Karnataka High Court
Sri Venkatesh Gururao Kuratti vs The Syndicate Bank, Rep. By The Chairman ... on 16 April, 2004
Equivalent citations: ILR2004KAR2240, 2004(7)KARLJ243, (2004)IIILLJ660KANT
Author: K. Ramanna
Bench: K. Ramanna
JUDGMENT S.R. Nayak, J.
1. Writ Appeal No. 7997 of 1999 preferred by the delinquent and cross-objections preferred by the Management of the Syndicate Bank, are directed against the order of the learned Single Judge of this Court dated 14th June, 1999 passed in Writ Petition No. 12594 of 1991. In the Writ Petition, the delinquent questioned the correctness and legality of the action of the management of the Syndicate Bank removing him from service as a disciplinary measure on certain grounds of misconduct alleged to have been committed by the delinquent. Learned Single Judge by the impugned order, allowed the Writ Petition in part, and, in substitution of the penalty of removal from service imposed by the management of the Syndicate Bank, imposed the reduced penalty of compulsory retirement as a measure of discipline. While doing so, learned Single Judge has observed that the delinquent is entitled for terminal benefits consequent upon imposition of punishment of compulsory retirement. Hence, the appeal by the delinquent complaining that the learned Single Judge ought to have allowed the Writ Petition in its entirety and quashed the disciplinary proceedings and the disciplinary action taken against him by the management of the Syndicate Bank, whereas, the Management of the Bank, in its cross-objections, has contended that the learned Single Judge ought to have dismissed the Writ Petition and there was absolutely no ground made out by the delinquent official for interference with the disciplinary action taken against the delinquent official.
2. The facts of the case, in brief, are as follows:
The appellant joined service of the erstwhile Syndicate Bank (hereinafter referred to, for short, as the "Bank") during October, 1958, in the clerical cadre. In the course of his official career, he earned number of promotions and, when the Bank was nationalised by the Government of India under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, the appellant was a Grade-I officer. He was promoted to Grade-II in the year 1972. The appellant was further promoted to Grade-Ill in the year 1982. The appellant worked as Manager of the Horti Branch of the Bank in Bijapur district from 1976 to 1981. Thereafter, he was transferred to Talikote Branch of the Bank during 1981. Subsequently, the appellant was transferred as Regional Inspector, Madras, in 1982 and after serving there for one year, he was transferred to the Regional Inspectorate, New Delhi, in the year 1983.
3. When the matter stood thus, a charge-sheet containing two charges was issued to the appellant on 05.08.1985 by the Personnel Manager of the Bank. The charges read as follows.
"ARTICLE No. 1.
That during the period between 30.12.1976 and 22.7.1981, you were functioning as manager of our Horti Branch and that while functioning in your position as such, on 20.6.1979, you obtained loan applications and other documents in the name of Sri Shankarappa Malakappa Desai with Sri N.C. Yelasangi as the proposed co-obligant/surety without informing them the purpose for which, they were obtained:
AND Then sanctioned and arranged in their names, a secured loan of Rs. 6,000/ - for the ostensible purpose of working capital requirements of Boosari business, knowingly or having reasons to believe that the said Sri Shankarappa Malakappa Desai was not doing such business;
AND Got the loan proceeds withdrawn and received the same through a withdrawal slip issued in the name of the said Sri Desai, 15 days prior to the arranging of the loan, By your above acts, you failed to discharge your duties with utmost integrity, honesty, devotion and diligence and exhibited conduct unbecoming of a Bank officer and thereby violated Regulation No. 3(1) of the Syndicate Bank Officer Employees' (Conduct) Regulations, 1976.
ARTICLE No. II That during the period between January 1981 and March 1981, you, in connivance with Sri K.B. Bhaskaraiah, the then Farm representative of our Horti Branch, Sri H.K. Hegdeyal, the pigmy collection Agent of the branch, Sri Mareppa P. Talakeri, the then Attendar of the Branch and Sri Parasappa Siddappa Talakeri, father of the said Sri Mareppa P. Talakeri, obtained application forms for sheep loans through the said Sri Mareppa P Talakeri, in the names of either his family members or other poor uneducated people of the village;
AND secured Farm Representative reports from Sri K.B. Bhaskaraiah, the Farm Representative;
AND Sanctioned 12 loans for a total sum of Rs. 48,000/- under the IRDP scheme;
AND Got the loan proceeds withdrawn from the accounts of the borrowers concerned and received the amount either directly or through the accounts of the said Sri Parasappa Siddappa Talakeri, Sri H.K. Hegdeyal and others known to you;
AND in the process, committed various irregularities as more fully described in the statement of imputations of misconduct mentioned hereinbelow;
By your above acts, you failed to discharge your duties with utmost integrity honesty, devotion and diligence and exhibited conduct unbecoming of a Bank Officer and thereby violated Regulation No. 3(1) of the Syndicate Bank Officer Employees' (Conduct) Regulations, 1976."
4. The appellant filed his written statement to the charge sheet on 13.12.1985 denying the charges. The management of the Syndicate Bank, not being satisfied with the explanation offered by the appellant to the charge-sheet, conducted departmental enquiry against him by appointing Sri S.R. Hegde, Divisional Manager (Inspection), Regional Inspectorate, Belgaum, under the Syndicate Bank Officer Employees' (Discipline and Appeal) Regulations 1976, for short, the Regulations. Thereafter, one Sri A. Jagadeesh Rao, Divisional Manager (Inspection), Regional Inspectorate, Belgaum, was appointed as Enquiry Officer, and he conducted enquiry till its conclusion. The Enquiry Officer has held that both the charges are proved. In the meanwhile, the appellant was kept under suspension pending enquiry by office order dated 19.07.1989. The Management of the Syndicate Bank, on receipt of the findings from the Enquiry Officer and accepting the same, by office order dated 29th July, 1989 imposed penalty of removal from service as a disciplinary measure on the appellant. Being aggrieved by the said order, the appellant preferred an appeal on 02.09.1989 to the prescribed authority under the Regulations. The Appellate authority rejected the appeal by its order dated 29th April, 1991. The appellant being aggrieved by the order of the disciplinary authority and that of the appellate authority, preferred Writ Petition No. 12594 of 1991 seeking quashing of both the orders on the grounds: that there are procedural infirmities in conducting departmental enquiry; the enquiry was conducted in violation of principles of natural justice; the charges are vague; the documents sought by the appellant in his representations dated 01.05.1988, 18.01.1989 and 02.02.1989 are not furnished to him and that has resulted in prejudice to the appellant in defending himself in the enquiry. Learned Single Judge has allowed Writ Petition in part and reduced the penalty to that of compulsory retirement. Hence, this appeal by the delinquent officer and cross-objections by the management of the Syndicate Bank.
5. We have heard Sri K. Subba Rao, learned Senior Counsel for the appellant and Sri Radesh Prabhu, learned Counsel for respondents. Sri Subba Rao would contend that the charges framed against the appellant are vague and lacks material particulars. Even the Statement of Imputations of misconduct does not give full relevant particulars of charges. According to Sri Subba Rao, charges are totally a jumble of facts which did not give necessary facts to enable the appellant to meet the charges. Sri Subba Rao would point out that non-furnishing of documents sought by the appellant has greatly prejudiced the case of the appellant. Sri Subba Rao would point that the enquiry officer has treated the statements recorded by the CBI during the investigation as substantive evidence. Sri Subba Rao would contend that an earlier statement recorded cannot be treated as substantive evidence and such a statement can never be used for purposes of corroboration or contradiction. Sri Subba Rao would lastly contend that the findings recorded by the enquiry officer and accepted by the disciplinary authority are perverse, because, the enquiry officer has relied upon inadmissible evidence. Sri Radesh Prabhu, learned Counsel appearing for the management-Cross-Objectors, per contra, would contend that there was no justification for learned Single judge to grant any relief to the appellant; the grounds urged by the appellant are untenable; no ground is made out for this Court to interfere with the disciplinary proceedings and action taken by the management of the Bank under Articles 226 and 227 of the Constitution. Sri Radesh Prabhu would highlight the limitations and scope of judicial review of disciplinary proceedings taken by management under Articles 226 and 227 of Constitution of India and would pray that the Division Bench be pleased to dismiss the writ appeal filed by the delinquent officer and allow the Cross Objections preferred by the management and dismiss the Writ Petition.
6. Having heard the learned Counsel for the parties, the following points arise for decision.
(i) Whether charges framed against the appellant-delinquent officer are vague?
(ii) Whether non-supply of the documents sought by the appellant vitiated the enquiry and the action of the management of the respondent Bank in removing the appellant from service as a disciplinary measure?
(iii) Whether placing reliance on statements previously recorded by CBI by the Enquiry Officer has vitiated the enquiry?
(iv) Whether the findings of fact recorded by the Enquiry Officer are perverse for want of legal evidence?
POINT NO. 1:
7. Charge-sheet is the charter of disciplinary action. The domestic/departmental enquiry commences with the service of the charge-sheet. In other words, before proceeding with the departmental or domestic enquiry against a delinquent official, he must be informed clearly, precisely and accurately of the charges levelled against him. The charge-sheet should specifically set out all charges which the delinquent is called upon to show-cause against and should also state all relevant particulars and details without which he cannot defend himself. The object of this requirement is that the delinquent employee must know what he is charged with and have the adequate opportunity to meet the charge and to defend himself by giving a proper explanation, after knowing the nature of the offence or misconduct with which he is charged, otherwise, it will amount to his being condemned unheard. Fair hearing pre-supposes a precise and definite catalogue of charges so that the person charged may understand and effectively meet it. If the charges are imprecise and indefinite or vague or unintelligible, the person charged could not be able to understand them and defend himself effectively and in those circumstances, the subsequent enquiry would not be a fair and just enquiry. The charged official ought to be informed of the charges levelled against him as also the grounds upon which they are based. Charge of misconduct should not be vague. The charge-sheet must be specific and must set out all the necessary particulars and details irrespective of the fact whether the delinquent knows it or not. The delinquent must be told about the charges clearly and intelligibly and it was not his duty to connect the charge-sheet with his alleged understanding or knowledge of the charge. However, it is true that charges need not be framed with the precision of a charge in criminal proceeding. But, at the same time, it must not be vague or so general as to make it impossible of being traversed. Therefore, the test is whether the charge conveys to the delinquent employee, the exact nature of the alleged misconduct in a way that would enable him to meet the charge effectively. It is well established that if a vague charge is given to a delinquent, it is a fatal defect, which vitiates the entire proceedings. It is also relevant to notice that the vagueness in the charge is not excused on the plea that the employee concerned should be deemed to have known the facts correctly. It should not be left to the delinquent official to find out or imagine what the charges against him are and it is for the employer to frame specific charges with full particulars.
8. In the premise of the above noticed well-settled principles governing judicial review of a charge memo/charge-sheet to a delinquent employee, let us have a look at the articles of charge and the imputations issued to the appellant delinquent in this case. We have already extracted Charge No. 1 and Charge No. 2 above. Article I of the Charge relates to sanction of a fictitious loan of Rs. 6,000/- for the purpose of meeting the working capital requirements of the loanee's Boosari business in the name of one Sri Shivashankarappa Malakappa Desai showing one Sri N.C. Yalasangi as co-obligant/surety. Statement of Imputations of misconduct with regard to Article I of the Charge reads as follows:
"That Sri Shivashankarappa Malakappa Desai has been a customer of the branch maintaining as SB Account No. 235 in the branch.
That on 20.06.1979, you obtained from the said Sri Desai, an application for a loan of Rs. 6000/- for the purpose of meeting the working capital requirements of his Boosari business with Sri. N.C. Yalasangi as proposed coobligant/surety.
That on 20.06.1979 itself, you sanctioned and arranged a secured loan for Rs. 6000/- under OSL 36/79, with Sri N.C. Yelasangi as co-obligant/surety to the transaction.
That on the same day, the proceeds of the said loan were released to the SB A/c.No. 235 of Shri Desai and the same was withdrawn immediately thereafter from the said SB A/c. by means of a withdrawal slip. The said withdrawal slip had been issued by the branch in the name of Shri S.M. Desai on 05.06.1979, when the SB A/c. was showing a credit balance of Rs. 5/- only, as per your instructions. The proceeds of the withdrawal slip were paid to you.
The following irregularities are observed in the matter of the said loan account OSL 36/79:-
i) That Sri S.M. Desai denies his having applied for or received proceeds of the said loan;
ii) That the co-obligant Sri N.C. Yelasangi denies his having stood as surety to the said loan transaction;
iii) That Sri S.M. Desai, the borrower was not doing boosari business either before or at the time of arranging the said loan and he has been an agriculturist by profession;
iv) That the withdrawal slip used for withdrawing the loan proceeds was issued as per your instructions, 15 days prior to the date of applying for arranging the subject loan, when the SB Account No. 235 of Sri Desai was showing a nominal credit balance of Rs. 5/ - only;
v) That the proceeds of the withdrawal slip being Rs. 6000/- were paid to you."
9. We have carefully perused Article I of the Charge as well as particulars and details supplied in the statement of imputations of misconduct with regard to Article I of the Charge. All necessary details and particulars are furnished in the charge and statement of imputations. By no stretch of imagination Article I of charges could be regarded as vague or imprecise, disabling the delinquent to understand what exactly is the charge against him and to defend himself effectively.
10. Article II of the charge deals with 12 'Sheep loans' sanctioned by the appellant in favour of 12 persons. In the statement of imputations of misconduct with regard to Article II, the disciplinary authority has given all necessary and required details and particulars under separate head with regard to each of the 12 loans. The details set out in the statement of imputations refers to the social and occupational status of the purported loanees, how the loan applications were obtained and filed, how the reports of the Farm Representative were obtained, how the accounts were opened, how the proceeds of the loans credited to the respective accounts of the loanees and how the monies were withdrawn and the modus operandi of the appellant and his staff. Having given the aforementioned particulars with regard to each of the loans, the statement of imputations with regard to the Article-II of the Charge gives the following summary of the said Charge:
"Following are the irregularities of loans under items (1), (8) and (9) above, the proceeds withdrawn from the SB Accounts of the borrowers concerned were paid to you by the Cashier as directed by you and the borrowers concerned denied for having applied for the loans or having received the loan proceeds.
(b) That in respect of loans under items (7) and (11) above the proceeds withdrawn from the SB Accounts of the borrowers concerned were credited to SB A/c.No. 93 of Sri H.K. Hegdeyal. The amount subsequently withdrawn from the account of the said Sri H.K. Hegdeyal, were made over to you. The borrowers concerned denied for having applied for the loan or having received the loan proceeds.
(c) That in respect of loans under items (4) and (5) above, the proceeds withdrawn from the SB Accounts of the borrowers concerned, were credited to SB A/c.No. 731 of Sri Parasappa S. Talakeri. The borrower under Item No. (4) denied for having received the loan proceeds.
(d) That in respect of loan under Item No. (10) above the proceeds withdrawn from the borrowers SB A/c. were credited to S.B.A/c.No. 2000 of Smt. T.V. Saraswathi W/o Sri K.B. Bhaskaraiah.
(e) That the loanees relating to items (5) and (10) above, on coming to know about the loans arranged in their names subsequently, had to take up the matter with you either directly or through others to receive the amount.
Though in none of the above case, the loan proceeds were directly remitted to the suppliers of the sheep for effecting delivery of the animals to the borrowers concerned, in all these cases, you obtained and placed on record/stamped receipts evidencing purchase of animals by the borrowers concerned. An inspection conducted during April/May 1982, has revealed that the loans in question were not utilised for the purpose for which they were granted. In other words, the stamped receipts in question were obtained and placed on record, only with a view to create an impression that the loans were granted for a specific purpose under the IRDP scheme, exclusively meant for the people in the lower strata of the society and that end-utilisation of the monies advanced was ...............
II. That borrowers under loan accounts in items (2), (3), (6) and (12) above, were the members of the joint family Sri Parasappa S. Talakeri. The annual income of the said joint family, from all sources was in excess of the ceiling limit of Rs. 2,000/-stipulated for the purpose of eligibility under the DRI Scheme. Therefore, during the material period, the borrowers concerned were not eligible to be financed under the DRI Scheme. However, you sanctioned and arranged loans in their names, violating the guideline governing the DRI Scheme.
III. That in respect of items (1), (4), (5), (7), (8) and (9) above, the withdrawal slips passed for payment by you, were issued on previous dates, without however, obtaining the signatures/Left Hand Thumb Impressions, as the case may be, of the depositors concerned, in the withdrawal slips issued Register. Withdrawal slips in respect of loans under items (2) and (3) above, passed for payment by you, were issued prior to the date of their debit to the respective accounts. In respect of Item No. (11) above, the Withdrawal slip was issued even before the SB Account of the party was opened with the Branch.
In all the above cases, the withdrawal slips in question were issued under your instructions.
iv) That on 24.07.1981, a sum of Rs. 120/- each was credited by Sri Mareppa Talakeri, towards 72 loan accounts, including the 12 accounts referred to above, from the proceeds of a loan of Rs. 10,000/- sanctioned by you to Sri Parasappa on 22.7.1981 i.e. the date of your relief from the branch."
If Article II of the Charge is read with the details furnished in the statement of imputations of misconduct and the summary of Article-II of the charge, it is quite clear that the disciplinary authority has furnished all necessary and required particulars, information, datas to the delinquent in order to enable him to defend himself effectively. Therefore, the contention of Sri Subba Rao that the charges are vague is not well-founded and not acceptable to us.
POINT NO. II:
11. The Charge-sheet and statement of imputation of misconduct were issued on 05.08.1985 and they are marked as Annexures-A and B respectively. Annexure-C is a letter of the appellant addressed to the Personnel Manager, I.B. Section, Personnel Department, Head Office of the respondent Bank at Manipal, after receipt of the charge-sheet. That letter refers to the charge-sheet No. 50/PO. DA-3 Dt. 05.08.1985. In the said letter the appellant has specifically made a grievance to the following effect.
"The transactions cited in your charge-sheet pertain to the years 1979 and 1981. To enable me to reply to the various points raised by you I had requested you to provide the supporting documents/Registers/correspondences. By any stretch of imagination, it can be accepted that a functionary particularly in a financial institution is in a position to have the memory of minute details after a lapse of more than six years."
12. The above letter goes to show that even before submitting his explanation vide Annexure-C, the appellant delinquent had made a request to the management to supply necessary documents/registers/correspondences and that the management did not accede to his request.
13. The appellant has produced a letter of Sri S.R. Hegde Enquiry Officer dated 11th August, 1987 marked as Annexure-G. It reads as follows.
"960-67-530 1987 Aug 11 Sri V. G. Kuratti, Manager (Inspection) Syndicate Bank, Regional Inspectorate, New Delhi-110 005. Dear Sir,
Departmental enquiry against you in the matter of Charge-sheet No. 50-FD-IRS- DA-3 dt.05.08.1985.
As requested by you vide your letter dated September 17, 1986 I am sending enclosed herewith the copies of the following documents:
01. Job Card No. 5 in respect of withdrawals other than leaf Cheques from SB accounts,
02. Letter dated 12.05.1983 addressed by Sri P.S. Talakeri to the Manager, Syndicate Bank, Horti Branch,
03. Letter dated 17.05.1983 of Sri H.K. Hegdeyal addressed to CVO, HO - Manipal.
04. Certificate dated 07.05.1983 issued by V.P.C. Horti.
05. Circular No. 25/82/BC dated 28.01.1982.
06. Circular No. 331/81/BC dated 08.12.1981.
07. Circular No. 312/81/BC dated 24.11.1981.
08. The Government Veterinary Doctor's Certificate for 81 Sheep Units.
09. Insurance Cover Note/Policy for the Sheep Units issued on 18.03.1981.
10. List of identified persons issued by the B.D.O. in respect of borrowers of Horti Village.
11. Ledger extract of OSL accounts of Sri. P. S. Talakeri, indicating the present position.
12 Upto-date loan extractions of the accounts referred to in the charge-sheet, Regarding,
01. Manual of Instructions on Agricultural financing and Rural Development of Syndicate Bank.
02. Syndicate Bank Agricultural Finance Division guidelines for Integrated Rural Development, The Management will produce them during the course of enquiry for the examination/cross-examination of the witness.
The Management also claims the privilege over the following documents which were requested by you in your letter as being confidential in nature and therefore not produced.
01. Correspondence between RO Belgaum and Horti Branch for the year 1980 and 1981 regarding the agricultural credit portfolio, deployment of credit, IRDP loans, arranging credit camps, stock position.
02. Extract of Inspection Reports of Horti Branch for the year 1980, 1981, 1982 pertaining to the transactions referred to in the chargesheet.
03. Report submitted by Sri Vigneshwar Bhat, RDO, regarding the verification of the Sheep Units in respect of the loan in question.
04. Allotment of branch discretionary powers during 1980-81 and the relevant correspondence in the matter.
05. Inspection Rectification Report of 1981 and 1982.
06. Report submitted by DN in respect of his periodical visits to Horti Branch during the year 1980, 1981 and 1982.
It is also represented by the Management that your request for Staff position of the branch for December 1980, June 1981, December 1981, June 1982 and December 1982 indicating the level of Advances and Deposits during the relevant period has not relevance to the enquiry.
Kindly acknowledge receipt of the copies of documents enclosed herewith.
Yours faithfully, (S.R. HEGDE) ENQUIRY OFFICER;"
As could be seen from the above letter, the Enquiry Officer issued the said letter in response to the request of the delinquent officer dated 17th September 1986 for furnishing necessary documents and particulars. In addition to his previous requests to furnish necessary and relevant documents, even after the Enquiry Officer issued Annexure-G dated 11th August, 1987, the appellant made another representation to the Enquiry Officer on 01.05.1988, a copy of which is produced as Annexure-D. It reads as follows:
'To:
Sri S. R. Hegde, Enquiry Officer, Regional Inspectorate, Udupi.
Dear Sir, Reg: Charge Sheet No. 50/PD/IRS/DA/3 Dated 05.08.1985 Ref: Your Letter No. 960/67/0530 Dated 11.08.1987.
Please arrange to send me photo copies of the following papers/documents required by me for my defence in the above said charge sheet.
1) Correspondence between Horti Branch and R.O. Belgaum for the years 1980 and 1981 regarding sanction of IRDP & other Government sponsored scheme loans; sanction of branch discretionary limits and staff allotment.
This type of correspondence is never treated as confidential either by the branch or by the R.O. Hence the 'Privilege' cannot be claimed.
2) Report of Sri Vigneshwar Bhat, RDO regarding the verification of sheep units pertaining to the FL a/cs cited in the charge sheet. This report is a report by an R.D.O. and not investigation/inspection report by the inspection staff or vigilance cell the privilege cannot be claimed for this item also.
3) The particulars of the staff position of the branch, the total deposits/advances of Horti Branch for the years ending 1979, 80, 81, 82 and 1983. This information is quite necessary for my defence in this charge Sheet.
(a) Copies of the Credit Grantee Scheme claims lodged for the loan a/cs cited in the said charge sheet.
(b) Veterinary doctors certificate issued for loans referred in the charge sheet in the year 1981 by Dr. Nimbargi of Government Veterinary Hospital Chadchan.
(c) Identification list issued by the B.D.O. Indi for the loanees cited in the charge sheet during the years 1979/80/81.
The list supplied by you is incomplete.
(d) Sheep sellers statements for loan a/cs cited in the charge sheet,
(e) Copies of the complaints of the loanees.
(f)) Copies of the loan applications, papers, documents with debit and credit steps pertaining is there a/cs and all other relevant documents of there a/cs cited in the charge sheet.
(f) Follow up units inspection report of Sri S.B. Kanthi, R.D.O in respect of the loans cited in the list of documents.
(5) Copies of the following credit slips and the copies of the Managers/Cashiers scroll of these dates;
F.LA/c. 15/81 dt. 18.3.82 Rs. 861/-
38/81 dt. 12.6.82 Rs. 1000/-
19/81 dt. 16.10.81 Rs. 500/-
39/81 dt. 12.4.82 Rs. 1000/-
16/81 dt. 27.3.82 Rs. 795/-
17/81 dt. 8.3.92 Rs. 122/-
17/81 dt. 4.2.82 Rs. 875/-
27/81 dt. 4.11.82 Rs. 2306/-
27/81 dt. 7.1.83 Rs. 400/-
72/81 dt. 23.7.81 Rs. 1000/-
6) Cashier's/ Managers scroll for the dates on which loans were arranged and for those dates when subsequent credits are there to these a/cs - loan a/cs i.e. OSL A/c.37/79 and other F.L A/cs cited in the charge sheet. Cashier's/Managers scroll dt. 7.3.81 where credit of Rs. 16,000/- to S.B.A/c.731 is cited in the charge sheet.
7) Copies of the withdrawal slip Nos. 247707, 247706, 247708 and 247711.
8) Copies of the credit slips and the Cashier's/ Manager's scroll of these dates.
S.Bale No. 2000 dt. 16.3.81 Rs. 2000/- - do - dt. 16.3.81 Rs. 1500/- S.Bale No. 93 dt. 23.5.81 Rs. 4000/- - do - dt. 20.5.81 Rs. 4000/ - S.Bale No. 731 dt 7.3.81 Rs. 16000/-
9) Copies of credit slips of Rs. 120/- each credited by Sri M.P. Talkeri for various loan a/cs and the Cashier's/Managers scroll of the said date 24.7.1981.
10) Copies of the Rules/Circulars/Guidelines applicable in Jan. March 1981 - regarding opening of S.B.A/cs. Operations in the a/cs. And issuance of cheque books/withdrawal slips to the S.B.A/cs.
11) Rules/circulars/guidelines regarding arranging servicing of the loans under Govt. sponsored scheme i.e. loan cited in the charge sheet.
12) Copies of the statements recorded by Sri P.K. Jacob Police Inspector CBI and his investigation report in this case.
I require the above cited documents/papers DR & CR. Slips to prepare my defence for the said charge sheet. Hence, I request you to supply the same at any early date. Other papers/documents that may be formed necessary will be asked for at proper time.
Yours faithfully, Sd/ (V.G. KURATTI)"
14. Annexure-D was followed by two more reminders/requests dated 18.01.1989 and 02.02.1989 marked as Annexures E and F. There is no necessity for us to refer to those reminders because the request contained in Annexure-D representation was repeated and reiterated in Annexures E and F.
15. The appellant in his representations had clearly stated that all the documents sought by him were very vital documents and they were absolutely necessary for his defence. But his request with regard to certain documents was turned down by the disciplinary authority / enquiry officer on the grounds stated in Annexure-G. In Annexure-G, with regard to manual instructions on Agriculture Financing and Rural Development of Syndicate Bank and the guidelines issued by the Syndicate Bank, Agricultural Finance Division for Integrated Rural Development, it is stated that those documents would be produced during the course of enquiry for the examination/cross-examination of the witness. The management should have furnished the copies of the above documents well in advance to the delinquent so that the delinquent could have made use of those documents either to raise effective defence or for effectively cross-examining the witnesses of the disciplinary authority. Further, in Annexure-G, the management has refused to supply copies of as many as 6 documents sought by the appellant on the ground that the management of the Bank had claimed the privilege over those documents, they being confidential in nature. The documents in respect of which privilege was claimed are the correspondences between Regional Office, Belgaum and Horti Branch during 1980-81 regarding the agricultural credit portfolio, deployment of credit, IRDP loans, arranging credit camps, stock position etc. The management of the Bank also refused to supply the copies of the documents of the report submitted by Sri Vigneshwar Bhat, RDO, regarding the verification of the Sheep Units in respect of 12 loans; the documents relating to the Branches' discretionary powers during 1980-81 and the relevant correspondences with regard to the subject matter of the charges; Inspection Rectification report of 1981-82 and the Reports of the Divisional Manager in respect of his periodical visits to Horti Branch during the years 1980, 1981 and 1982. Further, in Annexure -G, it is stated that as per the staff position for the month of December was concerned, those documents are not relevant.
16. The reasons stated by the management of the Bank not to supply copies of certain documents sought by the appellant, in our considered opinion, are totally irrational and untenable. The documents in respect of which privilege of confidentiality was claimed by the Bank's Management, by no stretch of imagination, could be regarded as privileged documents or confidential in nature. Therefore, we do not think that the Bank's Management was justified and acted legally in refusing to furnish the copies of the documents sought by the appellant. It is our considered opinion that all the documents sought by the appellant-delinquent are either those documents on the basis of which the disciplinary authority has framed the charges and the documents on which the disciplinary authority has placed reliance to prove those charges Or the documents though, they are not the basis for framing the charges nor those of which the disciplinary authority places reliance to prove the charges against the appellant delinquent, but, they would have aided the appellant-delinquent to effectively defend himself in the enquiry and to effectively cross-examine the witnesses of the disciplinary authority.
17. It needs to be noticed that the appellant was not furnished with the copies of the documents pertaining to the loan transactions which are the subject matter of the charge-sheet. The appellant was also not furnished with statement of accounts uptodate. If up-to-date statement of accounts is produced, according to the appellant, it would have disclosed all the payments made by the loanees uptodate towards the loans advanced to them. In fact, it was necessary for the Bank to lodge claims with the Deposits Insurance Credit Guarantee Corporation for claiming outstanding balances in the overdue loan accounts. All these advances have Insurance Guarantee Cover, and that in respect of loans which are not discharged up to 75%, they are reimbursed by the said Corporation. In spite of this position, the Bank had to give a certificate certifying to the effect that the loans were arranged in the usual course of the banking business and all the Rules, Regulations, Guidelines and Banking practices were followed and sufficient caution was taken while advancing loans. Further, it was also necessary to certify that the Bank had taken all necessary follow-up actions and steps to recover the loans. It also needs to be noticed that the certificate has to be given by the Branch Manager and by inspecting managers/auditors. In this case, it is not disputed that the certificate was issued in each of the cases which are subject-matters of the charge-sheet. These certificates would have indicated the payments made by the loanees in respect of the loans taken by them subsequent to the issue of the charge-sheet; they would have also shown that when these loans were advanced, whether the appellant who was the Branch Manager had taken all necessary precautions and steps in accordance with the Regulations and the Banking practices. In fact, the appellant had requested for production of the certificate in respect of each of the loan account, because, according to him, loans that were advanced by him were all done in the normal course of business and that he did not do anything contrary to the Regulations or Banking practices. Thus, it is quite clear that the reasons given by the Enquiry Officer to reject the request of the appellant for supply of copies of the documents were untenable.
18. In Annexure-G it is stated by the Enquiry Officer that the documents mentioned at serial No. 1 to 6 were confidential in nature. We have referred to the nature of the documents at serial Nos. 1 to 6 supra. There cannot be any privilege in respect of those documents on the ground of confidentiality, because, they are all routine correspondences. In respect of the extract of inspection reports of Horti Branch for the years 1980-81 and 1981-82 pertaining to the transactions referred to in the charge-sheet also the privilege is claimed. It is not at all understandable how the charges were framed on the basis of such documents in respect of which the management claims privilege as being confidential in nature. In fact, the Enquiry Officer has placed reliance heavily on those documents to hold that the appellant is guilty of the charges. The other document in respect of which privilege was claimed by the management is the report submitted by Sri Vigneshwar Bhat, RDO, recording the verification of the Sheep Units for which loans were sanctioned. According to the appellant, in the said report Sri Vigneshwar Bhat himself has stated that there was no illegality or irregularity in the advances made by the appellant and since the said report is favourable to the appellant, it is not produced. The management in all fairness should have furnished a copy of the said report. The fourth document relates to the Branches' discretionary powers during 1980-81 and the relevant correspondences in the matter. The appellant required that document to establish his innocence against the charges and to effectively cross-examine the witnesses of the management. There was no justification for the management to claim privilege in respect of such document. The other document is the inspection rectification report of 1981-82. If this report had been produced, it would have shown whether there was any objection in respect of the advances made. The last document in respect of which privilege was claimed is the report submitted by the Divisional Manager in respect of his periodical visits to Horti Branch during the years 1981 and 1982. If that document was produced, it would have shown whether the advances made by the appellant were approved by the Divisional Manager. In our considered opinion, the Enquiry Officer, in the facts and circumstances of the case and having regard to the relevancy of the documents sought by the appellant, ought to have overruled the objections raised by the management and directed supply of copies of all the documents to the appellant.
19. We find considerable force in the contention of Sri Subba Rao that the refusal of the disciplinary authority/Enquiry Officer to furnish the documents requisitioned and sought by the delinquent has resulted in prejudice. A delinquent in a departmental or domestic enquiry is entitled to demand and receive two sets of documents, namely, (i) all those documents on the basis of which the disciplinary authority has framed the charges and the documents on which the disciplinary authority places reliance to prove those charges and (ii) other documents which may not be the basis for framing the charges nor those on which the disciplinary authority places reliance to prove the charges against the delinquent, but, which are required by the delinquent to effectively defend himself in the enquiry and to effectively cross-examine the witnesses of the disciplinary authority. If required relevant documents are not made available to a delinquent, it is trite, such delinquent would be prejudiced in defending himself against the charge effectively. Departmental/domestic enquiry in order to be valid, a disciplinary authority not only appraise the delinquent precisely and clearly with the charges levelled against him but also should supply all necessary information, particulars and documents that may be required by the delinquent to defend himself effectively in the enquiry. In this case, along with the charge memo, neither the list of witnesses nor the documents of charges are enclosed. If the Court finds that the disciplinary authority has failed to furnish either of the two sets of documents referred to above to a delinquent, it will be duty-bound to step in and interfere with the disciplinary action taken against such delinquent.
20. In STATE OF MADHYA PRADESH v. CHINTAMAN SADASHIVA WAISHAMPAYAN, AIR 1961 SC 1623 the Supreme Court while finding flaw in the procedure of the enquiry held thus:
"6..... Thus, it was of very great importance for the defence to cross-examine these two witnesses, and for that: purpose the respondent wanted copies of their prior statements recorded by Mr. Ghatwal in his preliminary enquiry. It is difficult to understand how these statements could be regarded as secret papers, for that alone is the reason given for not supplying their copies to the respondent. Failure to supply the said copies to the respondent made it almost impossible for the respondent to submit the said two witnesses to an effective cross-examination; and that in substance deprived the respondent of a reasonable opportunity to meet the charge.
10. It is hardly necessary to emphasise that the right to cross-examine the witnesses who give evidence against him is a very valuable right and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice."
21. It is an admitted position that despite the requests made by the delinquent, copies of certain documents were not supplied to him. Therefore, the burden to show that non-supply of documents required by the delinquent did not cause any prejudice is on the disciplinary authority and not on the delinquent. This position is well settled by the judgment of the Supreme Court in KASHINATH DIKSHITA v. UNION OF INDIA AND ORS, . In Paras 10 and 11 it was held:
"10. And such a stance was adopted in relation to an inquiry whereas as many as 38 witnesses were examined, and 112 documents running into hundreds of pages were produced to substantiate the charges. In the facts and circumstances of the case we find it impossible to hold that the appellant was afforded reasonable opportunity to meet the charges levelled against him. Whether or not refusal to supply copies of documents or statements has resulted in prejudice to the employee facing the departmental inquiry depends on the facts of each case. We are not prepared to accede to the submission urged on behalf of the respondents that there was no prejudice caused to the appellant, in the facts and circumstances of this case. The appellant in his affidavit page 309 of the SLP Paper book has set out in a tabular form running into twelve pages as to how he has been prejudiced in regard to his defence on account of the non-supply of the copies of the documents. We do not consider it necessary to burden the record by reproducing the said statement. The respondents have not been able to satisfy us that no prejudice was occasioned to the appellant.
11. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed that copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself. We do not consider it necessary to quote extensively from the authorities cited on behalf of the parties, beyond making passing reference to some of the citations, for, whether or not there has been a denial to afford a reasonable opportunity in the backdrop of this case must substantially depend upon the facts pertaining to this matter."
22. The disciplinary authority, in this case, has utterly failed to discharge the burden cast on it to show that non-supply of documents required by the delinquent did not cause any prejudice. Since the documents which are not supplied to the appellant- delinquent are relevant materials, we hold that non-supply of those documents has resulted in prejudice to the delinquent in defending himself.
23. In the result, we answer POINT No. II in the positive and hold that the disciplinary proceedings initiated and action taken against the delinquent appellant are vitiated on account of non supply of the documents sought by the appellant.
POINT NO. III:
24. It is the contention of the appellant that the enquiry officer ought not to have treated the statements recorded by the CBI during investigation as substantive evidence and that an earlier statement recorded cannot be treated as substantive evidence and such statement can never be used for purpose of corroboration or contradiction. That apart, Sri Subba Rao, would point out that those statements were recorded during the course of criminal investigation and, therefore, they are totally inadmissible in evidence. It was the contention of Sri Subba Rao that the statements recorded by the appellant under Section 162 of Code of Criminal Procedure are totally prohibited from being introduced as evidence except for the purpose of contradicting a witness. The representations/applications marked as Annexure-D and E of the appellant are dated 01.05.1988 and 18.01.1999 respectively. There is a reference to the forwarding of statements recorded by the investigating officer Sri P.K. Jacob to the address of the appellant at Delhi vide letter No. VGK 89/DA dated 19.01.1989 in the proceedings of the Enquiry Officer dated 02.02.1989. The said order sheet at page-5 of the enquiry proceedings is duly signed by the appellant and his defence representative. No adjournment was sought for cross-examination of witnesses, no grievance was made by the appellant or his defence representative about non-receipt of the statements of the witnesses at any time after 19.01.1989. The Cross-examination conducted by the defence representative of the witnesses of the management, having been examined with reference to their previous statements, would clearly indicate that the appellant and his defence representative had with them the copies of the statements of the witnesses previously recorded. It is also seen from the records that the appellant and his defence representative though filed the written statements in the enquiry did not make any grievance regarding non-receipt of the statements of witnesses. Their only grievance was regarding non- supply of documents of which privilege and confidentiality was claimed by the management. Further, even in the memorandum of appeal submitted to the appellate authority, the appellant did not make any grievance regarding non-supply of previously recorded statements of witnesses by the CBI. Though the appellant chose to file written submission before the appellate authority on 25.04.1991, during personal hearing afforded to him, he did not raise any ground regarding non-supply of the previously recorded statements of witnesses. Even in the Writ Petition, the appellant did not make any grievance regarding non-supply of the previously recorded statements of witnesses. This clearly shows that the contention now raised is an afterthought and it lacks bonafide and is liable to be rejected. In conclusion, we answer Point No. III in the negative and against the appellant.
POINT No. IV:
25. We do not find any necessity to investigate into the question whether the findings recorded by the enquiry officer and accepted by the disciplinary authority are based on evidence or not. We say this, because, even accepting the position that the findings recorded by the Enquiry Officer and accepted by the disciplinary authority are based on evidence, but, if the Court finds that those findings are recorded on the basis of evidence led by the management in breach of the mandatory procedure and principles of natural justice, the Court cannot sustain the disciplinary action taken by the management against the delinquent on the basis of those findings, and the Court is duty bound to hold that the findings are not based on legally permissible evidence. In order to sustain the findings of fact recorded by the Enquiry Officer, what is to be seen is whether those findings are based on substantive evidence and whether such evidence was adduced following the prescribed procedure and in compliance with the principles of natural justice. Although Sri K. Subba Rao has made an attempt before us that the findings recorded by the Enquiry Officer are vitiated for want of legal evidence, there is no need for us to go into the question whether the findings are based on any evidence or not. In view of our findings on Point No. II, the findings recorded by the Enquiry Officer and disciplinary action taken by the disciplinary authority on the basis of such findings should fall to the ground.
26. In the normal course, having found that the enquiry conducted by the Enquiry Officer is vitiated on account of violation of principles of natural justice and non-supply of copies of relevant documents to the delinquent, we would have set aside the impugned disciplinary measure taken by the management and reserved liberty to the disciplinary authority to conduct de novo domestic enquiry in accordance with law. In our considered opinion, such a course is neither expedient nor pragmatic in view of the fact that the appellant in the ordinary course would have retired from service on attaining the age of superannuation. Therefore, granting relief of reinstatement would not arise. We were also told that the past track-records of the appellant had been quite clean and blemishless.
27. In the result and for the foregoing reasons, we allow the writ appeal filed by the delinquent and dismiss the cross objections of the management and set aside the order of the learned Single judge dated 14.06.1999 in W.P.No. 12594 of 1991 and allow the Writ Petition and quash Annexure-H dated 29.07.1999 bearing No. 92/PD: IRD/DA-6 issued by the Personnel Manager of the Syndicate Bank. We declare that the appellant is entitled to all advantages and benefits, pecuniary or otherwise, flowing from this order and such benefits should be extended/paid to him within a period 2 months from the date of receipt of a copy of this judgment. The parties shall bear their respective costs.