A.C. Dhamija vs Punjab National Bank
2008 Latest Caselaw 913 Del

W.P.(C) No. 2537/1992              Page 1


                                                     UNREPORTABLE

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+           WRIT PETITION (CIVIL) NO. 2537 OF 1992



%                          Date of Decision :        3rd July, 2008.

A.C. DHAMIJA                             ....           Petitioner.

                  Through Petitioner in person.

                               VERSUS


PUNJAB NATIONAL BANK                     ....          Respondent.

Through Mr. V.K. Rao, Mr. Ayushya Kumar & Mr. Arun Dhiman, Advocates.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be

allowed to see the judgment?

2. To be referred to the Reporter or not ?      NO

3. Whether the judgment should be reported

in the Digest ?                                 NO

SANJIV KHANNA, J:

1. The petitioner, Mr. A.C. Dhamija, has appeared in person and

argued the present writ petition by which he has challenged order

dated 15th April, 1991 passed by the Regional Manager of New Bank

of India imposing penalty of stoppage of two increments without

cumulative effect. The petitioner has also challenged, orders passed W.P.(C) No. 2537/1992 Page 2

by the Appellate Authority and the Reviewing Authority confirming the

said punishment. The petitioner has made another prayer in the writ

petition to quash the second charge sheet dated 15th May, 1992

issued by the respondent bank i.e.; New Bank of India which stands

amalgamated with the Punjab National Bank. During the pendency of

the present writ petition, penalty of reduction of rank by three stages

was imposed on the petitioner pursuant to the charge sheet dated

15th May, 1992 vide orders dated 21st December, 1993 and 2nd

March, 1994. Thereupon, the petitioner filed CM No. 2586/1994

challenging the subsequent orders dated 21st December, 1993 and

2nd March, 1994. This application CM No. 2586/1994 was allowed by

order dated 20th July, 1995 with the direction that additional grounds

raised in the application will form part of the writ petition.

2. At the outset, I may note that after filing of the present writ

petition, a third charge sheet dated 27th February, 1996 was issued to

the petitioner and punishment of removal from service was imposed

by the disciplinary authority vide order dated 17th October, 1996.

Appeal of the petitioner against the said order of removal stands

dismissed vide order dated 20th June, 1997 and the revision petition

filed by the petitioner also stands rejected by order dated 8th

November, 1997. The petitioner has not challenged orders of

removal by filing a separate writ petition or by filing an application

raising additional grounds or amending the writ petition. The said W.P.(C) No. 2537/1992 Page 3

orders have not been brought on record and impugned by the

petitioner. This Court, therefore, is not examining the third

disciplinary proceeding, which has resulted in the order of removal.

3. I may briefly notice the two arguments which were raised by the

petitioner. The present writ petition was initially listed before a

Division Bench as per the Rules. A Division Bench of this Court vide

order dated 20th November, 1992 issued notice in the writ petition

after noticing the allegation of the petitioner that there was some

tampering with the original records. The Division Bench also directed

that the respondent bank should produce the entire enquiry

proceedings including documents etc. before this Court on the next

date of hearing. Notice was issued for 25th January, 1993 but the

respondents could not be served on the said date. Order sheet

reveals that thereafter directions were repeatedly given to the

petitioner to file process fee. Appearance was made by the

respondent bank for the first time on 17th February, 1994. At that

stage, it was pointed out that New Bank of India has been

amalgamated with Punjab National Bank. Accordingly, memo of

parties was directed to be amended and Punjab National Bank was

impleaded as a party. The contention of the petitioner that original

records were not produced on the next date of hearing by the

respondent bank and, therefore, the allegation of the petitioner that

the record of the disciplinary proceedings were tampered stands W.P.(C) No. 2537/1992 Page 4

proved, cannot be accepted. Tampering of records has to be proved

and established on the basis of material and documents and not by

mere presumption on the ground that records were not produced on

the first date of hearing when the respondent had entered

appearance. The petitioner also referred to order dated 24th April,

1997 by which Criminal Miscellaneous Main No. 2684/1997 filed by

the petitioner under Sections 340 and 295 of the Cr.PC readwith

Sections 191, 193 and 199 of the Indian Penal Code was dismissed

as being devoid of merits. The said order hardly helps the petitioner.

I may note here that the petitioner had earlier filed Criminal

Miscellaneous Main No. 222/1998. This application was disposed of

on 12th March, 1997 after recording that in the writ petition "Rule" had

already been issued and the application in question should be

numbered and listed along with main petition in due course. The said

orders do not express any opinion on the merits of the case. It

cannot be held that the petitioner is entitled to succeed in the writ

petition only on the ground of the said orders.

4. The petitioner had joined service of the respondent bank in

October, 1972 in Delhi. He was first promoted as an Accountant and

then as a Manager in 1981. He was posted in different branches. In

1989 the petitioner was working at Popran branch in district Jind,

Haryana as a Manager along with two other officers viz. Mr. D.N.

Sharma, Clerk/Cashier and Mr. Mohinder Singh, Peon.

W.P.(C) No. 2537/1992 Page 5

5. On 1st July, 1989, the petitioner was suspended and thereafter

chargesheeted for having committed various acts amounting to

serious misconduct, this included the charge of remaining

unauthorisedly absent from the branch resulting in non-operation of

cash on 30th June, 1989. The charge sheet states that the petitioner

had acted in a manner prejudicial to the interest of the bank, he failed

to ensure bank's interest and had acted in a manner unbecoming of

an officer and contrary to his best judgment. The averments made in

the statement of allegations against the petitioner were that on 29th

June, 1989 the petitioner handed over cash key of the branch to Mr.

Mohinder Singh, Peon without realizing that as a Manager it was

necessary for him to ensure that suitable arrangements had been

made and cash was handed over to a substitute officer. Another

allegation against the petitioner was that on 30th June, 1999 Mr.

Mohinder Singh, Peon and Mr. D.N. Sharma, Clerk/Cashier had

contacted the petitioner, who advised them to open the branch and

he would join them shortly but the petitioner did not turn up resulting

in non-opening of the cash. The statement of allegations further

avers that the petitioner was contacted by Mr. Mohinder Singh, Peon

in the afternoon and found to be in a market making some purchases.

Mr. Mohinder Singh, Peon handed over cash key to the petitioner and

requested him to report for duty but the petitioner threw the cash key

on the road with unpleasant remarks. On 30th June, 1989 at about W.P.(C) No. 2537/1992 Page 6

9.30 p.m.; the Manager of Jind branch along with two officers visited

the residence of Mr. A.C. Dhamija with the request to acknowledge

the letter/memorandum but he refused to accept the same. It is

alleged that the petitioner proceeded on leave without sanction and

thereby remained unauthorisedly absent from duty resulting in non-

opening of the bank branch. Subsequently, supplementary charge

sheet dated 23rd November, 1989 was issued to the petitioner on the

allegation that he had failed to hand over the bank's motorcycle in

spite of written letter dated 10th November, 1989 and the same was

not handed over nor the letter was replied till the charge sheet was

issued.

6. It is now well settled that this Court in a writ petition while

exercising power of judicial review cannot re-appraise or examine the

evidence produced in the disciplinary proceedings as an appellate

authority. The scope of judicial review is limited and is concerned

with the decision making process rather than the actual decision on

merits.

7. The enquiry officer had examined several witnesses before

giving his findings. The enquiry report is elaborate and detailed. The

respondent bank had produced several witnesses including Mr.

Mohinder Singh, Peon, Mr. S.C. Chawla, Senior Manager, Hissar, Mr.

P.D. Jindal, Mr. A.D. Muteja as well as Mr. S. C. Mongia in addition to

Mr. D.N. Sharma, Cashier. The statements of these witnesses had W.P.(C) No. 2537/1992 Page 7

been set out and considered by the enquiry officer. The petitioner did

not personally appear or cross-examine the witnesses and had only

made written submissions before the Enquiry Officer. The report of

the Enquiry Officer shows that ample opportunities were granted to

the petitioner to cross-examine witnesses produced by the

management and produce his own evidence. Opportunities were

also given to the petitioner to appoint a defence officer.

8. Enquiry proceedings started on 3rd November, 1989 with the

petitioner confirming that he had received the charge sheet. At that

stage, the Presenting Officer submitted a provisional list of witnesses

along with documents which were handed over to the petitioner. On

16th November, 1989, the petitioner submitted photocopies of some

letters but stated that he had not decided about the defence officer

and the list of witnesses. He insisted that these would be given, if

allegations against him were considered to be part of conspiracy

against him. Proceedings thereafter continued with the enquiry

officer insisting that the petitioner should produce originals of the

documents and submits name of his defence representative and

furnish his list of witnesses. Later on it appears that the petitioner

took up the plea that there was theft at this residence and originals of

the documents had been stolen and he would produce the same if

they were traced or otherwise he would produce duplicate copies.

However, the petitioner could not give the date of the theft or the FIR W.P.(C) No. 2537/1992 Page 8

number. On 5th November, 1990, the petitioner confirmed having

received supplementary charge sheet dated 23rd November, 1989.

The petitioner also confirmed that he would defend the case himself

and stated that he was unable to produce list of documents and

witnesses for fear of confidentiality being compromised and the same

being leaked to the conspirators. Opportunity was given to the

petitioner again on 6th January, 1990 and 24th January, 1990 to

submit list of witnesses and documents with regard to the

supplementary charge sheet. The petitioner did not avail and take

benefit of the said opportunities.

9. By letter dated 15th June, 1990 Mr. A.C. Dhamija was informed

that the case would be taken for consideration on 4th July, 1990 at the

branch office at Sonipat. The petitioner by his letter dated 25th June,

1990 informed the Enquiry Officer that due to ill health he would not

be able to participate in the proceeding at such a distance. He also

objected to appointment of the Enquiry Officer and submitted that the

enquiry should be continued from the same stage at which it was left

by the earlier Enquiry Officer, one Mr. O.P. Sharma. The new

Enquiry Officer by his letter dated 30th June, 1990 asked the

petitioner to submit medical certificate from Medical Officer, Civil

Hospital, Jind mentioning the nature of ailment and how it restricted

him from undertaking the journey to the place where the enquiry

proceedings were being carried on. Keeping in view the request W.P.(C) No. 2537/1992 Page 9

made, the hearing was adjourned to 25th July, 1990 at Sonipat. On

25th July, 1990 the petitioner did not appear and the hearing was

adjourned to 10th August, 1990 to give another opportunity to the

petitioner. On 10th August, 1990, the petitioner again did not turn up

and one further opportunity was granted to the petitioner with the

case being adjourned to 12th September, 1990. The petitioner by his

letter dated 1st August, 1990 alleged that the Enquiry Officer had

disturbed his private family life and he would not dare to go out of

station. It was also alleged that his house had been robbed and

ransacked to steal some important papers and thus creating terror.

10. On 12th September, 1990 the Enquiry Officer partly recorded

statement of witnesses. Statement of witnesses was also recorded

on subsequent dates but in the absence of the petitioner. On the

basis of statement of witnesses, the Enquiry Officer came to the

conclusion that the charges against the petitioner except allegation

No. 5 with regard to receipt of the memorandum, stand proved. It is

admitted case that the bank branch could not function on 30th June,

1989 as the cash counter was not opened by the petitioner. It is also

admitted that the petitioner did not attend the said branch on 30th

June, 1989. The petitioner had made some allegation against Mr.

D.N. Sharma, Cashier prior to the enquiry proceedings. Even if one

ignores the statement of Mr. D.N. Sharma, there is evidence of Mr.

Mohinder Singh, Peon , which has been discussed by the Enquiry W.P.(C) No. 2537/1992 Page 10

Officer. The Enquiry Officer has examined statements and

allegations objectively and has given his findings that the charges

against the petitioner except allegation No. 5 stand proven. The

Enquiry Officer also observed that the petitioner had earlier made

repeated applications for leave but these were not considered and

reliever was not provided to substitute the petitioner. In this

connection, the Enquiry Officer has observed as under:-

"On scrutiny of the same, there is no doubt that Shri Dhamija was unable to proceed on leave because the reliever could not be provided by R/O for one or the other reason. However, this does not mean that Shri Dhamija should throw all norms to the winds and behave in such an irresponsible manner including giving of cash keys to a Peon and remaining at home despite being told by his Senior Officer to attend the duties which resulted in not opening the cash and suspension of banking business."

11. It was in the light of these findings that the petitioner was

awarded punishment of stoppage of two increments without

cumulative effect. The petitioner had contended that some lines in

the enquiry report were partly underlined and illegible and these

should be again given to him. The said request was made in writing

on the memorandum dated 15th April, 1991. In response to the said

request, by letter dated 24th April, 1991 the petitioner was given

written transcript of the said lines.

12. I may note here that the petitioner has filed along with the writ

petition several documents. It is stated that photocopies of W.P.(C) No. 2537/1992 Page 11

documents were also filed before the Enquiry Officer. The

documents indicate that the petitioner initially had applied for leave so

that he could construct his house. The respondent bank, however,

could not arrange for a reliever. It was also stated that the

petitioner's brother-in-law had come to Delhi from Dubai and he was

required to meet him and his family. The subsequent letters show

that the petitioner was suffering from piles and required treatment.

These factors have been noticed by the Enquiry Officer and the

disciplinary authority and not ignored by them. Yet they felt that the

petitioner should have been more careful and not gone on leave on

30th June, 1989 in the manner done by him. I may also note that the

petitioner's claim that he was unwell and, therefore, could not attend

the bank on 30th June, 1989 has been also examined by the Enquiry

Officer. The Enquiry Officer has specifically noted that the medical

certificate produced by the petitioner dated 28th June, 1989 merely

records the blood pressure of the petitioner as 134-180 and states

referred to medical specialist. It appears that the petitioner was

suffering from hyper tension and high blood pressure. These factors

have all been taken into consideration by the disciplinary authority.

13. The petitioner herein has alleged that there has been a

violation of the principles of Natural Justice on account of the non-

service of the enquiry report to the said petitioner herein. However it

is established and Courts have looked upon the Principles of Natural W.P.(C) No. 2537/1992 Page 12

Justice as being a set of pragmatic principles rather than rules that

are to be executed in a strait jacket formula. Supreme Court in the

case of Divisional Manager, Plantation Division A&N Islands

versus Munnu Barrick, reported in (2005) 2 SCC 237 has held that

before setting aside an order or decision on account of violation of

principles of natural justice, the court would call upon the one alleging

violation of the principles of natural justice to show as to how and

what kind of prejudice was caused to him by way of the said failure.

Reference in this regard can be made to the case of Om Prakash

Mann versus Director of Education (Basic), reported in (2006) 7

SCC 558, where the Supreme Court while dealing with question of

effect of non-supply of enquiry report to the delinquent employee held

as under:-

"9. By now it is well-settled principle of law that the doctrines of principle of natural justice are not embodied rules. They cannot be applied in a straitjacket formula. To sustain the complaint of violation of the principle of natural justice one must establish that he has been prejudiced by non-observance of the principle of natural justice. As held by the High Court the appellant has not been able to show as to how he has been prejudiced by non-furnishing of the copy of the enquiry report. The appellant has filed a detailed appeal before the Appellate Authority which was dismissed as noticed above. It is not his case that he has W.P.(C) No. 2537/1992 Page 13

been deprived of making effective appeal for non-furnishing of copy of enquiry report. He has participated in the enquiry proceedings without any demur. It is undisputed that the appellant has been afforded enough opportunity and he has participated throughout the enquiry proceedings, he has been heard and allowed to make submission before the Enquiry Committee."

14. In the present case also the Petitioner was furnished a copy of

the enquiry report with the punishment order. The petitioner thereafter

had filed an appeal and on dismissal thereof a revision petition which

was also dismissed.

15. The petitioner vide letter dated 15th April, 1991 was reinstated

and posted at branch office Nandha, district Bhiwani, Haryana. He

was asked to take charge of the said branch. The petitioner did not

join the said branch and report for duty. Subsequently, on 10th July,

1991 the petitioner was posted at Rambas branch. The petitioner did

not join the said place also. In these circumstances, second charge

sheet dated 15th May, 1992 was issued. On 14th July, 1992,

petitioner was offered posting at Amargarh, Haryana. The petitioner

once again failed to join the said place of posting again.

16. The petitioner had filed the present writ petition on or about 8th

July, 1992. He had also filed an application seeking stay of his

posting with the request that he should be posted at Jind, Delhi or W.P.(C) No. 2537/1992 Page 14

New Delhi. No interim order or directions were passed on the said

application. Yet the petitioner did not join the bank branches to which

he was posted. No stay of the second departmental proceedings was

also granted.

17. I have examined the application CM No. 2586/1994 and the

grounds mentioned therein challenging the second punishment order

dated 2nd March, 1994 by which punishment of reduction of salary by

three stages at the time scale was imposed. It is stated in the

application that the second charge sheet was issued in spite of

petitioner having filed a writ petition challenging and praying for

quashing of the charge sheet in question. On merits the petitioner has

no explanation and ground to challenge the punishment. The grounds

raised in the said application do not justify quashing of the

punishment order dated 2nd March, 1994.

18. I also do not see any reason to quash the charge sheet itself.

The petitioner had been absenting himself from duty even after he

was asked to rejoin duty vide order dated 15th April, 1991. The

petitioner had questioned and challenged this posting order and had

made a prayer that he should be posted at Jind in Haryana, Delhi or

New Delhi. No interim order was passed on the said application.

Despite the above facts, the petitioner did not join the place of

posting. The Court had not passed any stay order restraining the

disciplinary authority from proceeding with the disciplinary W.P.(C) No. 2537/1992 Page 15

proceedings pursuant to charge sheet dated 15th May, 1992. The

order passed by the disciplinary authority dated 2nd March, 1994 is

appealable and thereafter revisable. On this ground also, the

challenge to the order dated 2nd March, 1994 directly in a writ petition

without exhausting alternative remedies, should not be entertained.

19. In view of the above, I do not find any merit in the present writ

petition and the same is accordingly dismissed. All pending

applications are also disposed of. However, in the facts and

circumstances of the case, there will be no order as to costs.

                                                   (SANJIV KHANNA)
                                                       JUDGE

JULY      03, 2008
VKR