Madras High Court
The Chairman vs All India Union Bank Officers' on 30 October, 2007
Bench: P.K. Misra, S. Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.10.2007
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE S. TAMILVANAN
WRIT APPEAL Nos.419 & 634 OF 2005
and
WAMP.NOs.755, 1522 & 1235 OF 2005
W.A.NO.419/2005
1. The Chairman,
Union Bank of India,
239, Vidhan Bhavan Marg,
Nariman Point,
Bombay 400 021.
2. The General Manager (Pers)
Union Bank of India,
239, Vidhan Bhavan Marg,
Nariman Point,
Bombay 400 021.
3. The Asst. General Manager,
Industrial Relations Department,
Zonal Office,
Union Bank of India,
Broadway, Chennai 600 018. .. Appellants in WA.419/2005
Vs.
1. All India Union Bank Officers'
Federation (Registered),
Rep. by its General Secretary
Mr.S. Soundararajan.
2. Central Vigilance Commission,
Ministry of Home Affairs,
Union of India,
'A' Block, GPO Complex,
New Delhi 110 023.
3. The Central Vigilance Officer,
Union Bank of India,
239, Vidhan Bhavan Marg,
Nariman Point,
Bombay 400 021. .. Respondents
W.A.No.634 of 2005
Central Vigilance Commission,
Ministry of Home Affairs,
Union of India,
'A' Block, GPO Complex,
New Delhi 110 023. .. Appellant
Vs.
1. The Chairman,
Union Bank of India,
239, Vidhan Bhavan Marg,
Nariman Point,
Bombay 400 021.
2. The General Manager (Pers)
Union Bank of India,
239, Vidhan Bhavan Marg,
Nariman Point,
Bombay 400 021.
3. The Asst. General Manager,
Industrial Relations Department,
Zonal Office,
Union Bank of India,
Broadway, Chennai 600 018.
4. All India Union Bank Officers'
Federation (Registered),
Rep. by its General Secretary
Mr.S. Soundararajan.
5. The Central Vigilance Officer,
Union Bank of India,
239, Vidhan Bhavan Marg,
Nariman Point,
Bombay 400 021. .. Respondents
Writ Appeal Nos.419 of 2005 & 634 of 2005 have been filed under Clause 15 of the Letters Patent against the order dated 22.12.2004 in Review Appln.No.46 of 2004 in W.P.No.3291 of 1996 passed by the learned single Judge.
For Appellants : Mr. Ananda Krishnan for
in WA.419/2005 & M/s.T.S. Gopalan & Co.
R-1 to3 in WA.634/05
For Respondent-1 : Mr.R. Yashod Vardhan
in WA.419/2005 & Senior Counsel for
R-4 in WA.634/05 M/s.M. Ramalingam
For Respondent-2 : Mr. John Jachariah for
in WA.419/2005 & Mr.P. Raghunathan
Appellant in
WA.634/2005
For Respondent-3 : Mr.V.T. Gopalan
in WA.419/2005 & Addl. Solicitor General
R-5 in WA.634/05
- - -
COMMON JUDGMENT
(Judgment of the Court was delivered by P.K. MISRA, J) Heard Mr. Anandha Krishnan for the Appellants, Mr. Yashod Vardhan, Senior Counsel for Respondent No.1, Mr.John Jachariah for Respondent No.2 and Mr.V.T. Gopalan, Addl. Solicitor General, for Respondent No.3 in W.A.No.419 of 2005.
2. The dispute in the present appeals lies within a narrow campus. However, to highlight such dispute, it is necessary to notice the relevant facts in brief.
Writ Petition No.3291 of 1996 was filed by All India Union Bank Officers' Federation (Respondent No.1 in W.A. No.419/2005) for a direction directing the Chairman of Union Bank of India and other subordinate officials to follow the regulations 7 and 19 of the Union Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976 strictly by not referring any matter, which does not have a vigilance Angle to the 4th respondent (Respondent No.2 in WA.No.419/2005) and not to refer any matter after the second stage of enquiry and not be bound by any of the recommendations of the 4th respondent especially in the matter of punishment. Thereafter, Review Appln.No.46 of 2004 was filed by the Chairman of Union Bank of India and other subordinate officials. Learned single Judge after considering the matter partly allowed the Review Application by observing :-
"With the result, this Review Application is partly allowed and the writ petition is ordered subject to the following observations:
(i) The decision of the Disciplinary Authority has to be independent in the matter of appreciation of evidence, proof of charges and quantum of penalty or punishment.
(ii) Any advice or opinion to be sought for from C.V.C can be only on procedural matters and if any advice is given in the matter of appreciation of evidence, proof of charges or the quantum of punishment, such advice shall be ignored and not binding on the D.A. Any regulation to the contrary will be wholly without jurisdiction and inoperative.
(iii) The D.A. has to exercise their judicial discretion having regard to the facts and circumstances of the case and they cannot act under the dictation of C.V.C. or any other authority as to how they should exercise their power and what punishment they should impose on the delinquent officer."
3. Aggrieved by the aforesaid order, the Chairman, Union Bank of India and other subordinate officials have filed W.A.No.419 of 2005 and the Central Vigilance Commission has filed W.A.No.634 of 2005. The main grievance in the present writ appeals relate to the observation contained in para 17(ii) of the order passed by the learned single Judge. The main contention raised by both the counsels appearing for the appellants in the two appeals is to the effect that the observation of the learned single Judge in para 17(ii) to the effect that if any advice or opinion is given in the matter of appreciation of evidence, proof of charges or the quantum of punishment, such advice shall be ignored, does not correctly reflect the position.
Learned counsel appearing for Respondent No.1 (original writ petitioner), on the other hand, stated that since the disciplinary authority has to independently apply his mind and take decision on the basis of materials available on record, such opinion furnished by the Central Vigilance Commission is to be altogether ignored.
4. It is not in dispute that the learned single Judge, who had dealt with the writ petition as well as the Review Application, had referred to the decision of the Supreme Court reported in AIR 1991 SC 1513 = (1991) 3 SCC 219 (NAGARAJ SHIVARAO KARJAGI v. SYNDICATE BANK HEAD OFFICE, MANIPAL AND ANOTHER), wherein it was observed as follows :-
"17. We are indeed surprised to see the impugned directive issued by the Ministry of Finance, Department of Economic Affairs (Banking Division). Firstly, under the Regulation, the Bank's consultation with Central Vigilance Commission in every case is not mandatory. Regulation 20 provides that the Bank shall consult the Central Vigilance Commission wherever necessary, in respect of all disciplinary cases having a vigilance angle. Even if the Bank has made a self imposed rule to consult the Central Vigilance Commission in every disciplinary matter, it does not make the Commission's advice binding on the punishing authority. In this context, reference may be made to Art.320(3) of the Constitution. The Art.320(3) like Regulation 20 with which we are concerned provides that the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted - on all disciplinary matters affecting a civil servant including memorials or petitions relating to such matters. This Court in A.N.D'Silva v. Union of India (1962) Suppl.(1) (SCR) 968) has expressed the view that the Commission's function is purely advisory. It is not an appellate authority over the inquiry officer or the disciplinary authority. The advice tendered by the Commission is not binding on the Government. Similarly, in the present case, the advice tendered by the Central Vigilance Commission is not binding on the Bank or the punishing authority. It is not obligatory upon the punishing authority to accept the advice of the Central Vigilance Commission.
19. The corresponding new bank referred to in S.8 has been defined under S.2(f) of the Act to mean a banking company specified in column 1 of the First Schedule of the Act and includes the Syndicate Bank. Section 8 empowers the Government to issue directions in regard to matters of policy but there cannot be any uniform policy with regard to different disciplinary matters and much less there could be any policy in awarding punishment to the delinquent officers in different cases. The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of the misconduct proved. The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No third party like the Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. (See: De Smith's Judicial Review of Administrative Action. Fourth Edition. p.309). The impugned directive of the Ministry of Finance is, therefore, wholly without jurisdiction and plainly contrary to the statutory Regulations governing disciplinary matters."
5. The aforesaid decision was rendered at a stage when there was no statutory provision available, but the Central Vigilance Commission was consulted on the basis of the directive issued by the Ministry of Finance, Department of Economic Affairs (Banking Division). By taking an analogy from Article 320(3) of the Constitution, the Supreme Court observed that the opinion furnished by the Central Vigilance Commission cannot be considered as a binding aspect and can be merely considered as advisory.
6. It is not in dispute that in 2003, the Central Vigilance Commission Act has been enacted which is now in force. Section 8 of the Central Vigilance Commission Act relates to functions and powers of the Central Vigilance Commission. The relevant portion of Section 8 is as follows:-
"8. Functions and powers of Central Vigilance Commission.- (1) The functions and powers of the Commission shall be to -
(a) to (f) ... (omitted as not necessary)
(g) tender advice to the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government on such matters as may be referred to it by that Government, said Government companies, societies and local authorities owned or controlled by the Central Government or otherwise;
(h) exercise superintendence over the vigilance administration of the various Ministries of the Central Government or corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government:
Provided that nothing contained in this clause shall be deemed to authorise the Commission to exercise superintendence over the Vigilance administration in a manner not consistent with the directions relating to vigilance matters issued by the Government and to confer power upon the Commission to issue directions relating to any policy matters."
7. It is also not in dispute that under the Regulations framed by Union Bank of India, namely, Union Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976, Regulation 19 provides for consultation with Central Vigilance Commission. Regulation 19 of such Regulations is to the following effect :-
"19. Consultation with Central Vigilance Commission:
The Bank shall consult the Central Vigilance Commission wherever necessary, in respect of all disciplinary cases having a vigilance angle."
The aforesaid provision appears to be very much similar to the provisions contained in Article 320.
8. Therefore, keeping in view the observations made by the Supreme Court in AIR 1991 SC 1513 (cited supra) in paras 12 and 19 and also the fact that the Regulations of the Bank contain a provision relating to consultation, in our opinion, the observation of the learned single Judge, which has been extracted earlier, appears to be too strongly worded and unwarranted. On the other hand, we feel, even though it is open to the Bank to consult the Central Vigilance Commission, obviously any such opinion rendered by the Central Vigilance Commission cannot be considered as binding on the disciplinary authority and the disciplinary authority would be obviously expected to act independently on the basis of the materials on record and the opinion or advice furnished by the Central Vigilance Commission can be merely considered as an opinion to be considered by the disciplinary authority. However, under no stretch of imagination it can be construed that the disciplinary authority would be bound by any such opinion. It is further clarified that the opinion can be sought for not merely on the procedural matters, but also on other matters, and under no circumstances such opinion can be considered as binding.
9. Subject to the aforesaid observations, the writ appeals are disposed of. No costs. Consequently, the connected WAMPs are closed.
dpk To Central Vigilance Commission, Ministry of Home Affairs, Union of India, 'A' Block, GPO Complex, New Delhi 110 023.