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2002 DIGILAW 588 (PAT)

Ramesh Prasad Karn v. State Bank Of India

2002-05-09

AFTAB ALAM

body2002
Judgment 1. Heard Mr. Atul Chandra, counsel appearing in support of this writ petition and Mr. S.K. Sinha, Senior Advocate representing the respondent State Bank of India and its officials. 2. The petitioner was an employee of the Bank. He was dismissed from service in a disciplinary action relating to a number of charges. The order of dismissal was passed by the disciplinary authority, who happens to be the Assistant General Manager, Region III, on 2.2.2000. The petitioners appeal against the order of his dismissal was dismissed by order, dated 13.7.2000 passed by the Deputy General Manager, the appellate authority. This writ petition has been filed challenging the aforesaid two orders and this is the fourth time the petitioner is before this court in connection with the controversies arising from the disciplinary proceeding held against him. 3. Earlier the petitioner was dismissed from service by an order passed by the disciplinary authority on 27.1.1990 which was confirmed in appeal by order, dated 15.2.1994. Those two orders were challenged before this Court in CWJC No. 742 of 1995 which was allowed by judgment and order, dated 27.9.1995. 4. It appears that for filing his reply to the charges and then again at the stage of the second show-cause notice, the petitioner had asked for certain documents. The bank, however, maintained that those documents were of no relevance to the charges. In that view the bank neither gave the petitioner the documents asked for by him nor informed him of its reason for not giving the documents. This court took the view that the failure of the bank to supply the documents demanded by the petitioner or atleast to tell him the reason for nor supplying those documents amounted to a denial of reasonable opportunity to the petitioner to effectively defend his case. On that ground the dismissal order was quashed and the matter was remanded to the disciplinary authority for proceeding afresh from the stage of the second show cause-notice. The operative portion of the order passed in the earlier writ petition, being CWJC No. 742 of 1995 is as follows : "Accordingly, the impugned orders, contained in annexure-20 and 22 are quashed and the matter is remanded back to the Disciplinary Authority for taking a fresh decision after complying with the aforementioned formalities and giving a reasonable opportunity to the petitioner from the stage of second show cause. The writ application is accordingly, allowed, but without costs." 5. Following the order of this Court the disciplinary authority i.e. the Assistant General Manager, Region III took up the proceedings from the stage of the second show cause notice. At that time a certain Mr. B. Rosario held the post of A.G.M. Region III. He allowed the petitioner personal hearing (oral submissions) on April 16 and June 15 and 17, 1999. At the close of the oral submissions, the petitioner also filed written notes of submission along with his letter, dated 13.7.1999. However, before Shri Rosario could pass a final order in the proceedings, he was transferred to some other post and one Shri S.K.Sinha came at his place as A.G.M., Region III. The petitioner then by his letter, dated 6.12.1999 requested Shri Sinha to give him a personal hearing. Shri Sinha, however, declined the request and proceeded to pass a final order, dated 2.2.2000 awarding the petitioner the punishment of dismissal from service. In this order, Sri Sinha has dealt with the petitioners request for personal hearing/oral submissions before him and his reasons for not acceding to the request. It appears that Shri Sinha was quite satisfied that the case of the petitioner was fully represented in the written notes of submission submitted by him on 13.7.99 and presumably in the form of the notes, taken by his predecessor, Shri Rosario in course of hearing before him on three dates. Shri Sinha had perhaps good reasons to be so satisfied as the order passed by him is in considerable detail and takes into consideration almost all the objections that might have been raised on behalf of the petitioner. 6. Mr. Atul Chandra, however, submitted that the denial of an opportunity of personal hearing/ oral submissions before Mr. Sinha was a fatal lacuna which would vitiate not only the order passed by him but also the order of the appellate authority. Learned counsel pointed out that the denial of opportunity to make oral submissions was in breach of the procedure for disciplinary proceedings, as laid down in the Sastri award. 7. Learned counsel invited my attention to para 521 (10)(a) which provides for a hearing to the proceedee at the stage of the second show cause notice. Learned counsel pointed out that the denial of opportunity to make oral submissions was in breach of the procedure for disciplinary proceedings, as laid down in the Sastri award. 7. Learned counsel invited my attention to para 521 (10)(a) which provides for a hearing to the proceedee at the stage of the second show cause notice. The provision of para 521(10)(a), in so far as relevant for the present is reproduced below : ".........He shall also be permitted to be defended by a representative of a registered union of bank employees or, with the banks permission, by a lawyer. He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him." (emphasis added) 8 It is indeed true that the expression "hearing" may not always mean oral submissions. Though the expression "hearing" is generally understood to mean oral submissions and in a majority of cases it is used in that sense in a certain context the expression "hearing" may not mean anything more than an opportunity to place ones case by means of a show cause, a written statement or written submissions. 9. In case it is held that in para 521 (10)(a) of the Shastri Award, the expression "hearing" has been used to mean an opportunity to the delinquent to place his case by means of a show cause, written submissions etc., then the disciplinary authority was fully justified in not allowing the petitioner an opportunity for making oral submissions because the notes of submission submitted on his behalf were already before him. But in case it is held that the expression "hearing" used in the aforequoted Shastri Award means an opportunity to advance oral submissions, then Shri Sinha was clearly in error because the oral submissions made on behalf of the petitioner before his predecessor could not be taken as oral submissions made before him. 10. In this case, however, I refrain from making a conclusive pronouncement on the correct meaning and scope of the expression "hearing" used in para 521(10)(a) of the Shastri Award because in the facts and circumstances of this case I feel that in any event it would have been more proper, desirable and prudent for Mr. Sinha to give the petitioner a personal hearing. Sinha to give the petitioner a personal hearing. This is for the simple reason that his predecessor Shri Rosario had given such an opportunity to the petitioner and had understood the expression "hearing" to mean oral submissions. 11. It may be stated here that the order passed by Shri Sinha is quite comprehensive and takes into consideration almost all aspects of the matter. It is also stated above that Shri Sinha had good reasons to be satisfied that all that could be said on behalf of the petitioner was already before him and further sessions of oral submissions will not bring forth anything new. One may even say that Shri Sinha was not completely unjustified in his reasons. 12. But the issue is not how Mr. Sinha viewed the matter. Equally important is how would the delinquent view and feel about the matter. The refusal by Mr. Sinha to give personal hearing to the petitioner may legitimately make him feel that he was denied the opportunity to effectively place his case before the disciplinary authority, particularly when Mr. Sinhas predecessor in office had extended such an opportunity to him. I feel tempted to quote the oft repeated maxim the meaningfulness and relevance of which seems to grow with repeated use : Justice should not only be done but it should also appear to have been done. 13. In these facts and circumstances and for the reasons stated above, I am constrained to hold that the order passed by the disciplinary authority is unsustainable because it was passed without giving the petitioner an opportunity of personal hearing. The impugned orders, dated 2.2.2000 passed by the disciplinary authority and, dated 13.7.2000 passed by the appellate authority are accordingly set aside and the matter is remitted back to the disciplinary authority, A.G.M., Region III for taking a fresh decision in the matter after giving the petitioner an opportunity of making oral submissions. 14. As the matter has become about fifteen years old, it needs to be concluded expeditiously and without any undue delay. In order to facilitate an early disposal of the matter, the petitioner is directed to appear before the A.G.M., Region III, Zonal Office, Muzaffarpur along with a copy of this order within one month from today. The A.G.M. will fix a date and time for giving the petitioner/ his representative a personal hearing. In order to facilitate an early disposal of the matter, the petitioner is directed to appear before the A.G.M., Region III, Zonal Office, Muzaffarpur along with a copy of this order within one month from today. The A.G.M. will fix a date and time for giving the petitioner/ his representative a personal hearing. The personal hearing may not be allowed to become interminable and this Court feels that around two hours should be adequate for making all the submissions on behalf of the petitioner. The personal hearing may be held on one day or it may be spread over two to three days subject to the convenience of the disciplinary authority but the total time may not exceed around 2 to 2 1/2 hours. Having claimed and availed of the right of hearing, it will not be open to the petitioner to file a bulky notes of submission as of right and it will be open to the disciplinary authority to accept or not to accept any written notes of submission that the petitioner might wish to submit. After giving the petitioner a personal hearing/ oral submissions, the disciplinary authority will pass a final order in the proceedings, preferably within four months from the date of receipt/ production of a copy of this order in his office. 15. In the result, this writ petition is allowed but with no order as to costs.