Shri S.M. Gupta, S/O Shri N.M. ... vs Oriental Bank Of Commerce, ...
2002 Latest Caselaw 2110 Del

JUDGMENT

Vijender Jain, J.

1. Petitioner has filed this writ petition aggrieved by the order of termination of his services. Petitioner was dismissed from service on 25th May, 1995 while he was working as a Manager in Oriental Bank of Commerce. The petitioner has challenged the suspension order dated 16th October, 1993 as well as the report of the inquiry officer dated 25th March, 1995 which was based on the charge-sheet issued to the petitioner on 29th July, 1994.

2. The whole controversy revolves round the inquiry report as well as the decision of the disciplinary authority and the appellate authority. The respondents issued a charge sheet vide memo dated 29th July, 1994. Petitioner sent a representation on 16th August, 1994 stating, inter alia, that in view of the complaint lodged with the Police Station Connaught Place, and FIR having been registered against the petitioner, the departmental inquiry be stayed as grave prejudice to the defense of the petitioner would be caused in the criminal case if inquiry was permitted to continue. The next grievance of the petitioner was that the said representation of 16th August, 1994 was a request by the petitioner to the respondent for not holding the inquiry but same was treated as a statement of defense in reply to the said charge-sheet.

3. Mr. Arvind Nayar, learned counsel for the petitioner has vehemently contended that this was so construed by the inquiry authority in spite of specific plea taken by the petitioner in his representation to the disciplinary authority against his termination as well as to the appellate authority in the statutory appeal neither the disciplinary authority nor the appellate authority afforded an opportunity at that stage to the petitioner to file a statement of defense. Therefore, it has been contended before me by the learned counsel for the petitioner that the order suffers from vires of non-application of ind and denial of principle of natural justice. It was further contended that even the inquiry officer has wrongly recorded the proceedings and a representation to that effect was made to the respondent but neither the disciplinary authority nor the appellate authority took note of the same and simply representation of the petitioner was dismissed by the disciplinary authority and the appeal was also dismissed by the disciplinary authority. The case of the petitioner is that the pettier has sent a letter dated 9th September, 1994 even to the inquiry officer, inter alia, bringing to his notice that the representation dated 16th August, 1994 of the petitioner was taken as a statement of defense whereas the said letter was simply a request for withdrawing the inquiry proceedings pending criminal proceedings initiated by the bank against the petitioner.

4. On the other hand, Mr. Jagat Arora, learned counsel for the respondent has contended that the petitioner has filed two writ petitions in this court. The earlier writ petition was filed for the same relief, i.e. the prayer of the petitioner for engaging the services of a lawyer was declined and, therefore, the petitioner cannot make any grievance with regard to the appointment of lawyer. The said writ petition was dismissed on 21st November, 1994. Petitioner filed another writ petition on 28.11.1994 which was dismissed as withdrawn, said writ petition was filed, inter alia, praying for an order directing the respondent/Bank to appoint some other inquiry authority in place of Mr. S.N. Bhatnagar who rendered the inquiry report. Mr. Arora then contended that ample opportunity was granted to the petitioner and if the petitioner has chosen to stay away from the inquiry proceedings, he cannot make any grievance of the same at a later stage. Mr. Arora has contended that in any case the petitioner knew about the charges, neither before the inquiry authority nor before the disciplinary authority and nor before the appellate authority he pleaded anything in his defense. Therefore, no prejudice has been caused to the petitioner. In support of his contention, Mr. Arora has relied upon State Bank of Patiala and Ors. v. S.K. Sharma . Mr. Arora further contended that all the documents and exhibits were filed by the presenting officer before the inquiry officer and, therefore, no grievance can be made by the petitioner that the same were not supplied to him. Mr. Arora has further contended that this Court while exercising jurisdiction under Article 226 of the Constitution of India will not disturb the finding of facts determined by the inquiry officer. Mr. Arora has further contended that even otherwise if the respondent had come to a conclusion by holding an inquiry that the integrity of the petitioner was doubtful, in the banking industry it is of paramount importance that the person working at such a position should be honest and diligent and in support of his argument has relied upon Syndicate Bank v. Bakhtawar Singh 2001 (90) FLR 50 and Union Bank of India v. Vishwa Mohan 1998 (79) FLR 327.

5. Lastly Mr. Arora has contended that as per Oriental Bank of Commerce Officer Employees (Discipline & Appeal) Regulations, 1982 it was incumbent upon the delinquent employee to have filed statement of defense within fifteen days. Having not exercised that option the petitioner cannot make any grievance of the same at a later stage.

6. I have heard the arguments of the learned counsel for the parties at length. There is no dispute with the proposition of law as enunciated in Union Bank of India's case (supra). There is also no dispute that this Court while exercising its jurisdiction under Article 226 of the Constitution of India will not interfere lightly on the findings of fact arrived at by the inquiry authority or by the disciplinary authority. It is in the domain of the respondent. But that argument cannot be stretched in the case where report of the inquiry authority has violated the principle of natural justice or shown complete non-application of mind because that will result in manifest injustice to the charged officer. It may amount to condemning a person without hearing.

7. In response to the show cause memo issued in July 29, 1994 a representation was sent to the bank by the petitioner, inter alia, praying the respondent authority that the inquiry be kept in abeyance as the defense of the petitioner will be prejudiced in view of criminal cases pending against him. It was for the respondent to have allowed the request or to have declined it. By no stretch of imagination a representation of this kind could be treated as a statement of defense. The inquiry authority at pages 91-92 of the paper-book while dealing with the defense case, conscious of the fact that the petitioner has not presented any defense recorded as follows:

".....Thus Shri Shree Mohan Gupta has not presented any defense in spite of being afforded full opportunity for doing so. However, from the various letters written to the Inquiring Authority and copy of the statement of defense dated 16.8.94 given by Shri Shree Mohan Gupta to the Memorandum No. 2567 dated 29.7.94 issued to him by he General Manager, Disciplinary Authority and which has been sent along with the endorsement to letter dated 22.8.94 of the General Manager, Disciplinary Authority appointing me as Inquiring Authority, the following can be concluded the defense of Shri Shree Mohan Gupta....."

8. While further dealing with the said representation in further paragraph of the report again the inquiry authority has based its report on the letter dated 16th August, 1994 treating the same as statement in defense, the same was treated as unsatisfactory. It was for the inquiry authority to have proceeded with the inquiry on the basis of the material available which was placed by the presenting officer ex parte even if a delinquent employee does not participate in the inquiry because it is a settled principle of law that a delinquent employee cannot hold the management to ransom by not participating in the inquiry. But principle of natural justice is violated if there is a deliberate attempt not to give an opportunity to the delinquent officer to hear his defense. Here is a case where in spite of the fact that no defense statement was filed, the inquiry authority took a letter/representation of the petitioner as statement of defense. That makes the case worse for the respondent as it depicts complete non-application of mind by the inquiry authority. Not only that the petitioner represented to the inquiring officer but when the order of termination was communicated to the petitioner in response therto he filed a representation to the disciplinary authority which is at page 239 of the paper-book. In para 1 of the said representation again he took the plea that he was not given proper and adequate opportunity to defend his case. In para 5 at page 243 of the paper-book he made a specific averment, which is to the following effect :

".....According to provisions of Regulation 8, I was entitled to submit statement of defense to the said Articles of Charge but since criminal case has been initiated vide FIR No. 46/94 dated 22.1.94, I made a request to not to take further steps to hold disciplinary proceedings till the criminal case is concluded. I expected that the management would take considerate view to be consistent with the judicial pronouncements in this behalf and awaited reply thereto. However, it was strange to note that my representation dated 16.8.1994 was not considered for the aforesaid purposes of keeping the disciplinary proceedings in abeyance till the conclusion of the criminal case. Instead it was treated as a statement of defense. Apparently I was denied opportunity to submit proper and exhaustive statement of defense in accordance with the regulations before appointing the Enquiry Officer....."

9. Again in para 9, the petitioner took specific objections that his letter dated 24.11.1994 which he gave to the inquiry authority in person, has not been taken into consideration and the inquiry authority has fabricated the proceedings. In para 12 of the said representation again a specific plea was taken by the petitioner that he was denied opportunity to submit statement of defense.

10. I have perused through the order passed by the disciplinary authority, which is at page 309 of the paper-book. There is not a whisper by the disciplinary authority to the basic objection which had been raised by the petitioner right from day one, when he submitted his representation dated 16.8.1994. Similar is the case with the appeal decided by the appellate authority.

11. I have perused through the appeal filed by the petitioner which is at pages 257-258 and 261 of the paper-book. The petitioner has taken same grounds for challenging the order of termination. Adverting to the writ petition filed by the petitioner with regard to the change of inquiry officer which was dismissed as withdrawn, that will not come in the way of the petitioner as the inquiry authority gave its report on 26th March, 1995 whereas the writ petition came up for hearing in the month of August, 1995 and petitioner withdrew the same as said petition has become infructuous as there was no stay granted by the Court and order of termination had come into existence. Petitioner has challenged the order of termination in the present writ petition.

12. As I have discussed above, inquiry authority, disciplinary authority as well as appellate authority has taken into consideration the representation of the petitioner dated 16.8.1994 as a statement of defense, same has done manifest injustice to the petitioner. he has been denied an opportunity of filing a statement of defense. The inquiry report which is the basis of the impugned order shows complete non-application of mind.

13. I have no hesitation in quashing the order of the disciplinary authority as well as appellate authority of terminating the services of the petitioner. Accordingly, I allow writ petition, make the rule absolute. petitioner shall be deemed to be in continued service with all consequential benefits. However, it will be open for the respondent if they so decide to continue the inquiry from the stage when it was left after giving an opportunity to the petitioner to file a statement of defense. The question of back wages may also be decided after the inquiry report is received by the respondent. however, a direction is issued that if the management wants to go for departmental inquiry, the same shall be concluded within a period of six months from today. Petitioner is directed to co-operate with the inquiry proceedings. Ordered accordingly.

14. Petition stands disposed of.