* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.1775/1996
% April 01, 2013
SH.Y.S.KAPOOR ..... Petitioner
Through: Mr. Gulab Chander &
Mr. S.N.Pandey, Advs.
versus
CENTRAL BANK OF INDIA AND ORS. ..... Respondents
Through: Mr. R.S.Mathur, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This writ petition is filed by the petitioner-Sh.Y.S.Kapoor
impugning the order of the disciplinary authority dated 26.2.2004 by which
the petitioner was inflicted punishment of dismissal from service. The
chargesheet containing the following charges was issued against the
petitioner:
"CHARGE-I : He issued a cheque bearing No.19899 dt.24.2.89 WP(C) 1775/1996 Page 1 of 9 for Rs.5000/- drawn on his HSS A/c No.8283 with our Patparganj Branch, Delhi, without keeping sufficient balance to cover payment of the cheque.
CHARGE-II : His cheque No.19899 dated 24.2.89 was presented by Canara Bank through RBI clearing on 16.3.89. At NBO, the cheque was listed in the clearing-sheet meant for Patparganj branch and the manifold was prepared. Shri Kapoor fraudulently removed his cheque No.19899 dt. 24.2.89 from the lot of cheques to be delivered at Patparganj branch obviously since there was no sufficient balance in his HSS A/c 8283 on that day.
CHARGE-III : In order to cover-up the removal of one cheque for Rs.5000/- he managed to get the manifold No.99558 and the Branch Clearing Sheet (Patparganj) altered from Rs.17,75,360.27p to Rs.17,70,360.27p.
CHARGE-IV : He managed to mix-up the cheque No.19899 for Rs.5000/- removed by him on 16.3.89 with Inward clearing of 8.9.89 at N.B.O.
CHARGE-V : Mr.Y.S.Kapoor also fraudulently removed 4 cheques for Rs.35000/-, Rs.38000/-, Rs.40000/- and Rs.48000/- totalling Rs.1,61,000/- intentionally to derive personal gain which is apparent from the fact that he received Rs.10000/- from the account of Kanchan Enterprises Proprietor Shri Sant Ram from B/O Patparganj Road on 3rd May, 1989."
2. On behalf of the respondent No.1/bank these charges were
proved by means of documents, Ex.M1 to Ex.M36. The respondent
No.1/bank also led evidence of three witnesses namely Sh.M.K.Jain, sub-
Accountant in Najafgarh Road Branch; Sh.S.P.Singh, Assistant-Accountant WP(C) 1775/1996 Page 2 of 9 in Kalkaji Branch and Sh.R.P.Huria, Branch Manager, Karol Bagh.
3. Whereas the respondent No.1/bank proved all the charges
through oral and documentary evidence, the petitioner led no evidence
before the enquiry officer. The petitioner did not cross-examine the
witnesses of the respondent No.1. In spite of various opportunities, the
petitioner failed to appear or lead any evidence, and therefore, the enquiry
officer thereafter gave his report dated 4.12.1993.
4. So far as the issue of the petitioner failing to appear in the
enquiry proceedings is concerned, the following observations made by the
authority are telling, and which are:-
"The Inquiring Authority Sh.S.K.Abbi, fixed the date of hearing on 27.10.90. The CSO had not attended the enquiry fixed for hearing on 27.10.90 & sent a letter informing his sickness, so the enquiry at the request of CSO stood adjourned to 10.11.90. But Sh. Kapoor, the SCO again on 10.11.90 sent a letter informing about his inability to attend the enquiry on the ground of sickness. Hence, the enquiry was again adjourned to 5.12.90 at the request of the CSO. Again the proceedings fixed for 5.12.90 were adjourned to 17.12.90 at the request of the CSO on grounds of sickness. However, having regard to the fact that the CSO had been invariably seeking adjournment of the inquiry on the grounds of sickness, and in order that the proceedings were not unduly delayed, the IA advised the CSO vide Regd. A/D Notice dt.5.12.90 that the proceedings fixed against him for 17.12.90 or on any other date that may be notified in future, would not be adjourned at the request of the CSO on the ground of sickness unless the CSO submit a medical certificate from Chief Medical Officer/Medical Superintendent of Govt. Hospital in Delhi in support of his WP(C) 1775/1996 Page 3 of 9 sickness. C.S.O was further put on notice by the Inquiring Authority vide his notice dated 5.12.90 that in case he does not comply with this requirement of his medical examination, the enquiry proceedings fixed against him would be held ex-parte at the risk & responsibility of the C.S.O.
In response to Inquiring Authority‟s notice dated 5.12.90, CSO vide his letter dated 10.12.90 informed that he was still under treatment and in case Bank Management had any doubt and wanted to get him examined by CMO/MS, they could arrange but on the risk and cost of the bank.
As requested by the CSO, the management arranged for his medical examination from the Govt. Hospital with prior notice by the bank to the CSO in this regard. The management also obtained prior appointment of Medical Supdt. Of Dr. Ram Manohar Lohia Hosptial New Delhi for the purpose. On 22.1.91, Sh.M.L.Kaul & Sh. R. Srivastava, the two officers of the bank were deputed at the residence of the C.S.O. for taking him to the aforesaid hospital for medical examination, but the CSO bluntly refused to accompany them to the hospital for medical examination on the sole excuse that he does not accept the authority of Sh.R.C.Bhagat, the then Incharge, NBO, New Delhi as a result of which the officers had to return back. Needless to add here that Sh.R.C.Bhagat was the administrative head of the NBO, where the CSO was working prior to his suspension and accordingly he was competent to get the CSO medically examined on behalf of the bank.
In view of the fact that the CSO had not turned up on the date of enquiry fixed for 27.10.90, 10.11.90, 5.12.90, 17.12.90 & again 6.2.91 on the ground of sickness and also the fact that the CSO intentionally & deliberately avoided the medical examination arranged by the management and also the fact that the CSO was „under suspension for the last more than 1 ½ year and was drawing subsistence allowance and avoiding the enquiry on one pretext or the other and also that sufficient opportunities had already been given to him, the Inquiring Authority was left with no other alternative but to proceed ex-parte against the C.S.O. on 6.2.91.
WP(C) 1775/1996 Page 4 of 9
Subsequent hearings were also held on various dates, but the C.S.O neither personally presented himself during the enquiry nor he submitted any medical certificate from a Govt. Hospital in support of his illness except on one occasion i.e. on 29.5.91, when the proceedings already held were cancelled by the Inquiring Authority and were again held on 17.7.91. It should be placed on record that IA cancelled the proceedings held on 29.5.91 only to provide fair and reasonable opportunity to defend him if at all the CSO was sick in terms of the M.C. from Dispensary. Revised proceedings after cancellation of proceedings of 29.5.91 were held on 17.7.91 despite cancellation of proceedings of 29.5.91 and consequently the proceedings were held ex-parte. Copies of all the proceedings were sent by the I.A. to the CSO at his residence under Regd. Cover.
During the enquiry proceedings held on 18.1.92 which was also as usual held ex-parte, the Presenting Officer provided the past record of the CSO and closed the management‟s case against the CSO. Since the CSO had not presented himself on 18.1.92, the Inquiring Authority adjourned the enquiry to 24.1.92 and clearly advised the CSO on Page-67 of the enquiry proceedings held on 18.1.92 that he was given final opportunity to produce documents & witnesses in his defence and in case he did not appear on the hearing fixed for 24.1.92, it shall be construed that he has nothing to submit in his defence and the enquiry proceedings would be held ex-parte at his risk and responsibility.
On 24.1.92 again as usual, the CSO neither appeared in the enquiry nor submitted any medical certificate from Govt. Hospital in support of his sickness. However, the Presenting Officer on the other hand informed the Inquiring Authority at page-69 of the enquiry proceedings held on 24.1.92 that Sh.Kapoor, the C.S.O was present in the court of Sh.R.S.Khanna, sub.Judge Ist Class at Tees Hazari Courts of Delhi in connection with his application for grant of permanent injunction/stay of present enquiry against him although he has submitted his certificate of his illness till 24.1.92. The Inquiring Authority on 24.1.92, after waiting for the C.S.O. till 12.30 P.M. at page- 71 of the enquiry proceedings held on 24.1.92, WP(C) 1775/1996 Page 5 of 9 held that since the CSO till now neither appeared nor submitted any documents or witnesses in his defence, hence it is construed that he has nothing to submit in his defence and concluded the enquiry on 24.1.92 itself advising both Presenting Officer and the CSO to submit their written brief by 3.2.92. It was also made clear by the I.A. at page-71 of the enquiry proceedings held on 24.1.92 that in case the CSO or Presenting Officer fails to submit their written brief by 3.2.92, the I.A. will submit his findings/report to the Disciplinary Authority without any further wait. While the Presenting Officer submitted his written brief on 29.1.92, the CSO however requested the IA to permit him to submit his written briefs till 15.2.92. C.S.O again informed the I.A. telegraphically that time granted for submission of written briefs was inadequate. Looking to the request of the C.S.O., the I.A. afforded him more time & permitted him to submit written brief in his defence by 15.2.92 positively. The C.S.O however did not submit the written brief despite extension of time at the request of the CSO was granted to him by Inquiring Authority. The Inquiring Authority submitted his enquiry findings/report dated 4.12.93 to the undersigned along-with enquiry proceedings, documents filed as well as written briefs of the Presenting Officer. The findings could not be submitted earlier due to Court Orders."
(underlining added)
5. A reading of the aforesaid portion of the enquiry report shows
that the petitioner deliberately failed on various hearings to appear before the
enquiry officer or lead his evidence. The charges against the petitioner were
grave of his defrauding the bank for a sum of Rs.1,61,000/-. Banks deal in
public monies and dishonesty alongwith breach of trust is sufficient to order
dismissal of service of an employee. The aforesaid portion of the report of
the enquiry officer also shows that repeatedly time was taken by the
petitioner on the ground that he was sick, yet he did not appear. When the WP(C) 1775/1996 Page 6 of 9 petitioner said that he could be got checked medically, the respondent
No.1/bank agreed and deputed two officers to go to the residence of the
petitioner for going to the hospital and for which appointment had been
taken, but the petitioner flatly refused to accompany the officers of the bank
for the medical check up. Also, the petitioner while on the one hand was
feigning illness; on the other hand, he was actively prosecuting his civil suit,
and in fact was personally present in the hearing for seeking a stay of the
departmental proceedings.
6. I may note that the petitioner had filed a civil suit to stay the
enquiry proceedings allegedly on the ground of his illness, and that said civil
suit was dismissed. Counsel for the petitioner states that the civil suit was
dismissed in default, however, no judgment of the Civil Court is filed before
this Court. In fact, counsel for the respondent No.1/bank states that an
appeal was also filed by the petitioner which was dismissed. In any case,
nothing would turn upon the judgment passed by the Civil Court, because
the said judgment would not operate as res judicata and what would operate
as binding between the parties are proceedings before the enquiry officer
which culminated in the report dated 4.12.1993 of the enquiry officer and
the consequent order dated 26.2.1994 of the disciplinary authority. The
WP(C) 1775/1996 Page 7 of 9 order of the disciplinary authority has been confirmed by the Appellate
Authority vide order dated 12.10.1995.
7. Counsel for the petitioner sought to argue that the petitioner has
been exonerated in the criminal case which was filed against the petitioner,
and therefore, the orders of the disciplinary authority and the appellate
authority should be set aside on this basis itself because the same charges
were in issue in the criminal proceedings and the bank led evidence of the
same witnesses who had appeared in the enquiry proceedings. I am unable
to agree with the contention as raised on behalf of the petitioner because it is
now settled law that findings of a Criminal Court will not operate as res
judicata in the departmental proceedings, because in a criminal case the
offence has to be proved beyond doubt whereas the departmental
proceedings are governed by civil law and onus of proof is discharged on
balance of probabilities. Further, the decision in a criminal case may bar the
department from departmental proceedings only if there is such a rule in this
regard, but, there is no such rule of the respondent No.1/bank that
departmental proceedings cannot take place and be concluded
simultaneously with the criminal case which was lodged against the
petitioner for cheating and defrauding the bank.
WP(C) 1775/1996 Page 8 of 9
8. Law with regard to the scope of hearing in a Court hearing a
petition under Article 226 of the Constitution of India against the orders of
the disciplinary authority and the appellate authority is now well charted out.
This Court interferes with the findings and conclusions of the departmental
authorities only if the findings are perverse or illegal or violative of
principles of natural justice. In the present case, there is no perversity or
illegality because the respondent No.1/bank has duly proved the charges in
the departmental proceedings. There is no question of violation of principles
of natural justice because a person who is given repeated opportunities to
appear and contest the case, but yet fails to contest the case, cannot urge that
there was violation of principles of natural justice.
9. In view of the above there is no merit in the petition, which is
accordingly dismissed, leaving the parties to bear their own costs.
VALMIKI J. MEHTA, J APRIL 01, 2013 ak
WP(C) 1775/1996 Page 9 of 9
