Andhra HC (Pre-Telangana)
K. Venkateswarlu vs Nagarjuna Grameena Bank And Anr. on 14 February, 1995
Equivalent citations: 1995(1)ALT511, (1995)IILLJ492AP
ORDER S.R. Nayak, J.
1. This writ petition filed under Article 226 of the Constitution of India is by a dismissed bank employee calling in question the validity and legality of the orders made by the second respondent-Disciplinary Authority imposing the penalty of 'removal from service' as a measure of punishment for the alleged misconduct committed by the petitioner and that of the first respondent which is the Appellate Authority under Regulation 30(1) of the Rayalaseema Gra-meena Bank Staff Service Regulations 1980, for short 'the Regulations', confirming the order of the Disciplinary Authority.
2. The petitioner was appointed as an officer by the Management of the first respondent-Na-garjuna Grameena Bank and he was posted as Manager of Chintur branch on August 4, 1978. The petitioner worked at that branch as the Manager of the bank from May 4, 1978 to May 24, 1980. Thereafterwards the petitioner was transferred to Sujathanagar branch of the respondent-bank in Khammam district. When the petitioner was working as an officer in the Sujathanagar branch the second respondent issued a charge memo dated August 11, 1983 to the petitioner alleging commission of certain misconduct by the petitioner. The charge memo dated August 11, 1983 issued to the petitioner reads thus:
Ref. No. DPC/21/109/83 D. August 11, 1983.
OUR STAFF SERVICE REGULATIONS -1980: OUR 'CHINTUR' BRANCH During your incumbency as Branch Manager at our Chintur Branch, vou are reported to have committed several serious irregularities. Those which have so far come to light are detailed hereunder:
(a) It is alleged that you had utilised a sum of Rs. 3,250/- from a GTL No. 830 dated June 19, 1978 for Rs. 3,550/- sanctioned by Shri S. Rajanna, the then Branch Manager. These amounts were availed of by you without any specific sanction/report to Head Office for your personal benefit without observing the Bank's usual lending norms and thus exposing the Bank to a grave risk.
(b) It is alleged that you had sanctioned the following loans to the under - noted borrowers, the proceeds of which are reported to have been utilised by you:
S.No. A/c No. Name of the borrower Date of sanction Amount sanctioned Purpose ACC Sarvasri
1. 1385
Kura Kannaiah 5-1-79 5,000/-
Crop loan
2. 1379 Payam Muttaiah 24-1-79 3,000/-
-do-
3. ATL 161 Kota Venkateswar Rao 10-4-80 4,000/-
Cart and Bullocks
4. ATL I64 Kura Kannaiah 30-4-80 1,000/-
Agri Implements
(c) It is reported that you had obtained most of the thumb impressions of the branch part-time temporary sweepers, on the documents in respect of the under noted ACC account, which is highly detrimental to the interest of the Bank.
1. ACC 1379 Pay am Muthaiah November 24, 1979 Rs. 3000/- crop loan,
(d) You are reported to have sanctioned several loans beyond your discretionary powers, even without the recommendations of the concerned Field Assistant or proper appraisals, S.No. Name of the Borrower A/c Date of sanction Amount sanctioned Purpose Sarvasri A.C.C
1. Payam Muthaiah 1379 24-11-79 3,000/-
Crop loan
2. Kura Kannaiah 1385 5-1-79 3,000/-
-do-
3. Kota Venkateswar Rao ATL161 10-4-80 4,000/-
Cart and Bullocks
4. Kongala Kantaiah ATL 160/A 7-4-80 4,100/-
(d)(a) It is reported that you had sanctioned a loan ATL 161 dated April 10, 1980 for Rs. 4,000/- in the name of your brother Shri Kota Venkateswar Rao for Cart and Bullocks and utilised the amount for your benefit. Thus you had violated the set norms of the Bank.
(e) You are reported to have sanctioned several loans without proper identification by Govt. Agencies. The loans were allegedly released 'in cash' to all the borrowers, quite contrary to the extant instructions issued by the Bank from time to time.
S. No. Name of the Borrower A/c Date of sanction Amount sanctioned Purpose Sarvasri
1. Kota Venkateswar Rao ATL 161 10-4-80 4,000/-
Cart and Bullocks
2. Kongala Kanthaiah 161/A 7-4-80 4,100/-
_
3. Payam Muthaiah ACC 1379 24-11-79 3,000/-
Crop loan (2) You had thus, violated Regulation No. 30 (i) of our Staff Service Regulations - 1980. You are, therefore, hereby required to submit a written statement in your defence, if any, in respect of the charges referred to above, within 15 days from the date of receipt of this letter. If no written statement is received from you within the stipulated period, it will be deemed that you have no explanation to offer in your defence and you would be proceeded against accordingly in the matter.
3. This charge-sheet is issued to you only on the revelations so far made and without prejudice to our issuing further charge- sheet (s) for any additional charges not covered or not included in the charge-sheet.
Sd/-
Chairman and Disciplinary Authority."
The petitioner submitted his reply dated September 1, 1983 to the charge memo. The reply submitted by the petitioner is in Telugu language; a translated copy of the reply dated September 1, 1983 is produced by the respondents along with the material papers filed by them. The reply dated September 1, 1983 submitted by the petitioner reads thus:
"From: To
K. Venkateswarlu The Chairman
Branch Manager Nagarjuna Grameena
Bank
Nagarjuna Grameena Head Office
Bank
SUJATHANAGAR KHAMMAM.
BRANCH
Khammam District.
Date: September 1, 1983.
Dear Sir,
With reference to your Letter No. DPC/21/109/83 dated August 11, 1983, I submit my replies to the allegations levelled against me as under:-
1(a) : It is true that I availed amount from GTL A/c. No. 830. In the year 1978 Head Office sanctioned me Rs. 7,000/- towards purchase of Motor Cycle. I required Rs. 3,000/- in addition to purchase a new motor cycle and got it registered. In view of it, I availed the amount from the loan account and utilised the amount at the time of purchasing the vehicle. Subsequently the amount thus utilised by me was repaid into the account.
In those days I did not have comprehension about Bank's transactions especially with regard to Advances. I came to know mat it was irregular to do so. I will assure you such lapses will not recur. Please excuse me for the lapse.
(b) The loans sanctioned in the name of Shri Kura Kannaiah (ACC 1385. ATL 164) were not utilised by me. Those loans were sanctioned by me as per the recommendations of the concerned area Field Assistant. I once again state that I did not utilise the amounts from these loans accounts.
It is true that I had utilised the loan proceeds sanctioned in the name of Shri Payam Muthaiah (ACC-1379) towards Agricultural operations at my village. As already stated I had done so in those days, which was subsequently repaid by me. I regret very much for availing loan in the name of others and utilising it for personal agricultural operations, without obtaining the Head Office permission. I assure such lapses will not recur and excuse me for the same.
I had sanctioned a loan in the name of my brother (Kota Venkateswara Rao ATL-161) and with the proceeds I cleared the loan availed in the name of Shri Payam Muthaiah.
As already explained to you that the loan amount sanctioned in the name of Shri Payam Muthaiah that was utilised by me for agricultural operations could not be repaid within the expected time due to financial constraints. In these circumstances I thought that it is not in order to have a loan in the name of other person, I sanctioned loan in the name of my brother and cleared the loan in the name of Shri Payam Muthaiah. For the loan availed in my brother's name no subsidy was received. Due to my ignorance I could not obtain Head Office permission before sanctioning loan in my brother's name. Please excuse me for the irregularity.
(c) I deeply regret for the same. I categorically assure you that such things will not recur. Please kindly excuse.
(d) Knowingly or unknowingly, I sanctioned a few such loans but I repaid all such loans. I submit that such lapses will not recur. Please pardon.
(e) Due to ignorance and inexperience, I sanctioned a few loans without the identification by Government Agencies. I assure that such lapses will not recur. Please excuse.
Due to ignorance and lack of Banking knowledge, knowingly or unknowingly I had committed these irregularities. I pray please kindly excuse me. For the irregularities committed by me, I will happily take any punishment that is going to be inflicted on me. Now onwards, I will discharge my duties correctly and satisfactorily.
Yours faithfully, Sd/-
K. Venkateswarlu."
The Disciplinary Authority, not being satisfied with the reply of the petitioner, decided to hold a departmental enquiry against the petitioner. Accordingly the Disciplinary Authority on September 14, 1985 appointed an Enquiry Officer to hold enquiry against the petitioner. The Enquiry Officer after holding the departmental enquiry against the petitioner and on appreciation of materials and evidence placed before him recorded his findings that the petitioner was guilty of the charges (a), (b), (2)(c) and (d) (1) of the charges only and accordingly he submitted his report. The Disciplinary Authority after receipt of the findings recorded by the Enquiry Officer proposed to impose the penalty of dismissal on the petitioner. Accordingly the Disciplinary Authority issued second show cause notice to the petitioner proposing to impose the penalty of 'dismissal' and directing the petitioner to submit his reply if any in that regard. The petitioner submitted his reply to the second show cause notice. The Disciplinary Authority after consideration of the reply submitted by the petitioner and finding the petitioner guilty of the charges (a) (b) (2), (c) and (d)(1), by the impugned order dated September 23, 1987 imposed the penalty of 'removal' from service. There afterwards the petitioner preferred an appeal under Regulation 30(1) of the Regulations to the first respondent-Appellate Authority. The first respondent Appellate Authority summarily rejected the appeal of the petitioner and confirmed the order made by the Disciplinary Authority by its order dated July 14, 1988. Hence this writ petition.
3. Sri V. Jogayya Sarma, the learned Counsel appearing for the petitioner contended that
(i) the charges framed against the petitioner are vague, imprecise, incapable of understanding properly as well as defective;
(ii) the Disciplinary Authority ought to have conducted a joint enquiry against the petitioner and Sri Subba Rao, clerk who was also alleged to have been a party to the misconduct involving the same transaction;
(iii) the enquiry proceedings are vitiated on account of the refusal of the Enquiry Officer to permit the petitioner to avail the services of a co-workman and an office bearer of the Union to which the petitioner belonged, one A. Satyapal Reddy by name, as his Defence Representative and to re-do the enquiry;
(iv) the Disciplinary Authority has erred seriously in law in placing reliance on the so-called admission of the charges by the petitioner without considering the claim of the petitioner that the admissions were extracted from him under pressure; and
(v) the order of the Appellate Authority suffers from an error apparent on its face inasmuch as it does not disclose any reasons for its decision; it is non-speaking and is the one made in utter violation of principles of natural justice and fair play.
4. Sri Ramesh, the learned standing counsel for the respondent-bank, on the other hand fully supported the impugned orders. Sri Ramesh, the learned counsel, argued that the petitioner in his reply to the charge memo in clear terms admitted the guilt and in that view of the matter there was absolutely no need to hold departmental enquiry. However, he submitted that the enquiry was conducted only for the purpose of enabling the petitioner to offer any explanation for his conduct or to place before the Disciplinary Authority any circumstances which would go to mitigate the gravity of the offence. Alternatively Sri Ramesh, the learned counsel contended that even in the event of this court finding certain flaw or error in the enquiry conducted by the Disciplinary Authority that will not vitiate the final order made by the Disciplinary Authority because holding of a departmental enquiry was wholly unnecessary having regard to the clear admission of the guilt by the petitioner. Sri Ramesh, the learned counsel while supporting the order made by the Appellate Authority submitted that discolsure of reasons by the Appellate Authority is not necessary when it confirms the order made by the Disciplinary Authority and it should be presumed that the Appellate Authority adopted the same reasons assigned by the Disciplinary Authority to impose the penalty in support of its decision also.
5. The first question which arises for consideration is that whether the impugned orders could be sustained on the alleged admission of the guilt by the delinquent employee and if this question is answered positively, the next question would be whether in such facts-situation, it was necessary for the Disciplinary Authority to hold a departmental enquiry and if this question is answered negatively, the further question would be whether any defect or error in holding such enquiry which was not necessary would vitiate the final order made by the Disciplinary Authority on the basis of the admission. If these three questions are answered in favour of the respondent-bank the points (ii), (iii) and (iv) argued by Sri Sarma, the learned counsel for the petitioner, will not survive for consideration on merits and on the other hand if these questions: are answered in favour of the delinquent official, it will become necessary for the court to consider all the five points raised and argued by Sri Sarma, the learned counsel for the petitioner. Therefore, I, in the first instance, proceed to: consider the three questions framed by me above.
6. A charge memo issued by the Disciplinary Authority and reply explanation offered by the delinquent official in adomestic or departmental enquiry can be comparable to the plaint and the written statement in a suit. In other words charge memo and reply/explanation in a departmental enquiry are pleadings. In civil law the pleadings are the written allegations of the parties terminating into positions distinctly affirmed by one side and denied on the other which are called issues. The intention of the pleadings is to intimate the party of the specific questions to be tried and the object would be defeated if either party were at liberty to prove facts essentially different from those stated on the record. The rules of pleadings as followed by civil courts have been laid down in Order VI of the Civil -Procedure Code. According to Rule 2 of Order VI of the Civil Procedure Code, the pleadings should contain only a statement in concise form of the material facts on which the party pleading relies for his claim or defence but not the evidence by which they are to be proved. The general rule which is followed by courts is that decision of a case cannot be based outside the pleadings of parties. Although the technical rules of the procedure and the evidence are not strictly applicable to the disciplinary proceedings, the essence of the above principle should be adhered to and is applicable to the departmental proceedings also. Therefore it can be said that the parties even in a disciplinary proceedings are bound by their pleadings.
7. In a disciplinary proceeding if the delinquent admits the charge framed against him or makes an unconditional and unqualified confession, then there is nothing more to be done by way of enquiry and it cannot be argued that the procedure of departmental enquiry should have been applied notwithstanding such admission or confession. When admission made by a delinquent shows that he had committed misconduct then the question of violation of the principles of natural justice cannot have any relevance. If a misconduct is admitted then this is antithesis to the violation of the principles of natural justice or victimisation. If the workman admits his guilt in the enquiry, that is to say, in his reply to the charge-memo or before the enquiry officer, there is no obligation on the management to lead evidence on the merits because that would be an empty formality and in such cases there is no violation of principles of natural justice or the certified standing orders if the management does not hold departmental enquiry. On the other hand, in case a confession is made prior to the charge, then it is necessary to consider whether they are brought about by inducement or coercion. This is not applicable when the employee makes admission in his own hand writing in written reply to the charge-sheet. Such admission must be treated as voluntary, uninfluenced, undisturbed and probably unaided. At this juncture it is also relevant to note that the enquiry in a disciplinary proceedings commence with the issuance of charge memo and end with the final order that may be made by the disciplinary authority. The admission of the guilt by a delinquent in his reply/explanation to the charge memo should therefore be considered to be an admission made by the delinquent in the course of enquiry, not in pre-enquiry. If an order made by the disciplinary authority imposing the punishment on a delinquent could be sustained on the basis of the admission made by the delinquent, the punishment cannot be set aside by the court on the ground that no officer of the company was examined on behalf of the disciplinary authority. Examination of the witnesses on behalf of the disciplinary authority in such facts-situation is absolutely unnecessary. In such cases the principles of criminal jurisprudence requiring absolute proof of guilt cannot be imported. Once an opportunity to show cause is given by the employer, the employer is exonerated of his duty of giving a reasonable opportunity to the delinquent concerned if the latter does not avail of the opportunity of showing cause and throws himself at the mercy of his employer or tenders an unqualified apology, such a delinquent later cannot complain that the punishment was imposed on him by the employer in violation of principles of natural justice or without holding a regular departmental enquiry. Further in case the delinquent admits the guilt unconditionally and clearly and despite that the employer holds a departmental enquiry against him and the court finds certain flaw or defect in such unnecessary enquiry conducted by the employer, even then the court cannot set aside the order made by the employer imposing punishment. It is so because even if the defective enquiry is conducted then no prejudice is caused to the delinquent because action could have been taken against him on the basis of admission.
8. There may be cases where an admission from the delinquent may be obtained by the disciplinary authority by coercion or inducement or misrepresentation etc. If that is the case the concerned employee should within a reasonable time retract from the admissions made by him under coercion, misrepresentation or inducement etc., and it is ultimately for the courts having regard to the totality of the facts and circumstances of the case to decide whether any admission made by the delinquent in the course of enquiry was actually obtained by coercion, misrepresentation or inducement etc., or not and no hard and fast rule can be laid so as to make it applicable to all cases.
9. Admission carries an inherent evidentiary value of its own and is substantive evidence under Sections 17 and 21 of the Indian Evidence Act though they are not conclusive proof of the matters admitted. It may be open to a court to explain the admissions but it cannot ignore the admissions made by the delinquent and if this is done that will be a vital defect. Admissions duly proved are admissible irrespective of whether the delinquent making them participated in the enquiry or not and whether the delinquent when appearing as witness was confronted with those statements in case he made a statement contrary to those admissions. If a delinquent is proved to have made an admission that is his duty to explain the same and it is not the duty of other party to ask him to explain the same and the doctrine of confrontation in such a case would not be applicable.
10. Section 145 of the Indian Evidence Act reads as follows:
145. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to the matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
11. The principle in the above section is based on the fact that generally the previous statement is not substantive evidence. It was previously held by certain High Courts that an admission cannot be used against a party unless it is put to him and an opportunity is afforded to explain it if it was capable of explanation. This view is no longer a good law in view of the decision of the Supreme Court in the case of Bharat Singh v. Mst. Bhagir Thi . In that case the Supreme Court held that the purpose of contradicting the witness under Section 145 of the Evidence Act is very much different from the purpose of proving the admission and admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence. In view of this the provisions of Section 145 of the Indian Evidence Act are not applicable to admissions. In case of an admission it is open to the court to reject the exculpatory part and admit the inculpatory part if the other evidence in the case would show that the inculpatory part could be accepted as true.
12. Although admissions constitute good evidence against the party making them, he is not bound by them unless they operate as estoppels and he is at liberty to show that they were mistaken or untrue. The effect of admission is merely to shift the onus to disproving them on the party making them unless a plea of estoppel can be successfully invoked. The evidentiary value of admissions depends upon the circumstances in which they are made and the possibility of incorrect statement being misguidedly made by ignorant persons should not be overlooked. If admissions are made with regard to legal consequences under misapprehension as to the true interpretation of law it is not binding upon a person.
13. Apology is also a form of confession and the principles regarding confession are also applicable to the apology. However the apology differs from confession in the fact that on some occasions there is no express admission of incriminating facts and it had to be implied from the apology offered by the employee. Another difference between an apology and confession is that when an employee expresses apology and gives assurance of good conduct in future he hopes that thereby the employer would either excuse the misconduct or in any case would take lenient view of the matter in view of the apology. In order that apology should serve the purpose of mitigating the allegation against an employee, the apology should be unconditional, unqualified and without any reservation. An apology is not a weapon of defence forged to purge the guilty of their offence or misconduct. It is intended to be evidence of real contriteness, the manly consciousness of a wrong done, of an injury inflicted and the earnest desire to make such reparation as lies in the wrongdoer's power.
14. In the light of the legal principles noted above governing the evidentiary value of admissions, confessions and apology, the facts of this case should be examined. In this case, the charge memo was issued to the petitioner on August 11, 1983; the petitioner submitted his reply on September 1, 1983; the Disciplinary Authority appointed the enquiry officer on September 14, 1985; the enquiry before the Enquiry Officer commenced on October 28, 1985 and the proceedings were conducted on October 28, 1985, October 30, 1985, November 8, 1985 and November 11, 1985 and the petitioner participated in the enquiry at these three sittings. The Enquiry Officer has fixed further enquiry on November 19, 1985 but the petitioner was absent. The enquiry was adjourned to December 6, 1985. Even on that day the petitioner was absent. It appears that the petitioner on December 14, 1985 through his letter addressed to the Enquiry Officer sought the permission of the Enquiry Officer to avail the services of Sri A. Satyapal Reddy, Manager, Nagarjuna Grameena Bank, Dibinagar branch, as his Defence Representative. Since the petitioner was absent on December 6, 1985 the enquiry was adjourned to December 23, 1985. On that day at the outset the Enquiry Officer asked the petitioner to disclose the reasons in support of the request of the petitioner to avail the services of Sri Satyapal Reddy as his Defence Representative. The petitioner stated thus:
"I am mentally suffering from 20 days onwards. Since 20 days my health is not well. Presenting Officer is confusing me by putting relevant and irrelevant questions in the enquiry. I am not telling proper answers in a proper way for the questions put forth by him. Hence, I request you to accord permission to Sri A. Satyapal Reddy, Branch Manager, Bibinagar branch, to assist me and to defend my case in the enquiry. I am becoming upset. Hence, I request you to permit Shri Satyapal Reddy, Union President to represent on my behalf."
15. The Presenting Officer of the bank objected to the request of the petitioner pointing out that when the regular enquiry commenced on October 28, 1985 the petitioner was asked as to whether he wanted to avail the services of a co-workman as his Defence Representative and the petitioner declined the offer by saying that there was no need to represent his case by any official of the Union and therefore the request made by the petitioner in his letter dated December 14, 1985 was only an after-thought and made with an intention to drag on the proceedings. The Enquiry Officer noticing the objection of the Presenting Officer of the Disciplinary Authority and taking into account the participation of the petitioner at the earlier sittings of the enquiry, refused to grant the permission sought by the petitioner. It is true that when the enquiry commenced on October 28, 1985 the Enquiry Officer asked the petitioner whether he wanted to be represented by any member of the Union and the answer given by the petitioner was a definite 'No'. Therefore it cannot be said that the refusal of the Enquiry Officer to permit the petitioner to avail the services of Sri Satyapal Reddy as his Defence Representative at a belated stage of the enquiry and to re-enact the entire enquiry cannot be condemned as arbitrary, illegal or in violation of principles of natural justice. The controversy whether the Enquiry Officer was justified in refusing the permission sought by the petitioner to avail the services of Sri Satyapal Reddy as his Defence Representative need not be pursued further in view of my considered opinion that the penalty imposed on the petitioner could be sustained solely on the basis of the admission of guilt by the petitioner, as admitted by him in the reply dated September 1, 1983 submitted by him to the charge memo.
16. Admittedly the punishment imposed on the petitioner is based on the proof of charges (a), (b) (2), (c) and (d) (1) and the proof is nothing but the admission of the petitioner. Sri Ra-mesh, the learned standing counsel for the respondents, fairly submitted that the proof of the aforementioned charges are grounded only on the admission of the petitioner and there is no corroborative evidence to prove those charges otherwise. It is true because the Management has not examined any Witness in the enquiry nor produced any document to prove the aforementioned charges otherwise.
17. The charges (a), (b), (c) and (d) (i) centre around two main transactions though the Disciplinary Authority chose to split up those two substantial main charges into several heads. The first charge is that the petitioner utilised a sum of Rs. 3215/- from a GTL No. 830 dated June 19, 1978 for Rs. 3550/- sanctioned by one Sri Rajanna, the then Branch Manager, in favour of one Sudhakar and the said money Rs. 3550/- was lying in the account of the said Sudhakar. When the said sum of Rs. 3550 was lying in the account of the said Sudhakar, the petitioner withdrew Rs. 3250/- from that account clandestinely and without any specific sanction and without any report to the Head Office for his personal use without observing the bank's usual lending norms. The second substantial charge against the petitioner is that the petitioner clandestinely sanctioned Rs. 3,000/- in the name of a fictitious person by name Payam Muthaiah and utilised the said sum of money for himself. To these two substantial charges the petitioner submitted his reply which I have extracted above. In the reply the petitioner in clear terms and with the full understanding of the charge stated that he availed the amount from GTL account. No. 830. He stated that in the year 1978 the Head office of the bank sanctioned him Rs. 7,000/- towards purchase of a motor cycle and he Wanted Rs. 3000/- more in addition to Rs. 7000/- to purchase a new motor cycle and get it registered and in those circumstances he availed Rs. 3000/- from GTL Account No. 830. He also stated that subsequently he redeposited the said sum of Rs. 3000/- in GTL Account No. 830. Then he tendered an unconditional apology undertaking not to repeat such misconduct and seeking pardon from the bank. This is a reply in respect of charge (a). In respect of charges (b), (2), (c) and (d)(i), the petitioner stated that he utilised the loan proceeds sanctioned in the name of Payam Muthaiah for the purpose of meeting expenses towards agricultural operations carried on by him at his village. He also admitted that he did so without obtaining the permission of the Head Office of the bank. As regards this charge is concerned also the petitioner rendered his apology and assured the bank that he would not commit such misconduct in future and appealed to the Management to excuse him for the misconduct. It is also relevant to note that the petitioner while replying to charges (b)(2), (c) and (d)(i) also mentioned account No. i.e., ACC 1379, the loan account of the said Payam Muthaiah.
18. The reply of the petitioner dated September 1, 1983 is in Telugu language, the mother tongue of the petitioner, and in his own hand writing. Therefore, it should be held that the petitioner made the admissions in his reply to the charge memo with a full and clear understanding of their implication. Therefore it cannot be gainsaid that the petitioner has not admitted the guilt.
19. It is true that the Disciplinary Authority should have framed the charges more specifically and clearly. There is defect in mentioning the date of the sanction of the loan in charge memo as regards charges b(2), (c) and d(i) are concerned. The actual date of transaction is not November 24, 1979 but November 24, 1978. The contention of Sri Sarma, the learned counsel for the petitioner, that there is a material defect in the charge memo is technically correct but on that ground alone this court cannot set aside the punishment imposed by the Disciplinary Authority on the petitioner, because the petitioner himself perfectly understood the essence of the charge and admitted the transaction even giving account number ACC 1379.
20. The next question to be considered is whether the admissions of the petitioner were obtained by the Disciplinary Authority or Enquiry Officer by coercion, inducement or threat etc. as now alleged. It is relevant to note that the petitioner submitted his reply to charge memo on September 1, 1983 and the enquiry officer was appointed by the Disciplinary Authority only on September 14, 1985, long after the petitioner submitted his reply to the charge memo. It is relevant and very significant to note that all the personal allegations made by the petitioner are directed only against the presenting officer of the Disciplinary Authority in particular and the Enquiry Officer in general. It is nowhere stated or averred that the petitioner submitted his reply on September 1, 1983 to the charge memo under coercion or inducement or threat of anybody. If that is so it should be held that when the petitioner submitted his reply on September 1, 1983 in his own mother tongue and in his own handwriting, he did so voluntarily and with the full understanding of the consequences which follow from such admissions. In the course of the enquiry, for the first time the petitioner on December 14, 1985 made a request to avail the services of Satyapal Reddy as his Defence Representative making certain allegations against the presenting officer of the Disciplinary Authority and not against anybody. By that time, it should be noted that more than two years had elapsed from the date of submission of his reply to the charge memo. However, Sri Sarma, the learned counsel for the petitioner, at the time of hearing brought it to my notice a representation made by Sri Satyapal Reddy on March 1, 1986 to the Enquiry Officer wherein he has stated that the explanations contained in the letters of the petitioner including the letter dated September 1, 1983 was dictated by the authorities. I am constrained to observe that this is nothing but an after-thought. If really the admissions were obtained by the Disciplinary Authority by threatening or coercion or inducing the petitioner, he would have made a grievance in that regard in the immediate proximity of time. The petitioner did not choose to make such grievance at any stage of the disciplinary proceedings. Why the petitioner chose to make allegations against the presenting officer on December 14, 1985 and by his Defence Representative against the authorities on March 1, 1986 there was a reason as rightly pointed out by Sri Ramesh, the learned standing counsel for the respondents Sri Subba Rao, the clerk, after holding departmental enquiry against him, was removed from service by an order of the Disciplinary Authority dated November 30, 1985. It is relevant to note that the said Subba Rao was also involved in the same transaction. Therefore, I find force in the submission of Sri Ramesh, the learned counsel, that after Subba Rao was removed from service on November 30, 1985 as a measure of punishment, the petitioner smelt that he would also be liable for such punishment, and he wanted to avoid the same by taking untenable pleas, and that was what prompted him to make allegations against the presenting officer on December 14, 1985 and that was what prompted his Defence Representative Sri Satyapal Reddy to make allegations against the Disciplinary Authorities on March 1, 1986. It is further necessary to note that in the representation of Satyapal Reddy dated March 1, 1986 though he claimed that the letter of the petitioner dated September 1, 1983 was dictated by the authorities, he did not choose to disclose the identity of any of the officers of the Management who dictated the reply in the form of letter. The allegations are as vague as they could be. In the result I hold that there is no substance or truth in the allegations made by the petitioner on December 14, 1985 and his Defence Representative Satyapal Reddy on March 1, 1986. The resultant position is that the admissions of the petitioner are voluntary and made out of free will.
21. The argument of Sri Sarma, the learned counsel for the petitioner, that the Disciplinary Authority having decided to hold enquiry after receipt of the reply from the petitioner and considering the same, should have held the enquiry in conformity with fair play and principles of natural justice, has no merit in the facts and circumstances of this case. It is permissible for the Disciplinary Authority to hold further enquiry against the delinquent officer even in a case where the delinquent admits his guilt, for the limited purpose of drawing the attention of the delinquent to the evidence on the record which goes against him and which if he cannot satisfactorily explain must lead to a conclusion of guilt. In the present case the facts clearly reveal that that was the purpose for holding enquiry even after admission of the guilt by the petitioner. The Supreme Court in the case of -Employers of Firestone Tyre and Rubber Co., Private Ltd. v. The Workmen (1967- II-LLJ-715), observed thus: p. 718:
"This leaves over the contention that before examining the witnesses Subramaninam was subjected to a cross-examination. This was said to offend the principles of natural justice and reliance was placed on Tata Oil Mills Co, Ltd., v. Its Workmen, (1963-II- Lab LJ. 78) (SC), Sur Enamel and Stamping Works Ltd. v. Their Workmen (1963-II-LLJ-367); Meenglas Tea Estates v. Its Workmen (1963-II-LLJ-392) and Associated Cement Co. Ltd. v. Their Workmen, (1963-II-LLJ-396)(SC). These cases no doubt lay down that before a delinquent is asked anything, all the evidences against him must be led. This cannot be an invariable rule in all cases. The situation is different where the accusation is based on a matter of record or the facts are admitted. In such a case it may be permissible to draw the attention of the delinquent to the evidence on the record which goes against him and which if he cannot satisfactorily explain must lead to a conclusion of guilt. In certain cases it may even be fair to the delinquent to take his version first so that the enquiry may cover the point of difference and the witnesses may be questioned properly on the aspect of the case suggested by him. It is all a question of justice and fairplay. If the second procedure leads to a just decision of the disputed points and is fairer to the delinquent than the ordinary procedure of examining evidence against him first, no exception can be taken to it. It is, however, wise to ask the delinquent whether he would like to make a statement first or wait till the evidence is over but the failure to question him in this way does not ipso facto vitiate the enquiry unless prejudice is caused. It is only when the person enquired against seems to have been held at a disadvantage or has objected to such a course that the enquiry may be said to be vitiated. It must, however, be emphasised that in all cases in which the facts in controversy are disputed the procedure ordinarily to be followed is the one laid down by this Court in the cited cases. The procedure of examining the delinquent first may be adopted in a clear case only. As illustration we may mention one such case which was recently before us. There a bank clerk had allowed over-drafts to customers much beyond the limits sanctioned by the bank. The clerk had no authority to do so. Before the enquiry commenced he admitted his fault and asked to be excused. He was questioned first to find out if there were any extenuating circumstances before the formal evidence was led to complete the picture of his guilt. We held that the enquiry did not offend any principles of natural justice and was proper (See Central Bank of India Ltd. v. Karunamoy Banerjee) (1967-II-LLJ-739) (SC).
22. Similarly the Supreme Court in the case of The Central Bank of India Ltd., v. Karunamoy Banerjee (1967-II-LU-739), (supra) observed thus: (P. 745):
"We must, however, emphasize that the rules of natural justice, as laid down by this Court, will have to be observed, in the conduct of a domestic enquiry against a workman. If the allegations are denied by the workman it is needless to state that the burden of proving the truth of those allegations will be on the management; and the witnesses called, by the management, must be allowed to be cross-examined by the workman and the latter must also be given an opportunity to examine himself and adduce any other evidence that he might choose, in support of his plea. But, if the workman admits his guilt, to insist upon the management to let in evidence about the allegations, will, in our opinion, only be an empty formality. In such a case, it will be open to the management to examine the workman himself, even in the first instance, so as to enable him to offer any explanations for his conduct, or to place before the management any circumstances which will go to mitigate the gravity of the offence. But, even then, the examination of the workman, under such circumstances, should not savour of an inquisition. If, after the examination of the workman, the management chooses to examine any witnesses, the workman must be given a reasonable opportunity to cross-examine those witnesses and also to adduce any other evidence that he may choose".
23. What emerges from these two decisions of the Supreme Court is that if the employee admits his guilt, to insist upon the disciplinary authority to let in evidence about the allegations will only be an empty formality and in such a case it is open to the disciplinary authority to examine the delinquent official himself, even in the first place, so as to enable him to offer any explanation for his conduct, if any, or to place before the disciplinary authority any cicumstances which will go to mitigate the gravity of the misconduct committed by him. In the present case, in the enquiry held against the petitioner, the petitioner has utterly failed to offer any satisfactory explanation for his admitted misconduct or to place any circumstance which will go to mitigate the gravity of the misconduct committed by him. For all these reasons I hold that the charges (a), (b)(2), (c) and d(1) framed against the petitioner are proved satisfactorily by his own admissions. The admissions made by the petitioner are quite clear, specific, voluntary and out of volition and with the perfect understanding of adverse consequences which would follow from such admissions. Since the impugned order made by the Disciplinary Authority could be sustained solely on the basis of the admissions of the petitioner, in this case, there was no necessity at all to hold enquiry. Assuming that there were certain irregularities in the enquiry thus held by the Disciplinary Authority, thereby no prejudice is caused to the petitioner because the impugned action could have been taken against him on the basis of his clear and specific admissions made in the reply dated September 1, 1983 to the charge memo.
24. In the light of the opinion expressed supra, there is no need or any necessity to consider all the arguments advanced on behalf of the petitioner except to consider the contention that the first respondent Appellate Authority did not act legally and in conformity with the principles of natural justice in disposing of the appeal preferred by the petitioner.
25. The petitioner preferred the appeal against the order of the Disciplinary Authority dated September 23, 1985 to the first respondent Appellate Authority as provided under Regulation 31 (1) of the Regulations. Regulation 31(1) reads thus:
"31. (1) An officer or employee shall have a right of appeal against any order passed by an authority which injuriously affects his interest.
(2) The appeal shall be preferred to the appellate authority mentioned in Regulation 32 within 30 days of the date of service of the order appealed against. The appellate authority shall consider whether the findings of the disciplinary authority are justified and whether the penalty imposed is adequate and pass suitable orders as early as possible."
Dealing with the requirements of Regulation 31(1) this Court speaking through S.R. Nayak, J. in - M.N. Prasad v. Board of Directors of Rayalaseema Grameena Bank, Cuddapah Rep. by its Chairman and Anr. .
Observed thus at page 449:
"In the instant case the petitioner preferred an appeal to the Board of Directors. As per Sub-regulation (2) of Regulation 31, the first respondent Board of Directors were required to consider whether the findings of the disciplinary authority are justified and whether the penalty imposed is adequate and pass suitable orders as early as possible. In the memorandum of appeal presented to the first respondent, the petitioner had raised several contentions touching both facts and law and he attacked the correctness of the findings recorded by the disciplinary authority and the enquiry officer. Appeal is not an empty formality. The appellate authority is required to consider all legal contentions raised before it both on facts and law. It is not that the petitioner had raised the same contentions before the appellate authority which he had raised before the disciplinary authority. In addition to the contentions raised by him before the disciplinary authority, he had also raised certain other contentions assailing the correctness of the findings recorded by the disciplinary authority. Therefore the disciplinary authority is bound to consider those contentions questioning the validity of the findings recorded by the disciplinary authority and give its decision supported by reasons. Added to this, Sub-regulation (2) of Regulation 31 confers a discretion on the appellate authority to examine whether the penalty imposed by the disciplinary authority is adequate and then pass suitable orders. It is settled position in law that wherever a discretion is conferred on an authority, such discretion should be brought to bear on facts of each and every case. The order made by the first respondent-appellate authority is quite cryptic; it does not disclose whether it considered the merits of the contentions and whether it was satisfied with the penalty imposed on the delinquent official. The duty to give reasons is a safeguard against arbitrariness and compulsion of disclosure of reasons guarantees consideration by the authority and minimises chances of unconscious infiltration of personal bias or unfairness in the conclusion. The first respondent-appellate authority should know that the order made by it is amenable to judicial review under Article 226 of the Constitution. In that view of the matter also it is required to give reasons. Otherwise, the reviewing court will not be knowing how the appellate authority reached its decision and whether the decision is based on considerations which are germane to the lawful exercise of the discretionary power."
26. In the present case the order made by the Appellate Authority dated July 14, 1988 reads thus:
"With reference to the Appeals dated October 6 1987, November 25, 1987 and January 25, 1988 submitted by you to the Board, we have to advise that the Board (Appellate Authority) at its meeting held on July 14, 1988 after careful examination of the matter resolved to confirm the punishment earlier awarded to you by the Chairman & Disciplinary Authority vide his letter No. V&A/21/494/87 dated September 23, 1987."
27. Strictly speaking it cannot be said that the order made by the Appellate Authority conforms to the standard set out by this court in M.N. Prasad's case referred to above. However, Sri Ramesh, the learned standing counsel of the respondents, placing reliance on the decision of the Supreme Court in State Bank of India, Bhopal v. S.S. Koshal 1994 AIR SCW 2901 contended that the order made by the Appellate Authority could not be termed as a non-speaking order or one that was made without application of mind or in violation of principles of natural justice. On the other hand Sri Sarma contended that the petitioner submitted his memorandum of appeal running to 9 typed pages raising many contentions touching both facts and law but the appellate authority disposed of the appeal by one sentence order and that clearly indicates that the order made dismissing the appeal and confirming the action of the Disciplinary Authority was without application of mind and in violation of principles of natural justice.
28. The Supreme Court in State Bank of India, Bhopal v. S.S. Koshal (supra), referred to above dealt with an order made by the appellate authority preferred under a statutory regulation similar to Regulation 30(1) of the Regulations. The order made by the appellate authority in that case reads thus:
"The Board considered at length the facts of the case including the fact that the Disciplinary Authority has differed from the findings of the Inquiring Authority in respect of two charges. After having considered the appeal and other relevant papers and having applied their minds, the Board concluded that there are no grounds to sustain the appeal and accordingly RESOLVED that the order of the Disciplinary Authority be upheld and that the appeal made by Shri S.S. Koshal be dismissed."
In that case the respondent therein had approached the Madhya Pradesh High Court by way of a writ petition. One of the contentions raised by the respondent therein before the High Court was that the Appellate Authority passed a non-speaking order in violation of principles of natural justice. The High Court upheld that contention as well as certain other contentions and ruled that Rule 51(2) of the Rules under which the appeal was preferred requires the Appellate Authority to pass a speaking order even if it is an order of affirmance. Dealing with this view; taken by the High Court, the Supreme Court observed that for the purpose of that case, it should assume the said view of the High Court to be correct one. The Supreme Court after referring to recitals in the appellate order rejected; the argument of the respondent and held that it was not obligatory on the part of the appellate authority to say more than what it stated in the order. In that case the Supreme Court decided the question raised before it solely on the basis. of facts of that case and it has not laid down any statement of law of binding nature. The Supreme Court has not departed from the view of the High Court that the appellate authority is required to pass a speaking order even if it is an order of affirmance. On the other hand this court in M.N. Prasad's case (supra) dealt specifically as to the circumstances under which the appellate authority is required to disclose reasons and the objectives and the rationale behind the compulsion of disclosure of reasons. Therefore, I hold that the decision of this Court in M.N. Prasad's case (supra) is in no way contrary to the decision of the Supreme court in State Bank of India, Bhopal v. S.S. Koshal (supra). Applying the law laid down by this court in M.N. Prasad's case (supra) it cannot be said that the order made by the Appellate Authority is in conformity with that decision. The order made by the Appellate Authority declares that the Board at its meeting held on July 14, 1988 after careful examination of the matter resolved to confirm the punishment imposed by the Disciplinary Authority. However, it does not disclose whether it applied its mind to all the contentions raised by the petitioner and whether the penalty imposed on the petitioner is adequate. However, I am not inclined to interfere with the order of the Appellate Authority solely on the ground of the above noted lapse. I have already held that the order of the Disciplinary Authority could validly and lev gaily be sustained on the admissions made by the petitioner. In that view of the matter no useful purpose will be served by remanding these proceedings to the Appellate Authority. The punishment imposed on the petitioner, in the facts and circumstances of the case and having regard to the gravity of the misconduct committed by him, cannot be said to be disproportionate to the gravity of the misconduct. It is trite to highlight that the petitioner was a trustee of the public fund and he was heading a branch of the bank. The admitted misconduct committed by the petitioner is not only a civil wrong but also a criminal wrong. The act of the petitioner in lending the public money in a fictitious name and then misappropriating the same for his personal use is a serious crime committed against the public at large and such a delinquent cannot have any relief at the hands of this court under Article 226 of the Constitution invoking judicial compassion. The sanctity and the credibility of the office which the petitioner held and the public interest persuade me not to interfere with the impugned orders made by the Disciplinary Authority and the Appellate Authority.
29. Since I have found that there is no need to remand these proceedings to the Appellate Authority to consider the only question whether the penalty imposed on the petitioner is adequate, there is no need to consider the other arguments of the learned counsel for the petitioner that the Chairman was biased against the Defence Representative of the petitioner namely, Sri Satyapal Reddy, and that the Appellate Authority acted illegally in procuring a statement from Sri Subba Rao and used the same for exonerating him and for affirming the order made by the Disciplinary Authority against the petitioner in detail; suffice it to state that when a party alleges bias or mala fide against an authority it is for him to discharge the burden of proof. This burden, as held by the Apex Court and this court in number of decisions, is very heavy and that burden is required to be discharged satisfactorily to bring home the charge of bias or mala fide. In the instant case, the petitioner has utterly failed to discharge that burden. Two letters dated November 25, 1987 and January 25, 1988 addressed to the Appellate Authority by the petitioner, copies of which are enclosed along with the memorandum of appeal submitted to the Appellate Authority, do not constitute an acceptable plea of bias or mala fide against the Appellate Authority. It is relevant to note that the appeal was considered by the Board consisting of number of persons. No allegations are made against all the members of the Board nor it is stated that the Chairman participated in the proceedings of the Board while the appeal of the petitioner was considered and decided. Therefore, it cannot be said that the Board as a body was hostile or biased either against the petitioner or his Defence Representative Sri. A. Satyapal Reddy. Similarly mere is no merit in the contention of the learned counsel for the petitioner mat the Board committed a material irregularity and acted illegally in procuring the statement of Sri Subba Rao, clerk, and making use of the same in affirming the order of the Disciplinary Authority passed against the petitioner and for exonerating Sri Subba Rao from the charge of misconduct. In the first instance, there is absolutely no evidence to contend that the Board itself procured the statement from Sri Subba Rao by employing coercion or inducement. It seems that Sri Subba Rao himself out of his volition and as a part of his pleading submitted the statement and such a statement could be looked into by the Board while considering his appeal. There is absolutely no reference to the said statement of Subba Rao in the order made by the Appellate Authority rejecting the appeal of the petitioner. Therefore, it cannot be said that the Appellate Authority took into consideration of the said statement of Sri Subba Rao while deciding the appeals of the petitioner. The petitioner should win or lose his case on his own merit and cannot be permitted to assail the validity of the order made by the Appellate Authority by pleading and arguing irrelevant grounds.
30. In the result, the writ petition fails and is accordingly dismissed. No costs.