Sh. P.G.Purushothaman vs Bank Of Baroda & Ors.
2008 Latest Caselaw 915 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 1487/1993


      SHRI P.G.PURUSHOTHAMAN                  ..... Petitioner
                Through: Mr.Arun Birbal, Advocate

                   versus


      BANK OF BARODA & ORS.                 ..... Respondents
               Through: Mr.Pramod B.Agarwala, Advocate
                        Mr.Nitin Kant Setia, Advocate
                        Ms.Praveena Gautam, Advocate

                       DATE OF DECISION:
%                        03.07.2008

      CORAM:

      Hon'ble Mr.Justice Pradeep Nandrajog

1.    Whether reporters of local papers may be allowed
      to see the judgment?

2.    To be referred to the Reporter or not?

3.    Whether judgment should be reported in Digest?

:     PRADEEP NANDRAJOG, J.

1. Heard learned counsel for the parties.

2. Petitioner an employee under the first respondent

bank was issued a charge-sheet vide memorandum dated

14.5.1986. He submitted a response. Disciplinary authority

was not satisfied with the response and proceeded to appoint

an inquiry officer with a direction to the inquiry officer to

conduct an inquiry and submit the inquiry report.

3. Inquiry officer submitted a report on 15.7.1988. It

was adverse to the petitioner.

4. The report was forwarded to the petitioner by the

disciplinary authority and after receiving the response of the

petitioner to the report of the inquiry officer, vide order dated

27.3.1989, the disciplinary authority inflicted the punishment

of dismissal from service upon the petitioner with further

stipulation that the dismissal will operate as disqualification for

future employment.

5. Appeal filed by the petitioner against the decision of

the disciplinary authority was dismissed by the appellate

authority on 8.1.1990. The review petition filed before the

reviewing authority by the petitioner was dismissed by the

reviewing authority vide order dated 26.5.1990.

6. Instant petition lays a challenge to the order passed

by the disciplinary authority as also the order passed by the

appellate authority and the reviewing authority.

7. It is not in dispute that during the relevant period

the Ministry of Finance (U.O.I.) directive dated 21.7.1984 was

in vogue which mandated that all banking institutions would

strictly act in conformity with the advice given by the Central

Vigilance Commission pertaining to disciplinary matters and

would not deviate from the advice of the Central Vigilance

Commission except with the prior concurrence of the Central

Vigilance Commission or the Ministry of Finance.

8. It is the case of the petitioner that in compliance

with the said directive issued by the Ministry of Finance on

21.7.1984 the respondent bank had forwarded the records

pertaining to the disciplinary action initiated against the

petitioner to the Central Vigilance Commission which had given

an adverse report against the petitioner and that without

supplying the report/advice of the Central Vigilance

Commission to the petitioner the disciplinary authority, the

appellate authority and the reviewing authority acted as per

the mandate of the Central Vigilance Commission, meaning

thereby, a vital principle of natural justice was violated, in that,

a report obtained at the back of the petitioner was used

against him.

9. 3 points have been urged at the hearing today. The

first is, as noted above; the respondent bank acting under the

advice of the Central Vigilance Commission without furnishing

copy thereof to the petitioner. The second point urged is that

the directive dated 21.7.1984 issued by the Ministry of Finance

was struck down by the Hon'ble Supreme Court in the decision

reported as 1991 (3) SCC 219 Nagaraj Shivarao Karjagi vs.

Syndicate Bank. Contention urged is that the respondents are

liable to be directed to de novo consider the matter afresh

ignoring the report/advice of the Central Vigilance Commission.

Lastly it is urged that the disciplinary authority had disagreed

with certain findings of the inquiry officer and point of

disagreement by the disciplinary authority vis-a-vis the report

of the inquiry officer were not notified to the petitioner.

Decision of the Supreme Court reported as 1998 (7) SCC 84

PNB vs. Kunj Bihari Mishra is relied upon.

10. Learned counsel for the respondent urges that

though advice of Central Vigilance Commission was obtained

but the same was not considered, much less relied upon or

acted upon by the disciplinary authority, the appellate

authority or the reviewing authority. Learned counsel urges

that the disciplinary authority did not record any point of

disagreement on any issue with the report of the inquiry

officer.

11. It is not in dispute that a directive was issued by the

Ministry of Finance on 21.7.1984 mandating to all banking

institutions that pertaining to disciplinary cases against bank

officials not only advice should be obtained from the Central

Vigilance Commission on the matter but that the advice was

binding save and except if the same had not to be acted upon

or modified, the same had to precede a prior concurrence from

the Central Vigilance Commission or the Ministry of Finance.

12. The said directive was quashed by the Hon'ble

Supreme Court in Nagaraj's case (supra) on 30.4.1991.

Meaning thereby, when the disciplinary authority, in the

instant case, passed the order on 27.3.1989 and the appellate

authority passed the order in appeal on 8.1.1990 as also the

reviewing authority which passed the order on 27.5.1990, the

Ministry of Finance directive was operative.

13. In the decision reported as 1997 (11) SCC 444

Satyendra Chander Jain vs. PNB the Hon'ble Supreme Court

held that in that case since the order of removal was passed

on 16.11.1988 and the directive dated 21.7.1984 was

operative, it must, therefore, be presumed that while passing

the said order, the disciplinary authority was acting in

accordance with the said directive.(See para 4). The same

presumption would apply in the instant case and hence I repel

the contention in defence that the authorities of the bank while

proceeding to pass the order dated 27.3.1989, the order dated

8.1.1990 and the order dated 26.5.1990 ignored the advice of

the Central Vigilance Commission.

14. Thus, if for no other reason, the 3 impugned orders

have to be quashed and the matter has to be remanded for

reconsideration by the disciplinary authority on the

applicability of the decisions of the Hon'ble Supreme Court in

Nagarjun's case (supra) and Satyendra Chander Jain's case

(supra) as also the decision of the Hon'ble Supreme Court

reported as AIR 1993 SC 1197 State Bank of India vs.

D.C.Aggarwal which held that where the disciplinary authority

acts on the recommendations of the Central Vigilance

Commission without supplying to the delinquent employee the

report in question, it would be in violation of the principles of

natural justice. Ordered accordingly.

15. Since I am remanding the matter I refrain from

going into the issue whether the disciplinary authority has

recorded a note of disagreement with the inquiry report but

caution the respondent that if the disciplinary authority records

or has recorded a note of disagreement with the findings of the

inquiry officer, at the remanded stage decision in Kunj Bihari's

case (supra) would be followed by the respondent.

16. Since the directive issued by the Ministry of Finance

mandating financial institutions to strictly follow the report of

the Central Vigilance Commission has been quashed by the

Hon'ble Supreme Court it is clarified that the report of the

Central Vigilance Commission need not be furnished to the

petitioner but it is made clear that the respondent i.e. neither

the disciplinary authority nor any other authority would

consider, look into or go by the advice of the Central Vigilance

Commission, which advice would be eschewed in its totality.

17. Needless to state, the disciplinary authority would

reconsider the matter afresh and while so doing would

consider all pleas urged by the petitioner in the memorandum

submitted by the petitioner to the disciplinary authority in

response to the report of the inquiry officer. All pleas urged in

the said memorandum would be considered and decision taken

thereon. It is again re-emphasized that if the disciplinary

authority records a point of disagreement with the report of

the inquiry officer, a fresh memorandum would be issued to

the petitioner notifying the point of disagreement and an

opportunity would be granted to the petitioner to submit his

response to the said point(s) of disagreement in compliance

with the law laid down in Kunj Bihari's case (supra).

18. Noting that sufficient time has gone by;

unfortunately due to the docket explosion in this Court the writ

petition has remained pending since 1993, it is hoped and

expected that disciplinary authority would expedite the matter

and would take fresh decision preferably within 3 months of

the receipt of the present order.

19. No costs.

PRADEEP NANDRAJOG, J.

JULY 03, 2008 dk