Bombay High Court
B.P.Dayanand Pai vs Syndicate Bank And Ors on 13 July, 2017
Bench: A.A. Sayed
wp 5133.98.final doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5133 OF 1998
B.P. D. Pai ....... (since deceased)
1(a) Smt. Sushila Dayanand Pai
1(b) Jagdish Dayanand Pai
1(c) Sudhir Dayanand Pai
1(d) Raghvendra Dayanand Pai
All residing at D-85/869,
MIG Colony, Gandhi Nagar,
Bandra (East),
Mumbai 400 051 and also
At Bunglow No. 5, U Ba Khin
Vipassana Village,
Dammagiri, Igatpuri,
District - Nashik,
Pin 422 403. .. Petitioners
Vs.
1. The Sydicate Bank
a Nationalised Bank
having its Cororate
Office in Manipal - 576119.
(Karnataka State).
2. The General Manager (O),
(Disciplinary Authority)
Syndicate Bank, Head Office,
Manipal 576 119.
(Karnataka State)
3. Chairman and Managing
Director, Syndicate Bank,
Corporate Office,
Manipal 576 119.
(Karnataka State) .. Respondents
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Mr.Ramesh Ramamurthy, for the Petitioners.
Mr.Prakash U. Shinde i/b MDP & Partners, for Respondents.
CORAM : A.A.SAYED &
M.S.KARNIK, JJ.
RESERVED ON : 19 thJUNE, 2017
PRONOUNCED ON : 13 th JULY, 2017
JUDGMENT (PER M.S.KARNIK, J)
:
1. The original petitioner (since deceased) had
filed the present Petition challenging the orders of dismissal dated
26/06/1995 and orders passed in Appeals on 26/12/1997. The
petitioner has prayed for quashing and setting aside the orders of
dismissal and for grant of continuity of service and full back wages.
The petitioner an employee of the Syndicate Bank, was working as an
Assistant General Manager, Nariman Point Branch, Mumbai at the
relevant point of time. By letter dated 23/05/1991, the Deputy
General Manager of Syndicate Bank advised the petitioner that
permission has been granted to him to commence Portfolio
Management to the clients of his branch strictly in conformity with
the guidelines contained in RBI circular dated 18/01/1991.
It was further mentioned in the said letter that since the
petitioner was already doing Portfolio Management for NRI
clients, his branch had the requisite expertise in
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the proposed Portfolio Management for general clients and Public
Sector Undertakings. Some time in the year 1992, news of scam in
the bank investments and Portfolio Management broke out.
According to the petitioner, RBI started pressuring the bank
Managements to somehow crucify one or the other person so as to
satisfy the public hue and cry and also to enable the Government to
meet the criticism in Parliament. The RBI themselves appointed
M/s.Batliboi and Purohit Auditors to audit the Portfolio Management
transactions for the period from September 1991 to September 1992
conducted by the Bombay Nariman Point Branch of the Syndicate
Bank. The respondents proposed to hold an enquiry against the
petitioner in accordance with the procedure laid down in Regulation
No. 6 of the Syndicate Bank Officer Employee's (Discipline & Appeal)
Regulations, 1976 (hereinafter referred to as 'Regulations' for short).
The petitioner was served with the Articles of Charges and the
Statement of Imputations of Misconducts in respect of which the
enquiry was proposed to be held. The petitioner was called upon to
show cause why regular departmental proceedings should not be
initiated against him. The Articles of Charges mentioned are thus :
" Articles of Charges
That during the period between 07/09/1987 and
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16/10/1992, you were functioning as Chief
Manager/Asst. General Manager of our Nariman
Point Branch, Bombay and that while functioning in
your position as such, in the matter of conducting
Portfolio Management Services at the branch, you
showed undue official favours to
M/s.K.N.Amerchand, Broker, by -
(a) authorising/causing to be authorised purchase of
shares of 23 companies in between 30/01/1992 and
28/05/1992 at prices higher than the market prices
prevailing on the relevant dates;
(b) authorising/causing to be authorised sale of
shares of 9 companies in between 22/01/1992 and
18/05/1992 at prices below the market rates as
prevailing on the relevant dates;
(c) authorising/causing to be authorised sale of
shares of 5 PMS clinets to the tune of
Rs.2,50,16,800/- on 24/03/1992 and allowing the
sale proceeds in the possession of the Broker till
05/05/1992;
and
authorising/causing to be authorised sale of shares to
the tune of Rs.6258301/- in respect of certain PMS
clients in between January 1992 and May 1991 and
allowing the sale proceeds to be left at the disposal
of the Broker indiscriminately;
and
(d) authorising/causing to be authorised payment of
Rs.4339917.82 to the Broker on 03/04/1992 and
allowing the funds at the dispsoal of the Broker till
09/05/1992, in the form of a clean accommodation
by manipulating records, knowing or haing reasons
to believe that the transactions were not genuine;
and
(e) authorising/causing to be authorised purchase of
shares to the tune of Rs.16448250/- on account of 3
PMS CLINENTS in between March 1991 and Apricl
1991 and selling those shares in between
29/04/1992 and 19/05/1992 in a hurried manner,
causing financial loss to the Bank/PMS clients;
and
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(f) allowing he said Broker to utilise funds to the
extent of Rs.37.66 crores in respect of sale of shares
on account of certain PMS clients done in between
17/02/1992 and 12/03/1992 and thus facilitating
the broker to enjoy the funds in the form of clean
accommodation and also authorising/causing to be
authorised certain sale and purchase transactions in
the books of the branch, knowing or having reasons
to believe that such transactions are not genuine;
and
(g) making available clean accommodation to the
extent of Rs.103.40 crores to the Broker in between
23/03/1992 and 09/05/1992 in the guise of
purchase and sale transactions, which you were
knowing or had reasons to believe were not genuine;
and
(h) authorising/causing to be authorised payment of
Rs.5750000/- to the Broker on 19/05/1992 for the
apparent purpose of purchase of shares of M/s.Essar
Shipping Co., without however receiving the
securities and thereafter, agreeing for substitution of
securities in a casual manner.
The details are more fully described in the Statement
of Imputations of Misconducts mentioned herebelow.
In authorising and conducting these transactions,
you acted in a manner detrimental to the interest of
the PMS clients/Bank.
By your above acts, you failed to discharge your
duties with utmost integrity and honesty and
exhibited conduct unbecoming of the status of a
Bank Officer and thus contravened Regulation No. 3
(1) read with Regulation No. 24 of Syndicate Bank
Officer Employees (Conduct) Regulations, 1976.
Articles of Charge No. II :
That you also showed undue official favours to
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M/s.Fairgrowth Investments Ltd., by making
available to them clean accommodation to the extent
of Rs.22.78 crores in between 27/03/1992 and
06/04/1992 in the guise of purchase and sale of
Bonds, which you were knowing or having reasons to
believe were not genuine, as per details more fully to
believe were not genuine, as per details more fully
described in the Statement of Imputations of
Misconducts mentioned herebelow.
You thus acted in detriment to the interest of the
Bank/PMS clients.
By your above acts, you failed to discharge your
duties with utmost integrity and honesty and
exhibited conduct unbecoming of the status of a
Bank Officer and thus contravened Regulation No.3
(1) read with Regulation No.24 of Syndicate Bank
Officer Employees (Conduct) Regulations 1976.
Articles of Charge No. III :
That on 01/01/1992, you authorised purchase of
shares of two companies on account of PMS account
no. 21 through Sri Jamnadas T Shah, Broker, at a
price higher than the market rates prevailing and
thus caused an approximate loss of Rs.117500/- to
the Bank/the PMS client, at average market price, as
per details more fully described in the Statement of
Imputations of Misconducts mentioned herebelow.
You thus showed undue official favours to the said
SriJamnadas T Shah, Broke, in detriment to the
interest of the Bank/PMS clients.
By our above acts, you failed to discharge your duties
with utmost integrity and honesty and exhibited
conduct unbecoming of the status of a Bank Officer
and thus contravened Regulation No. 3(1) read with
Regulation No. 24 of Syndicate Bank Officer
Employee's (Conduct) Regulations, 1976.
Articles of Charge No. IV :
That during the period between February 1991 and
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March, 1992, you authorised sale of/caused to be
sold shares of certain companies on account of PMS
clients to the tune of Rs.1007725/- through
M/s.Kishore Kumar Hariram, Broker, and allowed th
sale proceeds at the disposal of the Broker for a
considerably long period, and thus caused a loss of
Rs.17580/- to the Bank/PMS clients, as per details
more fully described in the Statement of Imputations
of Misconducts mentioned herebelow.
You thus showed undue official favours to the said
M/s.Kishore Kumar Hariram, Broker in detriment to
the interest of the Bank/PMS clients.
By your above acts, you failed to discharge your
duties with utmost integrity and honesty and
exhibited conduct unbecoming of the status f Bank
Officer and thus contravened Regulation No. 3 (1)
read with Regulation No. 24 of Syndicate Bank
Officer Employee's (Conduct) Regulations, 1976.
Articles of Charge No. V :
That on 31/03/1992, on authorised payment of
Rs.22.50 lakhs in favour of IDBI by raising debiton
IM Account No.22 of M/s. Oil India Ltd., with
false./fictitious details by resorting to manipulation
of accounts and records knowing or having reasons
to believe the fictitious nature of the transaction, as
per details more fully described in the Statement of
Imputations of Misconduct mentioned herebelow.
By your above acts, you failed to discharge your
duties with utmost integrity and honesty and
exhibited conduct unbecoming of the status of a
Bank Officer and thus contravened Regulation No.3
(1) read with Regulation No.24 of Syndicate Bank
Officer Employee's (Conduct) Regulations, 1976.
Articles of Charge No. VI :
that in between 23/12/1991 and 05/03/1992, you
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authorised conducting of/caused to be conducted
certain purchase and sale transactions of buy-back
nature, in violation of RBI guidelines.
In the matter of conducting these transactions, you
issued/caused to be issued BR s against BRs,
violating RBI guidelines.
In the process, you acted indetriment to the interest
of the Bank/PMS clients.
By you above acts, you failed to discharge your
duties with utmost integrity and honesty, and
exhibited conduct unbecoming of the status of a
Bank Officer and thus contravened Regulation no.3
(1) read with Regulation No.24 of Syndicate Bank
Officer Employee's (Conduct) Regulations, 1976.
Articles of Charge No. VII :
That in the matter of conducting the PMS operations
at the branch -
(a) you failed to obtain/caused obtention of the
prescribed Written Agreement from 12 PMS clients
for reasons best known to you;
and
(b) you offered/caused to be offered indicative yiled
on the funds invested by 20 PMS clients contrary to
the guidelines issued by RIB and SEBI and you
approved unauthorisedly, the acts of the Chief
Manager of our K.G. Marg branch, Delhi, in his
having indicated yield on funds accepted for PMS;
and
(c) you failed to ensure that investment of Rs.15.00
crores made by M/s. Oil India Ltd., were deployed
immediately'
and
(d) you failed to ensure that the Bank's position
with regard to its PMS operations is correctly
reflected in the Balance Sheet as at 31/03/1992.
and
(e) you failed to ensure that the deals were put
through in a proper and systematic manner, with
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adequate supervision and control;
and
(f) you failed to ensure that a system of periodical
surprise verification of the securities was introduced
and meticulously followed;
and
(g) you failed to ensure that proper books of
accounts are maintained evidencing
receipt/delivery/movement of securities;
and
(h) you failed to get the panel of Brokers introduced
by you, approved by the Head Office, fixing
individual exposure limits, Broker-wise;
and
i) you failed to ensure that the BRs were issued in
the form prescribed by IBA;
and
(j) you failed to report individual transactions
carried out under PMS to the Head Office, furnishing
full details;
and
(k) you failed to ensure that periodical reports are
sent to the PMS clients as prescribed in the
guidelines issued by SEBI.
That when certain discrepancies in the holding of
securities were observed, you allowed/caused to be
allowed to effect adjustment entries in an unusual
manner, as per details more fully described under sl.
no. 6 in the Statement of Imputations of Misconduct
mentioned herebelow.
You thus exposed the Bank to unnecessary/avoidable
financial risks and litigation, damaging the overall
image of the Bank and its reputation.
By your above acts, you failed to discharge your
duties with utmost integrity and honesty and
exhibited conduct unbecoming of the status of a
Bank Officer and thus contravened Regulation No.
3(1) read with Regulation NO. 24 of Syndicate Bank
Officer Employee's (Conduct) Regulations, 1976."
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2. The petitioner by reply dated 12/04/1993 denied
the charges as the presumptive and baseless. A detailed explanation
was offered by the petitioner in response to the said Articles of
Charges.
3. The petitioner was served with the second charge-sheet
on 13/05/1993. The said charge-sheet was similar to the first
charge-sheet but for different transactions. The petitioner filed a
detailed reply to the second charge-sheet on 10/07/1993.
4. The preliminary hearing in respect of the first charge-
sheet was held on 20/09/1993. The Presenting Officer filed list of
witnesses and documents on behalf of the Disciplinary Authority in
support of the charges levelled against the petitioner. The Enquiry
Officer allowed the inspection of the original documents to the
petitioner. The preliminary hearing in respect of the second charge-
sheet was held on 28/01/1994. The petitioner on 21/02/1994
informed the Enquiry Officer that though inspection was given, the
inspection of the documents which are listed in the said
communication dated 21/02/1994 was not given. The petitioner
requested for the said inspection. The petitioner also submitted a list
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of witnesses and documents in support of his defence. The petitioner
called upon the Enquiry Officer to direct the Management to provide
him documents on which the petitioner wants to rely for his defence.
5. The Enquiry Officer called upon the Management to
obtain the permitted documents from the custodians and offer them
for inspection to the petitioner by 30/04/1994. In respect of second
charge-sheet also the petitioner by letter dated 21/02/1994
requested that inspection of the relevant documents may be given.
By order dated 16/04/1994, Enquiry Officer was changed and one
Shri P.M. Rangaswami Commissioner for Departmental Enquiry was
appointed as Enquiry Authority. On 19/05/1994, it was observed by
the Enquiry Officer that the inspection of certain documents has not
been offered to the petitioner. The Presenting Officer was directed to
immediately make these documents available to the petitioner on or
before 26/05/1994. By order dated 08/10/1994 again there was
change of the Enquiry Officer and original Enquiry Officer Shri
S.C.Gupta was reappointed. On 30/10/1994 during the course of the
hearing of the enquiry request was made by the Presenting Officer for
time to make available the balance documents for inspection and
handing over the copies of the documents to the petitioner. The
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request made by the petitioner for the defence witnesses was
permitted. The regular hearing enquiry was fixed from 30/11/1994.
6. By order dated 04/11/1994, the Enquiry Officer fixed
schedule of the enquiry. The petitioner along with his defence
assistant and the Presenting Officer were directed to participate in
the regular hearing without fail otherwise the hearing was to proceed
exparte. The summons to the prosecution witnesses were sent to the
Presenting Officer and the summons for the permitted defence
witnesses were to be sent to the petitioner. The prosecution and
defence documents were to be taken on record on 24/11/1994. The
prosecution witnesses were to be examined on 30/11/1994,
01/12/1994 and 02/12/1994 and defence witnesses were to be
examined on 03/12/1994 and 04/12/1994. In the said order, it was
stated that the regular hearing of the case shall not be adjourned on
any plea.
7. The petitioner by letter dated 16/11/1994 informed the
Enquiry Officer that he was denied opportunity to inspect original
documents. Only photocopies of the documents which were made
available for the inspection were produced for verification and not
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the originals. The petitioner expressed apprehension that enquiry
would proceed without making available permitted documents and
originals thereof for verification. The Defence Assistant of the
petitioner requested that the hearing of the enquiry scheduled on
24/11/1994 and from 30/11/1994 to 04/12/1994 as per the notice
dated 04/11/1994 may be adjourned for a fortnight on account of
personal reasons and office exigencies. The Defence Assistant was
not available on the said dates. It was also mentioned that in case
the adjournment is not possible, the department will treat the
Defence Assistant's offer as withdrawn. (Learned Counsel for the
petitioner in the course of his submissions pointed out that the
Defence Assistant is from Bangalore whereas the enquiry was to be
held at Bombay). The Enquiry Officer proceeded with the enquiry on
24/11/1994. It was indicated that only the documents are proposed
to be taken on record on 24/11/1994. The examination of the
witnesses would start from 30/11/1994. It is recorded in the
proceedings that the petitioner stated that if he is able to get another
Defence Assistant or if he is able to persuade Shri H.S. Kamath the
present Defence Assistant to act as his Defence Assistant, he will
participate in the enquiry from 30/11/1994 onwards. Alternatively,
he will inform his inability to participate from 30/11/1994. On
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30/11/1994, the hearing of the enquiry proceeded and deposition of
Shri B.N. Pai - Assistant General Manager, Syndicate Bank was
recorded.
8. The petitioner by his letter dated 01/12/1994 referred to
the order dated 30/11/1994 and conclusion drawn by the Enquiry
Officer that the petitioner is not making serious efforts in getting a
Defence Assistant. The petitioner protested against the conclusion
drawn by the Enquiry Officer that the petitioner wanted to delay the
enquiry as much as possible. In the said letter, the petitioner made
his position clear the contents of which are reproduced as under :
"1. I had till now never sought any adjournment of any session of
the enquiry which, was more than half a dozen times.
2. In my earnestness, I have, even gone beyond the time
stipulated by you, to facilitate PO's giving me the documents by
continuing to go to him each day till 16 th of Nov., though you had
ordered completion of this stage by 12th November, 1994.
3. I had gone back to Disciplinary Authority for assistance in
choosing a defence assistant in conformity with Bank's own
Disciplinary Regulations and not as a device for delay.
4. Even before a response from Disciplinary Authority was
received by me on my communication dated 23 rd November, 1994
and 25th November, 1994. You have, relying on the PO' s demands
gone ahead with the enquiry as exparte.
5. PO's offer of one month time was not holding out any
assurance of complying with my request made to Disciplinary
Authority and therefore unacceptable to me.
6. I may draw your attention to the fact that my defence
assistant was not granted 15 days adjournment of the hearing by
PO whereas he stated that he was prepared for 1 months time on
30th with full knowledge as to my difficulty or physical
impossibility of accomplishing the task of acquiring a fresh
suitable defence assistant at such short notices. Such contrary
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positions on the part of P.O. have not drawn from you any
inferences of deliberate attempt on his part to deprive me of a
proper permitted assistance in the enquiry.
7. Please note that unlike many executive in the Bank who
over these kind of eventualities by continuing as members of any
Trade Unions, I am not a member of any Officers Unions and
engaging such professional defence assistants is also not possible
for me.
8. Being in SEGS -V I would not like to engage a lower ranked
official also besides the uniqueness of the transactions will require
vast and quick grasp of the subject making my choise of Defence
Assistant difficult.
In view of above, your passing orders dated 30.11.1994 has
been quite unfair to me and I am therefore, once again renewing
my request for adjournment of the hearing to an appropriate
future date."
9. On 03/12/1994, the Enquiry Officer forwarded to the
petitioner copies of depositions of the Management witnesses and
order sheets in connection with the departmental enquiry held
against him from 30/11/1994 to 02/12/1994.
10. The Enquiry Officer proceeded with the enquiry and on
04/12/1994 it was recorded by him that the petitioner did not
produce any more listed witnesses and prosecution case was closed.
In all three witnesses were examined. It was recorded that the
petitioner did not attend the enquiry.
11. The Presenting Officer submitted his written brief in the
first charge-sheet on 17/01/1995 as also written brief in the second
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charge-sheet. The petitioner by his communication dated
25/03/1995 pointed out to the Disciplinary Officer the circumstances
which compelled the petitioner to stay away from the enquiry
proceedings. He therefore requested that the denovo enquiry be
held so as to enable the petitioner to prove his defence.
12. The enquiry report dated 13/03/1995 in the first charge-
sheet was received by the petitioner on 25/04/1995 and thereafter
the enquiry report dated 25/04/195 / 04/05/1995 in the second
charge-sheet. The petitioner on 23/05/1995 replied to the first
charge-sheet and contended that the enquiry is against fair play and
natural justice and the same is therefore vitiated. The petitioner
pointed out that the enquiry was conducted in his absence. The
petitioner pointed out the circumstances necessitating his staying
away from the enquiry which were mentioned in his earlier letters
dated 23/11/1994, 25/11/1994, 01/12/1994 and 25/03/1995. The
petitioner requested for holding of denovo enquiry. Similar reply
was given by the petitioner to the enquiry report in the second
charge-sheet. As regards the first charge-sheet, by an order dated
26/06/1995 passed by the Disciplinary Authority, the petitioner was
dismissed from service. In respect of second charge-sheet, by an
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order dated 26/06/1995 passed by the Disciplinary Authority, the
petitioner was dismissed from service. The appeals filed by the
petitioner against the orders of dismissal also came to be rejected by
the Appellate Authority vide order dated 26/12/1997.
13. Learned Counsel for the petitioner invited our attention
to the charge-sheet and pointed out that serious charges were
levelled against him. In the submission of the learned Counsel for
the petitioner the gravity of the charges necessitated him to be
represented by the Defence Assistant during the course of the
enquiry. The representation by the Defence Assistant under rule is
valuable right of the petitioner. According to the learned Counsel for
the petitioner the enquiry was conducted with undue haste and in
complete breach of the principles of natural justice. Refusal to
adjourn the hearing under the circumstances was harsh and amounts
to denial of grant of fair opportunity to the petitioner to defend his
case.
14. Learned Counsel for the petitioner contended that the
petitioner has been discharged in the criminal proceedings initiated
against him and therefore, on this count itself the departmental
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enquiry can not stand as charges in the criminal proceedings are
virtually the same as in the departmental enquiry. Various other
contentions were raised by the learned Counsel for the petitioner, but
having regard to the facts of the present case we are confining
ourselves to examine as to whether refusing the request of the
petitioner to adjourn the proceedings and thereby not granting him
sufficient time to seek assistance of the Defence Assistant amounts to
violation of the principles of natural justice thereby denying him a
reasonable opportunity to participate in the enquiry and defend
himself.
15. Learned Counsel for the respondents on the other hand
supported the orders of dismissal. In his submission charges are
grave and serious. Though adequate opportunity was given to the
petitioner, he refused to participate in the enquiry proceedings. The
Enquiry Officer by communication dated 04/11/1994 fixed the
schedule of hearing which the petitioner was well aware, therefore, it
cannot be said that the petitioner was denied reasonable opportunity
of defending himself. According to the learned Counsel for the
respondents, the petitioner was interested in delaying the
proceedings and therefore, the Enquiry Officer was justified in
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proceeding with enquiry. Learned Counsel for the respondents
submitted that the scope of interference by the High Court in the
enquiry proceedings is very limited. Based on the material on record,
the Enquiry Officer has recorded findings of fact and held the charges
as proved.
16. Learned Counsel for the respondents invited our
attention to the observations of the Appellate Authority where it is
observed that it is evident from the proceedings of the enquiry that
the petitioner himself has deliberately stayed away from the enquiry
with a view to delay the proceedings and to avoid disciplinary
exercise. In his submission, the petitioner has committed serious
irregularities in conducting security transactions and money
marketing operations while functioning as Chief Manager/Assistant
General Manager of the respondent Bank. In his submission when
the petitioner has abandoned proceedings and himself has chosen not
to participate in the enquiry, it cannot be said that the enquiry is
conducted in breach of the principles of natural justice.
17. Learned Counsel for the respondents has relied upon
various decisions of the Apex Court in support of his proposition that
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the High Court while exercising the judicial review does not act as an
Appellate Authority. Its jurisdiction is circumscribed and confined to
correct errors of law.
18. Learned Counsel also placed reliance on the decision of
the Apex Court in the case of Regional Manager, U.P.S.R.T.C.
Etawah & ors. Vs. Hoti Lal & anr. (2003) 3 Supreme Court Cases
605 where the Apex Court has observed that misconduct in cases
where the person deals with public money or is engaged in financial
transactions or acts in a fiduciary capacity has to be dealt with iron
hands.
19. Having considered the rival submissions advanced by the
learned Counsel, we are of the opinion that the petitioner has been
deprived of a fair and reasonable opportunity to participate in the
enquiry which has resulted in manifest miscarriage of justice. It is
material to note and as is the submission of the learned Counsel for
the respondents, the charges levelled against the petitioner are grave
and serious in as much as the charges related to petitioner
committing serious irregularities in conducting security transactions
and money marketing operations while functioning as Chief
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Manager/Assistant General Manager of the respondent Bank. In the
departmental enquiry, the petitioner was to be proceeded against
with almost 7 charges in respect of first charge-sheet and 9 charges in
respect of the second one. Learned Counsel for the respondents is
absolutely justified in contending that misconduct in cases where the
person deals with public money or is engaged in financial
transactions or acts in a fiduciary capacity are to be dealt with iron
hands. The departmental enquiry which have been proceeded
against the petitioner ought to have been conducted in observance of
the principles of natural justice and after giving full opportunity to
the petitioner to participate in the enquiry.
20. First and second charge-sheets were issued on
13/05/1993. The petitioner has duly replied to the said charge-
sheets denying the charges levelled against him. The petitioner
requested for verification of the documents relied by the respondents.
Even as regards the second charge-sheet, the petitioner has filed a
detailed reply on 10/07/1993. On the first date of hearing on
20/09/1993 in respect of the first charge-sheet the Presenting Officer
was to supply photostat copies of the listed documents. Inspection of
the original document was also allowed. The petitioner by his letter
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dated 21/02/1994 informed the Enquiry Officer that the original
documents were not given for inspection. On 02/03/1994, the
Enquiry Officer recorded that the Presenting Officer should obtain
permitted documents from the custodians and offer them for
inspection to the petitioner by 30/04/1994. On 16/04/1994, the
Enquiry Officer was changed and new Enquiry Officer was appointed.
The petitioner submitted the list of defence documents and witnesses
in the second charge-sheet on 21/07/1994. On 08/10/1994, the
second Enquiry Officer was changed and the original Enquiry Officer
was brought back. It is only on 30/10/1994 that hearing of the
regular enquiry was then conducted and record indicates that the
Presenting Officer requested for time to make available balance
documents for the inspection and for making available copies of the
documents to the petitioner. It was stated that the defence
documents can be made available to the petitioner only on
12/11/1994 and that the hearing was fixed on 30/11/1994. The
petitioner by his letter dated 16/11/1994 protested against the action
of the Management in not giving him opportunity of inspection of
original documents. He therefore requested that the Presenting
Officer should produce the documents requested and inspection of
the original documents should be given. On 18/11/1994 the Defence
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Assistant of the petitioner made a request for adjourning the hearing
for a fortnight as he could not attend the hearing fixed on
24/11/1994 and from 30/11/1994 to 04/12/1994 as per notice of
enquiry dated 04/11/1994. On 24/11/1994, the petitioner informed
the Enquiry Officer that if he is able to get another Defence Assistant
or if he is able to persuade Shri H.S.Kamath to act as his Defence
Assistant, he will participate in the enquiry from 30/11/1994
onwards. Alternatively, he would inform about his inability to
participate on 30/11/1994. In the order sheet dated 30/11/1994 it
is recorded that the petitioner is not making any serious effort in
getting the Defence Assistant and the method adopted by him in
securing Defence Assistant for this enquiry is not appropriate. It is
recorded that the petitioner merely wants to delay the enquiry as
much as possible. In these circumstances, enquiry was to proceed
exparte if the petitioner did not participate in the enquiry on
30/11/1994. On 01/12/1994 the petitioner protested against the
proceeding of the enquiry and pointed out that he had never sought
any adjournment of any session of the enquiry which was previously
held on more than half a dozen times. He pointed out that his
Defence Assistant was not given 15 days adjournment of the hearing.
The Disciplinary Authority examined 3 witnesses on behalf of the
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Bank. The petitioner by his letter dated 25/03/1995 again made a
request for holding denovo enquiry from the stage the enquiry Officer
had conducted exparte enquiry to enable the petitioner to prove his
defence.
21. In our opinion, the right to be defended by the Defence
Assistant during the course of enquiry is a valuable right of the
employee. Right from the date of issuance of first charge-sheet dated
12/04/1993 upto 30/10/1994, the petitioner attended the enquiry.
Nothing is there on record to indicate that the enquiry was adjourned
at his behest. On the contrary, it is at the instance of the Presenting
Officer himself that the during of course hearing longer time was
granted by the Enquiry Officer and the hearing was fixed on
30/11/1994. From the record, it appears that it is for the first time
the Defence Assistant requested that hearing to be held on
30/11/1994 should be adjourned by a fortnight. The petitioner
could not be reasonably expected to engage a Defence Assistant
within such a short span of time to represent him in the enquiry
proceedings when such serious charges are levelled against him. The
approach of the Enquiry Officer in coming to the conclusion that the
petitioner has abandoned the enquiry merely because the petitioner
wp 5133.98.final doc
requested for adjournment is completely unjustifiable. According to
us, refusal on the part of the Enquiry Officer to accede to the request
of the Defence Assistant for adjourning the enquiry by a fortnight
itself is unreasonable. The respondents have acted completely in
breach of principles of natural justice by not granting sufficient time
to the petitioner to engage a Defence Assistant. Even on 25/03/1995
the petitioner requested for a denovo enquiry from the stage when
the enquiry was conducted exparte. The contention of the
respondents that two other officers were proceeded against in this
enquiry which was a common proceeding & therefore as the
petitioner was well aware of the proceedings, it is the petitioner who
deliberately chose to stay away, is a contention which can only be
stated to be rejected. The charges levelled against the petitioner are
in respect of the transactions which according to the respondents the
misconduct is attributable to the petitioner. It is therefore incumbent
upon the respondents to observe the principles of natural justice
insofar as the petitioner is concerned even though the enquiry
proceedings may be common.
22. In our opinion, therefore, the petitioner was not given
sufficient opportunity and fair chance to defend his case. The
wp 5133.98.final doc
conclusion of the Enquiry Officer that the petitioner has deliberately
stayed away from the departmental enquiry and that he has
abandoned the proceedings is incorrect and unfair and cannot be
countenanced. We, therefore, have no hesitation in holding that the
impugned orders of dismissals are liable to be set aside.
23. In ordinary course, we would have remanded the matter
back to the Enquiry Officer for conducting the enquiry from the stage
exparte exquiry was ordered. However, during the pendency of the
Petition, the petitioner expired and his legal heirs have been brought
on record. Mr.Ramamurthy on instructions has fairly conceded that
he would not press the claim for back wages and the petitioners
would be satisfied with the terminal dues. In the light of above
discussion, we are inclined to pass the following order which would
meet the ends of justice.
O R D E R
(i) The Writ Petition is allowed in terms of prayer clause (a) which
reads thus :
"(a) that the Hon'ble Court be pleased to a Writ of Certiorari or a
writ in the nature of Certiorari or other appropriate writ, order
of direction and call for the record and proceedings of the two
impugned orders of Dismissal both dated 26/06/1995 and two
wp 5133.98.final doc
Appellate Orders, both dated 26/12/1997 and after examining
the legality and/or the validity of the said orders, quash and set
aside the same."
(ii) The petitioner may be treated as in continuous service till the
date of his death or superannuation whichever is earlier and
terminal benefits including provident fund, gratuity, pension
may be paid to the petitioners.
(iii) The arrears of the retirement dues be paid to the
petitioners within a period of 3 months from today.
(iv) In view of the concession given by learned Counsel for
the petitioner, there will be no order for back wages.
23. Rule is accordingly made absolute in the above terms
with no order as to costs.
(M.S.KARNIK, J.) ( A.A.SAYED, J.)
