Punjab-Haryana High Court
Barjinder Kumar Aggarwal Son Of Shri ... vs State Bank Of India on 17 April, 2012
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.17242 of 1999 (O&M)
Date of decision: 17.04.2012
Barjinder Kumar Aggarwal son of Shri Chaman Lal Aggarwal,
resident of K.No.3, Bank Colony, Ambala City.
....Petitioner
versus
State Bank of India, through its Chairman, Central Office, Nariman
Point, Madam Cama Road, Mumbai, and others
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr. Virinder Kumar Shukla, Advocate, for the petitioner.
None for the respondents.
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1. Whether reporters of local papers may be allowed to see the judgment? No.
2. To be referred to the reporters or not? No.
3. Whether the judgment should be reported in the digest? No. K.Kannan, J
1. The petitioner challenges the order of dismissal from service passed against him on proof of charges of misappropriation during his service as Branch Manager in Jind from July 1992 to January 1994. The disciplinary authority, after going through the Enquiry Officer's report, found him guilty of charges and recommended that he should be dismissed from service and transmitted all the papers to the Deputy General Manager, who was Civil Writ Petition No.17242 of 1999 (O&M) -2- the appointing authority. The Deputy General Manager (D&PB), as the appointing officer observed that on a dispassionate and objective evaluation of the facts, he concurred with the recommendations of the disciplinary authority and inflicted upon him the order of dismissal from service. The petitioner had challenged the same by means of a writ petition in CWP No.769 of 1999 but the same was dismissed with liberty given to the petitioner to challenge the same by means of an appeal to the appellate authority. Subsequently the appeal had also been filed to the appellate authority, who had dismissed the same. It is the decision rendered on 07.12.1998 dismissing him from service by the appointing authority and the decision of the appellate authority which are in challenge before this Court.
2. The petitioner's contention is that he had not been given full and effective opportunity to defend himself. The subsistence allowance had not been paid in full and therefore, he did not have the means to support himself. A charge of misappropriation was sought to be imputed against the petitioner through evidence of customers, who were said to have testified that the monies entrusted to the petitioner, had not been credited to the accounts immediately and there had been manipulations of the accounts when the petitioner had subsequently deposited them and carried out corrections in the account books and passbooks of customers. Civil Writ Petition No.17242 of 1999 (O&M) -3-
3. The petitioner would contend that he had been kidnapped and beaten up in an unknown place and secured his signatures admitting to the guilt. The petitioner would contend that the said statement ought not to be relied on by the disciplinary authority.
4. I have examined the case from each one of the aspects which have been raised by the petitioner. On his contention that the subsistence allowance had not been paid to him, it is seen that the charge-sheet had been levied against him on 17.01.1995 and the Enquiry Officer had been appointed on 14.07.1995. I notice that immediately after the institution of enquiry, the subsistence allowance had not been released to him but it was not as if the Enquiry Officer had proceed even without securing the entire subsistence allowance. On 29.04.1996, the petitioner has been paid the allowance for the period commencing from 17.11.1995 to 31.03.1996, a sum of Rs.12,454.14 and for April 1996, an amount of Rs.4,606.91 had also been filed. The communication also noticed the fact that the petitioner's current account had been overdrawn to a sum of Rs.12,880.37 and that the leave record showed debit of 2 months and 16 days. Consequently, they had debited the salary for 1 month and 23 days, amount to Rs.18,446/- to the current account and the salary for the period from 01.11.1995 to 16.11.1995 that is the date till he was actually in service was credited to his current account. I have not been shown as to how the details of the amount Civil Writ Petition No.17242 of 1999 (O&M) -4- that had been released on that date on 24.04.1996 was inadequate or how the amount which had been shown as overdrawn could not have been adjusted against the future amounts payable to him. I will not, therefore, make an issue about the fact that he had not been paid his subsistence allowance properly.
5. On the contention that the petitioner did not have sufficient opportunity to cross-examine the witnesses and that it had been unfairly rejected to him, I have seen through the proceedings of the Enquiry Officer on various dates to ascertain whether the petitioner had sufficient opportunity and whether he had utilized it to his own benefit.
6. The Enquiry Officer was appointed on 14.07.1995. Up to the date when the subsistence allowance had not been released, I will not find fault with the petitioner for his absence. I have already observed that the subsistence allowance had been released to him on 24.04.1996. I will, therefore, turn only to the proceedings subsequent to the date and whether the petitioner had effectively used those opportunities. It is seen from the record that the management-witnesses, namely, all the customers, who had complained of misappropriation, had produced the documents and exhibits had been tendered before the Investigating Officer. On 05.06.1996, the petitioner, the Presenting Officer and the Enquiry Officer were present. The petitioner had made a request on that day that his defence representative had undergone hernia operation and Civil Writ Petition No.17242 of 1999 (O&M) -5- that he was not in a position to travel. He had sought, therefore, for time for cross-examination. The Investigating Officer had observed on that day that he had revoked the ex parte proceedings and that his defence representative might join the enquiry proceedings as and when the petitioner deemed it necessary. The petitioner had remonstrated that he was not prepared to cross-examine in the absence of the defence representative. Although the Presenting Officer had objected to it contending that it was very difficult to call all the witnesses again and again, the enquiry had been adjourned to 09.07.1996 and the petitioner had also been directed to submit his defence documents and list of witnesses. The Presenting Officer had also been directed to produce all the prosecution witnesses produced earlier on the subsequent date of hearing for facilitating cross- examination. The case had been adjourned from 05.06.1996 to 10.07.1996 with those observations. The next record of proceedings is only 23.10.1996 and it records the fact that the petitioner was not present on 23.10.1996, while the Presenting Officer was alone present. The Enquiry Officer had observed that the petitioner had not come in spite of the fact that registered notice had been sent to him on 07.10.1996 informing him about the date. The proceedings dated 23.10.1996 also records the fact that after the order was passed on 05.06.1996 adjourning the case to 10.07.1996, the petitioner had come present on 08.06.1996 and sought for adjournment. Before 09.07.1996, he had sent a telegram expressing his difficulty to attend Civil Writ Petition No.17242 of 1999 (O&M) -6- the enquiry proceedings due to illness and intimated that the medical certificate will be given. Although more than 3 months had elapsed, the Enquiry Officer had observed that the petitioner had not sent the medical certificate or any intimation. On 10.07.1996, it appears although the case was posted for hearing at 10.30 AM, till 12 noon, the petitioner had not come. At that time, the Enquiry Officer had set him ex parte and had called upon the Presenting Officer to tender his next prosecution witness. On that day, Shri Vir Bhan had been examined, who had given evidence about the fact that he had given Rs.10,000/- to the petitioner on 24.06.1993 and the petitioner had come to his house on 06.11.1993 with Rs.10,000/- plus Rs.1,000/- which was said to constitute interest for the period when he held them back the amount without depositing it to the credit of the customer. He had given evidence to the effect that the petitioner had taken it in writing from him that he should give a statement to the Bank that his statement complaining of misappropriation was taken from him with force.
7. It appears on 23.10.1996, the petitioner had come late and sought for permission to be defended by one Shir Daljit Singh as his defence representative vice Shri T.S. Nagri, who had been cited as his defence representative was unable to assist him. The Enquiry Officer recalled his earlier proceeding setting him ex parte and directed the defence representative to cross-examine the prosecution witness. The representative, however, explained that the Civil Writ Petition No.17242 of 1999 (O&M) -7- petitioner had approached him only on the earlier date and that he should be granted opportunity to study the witnesses' statements for cross-examination. The minutes of the proceeding of the Enquiry Officer records the fact that a fair opportunity had already been given and further opportunity could not be given for an adjournment since it was not possible to call the prosecution witnesses to come again and depose and that it was open for the defence witnesses to secure their presence if it was possible for them. The Enquiry Officer had advised the defence representative that 6/7 witnesses were still there and he could cross examine them. The Enquiry Officer has observed that to give sufficient opportunity to defence, he was giving him some time to study the proceedings and the prosecution documents and that he was adjourning the case and post the same on 19.11.1996 at 10.30 at Jind Branch. He had also directed the defence to give his list of witnesses and documents within 7 days. It is not very clear as to what had happened on 19.11.1996 but in the proceedings of the Enquiry Officer on 30.01.1997, the defence representative had requested the petitioner to produce the witnesses but the Enquiry Officer had expressed his difficulty since the witnesses had already been released and it was not possible to secure them. The defence representative himself is reported to have observed that whenever time was given for cross- examination, it was not properly utilized. The petitioner had still not given the list of witnesses or the documents. He had also observed Civil Writ Petition No.17242 of 1999 (O&M) -8- that if it was not possible for the petitioner himself to secure their presence, he cannot also do so. With no cross-examine done, the case had been adjourned to 24.02.1997 for production of further witnesses. The final hearing appears to have taken on 11.03.1997 when no further evidence was given by the defence and he had proceeded to give his report on 19.03.1997.
8. I have outlined all the various dates of hearing before the Enquiry Officer to assure to myself that the Enquiry Officer did not hustle through the proceedings but he had given sufficiently a long rope to the petitioner. Each one of the witnesses had spoken about how the amounts deposited with the petitioner had not been immediately given credit, but there had been manipulations. The Enquiry Officer, therefore, after an elaborate order detailing the nature of evidence given by each one of the witnesses found that all the three charges levied against the petitioner relating to misappropriation had been established. The disciplinary authority had considered all of them and he had affirmed the same finding that there is no error that having regard to the fact that the charges were severe, he had recommended to the appointing authority the punishment of dismissal from service. There are however certain aspects which are not very clear from the records. After the Enquiry Officer had given his report on 19.03.1997 and the disciplinary authority in his order dated 07.12.1998 recommended a stiff punishment to the appointing authority, the findings of the Enquiry Civil Writ Petition No.17242 of 1999 (O&M) -9- Officer do not appear to have served on the petitioner at all to elicit his objection for the same to show cause against the findings. Again when the disciplinary authority was himself not the appointing authority and when he was transmitting it to the appointing authority, he has merely affirmed the recommendations of the disciplinary authority on the same day without further giving an opportunity to the petitioner to show cause against the findings of the Enquiry Officer. It has been held by the Hon'ble Supreme Court that where the disciplinary authority was himself not the punishing authority, the punishing authority cannot take any decision without actually affording to the petitioner an opportunity. The appointing authority had proceeded to consider the case adverting to each one of the points raised by the petitioner. It has been held by the 5- member Bench of the Hon'ble Supreme Court in ECIL Versus B.Karunakar-1993(4) SCC 727 that serving the Enquiry Officer's report before taking a final decision is an essential facet of natural justice. There could be instances where no prejudice is caused by the non-service of the Enquiry Officer's report, such as when on admitted pleadings themselves, the decision could have been taken or when the objections to the Enquiry Officer's report brought post facto reveal that there was nothing substantial that could have made possible to arrive at a different conclusion. In this case, however, I am not able to make such an inference by the only fact that all the witnesses had made the statements and the Enquiry Officer had Civil Writ Petition No.17242 of 1999 (O&M) - 10 -
concluded that the petitioner did not avail to himself opportunity for the cross-examination. I have also held that the procedure before the Enquiry Officer was not faulty. The extent to which the statement of these witnesses could be relied on and whether the documents produced by them were substantially proved, what they were stating orally proved the charges, etc have not been challenged by the petitioner either in appeal or in the grounds urged in support of the writ petition.
9. It is seen from the records that even apart from the allegation of misappropriation while he was in service at Jind, there had been a subsequent charge-sheet levied against him for some indiscipline in Rewari Branch. However, the proceedings were not taken but kept in abeyance in view of the fact that the enquiry against the officer relating to his conduct still at Jind Branch had yielded in finding of guilt. In the absence of proof of prejudice, I shall see no reason to interfere with the decision taken against the petitioner.
10. The impugned order is confirmed and the challenge to the same in the writ petition ought to fail and accordingly, the writ petition is dismissed.
(K.KANNAN) JUDGE 17.04.2012 sanjeev