# Vinod Kumar v. Bank of India and Others

- **Citation:** (2013) 3 ILRA 1341
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-18
- **Case number:** Writ Petition No.1647 (SB) of 2010
- **Bench:** Rajiv Sharma, Dr. SATISH CHANDRA
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-v-bank-of-india-and-others-42700
- **Pages:** 11

## Headnote

1342 INDIAN LAW REPORTS ALLAHABAD SERIES
Bank of India officers employees(Dispute &
Appeal)
Regulations
1976-Reg.
6(17)-
Dismissal from service-without following
procedure
provided
under
Regulation
6(17)-without giving opportunity of cross
examination, without giving copy of enquiry
report-without show cause notice after
conclusion
of
enquiry-before
inflicting
major punishment-held-amount to denial of
reasonable opportunity-appellate authority
also ignored this aspect-order quashed.

Held: Para-27 & 31

## Text

3 All] Vinod Kumar Vs. Bank of India and Others
1341
therefore, we are of the opinion that the
view taken by the learned single Judge in
the case of Hoti Lal (supra) lays down the
correct law. The judgment in Hoti Lal
(supra) has, however, not been referred to
in the case of Radhey Shyam Sharma
(supra). May the judgment of Hoti Lal
was not cited before the learned single
Judge deciding the case of Radhey Shyam
Sharma. Be that as it may, for the reasons
states above, we hold that the judgment in
Radhey Shyam Sharma (supra) does not
lay down the correct law.

24. However, there is an added twist to
the case before us. The judgment of Hoti Lal
(supra) where the learned single Judge has held
sub clause (iiii-a) of Section 95(1)(g) of the
Act, 1947 to be ultra vires Article 243-O(b) of
the Constitution of India and struck down sub
clause (iii-a) as ultra vires Article 243-O(b) of
the Constitution of India has not been referred
to at all by the Full Bench in the case of
Vivekanand (supra) where this Court held that
a Pradhan may be removed under section
95(1)(g) of the Act, 1947 even if cessation of
financial and administrative powers are not
contemplated. Thus the view we have taken
upholding the judgment of Hoti Lal (supra)
relying upon the provisions of Article 243-O(b)
and 12-C(1) (a) and 12-C(1)(b) of the U.P.
Panchayat Raj Act, 1947 stands in direct
conflict with the decision of the Full Bench in
the case of Vivekanand (supra).

25. In view of the above conflicting
position of law we are, therefore, of the view
that the matter should be referred to a larger
Bench for settling this controversy and
clearing the ambiguity in law with regard to
removal of a Pradhan. We therefore, direct
that the records of this case be placed before
the Hon'ble Acting Chief Justice for
constituting a larger Bench to resolve the
above controversy.

26. So far as the present special
appeal is concerned we are not inclined to
grant any interim order inasmuch as in
paragraph 13 of the writ petition itself it
has been disclosed by the respondent no.
1 that the appellant has already filed an
election petition no. 3 of 2010 (Satyadeo
Vs. Ajay Kumar Gupta and others) which
has been registered on 29.11.2010.

27. Since we are of the view that
judgment in Hoti Lal (supra) lays down the
correct law and that sub clause (iii-a) of
Section 95(1)(g) of the U.P. Panchayat Raj
Act, 1947 is ultra vires Article 243-O (b) of
the Constitution of India, therefore, in our
view the order dated 27.8.2011 of the District
Magistrate Bijnor impugned in the writ
petition no. 56084 of 2011 was wholly
without jurisdiction and is a non-est order
and, therefore, such an order cannot be said
to be a quasi judicial order as the very
foundation for exercise of such power by the
District Magistrate stood struck down in the
judgment of Hoti Lal (supra) which we also
approve. Therefore, in our view this special
appeal would be maintainable.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.09.2013

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE Dr. SATISH CHANDRA, J.

Writ Petition No.1647 (SB) of 2010

Vinod Kumar

 ...Petitioner
Versus
Bank of India and Others. ...Opp. Parties

Counsel for the Petitioner:
Sri Ashwani Kumar

Counsel for the Respondents:
Sri Lalit Shukla
1342 INDIAN LAW REPORTS ALLAHABAD SERIES
Bank of India officers employees(Dispute &
Appeal)
Regulations
1976-Reg.
6(17)-
Dismissal from service-without following
procedure
provided
under
Regulation
6(17)-without giving opportunity of cross
examination, without giving copy of enquiry
report-without show cause notice after
conclusion
of
enquiry-before
inflicting
major punishment-held-amount to denial of
reasonable opportunity-appellate authority
also ignored this aspect-order quashed.

Held: Para-27 & 31
27. We are of the considered opinion that
the observations in the cases, referred to
above, are fully applicable in the facts and
circumstances of this case. Non-supply of
documents demanded by the petitioner
which were actually utilized against him
have a potential to cause prejudice to an
employee in the enquiry proceedings which
would clearly be denial of a reasonable
opportunity to submit a plausible and
effective rebuttal to the charges being
inquired
into
against
the
employee/officer.

31. It is settled principle that if any material
is sought to be used in an enquiry, the copies
of material must be supplied to the party
against whom such an enquiry is held. The
Disciplinary Authority as well as Appellate
Authority did not consider this aspect of the
matter and expressed their concurrence to
the finding of the Inquiry Officer, without
applying their independent and free mind.
The assertion of the Bank that there is no
violation of any statutory provision or
principles of natural justice while conducting
the
disciplinary
proceeding
is
wholly
misconceived and is rejected. The Appellate
Authority while considering the appeal of the
petitioner failed to appreciate the fact that
the Enquiry Officer at the back of the
petitioner had proved charges without
affording
reasonable
opportunity
to
controvert the same. Therefore, the order of
Appellate Authority is bad in law and cannot
be sustained.

Case Law discussed:
(2006) 3 SCC 150; (2006) 5 SCC 673; (2006) 7
SCC 212; State 7 SCC 236; (2007) 7 SCC 236;
(2013) 2 SCC 740; 1995(6) SCC 749; AIR 1967
SC 1265; AIR 1970 SC 150; AIR 1961 SC
1623; (1998) 6 SCC 651; (2008) 8 SCC 236;
AIR 1963 SC 1719; AIR 1968 SC 158; (1986)3
SCC 229; 1995(Supp)(3)SCC 212; 2003(21)
LCD 610; (2009) 2 SCC 570.

(Delivered by Hon'ble Rajiv Sharma, J.)

1. Heard Mr.Kapil Deo, Senior
Advocate duly assisted by Mr.Ashwani
Kumar, learned Counsel for the petitioner
and Mr.Lalit Shukla, Advocate appearing
for the respondent-Bank.

2. Petitioner, who was working as
Staff Officer MM-III in the Bank of India,
was dismissed from the service, has filed
the instant writ petition questioning the
validity and correctness of the dismissal
order dated 25.6.2010, appellate order dated
16.9.2010, forfeiture and recovery order
dated 6.8.2010 including the order dated
22.9.2010 passed on the application,
contained in Annexure Nos.1, 2, 3 and 4 to
the writ petition.

3. Bereft of unnecessary details, in
short, facts of the case are that during the
period 24.5.2005 to 23.5.2007, when the
petitioner was posted as Chief Manager,
Bank of India, Rudauli Branch, the Branch
received a loan application from one Rajesh
Singh for setting up a rice mill in the name of
M/s Singh Rice Mill in the month of
December, 2005. The loan was proposed to
be secured by mortgage of land of Khasra
nos.2600 and 2656, which was in the name
of the proposed Guarantor Shri Tej Bhan
Singh whereas the rice mill was proposed to
be set up on a separate land, namely, khasra
No.2933. After receipt of application for
grant of loan, the petitioner carried out the
pre-sanction inspection and submitted its
report on 24.1.2006 indicating therein that
two properties were inspected, viz., the
3 All] Vinod Kumar Vs. Bank of India and Others
1343
properties
which
were
proposed
for
mortgage and the property on which the mill
was situated. Thereafter, the papers were
given to Shri G. N. Khare, an Advocate on
the Bank's Panel for the last 25 years, who, in
turn, submitted its report dated 22.12.2005
certifying that the land of Khasra Nos.2600
and 2656 could be mortgaged in favour of
the bank. The proposal was sanctioned by the
Bank and the land Khara Nos.2600 and 2656
was mortgaged in favour of the Bank.

4. As proprietor of M/s Singh Rice Mill
committed default in re-payment of loan, the
Branch initiated recovery proceedings against
it by filing recovery certificate with the
revenue authorities. In this connection, the
Rudauli Branch informed the revenue
authorities that the rice mill was located on the
property which had been mortgaged in favour
of the Bank. According to the petitioner, this
information furnished by the petitioner's
successor was factually incorrect as in the
records of the bank, the rice mill was
established on different property and not on
the mortgaged property, i.e. Khasra Nos.2600
and 2656.

5. It is in this background that the
Additional District Magistrate, Faizabad got
the matter investigated by the NaibTahsildar, Milkipur and thereafter informed
the Bank that no rice mill is existing on the
mortgaged property, i.e. Khasra Nos.2600
and 2656 and its owner Shri Tej Bhan Singh
had sold his property in 1996. However, on
20.3.2010, the Bank initiated disciplinary
proceedings against the petitioner for
committing gross dereliction of duties and in
gross violation of Bank's procedure while
sanctioning cash-credit limit and term loan to
M/s Singh Rice Mills, a proprietorship
concern of one Rajesh Singh.

6. After conclusion of enquiry, on
1.6.2010, the Inquiry Officer gave a
finding of PROVED. However, the loss
was quantified by him likely around
Rs.25.68 lacs. Thereafter, on 25.6.2010,
the Disciplinary Authority imposed the
punishment of 'Dismissal' upon the
petitioner. Aggrieved by the aforesaid
punishment order, the petitioner preferred
an appeal under sub-regulation 17 of the
Bank
Regulation
to
the
Zonal
Manager/Appellate
Authority,
who
rejected the same vide order dated
16.9.2010.

7. On 25.6.2010, a show-cause
notice was also issued to the petitioner
requiring him to show cause as to why
recovery/ forfeiture of Rs.25.68 lacs be
not made from the Provident Fund
(Bank's Contribution) and Gratuity of the
petitioner. Though the petitioner replied
to the show cause notice on 14.7.2010, yet
it was rejected by the Deputy Zonal
Manager, Bank of India, Lucknow Zone
on 6.8.2010 and recovery of Rs.25.68 was
ordered to be made from the petitioner.
Thereafter, the petitioner submitted a
representation to the Zonal Manager,
Bank of India, Lucknow, who too rejected
it vide order dated 22.9.2010. This order
has also been assailed in the instant writ
petition.

8. Learned Counsel for the petitioner
has
submitted
that
the
disciplinary
proceedings are governed by the procedure
laid down in the Bank of India Officer
Employees'
(Discipline
and
Appeal)
Regulations, 1976 [in short referred to as the
'Regulations'].
Regulation-6
provides
procedure for imposing major penalties and
enjoins that no major penalty can be awarded
except after an enquiry in accordance with
the Regulations. Regulation 6 (17) casts a
duty upon the Inquiring Authority to give an
opportunity to the delinquent employee
1344 INDIAN LAW REPORTS ALLAHABAD SERIES
enabling him to explain any circumstances
appearing in the evidence against him. This
duty is to be performed after the evidence is
closed. It has been vehemently argued that
the Inquiring Authority in spite of oral
request of the petitioner did not allow the
aforesaid
statutory
opportunity,
which
vitiates the entire disciplinary proceedings
including the order of dismissal.

9. Elaborating his submissions,
learned
Counsel
for
the
petitioner
submitted that there are serious defects in
the disciplinary proceedings as principles
of natural justice have been violated with
impunity.
According
to
him,
the
investigation report submitted by the
management witnesses as also the report
submitted by the Naib-Tahsildar, which
were utilized against the petitioner were
never supplied to him. Furthermore,
during the course of inquiry, the petitioner
requested for the joint inspection of
record of the office of Sub-Registrar to
ascertain the correct fact but the same was
also not done. Even the Naib-Tahsildar,
whose investigation report was heavily
relied upon by the Inquiry Officer, was
not called by the Inquiry Officer to prove
the document or to give an opportunity to
the
petitioner
for
cross-examination.
Thus, serious prejudice has been caused
to the petitioner and he has been deprived
of his vital right to put his effective
version in order to defend himself.

10. Learned Counsel for the
petitioner next contended that the Inquiry
Officer in its report has concluded that on
account of negligence of the petitioner,
there is likelihood that the bank will
suffer financial loss to the tune of
Rs.25.68 lacs. The disciplinary authority
passed the order for recovery of Rs.25.68
lacs against the petitioner. The appellate
authority also rejected the appeal without
dealing with the pleas raised by the
petitioner. Both the authorities overlooked
the specific pleas of the petitioner
regarding
non-supply
of
relevant
documents and the fact that borrower had
not only deposited Rs.4 lacs towards the
loan on 3.8.2010 and a compromise had
also been arrived at between the bank and
the borrower. Therefore, inflicting the
ultimate punishment of dismissal is not
commensurate with the guilt of the
petitioner as neither there is any charge of
embezzlement or misappropriation nor
causing deliberate financial loss to the
bank.

11. Per contra, Mr. Lalit Shukla,
learned Counsel for the Bank submits that
the petitioner was given the copies of
documents relied upon by the authorities.
He was given ample opportunity to
defend his case, witnesses were examined
and thereafter, final orders were passed by
the competent authority in accordance
with
law
and
after
following
the
principles of natural justice. During the
course of inquiry, neither the petitioner
requested for any document after giving
the relevancy of those documents in the
inquiry proceedings nor the request of the
petitioner was rejected for examining any
witnesses during the course of inquiry.
The petitioner has no right to question the
findings recorded by the departmental
authorities under Article 226 of the
Constitution of India.

12. Counsel for the Bank contended
that it is incorrect to say that subRegulation
17
of
Regulation-6
is
applicable upon the petitioner. The
aforesaid Regulation comes into picture
when Inquiring Authority would have
been the disciplinary authority. In the
3 All] Vinod Kumar Vs. Bank of India and Others
1345
instant case, the departmental inquiry was
conducted by the inquiring authority and
not by the disciplinary authority itself.
The investigating report was not supplied
to the petitioner, as the Presenting Officer
of the Bank claimed its privilege. It is true
that the report of the Tahsildar was
considered by the authority but the
petitioner was dismissed from service not
only on the basis of the report of the
Tahsildar, but there were other materials
available on record.

13. On the strength of the decisions
rendered
in
Syndicate
Bank
vs
Venkatesh Gururao Kulatai [(2006) 3
SCC 150], Staet of U.P. vs Raj Kishore
Yadav [(2006) 5 SCC 673], State Bank
of India vs Ramesh Dinker Punde
[(2006) 7 SCC 212], State 7 SCC 236]
and Bank of India vs Ram Lal Bhaskar
[(2011) Bank of India vs T. Jogram
[(2007) 7 SCC 236] and State of India vs
Narendra Kumar Pandey [(2013) 2
SCC
740],
Counsel for the
Bank
submitted
that
non-supply
of
the
document which is neither forming part of
the charge sheet relied upon by the
prosecution nor relied upon by the
authorities will not violate the principles
of natural justice. Therefore, the assertion
of the petitioner that the authorities have
violated the principles of natural justice is
wholly
incorrect
and
misconceived.
Lastly, it has been contended that the
petitioner has no right to question the
findings recorded by the departmental
authorities under Article 226 of the
Constitution and jurisdiction of this Court
under Article 226 of the Constitution
cannot be converted as a Court of Appeal.

14. It is no doubt true that in cases
arising out of disciplinary proceedings
culminating
in
punishment
of
an
employee, scope of judicial review is
somewhat restricted in the sense that it is
a decision making process, which is open
for judicial review and not the decision
itself. The Court does not sit in appeal. If
the procedure prescribed is followed
strictly in accordance with rules and the
delinquent employee has been given
adequate opportunity of defence, the
disciplinary authority by assessing record
has reached to a conclusion which a
person of ordinary prudence in a given set
of circumstances may arrive, this Court
shall not interfere with the order of
punishment, if any, unless it is shown that
the same is without jurisdiction or is
otherwise bad on account of mala fide etc.

15. At the same time, a person
cannot be denied his right to earn
livelihood enshrined under Article 226 of
the Constitution of India unless he has
been given adequate opportunity of
hearing and the conclusion drawn by
authorities is one which is probable and
permissible
from
bare
perusal
of
documents
and
not
otherwise.
The
authorities
exercising
quasi
judicial
functions are not courts. They are not
bound by principles of evidence yet
certain basic principles will have to be
observed which may dispel a complaint
against fairness, impartiality and pre
determination of mind on the part of the
employer.

16. In B.C. Chaturvedi Vs. Union
of India reported in 1995 (6) SCC 749,
reiterating the principles of judicial
review in disciplinary proceedings, the
Apex Court held in para 12 as under:

"Judicial review is not an appeal
from a decision but a review of the
manner in which the decision is made.
1346 INDIAN LAW REPORTS ALLAHABAD SERIES
Power of judicial review is meant to
ensure that the individual receives fair
treatment and not to ensure that the
conclusion which the authority reaches is
necessarily correct in the eye of the court.
When an inquiry is conducted on charges
of misconduct by a public servant, the
Court/Tribunal is concerned to determine
whether the inquiry was held by a
competent officer or whether rules of
natural
justice
are
complied
with.
Whether the findings or conclusions are
based on some evidence, the authority
entrusted with the power to hold inquiry
has jurisdiction, power and authority to
reach a finding of fact or conclusion. But
that finding must be based on some
evidence. Neither the technical rules of
Evidence Act nor of proof of fact or
evidence as defined therein, apply to
disciplinary
proceeding.
When
the
authority accepts that evidence and
conclusion receives support therefrom,
the disciplinary authority is entitled to
hold that the delinquent officer is guilty of
the charge. The Court/Tribunal in its
power of judicial review does not act as
appellate authority to re appreciate the
evidence and to arrive at its own
independent findings on the evidence. The
Court/Tribunal may interfere where the
authority held the proceedings against the
delinquent
officer
in
a
manner
inconsistent with the rules of natural
justice or in violation of statutory rules
prescribing the mode of inquiry or where
the conclusion or finding reached by the
disciplinary authority is based on no
evidence. If the conclusion or finding be
such as no reasonable person would have
ever reached, the Court/Tribunal may
interfere with the conclusion or the
finding, and mould the relief so as to
make it appropriate to the facts of each
case."(para 12)

17. In years by gone the initial
exercise of the Courts was first to find out
the nature of the order, whether it is an
administrative or quasi-judicial order and
then to proceed to apply the principles of
natural justice. The Apex Court for the
first time in the case of State of Orissa
Vs. Dr. (Ms.) Bina Pani Dei [AIR 1967
SC 1265] broke free from the necessity to
examine nature of the order. It held that
even an administrative order or decision
involving civil consequences, has to abide
by the rules of natural justice. The
Constitution Bench in the famous case of
A.K. Kraipak V. Union of India [AIR
1970 SC 150] blunted it further to near
extinction. It found that "The aim of the
rules of natural justice is to secure justice
or to put it negatively to prevent
miscarriage of justice. These rules can
operate only in areas not covered by any
law validly made. In other words they do
not supplant the law of the land but
supplement it. The concept of natural
justice has undergone a great deal of
change in recent years. In the past, it was
thought that it included just two rules,
namely (I) no one shall be a judge in his
own cause (Nemo debet esse judex
proprise causa), and (2) no decision shall
be given against a party without affording
him a reasonable hearing (audi alteram
partem). Very soon, a third rule was
envisaged and that is the quasi-judicial
inquiries must be held in good faith
without bias and not arbitrarily or
unreasonably and it went on to hold;

"If the purpose of the rules of natural
justice is to prevent miscarriage of justice
one fails to see why those rules should be
made
inapplicable
to
administrative
inquiries. Often times it is not easy to
draw
the
line
that
demarcates
administrative
inquiries
from
quasi-
3 All] Vinod Kumar Vs. Bank of India and Others
1347
judicial inquiries. Inquiries which were
considered administrative at one time are
now being considered as quasi-judicial in
character. Arriving at a just decision is the
aim of both quasi-judicial inquiries as
well as administrative inquiries. An unjust
decision in an administrative enquiry may
have more far reaching effect than a
decision in a quasi-judicial enquiry."

18. When a departmental enquiry is
conducted against the employee, it cannot
be treated as a casual exercise. The
enquiry proceedings also cannot be
conducted with a closed mind. The
inquiry
officer
has
to
be
wholly
unbiased,impartial and fair. The rules of
natural justice are required to be observed
to ensure not only that justice is done but
is manifestly seen to be done. The object
of rules of natural justice is to ensure that
an
employee
is
treated
fairly
in
proceedings, which may culminate in
imposition
of
punishment
including
dismissal/removal from service.

19. In State of Madhya Pradesh vs.
Chintaman Sadashiva Waishampayan;
AIR 1961 SC 1623; State of U.P. vs.
Shatrughan Lal and another; (1998) 6
SCC 651 and State of uttaranchal and
others vs. V. Kharak Singh (2008) 8
SCC 236, the Apex Court has emphasized
that a proper opportunity must be afforded
to a government servant at the stage of the
enquiry, after the charge sheet is supplied
to the delinquent as well as at the second
stage when punishment is about to be
imposed on him. In State of Uttaranchal
& ors. V. Kharak Singh (supra) the
Apex Court has enumerated some of the
basic principles regarding conducting the
departmental inquiries and consequences
in the event, if these basic principles are
not adhered to, the order is to be quashed.
The principles enunciated are reproduced
herein:

(a) The enquries must be conducted
bona fide and care must be taken to see
that the enquiries do not become empty
formalities.

(b) If an officer is a witness to any of
the incident which is the subject matter of
the enquiry or if the enquiry was initiated
on the report of an officer, then in all
fairness he should not be the Enquiry
Officer. If the said position becomes
known after the appointment of the
Enquiry Officer, during the enquiry, steps
should be taken to see that the task of
holding an enquiry is assigned to some
other officer.

(C)
In
an
enquiry,
the
employer/department should take steps
first
to
lead
evidence
against
the
workman/delinquent charged, give an
opportunity to him to cross-examine the
witnesses
of
the
employer.
Only
thereafter, the workman/delinquent be
asked whether he wants to lead any
evidence
and
asked
to
give
any
explanation about the evidence led against
him.

20. On receipt of the enquiry report,
before proceeding further, it is incumbent
on the part of the disciplinary/punishing
authority to supply a copy of the enquiry
report and all connected materials relied
on by the enquiry officer to enable him to
offer his views, if any.

21. In Meenglas Tea Estate v. Its
Workmen AIR 1963 SC 1719 the Supreme
Court observed that "it is an elementary
principle that a person who is required to
answer the charge must know not only the
1348 INDIAN LAW REPORTS ALLAHABAD SERIES
accusation but also the testimony by which
the accusation is supported. He must be
given a fair chance to hear the evidence in
support of the charge and to put such relevant
questions by way of cross-examination as he
desires. Then he must be given a chance to
rebut the evidence led against him. This is
the barest requirement of an enquiry of this
character and this requirement must be
substantially fulfilled if the result of the
enquiry can be accepted.

22. In State of U.P. v. C.S. Sharma,
AIR 1968 SC 158 the Supreme Court held
that omission to give opportunity to an
employee to produce his witnesses and lead
evidence in his defence vitiates the
proceedings. It was further held that a
dismissal order has serious consequence and
should be passed only after complying with
the rules of natural justice.

23. Considering the importance of
access to documents in statements of
witnesses to meet the charges in an
effective manner the Apex Court in
Kashinath Dikshita versus Union of
India and others; (1986)3 SCC 229 held
in clear words that no one facing a
departmental enquiry can effectively meet
the charges unless the copies of the
relevant statements and documents to be
used against him are made available to
him. In the absence of such copies the
concerned employee cannot prepare his
defence, cross examine the witnesses and
point out the inconsistencies with a view
to show that the allegations are incredible.
Observance of natural justice and due
opportunity has been held to be an
essential
ingredient
in
disciplinary
proceedings.

24. In S.C.Givotra v. United
Commercial Bank 1995 (Supp) (3) SCC
212, the Supreme Court set aside the
dismissal order which was passed without
giving the employee an opportunity of
cross-examination.

25. A Division Bench of this Court
in Radhey Kant Khare vs. U.P.
Cooperative
Sugar
Factories
Federation ltd. [2003](21) LCD 610]
held that after a charge-sheet is given to
the employee an oral enquiry is a must,
whether the employee requests for it or
not. Hence a notice should be issued to
him indicating him the date, time and
place of the enquiry. On that date so fixed
the oral and documentary evidence
against the employee should first be led in
his presence. Thereafter the employer
must adduce his evidence first. The
reason for this principle is that the chargesheeted employee should not only know
the charges against him but should also
know the evidence against him so that he
can properly reply to the same. The
person who is required to answer the
charge must be given a fair chance to hear
the evidence in support of the charge and
to put such relevant questions by way of
cross-examination, as he desires. Then he
must be given a chance to rebut the
evidence led against him.

26. In Roop Singh Negi vs. Punjab
National Bank & others:(2009) 2 SCC
570, the Apex Court held that in the
departmental enquiry, mere production of
documents is not enough. The contents of
documentary evidence has to be proved
by examining witnesses. The relevant
paras-14, 15 and 23 read as under:-

"14. Indisputably, a departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasijudicial function. The charges levelled
3 All] Vinod Kumar Vs. Bank of India and Others
1349
against the delinquent officer must be found
to have been proved. The enquiry officer has
a duty to arrive at a finding upon taking into
consideration the materials brought on record
by the parties. The purported evidence
collected
during
investigation
by
the
investigating officer against all the accused
by itself could not be treated to be evidence
in the disciplinary proceeding. No witness
was examined to prove the said documents.
The management witnesses merely tendered
the documents and did not prove the contents
thereof. Reliance, inter alia, was placed by
the enquiry officer on the FIR which could
not have been treated as evidence.

15. We have noticed hereinbefore
that the only basic evidence whereupon
reliance has been placed by the enquiry
officer was the purported confession
made by the appellant before the police.
According to the appellant, he was forced
to sign on the said confession, as he was
tortured in the police station. The
appellant being an employee of the Bank,
the said confession should have been
proved. Some evidence should have been
brought on record to show that he had
indulged in stealing the bank draft book.
Admittedly, there was no direct evidence.
Even there was no indirect evidence. The
tenor of the report demonstrates that the
enquiry officer had made up his mind to
find him guilty as otherwise he would not
have proceeded on the basis that the
offence was committed in such a manner
that no evidence was left.

23. Furthermore, the order of the
disciplinary authority as also the appellate
authority are not supported by any reason.
As the orders passed by them have severe
civil consequences, appropriate reasons
should have been assigned. If the enquiry
officer had relied upon the confession
made by the appellant, there was no
reason as to why the order of discharge
passed by the criminal court on the basis
of selfsame evidence should not have
been taken into
consideration. The
materials brought on record pointing out
the guilt are required to be proved. A
decision must be arrived at on some
evidence, which is legally admissible. The
provisions of the Evidence Act may not
be
applicable
in
a
departmental
proceeding but the principles of natural
justice are. As the report of the enquiry
officer was based on merely ipse dixit as
also surmises and conjectures, the same
could not have been sustained. The
inferences drawn by the enquiry officer
apparently were not supported by any
evidence. Suspicion, as is well known,
however high may be, can under no
circumstances be held to be a substitute
for legal proof."

27. We are of the considered opinion
that the observations in the cases, referred
to above, are fully applicable in the facts
and circumstances of this case. Nonsupply of documents demanded by the
petitioner which were actually utilized
against him have a potential to cause
prejudice to an employee in the enquiry
proceedings which would clearly be
denial of a reasonable opportunity to
submit a plausible and effective rebuttal
to the charges being inquired into against
the employee/officer.

28. As much emphasis has been laid
on Regulation 6 (17) by both the parties,
we deem it appropriate to reproduce the
same:-

"The Inquiring Authority may, after
the officer employee closes his evidence
and shall, if the officer employee has not
1350 INDIAN LAW REPORTS ALLAHABAD SERIES
got himself examined, generally question
him on the circumstances appearing
against him in the evidence for the
purpose of enabling the officer employee
to explain any circumstances appearing in
the evidence against him.

29. A perusal of the aforesaid
Regulations would show that it contains
the word "Inquiring Authority" only and
there is no reference to "Disciplinary
Authority" in this regulation. Therefore,
the assertion of the Bank that aforesaid
Regulation comes into picture when
Inquiring Authority would have been the
disciplinary authority himself, is not
acceptable.

30. Non-supply of the Investigation
Report on the ground of privilege claimed
by the Presenting Officer is against the
provisions of the Regulations. We find
force in the assertion of the petitioner that
according to Regulation 6 (12), only the
authority having custody or possession of
the document can claim privilege. Thus,
the Presenting Officer had no authority to
claim privilege. It is immaterial whether
the Bank has relied exclusively or not, on
the investigating report whilst framing the
charges. Once the Investigating Officer
was produced as management witness, the
petitioner had the right to cross-examine
him on the contents of his investigation
report. According to sub-regulation 5 (iv)
of Regulation 6 of the Regulations, the
Inquiring Authority supplied a copy of the
statement of witnesses. This implies that
the Disciplinary Authority had supplied
the copy of the Investigating Officer's
report to the Inquiring Authority. Failure
to provide this report to the petitioner has,
therefore,
resulted
in
the
Inquiring
Authority, giving his finding based on
material obtained behind the back of the
petitioner. It may be noted that a perusal
of record shows that Deputy Collector,
Milkipur, District Faizabad wrote a letter
dated 10.4.2009 to the Bank, which was
produced by the Presenting Officer.
According to the petitioner, this letter
contains three Annexures, out of which
Annexure 2 is the Investigating Report of
Naib-Tahsildar. It is hard to believe that
when other two Annexures enclosed with
the letter are available with the Bank, how
can the third Annexure can be said to be
not available on the record of the Bank. It
creates serious doubt in our minds
regarding innocence of the Bank.

31. It is settled principle that if any
material is sought to be used in an
enquiry, the copies of material must be
supplied to the party against whom such
an enquiry is held. The Disciplinary
Authority as well as Appellate Authority
did not consider this aspect of the matter
and expressed their concurrence to the
finding of the Inquiry Officer, without
applying their independent and free mind.
The assertion of the Bank that there is no
violation of any statutory provision or
principles
of
natural
justice
while
conducting the disciplinary proceeding is
wholly misconceived and is rejected. The
Appellate Authority while considering the
appeal
of
the
petitioner
failed
to
appreciate the fact that the Enquiry
Officer at the back of the petitioner had
proved
charges
without
affording
reasonable opportunity to controvert the
same. Therefore, the order of Appellate
Authority is bad in law and cannot be
sustained.

32. So far as order of recovery is
concerned, it is the specific stand of the
petitioner that the borrower had already
deposited a sum of Rs.4 lacs towards the
3 All] Smt. Munesh Devi Vs. State of U.P. and Ors.
1351
loan on 3.8.2010 and a compromise has
also been arrived at in between the
borrower and the bank for depositing the
remaining amount with the bank. The
bank in its counter-affidavit candidly
admitted that the offer submitted by the
borrower is under consideration and the
compromise is yet to be materialized.
However, they did not deny the fact that
Rs.4 lacs were deposited by the borrower
towards the loan. The petitioner in his
rejoinder-affidavit has stated in paragraph
28 that borrower of the loan has entered
into a compromise with the bank and in
consequence whereof, some amount was
deposited by the borrower. He also
pointed out that the compromise was
approved by the General Manager on
17.8.2010 and the Zonal Office of the
Bank informed the same to Rudauli
Branch on 29.11.2010. This fact is
substantiated
by
the
letter
dated
29.11.2010 written by the Chief Manager
of the Bank to the proprietor of M/s Singh
Rice Mill, which is on record. When the
borrower had deposited the amount
towards the settlement of loan, no
financial loss has accrued to the Bank
there was no justification to recover the
same amount from the petitioner's gratuity
and provident fund. The Bank ought to
have modified the order of recovery or
recalled it but the same was not done.

33. The long and short of the
discussion and taking the holistic view of
the matter, the writ petition deserves to be
allowed, which is hereby allowed and the
impugned orders dated 25.6.2010 passed
by the Disciplinary Authority, 16.9.2010
passed by the Appellate Authority, the
order dated 6.8.2010 forfeiting and
recovery passed against the petitioner as
also the order passed on the application of
the petitioner dated 22.9.2010 are hereby
quashed. As the petitioner has already
attained the age of superannuation much
earlier, no useful purpose would be served
for ordering fresh enquiry in the matter.
Since the petitioner has attained the age of
retirement,
the
intervening
period
between the date of dismissal and date of
retirement shall be treated as period
rendered in service for the purposes of
payment of terminal benefits.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.8303 of 2013

Smt. Munesh Devi
 ...Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhuvnesh Kr. Singh, Sri Amit Srivastava,
Sri Amit Saxena, Sri Mohd. Akram, Sri
Ramesh Kumar Shukla, Sri Shamim Ahmed

Counsel for the Respondents:
C.S.C., Sri Abhishek Tiwari, Sri D.K. Singh
Sri G.K. Singh, Sri V.K. Singh

Constitution of India, Art. 226-Order recounting
of
votes-in
Gaon
sabha
election-on
application
defeated
candidate-only supported by number of
affidavit
reiterating
version
of
application-can
not
be
basis
for
recounting unless clinching evidence are
there-held
secrecy
of
ballot
is
sacrosanct-similarly statutory provision
can not be broken-unless prima faci case
made out-even recounting done-heldimmaterial-election tribunal committed
manifest error by passing order of
recounting-can not sustained-quashed.

Held: Para-17