Bishamber Lal Kapur vs Allahabad Bank And Ors.
2002 Latest Caselaw 775 Del

JUDGMENT

Sanjay Kishan Kaul,J.

1. The petitioner who was employed with the respondent bank in the Middle Management Grade, Scale-II is aggrieved by the action of the respondent bank dismissing the petitioner from service. The petitioner has sought quashing of the order dated 4.12.98 passed by respondent No.2 stated to be affirming the order of dismissal dated 1.6.98.

2. The enquiry against the petitioner was based on allegation of defalcation of amounts and the petitioner was issued a charge sheet-cum-show cause notice on 7.4.84 and his services were terminated vide order dated 1.6.84 of the Assistant General Manager. The appeal against the same was rejected and the petitioner challenged the same by a Civil Writ Petition No.2513/84. This writ petition was partly allowed vide order dated 21.2.92 and the learned Single Judge quashed the order of dismissal against the petitioner on provisional basis.

3. The petitioner being still aggrieved by the said order preferred an appeal LPA No.33/92. During the pendency of the LPA a fresh enquiry was started which resulted in the order of dismissal dated 10.5.93. The said LPA was allowed on 9.11.95 setting aside the first order of dismissal dated 1.6.84 in to.

4. The petitioner filed a writ petition No.855/97 challenging the second order of dismissal dated 10.5.93 and in terms of order dated 7.9.98, the petitioner was directed to first avail of his remedy of appeal before the appellate authority. The petitioner thus preferred the appeal and the said appeal was dismissed by the appellate authority (Respondent No.2) on 4.12.98.

5. Learned counsel for the petitioner seeks to assail this order of the appellate authority and contends that the same has been passed without any application of mind in as much as it refers to the earlier order of the disciplinary authority dated 1.6.84. This reference is in the last paragraph of the order dated 4.12.1998. However a perusal of the said last paragraph shows that the appellate authority has noted that it is not inclined to interfere with the decision/order dated 10.5.93 passed by the Assistant General Manager and disciplinary authority and thereafter a reference is made to the fact that the same is vis-a-vis decision of the disciplinary authority dated 1.6.84 awarding a penalty of dismissal to the petitioner.

6. Thus in my considered view there is only reference to the earlier order and the petitioner cannot certainly seek to assail this mentioning to contend that the appellate authority has passed the order without application of mind even though there is a reasoned order of the appellate authority. It has find no force in this submission.

7. The contention of learned counsel for the petitioner that even the order of disciplinary authority dated 10.5.93 is contrary to law since it affirms the decision of the disciplinary authority dated 1.6.84 will not be sustainable. It is not doubt true that the order dated 10.5.1993 referred to the order dated 1.6.84 and stated it affirmed the same. However, after due process a detailed order has been passed on 10.5.93. There is no doubt that the disciplinary authority had to apply its mind afresh while passing the order dated 10.5.93 which in my considered view it has done. The mere fact that it stated that it was affirming the order dated 1.6.84 passed earlier by the disciplinary authority will not make the order dated 10.5.93 illegal though the said reference should not have been made since the disciplinary authority had applied its own mind by giving reasons in the order dated 10.5.93.

8. The second submission advanced by learned counsel for the petitioner is that the disciplinary authority is lower in rank to the appointing authority and thus the order of the disciplinary authority is bad in law. The learned counsel petitioner referred to the order dated 6.12.83 promoting the petitioner from Scale-I to Scale-II. The said promotion order states that the General Manager has been so pleased to promote the petitioner. Learned counsel thus contends that the General Manager becomes the appointing authority to this scale and thus the decision taken by respondent No.3 as the Assistant General Manager cannot be sustained in law. Learned counsel states that the earlier order dated 1.6.84 was passed by the Assistant General Manager and the subsequent order dated 10.5.93 also affirms the decision of the disciplinary authority dated 1.6.84.

9. It may be, however, noted that a circular dated 29.6.83 has been issued by the respondent bank amending the schedule of the Allahabad Bank Officer Employee (Discipline & Appeal) Regulations 1976 (hereafter referred to as the said Regulations) and in terms of the said amended schedule officers in the Scale-I to III are governed by the disciplinary authority of DGM/AGM.

10. Learned counsel for the petitioner referred to the judgment of the Supreme Court in Krishna Kumar vs. Divisional Assistant Electrical Engineer and others 1980 SCC(L&S) 1 to advance his submissions. The Supreme Court while dealing with the issue of violation of Article 311(1) of the Constitution of India held that a person could not be removed from service by an authority subordinate in rank to the appointing authority and that the subsequent delegation of power to the subordinate authority to make appointment to the post in question would not confer power to remove the person appointed before such delegation. A reference was also made to the judgment in Krishan Murari Lal Sehgal vs. State of Punjab to the same effect.

11. Learned counsel for the respondent bank, on the other hand, referred to the said regulations and more specifically regulation 3(g) of the said Regulations to contend that the disciplinary authority would be the one as provided under the said Regulations. Regulation 3(g) defines the disciplinary authority to mean the authority specified in the schedule which is competent to impose on an officer employee any of the penalties specified in Regulation 4. Regulation 4 refers to the penalties and includes both minor and major penalties. The punishment imposed on the petitioner falls within Regulation 4(h). Learned counsel for the respondent referred to the circular of respondent bank dated 29.6.83 mentioned aforesaid to contend that in terms of the amended schedule the Assistant General Manager is the disciplinary authority for officer in Scale-II which is the scale of the petitioner. It is thus contended that the authority as specified in the Regulations has acted as the disciplinary authority in the case of the petitioner and there was no lack of jurisdiction in the disciplinary authority. Learned counsel also contends that this aspect has been duly considered by the appellate authority and does not call for any interference.

12. Learned counsel for the respondents contended that the judgments referred to by the learned counsel for petitioner were cases under Article 311(1) of the Constitution of India and the said principles would not apply to the case of the petitioner who is governed by the specific regulations.

13. Learned counsel for the respondents referred to the judgment of the Supreme Court in Allahabad Bank vs. Prem Narain Pandey and others in which these very Regulations have been considered. The Supreme Court noted that these Regulations have been framed by the respondent bank in exercise of powers conferred by section 19 of the Banking Companies (Acquisitio and Transfer of Undertaking) Act, 1970 and have been framed in consultation with Reserve Bank of India and with previous sanction of the Central Government. The Supreme Court noted that the schedule to the regulations provided for the disciplinary authority which could impose penalties specified in Regulation 4 and in view of the amended schedule found that the regulations laid down that for officers of Scale-I to III the disciplinary authority is the DGM/AGM and thus held that both the said authorities could act as the disciplinary authority.

14. Learned counsel for the respondents also referred to the judgment of the Supreme Court in State Bank of India vs. S. Vijaya Kumar . The Supreme Court was concerned with the issue of competency of the disciplinary authority in case of bank officials. The Supreme Court held that where the delinquent officer was appointed by the Executive Committee and was dismissed by the Chief General Manager, an authority lower than Executive Committee, the same was not contrary to law as at the relevant time the Chief General Manager had become the appointing authority under the amended regulations in respect of the delinquent officer. The Supreme Court was of the view that to determine the competency of the authority the date on which the order is passed is the relevant date.

15. A similar view was expressed by the Supreme Court in Satinder Singh Arora vs. State Bank of Patiala and others 1992 Supp(2) SCC 224 where the Supreme Court expressed its view that there was a difference between the expressions "appointing authority" as the authority competent to remove under the bank regulations and authority not subordinate to that "by which he was appointed" under Article 311(1) of the Constitution of India. The Supreme Court held that the bank employees were not entitled to claim protection under Article 311 of the Constitution of India since the said Regulations govern those belonging to services to which the bank employees do not belong and they are governed by their own regulations. The Supreme Court did not find any violation of Article 14 of the Constitution of India with the regulations of the bank.

16. In rejoinder the learned counsel for the petitioner referred to the judgment of the learned Single Judge of the Punjab & Haryana High Court in Bank of India vs. Presiding Officer, Central Government Industrial Tribunal and others 1994(4)SLR 121 to contend that it is not Article 311 of the Constitution of India alone which prohibits dismissal or removal of employees by an authority subordinate to the appointing authority but the same is based on the age old recognised relationship of master and servant which is the integral part of service jurisprudence. Learned counsel for the petitioner also referred to the judgment of the Supreme Court in MCD vs. Ram Pratap Singh where it was held while dealing with the authority empowered to dismiss an officer subjected to dismissal that rank cannot be delegated and therefore the delegate, if he is subordinate, cannot arrogate to himself the power to dismiss which the original appointing authority enjoyed.

17. The aforesaid discussion of the legal principles as laid down by the Supreme Court, in my considered view, clearly establish that the principles under Article 311 of the Constitution of India will not ipso facto apply to the bank officials. The bank officials have to be governed by their regulations since specific regulations have been framed in this behalf. The Supreme Court has clearly laid down this principle in State Bank of India's case (supra) and Satinder Singh Arora's case (supra). Not only this in State Bank of India's case (supra) the Supreme Court has held that to determine the competency of the authority it is the date on which the order is passed which is relevant. Admittedly the Assistant General Manager did possess the requisite authority at the time when the order was passed as the disciplinary authority. The contention of the learned counsel for the petitioner that there was subsequent delegation cannot be sustained since the amendment to the schedule was made in pursuance to the circular dated 29.6.1983. The first time the order was passed by the disciplinary authority on 1.6.84 and second time on 10.5.1993. Thus in my considered view the arguments advanced by learned counsel for the petitioner would run contrary to the settled principles of law as enunciated by the Supreme Court mentioned aforesaid. I am also, with respect, unable to agree with the views expressed by the learned Single Judge in Bank of India's case (supra). The same runs contrary to the law laid down by the Supreme Court in State Bank of India's case (supra) and Satinder Singh Arora's case (supra).

18. I am thus of the considered view that the Assistant General Manager which acted as the disciplinary authority was fully empowered under the Regulations of the bank to take action against the petitioner and was the competent disciplinary authority.

19. The third limb of the submission of learned counsel for the petitioner is that the Regulation of the Bank could not be applicable to the petitioner as there was no employer-employee relationship after the order dated 1.6.84 had been passed and thus no enquiry could have been proceeded further. In my considered view this argument is fallacious since the learned Single Judge, in terms of the order dated 21.2.92 while partly allowing the petition had directed the respondent bank to conduct the enquiry in accordance with the said Regulations. The fact that ultimately in the LPA the Division Bench found that the direction of the learned Single Judge to provisionally maintain the earlier orders of disciplinary authority pending proceedings under the Regulations could not be sustained would be of no assistance to the petitioner to advance his plea. The employer-employee relationship did exist between the petitioner and the respondent bank and the action taken against the petitioner was in pursuance to that relationship. giving reasons in the order dated 10.5.93.

20. The fourth aspect agitated by learned counsel for the petitioner is the lack of proper defense assistance. Learned counsel for the petitioner contended that the petitioner wanted the assistance of a legal practitioner and the same was rejected on the ground that Regulation 7 prohibited the assistance of a legal practitioner. Learned counsel for the petitioner submitted that the said regulation had no application to the petitioner in view of his earlier submission that there was no employer-employee relationship. However, while considering this submission I have found no force in the submission of the learned counsel for the petitioner that there is no employer-employee relationship. In view thereof the plea of lack of assistance of a legal practitioner would not hold good since the same is contrary to the Regulations.

21. Learned counsel for the petitioner has also referred to the fact that the Presenting Officer of the respondent bank was a legal expert since he had handled a number of cases. At the same time the petitioner was denied the assistance of a former employee Mr. S S Anand on the ground that the same was not permitted while the assistance one Mr. J P Seth was denied on the ground that he was already conducting two enquiries.

22. The issue of taking assistance of an ex-employee arises out of Regulation 7 which is 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."

23. A reading of the aforesaid regulation would show that what is permitted is for an officer to take assistance of any other officer employee but there is no permission for seeking assistance of an ex-employee. Thus the plea of the petitioner was contrary to the Regulations.

24. In so far as the assistance of an employee who is conducting two enquiries the note to the aforesaid regulation prescribes as under:-

"Note: "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."

25. Thus seeking assistance of an ex-employee who is already handling two disciplinary cases is barred under the Regulations. The object of this appears to be to avoid delays in disciplinary proceedings since if the same officer is giving assistance in number of cases, the time frame for completion of departmental proceedings is liable to be affected.

26. Learned counsel for the petitioner, however, contended that on the one hand a bar was created for seeking assistance of an officer employee already handling two cases while on the other hand there is no such baron the Presenting Officer. This contention was raised to advance the submission of learned counsel for the petitioner that the Presenting Officer was an expert person handling a number of cases while such benefit was denied to the petitioner.

27. Learned counsel for the petitioner referred to the judgment of Supreme Court in The Board of Trustees of the Port of Bombay vs. Dilipkumar Raghavendranath Nadkarni and others where the Supreme Court held that in order to have fair play in action where a delinquent officer is pitted against a legally trained mind in a domestic tribunal, the denial of permission to him to appear through a legal practitioner would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated. The Supreme Court while referring to the ambit of Article 21 of the Constitution of India held that the expression 'life' does not merely connote animal existence or a continued drudgery through life but has a wider meaning and where the departmental enquiry is likely to adversely affect the representation or livelihood of a person, some of the finer graces of human civilisation which make life worth living would be jeopardised and the same can be put in jeopardy only by law which inheres fair procedures.

28. Learned counsel for the petitioner referred to the judgment of the Supreme Court in J K Aggarwal vs. Haryana Seeds Development Corporation Limited and others which also held that in a domestic enquiry where a Presenting Officer is a man of legal attainments and experience and the employee had no legal background, refusal of the service of a lawyer to the delinquent officer would be a denial of natural justice. Learned counsel for the petitioner further referred to the judgment of a learned Single Judge of this court in N K Sarin vs. Punjab National Bank & anr to the same effect.

29. Learned counsel for the petitioner also referred to the judgment of learned Single Judge of Bombay High Court in Ram Naresh Tripathi vs. S D Rane and others 1992 LAB.I.C. 107 which referred that right of a delinquent officer to be represented by person of his choice even if representative is outsider and refusal to give him such opportunity would violate principles of natural justice. Learned counsel also referred to the judgment of the learned Single Judge in V S Ayangar and etc vs. The Karnataka Handloom Development Corporation Ltd. and others 1991 LAB.I.C. 2110 where it was held that if the management has right to use the service of its employees to present its case for more than two enquiries while the employees' right to use the service of a particular co-employee is restricted to two enquiries only, the same is discriminatory when there is no restriction in that behalf in the Rules.

30. Learned counsel for the respondents, on the other hand, has contended that the enquiry has proceeded ex-parte in view of the failure of the petitioner to attend the same. Learned counsel referred to the various dates to show that the petitioner has been avoiding joining the enquiry on one pretext or the other.

31. Learned counsel for the respondents contended that the regulations provided a mode for conduct of the disciplinary proceedings and it is not permissible to make grievance unless the conduct is contrary to the regulations or the vires of the regulations are challenged. Learned counsel contended that the regulations are not under challenge in the present writ petition and the enquiry has been conducted in accordance with the regulations. The petitioner did not participate in the same and cannot be permitted to make a grievance now in that behalf.

32. Learned counsel for the respondents referred to the judgment of the Supreme Court in Crescent Dyes and Chemicals Ltd. vs. Ram Naresh Tripathi where the rejection of the request of a delinquent employee for being permitted to be represented by an office bearer of the union who was not a clerk or a workman with the delinquent in his department was upheld. Learned counsel also referred to another judgment of the Supreme Court in Bharat Petroleum Corporation Limited vs. Maharashtra General Kamgar Union and others which held that the right is available to a delinquent employee only to the extent specifically provided in the service rules and the draft Standing Orders permitting the delinquent officer to be represented in the domestic enquiry by a fellow workman would be neither unreasonable nor unfair.

33. I find force in the submission of learned counsel for the respondents that the procedure to be adopted in a domestic enquiry including for providing for assistance to the delinquent officer has to be in consonance with the rules and regulations. There is admittedly no challenge to the regulations in question and thus so long as the respondent bank has adhered to the regulations no grievance can be made in that respect. The Supreme Court in Bharat Petroleum's case (supra) has upheld the restriction on a workman to be defended in domestic enquiry only by a fellow workman of the same establishment. It may be noted that the Presenting Officer in the present case was not a lawyer and thus the judgment of the Supreme Court in The Board of Trustees' case (supra) and J K Aggarwal's case (supra) would be of no assistance to the petitioner.

34. The petitioner was permitted to take assistance of an existing employee who was not handling more two domestic enquiries. The petitioner, however, chose to demand assistance of a legal practitioner, then of an ex-employee and lastly of an employee who was handling more than two domestic enquiries as his defense assistance. The sequence of dates does seem to given an impression as if the petitioner was deliberately trying to delay the conduct of proceedings and in fact ultimately failed to join the proceedings and the enquiry proceeded ex-parte. I am thus of the considered view that there is no force in the submission of learned counsel for the petitioner in so far as the grievance about the lack of adequate defense assistance is concerned. It may be noted that the view expressed in V.S. Ayangar's case (supra) was view of the absence of rules to the contrary while the regulation in present case specifically restrict the use of any such defense assistance.

35. The last aspect of which the petitioner is aggrieved by the departmental enquiry is the allegation against the respondent bank of failure to supply relevant documents.

36. Learned counsel for the petitioner contended that a list of documents was given by the petitioner on 26.5.1992(annexure Z-1) but the complete documents were not supplied. A similar grievance is made in respect of the list of documents asked for vide letter dated 23.4.1984(annexure L-2) and the list of documents stated to be suppressed or destroyed as per annexure L-5.

37. Learned counsel for the petitioner contended that the appellate authority while dealing with the submission of the petitioner that no enquiry was conducted in the matter of missing fraudulent documents stated to be destroyed by the petitioner held that the said contention was not based on factual material and that prior to issuance of charge-sheet cum show cause notice for dismissal from service on 7.4.84 and in depth investigation was conducted into the matter which revealed that the petitioner had played a vital role in the missing/destroying of valuable documents/vouchers. Learned counsel for the petitioner has contended that the said finding is without any basis and did not form a part of the finding before the disciplinary authority.

38. Learned counsel for the petitioner referred to the judgment of the Supreme Court in State of Madhya Pradesh vs. Chintaman Sadashiva Waishampayan AIR 1961 SC 1623 where it was held that the failure to supply copies of the documents to which a public servant is entitled, in a domestic enquiry, would vitiate the enquiry since it could not be in accordance with the principles of natural justice and Article 311(2) of the Constitution of India would be violated. The Supreme Court held that in proceedings under Article 226 of the Constitution of India it was for the High Court to consider whether the constitutional requirements of Article 311(2) had been satisfied or not and that it is difficult and inexpedient to lay down any general rule but what has to be seen is whether or not the officer in question has had a reasonable opportunity depending on the facts of each case. To the same effect is the judgment referred to by learned counsel for the petitioner is the case of State of U.P. vs. Mohd. Sharif (dead) through LRs .

39. Learned counsel for the respondent on the other hand submitted that all the relevant documents had been supplied to the petitioner and the effort of the petitioner was only to delay the proceedings. Learned counsel for the petitioner contended that there are two aspects in this behalf which are relevant:- a) the relevance of the documents and b) prejudice caused by its non-production. Learned counsel for the respondents referred to the judgment of Supreme Court in State of Tamil Nadu vs. Thiru K.V. Perumal and others to advance his submission about the general principles in respect of the non-production of documents. Learned counsel referred to the observations made by the Supreme Court in para 4 of the judgment as under:-

"Now remains only the third ground viz., the non-furnishing of the documents asked for by the respondent. The Tribunal seems to be under the impression that the enquiry officer/disciplinary authority is bound to supply each and every document that may be asked for by the delinquent officer/employee. It is wrong there. Their duty is only to supply relevant documents and not each and every document asked for by the delinquent officer/employee. In this case the respondent had asked for certain documents. The Registrar, to whom the request was made, called upon him to specify the relevance of each and every document asked for by him. It is not brought to our notice that the respondent did so. The Tribunal too has not gone into the question nor has it expressed any opinion whether the documents asked for were indeed relevant and whether their non-supply has prejudiced the respondent's case. The test to be applied in this behalf has been set out by this Court in State Bank of Patiala V. S.K. Sharma, 1996(3) Scale 202: (1996 AIR SCW 1740). It was the duty of the respondent to point out how each and every document was relevant to the charges or to the enquiry being held against him and whether and how their non-supply has prejudiced his case. Equally, it is the duty of the Tribunal to record a finding whether any relevant documents were not supplied and whether such non-supply has prejudiced the defendant's case. Since this has not been done by the Tribunal in this matter, it has to go back for a rehearing."

40. Learned counsel for the respondents thus contends that the duty is to supply relevant documents and not in each and every documents asked for by the delinquent officer/employee.

41. Learned counsel for the respondents referred to the latest judgment of the Supreme Court in State of U.P. and others vs. Ramesh Chandra Mangalik to contend that in case the delinquent officer fails to point out any particular documents made use of by the enquiry officer for establishing the charges, copies for inspection of which had not been allowed by the department, then the enquiry would not be vitiated.

42. Learned counsel for the respondents referred to the judgment of the Supreme Court in State Bank of Patiala and others vs. S K Sharma on the principles to be followed in cases of disciplinary enquiry of such a nature and the learned counsel while referring to the said judgment contended that what has to be enquired into by the court is where there is violation of a provision of substantive nature or whether the violation is procedural in character. In cases of violation of the procedural character it has to be kept in mind that the provisions are generally meant for affording reasonable and adequate opportunity to the delinquent officer/employed and violation of any and every procedural violation cannot be said to vitiate the enquiry held or order passed. Such violation has to be examined from the view of prejudice, that is whether such violation has prejudiced the delinquent officer in defending himself properly and effectively.

43. The learned counsel referred to the proceedings before the enquiry officer and referred to page 353 of while dealing with the issue of list of documents where it is recorded that the CO acknowledged the receipt of photocopies of all the documents bearing mention in Exhibit E/17 of the enquiry but denied to undertake inspection with their originals. Learned counsel also referred to Annexure L-2 to show that all the documents affecting the enquiry had been supplied.

44. A perusal of the record shows that the documents sought for by the petitioner had been supplied from time to time and as mentioned above the petitioner refused to inspect the original. Further there is force in the submission of learned counsel for the respondents that it is not every document which needs to be supplied but documents which are relevant for the benefits of the delinquent officer. The officer must establish that there is relevancy and that prejudice has been caused to him as laid down by the Supreme Court in State of Tamil Nadu's case (supra) and State Bank of Patiala's case (supra).

45. I am of the considered view that the petitioner has failed to establish the relevancy of the documents or the prejudice caused by the same. The aforesaid aspect has also to be considered taking into consideration the fact that the writ court in exercise of powers under Article 226 of the Constitution of India is not a court of appeal while dealing with the disciplinary proceedings and should not review the evidence and arrive at an independent findings on evidence. If the appellate authority has accepted the conclusions arrived at by the disciplinary authority on the basis of the evidence considered by it, it is not for the writ court to interfere with the same. The Supreme Court in Somnath Sahu vs. The State of Orissa 1981(2) SLR 550 observed as much.

46. In view of the aforesaid I find no infirmity in orders of the disciplinary or the appellate authority and see no reason to interfere with the same in exercise of power under Article 226 of the Constitution of India.

47. The writ petition is dismissed with costs of Rs.5,000/-.