Satish Kumar v. Sarva Haryana Gramin Bank And Others








 

 





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0"-&. Based on IRs/special reports/complaints once comments of concerned official has been called for and replies/views were submitted by him, the competent authority will take a view for dropping or otherwise, )),1  23       1   14&     &)  & 5 &2  , 6 ,&  1   2)2 & & &)1)) 


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  2However, in such cases, the HO will examine the reasons for delay and if required, will take appropriate action against the officials who are responsible for such delay.

"-. Further, in case of investigation conducted subsequent to two Regular inspections after sanction/disbursement of credit facilities, no fresh "pre sanction lapses" other than those pointed out through Regular Inspection Report be considered for fixing of accountability unless there is element of fraud / malafide etc., within the following stipulations:

(i) If the fraud has been perpetrated by the borrower on the bank, the clause of two successive inspection report shall continue. (ii) In case of malafide action or collusion of staff with the borrower or fraud is perpetrated on bank by the staff members, then the time line shall not be applicable.

(iii) If a fraud is perpetrated/committed by any staff member, stern action will be taken against such staff member in terms of this policy." . 


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 7+28&& 9 3.3.1 Reporting of fraud cases will be done as per the provisions of Fraud Risk and Investigation Management Function Policy. Investigation in frauds cases will be carried out irrespective of amount, within the following stipulations - (i) If the fraud has been perpetrated by the borrower on the bank, the clause of four years shall continue. (ii) In case of malaside action or collusion of staff with the borrower or fraud is perpetrated on bank by the staff members, then the time line shall not be applicable.

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(iii) If a fraud is perpetrated/committed by any staff member, stern action will be taken against such staff member in terms of this policy.

3.3.2. In cases wherein staff accountability was examined & subsequently a fraud (Borrowal or Non2Borrowal) has been reported, after investigation/reinvestigation, the matter shall be placed before HOSAC again to peruse the reasons/ causative factors of fraud based on Forensic Audit/ Fraud Monitoring Report (FMR) or investigation report(s).

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(3)The officer or employee against whom disciplinary proceeding has been initiated  )) &      &       2

 but the disciplinary proceeding shall continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof.

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Explanation. 2 For the purposes of this regulation, the normal retirement benefits such as encashment of privilege leave and Gratuity may be withheld till the completion of the disciplinary proceeding and passing of final order by the Competent Authority and the release of benefits shall be as per the final order of the Competent Authority."
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(1) The competent authority may withhold or withdraw a pension or a part there of, whether permanently or for a specified period, and order recovery from pension of the whole or part of any pecuniary loss caused to the Bank if in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence or criminal breach of trust or forgery or acts done fraudulently during the period of his service: Provided that before passing any final orders under this sub2regulation, the Board shall be consulted: Provided further that where a part of pension is withheld or withdrawn the amount of pension drawn by a pensioner shall not be less than the minimum pension payable under these regulations:

Provided also that departmental proceedings, if instituted while the employee was in service, shall, after the retirement of the employee, be deemed to be the proceedings under these regulations and shall be continued and concluded by the authority by which they were commenced in the same manner as if the employee had continued service.

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(3) Where the competent authority orders recovery of pecuniary loss from the pension, the recovery shall not ordinarily be made at a rate exceeding one third of the pension admissible on the date of retirement of the employee." . 


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"10.30 In view of the various decisions, it is apparent that under Rule 34.2 of the CDA Rules inquiry can be held in the same manner as if the employee had continued in service and the appropriate major and minor punishment commensurate to guilt can be imposed including dismissal as provided in Rule 27 of the CDA Rules and apart from that in case pecuniary loss had been caused that can be recovered. Gratuity can be forfeited wholly or partially.

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 &   &   1)    &     ) Because of the legal fiction provided under the rules, it can be completed in the same manner as if the employee had remained in service after superannuation, and appropriate punishment can be imposed. Various provisions of the Gratuity Act discussed above do not come in the way of departmental inquiry and as provided in Section 4(6) and Rule 34.3 in case of dismissal gratuity can be forfeited wholly or partially, and the loss can also be recovered. An inquiry can be continued as provided under the relevant service rules as it is not provided in the Payment of Gratuity Act, 1972 that inquiry shall come to an end as soon as the employee attains the age of superannuation.

We reiterate that the Act does not deal with the matter of disciplinary inquiry, it contemplates recovery from or forfeiture of gratuity wholly or partially as per misconduct committed and does not deal with punishments to be imposed and does not supersede the Rules 34.2 and 34.3 of the CDA Rules. The mandate of Section 4(6) of recovery of loss provided under Section 4(6)(a) and forfeiture of gratuity wholly or partially under Section 4(6)(b) is furthered by the Rules34.2 and 34.3. If there cannot be any dismissal after superannuation, intendment of the provisions of Section 4(6) would be defeated.

The provisions of section 4(1) and 4(6) of Payment of Gratuity Act, 1972 have to be given purposive interpretation, and no way interdict holding of the departmental inquiry and punishment to be imposed is not the subject matter dealt with under the Act.

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10.32 Thus considering the provisions of Rules 34.2 and 34.3 of the CDA Rules,   ;,& &      

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"17. The Scheme of Rules, 1978 with which we are presently concerned was earlier examined by a two Judge Bench of this Court in the case of <1  

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) * > ?  -".  $$ . The view expressed by the two Judge Bench of this Court came up for consideration in the instant case before another two Judge Bench of this Court and this Court was of the view that in Jaswant Singh Gill(supra), the issue of permissibility of penalty of dismissal or removal from service on a retired employee was neither raised nor any direct discussion has been followed thereupon and taking note of the stated parimateria Rule 19(3) of the State Bank of India Officers Service Rules, 1992 examined by the three Judge Bench of this Court in : 65  +*):

6 8   ""-". # and keeping in view the discussion in the case of Jaswant Singh Gill(supra), the two Judge Bench of this Court was of the view that the question as to whether the disciplinary authority has necessary powers to impose penalty of dismissal or removal to an employee after retirement from service requires to be examined by a larger Bench of this Court by its judgment dated 29th October, 2013 which has been placed before us for consideration.

xxx xxx xxx

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22. Under the scheme of Rules 1978, apart from the procedure which has to be followed for imposing minor/major penalties after holding a procedure prescribed under Rule 29 or 31 of the scheme of Rules, special procedure has been provided under Rule 34 for meeting out certain exigencies. Rule 34.1 is couched with a non2obstante clause which could be invoked in the special circumstances indicated under clauses (i) to (iii) notwithstanding a procedure for holding a disciplinary inquiry provided under Rule 29 or 31 of the Rules while inflicting penalties specified under Rule 27 of the Rules. At the same time, for the delinquent employee who stood retired from service pending disciplinary enquiry, a special procedure has been provided under Rule 34.

2 to continue and conclude such disciplinary proceedings in the same manner as if the delinquent employee had deemed to be continued in service for all practical purposes and with the aid of Rule 31.3 which cannot exist without Rule 34.2, the authority competent may withhold the payment of gratuity during pendency of the disciplinary proceedings and order for recovery from gratuity of the whole or part of the pecuniary loss caused to the company, if the delinquent employee is later held to be guilty of offences/misconduct or it has caused any pecuniary loss to the company by misconduct or negligence during discharge of official duties as a measure of penalty mentioned under Rule 34.3 of the Rules, 1978 or under sub2section (6) of Section 4 of the Act, 1972.

At the same time, if the delinquent employee is exonerated in the disciplinary inquiry, he will be entitled for the gratuity in the event of delayed payment in terms of Section 7(3) and 7(3A) of Act, 1972.

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"12. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show2cause notice vide B3& B

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 ,  It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

14. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show2cause notice or charge sheet.

15. No doubt, in some very rare and exceptional cases the High Court can quash a charge2sheet or show2cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter." . 


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"12. Despite the well2settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. 5 &2) ,2&

 



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(a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

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(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience." . 


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"29. In Union of India v. R.K. Sharma [(2001) 9 SCC 592 : 2002 SCC (Cri) 767 : AIR 2001 SC 3053] , this Court explained the observations made in Ranjit Thakur [Ranjit Thakur v. Union of India, (1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113 : AIR 1987 SC 2386] observing that if the charge was ridiculous, the punishment was harsh or strikingly disproportionate it would warrant interference. However, the said observations in Ranjit Thakur [Ranjit Thakur v. Union of India, (1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113 : AIR 1987 SC 2386] are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely

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because it considers the punishment to be disproportionate. 5 1 )  ), 3&1 &   & 1 2 ,   ),   &)  &)  1   & )  ), &2   

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