LUCKNOW KSHETRIYA GRAMIN BANK Vs. DEVENDRA KUMAR UPADHYAY

JUDGEMENT

(1.) HEARD learned counsel for the appellants Shri Asit Kumar Chaturvedi and Shri O.P. Srivastava, learned counsel for the respondent. This special appeal has been filed under Chapter VIII Rule 5 of the High Court Rules by Shravasti Gramin Bank, presently known as Lucknow Kshetriya Gramin Bank, assailing the order passed by the learned Single Judge dated 20.5.2005, by means of which, the challenge to the order of reversion passed against the respondent was accepted and the writ petition filed by him was allowed. The order of reversion dated 17.1.1990 passed by the Board of Directors has been quashed. Brief facts of the case are that the respondent, who was working as Field Supervisor in the Bank was suspended and a charge sheet was issued to him on 7.3.1988. The charge sheet contains five charges. The respondent was required to furnish reply, which he did and then after holding the enquiry, the Inquiry Officer submitted his inquiry report on 10.10.1988. The Inquiry Officer found that the charge no. 1 was not proved as it was based only on mere suspicion. Charge no. 2 was found proved, whereas charge no. 3 was not found proved. Charge no. 4 was found proved partially and charge no. 5 was not found proved. It is not necessary for us to repeat the charges but suffice would be to say that apart from the charges no. 1, 3 and 5 having been found as not proved by the Inquiry Officer, the observation made in the inquiry report regarding charge no. 2 being not fully proved and charge no. 4 being partially proved is also not borne out from the substance of the inquiry report. In regard to charge no. 2, the analysis made by the the Inquiry Officer regarding evidence on record and the plea taken by the parties shows that the respondent was not aware of the loan distributed on 2.1.1988 and for that matter the vouchers in the long day book and other register etc. do not indicate that on what date such entries were made. There is a clear observation in the report that drafts issued were not countersigned by the respondent and they were got countersigned by the Assistant Cashier and that for some reasons all these transactions were concealed from the respondent-Shri Devendra Kumar Upadhyay. After making such observation the Inquiry Office again said that since the loan advanced on that date was not adjusted, this creates suspicion as the respondent must have come to know about this fact in the meantime. The conclusion of the aforesaid enquiry holding the respondent guilty is not based on the appreciation of the evidence on record. To the contrary, the entire analysis of the Inquiry Officer reveals that discrepancy was committed by the other staff and it was concealed from the respondent and hence on mere suspicion and assumption it can not be said that charges against him stand proved. Merely because there is an observation as a conclusion after making analysis of the entire material by the Inquiry Officer that charges stand proved, it does not mean that the charges actually stand proved. So far as charge no. 4 is concerned, here also already Inquiry Officer had observed that the respondent was not given correct direction by the Branch Manager and whatever work under the circumstances the respondent had done, it was found satisfactory to a large extent. Thereafter, it was observed that the respondent was not negligent and that he was not given any direction by the manager. On this finding of the Inquiry Officer, charge cannot be said to be partially proved. The findings of the Inquiry Officer do not clearly establish the charge against the respondent. Award of punishment to an employee lies within the domain of the Disciplinary Authority, but this power can not be exercised arbitrarily. An employee has a right to continue in service and to enjoy the status of the post, he is holding including the promotional posts, unless he is reverted or his services are dispensed with by following due process of law, as may be provided in the service rules. In case an employee is charged of misconduct and charge sheet is issued, it has to contain precise and specific charges along with the evidence which the department wants to rely upon, in proving the charge and the charges along with the copy of documents should be provided to the delinquent. After asking the reply from the delinquent, the enquiry is to proceed where the charges are to be proved by the department concerned, on the basis of the evidence which the department chooses to produce, oral as well as documentary. The delinquent also has to be provided, adequate and reasonable opportunity to lead evidence in rebuttal, may be oral or documentary or both. It is on the basis of evidence so led and the material available on record that the Inquiry Officer has to apply his mind to find out whether the charge levelled against him stands proved or not. Of course, the degree of proof, with regard to chage is not required to be of that standard which is required in a criminal trial. But even in departmental proceedings, the vague and unclear findings of the Inquiry Officer can not be made basis for inflicting the punishment. Contradictory findings and the conclusion drawn on mere suspicision that too without appreciation the evidence in the correct perspective, in the inquiry report would not and can not be taken as valid, to prove the charges. The charge has to be proved from the material evidence on record and not on mere surmises and conjectures, nor on mere assumption that certain things must have happened. A perusal of the enquiry report shows that on enquiry some charges were found not proved and some charges were found partially or fully proved. The appellant was issued a show cause notice to explain as to why he be not dismissed from service. Reply to the show cause notice was furnished by the appellant and thereafter, on 30.9.1999 an order of dismissal was passed by the disciplinary authority. A perusal of the show cause notice reveals that it lacks manifestly the following two points: 1- It did not show as to out of five charges how many charges were found as not proved or partially or fully proved. 2- It included certain charge which was not the subject matter of the Inquiry nor was mentioned in the charge sheet, namely, some charge about misappropriation of Rs. 84,450/- The disciplinary authority before issuing show cause notice was under legal obligation to satisfy himself, whether the charges stood proved on the basis of material on record and whether there is any procedural defect in holding the Inquiry and after being satisfied on these two counts, the show cause notice could have been issued but that too on the basis of charges on which the Inquiry has been held and after taking into consideration the inquiry report and the material available on record relating to the inquiry, but the disciplinary authority was having no power or authority to introduce any new charge in the show cause notice and require the delinquent to submit his explanation. The introduction of new charge that, too of financial irregularity persuades us to hold that while issuing show cause notice, the disciplinary authority did not apply his own mind and was guided by extraneous consideration. It can not be spectulated, that if charge of financial irregularity had not been mentioned in the show cause notice, the disciplinary authority still would have proposed, the major punishment of dismissal from service, as it is not possible to gauge in what manner and to what extent, this charge had influenced the mind of the disciplinary authority. In departmental appeal, however, the Board of Director modified the aforesaid punishment of dismissal from service, to reversion from the post of Field Supervisor to the post of clerk cum cashier. The order of reversion was stayed in the writ petition by the order dated 8.2.1990. The writ petition was initially dismissed, though interim order was made absolute by the learned Single Judge on 1.4.1997 against which two special appeals were filed, one each by both the parties and the matter was remanded to the learned Single Judge after setting aside the order of the learned Single Judge. It is after the aforesaid remand order, the writ petition has been allowed by the order under appeal. The charges, thus, having not been found proved in accordance with law the punishment awarded required consideration by the Court. The learned Single Judge allowed the writ petition by recording cogent reasons to which this Court agrees and does not find any ground to interfere in the order. The special appeal , therefore, deserves to be dismissed. Before parting we would like to put on record that according to the appellants counsel this fact is being admitted by the respondent counsel also that the respondent despite the interim order passed by this Court against the order of reversion as far back as in February, 1990 has not been allowed to resume duty on his original post which he was holding before reversion and he is also not being paid salary of the said post and rather the Bank is treating the respondent under suspension who is being paid only subsistence allowance. There was neither any occasion nor any authority with the Bank to treat the respondent under suspension, may be that the respondent was under suspension when an order of dismissal from service was passed. On passing of the final order of punishment, the suspensionorder merges in the said order. The suspension order is, therefore, no more in existence. The dismissal order was set aside and modified by passing the order of reversion which was the final order of punishment, and, therefore, by no stretch of imagination, it could be said that the suspension order was operative any more. In a case of suspension, when final order is passed inflicting some punishment, the suspension order merges with final order and it does not remain operative any further. In a case where the dismissal order is set aside by the Court, the delinquent can not be stopped from resuming his duty on the post, to which he is expected to work. We repeatedly asked the learned counsel for the appellants, Shri Asit Chaturvedi as to why they did not allow the respondent to resume duty despite the order passed by the learned Singe Judge and why the respondent is not being paid salary and he is being paid only subsistence allowance, Shri Chaturvedi could not give any satisfactory answer. We under the circumstances, observe that the aforesaid action of the Bank, not being in conformity with any Rule and rather being in violation of the courts order, is to be deprecated. The respondent is entitled to all the arrears of salary in the given pay scales with all increments etc. and all consequential benefits from the date he was ordered to be reverted. Since these amount should have been paid immediately on the date of stay of the reversion order, we further provide that he would be entitled to interest @ 12% per annum on all arrears till the arrears are paid. Since we have upheld the order of learned Single Judge, setting aside the order of reversion, the respondent would also be entitled to all the salary from the date of suspension for the period during which he was under suspension. We, for the reasons stated hereinabove, dismiss the special appeal and confirm the order passed by the learned Single Judge. The respondent shall be allowed to resume duty on the post which he was holding prior to the passing of the final order of reversion, further he shall also be paid the entire arrears of salary within two months alongwith interest as directed above and other consequential benefits shall also be made available to him within a period of two months. We order accordingly, special appeal has no force, which is, accordingly, dismissed.