Karnataka High Court
Savithri Sateesh vs Canara Bank on 13 January, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.40833/2001 (S-DE)
BETWEEN:
SMT. SAVITHRI SATEESH
AGED ABOUT 56 YEARS
W/O SRI P SATEESH
EARLIER WORKING AS
ASSISTANT GENERAL MANAGER
AN OFFICER IN SENIOR MANAGEMENT
GRADE SCALE-V AT SYNDICATE BANK
CENTRAL ACCOUNTS OFFICE, BANGALORE
SINCE COMPULSORILY RETIRED AND
RESIDING AT DOOR NO.3
1ST FLOOR, 7TH MAIN
A.G.S. LAYOUT, NEW BEL ROAD
BANGALORE-560 050.
...PETITIONER
(BY SRI P.S.RAJAGOPAL, SR.COUNSEL A/W
MS. ASHWINI RAJAGOPAL, ADV.)
AND:
1. CANARA BANK
A BODY CORPORATE CONSTITUTED
UNDER THE BANKING COMPANIES
(ACQUISITION AND TRANSFER OF
UNDERTAKINGS)
ACT, 1970 HAVING ITS HEAD OFFICE AT
NO.112, J.C.ROAD, BENGALURU-560 002
REPRESENTED BY ITS
GENERAL MANAGER (PERSONNEL).
2
2. B PALAKSHAPPA
DEPUTY GENERAL MANAGER
ERSTWHILE SYNDICATE BANK
NOW CANARA BANK
HEAD OFFICE, NO.112, J.C.ROAD
BENGALURU-560 002.
....RESPONDENTS
(BY SRI SYED KASHIF ALI, ADV. FOR
M/S. SUNDARASWAMY RAMADAS & ANAND, ADVS. FOR R1
& R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH VIDE ANNEXURE-R DATED 20.01.2001 PASSED BY
THE DISCIPLINARY AUTHORITY AND ANNEXURE-V DATED
25.07.2001 BY THE APPELLATE AUTHORITY AND DIRECT
THE R1 TO REINSTATE THE PETITIONER IN THE SERVICES
OF THE BANK FORTHWITH AND GRANT ALL
CONSEQUENTIAL BENEFITS INCLUDING ARREARS OF
SALARY, PROMOTIONS DEPUTY GENERAL MANAGER FROM
THE DATE R2 WAS PROMOTED AND ALL OTHER SERVICE
BENEFITS ALLOWING FROM THE QUASHING OF ORDERS AT
ANNEXURES-R AND V.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 21/10/2022 THROUGH VIDEO
CONFERENCE COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
The petitioner, a compulsorily retired Assistant General Manager of respondent-Bank is before this Court under Article 226 of the Constitution of India questioning the correctness and legality of Disciplinary Authority's order bearing No.16/PD.IRD/DA-6 dated 20.01.2001 [Annexure-R] imposing punishment of compulsory retirement; Appellate Authority order bearing No.147/PD:IRD:DA:7 dated 25.07.2001 and for grant of all consequential benefits including arrears of salary, promotion as Deputy General Manager from the date respondent No.2 was promoted and other service benefits.
2. Brief facts of the case are that, the petitioner joined respondent-Bank as Clerk on 09.01.1965. From time to time, the petitioner was promoted and in May, 1998, the petitioner was promoted as Assistant General Manager. On 19.07.2000, charge sheet under Regulation- 6 of Syndicate Bank Officer Employees (Discipline and 4 Appeal) Regulations, 1996 [for short "1996 Regulations"] was issued to the petitioner alleging lapses and irregularities in sanction and disbursal of loan of 3 accounts mentioned in the Articles of Charge. The petitioner by letter dated 25.07.2000, requested permission to peruse the related files, documents and records relating to the Articles of Charge so as to enable her to submit reply to the Charge Memo. The respondent- Bank under reply dated 26.07.2000, intimated the petitioner that the documents connected in the case would be provided at the appropriate stage in terms of 1996 Regulations. Thereafter, the petitioner submitted her reply on 03.08.2000. Not being satisfied with the reply of the petitioner, on 10.08.2000 the respondent-Bank appointed second respondent as Enquiry Officer to conduct enquiry against the petitioner. The second respondent-Enquiry Officer commenced enquiry proceedings on 09.09.2000. The Enquiry Officer submitted enquiry report dated 07.12.2000. The Disciplinary Authority issued second 5 show-cause notice dated 08.01.2001 enclosing a copy of the enquiry report calling upon the petitioner to submit reply, if any, to the enquiry report. The petitioner submitted her reply to the second show-cause notice on 16.01.2001. The Disciplinary Authority passed impugned order of punishment dated 20.01.2001 imposing punishment of compulsory retirement from service. Aggrieved by the order of punishment, as provided under 1996 Regulations, the petitioner preferred appeal dated 05.03.2001. The Appellate Authority by order dated 25.07.2001 confirmed the order of punishment of compulsory retirement imposed by the Disciplinary Authority.
3. The petitioner aggrieved by the orders of the Disciplinary Authority as well as Appellate Authority, is before this Court in the above noted writ petition.
4. This Court, by order dated 05.01.2009, allowed the writ petition mainly holding that prejudice is caused to 6 the petitioner by non-supply of the investigation report submitted by MW1 and granted 50% of arrears of salary and other service benefits flowing from setting aside of the impugned orders. The respondent-Bank preferred W.A.No.370/2009 against the order of the learned Single Judge. The Division Bench by judgment dated 02.01.2015 set aside the order of the learned Single Judge and remanded the matter for re-consideration.
5. Heard learned Senior counsel Sri.P.S.Rajagopal, for Ms.Ashwini Rajagopal for petitioner and learned counsel Sri.Syed Kashif Ali for M/s. Sundarswamy Ramdas and Anand, for respondent Nos.1 and 2. Perused the writ petition papers.
6. The learned Senior counsel would submit that charge sheet would contain two charges and allegations are lapses and irregularities in sanction and disbursal of loans to three units and he submits that there is no allegation of dishonesty or lack of integrity or 7 misappropriation. The Charge is one of negligence and would not attract capital punishment of compulsory retirement. Learned Senior counsel would further submit that charge sheet does not contain list of witnesses and list of documents on which charge would be proved. Placing reliance on Regulations 6(3) and 6(5) would submit that non-furnishing of list of witnesses and list of documents is denial of sufficient opportunity to defend herself in the enquiry from the stage of submitting reply and cross-examination of the management witnesses. Learned Senior counsel referring to Annexure-E dated 25.07.2000, letter of the petitioner and Annexure-F dated 26.07.2000, reply of the Bank would submit that refusal to inspect the documents at the stage of replying the Charge Memo would amount to denial of reasonable opportunity in the enquiry. In the absence of opportunity to inspect the documents, the petitioner could not effectively reply to the charge memo. Thus, learned Senior 8 counsel would submit that denial of list of witnesses and list of documents vitiates the enquiry.
7. Learned Senior counsel further submits that despite the denial of inspection of documents, the petitioner did submit reply dated 03.08.2000 to the Charge Memo. The Enquiry Officer appointed to enquire into the charges commenced proceedings on 09.09.2000. Referring to proceedings dated 09.09.2000 of the Enquiry Officer (Annexure-J), it is submitted that the petitioner at the stage of recording of first oral statement by the Enquiry Officer denied the charges and requested for regular enquiry. Thereafter, the Enquiry Officer directed the Presiding Officer to furnish list of witnesses and documents on which the charges against the petitioner are proposed to be proved. It is submitted that the Enquiry Officer asked the petitioner to submit list of witnesses and documents, if any, to defend herself and relevancy thereof along with the name of the Authority/custodian of the 9 documents within 5 days from the date of inspection of the original documents. In terms of Annexure-K dated 12.09.2000, the petitioner submitted list of defence documents. Learned senior counsel would submit that the documents except Sl.Nos.7, 8 and 9 i.e., report submitted by the Sri.Iqbal, Officer, after visiting the unit; report of the concurrent auditor for the relevant months and copies of inspection/investigation report submitted by the Investigating Officer in respect of loan account, were furnished. Learned Senior counsel would submit that document at Sl.No.7 was denied on the ground that there was no such pre-inspection report and document at Sl.No.9 i.e., report of the Investigating Officer is not made available on the ground that it is internal document and not connected to the allegations. Learned Senior counsel would vehemently contend that the enquiry is entirely based on the investigation report of MW1- Sri. Anandarao, whereas the said report is denied when sought for by the petitioner and conveniently the management has not 10 marked the said document. Learned Senior counsel referring to the evidence of MW1 would submit that his evidence is entirely based on the investigation report and non-providing and marking of such document is denial of proper opportunity to cross-examine MW1. Denial of investigation report is unreasonable and unfair apart from denial of opportunity to defend.
8. Learned Senior counsel would nextly contend that there is violation of Regulation 6(17) of 1996 Regulations and the Enquiry Officer has failed to question the petitioner on the circumstances appearing against him in the evidence for the purpose of enabling the petitioner to explain any circumstances appearing in the evidence against her. In that regard, attention is invited to the proceedings dated 12.10.2000, that only one question was put by the Enquiring Authority and no question on the circumstances appearing against the petitioner in the evidence is posed to her.
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9. Learned Senior counsel would further contend that petitioner, MW1-Sri.Anandarao and second respondent-Enquiry Officer Sri.Palakshappa were competitors in the same process of promotion to the post of Deputy General Manager, which was a selection post. It is submitted that somehow to eliminate the petitioner from the process of promotion, allegation of irregularity is attributed against the petitioner and charge memo came to be issued. It is submitted that on 05.08.1999 [Annexure-W] show-cause notice came to be issued to the petitioner. Thus, bias is alleged against the second respondent-Enquiry Officer, MW1-Sri.Anandarao and Disciplinary Authority. It is submitted that the petitioner was due for promotion to the post of Deputy General Manager in the year 1999 and at that stage, Sri.N.Anandarao - MW1, who was a competitor to the post of Deputy General Manager, was asked to look into certain purported irregularities into the accounts of three units. It 12 is contended that on the basis of biased investigation report submitted by MW1-Sri.Anandarao, the enquiry was instituted. Based on the said investigation report, memos dated 05.08.1999 and 09.08.1999 were issued to the petitioner and based on the said memos, the case of the petitioner was overlooked and MW1 was promoted on 19.07.1999 and second respondent was promoted on 07.02.2000, who were below the petitioner in the select list.
10. Learned Senior counsel placed reliance on State of U.P V/s. Shatrughan Lal and Another [(1998) 6 SCC 651] to contend that the preliminary enquiry report which would be the whole basis of the charge sheet needs to be supplied and non-supply of copy of the said document would prejudice the case of the petitioner.
11. Decision in the case of T.Takano V/s.
Securities and Exchange Board of India and Another [AIR 2022 SC 1153] was relied on to contend that the 13 Hon'ble Apex Court has held that one has to be given a reasonable opportunity of hearing and the requirement of reasonable opportunity would postulate that such material which has been and has to be taken into account must be disclosed. Reliance was placed on decision in the case of G.V.Aswathanarayana V/s. Central Bank of India, by Chairman, Bombay and Others [ILR 2003 KAR 3066] to contend that Regulation 6(5)(iii) requires furnishing of list of documents along with charge memo itself. Reliance was also placed on the decision of the Division Bench of this Court in the case of Syndicate Bank V/s. Sri.B.Ganesh Pai [W.A.No.67/2007 dated 03.12.2010] to contend that the petitioner was entitled for a copy of investigation report submitted by MW1 Sri.Anandarao. Thus, the learned senior counsel prays for allowing the writ petition.
12. Per contra, learned counsel for respondents would submit that there is no merit in any of the 14 contentions of the petitioner and submits that the enquiry was conducted in accordance with 1996 Regulations, after affording sufficient opportunity to the petitioner at every stage of the enquiry. It is submitted that, it is not the case of the petitioner that the petitioner was denied opportunity to defend herself during the course of the enquiry or that it is a case of no evidence. Learned counsel would submit that charge memo is dated 19.07.2003 and as on the date of the charge memo, Regulation 6(3) not provided for furnishing list of documents or list of witnesses along with the charge memo. The Rule as it stood, serving of charge sheet on framing of definite and distinct charges together with a statement of allegations on which charges are based was sufficient. The delinquent official was entitled for list of witnesses and list of documents before the Enquiry Officer if the Charged Officer denied charges and request for regular enquiry, in terms of Regulation 6(10) of 1996 Regulations. Further, learned counsel would submit that said Regulation 6(3) was amended by notification 15 dated 02.06.2001 to provide list of witnesses and list of documents on which the Disciplinary Authority relies to prove the charge. He submits that the said amended Regulation would have no application to the case of the petitioner, since the enquiry against the petitioner was complete and the Enquiry Officer had submitted his report by the time Regulation 6(3) was amended. Referring to proceedings dated 09.09.2000 of the Enquiry Officer, learned counsel for respondents would submit that during the course of enquiry when the petitioner denied the charges, the Enquiry Officer directed the Presenting Officer to make available the list of documents and witnesses and also the documents requested by the petitioner. It is submitted that as directed by the Enquiry Officer, the petitioner-CSO was given opportunity to inspect the documents and also supplied the documents as requested except two documents. Out of the above two documents, one at Sl.No.7 was denied on the ground that there is no such report and at Sl.No.9 was denied on the 16 ground that it is purely internal document and not connected to the allegations. Further, the learned counsel would submit that the document sought at Sl.No.9, Investigation Report is neither the basis to initiate the enquiry or to prove the charge. Moreover, referring to Regulation 6(12) of the Regulations, it is submitted that the petitioner-CSO has not stated the relevancy of those documents.
13. Learned counsel for the respondents would further contend that the petitioner nowhere stated either in the reply to the second show-cause notice or before this Court as to the relevancy of the Investigation Report and how non-furnishing of Investigation Report caused prejudice to the petitioner. The petitioner has not made out a case with reference to the charge and material on record, that denial of Investigation Report has caused prejudice in defending herself in the enquiry. Placing reliance on the decision of the Hon'ble Apex Court in the 17 case of Vijay Kumar Nigam (dead) through LRs., V/s. Sttae of M.P. and Others [AIR 1997 SC 1358], it is submitted that the preliminary report is only to decide and assess whether it would be necessary to take any disciplinary action against the delinquent officer and it does not form any foundation for punitive action. Further relying on judgment dated 12.10.2004 in W.A.No.4399/2001 [Syndicate Bank V/s.
Sri.A.M.Sugunasundaram] would submit that the preliminary enquiry was conducted essentially for the Disciplinary Authority to form an opinion as to whether there is a prima facie case to proceed against the delinquent. So long as the Disciplinary Authority would not rely on the said report to punish, there is no legal obligation to supply such preliminary enquiry report. Further, learned counsel also places reliance on AIR 2006 SC 3542 [ Syndicate Bank and Others V/s. Venkatesh Gururao Kurati] to contend that the delinquent has to establish prejudice caused on non-supply of documents. 18
14. Refuting to the contention of non-compliance of Regulation 6(17) of 1996 Regulations, the learned counsel would submit, referring to proceedings dated 12.10.2000 that there is substantial compliance of Regulation 6(17) of 1996 Regulations. Further, learned counsel would submit that if the petitioner-CSO intended to place on record any material, she could have examined herself before the Enquiry Officer in terms of Regulation 6(15) of 1996 Regulations. Referring to Regulation 6(17), learned counsel would submit that the Enquiry Officer may generally question the delinquent official on the circumstances appearing against him/her in the evidence for the purpose of enabling the officer/employee to explain any circumstances appearing against him/her. It is submitted that if the petitioner-delinquent official was of the view that she needs to explain the evidence or circumstances appearing against her, then it was open for 19 the petitioner-delinquent official to examine herself, which she has failed to do.
15. With regard to the contention of bias, the learned counsel for the respondents would submit that the rank list by the Departmental Promotion Committee was published on 19.07.1999, much prior to the issuance of charge memo dated 19.07.2000. Moreover, he submits that order of promotion was issued on 07.02.2000. Therefore, he submits that there is no merit in the contention of bias, that respondent No.2 - Enquiry Officer as well as MW1 sought to it that the petitioner is not promoted to the next higher cadre by issuance of charge memo. Since the publication of rank list by the DPC and the promotion was much before the issuance of charge memo to the petitioner, learned counsel for the respondents would submit that there is no merit in the contention of bias. Further, he submits that the contention of bias is not taken either in the reply to the 20 second show-cause notice nor before the Appellate Authority and for the first time the same is raised before this Court.
16. Learned counsel for the respondents would submit placing reliance on Union of India and Others V/s. Dalbir Singh [(2021) 11 SCC 321] that the burden of proof in the Departmental Proceedings is not of beyond reasonable doubt and would depend on preponderance of probabilities of the misconduct. Further, referring to Union of India and Others V/s. P.Gunasekaran [(2015) 2 SCC 610] submits that the High Court in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence and the jurisdiction of the High Court is very limited. Referring to T.Takano case (supra), learned counsel would submit that it was a case where the show- cause notice specifically relied upon the report of the investigation and there was violation of the SEBI 21 (Prohibition of Fraudulent and Unfair Trade Practices) Regulations, 2003 (for short "2003 Regulations"). Therefore, he submits that the said case would not assist the case of the petitioner to say that she was entitled for a copy of Investigation Report. Learned counsel for respondents takes through the Enquiry Report to contend that the Enquiry Officer on analyzing the evidence on record and on proper appreciation, has come to the conclusion that the charges are proved and the Disciplinary Authority on consideration of the enquiry report as well as the reply submitted by the petitioner to the Enquiry Report, appropriately imposed the punishment, proportionate to the gravity of charge.
17. On hearing the learned counsel for the parties and on perusal of the entire writ petition papers, the following points would arise for consideration:
a) Whether denial of Investigation Report has caused prejudice to the petitioner and whether it 22 would be violative of principles of natural justice?
b) Whether the petitioner has proved bias against respondent No.2 as well as MW1?
c) Whether the impugned orders require
interference?
18. Answer to the above points would be in the negative for the following reasons.
In the matter of Departmental Proceedings, the jurisdiction of the High Court under Articles 226 of the Constitution of India is very limited and the High Court would not act as an Appellate Authority to re-appreciate the evidence. In judicial review, the High Court would examine violation of prescribed procedure; violation of principles of natural justice in conducting the enquiry; whether the conclusion arrived at by the Enquiry Officer is based on some evidence; and whether the punishment is proportionate to the gravity and nature of charge. 23 In P.Gunasekaran (supra), the Hon'ble Apex Court has laid down principles to be followed in the matter of judicial review of Departmental Enquiry, in that what High Court can see and what High Court shall not at paragraphs 12 and 13 of the decision, which reads as follows:
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;24
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had
erroneously admitted inadmissible evidence
which influenced the finding;
25
(i) the finding of fact is based on no
evidence.
13. Under Article 226/227 of the
Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the
enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however
grave it may appear to be;
(vii) go into the proportionality of
punishment unless it shocks its conscience."
19. In the instant case, learned Senior counsel for the petitioner contended that non-furnishing of Investigation Report, non-providing list of documents and 26 list of witnesses has caused prejudice, in that the petitioner could not effectively cross-examine and defend herself, which amounts to violation of principles of natural justice. Regulation 6(3) of 1996 Regulations as it stood as on the date of issuance of charge memo, not provided for supply of list of documents and list of witnesses along with the charge memo. The petitioner-Delinquent Official was entitled for inspection of documents and to submit list of documents which were required for defending herself on denial of charge before the Enquiry Officer in terms of Regulation 6(10) of 1996 Regulations.
20. Regulation 6 of 1996 Regulations prescribes procedure for imposing major penalties. Regulation 6(3) as it stood, as on the date of issuance of charge memo dated 19.07.2000 reads as follows:
"(3) Where it is proposed to hold an inquiry, the Disciplinary Authority shall frame definite and distinct charges on the basis of the allegations against the officer employee and the 27 articles of charge, together with a statement of the allegations, on which they are based, shall be communicated in writing to the officer employee, who shall be required to submit within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), or within such extended time as may be granted by the said Authority, a written statement of his defence."
The above regulation provided, where it is proposed to hold an enquiry, the Disciplinary Authority to frame definite and distinct charges on the basis of allegations against the officer/employee and the articles of charge, together with a statement of allegations on which they are based shall be communicated in writing to the officer/employee with an opportunity to reply to the said charge memo. In other words, communicating the definite and distinct charges framed against the officer/employee along a with statement of allegations on which, charges are based would be sufficient and it would not require supplying of list of witnesses and list of documents along 28 with charge memo. Regulation 10 of 1996 Regulations provides for supply of list of documents and list of witnesses on which, articles of charge are proposed to be proved. The delinquent officer/employee would be entitled to list of documents and list of witnesses only after the officer/employee on appearing before the Enquiry Officer denies the charges. In terms of 1996 Regulations, the petitioner was provided list of witnesses and list of documents on denial of charges under proceedings dated 09.09.2000 (Annexure-J). The proceedings dated 09.09.2000 indicates direction of the Enquiring Authority to the Presenting Officer to make available the documents requested by the petitioner-CSO. It also discloses that the petitioner was provided an opportunity to inspect the original documents listed in the list of witnesses and list of documents. Subsequent to completion of enquiry against the petitioner, Regulation 6(3) was amended by notification dated 02.06.2001 to provide list of witnesses and list of documents along with charge memo. By the 29 time, Regulation 6(3) was amended, the enquiry against the petitioner was culminated by imposing punishment of compulsory retirement by the Disciplinary Authority by order dated 20.01.2001. In terms of Regulation 6(3), as it stood, as on the date of enquiry against the petitioner, not provided for supply of list of documents and list of witnesses along with the charge memo. Hence, the petitioner was not entitled for the list of witnesses and list of documents along with the charge memo.
21. Learned Senior counsel for the petitioner mainly contended that non-supply of investigation report as sought by the petitioner in her request letter dated 12.09.2000 before the Enquiry Officer has prejudiced the case of the petitioner, since the entire enquiry is based on the said investigation report. Learned Senior counsel in that regard has placed reliance on T.Takano case (supra). Before the Enquiry Officer, the Disciplinary Authority examined two witnesses Sri.N.Anandarao, Deputy General 30 Manager as MW1 and Sri.M.K.Chiththaranjan, Senior Manager, Audit as MW2 apart from marking documents MEX1 to MEX33. The petitioner has not examined any witness but marked 7 documents DEX1 to DEX7.
22. The charges against the petitioner in sum and substance is, lapses and irregularity in sanction and disbursal of loans. In particular the allegation is that the petitioner committed irregularity in sanctioning loan to M/s.Subhas Poultry Farm without ensuring proper pre- sanction appraisal, without ensuring compliance of suggestions given by Law Officer, and despite unsatisfactory opinion given by the State Bank of India. The other charge is that the petitioner allowed the debit balance in Current Account of M/s.Square D Electricals Private Limited knowing fully well that the party had irregular/over-due liability at Seshadripuram Branch and it was alleged that the petitioner allowed debit balance in Current Account of M/s.Tulshan Granite Private Limited 31 and failed to recover the same as per the guidelines laid down by the Bank. The list of documents on which the Bank relied upon to prove the charge against the petitioner would not contain the investigation report. The charge against the petitioner is not based on the investigation report. There is no material to demonstrate that the charge and the evidence of M.W.1 is based on the investigation report submitted by M.W.1. If the charges are proved against the petitioner independent of investigation report and investigation report is not the basis of the enquiry, the petitioner would not be entitled for investigation report. As stated above, the charges against the petitioner is proved on the basis of two witnesses examined and documents MEX1 to MEX33 marked on behalf of the respondent-Disciplinary Authority.
23. The petitioner has failed to demonstrate either before the Disciplinary Authority while submitting the 32 reply to the second show-cause notice or before this Court as to how non-supply of investigation report has prejudiced her case and how the said investigation report has a bearing on the defense of the petitioner. If a document which is not relied on by the Enquiry Officer during the course of enquiry, it would not be necessary to be supplied to the delinquent official. It is only those documents which are relied upon by the Enquiry Officer to arrive at his conclusion, then non-supply of those documents would cause prejudice. The Hon'ble Apex Court in a case reported in (2006)3 SCC 150 in the case of Syndicate Bank and others V/S Venkatesh Gururao Kurati while examining the scope of judicial review/interference of the Court under Article 226 of the Constitution of India in the matter of domestic enquiry/penalty/punishment imposed, particularly with regard to supply of documents at paragraphs 13, 15 and 18 has held as follows:
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"13. The High Court's finding, in our view, is perverse. The High Court having come to the conclusion that the documents sought by the respondent are not the basis for framing the charges nor those on which the disciplinary authority placed any reliance to prove the charges against the delinquent officer held that non-supply of those documents sought by the delinquent officer prejudiced his case and resulted in vitiating the proceedings.
15. Apart from this, the delinquent officer did not deny that the prosecution relied upon 218 documents and also 24 witnesses and the delinquent officer had an opportunity to cross-examine them and also examine the documents on basis of which the witnesses were cross-examined in the course of enquiry. The enquiry officer as stated earlier submitted a detailed report in which the delinquent officer did not deny at all, either by oral or written arguments, that he did not receive the cash from the cashier which was meant for the loanee. Learned counsel for the respondent vehemently urged that although the documents may not 34 form part of the charges or be relied upon by the prosecution in the course of enquiry, denial of the same would prejudice the delinquent's case because denial of contemporary documents deprive the right of the delinquent to set up an effective defence. We are unable to countenance such submissions at all, that the documents which do not form part of the charges or are relied upon by the prosecution during the course of enquiry, non-supply of which would cause any prejudice to the delinquent officer.
18. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot 35 be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non- observance of principles of natural justice."
24. Learned Senior counsel for the petitioner has placed much reliance on T.Takano case (supra) to contend that the petitioner was entitled for investigation report to defend herself in the enquiry. In T.Takano case, the Hon'ble Apex Court was considering the enquiry under the provisions of SEBI (Prohibition of Fraudulent and Unfair Trade Practices) Regulations, 2003 (for short "2003 Regulations") and the show-cause notice was issued placing reliance on the investigation report. Paragraph (8) of T.Takano judgment makes it abundantly clear that the show-cause notice was issued to the appellant therein based on the Forensic Board report and investigation conducted by the SEBI. Under the said circumstances, the Hon'ble Apex Court at paragraph 24 of the judgment 36 observed that it would be fundamentally contrary to the principles of natural justice if the relevant part of the investigation report which pertains to the appellant is not disclosed. The relevant paragraph 24 reads as follows:
"24. It would be fundamentally contrary to the principles of natural justice if the relevant part of the investigation report which pertaining to the appellant is not disclosed. The appellant has to be given a reasonable opportunity of hearing. The requirement of a reasonable opportunity would postulate that such material which has been and has to be taken into account under Regulation 10 must be disclosed to the notice. If the report of the investigation authority under Regulation 9 has to be considered by the Board before satisfaction is arrived at on a possible violation of the regulations, the principles of natural justice require due disclosure of the report."
The above observation makes it clear that material which has been and has to be taken into account under Regulation 10 of 2003 Regulations must be disclosed or 37 supplied to the delinquent. The above decision in Takano would have no application to the facts and circumstances of the present case. In the present case, the investigation report is not the basis of show-cause notice or charge memo and it is not the material which is relied upon by the Enquiry Officer to prove the charge against the petitioner.
25. Learned senior counsel for the petitioner contended violation of Regulation 6(17) of 1996 Regulations. In that, the Enquiry Officer after closure of the evidence failed to question the petitioner on the circumstances appearing against her in the evidence. It is not that the Enquiry Officer has not put any question to the petitioner. The proceedings of the Enquiry Officer dated 12.10.2000 discloses the question put by him to the petitioner, which reads as follows:
"As CSOE has not examined her-self as a witness, as IA I am putting the following questions to seek certain clarifications:38
Q.1. You have taken the credit decision in sanctioning the loan to M/s. Subhas Poultry Farm. Please let me know whether the said credit decision was taken by you in the normal course or you were influenced by any internal or external pressures?
A. The decision was taken by me based on the information made available to me. I was not influenced by any pressure."
Before the question posed by the Enquiry Officer, the petitioner herself has made her statement before the Enquiry Officer which is recorded by the Enquiry Officer as follows:
ORAL SUBMISSIONS OF CSOE:
I am Mrs.Savithri Sateesh working in this Bank from 1965 in various capacities, presently as Asst. General Manager of Central Accounts Office, Bangalore. I was working as Chief Manager of Seshadripuram Branch, Bangalore from May 1995 to 06.06.1998 and as Chief Manager of Gandhinagar Branch from 39 08.06.1998, subsequently promoted to AGMs cadre from 06.07.1998. I was transferred from Gandhinagar Branch and relieved to Zonal Office, Bangalore on 05.05.1999.
In respect of the accounts referred to in the chartgesheet, I wish to submit to treat my detailed letter dated 03.08.2000 addressed to General Manager, PD-IRD, HO: Manipal, as my submissions for this inquiry.
All the transactions were handed in the ordinary course of banking business and the decisions were taken only with the interest of business development and commercial base. Further, as a head of ELB i.e., Gandhinagar Branch, Bangalore, it was neither possible nor feasible for me to personally monitor and supervise each and every transaction of the branch. These were expected to be responsibility of respective Senior Manager/officials concerned in the various departments.
40
That's all I wish to say."
The petitioner in her oral statement submitted that all the transactions were handled in the ordinary course of banking business and the decisions were taken only with the interest of business development and commercial base. Further, the petitioner stated that it was neither possible nor feasible for her to personally monitor and supervise each and every transaction of the branch. She also stated that it was the responsibility of the respective Senior Manager/Officials concerned in various departments. The petitioner has made her submission before the Enquiry Officer which is recorded by him. In terms of Regulation 6(17) of 1996 Regulations, the Enquiry Officer generally questioned the petitioner. When the petitioner had chosen to make oral statement before the Enquiry Officer, before questioning by the Enquiry Officer, it was open for the petitioner to make her statement on the circumstances or evidences which were against her. Moreover, nothing prevented the petitioner 41 from examining herself further. The oral submission before the Enquiry Officer, before questioning by the Enquiry Officer is in the nature of examining herself before the Enquiry Officer. Thus, the conduct of the petitioner would not permit her to contend violation of regulation 6(17) of 1996 Regulations.
26. The petitioner also contended bias against the Enquiry Officer, M.W1 and respondent No.2-Presenting Officer. It is the specific contention that to eliminate the petitioner from the list of eligible Assistant General Managers for promotion to the cadre of Deputy General Manager, M.W.1 submitted adverse/biased investigation report. To consider the above contention, the following dates would be relevant:
(1) The Rank list of the Officers for promotion to the post of Deputy General Manager was published on 19.07.1999;42
(2) Show-cause notice to the petitioner was issued on 05.08.1999;
(3) Promotion of M.W.1 and respondent No.2 to the cadre of Deputy General Manager was issued on 07.02.2000; and (4) Charge memo was issued to the petitioner on 19.07.2000.
The entire process of consideration of promotion of petitioner as well as M.W.1 and respondent No.2 was initiated prior to issuance of show-cause notice to the petitioner and was completed before issuance of charge memo to the petitioner on 19.07.2000. Therefore, the allegation of the petitioner that only to keep away the petitioner from process of promotion, adverse investigation report was submitted by M.W.1 cannot be accepted. More so, when the promotion to the post of Deputy General Manager is by selection and to deny promotion to any Officer or employee on the ground of enquiry, relevant dated would be, the date of issuance of charge memo. 43 Thus, there is no merit in the contention of bias. The decisions relied on by the petitioner would have no application to the fact situation of the present case. The principles laid down by the Hon'ble Apex Court would have to be applied on analyzing facts of each case.
27. For the reasons recorded above, I am of the view that there is no merit in any of the contentions raised by the petitioner and accordingly the writ petition stands dismissed.
SD/-
JUDGE NC/mpk/-* CT:bms