Raghwendra Pratap Singh V. The Union of India and Central Bank of India and The General Manager, Central Bank of India and The General Manager (Human Resources Development), Central Bank of India and The Zonal Manager, Central Bank of India, Muzaffarpur Zone, Bihar and The Regional Manager, Central Bank of India, Motihari

CWJC/8090/2012

AI Insights

The case involves Raghwendra Pratap Singh, who was appointed as a Probationary Officer at Central Bank of India and later terminated during his probation period due to his involvement in a criminal case where he impersonated another individual to appear for a recruitment interview. The petitioner challenged the termination order, arguing that it was issued without a proper departmental inquiry and by an officer lower in rank than the appointing authority, thus violating Article 311 of the Constitution of India. The respondents defended the termination, citing the petitioner's criminal actions and the provisions of the appointment letter that allowed termination without a detailed inquiry under such circumstances.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 820926 (HC-PATNA)
• Appeal Type: Others
• Pronouncement Date: 02-09-2013
• Assessment Year: misc
• Other Referred Cases: State Bank of India & Ors Vs. Palak Modi and Anr, Jagdish Mitter Vs. The Union of India, The State of Bihar Vs. Gopi Kishore Prasad, Chairman, Ganga Yamuna Gramin Bank & Ors. Vs. Devi Sahai, Samsher Singh Vs. State of Punjab & Anr
• Laws Referred To: Article 226 of the Constitution of India, Indian Penal Code
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: RAJEEV PRASAD
• Assessee Lawyers: AMRIT ABHIJAT
• Keywords: Criminal prosecution; Departmental Enquiry; Extra ordinary writ jurisdiction; Impersonation; Termination of service; Probationary officer
• Section: 468; 120-B; 120-B; 420; 471; 467

Judgement Text

"IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8090 of 2012 ====================================================== Raghwendra Pratap Singh , son of Shri Narayan Singh, resident of Shyam Nagar, P.O. + P.S. Bhula, District- Dhanbad ( Jharkhand) .... .... Petitioner Versus 1. The Union of India , through the Secretary, Department of Finance, Government of India, New Delhi 2. The Central Bank of India, through Chief Managing Director, Central Office, Mumbai-400021 3. The General Manager, Central Bank of India, Central Office, Mumbai- 400021 4. The General Manager( Human Resources Development), Central Bank of India, Central Office, Mumbai-400021 5. The Zonal Manager, Central Bank of India, Muzaffarpur Zone, Bihar 6. The Regional Manager, Central Bank of India, Motihari .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Amrit Abhijat, Adv. For the Respondent/s : Mr. Rajeev Ranjan Prasad, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER ------------------- 12 02-09-2013 Heard Sri Amrit Abhijat, learned counsel for the petitioner and Sri Rajeev Ranjan Prasad, learned counsel appearing on behalf of Respondent nos. 2 to 6. 2. The petitioner, while invoking extra ordinary writ jurisdiction of this Court under Article 226 of the Constitution of India, has prayed for quashing of an order ,contained Memo No.RO/HRD/2011-12/98 dated 06.03.2012 issued by the Respondent no.6/the Regional Manager, Central Bank of India, Motihari (Annexure-5 to the writ petition), whereby services of Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 2 / 19 2 the petitioner as Probationary Officer has been terminated in terms of violation of conditions mentioned in the appointment letter of the petitioner. 3. The facts, which are not in dispute, are that the petitioner was appointed, vide Annexure-1 to the writ petition, as Assistant Manager in Junior Management Grade/Scale I (Main Stream) on certain conditions. He was appointed on probation for a period of two years from the date of joining. The appointment letter is dated 26th February, 2010. While the petitioner was on probation, he was arrested in Patna Gandhi Maidan P.S.Case No.10 of 2012 registered for offence under Sections 420,467,468,471 and 120 B of the Indian Penal Code. The allegation was that the petitioner in the name of one Shri Kumar Shanu had appeared in an interview for appointment of Probationary Officer on 11.01.2012. However, after query made by the authority concerned, he stated true fact and he gave in writing to the Assistant General Manager (HR), SBI that he did not appear in the written test and different person named Sri Vineet Kumar had appeared in the written test. The written admission of the petitioner was made part of the F.I.R. Subsequently, vide Annexure-3 to the writ petition, after noticing the fact that the petitioner was detained in a police case, as Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 3 / 19 3 indicated above, for the period of his detention, an order was passed treating him under suspension. Thereafter, vide Annexure- 3/1 to the writ petition, a Memo was issued, whereby the petitioner was informed regarding such allegation, which was replied and finally vide Annexure-5 to the writ petition, the services of the petitioner was terminated in terms of condition, as contained in the appointment letter of the petitioner. In the order impugned i.e. Annexure-5 to the writ petition, it has been indicated that for violation of condition (5) of the appointment letter of the petitioner, his services was terminated, which is under challenge in the present writ petition. 4. Sri Amrit Abhijat , learned counsel for the petitioner, while assailing the impugned order, has raised three grounds, which are as follows: (i) It has been argued that in the order impugned, it has been alleged that terms and conditions of Clause (5) of the appointment letter has been violated, whereas Clause (5) of the appointment letter was not at all applicable in the facts and circumstances of the present case. (ii) The order of punishment i.e. impugned order has been issued by an officer, who is lower in the rank than the appointing authority of the petitioner. The petitioner was Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 4 / 19 4 appointed by the General Manager. However, order impugned was issued by the Regional Manager and, as such, it is in violation of Article 311(1) of the Constitution of India (iii) Though Annexure-5 is punitive in nature, without initiating departmental enquiry or regular enquiry, order of punishment has been passed and, as such, it is in derogation of Article 311(2) of the Constitution of India. 5. While elaborating ground no.(i), learned counsel for the petitioner has firstly drawn attention of the Court to Clause (5) of the appointment letter i.e. Annexure-1 to the writ petition, which is as follows: “5. You will be on probation for a period of 2 years from the date of your joining the Bank. Your confirmation in the Bank will be subject to your making satisfactory progress during the probation period and attaining the standard required by the Bank, failing which, the Bank may decide to terminate the appointment or choose to extend the probation period to give you further opportunity and time to attain the required standard.” 6. It has been argued that it is true that the petitioner was arrested in a case, but it may not be termed as making no satisfactory progress during his probation period and, as such, Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 5 / 19 5 Clause (5) , according to learned counsel for the petitioner, was not applicable. 7. In respect of ground no.(ii), it was submitted that the order of punishment has been passed by an officer subordinate to the appointing authority. He has simply referred to Article 311(1) of the Constitution of India and says that the order impugned, on bare perusal, is contrary to Article 311(1) of the Constitution of India and, as such, it is liable to be set aside. 8. In respect of ground no.(iii), learned counsel for the petitioner has heavily relied on number of Judgments of the Hon‟ble Apex Court, particularly (i) 2013(S) Supreme 321 ; State Bank of India & Ors Vs. Palak Modi and Anr, (ii)( 1964)1 LLJ 418 ; Jagdish Mitter Vs. The Union of India and (iii) (1960) 1 LLJ 577; The State of Bihar Vs. Gopi Kishore Prasad. Learned counsel for the petitioner has specifically referred to paragraph nos. 13 to 15 of Palak Modi‟s case (supra). For just decision in the matter, it would be appropriate to quote paragraph nos.13 to 15 of Palak Modi‟s case, which are as follows: “13. In State of Bihar v. Shiva Bhikshuk Mishra (1970) 2 SCC 871, the three Judge Bench considered the question whether the respondent‟s reversion from the post of Subedar- Major to that of Sergeant in the backdrop of an inquiry made into the allegation of assault on his subordinate was punitive. Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 6 / 19 6 On behalf of the appellant, reliance was also placed on the judgments in State of Punjab v. Sukh Raj Bahadur (supra) and Union of India v. R. S.Dhaba, Income-tax Officer, Hoshiarpur, 1969 (3) SCC 603 and it was argued that the order of reversion cannot be treated as punitive because it did not contain any word of stigma and the High Court committed an error by relying upon the inquiry conducted by the Commandant for coming to the conclusion that the order of reversion was punitive. While rejecting the contention, this Court observed: “We are unable to accede to the contention of the appellant that the ratio of the above decision is that so long as there are no express words of stigma attributed to the conduct of a Government Officer in the impugned order it cannot be held to have been made by way of punishment. The test as previously laid and which was relied on was whether the misconduct or negligence was a mere motive for the order of reversion or whether it was the very foundation of that order. In Dhaba case, it was not found that the order of reversion was based on misconduct or negligence of the officer. So far as we are aware no such rigid principle has ever been laid down by this court that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Government Officer it must be held to have been made in the ordinary course of administrative routine and the court is Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 7 / 19 7 debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. The form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order.” 14. In Samsher Singh v. State of Punjab (1975) 1 SCR 814, a seven-Judge Bench considered the legality of the discharge of two judicial officers of the Punjab Judicial Service, who were serving as probationers. A. N. Ray, CJ, who wrote opinion for himself and five other Judges made the following observations: “No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 8 / 19 8 of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution. The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may, in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case, the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside”. Krishna Iyer, J, who agreed with the learned Chief Justice, made the following concluding observations: “Again, could it be that if you summarily pack off a probationer,the order is judicially unscrutable and immune? If you conscientiously seek to satisfy yourself about allegations by some sort of enquiry you get caught in the coils of law, however harmlessly the order may be phrased? And so, this sphinx-complex has had to give way in later cases. In some cases the rule of guidance has been stated to be „the substance of the matter‟ and the „foundation‟ of the order. When does „motive‟ trespass into „foundation‟? When do we lift the veil of „form‟ to touch the „substance‟? When the Court says so. These „Freudian‟ frontiers obviously fail in the work-a-day world and Dr Tripathi's observations in this context are Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 9 / 19 9 not without force.” 15. In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Krishna Iyer, J. considered as to when the termination simpliciter can be termed as punitive and observed: “A termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case, the grounds are recorded in different proceedings from the formal order, does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used. On the contrary, even if there is suspicion of misconduct, the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 10 / 19 10 discharge.” 9. Sri Amrit Abhijat, learned counsel for the petitioner submits that if termination order is being passed by way of punishment as per settled law, regular enquiry was necessary. Since the order impugned puts stigma against the petitioner without enquiry, the order impugned is liable to be set aside. On the aforesaid grounds, he has argued to set aside the impugned order. 10. Sri Rajeev Ranjan Prasad, learned counsel appearing on behalf of the Respondents has vehemently opposed the prayer of the petitioner. Firstly, he has argued that although along with the writ petition, the petitioner has brought on record copy of the F.I.R., to the reasons best known to the petitioner, he has brought on record truncated copy of the F.I.R., which warrants a direction for initiation of criminal prosecution against the petitioner on the allegation of concealment of facts. He has referred to a complete copy of the F.I.R., which has been brought on record along with counter affidavit. He has specifically shown internal page-15 of the counter affidavit i.e. a written note in the name of Kumar Shanu , which is quoted herein below: “I have not taken written examination in my seat. It has given by some another candidate. I am very sorry for this what I have done. I do not want to appear in Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 11 / 19 11 interview for the selection of P.O.” 11. Learned counsel for the Respondents submits that it is not in dispute that the petitioner was arrested while he was impersonating as Kumar Shanu. Regarding arrest of the petitioner, he submits that even the petitioner has not disputed this fact and the petitioner was in custody. It has further been argued that since the petitioner was on probation in the Bank service, he may not get protection of Article 311 of the Constitution of India. It has been argued that such protection is available to a person, who is occupying civil post either in the State or in the Union of India. He has also relied on a Judgment of the Hon‟ble Apex Court, reported in AIR 2009 SC 2126, Chairman, Ganga Yamuna Gramin Bank & Ors. Vs. Devi Sahai . He has specifically referred to paragraph no.10 of the said Judgment, which is quoted herein below. “10. Concededly again, the guidelines issued by NABARD laying down the procedure to be adopted for disciplinary action in Regional Rural Banks were made part of the Regulations. Even after coming into force of Act No. 1 of 1988, regulations were not amended. Issuance of second show cause notice for the purpose of obtaining the views of delinquent officer in regard to quantum of punishment is not a part of the common law principles of natural justice. Such a provision could be laid down by reason of a statute. The respondent does not Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 12 / 19 12 enjoy any status. The service conditions of employees of Regional Rural Banks are not protected in terms of Article 311(2) of the Constitution of India.” 12. On the aforesaid ground taking aid of the law of the Hon‟ble Apex Court, as indicated above, he has argued that both the questions i.e. application of Article 311(1) and 311(2) of the Constitution of India, which has been vehemently raised by the petitioner, are not applicable in the facts and circumstances of the present case. He further submits that otherwise also ground no.(ii) i.e. application of Article 311 (1) of the Constitution of India is not applicable in the present case due to the reason that in the present case, the order impugned has been passed by the competent authority i.e. Regional Manager . On this very point he has referred to Clause 16.3 of the Central Bank of India (Officers) Service Regulations 1979 (hereinafter referred to as “the Regulations”). For just decision in the matter, it is quoted herein below: “16.3. For various grades/Scales of officers the Competent Authority is as under: Junior Management Grade/ Scale I- Regional Manager Middle Management Grade/Scale II & III- Zonal Manager Senior Management Grade/ Scale IV- General Manager(P) Senior/Top Management Grade/Scale V, VI, VII- Executive Director/Managing Director.” Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 13 / 19 13 13. Learned counsel for the Respondent/Bank submits that in the case of Junior Management Grade/Scale I, the Regional Manager, as per Clause 16.3 of the Regulations, is competent to pass any such order. According to Sri Prasad, , even if for the time being, it is accepted that Article 311 is applicable in the Bank Services, the petitioner may not get any benefit , since the order has been passed by the competent authority. He further submits that it is true that in the impugned order, violation of Clause (5) has been mentioned, but he submits that order impugned is to be looked into in its entirety in view of conditions imposed in the appointment letter. He submits that Clause (5) of the appointment letter itself indicates that during the probation period, one must attain standard as required by the Bank, but fact remains that the Clause (6) is specifically applicable in the present case. He has referred to Clause ( 6) of the appointment letter, which is quoted herein below “6. Your confirmation in the Bank‟s service will also be subject to receipt of satisfactory report regarding your character and antecedents from the District/ Police authorities. If the said enquiries are not completed before you become due for confirmation in the Bank, you will be appointed/ confirmed in the Bank subject to receipt of satisfactory reports thereof. In the event of any adverse report being received from the Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 14 / 19 14 Police authorities, your services are liable to be terminated without assigning any reason.” 14. He submits that in view of Clause (6) of the appointment letter, in the event of any adverse report being received from the police, termination order can be issued without assigning any reason. In the present case, he has argued that information was received regarding arrest of the petitioner in Patna Gandhi Maidan P.S. Case No. 10 of 2012 and, as such, though in the impugned order of Clause (6) of the appointment letter has not been mentioned, but fact remains that the condition of appointment was violated and, as such, there was no reason for initiating any regular departmental enquiry and, as such, in terms of provision, contained in Central Bank of India Officer Employees‟ (Conduct) Regulations,1976, his service was terminated since the petitioner was on probation. He submits that termination of service of an employee/officer on probation in accordance with the terms of his appointment is not a penalty. Sri Rajeev Ranjan Prasad has referred to Explanation (vii) (a) to Clause 4 of Central Bank of India Officer Employees‟ ( Conduct) Regulation, 1976. It would be appropriate to quote Explanation (vii)(a) to Clause 4 of the Regulations, which is as follows: Explanation – The following shall not amount to a penalty within the meaning of this regulation , namely:- (i)….. Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 15 / 19 15 (ii)…. (iii)…. (iv)… (v)… (vii) termination of the service:-- (a) of an officer employee appointed on probation, during or at the end of period of probation, in accordance with terms of his appointment, or the rules or orders governing such probation:” 15. He submits that Explanation (vii) (a) to Clause 4 makes it clear that termination of a probationer in terms of his appointment is excluded from the definition of penalties and, as such, the order impugned is termination simpliciter and not a penalty or punishment. It has further been argued that merely mentioning a fact regarding report received from Adapur Branch and corroborative information collected from police authority in the impugned order (Annexure-5) may not treated as aspersion against the petitioner. This is the truth, which has not been disputed. He has further relied on (1974) 2 SCC 831; Samsher Singh Vs. State of Punjab & Anr, on the point that in a case of termination simpliciter, there is no requirement for initiation of departmental proceeding. He has specifically referred to paragraph-65 of the Judgment, which is quoted herein below: “65. The fact of holding an enquiry is not always conclusive. What is decisive is whether the order is really by way of punishment (see State of Orissa Vs. Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 16 / 19 16 Ram Narayan Das). If there is an enquiry, the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance (see Madan Gopal V. State of Punjab). In R.C. Lacy Vs. State of Bihar, it was held that an order of reversion passed following an enquiry into the conduct of the probationer in the circumstances of that case was in the nature of preliminary inquiry to enable the Government to decide whether disciplinary action should be taken. A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311(2) (See R.C. Banerjee Vs. Union of India). A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Article 311(see Champaklal G. Shah Vs. Union of India). On the other hand, a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment ( See Jagdish Mitter Vs. Union of India)” 16. In view of proposition of law laid down by seven Judges Bench of the Hon‟ble Apex Court in Shamsher Singh Case (supra), it has been argued that since the order impugned is not punitive in nature, there was no requirement for initiation of departmental proceeding and order impugned may not be interfered with. Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 17 / 19 17 17. Besides hearing learned counsel for the parties, I have also perused the materials available on record. So far the fact is concerned, it is not in dispute that the petitioner was arrested in a case of impersonation that too, while appearing in an interview for appointment on the post of Probationer Officer in the name of one Kumar Shanu. In the present case, as per Annexure-1 to the writ petition, it is evident that services of the petitioner was liable to be terminated since he was on probation, in case of violation of any terms and conditions of the appointment letter. Fact remains that the petitioner was made an accused and he was arrested in a police case, which has not been disputed by either of the parties. This information was gathered by the Respondent/Bank and this was the reason for issuance of order of termination, as contained in Annexure-5 to the writ petition. From Clause (6) of appointment letter, it is very much evident that in case of receipt of any information from the police regarding involvement of a probationer, his service was liable to be terminated. Of course, in the order impugned, instead of mentioning Clause (6), Clause (5) has been mentioned, but even Clause (5) also indicates that one has to attain standard required by the Bank. Certainly, if a probationer is arrested while impersonating a candidate, that too in an interview for Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 18 / 19 18 appointment of Probationary Officer, it may be sufficient to prove that the Probationer had not attained standard as required by the Bank. Moreover, in the present case, the Bank had got information from the police regarding his arrest in such nature of offence and, as such, ground no.(i), which has been raised by the petitioner is not sustainable in the eye of law. So far as application of Article 311 of the Constitution of India is concerned, from bare perusal of Article-311, it is evident that it would be available to a person, who is holding a civil post either in the State or in the Government of India. Moreover, in view of law laid down by the Hon‟ble Apex Court, reported in AIR 2009 SC 2126; Chairman, Ganga Yamuna Gramin Bank & Ors Vs. Devi Sahai, which has been heavily relied upon by Sri Rajeev Ranjan Prasad, learned counsel for the Respondents, there was no point for raising applicability of Article 311 of the Constitution of India. Moreover, from perusal of Annexure-5 to the writ petition, the Court is satisfied that it is not punitive in nature, but it is termination simpliciter. So far as question of issuance of order impugned by the Regional Manager is concerned, the Regulation itself provides and authorizes the Regional Manager to act as competent authority and, as such, this point is also not available to the petitioner. Patna High Court CWJC No.8090 of 2012 (12) dt.02-09-2013 19 / 19 19 18. I do not find any ground to interfere with. Accordingly, the writ petition stands dismissed. NKS/- (Rakesh Kumar, J) "