Punjab National Bank And Ors. vs H.N.Wadhwa
2013 Latest Caselaw 1066 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment reserved on   :      28.02.2013
                          Judgment pronounced on :      04.03.2013

+      LPA 191/2007

PUNJAB NATIONAL BANK AND ORS.          ..........Appellants
                 Through : Mr. V.K.Rao, Sr. Adv. along with
                           Mr.Ayushya Kumar and Ms. Neha
                           Bhatnagar, Adv.
H.N.WADHWA                             ..........Respondent
                 Through: Mr. Ashok Bhalla, Adv.
     CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

1. The respondent, who at the relevant time was working as a

Manager with the appellant Bank was posted at Bhadoi in U.P. from

21st August, 1985 to 27th November, 1986. On the allegations that he had

submitted as many as 15 fake hotel bills for Rs.21257.20, the following

charge-sheet was served upon the respondent:-

Shri H.N. Wadhwa, Manager (under suspension), Branch Office, Rana Pratap Bagh, Delhi, during his tenure as Manager on deputation at B/O, Badoi, fraudulently claimed payment of TA/DA bills from the bank, during the period 27.02.86 to 27.11.86 by submitting 15 fake

hotel bills for Rs 21,257.20 as detailed in enclosed statement of Allegations (Annexure-II). He is, therefore, hereby charged for the same as follows, each charge being independent of the others;

1. For acting in a manner prejudicial to the interest of the bank;

2. For failure to discharge his duties with utmost integrity, honesty and diligence,

3. For failure to ensure and protect the interest of the bank;

4. For acting in a manner unbecoming of an officer of the bank;

5. For acting otherwise than in his best judgment while discharging his duties; and

6. For making unlawful gains by claiming TA/DA bills on the basis of fake hotel bills.

The following was the statement of imputation accompanying the

chargesheet:-

"Shri H.N. Wadhwa while functioning as Manager on deputation at Branch Office, Bhadoi (U.P) fraudulently claimed payment of TA/DA bills from the bank during the period 27.2.1986 to 27.11.1986, by submitting fake hotel bills for Rs 21,257.20, purportedly to have been issued by Seth Lodging & Boarding, Gyanpur Road, Bhadoi, whereas there is not hotel at Bhadoi, under the name & style of Seth Lodging and Boarding, Gyanpur Road, Bhadoi."

2. In his reply to the charge-sheet, the respondent stated that during

the stay at Bhadoi from 21st August, 1985 to 27th November, 1986, he had

stayed in the guest house of Shri B.K. Seth and was provided furnished

room with breakfast and lunch for which Mr. Seth had charged for him

and issued him bills in the name of Seth Lodging & Boarding which he

claimed from the Bank.

3. Since the appellant was not satisfied with the written statement of

defence submitted by the respondent, an inquiry was instituted to go into

the charges against him. During the pendency of the inquiry, the

following additional charges were served upon the respondent:-

"Being fully aware of the fact that Shri B.K. Seth is one of the partners of M/s Seth Carpets which was granted certain credit facilities by Shri Wadhwa, Shri Wadhwa by misusing his official status obtained from Shri B.K. Seth, the abovementioned fake hotel bills thereby deriving pecuniary gain for himself from the bank in an irregular manner."

However, the respondent was not asked to submit a written

statement of his defence to the additional charge and no list of documents

or list of witnesses to prove the additional charge was forwarded to the

Inquiry Officer or supplied to the respondent, in terms of Regulation 6(3)

of New Bank of India Officers Employees' (Discipline And Appeal)

Regulations, 1982 which were applicable to the respondent. The charges

against the respondent having been held to be proved, the Disciplinary

Authority vide order dated 10th June, 1991 imposed penalty of removal of

service upon him. The appeal filed by the respondent was dismissed by

the Appellate Authority on 19th November, 1991 and the Review Petition

filed by him was dismissed on 25th September, 1992.

4. Aggrieved from the orders passed by the Disciplinary Authority

and Appellate Authority and Reviewing Authority, the respondent

preferred W.P.(C) No. 3047/1993. The learned Single Judge vide

impugned order dated December 20, 2006 held that the appellant had

failed to give an opportunity to the respondent to file written statement of

defence before commencement of inquiry and had also failed to supply

the copy of CBI Report to him which failures were serious enough to

vitiate the inquiry to the extent of the second part of chargesheet.

However, since the first charge against the respondent was held to be

proved, the learned Single Judge remanded the matter back to the

Disciplinary Authority for the purposes of imposing a penalty

commensurate with the charge proved against him. Being aggrieved

from the order passed by the learned Single Judge, the appellant is before

us by way of this appeal. Since the respondent is also aggrieved on

account of the finding on the first charge being upheld, he has filed cross-

objections challenging the order passed by the learned Single Judge.

5. Regulation 6 of New Bank of India Officers Employees'

(Discipline And Appeal) Regulations, 1982 prescribes the procedure for

imposing major penalties and to the extent it is relevant, the said

Regulation reads as under:-

6. Procedure for impoising major penalties (1) No order imposing any of the major penalties specified in clauses (e), (f), (g) & (h) of regulation 4 shall be made except after an enquiry is held in accordance with this regulation.

xxxxxx (3) Where it is proposed to hold an inquiry, the Disciplinary Authority shall frame definite and distinct charges on the basis of the allegations against the officer employee and the articles of charge, together with a statement of the allegations, on which they are based, shall be communicated in writing to the officer employee, who shall be required to submit within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), or within such extended time as may be granted by the said Authority, a written statement of his defence.

(4) On receipt of the written statement of the officer employee, or if no such statement is received within the time specified, an enquiry may be held by the Disciplinary Authority itself, or if it considers it necessary so to do appoint under sub-regulation (2) an inquiring authority for the purpose :

Provided that it may not be necessary to hold an inquiry in respect of the articles of charge admitted by the officer employee in his written statement but shall be necessary to record its findings on each such charge. (5) The Disciplainary Authority shall, where it is not the inquiring authority, forward to inquiring authority:

(i) a copy of the articles of charges and statements of imputations of misconduct or misbehaviour;

(ii) a copy of the written statement of defence, if any, submitted by the officer employee;

(iii) a list of documents by which and list of witnesses by whom the articles of charge are porsposed to be substantiated;

(iv) a copy of statements of the witnesses, if any.

6. The purpose of giving an opportunity to the employee concerned to

submit a written statement of his defence is to enable him to satisfy the

Disciplinary Authority, by way of his reply, that the charges served upon

him were not tenable and called for no inquiry. If the Disciplinary

Authority is satisfied with the written statement of defence submitted by

employee, he is not required to hold an inquiry against him and may

decide to drop the proceedings initiated by him. Therefore, by not giving

an opportunity to the respondent to file his written statement of defence,

the appellant deprived him of this valuable opportunity to satisfy the

Disciplinary Authority that the charges against him did not warrant an

inquiry.

The purpose of providing the list of witnesses and the copies of

documents by which the charge against the employee is sought to be

proved, to the Inquiry Officer as well as the delinquent employee is to

enable them to know what witnesses the disciplinary authority proposed

to examine and what documents it was seeking to prove during the course

of inquiry, to substantiate the charges. Supply of list of witnesses sought

to be examined and copies of documensts sought to be proved during the

inquiry is of immense importance to the delinquent employee since he

has to prepare his defence, taking into consideration the witnesses who

are sought to be examined and the documents which are sought to be

proved in the course of the inquiry. It is not possible for an employee to

adequately defend himself, unless these vital documents are provided to

him before the commencement of the inquiry. An employee who does

not get such important document is bound to be prejudiced in making his

defence and the inquiry certainly becomes vitiated on account of such

prejudice to the delinquent employee. Therefore, we are in agreement

with the learned Single Judge that as far as the additional charge is

concerned, the inquiry got vitiated on account of the respondent not being

given an opportunity to file his written statement of defence before

commencement of inquiry and the list of witnesses and copies of

documents relevant to the additional charge not being provided to him.

Therefore, we find no merit in the appeal filed by the bank.

7. Coming to the cross-objections filed by the respondents, the only

question which comes up for consideration is as to whether there was

evidence produced during the inquiry to prove that the respondent had

not stayed in a Guest House or had not paid the amount which he claimed

from the appellant bank as lodging charges. It is settled proposition of

law that the Court, while exercising jurisdiction under Article 226 of the

Constitution does not act as an Appellate Authority and cannot interfere

with the finding of fact recorded by the Disciplinary Authority/Appellate

Authority unless it finds that there was absolutely no evidence to prove

the charge or the finding recorded by the concerned authority was

perverse in the sense that no reasonable person acting on the basis of the

evidence produced during the inquiry could have taken the view which

was taken by the Disciplinary Authority/Appellate Authority. It is in this

backdrop that we have to examine whether the finding of the Disciplinary

Authority in respect of the first charge which has been upheld by the

Appellate Authority as well as their Reviewing Authority and also found

favour with the learned Single Judge calls for interference by us in this

appeal.

8. Admittedly the respondent had submitted bills purporting to be

issued by M/s Seth Lodging and Boarding House, Badhoi. It has come in

the deposition of MW-1 that there was no hotel/guest house by the name

`Seth Lodging and Boarding House' at Badhoi. This witness was in

Badhoi from April 1983 to January, 1984 and then from October 1986 till

date he was examined. Admittedly, the bills submitted by the respondent

to the appellant bank purported to be signed by Mr.Brijainder Kumar

Seth. Despite the fact that the appellant had produced a witness who

claimed that there was no Guest House by the name of Seth Lodging and

Boarding House at Badhoi, the respondent chose not to examine from

Brijainder Kumar Seth. The learned counsel for the respondent

submitted that the respondent had filed an affidavit from Mr.Seth to

prove that the aforesaid guest house was being run by him at Badhoi and

the charges shown in the bill were paid to him. However, admittedly

Mr.Seth was not produced for cross-examination. In the absence of an

opportunity to the appellant to cross-examine Mr.Seth, the affidavit filed

by the respondent cannot be read in evidence and consequently cannot be

taken into consideration. The respondent did not lead any evidence such

as production of Registration Certificate of the aforesaid Guest House, its

electiricity/water bills, etc. to show that any such Guest House was

actually functioning at Badhoi. No employee of the aforesaid Guest

House was produced by him in his defence. It also came in the

deposition of MW-2 that there was no hotel at the address given in the

bills submitted by the respondent which, in fact, was a residential

building where the respondent was residing during his tenure at Badhoi

and that building belonged to Mr.Seth who had taken a loan from the

bank. This witness, on instructions from the bank had gone to Gian Pur

Road, Badhoi and made inquiry from local people who told him that no

such hotel/Guest House was functioning there. MW-2 also made inquiry

about the existence of Seth Lodging and Boarding House and according

to him some people had informed him that there was no such hotel. In

these circumstances, it cannot be said that there was no evidence to prove

the first charge against the respondent or that the finding recorded by the

Disciplinary Authority in respect of the first charge is perverse.

Consequently, no ground for interference with the impugned order as far

as the first charge against the appellant is concerned, is made out.

9. For the reasons stated hereinabove, the appeal as well as the cross-

objections are dismissed. The matter is remitted back to the Reviewing

Authority to take a fresh decision with respect to the penalty to be

awarded to the respondent in respect of the first charge which is the only

charge established against the respondent. The appropriate decision by

the Reviewing Authority, in terms of this order shall be taken within

eight weeks of a copy of this order being communicated to him. No

orders as to costs.

V.K.JAIN, J

CHIEF JUSTICE

MARCH 04, 2013 'sn'/ks