Dismissal Vitiated Where Employer Fails To Supply Documents Or Produce Original Inquiry Record Despite Court's Direction: Allahabad High Court

The Allahabad High Court has held that disciplinary proceedings are vitiated where the employer does not supply the delinquent employee copies of the documents used against him and, despite a direction of the Court, fails to produce the original inquiry record on the plea that it has been misplaced.

It held that the employer must establish from the inquiry record that a fair opportunity of defence was given, and that where the record is unavailable, that burden is not discharged.

Justice Garima Prashad held,

“The order dated 21.11.2006 directing production of the original record was thus not an empty formality. The Bank had conducted the disciplinary proceedings and relied on them to support the dismissal. It was required to preserve and produce the record after the disciplinary action was challenged before this Court.”

Petitioner, a peon in Punjab National Bank appointed in 1986, was placed under suspension in 1994. As no charge-sheet followed for a considerable period he moved the High Court, and a charge-sheet dated 19.09.1996 was served. The main allegation was that he had helped open an account in the name of one Vijay Kumar, controlled the cheque book and facilitated withdrawals in transactions of about Rs.3,15,700/-. He denied the charges and sought copies of the documents he needed for his defence.

The inquiry ran from January 1997 to November 1998. Of the six charges framed, charges 1, 2 and 4 to 6 were held proved and charge 3 partly proved. Petitioner received the inquiry report on 18.05.1999, was heard on 20.05.1999 and was dismissed on 21.05.1999. His appeal was rejected on 28.09.1999. He attained superannuation in 2018 while the writ petition remained pending.

Petitioner pleaded that the documents he had asked for were never supplied and that, without the original record, the Bank could not prove the opportunities claimed in its counter affidavit. Reliance was placed on Managing Director, ECIL, Hyderabad v. B. Karunakar and others.

The Bank submitted that a departmental inquiry is governed by the standard of preponderance of probabilities, the petitioner led no defence evidence, and relied on State of Uttar Pradesh v. Rajit Singh to state that any defect should lead to the inquiry being continued from the stage at which it occurred.

The original record, directed to be produced on 21.11.2006, was never produced. In 2012 the Bank sought exemption, saying it had perhaps been lost when administrative control of the Unnao branch shifted from Lucknow to Kanpur. The Court found that explanation incomplete.

“It states that the record was “perhaps” lost or misplaced during shifting, but does not state when the shifting took place, when the loss was discovered, what searches were made, who had custody of the file or why the record was not reconstructed.”

The Court observed that although there was no material on which it could find that the inquiry had been manipulated, the Bank relied on the inquiry to sustain the dismissal yet could not produce the record by which its fairness could be tested. The photocopies available did not show whether documents were supplied, how the evidence was recorded or how objections were decided.

On the time allowed to the petitioner after he received the inquiry report, the Court held,

“Two clear days were not enough to examine the findings of an inquiry conducted over nearly two years and respond to the proposed punishment of dismissal.”

Holding that the Bank had not shown that the petitioner received the necessary documents or an effective opportunity of defence, and that real prejudice had resulted, the Court held the dismissal and appellate orders vitiated.

On whether a fresh inquiry could now be ordered, the Court held that the Bank had placed before it no provision in the Bipartite Settlement or the applicable service rules permitting disciplinary proceedings to continue or be instituted after retirement. Relying on Bhagirathi Jena v. Board of Directors, O.S.F.C. and others, it held that a fresh inquiry could not be directed.

Accordingly, the writ petition was allowed and both orders quashed. The respondents were directed to treat the petitioner as having remained in continuous service until his superannuation in 2018, re-fix his pay notionally, determine his pension and other admissible retiral benefits on that basis, and pay him fifty per cent of the salary and allowances as back wages from 21.05.1999 to superannuation, within three months, failing which retiral dues would carry simple interest at six per cent per annum.