Karnataka High Court
Bank Of India, A Body Constituted Under ... vs C K Sardeshpande, on 6 August, 2012
Author: Vikramajit Sen
Bench: Chief Justice, B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6th DAY OF AUGUST 2012
PRESENT
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT APPEAL No.4393/2011 (S-DE)
BETWEEN
Bank of India,
A body constituted under the
Banking Companies (Acquisition and
Transfer of Undertakings) Act, 1970
Represented by its General Manager (HR)
Head Office, Star House, C-5,
'G' Block, Bandra-Kurla Complex
Bandra (East), Mumbai-400 051
Now represented by Deputy Zonal Manager,
Sri A.S.Narasimhan, S/o Sri Santhanam,
Aged about 58 years,
Karnataka Zone, K.G.Road,
Bangalore-560 009. ..... APPELLANT
(By Sri Pradeep Sawkar for M/s. Sundarswamy and Ramdas)
AND
C.K.Sardeshpande
Aged about 62 years
S/o late Krishna Rao
Earlier working as staff Officer,
An Officer in Middle Management,
Grade Scale-II at Bank of India,
Main Branch, K.G.Road,
Bangalore-560 009 since illegally
2
Dismissed from service and
Residing at 2389, 7th main,
21st cross, Banashankari, II Stage,
Bangalore-560 070. ... RESPONDENT
(By Sri M.N.Prasanna for M/s. P.S.Rajagopal Assts.)
This Writ Appeal is filed under section 4 of the Karnataka
High Court Act praying to set aside the order passed in the Writ
Petition No.45798/2004 (S-DE) dated 19.04.2011.
This Writ Appeal having been heard and reserved for
pronouncement of judgment, this day the Hon'ble Chief Justice
delivered the following:
JUDGMENT
Vikramajit Sen, C.J.
This Appeal assails the Order dated 19.04.2011 passed by the learned Single Judge in Writ Petition No.45798/2004 (Bank of India). Earlier to this, the learned Single Judge had decided Writ Petition No.30429/2003 in terms of the Order dated 14.10.2009 on the very same subject in which the State Bank of Mysore was the Respondent. Interpretation of a Regulation ubiquitously obtaining in all Bank Regulations was called into question also in the earlier writ petition. It reads thus - 3
"6. The Procedure for issuing Major Penalties:
......
(17) The inquiry authority may, after the officer employee close his evidence, and shall if the officer employee has not got himself examined, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer employee to explain any circumstances appearing in the evidence against him."
2. The learned Single Judge had referred to a multitude of precedents including the Three Judges Bench ruling titled as Sunil Kumar Banerjee -Vs- State of West Bengal (1980) 3 SCC
304. Whilst accepting that this Judgment continues to hold the field, the learned Single Judge has nevertheless considered it appropriate to distinguish it on the premise of the presence of the phrase "as far as may be" which is absent in the extant Rule 8 (19) of the Respondent-Bank but exists in the All India Services (Discipline and Appeal) Rules, 1969, which reads thus:
"8. Procedure for imposing Penalties -
8(1) No order imposing any of the major penalties specified in Rule 6 shall be made except 4 after an enquiry is held, as far as may be, in the manner provided in this rule and rule 10 or provided by the Public Servants (Inquiries) Act 1850 where such inquiry is held under that Act. .......
(19) The enquiry authority may, after the member of the services closes his case and shall if the member of the service has not examined himself generally question him on the circumstances appearing against him in the evidence for the purposes of enabling the member of the service to explain any circumstances appearing in the evidence against him".
Similar provisions are also to be found in Rule 9(1) and (21) of the Railway Servants (Discipline and Appeal) Rules, 1968. It is relevant to note that there is no cavil that these provisions correspond and are akin to Section 313 of the Code of Criminal Procedure, 1973. For facility of reference the provisions are also reproduced herein below:
"313. Power to examine the accused - (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court - 5
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) Shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summon case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b)."
......
The learned Single Judge has duly recorded that so far as Section 313 of the Code of Criminal Procedure is concerned, it stands firmly entrenched jurisprudentially that non-examination or defective examination of the accused would not call for judicial interference unless prejudice to the accused has been affirmatively pleaded and established. It is also necessary to note that their Lordships in Sunil Kumar Banerjee had not even mentioned the phrase 'as far as may be' and a perusal of the Judgments amply discloses that nothing turned on the presence 6 of the words. It is the learned Single Judge who has placed emphasis on the absence thereof.
3. We have already made a mention of Writ Petition No. 30429/2003 which was filed by A. Srinivasa, who was an employee of the State Bank of Mysore. The learned Single Judge had allowed the Writ Petition and had set aside the order of dismissal. Writ Appeal No.4298/2009 filed by the State Bank of Mysore was dismissed by the Division Bench of this Court presided over by Chief Justice J.S. Khehar, as his Lordship then was. However, Khehar J presiding over another Division Bench has subsequently in Writ Appeal No.4221/2011 filed by the Canara Bank against A.V. Hanumanthappa reconsidered the earlier decision and virtually held the previous view in W.A.No.4298/2009 per incuriam, as the attention of the Division Bench had not brought to bear on the dicta in Sunil Kumar Banerjee. In the meantime, S.L.P.No. 4851/2012 filed against Hanumanthappa came to be dismissed by the Apex Court on 30.01.2012. As already noticed in Sunil Kumar Banerjee, their Lordships had before them Rule 8 (19) of All India Services (Discipline and Appeal) Rules, 1969 which corresponds in all 7 material particulars to Rule 6 (17). The summation of the law laid down by the Three Judge Bench is that - "it is now well established that mere non-examination or defective examination under Section 342 of the 1898 Code is not a ground for interference unless prejudice is established".
4. A perusal of the above makes it manifestly clear that the Supreme Court frowned upon a pedantic approach being adopted viz-a-viz failure to put questions to the delinquent/accused. On the contrary, their Lordships held that failure to comply with such provisions or Regulations would be fatal only if it caused prejudice to the concerned employee or accused. After consideration of the cases on the subjects, the Division Bench in Hanumanthappa repeated the legal position to be that "failure to comply with the requirements of Regulation 6 (17) shall not vitiate any enquiry unless the delinquent officer is able to establish prejudice". This conclusion has already attained finality, having not found disfavour with the Apex Court because of the dismissal of the SLP No.4851/2012. We have used the word 'disfavour' intentionally, mindful of the fact that the dismissal of a Special Leave Petition in limine does not operate as 8 res judicata, as also being alive to the position that a numerically smaller Bench stands circumscribed and bound by the opinion of a larger Bench. [The learned Single Judge, in the impugned Order, has applied Moni Shankar -Vs- Union of India (2008) 3 Supreme Court Cases 484 in which Rule 9 (21) of the Railway Rules came in for consideration. However, Monish Shankar is not only subsequent to Sunil Kumar Banerjee but also of a numerically smaller bench. It is, therefore, will not override Sunil Kumar Banerjee. It is well settled that if a coordinate Bench does not agree with the previous decision, it is duty to bound to refer to a larger Bench. Furthermore, we do not find any discussion as to why Rule 9 (21) of the Railway Rules was seem to have been infracted]. In the circumstances of the conundrum confronting us, because of the prevailing Sunil Kumar Banerjee dicta, we would prefer to hold the view that their Lordships have positively affirmed the conclusion of our learned Brothers in Hanumanthappa (W.A.No.4221/2011).
This being the position, it would be wholly inappropriate, if not judicially indisciplined, for us not to arrive at the same conclusion as in Hanumanthappa viz., that since prejudice was 9 not pleaded failure to examine the delinquent did not offend the Regulation. We are in complete and respectful agreement with the decision in Hanumanthappa, and since that decision applied the ratio of Sunil Kumar Banerjee the possible option of referring the matter to a larger Bench does not arise.
5. It has not been disclosed to us that the failure to seek an explanation from the delinquent officer has caused prejudice to him. The Judgment of the coordinate Bench sitting in Appeal over the commonly impugned order is therefore followed and reaffirmed by us. The appeal is accordingly allowed and the order of the learned Single Judge is set aside.
Parties shall bear their respective costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Vr