Shri N.A. Karnik vs Syndicate Bank
2005 Latest Caselaw 377 Del

JUDGMENT

Vikramajit Sen, J.

1. This Writ Petition challenges the termination of the Petitioner services. The ground of assault is that the Report of the Enquiry Officer had not been furnished to the Petitioner.

2. The Petitioner would ordinarily have retired on 30.6.1986. Five months prior to that he was Charge sheeted on 27.1.1986. A Departmental Enquiry was initiated and the Enquiry Officer submitted his reported on 20th June, 1986. The assailed dismissal order was passed on 26.6.1986. The Petitioner has himself mentioned that he was informed of this Order by Express Telegram dated 30.6.1986, received by him on 1.7.1986. The Respondents have disclosed that the Petitioner had applied for and was granted 2 days medical leave but even thereafter he did not report back for duty and in fact his whereabouts were not known. It was for this reason that the dismissal Order dated 26.6.1986 could not be served on him personally and was dispatched by post on that very day, and also eventually conveyed by the Express Telegram mentioned above. Criminal proceedings had also been initiated. The Metropolitan Magistrate by his Orders dated 8.5.1989 acquitted all the accused including the Petitioner. Thereupon a letter dated 7th January, 1992 was addressed to the Respondents. This Representation was rejected on 22.2.1992. Since no relief was forthcoming, this Writ Petition was filed on 23rd April, 1992.

3. It would not be appropriate to entertain this Writ Petition after the expiry of six years from the passing of the impugned Dismissal Order. The only explanation that is forthcoming is that the Petitioner had addressed the aforementioned letter dated 7th January, 1992. It is firmly established in service jurisprudence that the burden of proof is much greater in a criminal case than in a departmental enquiry. Generally speaking if a delinquent is found not to be guilty in the Departmental Enquiry, there is little likelihood of his being found guilty in criminal proceedings. The reverse does not hold. Irrespective of the pendency of the criminal proceedings therefore, if the Petitioner was genuinely aggrieved with the Dismissal Order, he ought to have filed the present Writ Petition soon after learning of the Dismissal Order in June, 1986. An Appeal had also been filed against the Dismissal Order which was disposed of on 20th April, 1987. Thereafter, the present Petition ought to have been filed.

4. If a person files a belated Representation at his own whim and fancy that cannot be taken into account to extend limitation or be countenanced where an objection pertaining to latches is taken. Upon the rejection of the Petitioner's Appeal there can be no justification for him not having approached the Court forthwith. Inexplicably, the Petitioner has prayed for reinstatement in service with continuity of service and back-wages, even though his own case is that he had superannuated on 30.6.1986.

The Petition is clearly barred by principles of latches.

5. Since the Petition has been pending in this Court for over one decade, I would prefer to deal with the merits of the case also, regardless of my view that the Petition deserves to be rejected on the grounds of latches. The only ground urged is that the copy of the Enquiry Report had not been furnished. There is no averment that a copy of this Report had been prayed for but was not supplied. There is no foundation for the argument that the non-supply of the Enquiry Report caused prejudice to the Petitioner's defense. It appears to me that this ground has been taken because the Disciplinary Authority had, along with his Order, stated that a copy of the Enquiry Report was enclosed. In this case the Enquiry Report has not been challenged. Counsel is unable to show that the Petitioner had raised the question of prejudice to his defense because of non-supply of this document before the Appellate Authority. Instead reliance has been placed on Union of India Versus Mohd. Ramzan Khan, JT 1994(4) SC 456; 1991 Supreme Court 471, where the Hon'ble Court had concluded that the supply of a copy of the Enquiry Report along with recommendations, if any, in the matter of proposed punishment to be inflicted on the delinquent would be expected as a concomitant of the rules of natural justice, and the delinquent would, therefore, be entitled to the supply of a copy thereof. It has specifically been observed in the judgment that the decision will have only prospective effect. The impugned Order dismissal has been passed in 1986 that is almost five years previous to the decision in Ramzan Khan's case (supra). In any event, the Constitution Bench of the Hon'ble Supreme Court has considered Ramzan Khan's case (supra) in Managing Director, ECIL vs. B. Karunakar, , and has carved out an exception to that Rule as is evident from the following passage:-

(v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with backwages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an unnatural expansion of natural justice which in itself is antithetical to justice.

Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the on-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or provisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/Tribunals find that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should breathed as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.

This decision has also been followed in Nagar Palika, Nataur Versus U.P. Public Services Tribunal, Lucknow and Ors. (1998) 2 Supreme Court Cases 400.

6. This very question came up for consideration again in State of U.P. Versus Harendra Arora and Anr. , in circumstances where the service rules envisaged the supply of the Enquiry Report. Even then the relief was not granted by the Apex Court since it had not been established that the defense of the delinquent was hampered in any manner. The following paragraph sums up the position completely:

Turning now to the facts of the case on hand, it has to be seen whether the non-furnishing of the enquiry report the delinquent officer has suffered any prejudice. Undisputedly, after submission of enquiry report the State Government sent a show cause notice to the delinquent pursuant to which he had shown cause and Disciplinary Authority after considering the said show cause, passed the order of dismissal. It is not stand of the respondent that in absence of the enquiry report he could not submit a effective show cause before the order of dismissal was passed. Neither from the order passed by the Tribunal nor the High Court it would appear that the respondent had raised this point there that he could not file an effective show cause in the absence of enquiry report not it has been stated that in the show cause reply it was complained that the delinquent had not been served with a copy of the enquiry report. From these facts, it is not possible to hold that the respondent has been prejudiced by non-furnishing of enquiry report.

7. More recently in Canara Bank and Ors. Versus Shri Debasis Das and Ors. , the entire law has once again been reviewed. The Hon'ble Supreme Court again declined to grant relief on the ground of non-supply of the Enquiry Report. Instead it noted that at no stage the employee pleaded prejudice. Both learned single judge and the Division Bench proceeded on the basis that there was no compliance of the requirement of regulation 6(18) and, therefore, prejudice was caused. The judgment of the Division Bench which confirmed the Order of the learned Single Judge was quashed, as the Apex Court did not perceive any violation of principles of natural justice.

8.The Canara Bank's case has been relied on by Mr. Bhardwaj to contend that the principles of natural justice can always be invoked at any stage. A complete reading of this case can only lead to the conclusion that it militates against the arguments since the Apex Court had quashed the Orders of the Division Bench as well as that of the Single Judge both of which were of the view that natural justice had been violated.

9. In this analysis of the law pertaining to the supply of a copy of the Enquiry Report, I find that there is no merit in the Writ Petition. Furthermore, the Petitioner was a Senior Officer in the Bank and the following observations of the Hon'ble Supreme Court in Damoh Panna Sagar Rural Regional Bank and Anr. Versus Munna Lal Jain, come to mind.

17. A bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the Bank end to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik, there is no defense available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of organization more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court.

Even if no pecuniary loss had been occasioned to the Bank, taking the Petitioner's version to be correct, in financial institutions discipline in money transactions is essential. A person cannot throw regulations to the winds and later on, when he is apprehended, state that in that particular case no loss had occurred.

10. This case is without merit and is dismissed.