W.P.(C) No. 2537/1992 Page 1
UNREPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO. 2537 OF 1992
% Date of Decision : 3rd July, 2008.
A.C. DHAMIJA .... Petitioner.
Through Petitioner in person.
VERSUS
PUNJAB NATIONAL BANK .... Respondent.
Through Mr. V.K. Rao, Mr. Ayushya Kumar & Mr. Arun Dhiman, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ? NO 3. Whether the judgment should be reported in the Digest ? NO SANJIV KHANNA, J:
1. The petitioner, Mr. A.C. Dhamija, has appeared in person and argued the present writ petition by which he has challenged order dated 15th April, 1991 passed by the Regional Manager of New Bank of India imposing penalty of stoppage of two increments without cumulative effect. The petitioner has also challenged, orders passed W.P.(C) No. 2537/1992 Page 2 by the Appellate Authority and the Reviewing Authority confirming the said punishment. The petitioner has made another prayer in the writ petition to quash the second charge sheet dated 15th May, 1992 issued by the respondent bank i.e.; New Bank of India which stands amalgamated with the Punjab National Bank. During the pendency of the present writ petition, penalty of reduction of rank by three stages was imposed on the petitioner pursuant to the charge sheet dated 15th May, 1992 vide orders dated 21st December, 1993 and 2nd March, 1994. Thereupon, the petitioner filed CM No. 2586/1994 challenging the subsequent orders dated 21st December, 1993 and 2nd March, 1994. This application CM No. 2586/1994 was allowed by order dated 20th July, 1995 with the direction that additional grounds raised in the application will form part of the writ petition.
2. At the outset, I may note that after filing of the present writ petition, a third charge sheet dated 27th February, 1996 was issued to the petitioner and punishment of removal from service was imposed by the disciplinary authority vide order dated 17th October, 1996. Appeal of the petitioner against the said order of removal stands dismissed vide order dated 20th June, 1997 and the revision petition filed by the petitioner also stands rejected by order dated 8th November, 1997. The petitioner has not challenged orders of removal by filing a separate writ petition or by filing an application raising additional grounds or amending the writ petition. The said W.P.(C) No. 2537/1992 Page 3 orders have not been brought on record and impugned by the petitioner. This Court, therefore, is not examining the third disciplinary proceeding, which has resulted in the order of removal.
3. I may briefly notice the two arguments which were raised by the petitioner. The present writ petition was initially listed before a Division Bench as per the Rules. A Division Bench of this Court vide order dated 20th November, 1992 issued notice in the writ petition after noticing the allegation of the petitioner that there was some tampering with the original records. The Division Bench also directed that the respondent bank should produce the entire enquiry proceedings including documents etc. before this Court on the next date of hearing. Notice was issued for 25th January, 1993 but the respondents could not be served on the said date. Order sheet reveals that thereafter directions were repeatedly given to the petitioner to file process fee. Appearance was made by the respondent bank for the first time on 17th February, 1994. At that stage, it was pointed out that New Bank of India has been amalgamated with Punjab National Bank. Accordingly, memo of parties was directed to be amended and Punjab National Bank was impleaded as a party. The contention of the petitioner that original records were not produced on the next date of hearing by the respondent bank and, therefore, the allegation of the petitioner that the record of the disciplinary proceedings were tampered stands W.P.(C) No. 2537/1992 Page 4 proved, cannot be accepted. Tampering of records has to be proved and established on the basis of material and documents and not by mere presumption on the ground that records were not produced on the first date of hearing when the respondent had entered appearance. The petitioner also referred to order dated 24th April, 1997 by which Criminal Miscellaneous Main No. 2684/1997 filed by the petitioner under Sections 340 and 295 of the Cr.PC readwith Sections 191, 193 and 199 of the Indian Penal Code was dismissed as being devoid of merits. The said order hardly helps the petitioner. I may note here that the petitioner had earlier filed Criminal Miscellaneous Main No. 222/1998. This application was disposed of on 12th March, 1997 after recording that in the writ petition "Rule" had already been issued and the application in question should be numbered and listed along with main petition in due course. The said orders do not express any opinion on the merits of the case. It cannot be held that the petitioner is entitled to succeed in the writ petition only on the ground of the said orders.
4. The petitioner had joined service of the respondent bank in October, 1972 in Delhi. He was first promoted as an Accountant and then as a Manager in 1981. He was posted in different branches. In 1989 the petitioner was working at Popran branch in district Jind, Haryana as a Manager along with two other officers viz. Mr. D.N. Sharma, Clerk/Cashier and Mr. Mohinder Singh, Peon.
W.P.(C) No. 2537/1992 Page 5
5. On 1st July, 1989, the petitioner was suspended and thereafter chargesheeted for having committed various acts amounting to serious misconduct, this included the charge of remaining unauthorisedly absent from the branch resulting in non-operation of cash on 30th June, 1989. The charge sheet states that the petitioner had acted in a manner prejudicial to the interest of the bank, he failed to ensure bank's interest and had acted in a manner unbecoming of an officer and contrary to his best judgment. The averments made in the statement of allegations against the petitioner were that on 29th June, 1989 the petitioner handed over cash key of the branch to Mr. Mohinder Singh, Peon without realizing that as a Manager it was necessary for him to ensure that suitable arrangements had been made and cash was handed over to a substitute officer. Another allegation against the petitioner was that on 30th June, 1999 Mr. Mohinder Singh, Peon and Mr. D.N. Sharma, Clerk/Cashier had contacted the petitioner, who advised them to open the branch and he would join them shortly but the petitioner did not turn up resulting in non-opening of the cash. The statement of allegations further avers that the petitioner was contacted by Mr. Mohinder Singh, Peon in the afternoon and found to be in a market making some purchases. Mr. Mohinder Singh, Peon handed over cash key to the petitioner and requested him to report for duty but the petitioner threw the cash key on the road with unpleasant remarks. On 30th June, 1989 at about W.P.(C) No. 2537/1992 Page 6 9.30 p.m.; the Manager of Jind branch along with two officers visited the residence of Mr. A.C. Dhamija with the request to acknowledge the letter/memorandum but he refused to accept the same. It is alleged that the petitioner proceeded on leave without sanction and thereby remained unauthorisedly absent from duty resulting in non- opening of the bank branch. Subsequently, supplementary charge sheet dated 23rd November, 1989 was issued to the petitioner on the allegation that he had failed to hand over the bank's motorcycle in spite of written letter dated 10th November, 1989 and the same was not handed over nor the letter was replied till the charge sheet was issued.
6. It is now well settled that this Court in a writ petition while exercising power of judicial review cannot re-appraise or examine the evidence produced in the disciplinary proceedings as an appellate authority. The scope of judicial review is limited and is concerned with the decision making process rather than the actual decision on merits.
7. The enquiry officer had examined several witnesses before giving his findings. The enquiry report is elaborate and detailed. The respondent bank had produced several witnesses including Mr. Mohinder Singh, Peon, Mr. S.C. Chawla, Senior Manager, Hissar, Mr. P.D. Jindal, Mr. A.D. Muteja as well as Mr. S. C. Mongia in addition to Mr. D.N. Sharma, Cashier. The statements of these witnesses had W.P.(C) No. 2537/1992 Page 7 been set out and considered by the enquiry officer. The petitioner did not personally appear or cross-examine the witnesses and had only made written submissions before the Enquiry Officer. The report of the Enquiry Officer shows that ample opportunities were granted to the petitioner to cross-examine witnesses produced by the management and produce his own evidence. Opportunities were also given to the petitioner to appoint a defence officer.
8. Enquiry proceedings started on 3rd November, 1989 with the petitioner confirming that he had received the charge sheet. At that stage, the Presenting Officer submitted a provisional list of witnesses along with documents which were handed over to the petitioner. On 16th November, 1989, the petitioner submitted photocopies of some letters but stated that he had not decided about the defence officer and the list of witnesses. He insisted that these would be given, if allegations against him were considered to be part of conspiracy against him. Proceedings thereafter continued with the enquiry officer insisting that the petitioner should produce originals of the documents and submits name of his defence representative and furnish his list of witnesses. Later on it appears that the petitioner took up the plea that there was theft at this residence and originals of the documents had been stolen and he would produce the same if they were traced or otherwise he would produce duplicate copies. However, the petitioner could not give the date of the theft or the FIR W.P.(C) No. 2537/1992 Page 8 number. On 5th November, 1990, the petitioner confirmed having received supplementary charge sheet dated 23rd November, 1989. The petitioner also confirmed that he would defend the case himself and stated that he was unable to produce list of documents and witnesses for fear of confidentiality being compromised and the same being leaked to the conspirators. Opportunity was given to the petitioner again on 6th January, 1990 and 24th January, 1990 to submit list of witnesses and documents with regard to the supplementary charge sheet. The petitioner did not avail and take benefit of the said opportunities.
9. By letter dated 15th June, 1990 Mr. A.C. Dhamija was informed that the case would be taken for consideration on 4th July, 1990 at the branch office at Sonipat. The petitioner by his letter dated 25th June, 1990 informed the Enquiry Officer that due to ill health he would not be able to participate in the proceeding at such a distance. He also objected to appointment of the Enquiry Officer and submitted that the enquiry should be continued from the same stage at which it was left by the earlier Enquiry Officer, one Mr. O.P. Sharma. The new Enquiry Officer by his letter dated 30th June, 1990 asked the petitioner to submit medical certificate from Medical Officer, Civil Hospital, Jind mentioning the nature of ailment and how it restricted him from undertaking the journey to the place where the enquiry proceedings were being carried on. Keeping in view the request W.P.(C) No. 2537/1992 Page 9 made, the hearing was adjourned to 25th July, 1990 at Sonipat. On 25th July, 1990 the petitioner did not appear and the hearing was adjourned to 10th August, 1990 to give another opportunity to the petitioner. On 10th August, 1990, the petitioner again did not turn up and one further opportunity was granted to the petitioner with the case being adjourned to 12th September, 1990. The petitioner by his letter dated 1st August, 1990 alleged that the Enquiry Officer had disturbed his private family life and he would not dare to go out of station. It was also alleged that his house had been robbed and ransacked to steal some important papers and thus creating terror.
10. On 12th September, 1990 the Enquiry Officer partly recorded statement of witnesses. Statement of witnesses was also recorded on subsequent dates but in the absence of the petitioner. On the basis of statement of witnesses, the Enquiry Officer came to the conclusion that the charges against the petitioner except allegation No. 5 with regard to receipt of the memorandum, stand proved. It is admitted case that the bank branch could not function on 30th June, 1989 as the cash counter was not opened by the petitioner. It is also admitted that the petitioner did not attend the said branch on 30th June, 1989. The petitioner had made some allegation against Mr. D.N. Sharma, Cashier prior to the enquiry proceedings. Even if one ignores the statement of Mr. D.N. Sharma, there is evidence of Mr. Mohinder Singh, Peon , which has been discussed by the Enquiry W.P.(C) No. 2537/1992 Page 10 Officer. The Enquiry Officer has examined statements and allegations objectively and has given his findings that the charges against the petitioner except allegation No. 5 stand proven. The Enquiry Officer also observed that the petitioner had earlier made repeated applications for leave but these were not considered and reliever was not provided to substitute the petitioner. In this connection, the Enquiry Officer has observed as under:-
"On scrutiny of the same, there is no doubt that Shri Dhamija was unable to proceed on leave because the reliever could not be provided by R/O for one or the other reason. However, this does not mean that Shri Dhamija should throw all norms to the winds and behave in such an irresponsible manner including giving of cash keys to a Peon and remaining at home despite being told by his Senior Officer to attend the duties which resulted in not opening the cash and suspension of banking business."
11. It was in the light of these findings that the petitioner was awarded punishment of stoppage of two increments without cumulative effect. The petitioner had contended that some lines in the enquiry report were partly underlined and illegible and these should be again given to him. The said request was made in writing on the memorandum dated 15th April, 1991. In response to the said request, by letter dated 24th April, 1991 the petitioner was given written transcript of the said lines.
12. I may note here that the petitioner has filed along with the writ petition several documents. It is stated that photocopies of W.P.(C) No. 2537/1992 Page 11 documents were also filed before the Enquiry Officer. The documents indicate that the petitioner initially had applied for leave so that he could construct his house. The respondent bank, however, could not arrange for a reliever. It was also stated that the petitioner's brother-in-law had come to Delhi from Dubai and he was required to meet him and his family. The subsequent letters show that the petitioner was suffering from piles and required treatment. These factors have been noticed by the Enquiry Officer and the disciplinary authority and not ignored by them. Yet they felt that the petitioner should have been more careful and not gone on leave on 30th June, 1989 in the manner done by him. I may also note that the petitioner's claim that he was unwell and, therefore, could not attend the bank on 30th June, 1989 has been also examined by the Enquiry Officer. The Enquiry Officer has specifically noted that the medical certificate produced by the petitioner dated 28th June, 1989 merely records the blood pressure of the petitioner as 134-180 and states referred to medical specialist. It appears that the petitioner was suffering from hyper tension and high blood pressure. These factors have all been taken into consideration by the disciplinary authority.
13. The petitioner herein has alleged that there has been a violation of the principles of Natural Justice on account of the non- service of the enquiry report to the said petitioner herein. However it is established and Courts have looked upon the Principles of Natural W.P.(C) No. 2537/1992 Page 12 Justice as being a set of pragmatic principles rather than rules that are to be executed in a strait jacket formula. Supreme Court in the case of Divisional Manager, Plantation Division A&N Islands versus Munnu Barrick, reported in (2005) 2 SCC 237 has held that before setting aside an order or decision on account of violation of principles of natural justice, the court would call upon the one alleging violation of the principles of natural justice to show as to how and what kind of prejudice was caused to him by way of the said failure. Reference in this regard can be made to the case of Om Prakash Mann versus Director of Education (Basic), reported in (2006) 7 SCC 558, where the Supreme Court while dealing with question of effect of non-supply of enquiry report to the delinquent employee held as under:-
"9. By now it is well-settled principle of law that the doctrines of principle of natural justice are not embodied rules. They cannot be applied in a straitjacket formula. To sustain the complaint of violation of the principle of natural justice one must establish that he has been prejudiced by non-observance of the principle of natural justice. As held by the High Court the appellant has not been able to show as to how he has been prejudiced by non-furnishing of the copy of the enquiry report. The appellant has filed a detailed appeal before the Appellate Authority which was dismissed as noticed above. It is not his case that he has W.P.(C) No. 2537/1992 Page 13 been deprived of making effective appeal for non-furnishing of copy of enquiry report. He has participated in the enquiry proceedings without any demur. It is undisputed that the appellant has been afforded enough opportunity and he has participated throughout the enquiry proceedings, he has been heard and allowed to make submission before the Enquiry Committee."
14. In the present case also the Petitioner was furnished a copy of the enquiry report with the punishment order. The petitioner thereafter had filed an appeal and on dismissal thereof a revision petition which was also dismissed.
15. The petitioner vide letter dated 15th April, 1991 was reinstated and posted at branch office Nandha, district Bhiwani, Haryana. He was asked to take charge of the said branch. The petitioner did not join the said branch and report for duty. Subsequently, on 10th July, 1991 the petitioner was posted at Rambas branch. The petitioner did not join the said place also. In these circumstances, second charge sheet dated 15th May, 1992 was issued. On 14th July, 1992, petitioner was offered posting at Amargarh, Haryana. The petitioner once again failed to join the said place of posting again.
16. The petitioner had filed the present writ petition on or about 8th July, 1992. He had also filed an application seeking stay of his posting with the request that he should be posted at Jind, Delhi or W.P.(C) No. 2537/1992 Page 14 New Delhi. No interim order or directions were passed on the said application. Yet the petitioner did not join the bank branches to which he was posted. No stay of the second departmental proceedings was also granted.
17. I have examined the application CM No. 2586/1994 and the grounds mentioned therein challenging the second punishment order dated 2nd March, 1994 by which punishment of reduction of salary by three stages at the time scale was imposed. It is stated in the application that the second charge sheet was issued in spite of petitioner having filed a writ petition challenging and praying for quashing of the charge sheet in question. On merits the petitioner has no explanation and ground to challenge the punishment. The grounds raised in the said application do not justify quashing of the punishment order dated 2nd March, 1994.
18. I also do not see any reason to quash the charge sheet itself. The petitioner had been absenting himself from duty even after he was asked to rejoin duty vide order dated 15th April, 1991. The petitioner had questioned and challenged this posting order and had made a prayer that he should be posted at Jind in Haryana, Delhi or New Delhi. No interim order was passed on the said application. Despite the above facts, the petitioner did not join the place of posting. The Court had not passed any stay order restraining the disciplinary authority from proceeding with the disciplinary W.P.(C) No. 2537/1992 Page 15 proceedings pursuant to charge sheet dated 15th May, 1992. The order passed by the disciplinary authority dated 2nd March, 1994 is appealable and thereafter revisable. On this ground also, the challenge to the order dated 2nd March, 1994 directly in a writ petition without exhausting alternative remedies, should not be entertained.
19. In view of the above, I do not find any merit in the present writ petition and the same is accordingly dismissed. All pending applications are also disposed of. However, in the facts and circumstances of the case, there will be no order as to costs.
(SANJIV KHANNA)
JUDGE
JULY 03, 2008
VKR