Bombay High Court
Narendra Suryabhan Wahane vs Bank Of Baroda And 4 Others on 16 November, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4482/2005
Narendra s/o Suryabhan Wahane,
aged about 50 years, Occ. Presently Nil,
r/o "Pawan", Vijay Housing Society,
Near Jyoti Vidyalaya, Gorakshan Road,
Akola, Tahsil-Akola, Dist. Akola. .....PETITIONER
...V E R S U S...
1. Bank of Baroda,
through its Deputy Generala Manager,
(Maharashtra & Goa), Zonal Office,
Sharda, Central Khillare Path,
Erandwane, Pune.
2. Enquiry Officer,
Shri R. S. Vyas, c/o Bank of Baroda,
Sitabuldi Branch, Nagpur.
3. Regional Manager,
Regional Office, Bank of Baroda,
Dharampeth, Nagpur.
4. Branch Manager, Bank of Baroda,
Old Cotton Market, Akola.
5. General Manager, Bank of Baroda,
Appellate Authority, Head Office,
Pune. ...RESPONDENTS
-----------------------------------------------------------------------------------------------
Mr. Vikram Marpakwar, Advocate for petitioner.
Mr. S. N. Tapadia, Advocate holding for Mr. V. V. Bhangde, Advocate
for respondent nos. 1 to 5.
-----------------------------------------------------------------------------------------------
CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :-
NOVEMBER 16, 2016
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ORAL JUDGMENT (Per : V. M. Deshpande, J.)
1. By the present petition, the petitioner is challenging the
order dated 14.01.2004 passed by the disciplinary authority imposing
penalty of removal from service upon the petitioner together with the
order passed by the appellate authority dated 17.03.2005 by which
the appeal preferred by the petitioner came to be rejected.
2. The facts giving rise to the present petition in nutshell are
as under:-
FACTS:
The petitioner initially was appointed as Clerk-cum-
Cashier on 24.01.1975 with the Bank of Baroda. He was promoted
as Officer in the year 1987. He was further promoted in the pay
scale of MM-II in the year 1995.
In the year 1998, the petitioner was transferred to Old
Cotton Market, Akola branch of Bank of Baroda. The misconduct,
which the petitioner committed, relates to this branch when he was
discharging his duties in the managerial capacity with said branch.
The petitioner was suspended from service on 11.07.2001.
On 15.04.2002, the respondent no.1 instituted disciplinary
proceedings against the petitioner under Regulation 6 of the Bank of
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Baroda Officer Employees' (Discipline and Appeal) Regulation, 1976
(hereinafter referred to as the "Regulation" for the sake of brevity).
Along with the said memorandum, articles of charges and statement
of allegations were also served upon the petitioner. The petitioner
was directed to submit his reply in the nature of written statement of
defence.
3. Articles of charges, which was served upon the petitioner
are as under:
"Articles of Charge
During the period Mr. N. S. Wahane, Manager,
E.C.No.11175 (presently under suspension w.e.f.
11.07.2001) was working as a Manager (Credit) at our
Akola Branch (Nagpur Region), he is reported to have
committed certain acts, and deeds and to have omitted to
do certain acts and deeds which it was his duty to do, all
and each of which acts and omissions, if proved would
amount to misconduct under Regulation 3 (1) and -24- of
the Bank of Baroda Officer Employees (Conduct)
Regulations, 1976 and also otherwise under law. He is
therefore hereby charged as under:
1. He has committed serous violation of duty,
breach of trust reposed on him, by the Bank and misuse of
office.
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2. He has knowingly and willfully violated Bank's
rules and established procedures.
3. He did not discharge his duties with integrity
and honesty and took such actions and committed such
omissions which showed lack of probity, integrity, honesty
or bonafides.
4. He adopted such steps and took such actions as
were derogatory, prejudicial, detrimental or injuries to the
interest of the Bank.
5. He did not take steps to ensure and protect the
interest of the Bank.
6. His acts of omission and commission will result
in substantial loss to the Bank.
7. He did acts unbecoming of a Bank Officer."
After receipt of the Articles of charge and statement of
allegations dated 15.04.2002, the petitioner submitted his statement
of defence on 25.04.2002. Mr. R. S. Vyas, Chief Manager, Sitabuldi
Branch was appointed as Enquiry Officer in terms of Sub Regulation
2 of Regulation 6 of the Regulations.
4. In the enquiry proceeding, initially, the petitioner was
represented by his defence representative. He continued to represent
the petitioner till 08.01.2003 and on the said date, he withdrew
himself from the proceedings. However, the petitioner continued to
participate in the proceeding and he withdrew himself from the
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proceedings on 09.06.2003. Various documents were supplied to the
petitioner during the course of inquiry. The bank examined its
witness. The petitioner did not examine any defence witness. The
Inquiry Officer-respondent no.2 vide his inquiry report dated
28.08.2003 found that most of the allegations leveled against the
petitioner were proved by the bank. In the inquiry report, it is
specifically mentioned by the Inquiry Officer that the petitioner,
during the course of inquiry submitted certain documents, which
were found to be fabricated and forged one.
5. The copy of the inquiry report was sent to the petitioner
on 01.09.2003. He was also asked to submit his submission/
representation if any within a period of 10 days from the receipt
thereof. Accordingly, the petitioner submitted his submissions on
16.09.2003.
The disciplinary authority-respondent no.1, after having
considered the nature of charges, factual allegations, statement of
defence, inquiry report and submissions made by the petitioner to the
inquiry officer's finding, passed the order on 14.01.2004 in exercise
of the powers vested with him under the Regulation. The said order
reads thus:
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"1) Penalty of Removal from Bank' service is
imposed on Mr. N. S. Wahane with effect from the date of
receipt of this order which shall not be a disqualification
for future employment.
2) The period of suspension undergone by Mr. N.
S. Wahane from 11.07.2001 to 07.07.2003 be treated as
period not spent on duty.
3) No benefits of instruments falling due during
the period of suspension shall accrue to Mr. N. S. Wahane.
Mr. Wahane may prefer an appeal, if any, in
terms of Regulation -17- of the said Discipline and Appeal
Regulation 1976, within -45- days from the date of receipt
of this order."
The petitioner availed the opportunity of filing an appeal
before appellate authority. The appellate authority, vide order dated
17.03.2005 found that there is no merit in the petitioner's appeal
and, therefore, the appeal was dismissed. Hence, this writ petition.
SUBMISSIONS:
6. We have heard Mr. Vikram Marpakwar, learned counsel
for the petitioner and Mr. S. N. Tapadia, holding for Mr. V. V.
Bhangde, learned counsel for the bank, in extenso. Following were
the submissions on behalf of the learned counsel for the petitioner to
challenge the orders impugned in the present petition.
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(i) The entire disciplinary proceeding stand vitiated
inasmuch as no proper and appropriate opportunity was given
to the petitioner to defend himself effectively in departmental
proceedings and, therefore, the inquiry stands vitiated.
(ii) The opportunity was not given to the petitioner to
represent himself in the disciplinary proceeding by taking the
assistance of an Advocate though the said request was
specifically made by the petitioner.
(iii) There was no sufficient material available before the
inquiry officer to reach to the conclusion to hold the petitioner
guilty of the charges leveled against him.
(iv) No show cause notice was given to the petitioner by
the disciplinary authority for the proposed punishment
inasmuch as the opportunity was not given to the petitioner on
the point of quantum of sentence and, therefore, the order
impugned is required to be set aside.
Per contra, learned counsel for the respondent-bank
submitted that the bank has followed the due procedure before
imposing major penalty upon the petitioner. He submitted that
ample and proper opportunity was afforded and was given to the
petitioner to defend himself properly in the inquiry proceeding. He
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submitted that right from the beginning, the attitude of the petitioner
was non cooperative and has ultimately withdrawn himself on his
own from the inquiry proceeding.
CONSIDERATION:
7. By now, the scope of judicial review and interference by
the Court in the cases arising out of the disciplinary proceedings are
well settled. Normally, when the disciplinary proceedings have been
initiated and the findings of fact have been recorded in such an
inquiry, they cannot be interfered with unless such findings are based
on no evidence or are perverse or are such that no reasonable man
would have reached to such a conclusion.
Therefore, it is crystal clear that sufficiency of the material
before the inquiry officer to reach to the conclusion by the inquiry
officer cannot be the subject matter of judicial review. The learned
counsel for the petitioner was unable to point out how the perversity
has crept in, in the findings recorded by the inquiry officer. Further,
he could not demonstrate on the basis of the inquiry report as well
the documents filed along with the writ petition to point out that no
evidence was available in the inquiry proceedings for the
consideration of the inquiry officer.
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Though, the learned counsel for the petitioner submitted
that no show cause notice was given to him regarding quantum of
punishment, the learned counsel, in the course of his argument,
submitted that he is not pressing the submission and, therefore, the
Court is not dilating on the said issue.
9. The learned counsel for the petitioner submitted that the
opportunity was not given to him to represent himself in inquiry
proceedings by an advocate.
The petitioner was governed by the Regulation of 1976.
As per Regulation 4, there are two types of penalties. (i) Minor
Penalties and (ii) Major penalties. Regulation 6 deals with the
procedure for imposing a major penalties. Sub Regulation 7 of
Regulation No.6 reads as under:
"7. The officer employee may take the assistance
of any other officer employee but may not engage a legal
practitioner for the purpose, unless the Presenting Officer
appointed by the Disciplinary Authority is a legal
practitioner, or the Disciplinary Authority having regard
to the circumstances of the case, so permits. The Officer
employee shall not take the assistance of any other
officer, employee who has two pending disciplinary cases
on hand, in which he has to give assistance."
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From the aforesaid, it is clear that the delinquent officer
can take assistance of any other officer-employee but he was not
entitled to engage a legal practitioner for that purpose unless the
Presenting Officer appointed by the disciplinary authority is a legal
practitioner. Therefore, as a matter of right, the petitioner was not
entitled to claim the assistance of legal practitioner.
10. On 02.06.2003, during the course of inquiry, the
petitioner was present. That day, the defence representative of the
petitioner was not present and, therefore, the Inquiry Officer asked
about his presence. Upon that, the petitioner informed to the inquiry
officer that his defence representative has withdrawn himself.
Thereafter, the petitioner submitted an application that he be
allowed to be defended by a lawyer. Upon that, the inquiry officer
informed him that whether to permit or not presence of the lawyer,
cannot be decided by him and it can be decided only by the
disciplinary authority. The disciplinary authority did not permit the
petitioner to be represented by a lawyer as the case is based on facts
and no legal issue was involved. On the said day, the case was
adjourned for 09.06.2003, so as to give the opportunity to the
petitioner to appoint the other defence representative if he so desires.
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11. The law that whether the delinquent has a right to get
himself represented by a lawyer in the departmental proceedings is
not res integra. Their Lordships of the Apex Court in Cipla Ltd and
others vs. Ripu Daman Bhanot and anr.; (1999) 4 SCC 188, in
paragraph 13, observed as under:
"13. In N. Kalindi and Ors. vs. Tata Locomotive &
Engineering Company Ltd., AIR 1960 SC 914, it was held
that a workman against whom a departmental enquiry is
held by the Management has no right to be represented at
such enquiry by an outsider, not even by a representative of
his Union though the Management may in its discretion
allow the employee to avail of such assistance. So also in
Dunlop Rubber Co (India) Ltd. vs. Workmen, 1965 (2)
SCR 139, it was laid down that an employee has no right
to be represented in the disciplinary proceedings by another
person unless the Service Rules specifically provided for the
same. A Three-Judge Bench of this Court in Crescent Dyes
and Chemicals Ltd. vs. Ram Naresh Tripathi, (1993) 2 SCC
115, laid down that the right to be represented in the
departmental proceedings initiated against a delinquent
employee can be regulated or restricted by the Management
or by the Service Rules. It was held that the right to be
represented by an advocate in the departmental
proceedings can be restricted and regulated by statutes or
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by the Service Rules including the Standing Orders,
applicable to the employee concerned. The whole case law
was reviewed by this Court in Bharat Petroleum
Corporation Ltd. vs. Maharashtra Genl. Kamgar Union &
Ors., (1999) 1 SCC 626, and it was held that a delinquent
employee has no right to be represented by an advocate in
the departmental proceedings and that if a right to be
represented by a co-workman is given to him, the
departmental proceedings would not be bad only for the
reason that the assistance of an advocate was not provided
to him."
In view of the law laid down by the Hon'ble Apex Court
and in view of the fact that the Sub Regulation 7 of Regulation 6 of
the Regulation specifically rules that a delinquent can be represented
by an advocate only in a case where the Presenting Officer is a legal
practitioner, in our considered view, the submission made by the
learned counsel for the petitioner that the petitioner was seriously
prejudiced for not giving any opportunity to defend himself in the
departmental proceeding by the Advocate is without any substance
and, therefore, the said submission is rejected.
12. Insofar as the submission on behalf of the learned counsel
for the petitioner that no proper opportunity was given to him during
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the course of the departmental proceeding to represent himself
properly and, therefore, the inquiry proceeding stands vitiated,
requires noting of certain dates.
13. After initiation of the inquiry proceeding, the petitioner
was represented in the inquiry by Mr. B. S. Doifode, Project Manager
(Training Centre, Pune) for and on behalf of the petitioner as defence
representative. Preliminary hearing was held on 26.07.2002. Further
hearings were held on 17.09.2003, 18.09.2003, 06.01.2003,
08.01.2003, 06.03.2003 and 09.06.2003.
14. The defence representative of the petitioner represented
him till 08.01.2003. As on 06.01.2003, when the inquiry proceeding
was conducted, in spite of the notices being served for the said date,
the petitioner deliberately remained absent. However, the defence
representative was present. The matter was fixed on 08.01.2003,
however on the said date also, the petitioner did not attend the
hearing and also his representative. Therefore, there was no course
left open with the inquiry officer but to permit the management to
examine its witness since the date of hearing was informed well in
advance to the petitioner. The reply of the respondent no.1-Bank
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shows that in order to give another opportunity to the petitioner,
inquiry officer fixed hearing on 02.06.2003 and 09.06.2003 so that
the petitioner could cross-examine the management witness and to
examine any of his defence witness.
15. The proceeding of 02.06.2003 shows, as it can be seen
from page no. 78 of compilation, that the petitioner was present and
defence representative was not present and he prayed for
engagement of counsel. In order to give opportunity, again the
inquiry was fixed on 09.06.2003. On the said date also, the
petitioner was present. He chose not to bring his defence
representative who tired to reiterate is prayer that permission to
engage a lawyer be granted, which was already turned down.
16. Though, the witness of the management was available for
the cross-examination on all these dates, the petitioner himself chose
not to cross-examine either him or through any of his defence
representative but tried to dilate the proceeding by forwarding a
prayer for engagement of advocate which was impermissible under
the Regulation and ultimately he himself on his own on 09.06.2003
withdrew himself from the inquiry. In that view of the matter, it is
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the petitioner, who should blame himself. The petitioner was given
opportunity to represent himself by the defence representative which
opportunity he availed. Not only that, his defence representative
participated in the proceedings however subsequently withdrawn
himself from proceeding and though there was sufficient time
available with the petitioner, he chose not to get himself represented
by any other defence witness. Therefore, at this stage, it is not open
for the petitioner to say that no fair and proper opportunity was
given to the petitioner resulting into the breach of principal of
natural justice.
17. From the various documents appended with the petition
including inquiry officer's report and from the impugned order of
removal from service, it is crystal clear that, the principles of natural
justice were followed. The disciplinary authority even considered the
submissions and representation of the petitioner regarding the
finding of the inquiry officer before inflicting the major penalty.
Therefore, in our view, interference by this Court at this stage, is not
at all warranted.
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18. In that view of the matter, following order is passed:
(i) Writ Petition No.4482/2005 is dismissed.
(ii) At this stage, Mr. Marpakwar, learned counsel for the
petitioner, states that on account of pendency of the present petition,
the respondent-Bank has withheld a huge amount to which the
petitioner was entitled upon his removal from service.
(iii) We direct the respondent-Bank to calculate the amount to
which the petitioner would be entitled in law and pay the same
within a period of four weeks along with interest at the rate
applicable as per the service conditions from the receipt of this
judgment.
Rule is discharged. No order as to costs.
(V. M. Deshpande, J.) (B. R. Gavai, J.)
kahale
