Research › Search › Judgment

Gauhati High Court · body

2003 DIGILAW 333 (GAU)

Punjab and Sind Bank v. Arup Das

2003-07-24

I.A.ANSARI, P.P.NAOLEKAR

body2003
JUDGMENT P.P. Naolekar, C.J. 1. Heard Mr. B.R. Dey, the learned counsel appearing on behalf of the appellants and Mr. K. Agarwal, the learned counsel appearing on behalf of the respondent No. 1. 2. At the relevant time the respondent No. 1 was engaged in the Punjab & Sind Bank as Officer in the Junior Management Grade Scale-I. While working as Officer in the Junior Management Grade Scale-I the respondent No. 1 was served with a charge dated 16.3.1996 along with Article of Charges and the statements of allegations issued by the Assistant General Manager, Punjab and Sind Bank, Zonal Office. The respondent No. 1 was informed that Shri K.S. Bedi, Manager, Zonal Office has been appointed as Enquiry Authority and Shri Inderjit Singh, Manager, Silchar Branch has been appointed as Presenting Officer. The respondent No. 1 was directed to appear in the enquiry proceedings. After submission of the written statement Enquiry Officer fixed date for recording evidence of the employer and on 7.5.1997 one witness was examined and cross-examined. The order dated 7.5.1997 of the Enquiry Officer shows that the Presenting Officer was allowed to call for all the remaining witnesses on the next date of hearing. The next date of hearing was fixed on 17th June, 1997. On 17th June, 1997 the Enquiry Officer could not reach and, therefore, the matter was adjourned to 18th June, 1997. That was the date for recording the evidence of rest of the witnesses. On 18th June, 1997, 19th June, 1997 and 20th June, 1997 the recording of the evidence in the enquiry was adjourned to give opportunity to the respondent No. 1 to appear in the enquiry. The matter was listed on 21st June, 1997. On that date also the respondent did not appear and the evidence of three witnesses on behalf of the management was recorded ex parte. Thereafter on 2.12.1997 a letter was issued by the Enquiry Officer along with written brief, submitted by the management, whereby the respondent No. 1 was directed to submit his written brief within 15 days. The respondent No. 1 submitted his written brief but as per the management they did not receive written brief submitted by the respondent No. 1. The Enquiry Officer submitted his report before the disciplinary authority on 26.12.1997 and the respondent No. 1 was asked to furnish his comment within 15 days of receipt of the said letter. The respondent No. 1 submitted his written brief but as per the management they did not receive written brief submitted by the respondent No. 1. The Enquiry Officer submitted his report before the disciplinary authority on 26.12.1997 and the respondent No. 1 was asked to furnish his comment within 15 days of receipt of the said letter. The respondent No. 1 submitted his comment and later on by order dated 19.8.1998 the respondent No. 1 was dismissed from service. 3. Aggrieved by the order of dismissal the respondent No. 1 preferred an appeal before the Departmental Authority. However, as the appeal could not be disposed of, the respondent No. 1 filed a writ petition in the High Court. 4. The learned Single Judge held that the respondent No. 1 was not given proper opportunity to defend himself in the Departmental Enquiry and thus prejudicially affected his right to defend him self. The learned Single Judge has also gone into the facts of the case and on appreciation of the evidence placed on records in the enquiry proceedings has reached to the conclusion that charges framed against the respondent No. 1 have not been proved and consequent thereof the order of dismissal has been set aside by the learned Single Judge. The employer Punjab & Sind Bank has preferred this appeal against the judgment and order of the learned Single Judge before the Division Bench. 5. Without going into the question whether the charges have been proved on merit or not as held by the learned Single Judge, we find that there are procedural irregularity or illegality whereunder the respondent No. 1 was not given proper opportunity to defend himself and there is a breach of the relevant Rules as well as the principle of natural justice. 6. The facts stated hereinabove clearly indicate that the matter was listed before the Enquiry Officer on 21.6.1997 for recording the evidence of the witnesses of the employer as the respondent No. 1 did not appear in the enquiry. The Enquiry Officer was justified in proceeding ex parte against the respondent No. 1 and recording the evidence in the absence of the respondent No. 1. Till that date the enquiry was proceeded in accordance with the procedures laid down in Punjab & Sind Bank Officer Employees' (Discipline and Appeal) Regulations, 1981. The Enquiry Officer was justified in proceeding ex parte against the respondent No. 1 and recording the evidence in the absence of the respondent No. 1. Till that date the enquiry was proceeded in accordance with the procedures laid down in Punjab & Sind Bank Officer Employees' (Discipline and Appeal) Regulations, 1981. After closure of the evidence of the employer the Enquiry officer has to follow the Rules as prescribed by sub-regulations (15), (16) and (17) of Regulation 6 which read as under : "(15). When the case in support of the charges is closed, the officer employee may be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the officer employee shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed. (16). The evidence on behalf of the officer employee shall then be produced. The officer employee may examine himself in his own behalf, if he so prefers. The witnesses produced by the officer employee shall then be examined by the officer employee and may be cross-examined by the Presenting Officer. The officer employee shall be entitled to re-examine any of his witness on any points on which they have been cross-examined, but not on any new matter without the leave of the inquiring authority. (17). The inquiring authority may, after the officer employee closes his evidence, and shall, if the officer employee has not got himself examined, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer employee to explain any circumstances appearing in the evidence against him." 7. After the closure of the evidence of the employer, under sub-regulation (15) of Regulation 6 the Enquiry Officer is called upon to ask the employee to state his defence orally or in writing. If the defence is made orally, it has to be recorded. In either eventualities the statement of defence shall be given to the Presenting Officer. Thereafter, the employee shall be given an opportunity to produce his evidence and the employee may examine himself, if he so prefers. If the defence is made orally, it has to be recorded. In either eventualities the statement of defence shall be given to the Presenting Officer. Thereafter, the employee shall be given an opportunity to produce his evidence and the employee may examine himself, if he so prefers. After closure of the evidence of the employee the Presiding Officer, if the employee has not examined himself, shall question the employee on the circumstances appearing against him in the evidence for the purpose of enabling the officer employee to explain any circumstances appearing in the evidence against him. This provision is akin to Section 313 of the Code of Criminal Procedure. Thus, after the closure of the evidence of the employer, the employee is required to be given an opportunity to lead his evidence and the Enquiry Officer is to follow the procedure laid down under sub-regulations (15), (16) and (17) of Regulation 6. The Enquiry Officer instead of doing that, straightaway jumped to the procedure prescribed under sub-regulation 18 of Regulation 6 and asked the employee respondent to submit his written brief. 8. It is apparent from the aforesaid proceeding that the respondent-employee was not afforded proper opportunity to defend himself. It is submitted by the learned counsel for the appellant that once the enquiry is proceeded ex parte, there is no necessity of following the procedure and to give an opportunity to the respondent-employee to produce his evidence in defence. It may be noted here that 21st June, 1997 was the date fixed for recording the evidence of the employer only and not production of the evidence by the defence. At best the Enquiry Officer could have proceeded ex parte and recorded the evidence of the employer in the absence of the respondent-employee. But that does not authorise the Enquiry Officer to proceed in the enquiry without giving any opportunity to the employee to defend himself by leading evidence on his behalf. The proceeding ex parte in enquiry on particular date does not debar the employee to appear in the further proceeding and participate in the proceeding. Sangram Singh, Appellant v. Election Tribunal, Kotah and Anr., respondents reported in is referred. It was incumbent on the Enquiry Authority to fix the case for further proceedings after the closure of evidence of the employees. Sangram Singh, Appellant v. Election Tribunal, Kotah and Anr., respondents reported in is referred. It was incumbent on the Enquiry Authority to fix the case for further proceedings after the closure of evidence of the employees. Order of keeping the case for day-to-day trial has to be read in furtherance of the order whereby the inquiry date was given for recording of the evidence of the employer. In the absence of any date fixed for presentation of defence witness the direction that proceeding shall be on day-to-day basis cannot be read as the proceedings will be taken up as provided under Regulation 6(15), (16) and (17). The learned counsel for the appellants has cited the case of Vikas Deshpande, Appellant v. Bar Council of India and Ors. reported in and other authorities which we may not refer as the facts of those cases do not justify application of those cases in the present case. 9. In the aforesaid scenario we have no manner of doubt that the respondent-employee was not given proper opportunity to defend himself in the disciplinary enquiry. Failure to give reasonable opportunity to the respondent-employee to defend himself vitiates the enquiry proceedings and the resultant dismissal order. 10. For the aforesaid reasons we do not find any good or sufficient reason to interfere with the order passed by the learned Single Judge. 11. The appeal is accordingly dismissed.