Madras High Court
A.Kaliaperumal vs The Disciplinary Authority on 19 January, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.01.2012
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.No.14051 of 2009
and
M.P.Nos.2 and 3 of 2009
A.Kaliaperumal .. Petitioner
Vs.
1.The Disciplinary Authority,
General Manager (Personnel),
Department of Personnel Industrial
Relations Division,
Union Bank of India,
Central Office,
No.239,Back Pay Reclamation,
Vidhan Bhavan Marg, Nariman Point,
Mumbai-400 021.
2.Anwar Ali,
Enquiry Officer,
Union Bank of India,
Central Office,
B1502, Antlantic 'B' Wing,
Sagar City,
VP Road Opp to SV Road,
Andheri West,
Mumbai-400 058. .. Respondents
This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the respondents in connection with the impugned order issued by the first respondent in CO:IRD-OS-MISC-174/2009, dated 13.04.2009 and quash the same.
For Petitioner : Mr.K.Venkataramani, SC
for Mr.M.Muthappan
For Respondents : Mr.N.V.Srinivasan,
for M/s.N.V.S. Associates
- - - -
ORDER
Heard Mr.K.Venkataramani, learned Senior Counsel for Mr.M.Muthappan, counsel for the petitioner and Mr.N.V.Srinivasan, learned cousnel for M/s.N.V.S. Associates for the respondent Bank.
2.In this writ petition, the petitioner challenges the charge memorandum, dated 13.4.2009. The writ petition was admitted on 23.7.2009. Pending the writ petition, this court had granted an interim stay. In that order, the reason for granting interim stay was recorded as follows:
In view of the submissions of the learned senior counsel for the petitioner that the impugned charge memo is flimsy and vague and also considering that for the alleged allegations mentioned in the impugned charge memo, there is no annexures or any materials to the effect that the petitioner is responsible for sending the telegrams, this court is constrained to grant the relief of interim stay.
3.Aggrieved by the grant of stay, the respondent Bank has filed M.P.No.3 of 2009 for vacating the interim stay together with supporting affidavit, dated 07.10.2009. Though the matter was listed on several dates, finally on 7.6.2010, the main writ petition itself was directed to be posted for final hearing.
4.The facts leading to filing of the case are as follows:
The petitioner who was working as a Senior Manager of the respondent Bank at Ashok Nagar Branch, Chennai, was given a memo, dated 5.8.2008. The provocation for giving the memo was the receipt of a telegram received from the Post Office at Porur addressed to the General Manager (Personnel), Union Bank, Head Office, Nariman Point, Mumbai as well as other executives of the Bank. The telegram reads as follows:
"Selvaraj, Regional Manager, Union Bank, Madurai Corrupt, communal, cunning, pessimist and biased culprit CBI punishment Recently chargesheeted to him and G.M. for IFB branch Chennai Account Central Vigilance inquiry already started 20.00 crores loss to Bank Only three months' service left Do not consider for D G M promotion Transfer him immediately from Regional Manager Sensitive post Save the Bank from the culprit Selvaraj Local fellow, Matter very very serious.
Copy to RBI, ACEN VIGI Department, New Delhi R.Govindarajulu, A I U B Association, Chennai."
Therefore, the bank presumed that the petitioner was responsible for sending such telegram. By doing so, he had maligned the image of a Senior Executive Officer. The allegations were made without any evidence or substance. Therefore, he was liable for disciplinary action. The petitioner was asked to show cause why disciplinary action should not be taken.
5.The petitioner sent a reply dated 18.08.2008 denying his involvement in the matter. He also informed them that the management was nursing grouse against him as he had moved the High Court against their illegal malafide transfer. He had requested them to withdraw the memo. Notwithstanding the same, the impugned Articles of Charge was framed on 13.4.2009. In that impugned Articles of Charge, it was stated that his explanation was not convincing. The facts remains that on 26.12.2007, he had sent a telegram from the Post Office at Porur addressed to the Chairman and Managing Director, Executive Directors and General Manager (P), Central Office. Therefore, he was accused of doing the act unbecoming of a Bank Officer and that he had failed to maintain good conduct and discipline. It was also stated that the memo, dated 5.8.2008 will form a detailed statement of allegations to the Articles of Charge. The list of documents and the list of witnesses through whom the allegations are proposed to be substantiated were enclosed along with the Articles of Charge. They have listed out as many as 28 documents in support of their allegations. They also proposed to rely upon four witnesses. The names of those witnesses were also mentioned. Document No.5 related to a letter sent by the Director of Detective Eyes, Chennai addressed to the General Manager, FGMO, Chennai. Document No.28 is the confidential report sent by the private detective agency, i.e., Detective Eyes, Chennai. The fourth witness was the Director of Detective Eyes, Chennai.
6.The petitioner upon receipt of the Articles of Charge impugned in the writ petition, sent a letter dated 27.04.2009 addressed to the Disciplinary Authority, Union Bank of India, asking for a copy of the telegram allegedly sent by him. In response to the request, the respondent Bank by reply dated 28.04.2009 informed him that he can go to the Chief Manager (Personnel), FGMO, Chennai for verification of the telegram dated 26.12.2007. He was also given time extension for submitting his reply. The petitioner once again requested a copy of the telegram to be furnished to him. Thereafter, by a covering letter dated 12.5.2009, a Photostat copy of the telegram was furnished to him. The petitioner further sent a letter dated 14.5.2009 stating that he must be furnished with a copy of the application by which the telegram was sent from the Telegraph office at Porur. He found from the list of documents that the document was not listed. The bank by a further letter dated 26.5.2009 had enclosed a copy of the application which resulted in the telegram being accepted by the Post Office at Porur. It was thereafter the petitioner sent a further reply dated 3.6.2009 denying the Article of Charge. He questioned the management to come to the conclusion that he was the author of the telegram and that he will not get any justice from the respondents since they have also concluded that he was responsible. He also stated that the telegram was not issued by him. The handwriting found in the application is not that of his. His place of work was at Ayanavaram on that date, whereas the telegram was sent from Porur which is 18 to 20 kms away. He cannot be present in both placed simultaneously.
7.The respondent bank thereafter had appointed an Enquiry Officer to conduct an enquiry on the basis of the Articles of Charge. The Senior Manager (Personnel), Regional Office, Vijayawada was also appointed as the Presenting Officer. The Disciplinary Authority further sent an enquiry notice, dated 27.6.2009 informing that the enquiry will be conducted by one Anwar Ali and that the date, time and place of inquiry will be intimated to him by the Enquiry authority directly. The petitioner was further informed by the Enquiry Authority by a letter dated 7.7.2009 that preliminary hearing will be held on 25.7.2009 at Union Bank of India, FGMO, Chennai. The petitioner was further informed that he will take the assistance of any other serving officer for his defence, but he should not have more than two cases including the present case on hand, which he was required to assist. It was at this stage, the petitioner filed the writ petition challenging the Articles of Charge, dated 13.04.2009. Pending the Articles of Charge, he had obtained an interim stay as noted already.
8.The contention raised by the petitioner was that since the telegram was sent in the name of one R.Govindaraju, AIUB Association, he was not given any charge sheet. The person against whom the telegram was sent, i.e., Selvaraj was given promotion despite the telegram. The track record of the said Selvaraj was not clean. Even the CBI had indicted his involvement with borrowers of bank. He was also indicted for causing loss to the branch. The petitioner further submitted that at the time of sending telegram, he was at Ayanavaram around 11.30 a.m. On 26.12.2007, but the telegram was given from the Porur Post Office, which was 20 Kms away. The handwriting found in the telegram application was not that of the petitioner. The said Govindaraju of AIUB Association had enmity towards him right from the Egmore Branch days.
9.Apart from these, Mr.K.Venkataramani, learned Senior Counsel, appearing for the petitioner contended that the Articles of Charge framed against the petitioner impugned in the writ petition is vague and did not contain any particulars. He placed reliance upon a judgment of the Supreme Court in Surath Chandra Chakrabarty v. State of W.B., reported in (1970) 3 SCC 548. Reliance was placed upon the following passages found in paragraphs 5 and 6 of the said judgment which reads as follows:
"5..... If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him. .....
6. Now in the present case each charge was so bare that it was not capable of being intelligently understood and was not sufficiently definite to furnish materials to the appellant to defend himself. It is precisely for this reason that Fundamental Rule 55 provides, as stated before, that the charge should be accompanied by a statement of allegations. The whole object of furnishing the statement of allegations is to give all the necessary particulars and details which would satisfy the requirement of giving a reasonable opportunity to put up defence. The appellant repeatedly and at every stage brought it to the notice of the authorities concerned that he had not been supplied the statement of allegations and that the charges were extremely vague and indefinite. In spite of all this no one cared to inform him of the facts, circumstances and particulars relevant to the charges. ............ We have no manner of doubt that the appellant was denied a proper and reasonable opportunity of defending himself by reason of the charges being altogether vague and indefinite and the statement of allegations containing the material facts and particulars not having been supplied to him. In this situation, for the above reason alone, the Trial Judge was fully justified in decreeing the suit."
10.The learned Senior Counsel thereafter referred to a judgment of the Supreme Court in Zunjarrao Bhikaji Nagarkar v. Union of India reported in (1999) 7 SCC 409 and referred to the following passage found in paragraph 42 which is as follows:
"42.Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty."
11.Thereafter, a reference was made to a judgment of the Supreme Court in State of Punjab v. V.K. Khanna, reported in (2001) 2 SCC 330 and reliance was placed upon the following paragraphs 33, 34 and 37 which reads as follows:
"33.While it is true that justifiability of the charges at the stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malice or mala fide, motive involved in the matter of issue of a charge-sheet or the authority concerned is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious to do, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court, in the contextual facts, has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings.
34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an enquiry officer to substantiate the frame of mind of the authorities and thus depicting bias what bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply is it an indication of a free and fair attitude towards the officer concerned? The answer cannot possibly be in the affirmative. It is well settled in service jurisprudence that the authority concerned has to apply its mind upon receipt of reply to the charge-sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative the inquiry follows but not otherwise and it is this part of service jurisprudence on which reliance was placed by Mr Subramanium and on that score, strongly criticised the conduct of the respondents (sic appellants) herein and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record.
37.As noticed above, mala fide intent or biased attitude cannot be put on a strait-jacket formula but depends upon facts and circumstances of each case and in that perspective judicial precedents would not be of any assistance and as such we refrain from further dealing with various decisions cited from the Bar since facts are otherwise different in each of the decisions."
12.He further referred to a judgment of the Supreme Court in Union of India v. Kunisetty Satyanarayana reported in (2006) 12 SCC 28 for contending that the charge memo can be quashed even without facing trial. For that purpose, reliance was placed upon the following passages found in paragraphs 15 and 16 of the said judgment which reads as follows:
"15.Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
16.No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
13.A further reference was made to a judgment of the Supreme Court in Siemens Ltd. v. State of Maharashtra reported in (2006) 12 SCC 33 and reliance was placed upon the following passage found in paragraph 9, which reads as follows:
"9.Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of U.P. v. Brahm Datt Sharma1, Special Director v. Mohd. Ghulam Ghouse2 and Union of India v. Kunisetty Satyanarayana3, but the question herein has to be considered from a different angle viz. when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. (See K.I. Shephard v. Union of India4.) It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter-affidavit as also in its purported show-cause notice."
14.A further reference was made to a judgment of the Supreme Court in Govt. of A.P. v. A. Venkata Raidu reported in (2007) 1 SCC 338 for contending that materials which are sought to be relied upon in the enquiry should be furnished and if the charge was not specific, no findings of guilt can be fixed on the basis of the charge. A reference was made to the following passage found in paragraph 9 of the said judgment, which reads as follows:
"9.We respectfully agree with the view taken by the High Court. It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In Charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO, etc. but that was not done. Copies of the said GOs or directions of the Government were not even placed before the enquiry officer. Hence, Charge 1 was not specific and hence no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged."
15.The learned counsel also referred to a division bench judgment of this court in W.A.No.587 of 2008, dated 03.07.2008 in Government of Tamil Nadu and others Vs. M.Subramanian. The division bench after referring to some of the judgments cited above, in paragraph 5 had observed as follows:
"5.In view of such overwhelming authority of judicial opinion that no valid enquiry can be held on vague charges, this Court is constrained to hold that the departmental enquiry initiated against the respondent herein was bad from the very inception inasmuch as it purported to proceed on vague charges set out hereinabove."
16.Per contra, Mr.N.V.Srinivasan, learned counsel for the respondent Bank contended that in the present case, the charges were very specific that the petitioner was the instrumental in sending the telegram which contained false and malicious allegations against the senior officers of the bank. The definite charges have been framed which were supported by overwhelming documentary and oral evidence. This is not a case where interference is called for at the stage of charge memo.
17.In the present case, before proceeding to deal with the legal submissions, it must be noted that the Articles of Charge impugned in the writ petition referred to the previous letter dated 5.8.2008 as forming part of the statement of allegations. Therefore, it cannot be said that charges are vague. Further, they also referred to as the basis for documentary evidence certain investigation reports done by a private detective agency. The Director of the private detective agency himself was cited as a witness. It is not a case where the petitioner had understood the charges. On the other hand, the petitioner has come out with possible defence, i.e., he had pleaded alibi at the time of sending the telegram and that the handwriting found in the application was not that of his. He had also given certain explanations about victimization and the officer against whom certain allegations were made was not an officer who was to be given promotion despite CBI investigation against him. These are all matters of evidence. At the stage of charge memo, the defence pleaded cannot be taken note of. It is for the petitioner to prove his defence in the enquiry. On the question of vagueness, the charge memo cannot be quashed. In the present case, the date of telegram, the copy of the telegram and the specific allegation that it was the petitioner who had sent the telegram, have been specified in the impugned charge memo read with the earlier show cause notice.
18.The other allegation that it is because of the petitioner moving the court on earlier occasion, the charge memo came to be issued also cannot be related to the case on hand. In fact, the petitioner who filed the writ petition being W.P.No.24056 of 2004 was initially successful in quashing the transfer order dated 28.9.2004. But subsequently the Bank had gone with the writ appeal. The division bench while upholding the order of the single judge had directed the payment of salary vide order dated 9.6.2007. The present charge memo was issued only in the year 2008-09. It cannot be said that it will have any direct connection with the charge memo especially when the charge memo is specific with particulars of cause of action.
19.The counsel for the respondents placed reliance upon a division bench judgment of the Orissa High Court in Fulch and Agarwalla Vs. District Magistrate and another reported in AIR 1968 Orissa 109 for contending that if a reading of the ground furnished is capable of being intelligently understood and sufficiently definite as furnishing materials to make any representation, it cannot be called as vague.
20.He also referred to a judgment of the Supreme Court in Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh reported in (1996) 1 SCC 327 for contending that the writ petition against the show cause notice is not maintainable. It is for the petitioner to raise his objection before the authorities. Reliance was placed upon the following passage found in paragraph 10, which reads as follows:
"10.We are concerned in this case, with the entertainment of the writ petition against a show-cause notice issued by a competent statutory authority. It should be borne in mind that there is no attack against the vires of the statutory provisions governing the matter. No question of infringement of any fundamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ext. P-4 notice is ex facie a nullity or totally without jurisdiction in the traditional sense of that expression that is to say, that even the commencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthorised. In such a case, for entertaining a writ petition under Article 226 of the Constitution of India against a show-cause notice, at that stage, it should be shown that the authority has no power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India."
21.A reference was made to a judgment of the Supreme Court in Special Director v. Mohd. Ghulam Ghouse reported in (2004) 3 SCC 440 to contend that a writ against the show cause notice issued by the statutory functionaries cannot be entertained unless there is want of jurisdiction. A reference was made to the following passage found in paragraph 5 of the said judgment which reads as follows:
"5*. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted."
22.The learned counsel further referred to the same judgment referred to by the learned Senior Counsel for the petitioner in Union of India v. Kunisetty Satyanarayana reported in (2006) 12 SCC 28 and referred to the following passage found in paragraph 14, which reads as follows:
"14.The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance."
23.In the present case, the decisions relied on by the learned Senior counsel appearing for the petitioner do not help the case of the petitioner in any way. As noted already, the charges are not vague and they are specific. Ultimately, the burden is upon the bank to prove that it was the petitioner who had sent the telegram containing malicious and defamatory statement against the officers of the bank. Since the petitioner himself has come forward to state that the handwriting found in the application for sending the telegram is not that of his and that at the relevant time of sending the telegram, he could not have been found in the post office as he was doing work at Ayanavaram are all matters of evidence, it is for the petitioner to lead his defence evidence and prove his innocence. Certainly, it is not a case where any interference is called for at the stage of charge memo. Though at the time of granting the interim stay, the learned judge had observed that there was no annexure or any material, but the annexures of documents clearly showed that there are number of documents relied upon by the bank and that witnesses names were also mentioned.
24.In the light of the above, there is no case made out to interfere with the impugned charge memo. Hence the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed.
19.01.2012 Index : Yes Internet : Yes vvk To The Disciplinary Authority, General Manager (Personnel), Department of Personnel Industrial Relations Division, Union Bank of India, Central Office, No.239,Back Pay Reclamation, Vidhan Bhavan Marg, Nariman Point, Mumbai-400 021.
K.CHANDRU, J.
vvk ORDER IN W.P.NO.14051 of 2009 19.01.2012