Pramod Kumar Ambashtha v. Allahabad Bank — 1999 DIGILAW 717 (PAT)

Judgment Ashok Kumar Ganguly, J. 1. In the month of August, 1980, the petitioner was appointed a Cashier-cum- Clerk in Allahabad Bank (hereinafter called the said Bank) in its Bhagalpur University Branch. Thereafter on the basis of certain allegations a departmental proceeding was initiated against him. The charges on the basis of which the proceeding was initiated against him are set out below :- - "(1) On April 21, 1989, a fake joint S/B A/C No. 135/43 in the joint name of Gangadhar Prasad and Ram Prasad Sao was opened and introduced by Sri S. P Verma, another S/B A/C holder maintained at the branch. You have arranged for introducing in the aforesaid account by the said Shri Verma knowing fully well that the account so opened was a fictitious one as the signature of Sri Ram Prasad Sao appearing on the account opening form April 21, 1989 depicts close similarity with your writing style. (ii) You have fraudulently arranged to transfer an amount of Rs. 17,400/- (Rupees Seventeen thousand four hundred only) from the S/B A/C No. 194/2 in the name of Ram Prasad Sao (deceased) to the aforesaid fictitious S/B A/C No. 135/43 in the joint names of Gangadhar Prasad and Ram Prasad Sao. In order to conceal (sic) your said fraudulent acts, you have deliberately destroyed/made to disappear the relative transfer voucher for Rs. 17,400/-dated July 8, 1989 from the voucher bundle on the said date. (iii) You have with the sole intention to defraud the Bank requested Sri Ajay Kumar, a Clerk-Cum-Cashier of the Branch to enter cheque book No. 290341-290350 in cheque issuing register on April 23, 1989 for issuance to a third party without obtaining any written request from the purported account holder Sri Gangadhar Prasad and Ram Prasad Sao. (iv) You have fraudulently received payments of the following cheques by the purported Gangadhar Prasad in the said S/B A/C No.135/43 fictitiously opened by you at the branch, the first two being from Sri. S. B. Ram the paying Cashier of the Branch. __________________________________________________________________ Date of Payment Cheque No. & Date Amount __________________________________________________________________ 11-7-89 290341 of 10-7-89 Rs. 10,000/- 31-7-89 290342 of 3 1-7-89 Rs. 7,200/- 21-1-89 290343 of 21-10-89 Rs. 250/- __________________________________________________________________ Rs. 17,450/- __________________________________________________________________ __________________________________________________________________ (v) You have further, irregularly/ unauthorisedly posted cheques 290393 for Rs. S. B. Ram the paying Cashier of the Branch. __________________________________________________________________ Date of Payment Cheque No. & Date Amount __________________________________________________________________ 11-7-89 290341 of 10-7-89 Rs. 10,000/- 31-7-89 290342 of 3 1-7-89 Rs. 7,200/- 21-1-89 290343 of 21-10-89 Rs. 250/- __________________________________________________________________ Rs. 17,450/- __________________________________________________________________ __________________________________________________________________ (v) You have further, irregularly/ unauthorisedly posted cheques 290393 for Rs. 250/-on October 21, 1989 in the said fictitious S/B A/C No. 135/43 which pertained to the job relating to S/B seat No.4 while on that date you were working on SB Seat No. 3." 2 The petitioner denied the charges and thereafter the departmental enquiry followed in which the enquiry authority by a report dated September 17, 1990 (Annexure-12) held that the charges are proved. On October 4, 1990 a second show cause notice was issued to the petitioner asking him to show cause why the penalty of dismissal should not be imposed upon him. The petitioner gave a reply to the said second show cause notice and then by an order dated October 27, 1990 (Annexure-15) an order dismissing him from service was passed against the petitioner. Against the said order of dismissal the petitioner filed an appeal and the appellate authority also affirmed the dismissal order. 3. Thereafter the petitioner moved this Court by filing a writ petition challenging the departmental proceeding, the dismissal order as well as the appellate order. The said writ petition was numbered as C.W.J.C. No.2451 of 1991 and was heard and disposed of by a Division Bench of this Court by an order dated May 15, 1991. The said Division Bench while hearing that writ petition noted that three points were urged. Those points are (i) the disciplinary authority committed an illegality by taking into account the past conduct of the petitioner when past conduct was not the subject matter of charges against him, (ii) the opinion of the handwriting expert was considered by the disciplinary authority even though the said handwriting expert was not made available for cross-examination by the petitioner despite the fact that the petitioner wanted to cross-examine the said expert, (iii) the enquiry authority wrongly placed onus upon the petitioner. 4. Of the three points urged, the learned Judges of the Division Bench found that there is no substance in the last point but found that there is some substance in the first two points. 4. Of the three points urged, the learned Judges of the Division Bench found that there is no substance in the last point but found that there is some substance in the first two points. The learned Judges of the Division Bench: found, with reference to the first point, "the order of the disciplinary authority is vitiated as it took into account material which was not relevant or admissible in the proceeding" and since the appellate authority entirely concurred with the finding of the disciplinary authority, the appellate order, the Division Bench held, was also bad. 5. In respect of the second point the Division Bench observed that "in our view if. the petitioner had made a request for cross-examining the handwriting expert and the handwriting expert was not called for cross-examination by the petitioner, his opinion cannot be used against the petitioner". After saying so, the Division Bench hastened to add that the opinion of the handwriting expert is only an opinion and the disciplinary authority can always form its own opinion on the basis of material that may be available on the record. 6. After coming to the aforesaid conclusion the learned Judges of the Division Bench quashed the order of the disciplinary authority and the appellate authority but did not interfere with the enquiry report inasmuch as the Division Bench found that the enquiry authority has not relied on the opinion of the hand writing expert. 7. Thus quashing the aforesaid two orders the Division Bench made it clear that "it is open to the disciplinary authority to pass a fresh order in accordance with law after excluding from consideration the past conduct of the petitioner and the report of the handwriting expert. It is made clear that the disciplinary authority must come to its conclusion "on the basis of the materials on record". 8. After the aforesaid order was passed there were some representations by the petitioner for his reinstatement and also for payment of subsistence allowance but since the same are not the subject matter of main controversy, this Court is not inclined to pronounce on the same. 9. 8. After the aforesaid order was passed there were some representations by the petitioner for his reinstatement and also for payment of subsistence allowance but since the same are not the subject matter of main controversy, this Court is not inclined to pronounce on the same. 9. It appears that the disciplinary authority, after the High Courts order, wanted to examine the handwriting expert but thereafter desisted from doing so in view of the High Courts order to pass the fresh order on the materials on record and so by an order dated August 13, 1992 cancelled the previous order for examination of the hand-writing expert. Thereafter the disciplinary authority gave the petitioner an opportunity to show cause against the final order which they propose to pass in terms of the High Court order and after the said liberty was given, and the petitioner gave his reply and the disciplinary authority passed once again the order of dismissal of service of the petitioner. In the final order of dismissal dated November 9, 1992 which was again passed by the disciplinary authority in terms of the liberty given by the High Courts order dated May 15, 1992, the disciplinary authority has considered the enquiry report and the written briefs of the Presenting Officer and the petitioner. Thereafter by a detailed order, the order of dismissal was again passed against the petitioner. The subsequent appeal of the petitioner against the said order was also dismissed on February 15, 1993 (Annexure-26). 10. Learned counsel appearing for the petitioner submitted that while passing the dismissal order for the second time, the respondents authorities have considered materials which have been discarded by the High Court. This Court has considered this submission and looked very carefully into the dismissal order passed subsequently. In the subsequent dismissal order dated November 9, 1992 (Annexure-24A) the disciplinary authority considered the facts of the case in some detail and considered the documents on record and also had gone through the report ; of the Enquiry Officer and the written briefs of the Presenting Officer and the petitioner. 11. In view of the consideration of aforesaid materials and the recitals in the impugned order of dismissal, this Court cannot come to the conclusion that the disciplinary authority has considered materials which have been discarded by this Court. The enquiry report was not discarded by the High Court. 11. In view of the consideration of aforesaid materials and the recitals in the impugned order of dismissal, this Court cannot come to the conclusion that the disciplinary authority has considered materials which have been discarded by this Court. The enquiry report was not discarded by the High Court. On the other hand the High Court came to the finding that the Enquiry Officer has not based his finding on the opinion of the handwriting expert. Consideration of the opinion of the handwriting expert has vitiated the order of the disciplinary authority but insofar as the enquiry officers report is concerned this Court has not said anywhere that the same stands vitiated. Therefore, by considering the enquiry officers report once again the authority concerned has not committed any illegality nor have they taken any material into consideration which have been discarded by this Court. The other two materials namely, the written brief of the Presenting Officer and the charge-sheeted employee should be considered by the disciplinary authority before passing the final order. In fact those materials are on record and their consideration is not only permissible but desirable also. 12. Therefore, this Court is unable to discern error in the impugned order of the disciplinary authority nor is there any error in the appellate order. 13. Learned counsel for the petitioner has raised some other grievances about the proper holding of enquiry by the enquiry officer by saying that proper opportunity of defence has not been granted to the petitioner. It has been stated that all the documents were not supplied to him. It has also been urged that even though those documents were supplied to him but they were supplied very late and as a result of such late supply, the petitioner could not avail of the reasonable opportunity of defence to which he is entitled. There is also an allegation that there has been non-payment of subsistence allowance in course of the enquiry. 14. This Court is unable to consider the aforesaid contention of the learned counsel for the petitioner. All objections about the improper holding of enquiry by the enquiry authority were open to him to be raised when the matter was heard and decided by the Division Bench of this Court on the last occasion. But the same were not urged. This appears from the order of the Division Bench. All objections about the improper holding of enquiry by the enquiry authority were open to him to be raised when the matter was heard and decided by the Division Bench of this Court on the last occasion. But the same were not urged. This appears from the order of the Division Bench. The Division Bench has noted that only three objections were raised before it and those objections have been noted above by this Court. Therefore, now it is not open to the petitioner to raise any objection which he could have raised in the previous proceeding. This is not permissible in view of the principles of Res judicata or Constructive Resjudicata and principles analogous thereto. 15. It is well settled that the principles of Res judicata and Constructive Res judicata are based on sound public policy and are also attracted to the adjudication of a writ petition. The principle of finality of litigation, which is the core of the doctrine of Res judicata, is so fundamental a policy in the administration of justice, that it must be rigorously adhered to in public interest and also for upholding the element of predictability --a very important facet of the Rule of Law. Therefore, in view of those principles this Court is unable to entertain the objection raised by the petitioner about the improper holding of enquiry by the Enquiry Officer. 16. So far as the question of non-payment of subsistence allowance is concerned, the only averment raised in respect of that is in paragraph 58 of the writ petition. It appears that the said objection relating to non-payment of subsistence allowance was for a period in 1993 inasmuch as the letter of the Bank which has been disclosed in paragraph 58 of the writ petition is dated May 27, 1993 and the enquiry in this case was held much before inasmuch as the enquiry report itself was submitted on September 17, 1990 and there is no allegation about alleged non-payment of subsistence allowance during the pendency of the enquiry proceedings. So it cannot be contended that the enquiry was vitiated for such non-payment. 17. So it cannot be contended that the enquiry was vitiated for such non-payment. 17. However, it appears that after the final order was passed by the High Court in the previous writ petition filed by the writ petitioner, a contempt proceeding was filed by the petitioner being M.J.C. No. 1106 of 1993 but no contempt proceeding was initiated by the High Court but a mere direction was given by the Division Bench of the High Court upon the Bank to pay the petitioners subsistence allowance. 18. From the counter-affidavit filed by the Bank, it appears that the subsistence allowance was kept ready for being paid to the petitioner but the petitioner did not accept the same. It was also disclosed in the counter- affidavit that after the dismissal of the petitioner, he enrolled himself as an Advocate and started practising in the District Court at Munger. In that view of the matter the Bank calculated the amount which was to be paid to the petitioner towards subsistence allowance and they have also stated that the cheque for payment of subsistence allowance was made ready but since the petitioner did not encash the cheque during the validity period, the Bank authorities have taken steps for revalidation of the said cheque. This fact that the petitioner was subsequently enrolled as an Advocate has not been denied in the rejoinder- affidavit filed by the petitioner. Therefore, in the facts of this case, it cannot be contended by the petitioner that because of the alleged non-payment of subsistence allowance the enquiry proceeding has been vitiated. 19. Learned counsel for the petitioner placed reliance on the following judgments in order to contend that non-payment of subsistence allowance has vitiated the enquiry proceedings. Those judgments are in the cases of (1) Ghanshyam Das Shrivastava v. State of Madhya Pradesh reported in (1973-I-LLJ-414) (SC) reported in Md. Ashraf Ali v. State of Bihar 1995 2 PLJR 59 and (3) Capti M. Paul Anthony v. Bharat Gold Mines Ltd. reported in (1999-I-LLJ-1094) (SC). 20. But the ratio of those judgments cannot be applied to the case in hand for the reasons discussed below. 21. It was open to the petitioner to urge this point in the first writ proceeding filed by him. But it was not urged. 20. But the ratio of those judgments cannot be applied to the case in hand for the reasons discussed below. 21. It was open to the petitioner to urge this point in the first writ proceeding filed by him. But it was not urged. So on the principles of Res Judicata he cannot be permitted to urge it in a subsequent proceeding between the same parties. Even otherwise, the point is not available to him. In all those reported cases, the principles laid down is where non-payment of subsistence allowance has occasioned the penury of the delinquent servant which actually prevented him from participating in the enquiry, the Courts held that the ex parte enquiry is vitiated by such non-payment. Here no such case is made out. The allegations of nonpayment are made much after the enquiry was over and even years after the submission of the enquiry report. And those allegations are also effectively controverted by the Bank as noted above. So in a totally different fact situation the ratio in the aforesaid cases are not applicable. 22. This Court has examined the original order and the appellate order and does not find that there is any infirmity in the same or there is any infirmity in the decision making process as to warrant any interference by this Court. This writ petition is thus dismissed. There will be no order as to cost.