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2000 DIGILAW 815 (PAT)

Phuleshwari Prasad Srivastav v. General Manager

2000-06-29

SHIVA KIRTI SINGH

body2000
JUDGMENT SHIVA KIRTI SINGH, J. Petitioner was an officer in punjab National Bank and on 28th January, 1993, he joined as Manager of punjab National Bank, Deo Branch in the district of Aurangabad. Memo of charges were served upon him on 27.9.1994 containing three charges all relating to financial transaction by the petitioner during his tenure as Manager at Deo Brach. After giving an opportunity to show cause a regular departmental proceeding was initiated against the petitioner by appointment of an Enquiry Officer. The enquiry report dated 27.4.1995 (Annexure-A) to the counter affidavit has held the petitioner guilty of all the three charges. Petitioner was served with a copy of the enquiry report and given an opportunity and after considering all the materials the disciplinary authority awarded punishment of dismissal vide order dated 17.7.95 as contained in Annexure-8. The appeal preferred by the petitioner was dismissed by the appellate order dated 15.12.1995 as contained in annexure-9. In this petition the petitioner has sought quashing of the order of the disciplinary authority contained in annexure-8 as well as of the appellate order contained in annexure-9. A further prayer has been made for commanding the respondents to pay all the arrears including payment of retiral dues such as provident fund, and gratuity because admittedly even if the petitioner had continued in service he would have retired in January, 1998. 2. Before considering the rival submissions, it is relevant to notice in brief the nature of charges leveled against the petitioner. The charge sheet is contained in annexure-1. The first charge is that he misutilised his vested powers and misappropriated a sum of Rs.65,700/- by debiting suspense account of the branch on various dates (particulars furnished) and thereafter adjusted the suspense entries on 26.3.1993 and 4.3.1993 by debiting T/L (tractor loan) account of various parties on false plea of requirement to create joint registration of vehicles which was actually not done and in the above process even such T/L accounts were debited where (i) recovery suit had already been filed for (ii) joint registration certificates were already held on record. As per decision there was no evidence available in the brach showing utilization of amount as debited to various T/L accounts. As per decision there was no evidence available in the brach showing utilization of amount as debited to various T/L accounts. The other charge was that the petitioner was habitual of taking advance to debit of suspense account merely for his own benefits, utilizing the funds for his own purpose and adjusting the entries at a later date (a) by deposit of cash or (b) by transferring fund from r his account or (c) by creating a fresh suspense entry. The last charge was that he misappropriated bank's fund by withdrawing unauthorisedly, beyond his power a sum of Rs.5,000/- on 31st. March, 1993 to debit of S.F.F. head without purchasing S.F.F. items namely two beds and one dressing table for which there is no record in the branch ex except the concerned S.F.F. vouchers. 3. The materials on record such as petitioner's show cause dated 16.11.94, his correspondence with regard to purchase of S.F.F. items and file contents of the enquiry report which has been brought on record as annexure A to the counter affidavit show that petitioner had actually not disputed the entries made in the suspense account or the debiting of the T/L accounts or the various particulars given with the second charge regarding unnecessary withdrawal from the suspense account. The stand of the petitioner is that he did all those things with good intention and not with a view to cause any loss to the bank. According to him some purchase like dressing table etc. were made without necessary permission because of ignorance of the rules and as Breach Manager he was within his right, to make withdrawal from suspense account for future expenses and such withdrawal were subsequently adjusted as per necessity and convenience. So far as the first charge relating to misappropriation of Rs.65,700/- and odd is concerned the petitioner has tried to explain away the charge by admitting that he could not deposit the money in question because the same was taken away by his son who has fallen in bad company. From the enquiry report it appears that the petitioner did not engage any defence representative, did not object to the document produced on behalf of the bank and led no defence evidence either documentary or oral. The Enquiry Officer, as noticed earlier, found the charged proved against the petitioner leading to the impugned order of dismissal dated 17.7.1995. 4. From the enquiry report it appears that the petitioner did not engage any defence representative, did not object to the document produced on behalf of the bank and led no defence evidence either documentary or oral. The Enquiry Officer, as noticed earlier, found the charged proved against the petitioner leading to the impugned order of dismissal dated 17.7.1995. 4. In order to challenge the order of punishment, learned counsel for the petitioner did not seriously challenge the findings given by the enquiry officer but submitted that if the disciplinary authority had kept in mind the explanations given by the petitioner and considered all the facts and circumstances then an order of dismissal could not have been passed against the petitioner. According to learned counsel for the petitioner the petitioner was prejudiced by the action of the disciplinary authority in not affording to the petitioner an opportunity of personal hearing before passing the impugned order dated 17.7.95. The aforesaid submission was supplemented by a further submission that in the totality of facts and circumstances and the nature of charge and petitioner's defence, this court should hold that the punishment awarded by the disciplinary authority is shockingly disproportionate. Lastly an attempt was made to as sail the order of the disciplinary authority on the ground that it does not contain a thorough discussion of all the evidence and materials which were produced before the enquiry officer and considered in the enquiry report. According to learned counsel for the petitioner, since the disciplinary authority did not consider the documents and the materials at the earlier stage, hence a fresh consideration of the same is required. 5. To support the submission regarding petitioner's right of personal hearing once he made a demand of the same, learned counsel for the petitioner has placed reliance upon a judgment of the Apex Court in the case of A.K. Kripak Vrs. Union of India (A.I.R. 1910 S.C. 150) and specially paragraph 20 of the said judgment where the court highlighted the recent development and growth of subsidiary rules of natural justice and observed that whenever a complaint is made before a court that some principles of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. 6. 6. On the other hand, learned counsel appearing for the respondent Bank submitted that the grievance of the petitioner that principles of natural justice have been violated because he was not afforded a personal hearing by the disciplinary authority is misconceived; Such a demand is not warranted by any established principles of natural justice nor by any of the service rules governing the working of the Bank. He has further submitted that the order of the disciplinary authority discloses application of mind and it is a speaking order. According to learned counsel for the respondent-Bank the disciplinary authority is not required to reevaluate the entire evidence or materials which were considered by the enquiry officer specially when he is in agreement with the report of the enquiry officer. In support of this proposition reliance has been placed on a judgment of the Apex Court in the case of State Bank of Blkaner & Jalpur v. P.D. Grover (A.I.R. 1996 S.C. 320) and also upon another judgment in the case of Union Bank of India Vrs. Vishwa Mohan (A.I.R. 1998 S.C. 2311). 7. In order to counter the submission of learned counsel for the petitioner relating to quantum of punishment, learned counsel for the respondent-Bank referred to and relied upon the following judgments of the Apex Court :- (I) 1996 (2) PLJR (SC) 9 Municipal Committee Vrs. Krishnan Behari. (II) (2001) 2 Supreme Court cases 386 (Om Kumar Vrs. Union of India) (III) A.I.R. 1996 S.C. 484 (B.C. Chaturvedi Vrs. Union of India.). 8. In view of rival submissions the first question to be decided in this case relates to principles of natural justice, their ambit and scope. learned counsel appearing for the petitioner, by way of reply placed reliance upon a principle laid down in the case of S.L Kappor V. Jagmohan (A.I.R. 1981 S.C. 136) and submitted that the principles of natural justice must be respected and non-observance of natural justice in itself is sufficient prejudice requiring no further roof of any independent prejudice. In that case the court was considering the principle of audi alteram partem. Any adverse action without giving opportunity of hearing or show-cause was thus, held to be bad in itself requiring no proof of any further prejudice. The said decision of the Apex Court has been considered and explained in the case of State Bank of Patiala Vrs. S.K. Sharma (AIR. 1996 S.C. 1669). Any adverse action without giving opportunity of hearing or show-cause was thus, held to be bad in itself requiring no proof of any further prejudice. The said decision of the Apex Court has been considered and explained in the case of State Bank of Patiala Vrs. S.K. Sharma (AIR. 1996 S.C. 1669). In the later judgment the Apex Court in paragraph 21 clarified that the observations made in S.I. Kappor's case have be understood in the context of that case. It was further clarified in the later judgment that no prejudice need be demonstrated where denial of natural justice is to the extent that there was total lack of notice of the departmental proceeding but in case of alleged breach of subsidiary principle of natural justice it was emphasized that court should not interfere on such count unless it comes to a finding that the delinquent employee had been prejudiced on account of such breach of some established principles of natural justice. Thus, as per judgment of the Apex Court in the case of A.K. Kraipal (supra) the court has to decide whether demanded rule was necessary for a just decision or not. In the facts of the present case relating to a disciplinary proceeding against an erring employee, this court finds no difficulty in holding that the employee has no right under any established principles of natural justice to demand and insist upon personal hearing by the disciplinary authority even after availing the right of filing comments and submissions over the enquiry report. Such a right would convert a departmental proceeding into court proceeding where parties have a right of hearing either in person or through counsel. The right of personal hearing as claimed by this petitioner at the stage of decision by the disciplinary authority after conclusion of enquiry in accordance with law requires over stretching the principles of natural justice which would not be in the interest of justice itself. Hence this court finds no merit in the first contention advanced on behalf of, the petitioner. 9. So far as petitioner's grievance against the quantum of punishment is concerned, considering the nature of charges which have ben found proved in the enquiry, it is clear that the petitioner being a Branch Manager of a Bank did not act with propriety and honesty in financial transactions. 9. So far as petitioner's grievance against the quantum of punishment is concerned, considering the nature of charges which have ben found proved in the enquiry, it is clear that the petitioner being a Branch Manager of a Bank did not act with propriety and honesty in financial transactions. In such circumstances, this court does not find the punishment imposed upon the petitioner to be disproportionate so as to warrant any interference by this court. For all the aforesaid reasons there is no merit in this writ application and the same is accordingly dismissed but without costs.