A.K. Jain vs Union Bank Of India And Anr.
2014 Latest Caselaw 587 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment delivered on: 30.01.2014

+                         W.P.(C) 15099/2004

       A.K. JAIN                                  ..... PETITIONER

                                 VERSUS



       UNION BANK OF INDIA AND ANR. ... RESPONDENTS

ADVOCATES WHO APPEARED IN THIS CASE:

For the Petitioner: Mr. Sarvesh Bisaria, Advocate For the Respondents: Mr. O.P. Gaggar, Advocate

CORAM :-

HON'BLE MR JUSTICE RAJIV SHAKDHER

RAJIV SHAKDHER, J

1. This writ petition is directed against the order dated 18.06.1999 passed by the disciplinary authority; order dated 05.01.2001 passed by the appellate authority; and lastly, the communication dated 22.02.2002 issued on behalf of the reviewing authority.

2. The challenge, briefly, has arisen, in the background of the following facts :-

2.1 The petitioner was appointed as a clerk with respondent no.1 bank, in 1973. Between 1976 and 28.05.1988, the petitioner got promoted from clerical grade to MMGS-II. In August, 1988, the petitioner was transferred to the Samastipur branch in Patna. The petitioner was posted in the said branch till April, 1994. To be

precise, he was transferred from Samastipur branch to Delhi on 09.04.1994. Just before the petitioner, was transferred, he was as a matter of fact, promoted from MMGS-II to MMGS-III, on 07.03.1994.

2.2 Evidently, on 27.03.1997, the petitioner was served with a charge-sheet. The charge-sheet was accompanied with statement of allegations. The statement of allegations referred to 17 accounts, in respect of which fault was found qua the petitioner on various counts. Notably, these were accounts, in respect of which, loans had been advanced under the vigil of the petitioner, who was then the Manager of the Samastipur Branch.

2.3 The petitioner, filed a reply on 19.04.1997, denying the allegations made against him and, in his own way, attempted to explain the transactions. Respondent no.1 bank being not satisfied, appointed an enquiry officer, who on conclusion of the enquiry found the petitioner, guilty of the charges levelled against him.

2.4 The petitioner, undoubtedly, was given a copy of the enquiry report, to which, he filed a reply. The disciplinary authority, which, in this case was, the Assistant General Manager of respondent no.1/bank vide order dated 18.06.1999 agreed with the recommendations of the Enquiry Officer and, imposed the punishment of compulsory retirement.

2.5 Being aggrieved, the petitioner preferred an appeal, which was, dismissed by the appellate authority vide order dated 05.01.2001.

2.6 The petitioner, preferred a review petition on 25.01.2001.

2.7 Quite curiously, in respect of the review petition, the petitioner, instead of receiving the order of the reviewing authority, received a communication dated 22.02.2002, sent by the Senior Manager of respondent no.1 bank, which informed the petitioner, that even though, Regulation 18 of the Union Bank of India Officer Employees‟ (Discipline and Appeal) Regulations, 1976 (hereinafter referred to as Regulations) provides only for a suo motu review by the reviewing authority and, that too, within a period of six months of the date of the final order, his case had been reviewed by the reviewing authority. The communication concluded by stating that his review petition, could not be entertained.

2.8. Being aggrieved, the petitioner approached this court. The writ petition was moved on 17.09.2004, when notice was issued in the petition. Pleadings in the matter were completed on 31.08.2005, when it was admitted for hearing.

2.9. On 07.02.2013, when the matter came up for hearing before my predecessor, he dismissed the writ petition, on the ground of lack of jurisdiction.

3. Being aggrieved, the petitioner filed an appeal, which was numbered as : LPA 339/2013. The Division Bench vide order dated 23.05.2013 remanded the matter to the learned Single Judge, broadly, on the ground that, since, much time had elapsed between the institution of the petition and, the passing of the order dated 07.02.2013, the matter ought to be decided on merits.

4. This is how, the writ petition, has come up for hearing, once again, before me.

5. Mr. Bisaria, the learned counsel for the petitioner argued the matter at length at the hearing held on 16.01.2014. Mr. Bisaria made several submissions, broadly under the following heads :-

(i). there was delay in issuance of charge-sheet;

(ii). there was no misconduct or negligence on the part of the petitioner. At the highest the petitioner could have been, if at all, held guilty of dereliction of duty;

(iii). the principles of natural justice were violated as neither the list of documents nor list of witnesses were supplied;

(iv). the charge-sheet was vague, imprecise and ambiguous;

(v). the conclusions arrived at by the Enquiry Officer were perverse and without requisite evidence on record; and

(vi). lastly, the punishment imposed was disproportionate to the offence, with which, the petitioner was charged and found guilty of.

5.1. Mr. Bisaria, also attempted to demonstrate that, during the petitioner‟s tenure, that is, between August 1988 to April, 1994, both the deposits and the profits had shown a marked increase.

6. Mr. Gaggar, the learned counsel for the respondents, in his rebuttal denied most of the submissions advanced by Mr. Bisaria. The proceedings, however, on that date had to be adjourned as the perusal of the communication dated 22.02.2002 seemed to indicate that the reviewing authority, as a matter of fact, had reviewed the petitioner‟s case and come to a decision in the matter.

7. I had put to Mr. Gaggar as to whether the order of the reviewing authority was available on record. Mr. Gaggar answered in the negative and on that date, sought a short accommodation to produce the relevant record before this court.

8. Today, Mr. Gaggar has reported to me that there is no record available pertaining to the petitioner‟s case. Mr. Gaggar, also says that, therefore, this matter can only be argued on demurer and, on the assumption that, even though the reviewing authority took a decision in the matter and did not communicate its order to the petitioner, the impugned orders, ought to be sustained.

8.1 Mr. Gaggar bases his arguments on the provisions of Regulation 18. It is, thus Mr.Gaggar submission that since the reviewing authority has been conferred with a suo motu power of review, the decision taken in the matter by it, need not necessarily be communicated to the petitioner.

9. Having perused Regulation 18, I am of the view that the submission of Mr. Gaggar, in this behalf, cannot be accepted. To buttress this conclusion, I intend to extract, the relevant part of the said Regulation :-

"18. Review Notwithstanding anything contained in these Regulations, the Reviewing Authority may at any time within 6 months from the date of the final order, either on his own motion or otherwise review the said order, when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come or

has been brought to his notice and pass such orders thereon as it may deem fit ...."

9.1 A perusal of the Regulation would show that, the reviewing authority, within the time frame of six months from the date of passing of the final order, has the power to review the said order, either on its own or "otherwise" when any new material or evidence, which could not be produced or was not available at the time of passing of the order, and which has the effect of changing the nature of the case, has come or is brought to its notice. Therefore, the Regulation itself contemplates both a suo motu review as well as a review, which is triggered by a person or entity other than the reviewing authority. This is clear from the use of the term „otherwise‟.

9.2 In my view, more than anyone else, the aggrieved delinquent officer would clearly come within the term, „otherwise‟, as long as he brings on record new material or evidence, which was not available, when the final order was passed and which has the effect of changing the nature of the case. The limitation of six months, however, would hold good, in both cases.

9.3 In the instant case, there is no dispute that the review petition was filed on 25.01.2001, whereas the order of the appellate authority was passed on 05.01.2001. Therefore, review petition was within the limitation prescribed under Regulation 18. The question is : Could the reviewing authority decide the review petition without giving any opportunity to the petitioner to advance his case? Even if, I were to assume that the review, could take place based on the representation

submitted, a decision taken in the matter would certainly, have to be communicated to the petitioner.

9.4 In the instant case, as noted above, all that has been done by respondent no.1 bank is to issue communication dated 22.02.2002 which facially shows that the reviewing authority has dealt with the petitioner‟s case.

9.5 In my opinion this is impermissible in law. The petitioner has the right to know the decision taken and, in that sense, order passed by the reviewing authority. If the reviewing authority has taken a decision, as is sought to be conveyed by letter dated 22.02.2002, it ought to have been communicated, to the petitioner. What has been communicated if, at all, is the conclusion of the reviewing authority. As a matter of fact, despite the court giving liberty, the record of the case has not been produced; therefore, the court has no means of knowing as to what is the decision that the reviewing authority took qua the petitioner. Consequently, the communication dated 22.02.2002 is set aside. The matter is remitted to the reviewing authority to take a decision in the matter after giving due opportunity to the petitioner, to present his case. The reviewing authority, will do the needful in the matter, as expeditiously as possible, though not later than three (3) months from today. Needless to say, the reviewing authority will pass a speaking order in respect of the review petition.

9.6 At this stage, Mr. Bisaria says that he would like to file an additional representation, as an addendum, to the review petition already filed in the matter. Mr. Gaggar says that a period of three (3)

months should commence from the date, the petitioner files an addendum to his representation. In these circumstances, the petitioner is directed to file his representation, within two weeks from today. The period of three (3) months will commence, after the expiry of the said period of two weeks.

10. The writ petition is, accordingly, disposed of with the aforesaid directions.

RAJIV SHAKDHER, J JANUARY 30, 2014 yg