Andhra HC (Pre-Telangana)
Syed Ahmed vs Chief Manager And Disciplinary ... on 23 February, 1995
Equivalent citations: (1996)ILLJ315AP
Author: T.N.C. Rangarajan
Bench: T.N.C. Rangarajan
ORDER T.N.C. Rangarajan, J.
1. This petition challenges the domestic enquiry initiated by the respondents against the petitioner.
2. The petitioner was appointed as a peon in the Corporation Bank in 1956 and he was working as a peon in the Regional Office since December 2, 1991. On October 26, 1991, the Chief Manager ordered the sanction for prosecution of the petitioner under Section 6(1)(c) of The Prevention of Corruption Act. The charge was that the petitioner had distributed certain loans and had not credited the collected instalments from the loanees. He was prosecuted under Section 409 of the Indian Penal Code in C.C.No. 4/92, and finally by order dated March 31, 1993 he was acquitted on the ground that there was no evidence of entrustment. Thereafter, a fresh charge-sheet was given on December 13, 1993 and on January 8, 1994 stating that in respect of certain loans sanctioned by the Bank, the borrowers had stated that they never went to the Bank; that the documents were executed and the loan amounts were received at the residence of the petitioner, who retained the amounts ranging from Rs. 50/- to Rs. 100/- per each loan; and that this conduct of the petitioner amounted to taking bribe and is a serious misconduct under Clauses 19.5(j) and 19.5(k) of the Bipartite Settlement. The charge-sheet also ordered a written domestic enquiry and stated that the petitioner should give his explanation within ten days of the receipt of that letter. The petitioner, thereupon, wrote a letter, dated February 10, 1994, stating that in respect of the same facts, he had been prosecuted for misappropriation and acquitted and that in para 505 of the Sastry Award, it had been said that such an acquittal should not be lightly challenged by departmental enquiries for disciplinary action unless the management feels that further enquiry is required on matters other than those in respect of which he had already been acquitted. The petitioner, therefore, requested that the proceedings should be dropped. However, by proceedings, dated June 8, 1994, the disciplinary authority decided to appoint an inquiry authority stating that the management proposed to hold a written domestic enquiry, and forwarded the explanation to the enquiry officer.
3. In this background, the petitioner has filed the Writ Petition claiming that once the petitioner has been acquitted on the same facts, the holding of domestic enquiry was untenable, and had also prayed for interim stay of the domestic enquiry, which was granted. The respondent has filed an application to vacate the stay, and when the matter came up for hearing, it was agreed that the writ petition itself could be disposed of.
4. The learned Counsel for the petitioner relied on the decision of the Supreme Court in P. Chandra Mohapatra v. State of Orissa and Ors., (1993-I-LLJ-171) wherein a similar writ petition was allowed stating that restarting of disciplinary proceedings a decade after the petitioner was acquitted, was not at all justified. Reliance was placed on the decision of the Supreme Court in Corporation of Nagpur v. Ramachandra G. Modak, (1981-II-LLJ-6) and it was submitted that such acquittal should be taken into consideration to see whether it was really worthwhile to continue the departmental enquiry and that such departmental enquiry can be continued even after acquittal. Learned Counsel, therefore, argued that these observations indicated that the authority concerned had to give an opportunity to the petitioner and had to make a speaking-order before proceeding with the domestic enquiry as the petitioner could reasonably expect to be spared of a further enquiry on the same matter.
5. The learned counsel for the respondents submitted that the petition itself is not maintainable, because the decision to continue the enquiry was an administrative decision taken on subjective satisfaction, as observed in the case of compulsory retirement by the Supreme Court in Baikunthanath Das v. Chief District Medical Officer, Baripata . The learned counsel has also relied on the decisions in Nelson Motis v. Union of India (1992-II-LLJ-744) Ramachandra Modak's case (supra); Chief Regional Manager v. S. Eswara Rao (1995-II-LLJ-874), which supported the proposition that acquittal does not stand in the way of domestic enquiry even if the matter remained the same. It was further argued that the question whether the decision to continue the domestic enquiry, is justiciable, had not been raised in the case decided by the Supreme Court in Mohapatra 's (supra), and as held by the Supreme Court in Delhi Municipal Corporation v. Gurnam Kumar, what was not decided by the Supreme Court, cannot be taken as a precedent. It was also argued that there was no question of any expectation by the petitioner in this matter, because it must be based on a promise or past practice , which was not established in this case.
6. I have considered the submissions and read the decisions cited by both the sides. The disciplinary action and the procedure, in respect of bank employees, is governed by the Bipartite Settlement. Clause 3(c) of Chapter XIX of that settlement, dated October 19, 1966, provides that if the delinquent officer is acquitted, it shall be open to the management to proceed against him by way of a domestic enquiry. The specific question raised in this case is whether there is legitimate expectation on the part of the delinquent officer that as a matter of procedural fairness he will not be required to go through the domestic enquiry, and if he should be so required, an opportunity will be given to him and a speaking order will be passed, which will be justiciable. In the decision of this Court in Eswara Rao's case (supra), it was observed.
"The next question is as to whether on germane considerations the appellant decided to conduct departmental proceeding? Though such a question was possible to have been raised, we find that no such question was urged either in the reply to the show-cause notice or even in the writ petition accompanying the affidavit. The question cannot be raised at this stage".
I find that in the decision of Supreme Court in Mohapatra's case (supra), the writ petition challenged the action of restarting disciplinary proceedings, after acquittal, and the Supreme Court held that that action was unjustified because of long lapse of time, and the delinquent had, in fact, been reinstated in the meanwhile. Again, the question, as posed above, was neither raised nor discussed, because the management in that case did not claim that the writ was not maintainable, unlike in the present case. The other authorities are only on the question whether the management can continue or restart domestic proceedings, after acquittal, in respect of the same matter and even in the Bipartite agreement, it has been agreed,as has been held in those cases, that acquittal is no bar to the continuation of a domestic enquiry. It may appear that the petitioner, having undergone atrial, is required to undergo another trial in the domestic enquiry and should therefore, be spared unless there is a particular reason, which should be spelt-out. But, I am unable to consider this to be an established legal proposition even though the Supreme Court had quashed the domestic enquiry on the ground that on the same facts the delinquent had been acquitted earlier. The decision whether the domestic enquiry should be continued even after an acquittal, is in essence, an administrative decision. As far as opportunity is concerned the delinquent always has the opportunity in the domestic enquiry itself to point out that the conclusion cannot be any different from the earlier acquittal. In the present case also, opportunity was given. The only question that remains is whether a speaking order was required. As observed by the Supreme Court in Baikunthanath Das's case (supra) (compulsory retirement case), the nature of the function to continue or restart a domestic enquiry, is not quasi-judicial in nature: Such action has to be taken on the subjective satisfaction of the management. There is no room for importing the facet of natural justice, because the decision to order a domestic enquiry, after acquittal, cannot be regarded as a punishment, or injurious to the delinquent. This does not mean that judicial scrutiny is excluded altogether, because if the delinquent challenges the same, the Court may interfere if satisfied that the decision was mala fide or arbitrary and without any evidence at all. But the stand of legitimate expectation cannot arise. Even as a matter of fair procedure, the right of the management to hold an enquiry into any complaint against the delinquent, cannot be abridged. The enquiry is essentially to find out the correct facts. The same set of facts may give rise to a criminal offence and also a misconduct. The two inferences are quite different and attract different penalties. Even the perception may change although the evidence may remain the same. In particular, the staff of a Bank may have to be considered for more stringent discipline with respect to monetary transactions. As pointed out by the Supreme Court in Union of India v. Hindustan Development Corporation ., the concept of legitimate expectation, which is a latest recruit to a long list of concepts fashioned by the Court for the review of the administrative actions, must be restricted to the general legal limitations applicable and seeing the manner of the future exercise of administrative power in a particular case. Legitimate expection can arise only when it is based on a promise or past practice. It is not the case of the petitioner that the Bipartite agreement had ever promised that no domestic enquiry will be held after acquittal, or that it was a past practice to drop all domestic enquiries after acquittal. On the contrary, the Bipartite Settlement itself states that it is open to the management to continue the domestic enquiry after acquittal. That decision is, therefore, essentially an administrative decision and not open to the judicial review. In this view of the matter, I have to hold that the Writ Petition is not maintainable. Even on merits, I find that no mala fides have been alleged, and the proposal to hold the enquiry, after acquittal, was not arbitrary. In respect of only one charge, the facts are the same as in the criminal case. In respect of the second charge, dated January 8, 1994, even though the transaction made is of the same nature the persons concerned are quite different. In the circumstances. I do not sec any infirmity in the decision of the management to hold the domestic enquiry. Writ Petition is dismissed. No. costs.