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2002 DIGILAW 33 (KAR)

SHANMUGAM M. v. RESERVE BANK OF INDIA, BOMBAY

2002-01-15

H.L.DATTU

body2002
H. L. DATTU, J. ( 1 ) AN officer of the Reserve Bank of India, aggrieved by the orders made by the Appellate authority dated April 21, 1993 in confirming the orders made by the disciplinary authority dated January 11, 1992 is before this Court in a petition filed under Articles 226 and 227 of the Constitution. ( 2 ) FACTS in nutshell are: petitioner is an officer of the Reserve bank of India ('bank' for short ). At the relevant point of time, he was also an office- bearer of the local employees' union. Pursuant to a call given by the employees of the Reserve Bank of india, Bangalore Branch, it appears a 'dharna' was made in the Chambers of the Manager, reserve Bank of india, Bangalore on August 20, 1987. On the same day, the Personnel officer of the respondent-Bank made a report to the management with regard to the dharna' conducted by the employees of the Bank in the chambers of the Manager of the Bank. Since petitioner was one of those persons, who participated in the dharna, an order came to be made on August 20, 1987 keeping him under suspension pending a departmental enquiry. It appears, on August 21, 1987, even the manager of the Bank in whose place the dharna was conducted by the employees, also made a report to his higher officers. ( 3 ) THE disciplinary authority of the respondent-Bank issued a charge memo dated october 5, 1987, in exercise of its powers under regulation 47 of the Reserve Bank of India (Staff) regulations, 1948 ('regulations' for short ). In the charge memo, the disciplinary authority accused the petitioner of the following acts of misconduct said to have been committed by him on August 20, 1987. They are:" (A) Unauthorisedly entering the Manager's room on August 20 and 21, 1987 and obstructing him in the discharge of his official duties. (B) Squatting inside the Manager's room and being a party to gheraoing him, thereby preventing him from moving out of his room. (C) Indulging in hurling abuses against manager and other officers in filthy language and in acts of intimidation". ( 4 ) THE charge memo also directed the petitioner to file his reply, if any, within a particular time frame. (C) Indulging in hurling abuses against manager and other officers in filthy language and in acts of intimidation". ( 4 ) THE charge memo also directed the petitioner to file his reply, if any, within a particular time frame. ( 5 ) SINCE the charges alleged against the petitioner were serious, the disciplinary authority of the respondent-Bank thought it fit to appoint one Smt. Mayura padmanabhan, who was working as a Deputy legal Advisor at Bombay Branch, as an enquiry officer to enquire into the allegations contained in the charge memo. The enquiry officer had commenced the proceedings of the enquiry on March 25, 1988 and the same came to be concluded on February 1, 1989. ( 6 ) THE enquiry officer by her report dated march 30, 1989 is of the view that petitioner is guilty of the first charge and part of the second charge and not guilty of the third charge alleged in the charge memo. ( 7 ) THE enquiry officer thereafter had submitted her enquiry report and the findings thereon and the records of the proceedings to the disciplinary authority of the respondent-Bank. The disciplinary authority did not agree with one of the findings of the enquiry officer. Therefore, he tentatively came to the conclusion that petitioner is guilty of all the charges alleged in the charge memo. After coming to the said tentative conclusion, the disciplinary authority had issued a second show cause notice dated June 4, 1990 enclosing his tentative findings and also the report of the enquiry officer and further directing the petitioner to show cause why penalty should not be imposed on him as provided under the staff Regulations. After receipt of the second show cause, petitioner had filed his reply inter alia requesting the disciplinary authority of the respondent-Bank to drop the proceedings initiated against him. ( 8 ) THE disciplinary authority after considering the reply so filed by the petitioner and after affording a personal hearing to the petitioner, had proceeded to impose the following punishment. After receipt of the second show cause, petitioner had filed his reply inter alia requesting the disciplinary authority of the respondent-Bank to drop the proceedings initiated against him. ( 8 ) THE disciplinary authority after considering the reply so filed by the petitioner and after affording a personal hearing to the petitioner, had proceeded to impose the following punishment. It is as under:"the pay of the CSO is reduced by two stages in his incremental scale, substantive as well as officiating, for a period of two years, the reduction having the effect of withholding the intervening increment, if any, but not having the effect of postponing his future increments, in terms of regulation 47 (1 ) (c) of the Reserve Bank of india (Staff) Regulations, 1948 read with regulation 47 (l) (b)". ( 9 ) THE disciplinary authority of the respondent-Bank was also pleased to observe that the suspension period will be treated as extraordinary leave without pay and allowances not counting for increment and that period will not qualify for the purpose of pension under the Reserve Bank of India (Pension) Rules, 1990. ( 10 ) AGGRIEVED by the said order made by the disciplinary authority, petitioner had filed an appeal as provided under Regulation 48 of the Regulations before the Board of Governors of the Bank. The Appellate Authority by its endorsement dated April 21, 1993 has rejected the appeal and has confirmed the orders made by the disciplinary authority dated January 11, 1992. ( 11 ) AGGRIEVED by the aforesaid orders, petitioner is before this Court inter alia questioning the same on the following grounds. They are: i. The documents sought for by the petitioner are not furnished to him either by the enquiry officer or by the disciplinary authority and thereby petitioner was prevented from effectively participating in the enquiry proceedings. Therefore, it is stated that the procedure adopted by the enquiry officer as well as the disciplinary authority is in violation of the principles of natural justice and therefore, the proceedings are vitiated. 11. The disciplinary authority without issuing a show-cause notice to the petitioner before disagreeing with the findings of the enquiry officer, could not have formed a tentative opinion, and therefore, the procedure adopted by the disciplinary authority is arbitrary and illegal. III. The Appellate Authority has not considered in a proper perspective the appeal filed by the petitioner. 11. The disciplinary authority without issuing a show-cause notice to the petitioner before disagreeing with the findings of the enquiry officer, could not have formed a tentative opinion, and therefore, the procedure adopted by the disciplinary authority is arbitrary and illegal. III. The Appellate Authority has not considered in a proper perspective the appeal filed by the petitioner. Lastly, it is stated that the Executive director's report dated March 22, 1993 is taken into consideration by the Board of governors (Appellate Authority) without even supplying the aforesaid document to the delinquent official. Therefore, it is stated that the orders made by the Appellate Authority is illegal and is in violation of the principles of natural justice. ( 12 ) SRI Kesthur N. Chandrashekar, learned counsel appearing for the petitioner reiterates the grounds urged in the memorandum of writ petition. ( 13 ) SMT. Kasturi, learned counsel appearing for the respondent- Bank sought to justify the impugned orders. ( 14 ) THE parties to the lis are governed by the provisions of the Reserve Bank of India (Staff) Regulations, 1948. For the purpose of this case, what is required to be looked into is regulation 47 (2), 47 (3), 47 (4) and also regulation 48 of the Regulations. They are as follows:"47. Penalties.- (2)No employee shall be subjected to the penalties (b), (c), (d) or (e) of sub-regulation (I) except by an order in writing signed by the Governor in the case of an officer other than an officer in Grade 'a', or the Manager in the case of other employees, and no such order shall be passed without the charge or charges being formulated in writing and given to the said employee so that he shall have reasonable opportunity to answer them in writing or in person, as he prefers, and in the latter case his defence shall be taken down in writing and read to him: provided that the requirements of this sub-regulation may be waived if the facts on the basis of which action is to be taken have been established in a Court of law or court-Martial or where the employee has absconded or where it is for any other reason impracticable to communicate with him or where there is difficulty in observing them and the requirements can be waived without injustice to the employee. In every case where all or any of the requirements of this sub-regulation are waived, the reasons for so doing shall be recorded in writing. (3) The inquiry under this Regulation and the procedure with the exception of the final order, may be delegated in case the employee against whom proceedings are taken is an officer to any officer who is in a grade higher than such employee and in the cases of other employees to any officer in Class I. (4) An employee may be placed under suspension by the officer empowered to pass the final order under this Regulation. During such suspension, he shall receive subsistence allowance equal to his substantive pay plus twenty-five per cent thereof, provided that if no penalty under clauses (b), (c), (d) or (e) of sub- regulation (I) is imposed the employee shall be refunded the difference between the subsistence allowance and the emoluments which he would have received but for such suspension, for the period he was under suspension, and that, if a penalty is imposed on him under the said clauses, no order shall be passed which shall have the effect of compelling him to refund such subsistence allowance. The period during which an employee is under suspension shall, if he is not dismissed from the service, be treated as period spent on duty or leave as the officer who passes the final order may direct. 48. Appeals.-An employee shall have a right of appeal against any order passed by a superior authority which injuriously affects his interests". ( 15 ) RE. Issue No. 1.-Before the enquiry officer, petitioner has sought for the following documents. They are:i. The FIR filed by the Manager;ii. Statements made by the witnesses to the police authorities;iii. Central Office circular DA No. Tng. 1134 (21)83/84, dated November 21, 1988;iv. Central Office circular GA No. 277/6 (I)-87/88, dated July 30, 1987; andv. A note circulated by Central Office to all the offices of Reserve Bank of India in the third week of September 1987. Therefore, the enquiry officer had directed the Presenting Officer to inform her about the relevancy of the documents sought for by the petitioner in the enquiry proceedings. A note circulated by Central Office to all the offices of Reserve Bank of India in the third week of September 1987. Therefore, the enquiry officer had directed the Presenting Officer to inform her about the relevancy of the documents sought for by the petitioner in the enquiry proceedings. ( 16 ) ON August 4, 1988, the Presenting officer in the enquiry proceedings had informed the enquiry officer that none of the documents sought for by the petitioner has any relevancy with regard to the enquiry proceedings. The statement made by the Presenting Officer before the enquiry officer is as under:" (1) Shri Shanmugam's name does not appear in the FIR filed by the Manager and hence no criminal case is pending in his name. I therefore, do not see any relevance of the FIR to Shri Shanmugam's defence. (2) The Central Office circular dated november 2, 1988 lays down the criteria for deputation of employees to functional courses. (3) The circular dated July 30, 1987 is internal circular issued by DGBA regarding taking over of State Government accounts from CAS, Nagpur to Bangalore requesting bangalore Office to depute an officer in grade 'a' and Clerk Grade I to Nagpur for training for a period of 5 to 6 years. (4) The office note circulated by the Central office to all the branches in third week of september 1987 details the circumstances leading to the suspension of 2 employees and one officer". ( 17 ) THE enquiry officer after going through the circulars which was presented to her by the Presenting Officer, and after considering the request made by the petitioner and the statement made by the Presenting officer has come to a positive conclusion that the document sought for by the petitioner has no relevancy whatsoever to the enquiry proceedings. Therefore, has rightly rejected the request made by the petitioner. Since the documents sought for by the petitioner has no relevancy for the subject- matter of the enquiry proceedings, in my opinion, the non- furnishing of those documents sought for by the petitioner would not prejudice the case of the petitioner in any manner whatsoever. Therefore, the first legal issue raised by the petitioner has no merit. Accordingly, it is rejected. ( 18 ) RE. Therefore, the first legal issue raised by the petitioner has no merit. Accordingly, it is rejected. ( 18 ) RE. Issue No. II.-The enquiry officer in her report dated March 30, 1989 is of the view that petitioner is guilty of the first charge and part of the second charge and third charge is not proved by the management. After receipt of the report and the findings of the enquiry officer, the disciplinary authority disagrees with the findings of the enquiry officer and before disagreeing with the findings of the enquiry officer, he has applied his mind and has come to the conclusion that the enquiry officer is not justified in coming to the conclusion that third charge is not proved by the management against the delinquent official. The findings of the disciplinary authority is a tentative conclusion and after coming to that tentative conclusion, the disciplinary authority issues a second show-cause notice to the petitioner enclosing the report of the enquiry officer and his disagreement or tentative conclusion with regard to the charges alleged in the charge memo. Petitioner files his reply. According to the learned counsel Sri Kesthur N. Chandrashekar, the disciplinary authority before disagreeing with the findings of the enquiry officer should have issued a notice to the petitioner and this could not have been done after he had come to a tentative conclusion that petitioner is guilty of the third charge also. In my opinion, even this contention of the learned counsel for the petitioner has no merit whatsoever in view of the observations made by the Apex Court in the case of Punjab national Bank and Others v. Kunj Behari misra, AIR 1998 SC 2713 : 1998 (7) SCC 84 : 1998-II-LLJ-809. The Supreme Court in the said decision was pleased to observe as under at p. 818 of LLJ:"the principles of natural justice have, therefore, to be read into Regulation 7 (2 ). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings". As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings". ( 19 ) AS I have stated earlier, after receipt of the report of the enquiry officer, the disciplinary authority disagrees with the findings of the enquiry officer and tentatively records the reasons for such disagreement and issues a second show-cause notice to the petitioner enclosing the report of the enquiry officer and his tentative reasons for disagreeing with the findings of the enquiry officer. It is only after petitioner files his reply, the disciplinary authority proceeds to record his conclusion. Therefore, in my opinion, in view of the observations made by the Apex Court in the aforesaid decision, the learned counsel may not be justified when he says that before recording his tentative reasons for disagreeing with the findings of the enquiry officer, the disciplinary authority should have issued a notice to the petitioner. Therefore, even the second issue canvassed by the learned counsel for the petitioner requires to be rejected. Accordingly, it is rejected. ( 20 ) RE. Issue Nos. Ill and IV-Regulation 48 of the Staff Regulations of the Bank provides for an appeal remedy before the Board of governors, against the orders made by the disciplinary authority, since petitioner is an officer of the Bank. Regulation 49 of the regulations envisages that an appeal shall lie in the case of an officer, other than an officer in grade 'a' to the Central Board, and in the case of other employees, to the Governors. Regulation 50 of the Regulations speaks of the conditions, which an appeal should satisfy when it is filed before the first Appellate authority. ( 21 ) IN the instant case, an appeal came to be filed individually by the petitioner aggrieved by the orders made by the disciplinary authority dated January 11, 1992. The other employees, who had suffered an order in the hands of the disciplinary authority, also filed similar appeals. The Appellate Authority while considering the appeal filed by the petitioner has also taken into consideration the appeals filed by the other employees and then has passed a common order dated April 21, 1993. The other employees, who had suffered an order in the hands of the disciplinary authority, also filed similar appeals. The Appellate Authority while considering the appeal filed by the petitioner has also taken into consideration the appeals filed by the other employees and then has passed a common order dated April 21, 1993. In my opinion, the Appellate Authority should have taken into consideration the appeals filed by the petitioner and the other employees against the orders made by the disciplinary authority individually and after applying his mind, he should have passed a separate order. Since the Appellate Authority makes a common order on the appeals filed by the petitioner and the other employees, the same is contrary to the regulations of the Bank. Therefore, the order made by the Appellate Authority dated April 21,1993 requires to be set aside by this Court. ( 22 ) IN the result, writ petition is allowed in part. Rule made absolute to that extent only. The impugned order made by the Appellate authority in clubbing all the appeals filed by the petitioner and other employees and passing a common order dated April 21, 1993 is set aside. The matter is remitted back to the appellate Authority to reconsider the appeal filed by the petitioner in accordance with law and keeping in view the observations made by this Court in the course of this order. Ordered accordingly. --- *** --- .