Karnataka High Court
Madhava Raja Rao vs General Manager (Personnel Wing), Head ... on 26 August, 1998
Equivalent citations: (2000)ILLJ1340KANT
Bench: R.P. Sethi, K.R. Prasada Rao
JUDGMENT
1. While appellant was working as Manager, Canara Bank, Sindhagatta Village in Mandya District during the year 1981-82, a departmental inquiry was instituted against him under Regulation 6 of the Canara Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 (hereinafter called as Regulations) on three charges. Sri U.P.A. Naik, Divisional Manager, Kolar Division of the Bank was appointed as Inquiry Authority with regard to the alleged charges levelled against the appellant. The Inquiry Authority submitted report to me Disciplinary Authority holding the appellant guilty of all the charges framed against him. The Disciplinary Authority vide order dated September 2, 1984 accepted the findings recorded by me Inquiry Authority and imposed the penalty of removal from service without disqualification for future employment. Copy of the Inquiry Report was furnished to the appellant along with the final order of the Disciplinary Authority. Aggrieved by the Order of the Disciplinary Authority, me appellant submitted an appeal under Regulation 17 before the Board of Directors, which was rejected vide order dated June 6, 1985. Challenging the Report of the Inquiry Authority, the order of dismissal of the Disciplinary Authority and me rejection of his appeal by the Appellate Authority, the appellant filed a writ petition in this Court praying therein:
(a) declare that Regulation 7 of Canara Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 is illegal and unconstitutional.
(b) quash by the issue of an appropriate writ or order of direction as the case may be, the proceedings, of the General Manager, bearing No. BPL, BCC, CHF 2679 URJ, dated September 29, 1984 passed by the Disciplinary Authority (Annexure-E) as well as the proceedings of the Board of Directors held on May 23, 1985 rejecting the appeal petition as communicated to the petitioner vide proceedings of the General Manager bearing No. BLC/SSO/10595/ B-37, dated June 6, 1985 (Annexure-'B') with a further direction directing the respondents to reinstate the petitioner forthwith, with all consequential benefits.
Not satisfied with any of the submissions made on behalf of the appellant, the learned single Judge dismissed the writ petition vide the order impugned in this appeal.
2. The Report of the Inquiry Authority has been challenged on the ground of bias of the Inquiry Officer and violation of the principles of natural justice. It is submitted that the Inquiry Officer adopted a hostile approach towards the appellant from the very inception of the inquiry proceedings. During the inquiry proceedings, the appellant is stated to have requested for making available two documents, namely, a letter dated February 8, 1982 of the Circle Office and his reply dated April 10, 1982. The Inquiry Officer held that the appellant had made a stale claim at the end of the inquiry proceedings without mentioning for marking of the aforesaid documents well prior to the commencement of the inquiry proceedings and rejected his request. It is submitted that the reasoning assigned by the Inquiry Authority for not granting the request of the appellant jeopardised the whole of the inquiry resulting in alleged apparent miscarriage of justice and prejudice to him. In order to determine the relevance of the aforesaid two letters, it is necessary to have a look at the charges framed against the appellant and the substance of the documents sought by him to be made available. The three charges levelled against the appellant are:
Articles of Charge-I You are working as Manager of our Sindaghatta Branch since September 5, 1981. A few customers/residents of Sindhagatta have complained that you had demanded/accepted illegal gratification from them for sanctioning loans to them. The details of such complaints are given in the statement of imputations.
By your above action, you have failed to perform your duties with utmost integrity, devotion and diligence and acted in a way unbecoming of an officer of the Bank and thereby contravened Regulation 3(1) read with Regulation 24 of Canara Bank Officer Employees' (Conduct) Regulations, 1976 and committed a misconduct punishable under the provisions of Canara Bank Officer Employees' (Discipline and Appeal) Regulations, 1976.
Articles of Charge-II You are working as Manager of our Sindaghatta Branch since September 5, 1981. You had granted DPN loans to Sri P.S. Krishnakumar, Shri P.S. Shivakumar and Sri Srnivasa, residents of K.R. Pet. Certain serious irregularities detailed in the statement of imputation of misconduct were observed in respect of the above loans granted by you. By your above action, you had failed to perform your duties with utmost integrity, honesty, devotion and diligence and acted in a way unbecoming of a Bank Officer and thereby contravened Regulation 3(1) read with Regulation 24 of Canara Bank Officer Employees' (Conduct) Regulations, 1976 and committed a misconduct punishable under the provisions of Canara Bank Officer Employees' (Discipline and Appeal) Regulations, 1976.
Articles of Charge-Ill You are working as Manager of our Sindaghatta branch since September 5, 1981. You had granted AL 22 of 1981 to Sri Range Gowda on the co-obligation of Sri Anwar Pasha. There are reasons to believe that the loan was granted by way of accommodation to Sri Anwar Pasha, the co-obligant.
The details are furnished in the statement of imputations of misconduct.
By your above action, you had failed to perform your duties with utmost integrity, honesty, devotion and diligence and acted in a way unbecoming of a Bank Officer and thereby contravened Regulation 3(1) read with Regulation 24 and committed a misconduct punishable under the provisions of Canara Bank Officer Employees' (Discipline and Appeal) Regulations, 1976.
Letter dated February 8, 1982, which the appellant sought to be produced is the communication by the Bank of the allegations made against him in the complaint filed with the Bank. The aforesaid letter was admittedly always with the appellant. Letter dated April 10, 1982 is a reply submitted by the appellant in response to the letter of the Bank dated February 8, 1982. In that reply, the appellant referred to various circumstances allegedly drawing the background for falsely implicating him, as he had allegedly initiated recovery proceedings against some of the people. In reply to the charge-sheet, the appellant had filed his written submissions, which were enclosed with his letter dated June 14, 1984 (Annexure-C). Written arguments were also submitted on behalf of the appellant through the defence representative. In reply to Charge No. 1, the appellant reiterated that out of a population of about 10000, a few people made complaint against him. He specifically referred to the submissions of Mr. Puttaiah, Mr. S.J. Subbaiah Gowda, Mr. S.G. Kumarswamy, Mr. S. Ningegowda, Mr. S.M. Basavaraj, Mr. Ningani and Mr. S.J. Nagaraj and after referring to some documents submitted:
"Though it is alleged that witnesses have volunteered so many things, it is an afterthought voluntarily deposed and colluded up. Though Mr. Puttaiah claims both the handwriting on Ex. M1 and Ex. M2 are his own, one can notice the visible difference and the way of writing also. Thus, his contention that the alleged officer told him to write complaints against the staff and he wrote 'Canara Bank' on a piece of paper are all built up story".
It appears that all the facts mentioned in the documents sought to be produced were already in the knowledge of both the appellant as well as the respondents. No effort appears to have been made by the appellant for their production during the inquiry or even at the time of leading defence evidence. The aforesaid two documents besides being not relevant had not in any way prejudicially affected the interests of the appellant during the inquiry. The learned single Judge dealt with this aspect also and rightly held:
"The only procedural irregularity in conducting the domestic enquiry by the Enquiry Officer, according to the learned Counsel for the petitioner is, that the enquiry officer had not permitted the delinquent to produce two documents dated February 8, 1982 and April 10, 1982 by way of defence after the closure of the management's case. Memo dated February 8, 1992, is a memo issued by the Assistant General Manager of the Circle Office of the respondent-bank. Memo is in the nature of a show cause notice to the petitioner to offer his explanation. This was issued much earlier to the issuance of the charge-memo which was dated May 9, 1983. This memo was pursuant to the complaint receive by the Assistant General Manager from the villagers as well as several customers of the Sindaghatta village. Pursuant to this memo, petitioner had replied explaining the allegations made in the memo. That letter of reply is dated April 10, 1982. After the correspondence between the delinquent and the Bank, the Management had thought fit to proceed against the petitioner by issuing a charge-memo. This was dated May 9, 1983. Along with the charge-memo, petitioner was given the statement of imputations of misconduct. To this charge-memo, the petitioner had replied denying the allegations made therein. In my view, the documents dated February 8, 1982 and April 10, 1982 has nothing to do with the charge-memo that was issued after nearly an year. Even otherwise, in my view, merely because the Enquiry Officer has refused to permit the petitioner to produce those two documents, would not vitiate the entire enquiry proceedings. In my view, Enquiry Officer in not permitting the petitioner to produce those two documents has not caused any prejudice to the case of the petitioner before the Enquiry Officer".
In view of what has been noted above, it can be concluded that no illegality was committed by the Inquiry Officer in not allowing the production of the documents referred to by the appellant. The inquiry appears to have been conducted strictly according to the Regulations and after compliance with the principles of natural justice, and it was rightly held by the learned single Judge that no interference was required by this Court.
3. The order of the Disciplinary Authority has been challenged on the ground of not being in conformity with the Regulations besides having been passed in a casual manner without proper application of mind. Regulation 7 provides that the Disciplinary Authority, if it is not itself the Inquiry Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for fresh or further inquiry. If the Disciplinary Authority, haying regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Regulation 4 should be imposed on me officer employee it shall, notwithstanding anything contained in Regulation 8, make an order imposing such penalty. It is contended that before imposing the penalty, the Disciplinary Authority is under an obligation to form an opinion having regard to such finding on all or any of the article of charges. Forming of opinion as contemplated under the aforesaid Regulation cannot be a mere ritual or a formality. It is true that the Disciplinary Authority is not obliged to assign detailed reasons, for agreeing with the Inquiry Authority, but, it is equally true that the Disciplinary Authority before imposing the penalty should be shown to have applied its own mind to the facts and circumstances of the case before forming an opinion for imposition of the penalty. The learned Counsel for the appellant has referred to the order of the Disciplinary Authority and submitted that while imposing the penalty, the Disciplinary Authority failed to form any opinion regarding the facts of the case and had adopted a casual approach reflecting non-application of mind. It is further contended that the Disciplinary Authority had not even referred to the defence of the appellant much less to consider his pleas or give finding with regard to that In order to appreciate the submissions, it is relevant to refer to the order of the Disciplinary Authority (Annexure-E), which reads:
"Whereas departmental proceedings were initiated against the subject employee by serving on him the above referred charge-sheet Whereas, Sri U.P.A. Nayak, Divisional Manager was appointed as the Inquiring Authority vide proceedings of the General Manager BC:SSO:11409:E 37, dated July 28, 1983.
Wherdas, the Inquiring Authority, after conducting the enquiry has found the employee guilty of the charges levelled against him, Now therefore, agreeing with findings of the Inquiring Authority and considering other relevant factors, the following punishment namely:
"Removal from service which shall not be a disqualification for future employment" under Regulation 4(g) of the Canara Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 is hereby imposed on the subject employee".
4. We find substance in the submission of the learned Counsel for the appellant that the Disciplinary Authority had not at all considered the defence of the employee or the evidence led by him in support thereof. The learned Counsel for the respondent-Bank submits that the words "considering other relevant factors" are sufficient to point out that all circumstances including the evidence led by the appellant was considered by the Disciplinary Authority before passing the order.
5. 'Opinion' as mentioned in sub-regulation (3) of Regulation 7 of the Regulations would mean "something more than mere reiterating the conclusion of the Inquiry Authority". 'Opinion' has been defined to mean "judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question".
6. The belief or conviction can be inferred in conduct or behaviour, which indicates the existence of belief or opinion. The Supreme Court after referring to the Judgment in Chandu Lal Agarwalla v. Bibi Khatemonnessa, AIR 1943 Cal. 76, held in this regard:
" It is only 'opinion as expressed by conduct' which is made relevant. This is how the conduct comes in: The offered item of evidence is 'the conduct', but what is made admissible in evidence is 'the opinion', the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision: its immediate effect only to move the Court to see if this conduct established any 'opinion' of the person, whose conduct is in evidence, as the relationship in question. In order to enable the Court to infer 'the opinion', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the 'opinion'.
When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, 'the opinion of a person'. It still remains for the Court to weigh such evidence and come to its own opinion as to the 'facta probandum' as to the relationship in question.
We also accept as correct the view that Section 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship - Lakshmi Reddi v. Venkata Reddi, AIR 1937 PC 201".
7. To rebut the argument of the learned Counsel for the appellant, the learned Counsel appearing for the respondent relied upon the judgment of the Apex Court in State Bank of Bikaner and Jaipur and Ors. v. Prabhu Dayal Grover (1996-I-LLJ-288) (SC), wherein the Court under similar Regulations of the Bank had held that the Disciplinary Authority was not required to pass a speaking order. It was further held that there was no necessity of recording reasons while agreeing with the Inquiry Authority. In that case the employee was not shown to have led any evidence in defence and instead had requested to drop the disciplinary action against him, as according to him there was no truth or substance in the allegation, as the CBI had reportedly not registered a case against him. Such is not the position in the instant case. We are also not of the opinion that any reasons are required to be given by the Disciplinary Authority while agreeing with the report of the Inquiry Authority. We however find the legal defect in the order of the Disciplinary Authority, as it does not reflect the application of mind to the circumstances of the case in forming the opinion before awarding the punishment as is the mandate of the Regulation.
8. The findings of the Appellate Authority have also been rightly assailed by the appellant on the same grounds. The Appellate Authority though afforded the appellant an opportunity of being heard did not refer to the pleas raised by him in the memo of appeal and after referring to the article of charges, the Report of the Inquiry Authority and the order of the Disciplinary Authority dismissed the appeal holding:
"In respect of Articles of charge-III, we notice from the records that the borrower was not able to give the name of the vendor, date of purchase, etc., of the bullock cart and pair of bullocks purported to have been purchased by him. The security for the loan was not produced during the inspection, co-obligation was obtained from Sri Anwar Pasha who was a defaulter. It has also come out on record that post-sanction inspection was not conducted.
Viewing this in totality we do not find any reason to interfere with the findings of the Inquiry Authority and considering the fact that the charges alleged against the appellant were one involving integrity and honesty, we are of the opinion that the punishment imposed in the instant case is just and appropriate. Hence, we confirm the punishment and dismiss the Appeal".
9. In this regard, the learned Counsel for the appellant has relied upon R. Gopala Rao v. State of Mysore 1974 (1) Kar. LJ 427 and State of Bank of Bikaner's case, (supra). It is again true that the Appellate Authority was not required to assign valid reasons for agreeing with the finding of the Disciplinary Authority, but, it is equally true that while deciding the appeal, the Appellate Authority was under an obligation to show that it had applied its mind as was the mandate of Regulation 17.
Regulation 17 (ii) provides:
"(ii) An appeal shall be preferred within 45 days from the date of receipt of the order appealed against. The appeal shall be addressed to the Appellate Authority and submitted to the, authority whose order is appealed against. The authority whose order is appealed again, shall forward the appeal together with its comments and the records of the case to the Appellate Authority. The Appellate Authority shall consider whether the findings are justified or whether the penalty is excessive or inadequate and pass appropriate orders. The Appellate Authority may pass an order confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case".
10. A perusal of the order of the Appellate Authority does not show that it had considered whether the findings were justified or whether the penalty was excessive or inadequate. 'Consider' as contemplated postulates consideration of all aspects, the pros and cons of the matters. The dictionary meaning of the word 'consider' is to review attentively, to survey, examine, inspect, to look attentively, to contemplate mentally, to think over, mediate on, give heed to, take note of, to think deliberately, bethink oneself, to reflect.
11: The Supreme Court in Barium Chemicals Limited and Anr. v. A.J. Rana and Ors. AIR 1972 SC 561, interpreted the word 'consider' to mean:
"It is also mentioned that to consider is to fix the mind upon with a view to careful examination; to ponder; study; mediate upon, think or reflect with care. It is, therefore, manifest that careful thinking or due application of the mind regarding the necessity to obtain and examine the documents in question is sine qua non for the making of the order. If the impugned order were to show that there has been no careful thinking or proper were to show that there has been no careful thinking or proper application of the mind as to the necessity of obtaining and examining the documents specified in the order, the essential requisite to the making of the order would be held to be non-existent.
A necessary corollary of what has been observed above is that mind has to be applied with regard to the necessity to obtain and examine all the documents mentioned in the order. An application of the mind with regard to the necessity to obtain and examine only a few of the many documents mentioned in the order, while there has been no such application of mind in respect of the remaining documents, would not be sufficient compliance with the requirements of the statute. If, however, there has been consideration of the matter regarding the necessity to obtain and examine all the documents and an order is passed thereafter, the Court would stay its hand in the matter and would not substitute is own opinion for that of the authority concerned regarding the necessity to obtain the documents in question."
12. We are therefore of the opinion that while passing the order at Annexure-E, the Disciplinary Authority and while passing the order at Annexure-H, the Appellate Authority, did not consider the case of the appellant and thus violated Regulations 7 and 17 resulting in miscarriage of justice to the appellant. The learned single Judge also appears to have not considered this aspect of the matter and proceeded to assume the proper application of mind to the case of the appellant by the aforesaid authorities. The orders which adversely affect service career of a person are not supposed to be passed in a casual manner as is proved to have been done in the instant case. Both the impugned orders at Annexures-E and H are therefore liable to be quashed.
13. It has been stated at the Bar that after his dismissal, the appellant has joined the legal profession and was enrolled as an Advocate with effect from October 12, 1988. No useful purpose would be served by remanding the case again for fresh inquiry and orders under the. Regulations and in the light of the observations we have made hereinabove. We are of the opinion that interest of the appellant as also of the Bank can be protected by appropriately moulding the relief under the peculiar facts and circumstances of the case. We are satisfied that ends of justice would be served, if the appellant is directed to be paid his salary from the date of his dismissal on September 2, 1984 till the date of his enrolment as an Advocate on October 12, 1988.
14. Under the circumstances, the Appeal filed by the appellant is accepted and the order of the learned single Judge impugned therein is set aside. Writ petition of the appellant is allowed by quashing the impugned orders at Annexure-E and H with direction that instead of reinstating the appellant or holding inquiry against him, he shall be paid his salary from the date of the dismissal till October 12, 1988, the date when he was enrolled as an Advocate and thereby incurring disqualification of being re-employed. Parties to bear their own costs.