. Learned counsel for the petitioner
next
submitted
that
disciplinary
proceedings were initiated on the basis of a
complaint dated 7.3.1995 written by the
Branch Manager (MW1) and said to have
been signed by the joint account holders
namely Mr. B.K. Upadhyay and Mr. P.K.
Upadhyay. Even before the complaint came
into existence, the suspension order was
passed on 2.3.1995.

6. Learned counsel for the petitioner
next submitted that the said complaint
dated
7.3.1995
was
refuted
by
the
complainants as having been lodged by
them. He next submitted that a charge-sheet
dated 3.7.1995 was issued to the petitioner
levelling 7 charges/ acts that the petitioner
allegedly received certain sums from the joint
account holders namely Mr. B.K. Upadhyay
and Mr. P.K. Upadhyay but he did not deposit
the same in the bank, made fake withdrawals
from their account, made fake entries in the
pass books etc. On the top of the last page of
the charge-sheet it is sum-upped that the
aforesaid acts of the petitioner are prejudicial
to the interest of the bank and constitute
misconduct within the meaning of Para19.5(j) of the Bipartite Settlement.

7. Learned counsel for the petitioner next
submitted that it was neither spelt out in the
charge sheet nor brought out in the enquiry or
in the order of punishment that what type of
prejudice to the interest of the bank or what
loss, if any, was caused to the Bank. The
account holder denied any such irregularity in
the account. Significantly no motive on the
part of the petitioner was established for being
involved in the said transaction which is a sine
qua non for invoking Para 19.5 (j) of the
Bipartite Settlement.

8. Learned counsel for the petitioner
next submitted that all the charges levelled
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
in the chargesheet dated 3.7.1995 are in
respect of only one account holder (joint
account holders and real brothers Mr. B.K.
Upadhyay and Mr. P.K. Upadhyay), and
relate to the period 4.10.1994 to 2.2.1995
when Vth Bipartite Settlement was in force.
It is reemphasized that the joint account
holders namely Mr. B.K. Upadhyay and
Mr. P.K. Upadhyay had denied making of
any complaint dated 7.3.1995. The alleged
complaint
dated
7.3.1995
is
in
the
handwriting of the then Branch Manager of
the Bank (M.W.1) and on a copy of the
complaint
dated
7.3.1995,
Mr.
B.K.
Upadhyay and Mr. P.K. Upadhyay both
have made an endorsement that they have
no concern with the complaint and they are
also not well versed with the language
(English) in which the complaint/ letter
dated 7.3.1995 had been made.

9. Learned counsel for the petitioner
submits
that
the
charge-sheet
dated
3.7.1995 did not contain list of documents
and witnesses in utter violation of circular
dated 23.8.1984 issued by the central office
of the bank to all its Chief Managers. He
next submits that the Government of India
had issued directions through Central
Vigilance Commission vide letter dated
3.7.1984 to all the nationalized banks and
in turn the Deputy General Manager of the
Central Bank of India had also issued a
circular dated 23.8.1984.

10. Learned counsel for the petitioner
next submitted that the order of suspension
was passed on 2.3.1995 not on the basis of
the alleged confessional statement but on
the basis of an anticipated complaint which
may be filed and the chargesheet was also
fomulated not on the basis of the so-called
confessional statement but on the basis of a
complaint filed on 7.3.1995 subsequent to
the order of suspension.

11. Learned counsel for the petitioner
next submitted that filing of the complaint
was thus preempted and in anticipation the
order of suspension was passed but the
alleged confessional statement was not
taken into consideration either while
formulating an opinion to suspend the
petitioner or while holding the enquiry
against him. The list of documents and
witnesses were supplied subsequent to
commencement of the enquiry and the socalled confessional statement has not been
referred to in the list of documents on
which reliance was proposed to be placed
in the enquiry.

12. Learned counsel for the petitioner
next submitted that the petitioner was
required to answer the charges formulated
against him in the charge-sheet and was
also encountered with the documents
mentioned in the list which as submitted
above
did
not
include
the
alleged
confessional statement. Primarily, three
witnesses on behalf of the management,
being the Branch Manager and two other
employees ( also to be involved along with
the
petitioner)
were
examined.
The
complainant on whose complaints the
enquiry had been set up, were not produced
despite repeated requests made by the
petitioner to produce them for verification
of the complaint s aid to have been made
by them and forming the basis of the
enquiry against the petitioner.

13. Learned counsel for the petitioner
next submitted that the Government of
India had issued directions through Central
Vigilance Commission vide letter dated
3.7.1984 to all the nationalized banks and
in turn the Deputy General Manager of the
Central Bank of India had also issued a
circular dated 23.8.1984 directing all
disciplinary Authorities to supply a list of
7 All. Deepak Joshi Vs. Asst. General Manager, Central Bank of India
1143
documents and witnesses along with the
chargesheet.
The
said
circular
also
indicates that failure to provide list of
documents and the witnesses on the basis
of which the charges are proposed to be
sustained amounts to failure to give a
reasonable opportunity to a charged officer
to defend himself.

14. Learned counsel for the petitioner
next submitted that the vigilance officer's
report was prepared on the basis of
previous statements of various persons
which were recorded behind the back of the
petitioner but none of the persons having
made the statements before the vigilance
officer have been summoned/ examined.
He
next
submitted
that
an
alleged
confessional statement recorded by the
vigilance officer was made voluntarily
which was witnessed by Mr. S.J. Mehrotra
(an officer of the bank). The petitioner had
requested for production of Mr. S.J.
Mehrotra but he was not produced.

15. Learned counsel for the petitioner
next
submitted
that
noticeably,
the
Vigilance Officer had held that 7 persons
including the Branch Manager, Shri R.
Natrajan (MW1), petitioner and five other
employees of the bank were guilty. While
no action was taken against others, only the
petitioner was singled out and made a scape
goat.

16. Learned counsel for the petitioner
next submits that there is no whisper about
any confession having been made before
the Vigilance Officer in the charge-sheet
dated 3.7.1995. Even the list of documents
and witnesses which were supplied during
the enquiry on 18.7.1995 do not contains
the Vigilance Officer's report and/or
confession or the name of vigilance officer
as witness.

17. Learned counsel for the petitioner
next submitted that admittedly the Bank
has suffered no loss. This is so because the
complaint itself was fabricated by the
Branch Manager. While passing the order
of
punishment
dated
26.5.1997,
the
opposite
party
no.2
with
meticulous
predetermination and bias to punish the
petitioner, has concluded that the petitioner
has tarnished the image of the bank in the
eyes of the customers. The said finding
recorded by the opposite parties is based on
no evidence and unsustainable. Punishment
of removal from service could not have
been awarded to the petitioner under Para
19.6(b)
of
the
Bipartite
Settlement
applicable at the relevant point of time.

18. Learned counsel for the petitioner
next submitted that the petitioner was
placed under suspension on 2.3.1995. As
per the Bipartite Settlement, the petitioner
was entitled to the subsistance allowance @
full
pay
w.e.f.
2.3.1996.
Since
the
petitioner was not paid the full subsistence
allowance as per the Bipartite Settlement,
therefore the enquiry held against him was
vitiated.

19. In support of his submissions,
learned counsel for the respondent has
placed
reliance
upon
the
following
judgments:

(i) A.K. Saxena v. State Bank of
Patiala and others reported in (2016)
SCC Online SC 187

(ii) Pawan Kumar Agarwala v.
General
Manager-II
&
Appointing
Authority, State bank of Indian and
others reported in 2015 SCC Online SC
1260

(iii) Kumaon Mandal Vikas
Nigam Ltd. v. Girja Shankar Pant and
others reported in (2001)1 SCC 182
1144 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) State bank of India and
others v. T.J. Paul reported in (1999)4
SCC 759

(v) Capt M. Paul Anthony v.
Bharat Gold Mines Ltd and another
reported in (1999)3 SCC 679

(vi)
Kuldeep
Singh
v.
Commissioner of Police and others
reported in (1999)2 SCC 10

(vii) P.C. Kacker v. Chairman
and
managing
Director,
United
Commercial bank and others reported in
1999(4) AWC 3263

(viii) R.C. Sood v. High Court
of judicature at Rajasthan and others
reported in (1998) 5 SCC 493

(ix) State Bank of India and
others v. D.C. Aggarwal and another
reported in AIR 1993 SC 1197

(x) Fakirbhai Fulabhai Solanki
v.
Presiding
Officer
and
another
reported in (1986) 3 SCC 131

(xi) Anil Kumar v. Presiding
Officer and others reported in (1984)3
SCC 378

(xii) Pradeep v. Manganese Ore
(India) Ltd. reported in (2002)3 SCC
683: 2021 SCC OnLine 1292 at page 683

(xiii) State of U.P. v. Saroj
Kumar sinha reported in (2010)2 SCC
772: (2010)1SCC (L&S) 673: 2010 SCC
OnLine SC 248 at page 782

(xiv) Roop singh Negi v. Punjab
National Bank reported in (2009)2 SCC
570: (2009)1 SCC (L&S) 398: 2008 SCC
OnLine SC 1947 at page 577

20. On the other hand, learned counsel
for the respondent-Bank submitted that all
the charges against petitioner were found to
be proved in departmental enquiry on
consideration
of
overwhelming
documentary and other evidence which
clearly proved against petitioner. He next
submitted that during the course of
departmental
proceeding/
enquiry,
the
petitioner was granted fair and reasonable
opportunity to defend himself throughout.

21.
Learned
counsel
for
the
respondent-Bank next submitted that on
21.04.1997, the petitioner appeared for
personal hearing though the representative
of his choice and there upon the arguments
on behalf of petitioner as well as the
written submission of petitioner, which
were earlier enclosed along with the
representation dated 27.03.1997, were
considered in order to appreciate the report
of the Enquiry Officer.

22.
Learned
counsel
for
the
respondent-Bank next submitted that the
enquiry Officer during the course of
Enquiry
has
repeatedly
advised
the
petitioner
to
cross
examine
three
Management
witnesses
but
the
the
petitioner did not cross examine the said
witnesses on his own and therefore it
follows that the petitioner never addressed
himself to the merits of the case but
continued to raise frivolous and untenable
objections
which
were
seemingly
procedural.

23.
Learned
counsel
for
the
respondent-Bank next submitted that a bare
perusal of the Appellate authority's order
dated 23.12.1997 shows that unassailable
findings have been recorded therein on the
basis of the entire record of the case and
after providing opportunity to the petitioner
to make his submissions of his case before
the appellate authority.

24.
Learned
counsel
for
the
respondent-Bank
next
submitted
that
removal of service of the petitioner is
further justified on the ground of complete
loss of confidence which is an integral part
7 All. Deepak Joshi Vs. Asst. General Manager, Central Bank of India
1145
of any service. He next submitted that the
petitioner was paid prescribed subsistence
allowance which is payable to a workman
employee of the bank in terms of Bipartite
settlement. In the settlement it was
provided that if after one year the Enquiry
is not delayed for the reasons attributable to
the workman or employee full pay and
allowances shall be paid. It is said that the
delay in departmental enquiry was on the
part of the petitioner and his representative,
therefore, the petitioner was not eligible for
full subsistence allowance.

25. In support of his submissions,
learned counsel for the respondent-Bank
placed
reliance
upon
the
following
judgments:

(i)
Tara
Chand
Vyas
v.
Chairman & Disciplinary Authority
reported (1997)4 SCC 565: 1997 SCC
(L&S) 1241 at page 567

(ii) L.K. Verma v. H.M.T. Ltd
& Anr decided on 31.1.2006 in Appeal
(civil) No.881 of 2006

(iii) Vice-Chairman , Kendriya
Vidyalaya
Sangathan
and
another
reported in (2004)6 Supreme Court
Cases 325

(iv) State Bank of India and
others v. Narendra Kumar Pandey
reported in (2013) 2 Supreme Court
Cases 745: (2013) 1 SCC (L&S) 459:
2013 SCC OnLine SC 54 at page 748

(v) State Bank of India v. Bela
Baghi reported in 2005(7)SCC 435

(vi)
Disciplinary
Authoritycum-Regional manager v. Nikunj Bihari
reported in 1996(9) SCC 69

(vii) A.P.S.R.T.C. v. Raghuda
Siva Sankar Prasad reported in (2007)1
SCC 22: (2007)1 SCC (L& S) 151: 2006
SCC OnLine SC 1170 at page 226

(viii) T.N.C.S. Corporation v.
K. Meera Bai reported in (2006) 2 SCC
255: 2006 (SCC) (L&S) 265: 2006 SCC
OnLine SC 109 at Page 267.

(ix) A. Sudhakar v. Postmaster
General reported in (2006)4 SCC 348:
2006 SCC (L&S) 817: 2006 SCC OnLine
335 at page 358.

(xi) Dy. Registrar, Cooperative
Societies
v.
Bunni
Lal
Chaurasia
reported in (2005) 11 SCC 570: 2006
SCC (L&S)399: 2005 SCC OnLine SC
687 at Page 570.

(x) State of U.P. v. Raj Kishore
Yadav reported in (2006) 5 SCC 673:
2006 SCC (L&S) 1185: 2006 SCC
OnLine SC 648 at page 674.

(xi) V. Ramana v. A.P.S.R.T.C.
reported in (2005)7 SCC 338: 2006 SCC
(L&S)69: 2005 SCC OnLine SC 1288 at
page 341.

(xii) Ganesh Santa Ram Sirur
v. State Bank of India reported in
(2005)1 SCC 13: 2006 SC (L&S) 537:
2004 SCC OnLine SC 1437 at page 20.

(xiii) Government of A.P. v.
Mohd. Nasrullah Khan reported in
(2006)2 SCC 373: 2006 SCC (L&S) 316:
2006 SCC OnLine SC 135 at page 378.

26. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record as well
as law-report cited by learned counsel for
the parties.

27.
To
resolve
the
controversy
involved in the present writ petition, the
operative portions of the judgment relied
upon by learned counsel for the parties are
extracted hereinbelow

Judgements relied upon by learned
counsel for the petitioner:
1146 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) A.K. Saxena (supra):-

2. On the basis of the report of
the enquiry the appellant was dismissed
from service on 2-7-1993. The appellant
preferred a departmental appeal which was
rejected. Since the Labour Court was of the
view that enquiry conducted by the
Management was not fair and proper, by
final award dated 17-12-1997 it was held
that the termination of the appellant was
illegal and there was direction for his
reinstatement with back wages. The award
was challenged by the respondent Bank
before the High Court. The High Court
allowed [State Bank of Patiala v. Union of
India, 2011 SCC OnLine All 380 : (2011)
129 FLR 594] the petition and thus, the
appellant is before this Court. When the
matter was pending before the High Court
pursuant to interim order passed by the
Court, we are informed that it is not
disputed that the appellant has been paid
an amount of Rs 14,05,417 towards back
wages and an amount of Rs 9,34,573
towards Section 17-B of the Industrial
Disputes Act, 1947.

5. In the above factual matrix, we
put query to the learned counsel for the
Bank as to how the appellant alone is
discriminated and dismissed from service.
The learned counsel has invited our
attention extensively to the evidence that
the appellant was the kingpin of the whole
transaction, being a Head Cashier, the
other three have only obeyed his request
for consequential steps. We find it difficult
to appreciate the submission in view of the
factual position as noted above.

6. In the above circumstances, we
are of the view that the interest of justice
would be advanced in case the punishment
imposed on the appellant is suitably
altered. The appellant has attained the age
of superannuation and that he has received
hefty amounts from the Bank while
remaining out of service after 1993. Hence,
it is ordered that the appellant shall be
treated to have been retired from service on
completion of 15 years of service and
accordingly, his retiral benefits shall be
settled for the purpose of future pension
from the month of February 2016. Since he
has already received wages in between,
there shall be no arrears of pension.

(ii) Pawan Kumar Agarwala
(supra):_

18. Further, it is brought to our
notice by Mr Vijay Hansaria, learned
Senior Counsel for the appellant that the
loan amount lent by Mr Pradeep Kumar
Das, the Manager of Hallydayganj Branch,
the same has been cleared by Mr Tapan
Kumar Sangma with interest by paying Rs
1,61,000. The overdraft is beyond the
permissible limit is held to be not proved.
The finding of the learned Single Judge
while examining the entire enquiry report,
on which strong reliance is placed by the
respondent Bank, the learned Single Judge
in exercise of his extraordinary and
original jurisdiction examined the case on
merits and referred to Rule 68(1)(IX)(a) of
the State Bank of India Service Rules,
wherein it mandates the disciplinary
authority to furnish the delinquent the list
of documents through which the charges
are proposed to be proved. It is the case of
the appellant that such a list of witnesses
and
copies
of
documents
were
not
furnished
either
by
the
disciplinary
authority or the enquiry officer which are
vital aspects of the case, based on which
the finding is recorded on the charges by
the enquiry officer, referred to supra,
holding that the same are proved against
the appellant.

(iii) Kumaon Mandal Vikas
Nigam (supra):-
7 All. Deepak Joshi Vs. Asst. General Manager, Central Bank of India
1147

22. The sixty-five page report has
been sent to the Managing Director of the
Nigam against the petitioner recording
therein that the charges against him stand
proved - what is the basis? Was the
enquiry officer justified in coming to such a
conclusion on the basis of the charge-sheet
only? The answer cannot possibly be in the
affirmative; if the records have been
considered, the immediate necessity would
be to consider as to who is the person who
has produced the same and the next issue
could be as regards the nature of the
records - unfortunately there is not a
whisper in the rather longish report in that
regard. Where is the presenting officer?
Where is the notice fixing the date of
hearing? Where is the list of witnesses?
What has happened to the defence
witnesses? All these questions arise but
unfortunately no answer is to be found in
the rather longish report. But if one does
not have it - can it be termed to be in
consonance with the concept of justice or
the
same
tantamounts
to
a
total
miscarriage of justice. The High Court
answers it as miscarriage of justice and we
do lend our concurrence therewith. The
whole issue has been dealt with in such a
way that it cannot but be termed to be
totally devoid of any justifiable reason and
in this context a decision of the King's
Bench Division in the case of Denby
(William) and Sons Ltd. v. Minister of
Health [(1936) 1 KB 337 : 105 LJKB 134 :
154 LT 180] may be considered. Swift, J.
while dealing with the administrative duties
of the Minister has the following to state:

"I do not think that it is right to
say that the Minister of Health or any other
officer of the State who has to administer
an Act of Parliament is a judicial officer.
He is an administrative officer, carrying
out the duties of an administrative office,
and
administering
the
provisions
of
particular Acts of Parliament. From time to
time, in the course of administrative duties,
he has to perform acts which require him to
interfere with the rights and property of
individuals, and in doing that the courts
have said that he must act fairly and
reasonably;
not
capriciously,
but
in
accordance with the ordinary dictates of
justice. The performance of those duties
entails the exercise of the Minister's
discretion, and I think what was said by
Lord Halsbury in Sharp v. Wakefield [1891
AC 173 : 60 LJ MC 73 : 64 LT 180 (HL)]
(AC at p. 179) is important to consider with
reference to the exercise of such discretion.
He there said:

' "Discretion" means when it is
said that something is to be done within the
discretion of the authorities that that
something is to be done according to the
rules of reason and justice, not according
to private opinion: Rooke case [(1598) 5
Co Rep 99b, 100a] ; according to law, and
not humour. It is to be, not arbitrary,
vague, and fanciful, but legal and regular.
And it must be exercised within the limit, to
which an honest man competent to the
discharge of his office ought to confine
himself.' "

26. "Bias" in common English
parlance
means
and
implies
-
predisposition or prejudice. The Managing
Director admittedly, was not well disposed
of towards the respondent herein by reason
wherefor, the respondent was denuded of
the
financial
power
as
also
the
administrative
management
of
the
department. It is the selfsame Managing
Director who levels thirteen charges
against the respondent and is the person
who appoints the enquiry officer, but
affords a pretended hearing himself late in
the
afternoon
on
26-11-1993
and
communicates the order of termination
consisting of eighteen pages by early
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
evening, the chain is complete: prejudice
apparent: bias as stated stands proved.

(iv) State Bank of India (supra):-

18. But this does not conclude the
matter. The learned Senior Counsel for the
respondent, Shri P.P. Rao is right in
contending that the appellate authority,
once it came to the conclusion that the
punishment of dismissal was not warranted
in the facts of the case, it could not have
awarded the punishment of "removal"
which was not one of the enumerated
penalties under para 22(v) of the rules. In
fact, the learned Single Judge also adverted
to this aspect. If one reads the order of the
appellate authority, it is clear that the said
authority went by Rule 49(g) of the State
Bank of India (Supervising Staff) Service
Rules which admittedly, is not applicable to
charges pertaining to the period 1977-81
when the rules of Cochin Bank applied. The
amalgamation of Bank of Cochin with State
Bank of India took place only on 27-41985. It may be that the rules of the State
Bank of India provided for a punishment of
removal, but in the rules relating to
penalties for "major misconduct" in para
22(v) of the rules applicable to the
employees of Bank of Cochin, removal is
not one of the enumerated punishments
which
could
be
imposed.
The
said
punishment is not the same thing as
"condoning
misconduct
and
merely
discharging from service" as provided in
para 22(v)(e) of the said rules.

19. Learned Senior Counsel for
the appellants, Shri T.R. Andhyarujina
tried to submit that if the appellate
authority decided not to dismiss the
respondent, it still had inherent power to
award a punishment of "removal", which
was lesser in severity. Learned Senior
Counsel contended that the discretion of
the
authorities
to
award
such
an
appropriate punishment could not be
interfered with in view of the decision of
this Court in Union of India v. G.
Ganayutham [(1997) 7 SCC 463 : 1997
SCC (L&S) 1806] . In our view, this
decision is not applicable to the facts of the
case. Here the Court is not interfering with
the punishment awarded by the employer
on the ground that in the opinion of the
Court
the
punishment
awarded
is
disproportionate to the gravity of the
misconduct. Here, the gradation of the
punishments has been fixed by the rules
themselves, namely, the rules of Bank of
Cochin and the Court is merely insisting
that the authority is confined to the limits of
its discretion as restricted by the rules.
Inasmuch as the rules of Bank of Cochin
have enumerated and listed out the
punishments for "major misconduct", we
are of the view that the punishment of
"removal" could not have been imposed by
the appellate authority and all that was
permissible for the Bank was to confine
itself to one or the other punishment for
major misconduct enumerated in para
22(v) of the rules, other than dismissal
without notice. This conclusion of ours also
requires the setting aside of the punishment
of "removal" that was awarded by the
appellate
authority.
Now
the
other
punishments enumerated under para 22(v)
are "warning or censure or adverse
remark being entered, or fine, or stoppage
of increments/reduction of basic pay or to
condone
the
misconduct
and
merely
discharge from service".