Delhi High Court

Mahesh Chander Kalra vs Bank Of India And Ors. on 22 April, 2013

Author: Valmiki J. Mehta

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                         WP(C) No.1888/1996

%                                                          April 22, 2013

MAHESH CHANDER KALRA                                ..... Petitioner
                Through:                 Mr. Manjit Chawla, Advocate.


                          versus

BANK OF INDIA AND ORS.                               ..... Respondents

                  Through:               Ms. Jahanvi Vorah, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA


To be referred to the Reporter or not?          Yes.


VALMIKI J. MEHTA, J (ORAL)

1. This writ petition filed by Sh. Mahesh Chander Kalra impugns

the departmental proceedings and the orders passed by the Disciplinary

Authority and the Appellate Authority whereby the petitioner has been

visited with the punishment of dismissal from services.

2. The facts of the case are that the petitioner was issued Article of

Charges dated 2.7.1993 alongwith relevant Statement of Allegations, List of

Documents and List of witnesses by the respondent No.1-bank. Sum and

substance of the charges against the petitioner were effectively of taking

fraudulent credits totalling to `22,571.83/- on the basis of a false credit note.

The amount of `22,571.83/- comprised of three amounts of ` 6117.91/-, `

6700/- and ` 9753.92/-. The aforesaid three amounts were credited in the

savings bank account maintained by the petitioner, his son and his wife as

also one Sh. Manish whose account was introduced by the petitioner. The

petitioner appeared in the enquiry proceedings. On behalf of respondent

No.1-bank evidence was led of its various witnesses. Petitioner also led

evidence of three witnesses whereafter his right to lead evidence was closed.

The Enquiry Officer thereafter gave his report dated 27.4.1994 giving a

finding of guilt against the petitioner with respect to all the charges. The

Disciplinary Authority after hearing the petitioner passed the penalty order

dated 30.8.1994 dismissing the petitioner from services. The order of

Disciplinary Authority was upheld by the Appellate Authority vide order

dated 4.10.1995.

3. On behalf of petitioner, the following arguments have been

urged before me:

(i) The entire case of the respondent No.1-bank was based on a credit

note but since the credit note itself was destroyed there was no primary

evidence to fasten the charge of guilt against the petitioner. In the absence

of relevant documents, it cannot be said that petitioner should be held guilty.

(ii) As per the relevant regulations of the respondent No.1, namely Bank

of India Officers Employees' (Discipline and Appeal), Regulations, 1976 the

Disciplinary Authority so far as the petitioner who was working in the Scale-

I is concerned was to be a Zonal Manager and the Appellate Authority was

to be a Deputy General Manager(DGM), however in the departmental

proceedings, the Disciplinary Authority was no doubt the Zonal Manager but

he was a Deputy General Manager (the rank which was to be of the

Appellate Authority) and the Appellate Authority was a General

Manager(GM) and hence there is violation of relevant regulations.

(iii) There is violation of principles of natural justice because petitioner

asked for documents which were not supplied to him and hence this

prejudices the defence of the petitioner in enquiry proceedings.

(iv) The respondent No.1-bank failed to supply copies of the statement of

witnesses which were recorded in the fact finding investigation which was

done before the enquiry proceedings begin and since these statements in the

preliminary fact finding enquiry were not given, petitioner has been

prejudiced.

(v) Petitioner has not been given the preliminary enquiry report pursuant

to which the departmental proceedings were initiated against the petitioner

and therefore principles of natural justice have been violated.

(vi) Petitioner asked for representation through lawyer which was denied

and this denial therefore has caused violation of principles of natural justice.

(vii) Petitioner's evidence was wrongly closed after three witnesses were

examined without giving opportunities to the petitioner to lead evidence of

the fourth witness Mr. Wadhwa and also his own deposition.

(viii) In fact, the petitioner is a victim because fraud has been played upon

him by crediting the amount in his account by conspiracy and therefore

enquiry proceedings are vitiated.

(ix) Finally, it is contended that there is violation of Regulation 6(17)

inasmuch as after enquiry proceedings were completed the Enquiry Officer

failed to generally question the petitioner so that the petitioner could explain

the circumstances appearing in the evidence against him.

4. Each of the aforesaid arguments has been duly met by the

counsel for the respondent No.1, and which defence arguments will be dealt

with at appropriate places in the present judgment.

5. Before I proceed to deal with the contentions urged on behalf of

the petitioner, I must note that while hearing a petition under Article 226 of

the Constitution of India, this Court does not sit as an appellate Court against

the orders of the Disciplinary Authority and the Appellate Authority. This

Court is not entitled to re-apprise the evidence led in the enquiry

proceedings and which falls in the realm of functions of the Enquiry Officer.

This Court can only interfere with the order of the departmental authorities

only if there is perversity or illegality or violation of principles of natural

justice. Once the departmental authorities have taken a view on the basis of

record which has emerged in the departmental proceedings this Court would

not interfere with the plausible view which has been taken by the

departmental authorities. In terms of the aforesaid parameters of law, let us

see whether the arguments which have been urged on behalf of the petitioner

are sustainable. I may also further state that departmental proceedings are

not criminal case proceedings where all the aspects have to be proved

beyond doubt and nor the technical procedures of a civil court where

discharge of onus of proof are applicable strictly. Of course, general

principles of proof and establishing the case do apply to the departmental

proceedings, however, strict technicalities of the proceedings in terms of the

Code of Civil Procedure (CPC) are not applicable and Courts have taken a

view that unnecessary technicalities and technical flaws should not in any

manner cause setting aside of the orders passed by the departmental

authorities.

6. So far as the first argument urged on behalf of the petitioner

that the relevant original document namely credit note having not been filed,

hence in absence of the original document the charge therefore cannot be

sustained, is an argument whereby the petitioner would be allowed to take

advantage of his own wrong. Petitioner was posted in the branch. It is the

petitioner who created the documents for crediting of the amount in the

accounts. So as to avoid getting caught, the petitioner destroyed various

documents including the credit note. There is due application of mind by the

departmental authorities on this aspect and considering such aspects the

departmental authorities have thereafter passed appropriate orders on the

basis of other evidences including oral depositions of the witnesses. That

being so, I do not think that on this ground the petitioner should be allowed

to urge that he is being prejudiced and the findings of the departmental

authorities are vitiated. I may note that even if the credit note was not

available, yet the Enquiry Officer has considered various other documents

including the statements of various savings bank accounts and other

documents which were relied upon when the Article of Charges were served

upon the petitioner. The argument of the petitioner of enquiry being vitiated

on account of non-availability of the original credit note is therefore

accordingly rejected.

8. The second argument is an argument on the aspect of violation

of principles of natural justice and prejudice to the petitioner because the

petitioner contends that the Disciplinary Authority in the present case could

not have been the Deputy General Manager because the Deputy General

Manager is an Appellate Authority as per the schedule to the regulations.

I may note that this argument on the first blush did appear to

have some effect, however, I may note that ordinarily though DGM has to be

the Appellate Authority since because of administrative reasons/postings it

sometimes does happen that a Zonal Manager who has to pass the

Disciplinary Authority's can be of the rank of DGM then in such cases the

Appellate Authority ought to be of a higher rank than the Deputy General

Manager. In the present case, the Appellate Authority which passed the

order dated 4.10.1995 was the General Manager i.e admittedly a rank above

the DGM. I do not think that regulations have to be construed so strictly

when because of service exigencies the Zonal Manager may be a DGM and

therefore is the Disciplinary Authority, because, petitioner can only be

prejudiced if the Appellate Authority would have been of the same rank i.e

Deputy General Manager and which is not so in this case. Respondent in its

counter-affidavit has referred to the fact that on passing of an administrative

order by its Managing Director and to cover such situations it has been

directed that the Appellate Authority would be the General Manager. Since

in the present case the Appellate Authority admittedly was of the rank of the

General Manager i.e higher to the rank of the DGM who was the

Disciplinary Authority, though there may be overlooking of the regulations

by the respondent No.1, however, I do not find that results in prejudice to the

petitioner or violation of service law jurisprudence or violation of principles

of natural justice because the claim of the petitioner can at best be that the

Appellate Authority should be higher than the Disciplinary Authority, and

admittedly the Appellate Authority was a higher authority than the

departmental authority in the present case. In view of these facts that the

judgment of Surjit Ghosh Vs. Chairman and M.D. United Commercial

Bank AIR 1995 SC 1053 cannot assist because the petitioner has exercised

his right of appeal with a higher designated officer. The judgment cited of

MCD Vs. Sh. Ram Pratap Singh 1977 SCC (L&S) 80 also is not relevant

because there is no delegation of powers of the Disciplinary Authority to a

lower rank officer and which had happened in the case of Ram Pratap Singh

(Supra).

This argument urged on behalf of the petitioner is also

misconceived and therefore rejected.

9. The third argument which is urged on behalf of the petitioner is

an argument that the petitioner did not receive the documents which he had

asked for while replying to the Article of Charges and hence there is

violation of principles of natural justice. When I put it to the counsel for the

petitioner to show me averments in the writ petition as to which specific

documents were not supplied to the petitioner and how therefore the

petitioner was prejudiced no such averments could be pointed out in the writ

petition as to which particular documents were not given and consequently

how the petitioner has been prejudiced.

In fact, in my opinion, the argument of non-supply of

documents will have very little weight because the enquiry proceedings

dated 13.10.1993 show that the presenting officer submitted photocopies of

the documents duly signed by the petitioner in token of his having inspected

the original documents. Once the petitioner has inspected the original

documents, petitioner cannot complain of violation of principles of natural

justice because principles of natural justice are not hidebound and inflexible

rules. The object of principles of natural justice is that the stand of the

person must be heard after notice is issued to him. Technicalities should not

be able to prevail over substantial justice. Therefore, considering the fact

that neither requisite pleadings have been made in the writ petition and also

the fact that petitioner has taken inspection of the original documents as

recorded on 13.10.1993, I reject the argument that petitioner has been

prejudiced and principles of natural justice have been violated.

10. Learned counsel for the petitioner has sought to place reliance

upon the judgment of the Supreme Court in the case of Chandrama Tewari

vs. Union of India(UOI) (through General Manager, Eastern Railways),

1987 Suppl.(1) SCC 518, to contend that once the documents as asked for by

the petitioner are not given, the enquiry proceedings are vitiated. In my

opinion, the judgment relied has no application because in paragraph 9, the

Supreme Court has stated that issue of compliance of the principles of

natural justice has to be seen in the facts of each case as to whether prejudice

is or is not caused to the delinquent officer. In the present case, as already

stated above, the petitioner has neither pleaded what documents ought to

have been supplied and how he has been prejudiced on account of

documents not having been supplied. The Supreme Court in the judgment of

State Bank of Patiala & Ors. Vs. S.K.Sharma, 1996 (3) SCC 364, has held

that once the case is a case of not at all following of the principles of natural

justice viz a case of no notice/no hearing, and the issue is only of compliance

of a facet of the principles of natural justice, such as non-supply of

documents, unless and until prejudice is established, principles of natural

justice cannot be said to be violated. In my opinion, counsel for the

respondent is also justified in placing reliance upon the decision of the

Supreme Court in the case of A. Sudhakar Vs. Post Master General,

Hyderabad and Anr., 2006 (3) Scale 524 inasmuch as in the said judgment

it is clearly observed that with respect to disciplinary proceedings, there has

to be substantial compliance of the principles of natural justice. In para 26

in A. Sudhakar's case (supra) the Supreme Court has observed that

principles of natural justice are required to be examined in the context of a

given case as to whether there has resulted in denial of justice, and there is

no denial of justice once there had been substantial compliance of the

procedure. In the present case, I have already referred to the factum of the

documents having been inspected by the petitioner, and which aspect is

independent to the aspect as to how the petitioner has been prejudiced has

not been stated, and therefore, I reject the argument urged on behalf of the

petitioner that the enquiry report is bound to be set aside on account of non-

compliance of principles of natural justice.

11. The next argument which was urged on behalf of the petitioner was

that since there was a preliminary enquiry report before the main enquiry

commenced, the petitioner ought to have been given copies of the

preliminary enquiry report as also the statements of the witnesses in the

preliminary enquiry report and non-giving of the same has materially

affected the defence of the petitioner in the departmental proceedings. In my

opinion, once again this argument is without merit because it is not as if the

respondent-bank relied upon the preliminary enquiry report and the

statements of the witnesses made in the preliminary enquiry before the

Enquiry Officer. The Enquiry Officer has independently gone into the

charges and referred to the independent evidence which was led before him

to establish the guilt of the petitioner. I therefore reject the argument as it is

not the law that copies of the preliminary enquiry report as also the

statements of the witnesses in the preliminary enquiry report have to be

given to the charged official when the same are not relied upon in the actual

disciplinary proceedings.

12. The next argument urged on behalf of the petitioner was that the

petitioner was not allowed to examine the 4th witness Mr. Wadhwa and also

lead his own evidence thus causing violation of principles of natural justice.

In this regard, I may note that the Enquiry Officer gave sufficient

opportunities for appearance of Mr. Wadhwa, who failed to appear, and

therefore, the Enquiry Officer has noted that the petitioner must thereafter

continue his evidence, but, the petitioner took an obdurate attitude of not

continuing with the evidence, and therefore, the right of the petitioner to lead

the evidence was closed. In my opinion, there is no interminable right of a

charged official to keep on seeking adjournments or take obdurate attitude

and refuse to lead evidence. In the facts of the present case, I do not find

that the Enquiry Officer, in any manner, has committed an illegality or

perversity in closing the evidence of the petitioner. Also, I may note that in

departmental proceedings a charged official has to bring his own witnesses

and hence strict technicalities of the Court do not apply in the departmental

proceedings. If Mr. Wadhwa did not appear in spite of notice to him it was

for the petitioner to bring Mr. Wadhwa on his own responsibility and if Mr.

Wadhwa was reluctant to come to the witness box I do not think that the

Enquiry Officer has, in any manner, committed an illegality or perversity in

not allowing the petitioner any further opportunity to call Mr. Wadhwa.

13. The next argument urged on behalf of the petitioner is that the

petitioner is in fact a victim of fraud because he does not know how the

subject amount was credited in his account and the accounts of his family

members. To a pointed query of the Court, there was no response on behalf

of the petitioner that this ground was taken up in the departmental enquiry

either by the reply to the show cause notice or by some other pleadings

before the Enquiry Officer. Quite clearly, therefore, this argument is only an

afterthought, and therefore, is without any basis/substance and is hence

rejected.

14. For the sake of argument even if I assume that the petitioner has taken

a stand of alleged conspiracy and fraud against him, in my opinion, the

Enquiry Officer was perfectly justified in rejecting this case of petitioner

because self-serving statements cannot be a basis for proving an alleged

fraud. The Enquiry Officer has arrived at a finding of guilt of the petitioner

after referring to the statements of witnesses including documentary

evidence before him and which evidence showed that with respect to

various accounts of the petitioner and his family on amounts being

credited/deposited, the petitioner did take the benefit of the credits which

were made in those accounts.

15. Another argument urged on behalf of the petitioner is that the

petitioner was entitled to be represented through a lawyer and since this

benefit was denied to him the principles of natural justice have been

violated. For this purpose, learned counsel for the petitioner has placed

reliance upon the judgment in the case of P. Jayachandra Rao Vs. State

Bank of Hyderabad (A.P.), 1991 (1) SLR 79. In my opinion, the judgment

relied upon cannot be said to lay down a universal law that in departmental

proceedings a person is always entitled to the assistance of a lawyer. Even

in the said judgment reference is made to the position that only where there

are complicated legal issues or the presenting officer on behalf of the

department is a legally trained officer, then, in such circumstances the

charged official is entitled to be represented through a lawyer. In the present

case, I do not find any complicated legal issues, and admittedly it is not as if

the presenting officer on behalf of the department was a lawyer. Therefore,

in my opinion, petitioner cannot urge that the principles of natural justice

were violated by not allowing him to be represented through lawyer. In this

regard, counsel for the respondent-bank is justified in relying on D.G.

Railway Protection Force and Ors. Vs. K. Raghuram Babu, 2008(4) SCC

406 which holds that ordinarily in domestic/departmental enquiry a charged

official has to conduct his own case and the proceedings are not of

proceedings in a Court where a person has right to be represented through a

lawyer. The Supreme Court has said that there is no vested right of a

chargesheeted employee to be represented through a lawyer, unless there is a

specific statute or standing order or rule which provides such a right.

Admittedly, in the present case, there is no such statute or rule or standing

order whereby a charged official has compulsorily to be represented through

a lawyer. The discretion exercised in refusing the petitioner to be

represented by a lawyer cannot be faulted with on account of the reasons

already given above. I therefore reject this argument urged on behalf of the

petitioner that enquiry proceedings are bound to be quashed because the

petitioner was not provided with the assistance of a lawyer.

16. That takes me to the final argument urged on behalf of the petitioner

that there is violation of Regulation 6(17) which provides that the Enquiry

Officer after completion of evidence was bound to require the petitioner to

give answers to various issues against him and which aspect having not been

followed, enquiry proceedings are liable to be quashed for the said reason.

17. In order to appreciate the aforesaid argument on behalf of the

petitioner, it will be necessary to reproduce the relevant regulation and the

same reads as under :

" 6(17) The Inquiring Authority may, after the officer employee closes his evidence, and shall, if the officer employee has not got himself examined, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer employee to explain any circumstances appearing in the evidence against him."

18. In my opinion, the aforesaid regulation cannot be so strictly read that

a specific date has to be fixed by the Enquiry Officer for generally

questioning the charged official/petitioner on the circumstances appearing

against him in the evidence or for the charged official to explain the

circumstances appearing in the evidence. Really this regulation will stand

complied with on the petitioner being allowed to address the Enquiry Office,

by addressing his final arguments including giving written arguments in

support of his case. In the present case it is not disputed that the petitioner

not only addressed the Enquiry Officer, but also filed detailed written

submissions dated 26.2.1994. In my opinion, therefore in substance

Regulation 6(17) shall stand complied with, and since the petitioner has been

completely heard in this case, I do not think that there is any violation of