# Shiv Nath Singh v. Union of India & Ors

- **Citation:** (2021) 11 ILRA 698
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-05
- **Case number:** Writ A No. 54836 of 2017
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-nath-singh-v-union-of-india-ors-46644
- **Pages:** 12

## Headnote

A. Service Law - Dismissal - Kashi Gomti
Sanyukt
Gramin
Bank
(Officers
and
Employees)
Service
Regulations,
2010
-
Regulations 18, 20, 27 & 42 - A specific
transaction may give rise to different nature of
misconduct, for different officials, depending upon
their duties and nature of responsibility. Even
imposition of separate penalty, arising out of
similar charge can also be justified depending
upon nature of duties and responsibilities to
be performed. If the nature of charges were
not exactly identical or substantially similar
then no fault can be found with imposition of
separate penalty. (Para 13)
Kashi Gomti Sanyukt Gramin Bank (Officers
and Employees) Service Regulations, 2010:
Regulations 42 - In view of the fact that charges of
misconduct attributed to petitioner are distinct and
much more serious, holding of a separate enquiry
against him would not be bad. Even otherwise,
Service Regulations of 2010 merely enables holding of
common enquiry on the basis of an order passed by
the Chairman and is neither mandatory nor can be
claimed as a matter of right. (Para 18)

As per Regulation 42, holding of common enquiry is
left to the discretion of the Chairman, if he is of the
opinion that having regard to the facts and
circumstances of the case where competent authority
in respect of both the officer and employee are not
the same may also direct the competent authority in
respect of the officer to conduct enquiry against him
involved in the matter. The provision doesn't
suggest that it is mandatory or obligatory for
the disciplinary authority or the enquiry officer
to necessarily conduct a common enquiry just
because transactions constituting substance of
charge is one of the same. It is always open for
the employer to determine whether a common
enquiry ought to be conducted in the matter or
not. (Para 19)

The
plea
of
prejudice
will
have
to
be
necessarily established by the employee if he
has to successfully contend that non holding of
common enquiry has affected outcome of
disciplinary proceedings. No such prejudice is
shown to have occurred in the facts of the present
case. Substance of charge otherwise was distinct.
(Para 19)

B. No violation of Principles of Natural Justice -
In the present case the disciplinary authority appears
to have taken note of the findings returned by the
Enquiry Officer with an intent to form his prima facie
satisfaction for issuing show cause notice while
specifying the proposed punishment. The object of
notice apparently was to acquaint the delinquent
employee with the findings of the Enquiry Officer so
that he may submit his explanation considering the
fact that the charges were serious against bank
employee. The course adopted in that regard cannot
be said to be violative of principles of natural justice.
It is held that the show cause notice is not
vitiated for the reasons urged by the petitioner.
(Para 25)
11 All. Shiv Nath Singh Vs. Union of India & Ors.
699
Though it is urged that enquiry is not fair and proper
but no specific ground is substantiated to support the
petitioner's challenge in that regard. A detailed
departmental enquiry has been conducted and
petitioner has been furnished all materials that have
relied upon against him and that he has been given
right to cross-examine the witnesses. The finding
returned by the Enquiry Officer on the basis of
materials placed on record against the petitioner
otherwise is not shown to be perverse or erroneous.
(Para 20)

Sufficiency or otherwise of the evidence need
not be commented upon by this Court once
material in respect of the conclusions drawn is
otherwise reflected on record. (Para 14)

The test to withstand enquiry is preponderance of
probability on the admitted material placed on record.
On such yardstick if the facts of the present case are
examined it is abundantly clear that enquiry
conducted against the petitioner is fair and
transparent and is in accordance with the
principles of natu

## Text

_Characters 0–39,704 of 45,961. This is a partial read: ask again with offset=39704 for what follows._

698 INDIAN LAW REPORTS ALLAHABAD SERIES
application of mind in filing the present appeal
with such an inordinate delay of 15 years.

9. Compliance report about recovery of the
cost shall be filed before the Registrar General
of this Court within a period of six months. In
case of failure, the matter shall be listed before
this Court.

10. The appeal, along with delay
condonation application, are dismissed in the
manner hereinabove.
----------
(2021)11ILR A698
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 54836 of 2017

Shiv Nath Singh ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dinesh Kumar Yadav, Sri Ashok Khare, Sri
Rajeshwar Prasad Sinha, Sri Siddharth Khare

Counsel for the Respondents:
A.S.G.I., Sri Gyan Prakash Shrivastava

A. Service Law - Dismissal - Kashi Gomti
Sanyukt
Gramin
Bank
(Officers
and
Employees)
Service
Regulations,
2010
-
Regulations 18, 20, 27 & 42 - A specific
transaction may give rise to different nature of
misconduct, for different officials, depending upon
their duties and nature of responsibility. Even
imposition of separate penalty, arising out of
similar charge can also be justified depending
upon nature of duties and responsibilities to
be performed. If the nature of charges were
not exactly identical or substantially similar
then no fault can be found with imposition of
separate penalty. (Para 13)
Kashi Gomti Sanyukt Gramin Bank (Officers
and Employees) Service Regulations, 2010:
Regulations 42 - In view of the fact that charges of
misconduct attributed to petitioner are distinct and
much more serious, holding of a separate enquiry
against him would not be bad. Even otherwise,
Service Regulations of 2010 merely enables holding of
common enquiry on the basis of an order passed by
the Chairman and is neither mandatory nor can be
claimed as a matter of right. (Para 18)

As per Regulation 42, holding of common enquiry is
left to the discretion of the Chairman, if he is of the
opinion that having regard to the facts and
circumstances of the case where competent authority
in respect of both the officer and employee are not
the same may also direct the competent authority in
respect of the officer to conduct enquiry against him
involved in the matter. The provision doesn't
suggest that it is mandatory or obligatory for
the disciplinary authority or the enquiry officer
to necessarily conduct a common enquiry just
because transactions constituting substance of
charge is one of the same. It is always open for
the employer to determine whether a common
enquiry ought to be conducted in the matter or
not. (Para 19)

The
plea
of
prejudice
will
have
to
be
necessarily established by the employee if he
has to successfully contend that non holding of
common enquiry has affected outcome of
disciplinary proceedings. No such prejudice is
shown to have occurred in the facts of the present
case. Substance of charge otherwise was distinct.
(Para 19)

B. No violation of Principles of Natural Justice -
In the present case the disciplinary authority appears
to have taken note of the findings returned by the
Enquiry Officer with an intent to form his prima facie
satisfaction for issuing show cause notice while
specifying the proposed punishment. The object of
notice apparently was to acquaint the delinquent
employee with the findings of the Enquiry Officer so
that he may submit his explanation considering the
fact that the charges were serious against bank
employee. The course adopted in that regard cannot
be said to be violative of principles of natural justice.
It is held that the show cause notice is not
vitiated for the reasons urged by the petitioner.
(Para 25)
11 All. Shiv Nath Singh Vs. Union of India & Ors.
699
Though it is urged that enquiry is not fair and proper
but no specific ground is substantiated to support the
petitioner's challenge in that regard. A detailed
departmental enquiry has been conducted and
petitioner has been furnished all materials that have
relied upon against him and that he has been given
right to cross-examine the witnesses. The finding
returned by the Enquiry Officer on the basis of
materials placed on record against the petitioner
otherwise is not shown to be perverse or erroneous.
(Para 20)

Sufficiency or otherwise of the evidence need
not be commented upon by this Court once
material in respect of the conclusions drawn is
otherwise reflected on record. (Para 14)

The test to withstand enquiry is preponderance of
probability on the admitted material placed on record.
On such yardstick if the facts of the present case are
examined it is abundantly clear that enquiry
conducted against the petitioner is fair and
transparent and is in accordance with the
principles of natural justice wherein the
charges are found proved. (Para 20)

C. Proportionality of punishment - Law is
settled
that
distinct
allegations
against
employee charged in the same transaction
would be justified being based on a valid
classification and no perversity or arbitrariness
can be alleged in the process. Proportionality of
punishment imposed as also the plea of discrimination
based upon the punishment awarded to other official
(Branch Manager), who has been let off with lesser
punishment. The charge on part of the Branch
Manager is clearly distinct from such serious charges
levelled against the petitioner. There was no
allegation of fraudulent withdrawal of money from
other account holders. It is settled that in respect
of same transaction distinct punishment can
always be imposed upon delinquent employee
based upon the nature of guilt attributed and
established on part of the employee concerned.
(Para 26)

Writ petition dismissed. (E-4)

Precedent followed:

1. Neeraj Kumar Dixit Vs U.O.I. & ors., 2014 (3) ADJ
586 (Para 13)

2. Tara Chand Vyas Vs Chairman and Disciplinary
Authority, (1997) 4 SCC 565 (Para 15)

3.
Chairman
and
Managing
Director,
United
Commercial Bank & ors.Vs P.C. Kakkar, (2003) 4 SCC
364 (Para 16)

4. UCO Bank & anr. Vs Rajinder Lal, (2007) 6 SCC 694
(Para 17)

5. Bolaram Bardoloi Vs Lakhimi Gaolia Bank & ors.,
(2021) 3 SCC 806 (Para 23)

6. Chief General Manager, State of India Vs V.P.
Srivastava, Civil Appeal No. 4755 of 2021, decided on
12.08.2021 (Para 24)

Precedent distinguished:

1. H.P. State Electricity Board Limited Vs Mahesh
Dahiya, (2017) 1 SCC 768 (Para 8 (iv))

2. Smt. Manjesh Kumari Vs State of U.P. & ors.being,
Writ Petition No. 16829 of 2018, decided on
03.09.2021 (Para 22)

Present petition challenges order of dismissal
dated 09.06.2017.

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Petitioner was employed as Office
Assistant in Kashi Gomti Sanyukt Gramin Bank,
Branch Gohana, District Mau. On 25.04.2014 he
was placed under suspension alongwith one
Chandra Bhanu Singh, Assistant Manager,
posted in the same branch. Services of petitioner
were governed by Kashi Gomti Sanyukt Gramin
Bank
(Officers
and
Employees)
Service
Regulations, 2010. A charge sheet was issued to
petitioner on 07.11.2014 levelling following
charges:

"1. वनष्ठापूिदक अपने कतदव्य ों एिों र्ावयत् ों
का वनिदहन न करना।

2. बैंक ग्राहक ों के िात ों में वनजी लाभ एिों
िािा के अन्य कावमदक ों क लाभ पहुूँचाने के उद्देश्य
से र् िार्डी एिों कपटपूणद प्रिृवष्टयॉ करना।
700 INDIAN LAW REPORTS ALLAHABAD SERIES

3. बैंक के ग्राहक ों एिों बैंक के विश्वास क
भोंग करते हुए बैंक के ऊपर जानबूझकर आवथदक
क्षवत का भार िडा करना।

4. कािी ग मती सोंयुक्त ग्रामीण बैंक
(अवर्कारी एिों कमदचारी) सेिा विवनयम 2010 के
विवनयम 18, 20 एिों 27 का उल्लोंघन करना।

5. बैंक कमदचारी ह ने जैसा कायद न
करना।"

2. Particulars of charges were enclosed
with the charge sheet, according to which,
petitioner unauthorizedly withdrew a sum of
Rs.2,25,000/-
from
saving
bank
account
no.201400262, belonging to Lavtu Ram, on
24.01.2014 and again on 28.01.2014 a sum of
Rs.1,36,789/- was transferred from his account
to the account of Chandra Bhanu Singh, who
was working as Assistant Manager, in his COD
Account
No.4020020112.
This
was
done
without knowledge and consent of account
holder. After complaint of account holder Lavtu
Ram the petitioner withdrew a sum of
Rs.3,62,000/- from account of one Jai Karan
Ram bearing no.201400188 and deposited it in
the account of Lavtu Ram on 07.02.2014. It was
found that in all three transactions the transfer
vouchers, signatures of account holder and
details varied. The account holders Lavtu Ram
and Jai Karan Ram disputed their signatures on
the documents used for such transfer of funds.
The act of withdrawing Rs.3,62,000/- from
account of Jai Karan Ram was a fraudulent
transaction performed by the petitioner for
causing loss to the bank and also breached the
trust reposed by account holders in the bank and
its authorities. It was also found that the amounts
deposited in the account of Assistant Manager
Chandra Bhanu Singh was diverted in his
provident fund loan account. These transactions
were allegedly performed by the petitioner.

3. The second incident/transaction was of
withdrawing Rs.2,05,000/- on 04.02.2014 and
Rs.27,000/- on 06.02.2014 from the accounts of
Jai Prakash Yadav and Imtiyaz Ahmad and
depositing it in the account of petitioner without
consent and knowledge of the account holder.
These transactions were absolutely fraudulent,
without consent of the account holders and
allegedly breached the trust imposed by the bank
in the petitioner.

4. The third charge was of unauthorized
withdrawal of Rs.604 expenditure towards news
account.

5. The charges were denied by the
petitioner and a detailed enquiry followed which
has culminated in submission of enquiry report
dated 30.09.2015, contained in Annexure-17 to
the writ petition.

6. On the first charge the Enquiry Officer
held that transfer of funds from the saving bank
account of account holder without his consent
and knowledge, and transferring it to the account
of Chandra Bhanu Singh is clearly a deliberate
and intentional act contrary to the service rules
and the specific instructions of the bank, and is
wholly unbecoming of a bank employee in view
of the regulations 18, 20 and 27 of the Service
Regulations of 2010. The second charge of
transferring funds in the account of petitioner
himself, in similar fashion, is also found
violative of regulation 27. The third charge was
also found proved. In view of such conclusions
drawn the enquiry report was forwarded to the
disciplinary authority by the Enquiry Officer.

7. A show cause notice thereafter was
issued to petitioner on 10.03.2016. The
disciplinary authority after examining the
charges and evidences led in the enquiry prima
facie found the charges to be proved. The show
cause notice also indicated the punishment
proposed to be given to the petitioner. A reply to
such notice was submitted on 11.04.2016. The
disciplinary authority, however, did not find
substance in the defence of the petitioner to the
11 All. Shiv Nath Singh Vs. Union of India & Ors.
701
show cause notice and vide order impugned
dated 09.06.2017 dismissed the petitioner from
service. Aggrieved by the order of dismissal the
petitioner is before this Court.

8. Order of dismissal is assailed on the
following grounds:

(i) It is urged that enquiry was initiated
in respect of the same transaction against three
persons, namely, the petitioner, Chandra Bhanu
Singh and Brijendra Kumar Singh, Branch
Manager, but instead of holding a composite
enquiry separate enquiries were conducted
which has resulted in distinct punishment being
offered to the officers charged of misconduct in
respect of the same transaction.

(ii) It is also contended that enquiry
proceedings were not conducted in a fair and
transparent manner, particularly on account of
distinct enquiries being conducted against
officers charged of same misconduct and the
account holders were also not produced in
evidence.

(iii) It is next contended that show
cause notice issued to petitioner on 11.03.2016
was a farce as the disciplinary authority had
already made up its mind to dismiss the
petitioner even before issuing the show cause
notice.

(iv) A grievance is also raised about
denial of opportunity to make representation
against the findings of Enquiry Officer which
has resulted in denial of fair opportunity to the
petitioner. Reliance is placed upon para 26 of the
judgment of Supreme Court in the case of H P
State Electricity Board Limited vs. Mahesh
Dahiya, (2017) 1 SCC 768.

(v) It is lastly urged that punishment
imposed upon the petitioner is excessive and is
also discriminatory inasmuch as the Branch
Manager Brijendra Kumar Singh for his
misconduct based on same transaction has been
awarded punishment of reduction by one stage
in time scale of pay, with cumulative effect,
while petitioner has been dismissed from
service.

9. A counter affidavit has been filed on
behalf of the respondent Bank disputing the
assertions made in the writ petition. It is
submitted on behalf of the respondents that a fair
and transparent process was evolved for enquiry
and that holding of separate enquiry has neither
vitiated the enquiry proceedings nor any
prejudice was otherwise caused to the petitioner
for such reasons. It is also urged that
transactions may have been same but the charges
against the petitioner are separate and distinct
from the charges levelled against the Branch
Manager, which is essentially in nature of
supervisory lapse whereas petitioner's act is
deliberate and intentional with an intent to
defraud the bank/account holders and to derive
unfair advantage. It is also pointed out that
Chandra Bhanu Singh, who was also a
beneficiary of transaction has also been
dismissed from service. It is also argued that
considering seriousness of charges levelled
against the petitioner as also the materials placed
before the enquiry to prove petitioner's guilt no
interference in the writ petition is warranted.

10. I have heard Sri Ashok Khare, learned
Senior Counsel assisted by Sri D. K. Yadav for
the petitioner, Sri Gyan Prakash Srivastava,
learned counsel for the respondent Bank and
have perused the materials brought on record.

11. So far as the first submission advanced
on behalf of the petitioner is concerned, records
clearly reveal that the transaction giving rise to
the disciplinary proceedings against three
officers/employees of the bank were same, but
the charges were distinct. The charge sheet
issued to Chandra Bhanu Singh has not been
placed on record but it is admitted that he was
also dismissed from Service. The petitioner has
essentially sought parity with Brijendra Kumar
Singh and his charge sheet has also been brought
702 INDIAN LAW REPORTS ALLAHABAD SERIES
on record vide counter affidavit in which
particulars of incident is the same. However, the
charges against Brijendra Kumar Singh are
clearly distinct as would be apparent from
comparison of Annexure-2 to the writ petition
and Annexure-2 to the counter affidavit. Though
the same transactions formed the basis of
disciplinary action against both but the charges
against Branch Manager were clearly distinct.
The specific charges against the Branch
Manager were as under:

"1. वनष्ठापूिदक अपने कतदव्य ों एिों र्ावयत् ों
का वनिदहन न करना।

2. कािी ग मती सोंयुत ग्रामीण बैंक
(अवर्कारी एिों कमदचारी) सेिा विवनयम 2010 के
विवनयम 18, 20 एिों 27 का उल्लोंघन करना।

3. बैंक अवर्कारी ह ने जैसा कायद न
करना।"

12. There was no charges against Brijendra
Kumar Singh, Branch Manager, of fraudulent
conduct by wrongfully withdrawing amounts
from the saving accounts of account holders and
crediting it in the account of petitioner and
Chandra Bhanu Singh. The charges of loss of
confidence for causing financial loss to the bank
is also not the charge against the Branch
Manager. The petitioner cannot assert that
merely because transaction giving rise to distinct
charge was the same, therefore, non-holding of
composite enquiry has caused any prejudice to
the petitioner. The object of disciplinary enquiry
is to ascertain facts with an object to determine
whether charges against delinquent employee
are proved or not? Procedure for enquiry is by
now well established to enable the delinquent
employee to defend himself in a fair and
transparent
enquiry
proceedings.
Unless
delinquent employee can demonstrate that
holding of separate enquiry has actually
prejudiced the employee on account of reasons
as contradictory conclusions etc. on the same
issue or any other specific prejudice is shown
the holding of separate enquiries in itself may
not be bad.

13. A Division Bench of this Court in
Neeraj Kumar Dixit vs. Union of India and
others, 2014 (3) ADJ 586 had occasion to
examine a similar issue and proceeded to hold as
under in paragraph nos.16 to 19 of the judgment:

"16. In light of the aforesaid facts, we
have examined the next contention of the
petitioner that holding of separate enquiry has
prejudiced him. It is admitted that the charge
levelled against the petitioner, of unauthorizedly
sanctioning overdraft, without any existing
arrangement
and
approval
of
competent
authority, is specific to petitioner himself. This
charge is not levied against any other officer.
The petitioner is a field officer and the nature of
duties assigned to him is separate and distinct.
The other officers, senior to the petitioner,
essentially had supervisory functions to perform
and the fact of purchase of bills had been clearly
intimated by them to the higher authorities. In
such circumstances, the petitioner cannot claim
that he is similarly placed, merely because the
transaction, giving rise to the misconduct, is the
same.

17. A specific transaction may give
rise to different nature of misconduct, for
different officials, depending upon their duties
and nature of responsibility. Even imposition of
separate penalty, arising out of similar charge
can also be justified depending upon nature of
duties and responsibilities to be performed. The
Apex Court in Akhilesh Kumar Singh vs. State
of Jharkhand reported in (2008) 2 SCC 74
observed that quantum of punishment imposed
on a delinquent employee by the appointing
authority, however, depends upon several
factors. Conduct of delinquent officer as also the
nature of charges, play a vital role in this behalf.

18. In a subsequent decision of the
Apex Court in Administrator, Union Territory of
Dadra and Nagar Haveli vs. G.M. Lad reported
11 All. Shiv Nath Singh Vs. Union of India & Ors.
703
in (2010) 5 SCC 775, which related to levy of
different punishments against different officers
subjected to a joint enquiry was also held to be
valid. It was held that if the nature of charges
were not exactly identical or substantially
similar then no fault can be found with
imposition of separate penalty.

19. Since in the present case, the
nature of duty of the petitioner as well as
charges levelled against him is different,
therefore, the petitioner cannot claim parity with
others. We, therefore, cannot accept the
argument of Sri Khare that petitioner was
discriminated on account of imposition of
penalty of dismissal."

14. In the facts and circumstances of the
present case also a detailed departmental enquiry
has been conducted against the petitioner in
which all materials in support of the charges
levelled against him has been furnished to him
and he has been given the right to cross-examine
the witnesses. The allegation that saving bank
accounts of other persons were operated and
funds were diverted to the account of petitioner
and a fellow bank employee is an extremely
serious charge, which are found proved against
the
petitioner.
The
Enquiry
Officer
has
categorically found that without consent and
knowledge of account holder Lavtu Ram the
petitioner credited amount in the account of
fellow bank employee Chandra Bhanu Singh
and that upon objection raised by Lavtu Ram in
respect of such fraudulent transaction the
petitioner debited account of one Jai Karan Ram
on 07.02.2014 again without his consent and
knowledge. The account holders Lavtu Ram and
Jai Karan Ram have denied their signatures on
debit vouchers of the respective account.
Signatures on the debit vouchers have also not
matched with admitted signatures of the account
holders. The diversion of funds for adjusting
provident fund loan account of Chandra Bhanu
Singh and another employee resulting in
customers being defrauded of an amount of
Rs.3,62,000/-
without
their
consent
and
knowledge is found proved. The conclusions
drawn by the Enquiry Officer are clearly shown
to be based on materials on record. Sufficiency
or otherwise of the evidence need not be
commented upon by this Court once material in
respect of the conclusions drawn is otherwise
reflected on record. Petitioner's reply that
postings were done on the asking of Chandra
Bhanu Singh has been disbelieved for valid
reasons. The further defence that petitioner was
not aware of the incorrect description in the
transfer vouchers has also been disbelieved with
a categorical finding returned that posting in ME
2/24-27 was by the petitioner himself.

15. In Tara Chand Vyas v. Chairman and
Disciplinary Authority, (1997) 4 SCC 565, the
Supreme Court observed as under in para 3:

"3. Shri B.D. Sharma, learned counsel
for the petitioner, contends that for proof of the
charges none of the witnesses was examined nor
any opportunity was given to cross-examine
them and the petitioner has disputed his liability.
As a consequence, the entire enquiry was
vitiated by manifest error apparent on the face of
the record. We find no force in the contention.
The thrust of the imputation of charges was that
he had not discharged his duty as a responsible
officer to safeguard the interest of the Bank by
securing adequate security before the grant of
the loans to the dealers and had not ensured
supply of goodsto the loanees. It is based upon
the documentary evidence which has already
been part of the record and copies thereof had
been supplied to the petitioner. Under those
circumstances, we do not think that there is any
manifest error apparent on the face of the record
warranting interference.------"

 (Emphasis supplied)

16. In Chairman & Managing Director,
United Commercial Bank and others vs. P. C.
Kakkar, (2003) 4 SCC 364, the standard of
704 INDIAN LAW REPORTS ALLAHABAD SERIES
honesty and integrity required from a bank
officer has been emphasized in para 14, which is
reproduced hereinafter:

"14. A bank officer is required to
exercise higher standards of honesty and
integrity. He deals with the money of the
depositors
and
the
customers.
Every
officer/employee of the bank is required to take
all possible steps to protect the interests of the
bank and to discharge his duties with utmost
integrity, honesty, devotion and diligence and to
do nothing which is unbecoming of a bank
officer. Good conduct and discipline are
inseparable from the functioning of every
officer/employee of the bank. As was observed
by this Court in Disciplinary Authority-cumRegional Manager vs. Nikunja Bihari Patnaik, it
is no defence available to say that there was no
loss or profit resulted in case, when the
officer/employee acted without authority. The
very discipline of an organization more
particularly a bank is dependent upon each of its
officers and officers acting and operating within
their allotted sphere. Acting beyond one's
authority is by itself a breach of discipline and is
a misconduct. The charges against the employee
were not casual in nature and were serious.
These aspects do not appear to have been kept in
view by the High Court."

(Emphasis supplied)

17. Similar view has been expressed in
UCO Bank and another vs. Rajinder Lal Copoor,
(2007) 6 SCC 694.

18. In view of the fact that charges of
misconduct attributed to petitioner are distinct and
much more serious, holding of a separate enquiry
against him would not be bad. Even otherwise,
Service Regulations of 2010 merely enables
holding of common enquiry on the basis of an
order passed by the Chairman and is neither
mandatory nor can be claimed as a matter of right.
Regulation 42 of the Regulations of 2010 is
relevant for the present purposes and is reproduced
hereinafter:

"42.
Common
enquiry.
-
Notwithstanding anything contained in these
regulations, if two officers in different grades or an
officer and an employee are involved jointly in an
incident and disciplinary proceedings are sought to
be instituted against both of them and the
Chairman is of the opinion that having regard to
the facts and circumstances of the case, the
Competent Authority in respect of both the officer
and employee should be the same, the Chairman
may direct that the Competent Authority in respect
of the officer shall be held into the charges against
both of them."

19. The above provision clearly reveals that
holding of common enquiry is left to the discretion
of the Chairman, if he is of the opinion that having
regard to the facts and circumstances of the case
where competent authority in respect of both the
officer and employee are not the same may also
direct the competent authority in respect of the
officer to conduct enquiry against him involved in
the matter. The above extracted provision does not
suggest that it is mandatory or obligatory for the
disciplinary authority or the enquiry officer to
necessarily conduct a common enquiry just because
transactions constituting substance of charge is one
of the same. It is always open for the employer to
determine whether a common enquiry ought to be
conducted in the matter or not. The plea of prejudice
will have to be necessarily established by the
employee if he has to successfully contend that non
holding of common enquiry has affected outcome
of disciplinary proceedings. No such prejudice is
shown to have occurred in the facts of the present
case. Substance of charge otherwise was distinct.
The argument of Sri Khare that non holding of
common
enquiry
has
vitiated
the
enquiry
proceedings, therefore, must fail.

20. The second limb of petitioner's
submission that disciplinary enquiry was not fair
11 All. Shiv Nath Singh Vs. Union of India & Ors.
705
and proper on account of non holding of
common enquiry is again not liable to be
accepted in view of the findings specifically
returned while answering the previous issue
formulated for consideration in the matter. The
disciplinary enquiry has been initiated in
accordance with Regulations of 2010 and the
procedure stipulated therein has been followed.
Though it is urged that enquiry is not fair and
proper but no specific ground is substantiated to
support the petitioner's challenge in that regard.
It is otherwise not disputed that petitioner has
been furnished all materials that have relied
upon against him and that he has been given
right to cross-examine the witnesses. The
finding returned by the Enquiry Officer on the
basis of materials placed on record against the
petitioner otherwise is not shown to be perverse
or erroneous. The test to withstand enquiry is
preponderance of probability on the admitted
material placed on record. On such yardstick if
the facts of the present case are examined it is
abundantly clear that enquiry conducted against
the petitioner is fair and transparent and is in
accordance with the principles of natural justice
wherein the charges are found proved. The
second contention advanced on behalf of the
petitioner is also liable to be rejected.

21. Sri Ashok Khare, learned senior
counsel for the petitioner has laid much
emphasis in his argument that the disciplinary
authority had formed opinion to dismiss the
petitioner on the basis of findings returned by
the
Enquiry
Officer
without
right
of
representation to the petitioner to object to the
enquiry report. This contention is advanced with
reference to the specific assertions made in the
show cause notice, which would suggest that
disciplinary authority examined report of the
Enquiry Officer and had referred to the charges
as also the evidence adduced before indicating
proposed punishment to be awarded to the
petitioner. Reliance is heavily placed upon para
26 of the judgment of the Supreme Court in the
case of Mahesh Dahiya (supra), which is
reproduced hereinafter:

"26. Both the learned Single Judge and
the Division Bench have heavily relied on the
fact that before forwarding the copy of the report
by letter dated 02.04.2008 the Disciplinary
Authority-cum-Whole Time Members have
already formed an opinion on 25.02.2008 to
punish the writ petitioner with major penalty
which is a clear violation of principle of natural
justice. We are of the view that before making
opinion with regard to punishment which is to
be imposed on a delinquent, the delinquent has
to be given an opportunity to submit the
representation/reply on the inquiry report which
finds a charge proved against the delinquent.
The opinion formed by the Disciplinary
Authority-cum-Whole
Time
Members
on
25.02.2008 was formed without there being
benefit of comments of the writ petitioner on the
inquiry report. The writ petitioner in his
representation to the inquiry report is entitled to
point out any defect in the procedure, a defect of
substantial nature in appreciation of evidence,
any misleading of evidence both oral or
documentary. In his representation any inputs
and explanation given by the delinquent are also
entitled to be considered by the Disciplinary
Authority before it embarks with further
proceedings as per statutory rules. We are, thus,
of the view that there was violation of principle
of natural justice at the level of Disciplinary
Authority when opinion was formed to punish
the writ petitioner with dismissal without
forwarding the inquiry report to the delinquent
and before obtaining his comments on the
inquiry report. We are, thus, of the view that the
order of the High Court setting aside the
punishment order as well as the Appellate order
has to be maintained."

22. Reliance is also placed upon a
judgment of this Court in Smt. Manjesh Kumari
vs. State of U.P. and others being Writ Petition
706 INDIAN LAW REPORTS ALLAHABAD SERIES
No.16829 of 2018, decided on 03.09.2021, in
which judgment of the Supreme Court in
Mahesh Dahiya (supra) has been relied upon in
following words:

"The essence of Mahesh Dahiya is a
reiteration of the well settled principle that the
delinquent
employee
is
entitled
to
an
opportunity to establish and prove before the
Disciplinary Authority that the findings of guilt
as recorded by the Enquiry Officer are not liable
to be accepted. That is the quintessential purpose
for the Disciplinary Authority being required to
forward a copy of the enquiry report to the
employee. At that stage and before the employee
has had an occasion to respond to the report, the
Disciplinary Authority must establish that the
issue of guilt was one which is open for
consideration and dependent upon the response
that the employee is yet to furnish. The
Authority in any case cannot proceed as if the
issue is already predetermined. That would
clearly render the opportunity of hearing as
provided to the employee wholly otiose and
meaningless. The question of punishment which
is liable to be ultimately imposed likewise must
be one which is established to be an issue which
awaits consideration of the reply of the
employee. A delinquent employee must not get
the impression that his furnishing of a reply to
the show cause notice will be an empty
formality and the delinquent employee facing
what the Supreme Court chose to describe as the
"impenetrable fortress of prejudged opinion" in
Oryx Fisheries Private Limited Vs. Union of
India [(2010) 13 SCC 427]. If these inherent
inhibitions were to be ignored it would
inevitably lead to an allegation of bias being
levelled on the part of the Disciplinary
Authority.

Tested in the above light, it is manifest
that the impugned action of the respondents
cannot be sustained. The Disciplinary Authority
had not only prejudged the issue of guilt but also
the quantum of punishment which was liable to
be imposed. In view of the aforesaid, this Court
is of the firm opinion that the matter would have
to be remitted to the Disciplinary Authority to
redraw proceedings from the stage of receipt of
the enquiry report and the issuance of the show
cause notice forwarding the same to the
petitioner. "

23. On behalf of the respondent Bank,
however, reliance is placed upon subsequent
judgment of the Supreme Court in Bolaram
Bardoloi vs. Lakhimi Gaolia Bank and others,
(2021) 3 SCC 806. In para 7 of the judgment the
Supreme Court has been pleased to recognize
the right of the disciplinary authority to arrive at
a tentative conclusion of proposed punishment
while enclosing copy of the enquiry report in
following words:

"7. The appellant was working as a
Manager of the respondentbank. A perusal of the
charges, which are held to be proved by the
Enquiry Officer, reveal that he has sanctioned
and disbursed loans without following the due
procedure contemplated under law and also
there are allegations of misappropriation,
disbursing loans irregularly in some instances to
(a) units without any shop/business; (b) more
than one loan to members of same family etc.
The Enquiry Officer, after considering oral and
documentary evidence on record, has held that
all the charges are proved. Based on the findings
recorded by Enquiry Officer, the disciplinary
authority has tentatively decided to impose
punishment
of
compulsory
retirement.
Disciplinary authority has issued show cause
notice dated 30.07.2005 by enclosing a copy of
the enquiry report. In response to the show cause
notice, the appellant has submitted his comments
vide letter dated 16.08.2005 indicating that due
to work pressure some operational lapses have
occurred. Further he has also pleaded that if the
bank has sustained any loss due to his fault, he is
ready to bear such loss from his own source.
After filing the response to the show cause
11 All. Shiv Nath Singh Vs. Union of India & Ors.
707
notice, order is passed by disciplinary authority
imposing punishment of compulsory retirement.
After Enquiry Officer records his findings, it is
always open for the disciplinary authority to
arrive at tentative conclusion of proposed
punishment and it can indicate to the delinquent
employee by enclosing a copy of the enquiry
report. Though the learned counsel for the
appellant has argued that even before tentative
conclusion is arrived at by the disciplinary
authority, the enquiry report has to be served
upon him, but there is no such proposition laid
down in the judgment of this Court in the case of
Managing Director, ECIL, Hyderabad (supra).
In the aforesaid judgment of this Court it is held
that delinquent employee is entitled to a copy of
the enquiry report of the enquiry officer before
the disciplinary authority takes a decision on the
question of guilt of the delinquent. Merely
because a show cause notice is issued by
indicating the proposed punishment it cannot be
said that disciplinary authority has taken a
decision. A perusal of the show cause notice
dated 30.07.2005 itself makes it clear that along
with the show cause notice itself enquiry report
was also enclosed. As such, it cannot be said that
the procedure prescribed under the rules was not
followed by respondentbank. We are of the view
that the judgment of this Court in the case of
Managing Director, ECIL, Hyderabad (supra) is
not helpful to the case of the appellant. Further,
it is well settled that if the disciplinary authority
accepts the findings recorded by the Enquiry
Officer and passes an order, no detailed reasons
are required to be recorded in the order imposing
punishment. The punishment is imposed based
on the findings recorded in the enquiry report, as
such, no further elaborate reasons are required to
be given by the disciplinary authority. As the
departmental appeal was considered by the
Board of Directors in the meeting held on
10.12.2005,
the
Board's
decision
is
communicated vide order dated 21.12.2005 in
Ref. No.LGB/I&V/Appeal/31/02/200506. In that
view of the matter, we do not find any merit in
the submission of the learned counsel for the
appellant that orders impugned are devoid of
reasons."

The Court also observed as under in
para 8:

"8. Even, the last submission of the
learned counsel for the appellant that the
punishment imposed is disproportionate to the
gravity of charges, also cannot be accepted.
The charges framed against the appellant in the
departmental enquiry are serious and grave. If
we look at the response, in his letter dated
16.08.2005, to the show cause notice issued by
the disciplinary authority, it is clear that he has
virtually admitted the charges, however, tried
to explain that such lapses occurred due to
work pressure. Further he went to the extent of
saying - he is ready to bear the loss suffered by
the bank on account of his lapses. The manager
of a bank plays a vital role in managing the
affairs of the bank. A bank officer/employee
deals with the public money. The nature of his
work demands vigilance with the inbuilt
requirement
to
act
carefully.
If
an
officer/employee of the bank is allowed to act
beyond his authority, the discipline of the bank
will disappear. When the procedural guidelines
are
issued
for
grant
of
loans,
officers/employees are required to follow the
same meticulously and any deviation will lead
to erosion of public trust on the banks. If the
manager
of
a
bank
indulges
in
such
misconduct, which is evident from the charge
memo dated 18.06.2004 and the findings of the
enquiry officer, it indicates that such charges
are grave and serious. Inspite of proved
misconduct
on
such
serious
charges,
disciplinary authority itself was liberal in
imposing the punishment of compulsory
retirement. In that view of the matter, it cannot
be said that the punishment imposed in the
disciplinary proceedings on the appellant, is
disproportionate to the gravity of charges. As
such, this submission of the learned counsel for
the appellant also cannot be accepted."
708 INDIAN LAW REPORTS ALLAHABAD SERIES

24. The judgments of the Supreme Court in
Mahesh Dahiya (supra) and Bolaram Bardoloi
(supra) have again been examined by the
Supreme Court in Chief General Manager, State
of India vs. V. P. Srivastava being Civil Appeal
No.4755 of 2021, decided on 12.08.2021 and the
judgment in Mahesh Dahiya (supra) has been
distinguished as laying down law on facts of its
own. The Court proceeded to observe as under:

"We have also gone through the
objections taken by the respondent in the
departmental appeal. We find no grounds of any
procedural irregularity vitiating the inquiry. As
observed earlier, the respondent had cross
examined witnesses also. The order of the
Appellate Authority adequately notices that the
opening of the account of M/s. Sunrise
International was not bona fide, because the
introducer of the account had deposed in the
inquiry that he did not know the proprietor of
M/s. Sunrise International and he had introduced
the accounts at the behest of the respondent.
Similarly in the case of M/s. Sharda Transport
Company, the respondent admitted that the
procedures for opening an account were not
followed by him and they were not even
complied with subsequently.