Sunil Devidas Damkondekar vs The Union Of India, The Bank Of ...
2002 Latest Caselaw 156 Bom

JUDGMENT

Marlapalle, J.

1. The petitioner, who was employed as a clerk under Bank of Maharashtra, has assailed the order of dismissal from service dated 1.9.1989 passed by the Disciplinary Authority and General Manager as well as the order dated 24.10.1989 whereby his appeal came to be dismissed by the Appellate Authority under the service rules.

2. He came to be appointed as a clerk on 1.9.1981 and he was posted in the despatch department at Nanded Branch during the years, 1985 - 88. He was placed under suspension by order dated 23rd February, 1987 pending departmental proceedings. Charge sheet dated 22.6.1988 was issued against the petitioner levelling the following charges:

1) Wilful damage to the property of the Bank, which was an act of gross misconduct as per clause 19.5(d) of Bipartite Settlement, 1966;

2) Breach of instructions for running of dispatch department, which was a minor misconduct under clause 19.7(d) of the Bipartite Settlement, 1966;

3) Defrauding the Bank, which is an act, prejudicial to the interest of the Bank and a gross misconduct as per clause 19.5(j) of the Bipartite Settlement, 1966; and

4) Manipulation of record to conceal the misappropriation, which is an act of gross misconduct as per clause 19.5(j) of the Bipartite Settlement, 1966.

5) Acted negligently, which is a gross misconduct under clause 19.5(j) of the Bipartite Settlement, 1966.

The instances in support of the charges were set out elaborately, giving examples of specific dates. It appears that the petitioner did not submit his reply to the charge sheet. The Bank decided to conduct departmental enquiry and the petitioner appeared before the Inquiry Officer. He was represented by defence representative. There were certain documents he asked for vide his representation dated 26.8.1988 and 17th October, 1988. The second representation was rejected on the grounds that the documents asked for were irrelevant to the charges levelled against the petitioner. From amongst the documents asked for in the first representation, the Bank accepted that there were no written instructions given to the petitioner for running of the Dispatch Department and inspection was afforded for the remaining documents. The Inquiry Officer submitted his report and held the petitioner guilty of the following misconducts:

1) Wilful damage to the property of the Bank;

2) Breach of instructions for running of Dispatch Department;

3) Defrauding the Bank and acting in a manner prejudicial to the interest of the Bank;

4) Manipulation of record to conceal misappropriation, an act prejudicial to the interest of the Bank; and

5) Negligent acts.

Based on these findings, the Bank issued show cause notice for the proposed punishment on 5th July, 1989. The findings of the Inquiry Officer were enclosed with the said show cause notice which was replied to, by the petitioner on 25th July, 1989. He appeared before the Disciplinary Authority on 10th August, 1989. He was heard and final order of dismissal (punishment) was passed on 1.9.1989. By the said order, the petitioner came to be dismissed from service without notice with immediate effect.

3. On the same day, he submitted an appeal to the appellate authority and the appeal was dismissed on 24.10.1989.

4. The learned Counsel for the petitioner submitted that the action of punishment cannot be sustained in law on the following grounds, namely -

a) The documents asked for and which were relevant, were not given;

b) Opportunity for examining or cross-examining the witnesses was not afforded;

c) The inquiry was vitiated inasmuch as, it was conducted in utter violation of the principles of natural justice;

d) A show cause notice was not issued to the petitioner on the point of correctness of the Inquiry Officers findings; and

e) The findings recorded by the Inquiry Officer were not supported by evidence.

Reliance has been placed on the following decisions of the Supreme Court in support of these contentions:

1) Committee of Management, Kisan Degree College v. Shambhu Saran Pandey and others ;

2) State of U.P. v. Ravinder Nath Chaturvedi and another [1995 Supp (3) SCC 592];

3) Tara Chand Vyas v. Chairman & Disciplinary Authority and others ; and

4) Kuldeep Singh v. Commissioner of Police and others .

5. We have perused the findings of the Inquiry Officer as well as the proceedings dated 26.10.1988 and 17.10.1988. The charge sheet issued against the petitioner had elaborately set out the details of the charges and the copies of the relevant extracts were also annexed with the charge sheet running into about 82 pages under Annexure I and II. The petitioner was allowed to submit his defence statement, which he submitted elaborately. He was represented by the representative of his choice. The petitioner had submitted letters dated 20.1.1987 and 18.2.1987 stating therein that the examples given in the charge sheet were correct and those were the lapses which occurred due to his disturbed mental conditions. Seven documents were submitted before the Inquiry Officer on behalf of the Bank, including the concerned register. All these documents were shown to the petitioner along with the inspection of the original documents. The Inquiry Officer, in this regard, recorded following observation: "The credit certified copies of above evidence are given to the CSE. Inspection of the original documents as asked by the CSE was also given to his satisfaction. The above named documentary evidence is marked as exhibit M-2, M-3, M-4, M-5, M-7, M-8(a, b, c), M-9, M-10 (Page 1 to 66), M-11 (Pages 67 to 76 respectively. The defence has not challenged the documentary evidence. The chargesheeted employee on the contrary accepted its genuity/contents and writing too. I therefore believe and accept the documentary evidence submitted from the management side."

6. The nature of charges levelled against the petitioner did not call for any other witnesses either by the management or by the petitioner himself. The charges were based on the record which was maintained by the petitioner himself as a Dispatch Clerk. The concerned documents were to be perused during the inquiry and findings were required to be recorded. The copies of some other documents which were relevant, were also submitted with inspection of the original documents. Under such circumstances, the allegation that the petitioner was not given inspection of the documents or copies of such documents were not submitted, does not hold force to show that the principles of natural justice were violated or the inquiry was vitiated.

7. The contentions of the petitioner that he was mentally upset and therefore, some lapses had occurred at his hand, have also been examined by the Inquiry Officer at length vis-a-vis his applications at Exh.M-2 and M-3. The Inquiry Officer has recorded two instances from the dispatch register. On the first instance, there were 11 documents from the same branch and on the second instance, there were four or five documents of the same branch and the petitioner has shown that they were separately dispatched. The petitioner was a Dispatch Clerk and when more than one documents or letters were being sent to a particular branch, he would take steps to send them altogether rather than showing individual dispatches. The Inquiry Officer concluded that the register was not only manipulated but, was manipulated with a design and, therefore, the plea of being mentally disturbed was unsustainable.

8. The Inquiry Officer has discussed elaborately the documents submitted before him and the findings recorded by him cannot be held to be perverse or without support.

9. There is no requirement in law to issue a show cause notice regarding the veracity of the Inquiry Officers findings. The Bank had issued show cause notice on the proposed punishment and a copy of the Inquiry Officers findings was forwarded with the said show cause notice. When reply is submitted to such a show cause notice, the employee concerned would certainly attack the findings first so as to demonstrate that the punishment was proposed on the basis of unfounded charges or unproved charges or on the basis of an inquiry which was vitiated. The petitioner replied to the show cause notice and in addition, he was heard in person by the Disciplinary Authority on 10th August, 1989. The dismissal order considers his defence in detail and shows application of mind by the authority to the findings submitted by the Inquiry Officer. The petitioner submitted an appeal as per the service rules and the appellate authority thought it appropriate to confirm the order of dismissal passed by the Disciplinary Authority. The appellate authority also had afforded an opportunity of personal hearing to the petitioner on 16.10.1989 and he admitted, during the course of hearing by the appellate authority, all the five charges mentioned in the charge sheet. He only pleaded for one more opportunity to serve the Bank by improving his conduct. The appellate authority was not in favour of exonerating the petitioner and disturbing the order of punishment as passed by the Disciplinary Authority. We do not find any illegality committed by the appellate authority.

10. The decisions relied upon by the petitioner in no way support his case and when the inquiry has been conducted properly and the order of punishment has been issued by following the procedure in keeping with the principles of natural justice, such action of the employer cannot be a subject matter of judicial review. The quantum of punishment is a managerial decision. Looking at the seriousness of the charges, the Inquiry Officer has held that the petitioner had defrauded the Bank for an amount of Rs.10,102/ and it was not a case of human error or negligence alone. Both, the Disciplinary Authority as well as the Appellate Authority, have considered all the pleas of the petitioner and held that he was not fit to be retained in service. This decision does not call for any interference at our hands while exercising our discretionary powers under article 226 of the Constitution.

11. In the result, the petition is dismissed. Rule is discharged. No costs.