Karnataka High Court
G.V. Aswathnarayan vs The Zonal Manager And Appellate ... on 24 October, 2002
Equivalent citations: ILR2004KAR298
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
ORDER
Gopala Gowda, J
1. In these two Writ Petitions the petitioner and respondent Central Bank of India is common. The grant of relief sought for in the second Writ Petition depends upon the result of the first Writ Petition. Hence, both these Writ Petitions are disposed of by this common order.
2. In W.P. No. 40026/95 the prayer is to quash the impugned order at Annexure-XX by which various penalties for each of the 21 charges have been imposed on the petitioner. The penalties comprise of Censure, reduction of increments and dismissal from service.
3. The prayer in W.P. No. 11242/96 is to quash the communication at Annexure-D dated 26-3-96 by which the petitioner has been informed that he is not eligible for pension as a result of his dismissal from service. A further prayer is made to direct the respondent Bank to pay Compassionate Allowance equal to 2/3rd of the pension upto the date of his dismissal on the basis of the qualifying service in terms of Regulations 31 and 36 of the Central Bank of India (Employees') Pension Regulations, 1995 (hereinafter referred to as 'the Regulations')
4. The chequered history of these Writ Petitions are as under:-
(a) The petitioner was an officer of respondent Bank. He was issued with a chargesheet dated 16-12-1982 alleging various misconduct. After conducting enquiry, the petitioner was removed from service. The appeal and revision filed were also dismissed. The same became the subject matter in W.P. No. 2576/87. By an order dated 29-11-1990 this Court quashed the order of dismissal and directed reinstatement of petitioner in his posts. Liberty was given to the Bank to take fresh steps.
(b) On 18-4-1991 a fresh chargesheet was issued to the petitioner, of which the petitioner alleges that same is the verbatim of the earlier chargesheet. In all there were 21 charges and 46 imputations alleged against the petitioner. Petitioner filed his defence statement on 23-4-1991 pointing-out the defects and various other factors, which will be dealt with in due course in order to avoid repetition of facts. On 26-4-1991 Enquiry Officer was appointed by the Disciplinary Authority as he was not satisfied with the explanation submitted by the petitioner to the charge sheet. By an order dated 11-10-1991 the enquiry was stayed for three weeks in W.P. No. 22284/91. Despite that, enquiry was proceeded on 21-10-1991. The petitioner was allowed to have the assistance of an Advocate in the order dated 4-12-1992 in W.A.No. 1992/92 and direction was issued to complete the enquiry before the end of June 1993.
(c) On 3-2-1992 the petitioner submitted preliminary objections to the chargesheet on 17-5-1993 list of witness and documents had been furnished to the petitioner. On 15-6-1993 the Enquiry Officer rejects the request of the petitioner for inspection of record. However, permission was thereafter granted on the direction issued by the Disciplinary Authority. On 21-9-1993 the petitioner submitted a representation to make available certain documents, which had been rejected. Due to the continuous absence of the Presenting Officer, on 11-1-1994 the Enquiry Officer referred the matter to the Disciplinary Authority. When the Enquiry Officer again served notice upon the petitioner fixing the enquiry on 11-2-1994. On 4-2-1994 the petitioner submitted representation pointing-out that the Enquiry Officer having referred the matter to Disciplinary Authority, has no authority to reopen the enquiry. It was also pointed that the time fixed by this Court to complete the enquiry expired. Since the enquiry was proceeded with, on 12-2-1994 the petitioner filed a detailed statement of objections, which were all over-ruled by the Enquiry Officer. Consequently, ENQUIRY OFFICER submitted report holding the petitioner guilty of certain charges. On the basis of the findings of the Enquiry Officer the impugned order was passed by the Disciplinary Authority at Annexure-XX dismissing the petitioner from service.
(d) The petitioner filed an appeal before the first respondent against the order of dismissal. The same was dismissed by him by passing an order under Annexure-ZZ dated 10-7-1995. Hence, W.P. No. 40026/ 95 is filed seeking to quash the dismissal order. On account of dismissal from service, petitioner is not entitled to pensionary benefits. Under Regulation 31 of the Regulations, the petitioner can seek payment of Compassionate Allowance at the discretion of the authorities. Invoking the same, he has filed W.P. No. 11242/96 seeking the prayer referred to in paragraph 3 of this order.
5. The detailed statement of objections is filed on behalf of respondents 2 and 4 traversing the petition averments, justifying the impugned orders and seeking dismissal of the Writ Petition. It is not necessary to refer to the stand taken therein since the merits of the case can be considered straight-away.
6. The allegations of misconduct against the petitioner pertains to the year 1979-80. The charges relate to loans sanctioned and irregularities in the loan records. Though chargesheet was issued for the second time on 18-4-1991, the enquiry was concluded on 8-8-1994, after a lapse of more than three years. It is difficult for anybody to defend the allegations after a lapse of 14 years from the period of alleged misconduct committed. This is more so when there were in all 21 charges and 42 imputations made against the petitioner. The conduct of enquiry after a lapse of such a long period is fatal to the case of the petitioner.
7. The enquiry proceedings had been unnecessarily prolonged beyond the time stipulated by this Court in W.A. No. 1992/92 for its conclusion on account of the continuous absence of the Presenting Officer. No extension of time was sought by the Disciplinary Authority before this Court for completion of the enquiry. Thus, the continuation of enquiry beyond the period stipulated is bad in law. Consequently, the report based on the same is also bad in law as it is contrary to the directions of this Court.
8. The Bank has failed to bring on record the real loss or harm caused to it by the alleged acts of misconduct of the petitioner. In the absence of the same, it was not wise on the part of the Bank to proceed with the enquiry proceedings after such a long lapse of time especially when the enquiry findings had been quashed once by this Court.
9. At the first instance, the chargesheet was issued on 16-12-1982 and after conducting enquiry, it was held that petitioner was guilty and he was removed from the service. However, the same was quashed by this Court on 29-11-1980 in W.P. No. 2576/87. The petitioner was reinstated and liberty was given to the Bank to take a decision in the matter. It is pertinent to note that the second chargesheet was issued in respect of the charges exonerated in the first enquiry also eventhough the Disciplinary Authority had accepted to findings on such charges. The same is contrary to the decision reported in S.V.G. IYENGAR v. STATE OF MYSORE, 1. 1960 Mys. L.J. 828 on which Mr. M.C. Narasimhan, learned Counsel for the petitioner has rightly placed reliance. So, the findings recorded by the ENQUIRY OFFICER based thereon are bad in law and the dismissal order passed on the basis of the enquiry report cannot be sustained.
10. Though the chargesheet was issued for the second time on 18-4-1991, the same was not accompanied by list of witness and documents through whom and by which the charges were to be proved. The list of 9 witnesses was issued only on 17-5-1993, after 10 sittings were over nearly after a lapse of two years. The objection raised in this regard was over-ruled by the ENQUIRY OFFICER. Thus, the procedure to be followed for the conduct of departmental enquiry was given a go-bye and procedure unknown to law for conducting domestic Enquiry was followed. On this ground also the finding of the enquiry officer are to be held as bad in law.
11. In the enquiry held on 15-6-1993 the request made by the petitioner for inspection of the records and to furnish the list of documents to him to prove his defence in the enquiry by showing that the charges are baseless and unfounded, had been rejected by the ENQUIRY OFFICER. Since the allegations of misconduct pertain to more than a decade at the time of initiating disciplinary action and therefore the petitioner was justified in seeking inspection of the records as it is humanly impossible for him to have memory of what had transpired at such a long period, especially when the number of charges is 21 and the imputations are almost double. No harm or prejudice would have been caused to the disciplinary Authority, if petitioner was permitted to have inspection of the records for preparing his defence and to prove his case. Denial of such opportunity amounts to violation of the statutory provisions of the Discipline, conduct Regulations and principles of natural justice. Consequently, it has to be held that the order of dismissal is bad on that score also.
12. The rejection of request of the petitioner by the ENQUIRY OFFICER to furnish the inspection report of the Reserve Bank of India on the ground that the custodian informed that it is a 'preferred document', cannot be accepted. This Court fails to understand what is 'preferred document'. One can understand 'confidential document' but not preferred document. The report would have clearly pointed-out the irregularities, if any, alleged to have committed by the petitioner in granting advances/loans etc, to the loanees during the relevant time. An adverse inference has to be drawn against the Bank for having not furnished the said report to the petitioner as great prejudice has been caused to him.
13. Even the internal audit report pertaining to the relevant period was not made available to the petitioner. If really there were uncondonable irregularities committed by the petitioner, the same would have been reflected in the report of internal auditors. The same have not been furnished to him on the ground that the details such as the date of the report, name of the auditor and specific portion of the report etc., had not been furnished. The report of the auditor was with the Bank and petitioner was not aware of the date and name of the auditor. Had the report pertaining to the period in question was furnished by the disciplinary Authority, the petitioner would have pointed-out and shown from the portion of the report that the charges are baseless and unfounded. Non-furnishing of the report has caused prejudice to the defence of the petitioner. On account of that, he could not defend his case effectively.
14. In the enquiry proceedings dated 9-10-1993 the Presenting Officer attempted to mark 18 documents through MW-1. The objections raised by the petitioner for the same on the ground that those documents were extraneous to the charges, had been upheld by the ENQUIRY OFFICER and the enquiry was adjourned to 11.10.1993. Thereafter, it was again adjourned several times as the Presenting Officer of the disciplinary Authority did not turn-up. Surprisingly, on 5-11-1993 the Disciplinary Authority issued letter at Annexure-EE as under:-
"I have gone through the proceedings dated 9-10-1993 of Departmental Enquiry against you. In that proceedings you have taken objection for some of the documents filed by the Management stating that the said accounts are not mentioned in the imputations. The Misconduct covers numerous accounts and it is not possible to mention each and every account in the chargesheet. Hence, the clarification, as requested are given for some of the imputations where the accounts shall be exemplified in support of Misconduct as follows"
Having stated as above, several names, account numbers and dates have been furnished in respect of some of the statement of imputations. Having gave such clarification, no opportunity was given to the petitioner to have his say in that regard.
15. The so-called clarification was issued by the Disciplinary Authority 13 years after the alleged misconduct. Such a clarification at that passage of time was wholly unwarranted and serves no purpose. That apart, once chargesheet and statement of imputations is issued and enquiry was proceeded against the petitioner based on them, it is not open for the DISCIPLINARY AUTHORITY to give such clarification at that belated stage. It is nothing but usurping the power of the ENQUIRY OFFICER by the DISCIPLINARY AUTHORITY. Such an action is unknown to departmental enquiries. Virtually it amounts to improving a bad case or issuing fresh statement if imputations against the petitioner during the course of enquiry proceedings. Such a thing is wholly impermissible in law as the same would amount to violation of principles of natural justice.
16. The clarification issued by the disciplinary Authority is contrary to Regulation 6(3) of the Discipline and Appeal Regulations of the Bank and definite and distinct charges should have been framed and they should have been accompanied by specific and distinct statement of allegations in support of the same. In view of the clarification issued subsequently by the disciplinary Authority, it has to be held that the charges and statement of imputations made against the petitioner were not specific and definite. Rightly the petitioner took objection in that regard stating that the charges are vague. But the ENQUIRY OFFICER has over-ruled such an objection taken by the petitioner.
17. The Presenting Officer was changed in the middle of the enquiry proceedings. No explanation is forthcoming for such a change of the enquiry officer. Be that as it may, in the enquiry held on 28-7-1994 despite objections raised by the petitioner that MW-1 was not competent to speak to the documents, the ENQUIRY OFFICER marked the documents MEs. 238 to MEs. 246. Eventhough Sri G.B. Shankaran, Auditor of the Bank, was cited as a witness, he was withheld. It was he who had submitted the document ME-245 which formed the basis for issuing the chargesheet against the petitioner.
18. All the above aspects prove beyond the irregularities committed in the conduct of enquiry by the Enquiry Officer thereby the enquiry is vitiated in law and the petitioner's case was prejudiced. The result of such irregularities in, admitting the above referred documents not from the competent witnesses would amount to not proving the same as held by the Apex Court in the case of BAREILLY ELECTRICITY SUPPLY CO. LTD., v. THE WORKMEN AND ORS., AIR 1972 SC 330 and in the case of CENTRAL BANK OF INDIA LTD. v. PRAKASH CHAND JAIN, . The denial of opportunity to the petitioner either to inspect the records or cross-examination of the competent witnesses, taking extraneous documents on record and placing reliance upon such documents to record the findings against the petitioner, unnecessary prolongation of enquiry proceedings due to the absence of Presenting Officer, over-ruling the genuine objection raised by the petitioner, interference of Disciplinary Authority in the middle of the enquiry, re-opening enquiry proceedings after closing the same on several dates and referring the matter to Disciplinary Authority on account of the absence of Presenting Officer etc., The report submitted against the petitioner on such a farce enquiry led to grave injustice, unnecessary harassment, mental agony and great hardship to the petitioner. The matter had been dragged on beyond imagination by the conduct of Bank officers. The matter would have ended long ago if suitable decision and steps had been taken by the Disciplinary Authority at appropriate stages. Neither the loss caused nor the harm done to the Bank by the alleged misconduct of the petitioner is brought on record. All efforts made by the petitioner in showing the illegalities of conducting enquiry is a mere waste of precious time and proceeded in conducting a farce enquiry and submitted the findings against the petitioner on certain charges eventhough the charges were not proved by producing positive and substantive evidence on record and passed the order of dismissal against the petitioner.
19. The copy of the enquiry report was furnished to the petitioner along with the letter at Annexure-QQ dated 24-8-1994. The DISCIPLINARY AUTHORITY differed from the findings of ENQUIRY OFFICER on Charge Nos.2, 4,13, and 19. The ENQUIRY OFFICER held that those charges were not proved against the petitioner. The petitioner was asked to submit his say on the findings before 2-30 p.m. on 27-8-1994. The petitioner replied as per Annexure-RR pointing-out that the enquiry report and the view of Disciplinary Authority runs to 53 pages in all but only three days time was granted to have his say as to why the findings on those charges shall not be reversed. The petitioner submitted his say and he was supplied with written arguments of Presenting Officer. On 16-9-1994 the petitioner submitted copy of the order in W.A. No. 1950/94 and requested to consider the grounds raised in W.P. No. 34036/93 as part of his submission. Without considering the same, the impugned order of dismissal was passed against the petitioner.
20. It is to be noted in this order that the chargesheet containing 21 charges and the 46 statement of imputations runs 23 pages. The enquiry report runs nearly 70 pages. There were in all 270 documents marked on both the sides. The allegations pertain to the year 1980. One cannot be expected to submit his say with regard to reversing the findings of the Enquiry Officer in respect of certain charges referred to supra within three days in a 14 years old matter with such bulky documents. This clearly would goes to show that petitioner was not given sufficient opportunity to have his say in the matter. Having prolonged the enquiry proceedings for such a long period, nothing prevented the DISCIPLINARY AUTHORITY to allow the petitioner to make his submission leisurely or within a reasonable time. Pressure was exerted at the end on the petitioner ignoring the long duration consumed by the Bank to conclude the proceedings. Such an action was not expected from the Bank and it does not befit it as it is a model Employer as it is a Public Limited Company. The Enquiry Officer, Presenting Officer and the Disciplinary Authority enjoyed their own time in the matter and compelled the petitioner to make his submission within a very short period of three days totally ignoring that reading of the entire matter requires considerable time and since it is a old matter of more than a decade, it requires recollection of events and application of mind. In short, the impugned order is passed in haste and without application of mind by the Disciplinary Authority. The same caused injustice to the petitioner.
21. In the light of the observations made above, the contention of Mr. Sawkar, learned Counsel for the Bank would submit that fair and reasonable opportunity was given to the petitioner: that the documents sought for by him had been furnished and the petitioner did not cross-examine MW-1 on the document ME-245 and the findings are based on proper appreciation of the evidence and material documents placed on record etc., are wholly untenable and cannot be accepted by this Court for the following reasons.
(i). The findings recorded by the Enquiry officer in his respect on certain charges are perverse as the Disciplinary Authority has not examined the competent persons to prove the contents of the documents as required in law and the said findings reliance is placed by the Disciplinary Authority and further the findings recorded by the Enquiry Officer in favour of the petitioner in respect of certain charges have been reversed without their being any valid evidence and recording proper valid reasons.
(ii) The institution of the proceedings after lapse of 14 years by itself has violated the principles of natural justice and therefore it has vitiated the Disciplinary Action.
22. While imposing the punishment of passing an order of the dismissal against the petitioner the Disciplinary Authority has not taken into consideration the doctrine of proportionality principle keeping in view the law laid down by the Apex Court in catena of cases. The impugned order is contrary to the decision reported in OM KUMAR v. UNION OF INDIA, AIR 2000 SC 3689. Mr. M.C. Narasimhan has rightly cited the said decision in support of the above said proposition of law.
23. The Appellate Authority has also failed to advert to the above aspects of the matter while dismissing the appeal. He has simply concurred with the findings of the Disciplinary Authority and dismissed the appeal. Therefore there is no application of mind on the part of the appellate authority in dismissing the Appeal by passing the impugned order. Even otherwise also, since the order of dismissal itself is bad in law for the foregoing reasons recorded by me and therefore the same is liable to be quashed, and the order passed by the appellate authority is also liable to be quashed.
24. Once the dismissal order is quashed, the petitioner will be entitled to the consequential benefits, including pensionary benefits. Such being the position, the prayer made in the connected W.P. 11242/96 to direct payment of Compassionate Allowance under Regulations 31 and 36 of the Regulations does not survive for consideration.
25. Writ Petition No. 40026/95 is allowed. Rule made absolute. The impugned orders at Annexures-XX and ZZ are hereby quashed. Respondents are directed to pay 75% back wages from the date of dismissal until his superannuation less the amounts if any already paid and grant all consequential benefits including pensionary benefits under the relevant Regulations to which he is entitled to.
25. In view of the order passed in W.P. No. 40026/95, W.P. No. 11242/96 stands disposed of.