B.K. Kalra vs Punjab National Bank
2004 Latest Caselaw 479 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner prays that charge-sheet dated 20.11.2000 be quashed. The charge-sheet reads as under:-

"It has been alleged against you that while being posted at BO, Rani Bagh, Delhi as Spl. Asstt., you engaged yourself in doing business outside the scope of your duties and engaged in the business of heavy speculative transactions of stocks and shares through various share brokers. To quote: during the period from June 1992 to March 1998, you purchased and sold the following shares through M.Rohan Securities:-

(Thereafter price of the shares transacted and the dates on which transactions were effected have been listed out at serial No.1 to 134)

Besides these, you also indulged in speculative transactions in stocks shares in the name of the following persons :-

1. Shri Inder Gujral, C/o Shri B.K.Kalra

2. Shri Manmohan, C/o Shri B.K.Kalra

3. Shri Sudhir Kumar, C/o Shri B.K.Kalra

4. Meera Devi, C/o Shri B.K.Kalra

Your above acts constitute gross misconduct in terms of Para 19.5(a) and 19. of the Bipartite Settlement dated 19.10.66 as amended up to date.

You are hereby called upon to submit your reply within seven days of receipt this charge sheet. In case, no reply is received within the stipulated per it shall be presumed that you have nothing to state in the matter and further action will be taken against you as per the provisions of the Bipar Settlement. Further, you would continue to remain under suspension."

2. The covering letter under which the charge-sheet has been served upon the petitioner reads as under:-

"You were served charge sheet dated 18.8.98 alleging your gross misconduct under Clause 19.5(a) and 19.5(i) of the Bipartite Settlement. You preferred a civil writ petition before the Hon'ble High Court of Delhi against the said charge sheet. The Hon'ble High Court vide its order dated 15.5.2k confirmed the interim order passed on 8.9.98, vide which it was directed by the court that no final report would be submitted by the Enquiry Officer till the next date of hearing. Now, in terms of the order dated 15.5.2k of the Hon'ble High Court of Delhi, the enclosed amended charge sheet is being served upon you.

It may also be mentioned that the charge sheet dated 18.8.1998 previously issued to you stands withdrawn."

3. The ground urged in the writ petition in support of the prayer made is that the CCS (CCA) Rules and the service rules of the bank do not contemplate a second charge-sheet nor do they contemplate a de novo enquiry against an employee.

4. Petitioner was an employee of the respondent/bank. On 18.8.1998, a charge-sheet was issued against the petitioner. Following was alleged against him:-

"You were posted as Special Assistant at BO Rani Bagh, Delhi, from July, 1992 to March 1998. During this period, you engaged yourself in doing business outside the scope of your duties and engaged in the business of stocks and shares and also indulged in heavy speculative transactions through various share brokers.

The above act of yours constitutes gross misconduct in terms of para 19.5(a) and (i) of the Bipartite Settlement dated 19.10.66 as amended up todate."

5. Petitioner alleged that the charge-sheet was vague. He filed a writ petition being WP(C) No.4496/1998 in this court. Petitioner prayed that the charge-sheet dated 18.8.1998 be quashed. Grounds on which quashing was sought was that the charge-sheet was vague and the petitioner would be prejudiced if he was called upon to defend a vague charge-sheet. No particulars/details of alleged heavy speculative transaction had been given. To put it in the words of the petitioner as per his pleadings in WP(C) No.4496/1998, petitioner stated:-

"The Charge Sheet dated 18.8.1998 issued by the Respondent is vague, indefinite and lacks material particulars. No details/particulars of the alleged heavy speculative transactions has been given. No details/particulars of the alleged share broker have been given in the Charge sheet. No time, date, month or year has been specified. The details of alleged business has not been given. In the absence of the above mentioned material particulars, the Petitioner will suffer irreparable loss and injury and it will be amount to denying reasonable opportunity to defend himself."

6. Petitioner sought and was granted an interim order in the writ petition filed by him. On 8.9.1998, this court restrained the enquiry officer from submitting any final report. On 15.5.2000, rule was issued in the writ petition and interim order passed on 8.9.1998 was confirmed.

7. At the time when rule was issued in WP(C) No.4496/1998 on 15.5.2000, it was noted by this court that counsel for the bank states that the bank would like to amend the charge-sheet issued to the petitioner.

8. Thereafter, the charge-sheet in question was issued to the petitioner. As noted above, in the covering letter under which the charge-sheet was served, it was mentioned that the charge-sheet is an amended charge-sheet.

9. From the charge-sheet dated 20.11.2000, it is to be noted that the particulars of the alleged speculative transactions committed by the petitioner together with the dates on which the same were transacted have been intimated to the petitioner pertaining to the charge-sheet which was issued to him on 18.8.1998, but without particulars being given in the said charge-sheet.

10. Learned counsel for the petitioner submits that it is a case of de novo enquiry. Alternatively, counsel submits that no-one can be vexed twice on the same cause of action, rule against double jeopardy was attracted, requiring the charge-sheet to be quashed.

11. Learned counsel for the respondent submits that the petitioner challenged the charge-sheet issued to him in the year 1998 on the ground that it did not give the particulars and was vague. This court restrained the bank from proceeding ahead with the enquiry, in that, the enquiry officer was prohibited from making any report. Since it was the grievance of the petitioner that the charge-sheet was vague, grievance of the petitioner stood met by issuance of the memorandum dated 20.11.2000 in respect of the same charges but after giving particulars of the alleged speculations in stocks and shares transacted by the petitioner. Counsel contended that it was neither a case of de novo enquiry nor was the principle of double jeopardy attracted.

12. For record, it may be noted that WP(C) No.4496/1998 was dismissed as infructuous vide order dated 9.11.2001 passed by this court on the application moved by the respondent/bank that the particulars of the allegations against the petitioner have been since provided and that the petitioner has filed another petition, being the present one. Petitioner moved another application probably due to the fact that order dated 9.11.2001 was passed without notice to him. On 7.8.2003, following order was passed in WP(C) No.4496/1998:-

"Present : Mr. Mukesh Anand for the petitioner.

Mr.Jagat Arora for the respondent.

CW 4496/98 & CM 10441/2001

The charge sheet pursuant to which this writ petition has been filed was subsequently withdrawn by the respondent. Thereafter the respondent has initiated fresh proceedings against the petitioner. The petitioner has challenged those proceedings by way of filing writ petition being C.W. No.34704/2001. Therefore, this writ petition has become infructuous.

Dismissed as withdrawn."

13. Arguing for the petitioner, Sh.Mukesh Anand relying upon the interim order dated 2.8.2001 passed in the present writ petition contended that this court has already adversely commented upon the second charge-sheet and, therefore, the same is liable to be quashed. Order dated 2.8.2001 passed in the present proceedings reads as under:-

"Present : Mr. NN Anand for the Petitioner.

Mr. Jagat Arora for the Respondent.

CM 7995/2001 in CWP 3704/2001

It is contended by learned counsel for the Petitioner that CWP 4496/1998 had previously been filed by the Petitioner assailing the earlier enquiry. In the said writ petition the interim orders that were passed were to the effect that no final report be submitted by the Enquiry Officer till the next date of hearing. It appears that subsequent to these proceedings, a request had been made by the Respondents on 15th May, 2000, that they would like to amend the charge-sheet issued to the Petitioner. Rule was ordered and the interim orders mentioned above were confirmed.

It appears that thereafter a second enquiry has been initiated based on the amended charge-sheet. Learned counsel for the Petitioner submits that the previous enquiry had come to its conclusion and that the report of the previous enquiry stood close. Learned counsel for the Respondents relies on a decision in Chanan Singh V. Registrar, Co-op. Societies, Punjab & Ors. . The facts in this case are wholly dissimilar. What appears to have transpired was that before the enquiry was initiated earlier the earlier opinion of the Secretary was changed by the Managing Director. It was in these circumstances that the Hon'ble Supreme Court held that the enquiry should proceed. The ramifications of the Respondents conduct in the present case raises the question of whether the Petitioner should be subjected to a second enquiry based on the same event, albeit, on a revised and amended charge-sheet. Even if interim orders had not been passed in the previous writ petition, there appears to be sufficient grounds to protect the Petitioner in the interregnum in these proceedings. However, since interim orders had been passed in the previous writ petition the action of the Respondent appears to be calculated to circumvent the interim orders. If the Respondents are now desirous of proceeding on a fresh charge-sheet the proper course ought to have been to bring those facts to the notice of the Court in the previous writ petition. This has not been done. Accordingly the application is allowed and till further orders to the contrary it is ordered that no final report be submitted by the Enquiry Officer.

The application stands disposed off.

Disposal of this application will not be construed as the declining of the Petitioner's prayer that the second enquiry be stayed altogether. Consideration of this prayer is precipitate at this stage, since the Respondents have not filed their Replies.

If any Replies are filed before the next date of hearing this prayer shall be considered.

CWP 3704/2001

List this case for consideration on 21st September, 2001, the date already fixed.

dusty."

14. Order dated 2.8.2001, in my opinion cannot be read to mean that this court has adversely commented upon the second charge-sheet issued. A reading of the order would reveal that the propriety of issuing the charge-sheet when the earlier proceedings were pending in this court had been adversely commented upon by this court. It be noted that in the order aforesaid, this court has itself recorded that the proper course ought to have been to bring to the notice of this court in WP(C) No.4496/1998 that the bank was desirous of removing the grievance of the petitioner by serving upon him a fresh charge-sheet, giving the particulars which were wanting in the first charge-sheet. I do not read anything in the interim order dated 2.8.2001 to warrant that this court has commented on the merits of the matter.

15. Counsel for the petitioner relied upon the judgment of the Supreme Court reported as K.R. Deb Vs. The Collector of Central Excise, Shillong to urge that a de novo enquiry cannot be ordered. Counsel also relied upon the decision of the Orissa High Court reported as (1993) 1 BC 314 Bishnu Prasad Bohidar & Anr. Vs. SBI & Ors.

16. In K.R. Deb's case (Supra), the facts were that pursuant to the charges framed against the appellant, enquiry was held. Enquiry Officer in his report held that no conclusive evidence was available to establish the charges against the appellant. The Disciplinary Authority appointed another enquiry officer to conduct a supplementary enquiry. The supplementary enquiry officer also gave a report in favor of the appellant. The Disciplinary Authority found defects in the report and drew the attention of the enquiry officer to certain evidence on record and directed the enquiry officer to examine some more witnesses. The enquiry officer gave a further report on 20th January, 1962. On 13.2.1962, the Disciplinary Authority appointed a fresh enquiry officer to enquire afresh into the charges against the appellant.

17. Holding in favor of the appellant, the Supreme Court held that Rule 15 of the CCS (CCA) Rules, does not contemplate successive enquiries. Dealing with Rule 15, in para 13, the Supreme Court held that if in a particular case there has been no proper enquiry because some serious defects have crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined for some reason, the disciplinary authority may ask the enquiry officer to record further evidence. But there is no provision in the said rule for ordering a de novo enquiry.

18. In the judgment of the Orissa High Court in Bishnu Prasad Bohidar & Anr. Vs. SBI & Ors. (Supra), it was again a case where the first enquiry was concluded and the enquiry officer had submitted his report. Disciplinary Authority, after holding that the evidence was not properly presented in the enquiry, directed a fresh enquiry under Rule 50 of the SBI (Supervising Staff) Service Rules. It was again a case of a second enquiry, ignoring the result of the first enquiry.

19. In the decision reported as A.K. Shukla Vs. State of M.P. where an enquiry was quashed on the ground that it was not properly and legally held, on the same charges a second enquiry was held. Upholding the second enquiry, it was held that the earlier enquiry was quashed on a technical ground and, therefore, on merits a second enquiry could be held.

20. This court, in the decision reported as 1992 (2) LLJ 573 Nahar Singh Vs. Union of India & Ors. dealing with a case where the first enquiry was no proper enquiry because of a serious defect necessitating a second enquiry, held that it was permissible to hold a fresh enquiry on the same charge-sheet after removing the defect which had vitiated the earlier enquiry. On facts, it was a case where the Disciplinary Authority noted that the enquiry officer while issuing the summary of allegations to the appellant had failed to incorporate the details of the allegations and had not correctly framed the charges, removed the said errors by ordering a fresh enquiry after removing the defects.

21. Petitioner challenged the first charge-sheet on the ground that it was vague. Agreeing with the petitioner on a prima facie view of the matter, admitting the writ petition filed by the petitioner challenging the charge-sheet, this court stayed further proceedings. Admittedly, the enquiry officer did not submit any report as there was a restrain order passed by this court. It was, therefore, permissible for the respondent to remove the defect. Respondent proceeded to remove the defect by providing to the petitioner the details of the allegations against him. It is altogether a different matter that propriety required the respondent to inform this court in the writ petition filed by the petitioner that it was removing the defect, praying to this court to dispose of the matter. But lack of propriety would not mean that the respondent has no jurisdiction to do what it has done. Be that as it may, the writ petition filed by the petitioner was held to be infructuous and dismissed as withdrawn.

22. Facts and circumstances of this case reveal that neither a de novo enquiry is being held nor is it a case where the rule against double jeopardy is attracted. No enquiry was held at the first instance because the petitioner obtained a stay. Indeed, grievance of the petitioner being that the charge-sheet issued to him was vague and this prejudiced him, petitioner can have no grievance if the respondent furnishes to him the particulars of the imputations constituting the charge against the petitioner. Even in K.R. Deb's case (Supra), the Supreme Court held that where some serious defect had crept into the enquiry, it was permissible to remove the defect and proceed ahead with the enquiry. This court in Nahar Singh's case (Supra) permitted rectification of defect in the framing of a charge and holding of a de novo enquiry.

23. I find no merit in the writ petition. The same is dismissed with costs awarded in favor of the respondent and against the petitioner in the sum of Rs.5,000/-.