Sushanta Chandrapaul v. United Bank of India — 1996 DIGILAW 250 (GAU)

JUDGMENT AND ORDER In this application under Article 226 of the Constitution the petitioner has challenged the Annexure I order dated 28.5.88 issued by the Deputy General. Manager (P), United Bank of India, dismissing the petitioner from the service of the Bank, Annexure L order dated 14.12.88 passed by the General Manager (Marketing), United Bank of India, dismissing the appeal filed by the petitioner against the Annexure I order of dismissal, proceedings conducted against the petitioner as regards the allegations made in the charge sheet dated 13.8.86, the report by the Enquiry Officer along with his findings in the Departmental proceedings against the petitioner (Annexure J) and has prayed for setting aside the order of dismissal, the Departmental Proceedings, Enquiry Report and the appellate order. 2. The facts for the purpose of disposal of this Civil Rule are as follows : The respondent No. 1 is a Nationalised Bank and the other respondents are its officers. In the year 1965 the petitioner was appointed Godown Clerk and thereafter he was promoted as an officer in the year 1976. During the period 1978-1985 he served as an Accountant in Hojai Branch and in the month of July, 1985 he was transferred to Tomenlong Branch of the respondent No. 1 and posted as Manager. On 18.2.86 the petitioner was suspended by Annexure A order dated 13.8.86 and served with articles of charges and the statement of allegations on which the charges were made by Annexure A. By Annexure B letter dated 1.9.86 the petitioner denied the allegations and the explanations submitted by the petitioner having not found to be satisfactory, the authority decided to hold an enquiry regarding the charges levelled against the petitioner and pursuant to that an Enquiry Officer was appointed. One Promode Kumar Nanda, Law Officer was appointed Presenting Officer. The Enquiry Officer informed the petitioner that enquiry would be held on 23.3.87. The petitioner appeared before the Enquiry Officer. However, the Presenting Officer was not present. Hence the enquiry was adjourned. The next date was fixed on 11.5.87. However, the petitioner fell ill on 8.5.87 and accordingly the Enquiry Officer was informed by letter dated 9.5.87. The matter was then further adjourned fixing 18.6.87 as the next date. On 18.6.87 the petitioner could not attend because of disruption of rail communication and on that date the Presenting Officer was also not present. However, the petitioner fell ill on 8.5.87 and accordingly the Enquiry Officer was informed by letter dated 9.5.87. The matter was then further adjourned fixing 18.6.87 as the next date. On 18.6.87 the petitioner could not attend because of disruption of rail communication and on that date the Presenting Officer was also not present. Accordingly another date was fixed on 27.7.87 for holding the enquiry at Dibrugarh. During that time the entire Upper Assam was in grip of heavy floods. On 25.7.87 the Doordarshan Kendra, Guwahati announced that the Dibrugarh Town was under high flood. Similarly on 25th, 26th and 27th July, 1987 the Newspapers reported that flood position at Dibrugarh was critical and the army was called upon. Accordingly the petitioner .was advised to ask for an adjournment. On 27.7.87 both the Presenting Officer and the petitioner could not attend. The next date was fixed on 12.10.87. Due to urgent personal problems, the petitioner could not appear and therefore by letter dated 9.10.87 informed the EO about his inability and prayed for further adjournment. The petitioner wrote a letter dated 19.10.87 to the EO giving the reasons for his absence on 11.5.87, 18.6.87 and 27.7.87. However, these reasons were not considered acceptable and hence the enquiry was held exparte. The EO came to a finding that the charges were proved. A copy of finding was forwarded on 19.10.87 along with copies of enquiry proceedings. However, the enquiry report was not forwarded. The petitioner feels that the enquiry was not proper. It was arbitrary, unfair and unreasonable. According to the petitioner the Enquiry Officer acted in undue haste. Besides, according to the petitioner the procedure adopted by the Enquiry Officer in conducting the enquiry was in violation of the regulations. No witness was examined. Not a single document was considered and the documents were simply filed. Only one omnibus finding was given. There was no separate findings in respect of various charges. The petitioner also submitted that the finding of the Enquiry Officer was perverse and in violation of the principles of natural justice. On 7.11.87 the petitioner submitted his representation to the Disciplinary Authority pointing out the irregularities in the exparte proceedings. The Disciplinary Authority by letter dated 28.5.88/2.6.88 sent the enquiry report and his findings and further intimated by the said letter that the petitioner was dismissed from service. On 7.11.87 the petitioner submitted his representation to the Disciplinary Authority pointing out the irregularities in the exparte proceedings. The Disciplinary Authority by letter dated 28.5.88/2.6.88 sent the enquiry report and his findings and further intimated by the said letter that the petitioner was dismissed from service. The petitioner submitted that the order of the Disciplinary Authority refers to some oral evidence; but the enquiry proceedings reveal that no oral evidence was recorded. According to the petitioner the dismissal order had been passed mechanically. The representation filed by the petitioner was also not considered. Situated thus, the petitioner preferred an appeal on 8.7.88. It was pointed out inter alia that no written brief from the Presenting Officer was served on the petitioner as required under the regulations. The appeal was also dismissed. Thereafter a review application was filed on 11.1.89. This was not disposed of till the writ application was filed. The contention of the petitioner is that while dismissing the petitioner the Regulations 6 (3), 6 (10), 6 (13), 6 (18) and 6 (21) had been violated. Besides, no subsistence allowance was paid. Hence the present petition. 3. I heard Mr. N. Dutta, learned counsel appearing on behalf of the petitioner and Mr. BK Goswami, learned counsel appearing on behalf of the respondents. 4. Mr. Dutta submitted that the charge was absolutely false and levelled -against the petitioner just to get rid of him from the Bank. The officer concerned was actuated by malafide intention and for oblique purposes, charges were levelled against the petitioner. The Enquiry Officer conducted the enquiry contrary to the Regulations. Besides the principles of natural justice had been violated. The Disciplinary Authority even though representation was filed did not consider the said aspect of the matter and dismissed the petitioner. The appellate authority also acted without proper application of mind and mechanically passed the order. The appeal was disposed of in utter disregard to the Regulations of the Bank applicable to the petitioner. 5. Mr. BK Goswami on the otherhand submitted that the principles of natural justice had been fully complied with. The Enquiry Officer was compelled to take up the matter exparte in view of the fact that the petitioner was absolutely negligent in appearing before the Enquiry Officer. There was no justifiable reasons for not attending on all dates. 6. 5. Mr. BK Goswami on the otherhand submitted that the principles of natural justice had been fully complied with. The Enquiry Officer was compelled to take up the matter exparte in view of the fact that the petitioner was absolutely negligent in appearing before the Enquiry Officer. There was no justifiable reasons for not attending on all dates. 6. On the rival contentions of the parties it is to be seen whether in the present facts and circumstances of the case dismissal of the petitioner was warranted and whether the appeal before the appellate authority was disposed of in accordance with law and the Rules. To decide these questions it will be apposite to look to some of the provisions of the United Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976, for short, 'the Regulations'. This Regulations was made by the Board of Directors of United Bank of India in consultation with the Reserve Bank and with the previous sanction of the Central Government in exercise of the power conferred by section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. Learned counsel for both the parties submitted before me that this Regulations was applicable to the petitioner. 7. Regulation 4 provides minor and major penalty. Before awarding a penalty the Managing Director of any oilier authority empowered by him by general or special order may institute or direct the Disciplinary Authority to institute disciplinary proceedings against an officer employee of the Bank. The Disciplinary Authority may himself institute disciplinary proceedings. Regulation 6 specifically mentions that no order imposing any of the major penalties specified in clauses (e), (f), (g) and (h) of Regulation 4 shall be made Except after an inquiry is held in accordance with this Regulations. Under Regulation 6 (2) whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an officer employee, it may itself enquire into, or appoint any other public servant (hereinafter referred to as me Inquiring Authority) to inquire into the truth thereof. Under Regulation 6 (2) whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an officer employee, it may itself enquire into, or appoint any other public servant (hereinafter referred to as me Inquiring Authority) to inquire into the truth thereof. Under Regulation 6 (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. Under Regulation 6 (4) it is provided that 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, of 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. Under Regulation 6 (5) the Disciplinary Authority shall, where it is not the Inquiring Authority, forward to the Inquiring Authority a list of documents by which and list of witnesses by whom the articles of charge are proposed to be substantiated. Under Regulation 6 (7) the officer employee may take the assistance of any other officer employee but may not engage a legal practitioner for the purpose. Under Regulation 6 (9) if the officer employee does not plead guilty, the Inquiring Authority shall adjourn the case to a later date not exceeding 30 days or within such extended time as may be granted by the Inquiring Authority. Under Regulation 6 (9) if the officer employee does not plead guilty, the Inquiring Authority shall adjourn the case to a later date not exceeding 30 days or within such extended time as may be granted by the Inquiring Authority. Under Regulation 6(10) (a) the Inquiring Authority shall, where the officer employee does not admit all or any of the articles of charge, furnish to such officer employee a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be proved. It is also the duty of the Inquiring Authority to record an order that the officer employee may for the purpose of preparing his defence make inspection of documents listed; submit a list of documents and witnesses that he wants for the inquiry; be supplied with copies of statements of witnesses, if any, recorded earlier and also give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiring Authority may allow for the discovery or production of the documents. Under Regulation 6 (13) on the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority. The witnesses produced by the Presenting Officer shall be examined by the Presenting Officer and may be cross examined by or on behalf of the officer employee. Under Regulation 6(18) after the completion of the production of the evidence, the officer employee and the Presenting Officer may file written briefs of their respective cases within 15 days of the date of completion of the production of evidence. Under Regulation 6 (21) on the completion of the inquiry the Inquiring Authority shall prepare a report with the conditions as mentioned therein. 8. From the above provisions under the Regulation it is the duty of the Enquiry Officer to follow the prescribed procedure in the manner as stated above. But in the present case when the delinquent employee, the petitioner failed to appear on the dates fixe straightway asked the Presenting Officer to present his case. No evidence was recorded. It is also not known who prove the documents as exhibited. The record does not indicate in what manner these documents were proved. But in the present case when the delinquent employee, the petitioner failed to appear on the dates fixe straightway asked the Presenting Officer to present his case. No evidence was recorded. It is also not known who prove the documents as exhibited. The record does not indicate in what manner these documents were proved. In all probabilities the documents were produced before the Presenting Officer which were accepted by the Enquiry Officer. In my opinion at least some witnesses should have proved those documents. There is also no evidence to show that the documents produced were admitted by the petitioner. No opportunity was also given to the petitioner to submit a written brief as envisaged under the Regulation. In view of all these, I am constrained to hold that the Enquiry Officer did not follow the procedure as prescribed by the Regulation. The Disciplinary Authority also dismissed the petitioner by Annexure I order. The Disciplinary Authority did not consider the irregularities in conducting the enquiry. The Disciplinary Authority at page 67 observed thus : "... I have, however, considered the report of enquiry in the background of the proceedings of enquiry and the evidences both oral and documentary produced and recorded at the enquiry and other connected papers and documents. I concur with the findings of the Enquiry Officer..." From the above it appears that the Disciplinary Authority also perused the evidence, both oral and documentary. But the enquiry report does not suggest recording of any oral evidence and the documents were also not proved in the manner it is required to be done. In the writ petition the petitioner has categorically stated that no witnesses was examined. Therefore, the observation of the Disciplinary Authority in my opinion is without any basis. In all probabilities the Disciplinary Authority passed the order mechanically without properly looking to the enquiry report. Therefore the entire proceeding is vitiated and the order of dismissal (Annexure I) on such finding cannot sustain in law. The appellate authority also disposed of the appeal filed by the petitioner most mechanically without properly looking the order of dismissal and the enquiry report. Therefore the Annexure L order is also illegal and without jurisdiction. Beside? in my opinion the principle of natural justice had also not been followed in proper perspective. The instrumentality of the State cannot take any action without complying with the principles of natural justice. Therefore the Annexure L order is also illegal and without jurisdiction. Beside? in my opinion the principle of natural justice had also not been followed in proper perspective. The instrumentality of the State cannot take any action without complying with the principles of natural justice. The action of the State of instrumentality of the State must be fair and reasonable. The delinquent employee is entitled to get reasonable opportunity to defend himself. The enquiry had to be postponed from one date to another date; on some dates on the prayer of the petitioner as he could not appear and on some other dates both the Presenting Officer as well as the petitioner could not appear. On some dates the Enquiry Officer no doubt granted several adjournments; but that does not mean that if there are reasonable grounds for the petitioner's failure to appear adjournment should be denied. In the present case tile petitioner had explained his failure to appear through some letters which did not reach at the time when the Enquiry Officer proceeded exparte; but the letters were received by the authority subsequently. The petitioner ought to have been asked to submit a defence statement. However, the Enquiry Officer did not wait till that the petitioner submitted the report. 9. In view of the above I hold that the enquiry report (Annexure J) and the subsequent dismissal order (Annexure I) and the appellate order (Annexure L) cannot sustain in law. 10. Accordingly, I set aside the enquiry report and the order of dismissal and the petitioner shall be deemed to be in service and shall be entitled to get all the benefits as if he is on duty. However, if the petitioner has been gainfully working in other concerns the amount received by him shall be deducted from his wages itself. 11. In the result, the writ petition is allowed. In the facts and circumstances of the case, I make no order as to costs.