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2003 DIGILAW 414 (CAL)

SWAPAN KUMAR PANI v. CANARA BANK

2003-08-14

ASOK KUMAR GANGULY, S.P.TALUKDAR

body2003
A. K. GANGULY, S. P. TALUKDAR ( 1 ) IN this appeal, several disciplinary proceedings which were initiated in respect of the similar matter have been referred to. Those proceedings ended with an order of review. ( 2 ) THE short facts of the case are that the petitioner/appellant was an accountant, Jaipur Road, Orissa Branch of Canara Bank (hereinafter referred to as the Bank ). Against the appellant, the first chargesheet dated 20. 5. 1987 was issued with allegations, inter alia, for unauthorised removal of certain bearer bonds with ulterior motive. Against such chargesheet, an enquiry was held and after enquiry, the enquiry authority found that the appellant was not guilty of the charges, The disciplinary authority also agreed with such finding and the appellant was exonerated of the charges levelled against him. This order was passed by the Deputy General Manager of the said Bank on 29. 3. 1989. ( 3 ) THEREAFTER, another chargesheet was immediately issued on 31. 3. 1989 against the appellant. In the said chargesheet, the allegations were centered around the self-same bonds, but this time the allegations were, inter alia, for failure on the part of the appellant to ensure safe custody of the bonds. In respect of this chargesheet, an order was passed by the Deputy General Manager of the said Bank whereby, the said Deputy General Manager held-"it is considered necessary not to proceed with the above referred chargesheet dated 31. 3. 89. " In view of the said order, the said chargesheet was treated as not proceeded with by the Deputy General Manager of the said Bank. This order was passed by the Deputy General Manager of the said Bank on 11. 1. 1996. ( 4 ) IN the meantime, on 25. 7. 1995, another order was passed by the reviewing authority, By the said order, the reviewing authority sought to review the order of exoneration passed in respect of the appellant in connection with first charge and the reviewing authority held that the matter should be investigated in view of the materials which have been revealed in the course of subsequent investigation and as a result of the said order passed by the reviewing authority, viz. , the Managing Director of the said Bank, a third chargesheet was issued against the appellant on 31. 1. , the Managing Director of the said Bank, a third chargesheet was issued against the appellant on 31. 1. 1996 and this time, the allegation was one of the alleged disposal and sale of the very self-same bearer bonds. Pursuant to such order passed by the reviewing authority, chargesheet was issued and the departmental proceeding was initiated. ( 5 ) AT this juncture, the appellant filed a writ petition before this Court. The same was numbered as C. O. 9973 (W) of 1996. The said writ application was moved before a learned Single Judge and the learned Single Judge by an order dated 25. 7. 1996 was pleased to pass an interim direction, inter alia, directing that the said Bank would be entitled to continue the disciplinary proceeding and also would be entitled to pass final orders, but the same will not be acted upon without the leave of the Court. The appellant was directed to participate in the proceeding without prejudice to the rights and contentions in respect of the grounds taken in the said writ petition. Pursuant to such leave of the learned single Judge, departmental proceedings were proceeded with and the appellant participated in the said proceeding. ( 6 ) ULTIMATELY, the said Bank has passed an order on 24. 12. 1998 to the effect that upon conclusion of the said enquiry and upon agreeing with the findings of the inquiry authority and taking into consideration on the said submissions of the officer employee, they want to impose punishment of dismissal upon the appellant as envisaged under Regulation 4 (j) of the Canara Bank Officer employees' (Discipline and Appeal) (Amendment) Regulations, 1976 (hereinafter referred to as the said 'regulations' ). Since the writ petition was pending before this Court, the said order of punishment was not given effect to. ( 7 ) ULTIMATELY, the writ petition came up for final hearing before a learned judge of this Court and by a judgment dated 12. 4. 2000, the writ petition was dismissed by the learned Judge and after the dismissal of the writ petition, the order of dismissal passed against the appellant became effective. ( 7 ) ULTIMATELY, the writ petition came up for final hearing before a learned judge of this Court and by a judgment dated 12. 4. 2000, the writ petition was dismissed by the learned Judge and after the dismissal of the writ petition, the order of dismissal passed against the appellant became effective. ( 8 ) THE learned counsel in support of the appellant attacked the order of review passed by the reviewing authority and submitted, and in our view rightly, since the entire departmental proceeding has been initiated on the basis of the said order of review, if the order of review is quashed by this Court, in that case all orders passed in the disciplinary proceeding on the basis of a chargesheet issued on the strength of the said review order, will automatically collapse and/or fall. This Court is, therefore, called upon to examine the correctness of the said order of review. ( 9 ) THIS Court finds from the said regulation that the power of review is a statutory power. The said regulations have been framed in exercise of power conferred under section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, and as such, the said regulations are statutory regulations. Under Regulation 18 of the said regulations, power of review has been conferred on the reviewing authority. The said provisions for review as contained in Regulation 18 is set out below :"18. Review. Under Regulation 18 of the said regulations, power of review has been conferred on the reviewing authority. The said provisions for review as contained in Regulation 18 is set out below :"18. Review. Notwithstanding anything contained in these regulations, the reviewing authority may call for the record of the case within six months of the date of the final order and after reviewing the case pass such orders thereon as it may deem fit : provided that (i) if any enhanced penalty which the reviewing authority proposes to impose, is a major penalty specified in clauses (e), (f), (g) or (h) of Regulation 4 and an enquiry as provided under Regulation 6 has not already been held in the case, the reviewing authority shall direct that such an enquiry be held in accordance with the provisions of Regulation 7 and thereafter consider the record of the enquiry and pass such orders as it may deem proper ; (ii) if the reviewing authority decides to enhance the punishment but an enquiry has already been held in accordance with the provisions of Regulation 6 the reviewing authority shall issue show cause notice to the officer employee as to why the enhanced penalty should not be imposed upon him and shall pass an order after taking into account the representation, if any, submitted by the officer employee. " ( 10 ) FROM a perusal of the said provisions, it appears that the power of review is not an unfettered power and the said power is hedged on with several conditions. The first condition is that the reviewing authority is to exercise the power within six months from the date of final order. In the instant case, from the order of review, it is clear that the reviewing authority is purporting to review the order of exoneration given in favour of the appellant on 29. 3. 1989 and the said order of review was passed on 25. 7. 1995. Therefore, there has been a delay of about six years instead of six months. The learned Judge while considering this aspect of the matter in the judgment under appeal, has noted, in paragraph 4 of the judgment that the power of review is to be exercised within six months and in page 5 of the judgment (page 234 of the Paper Book)the learned Judge has accepted the limitation on such power. The learned Judge while considering this aspect of the matter in the judgment under appeal, has noted, in paragraph 4 of the judgment that the power of review is to be exercised within six months and in page 5 of the judgment (page 234 of the Paper Book)the learned Judge has accepted the limitation on such power. Even then the learned Judge approved the exercise of the power of review after six months in view of inherent power of an employer to punish a person for having committed misconduct and who is guilty of indiscipline. ( 11 ) WE cannot approve the said reasoning given by the learned Single Judge. In a matter of employment with a State, the said Bank is certainly a State, the matter of employment between the appellant and the said Bank is not a question of contract of service. It may be a contract of service at the initial stage of entry, but thereafter, such relations between the said Bank and the appellant are regulated by statutory regulations, as in the instant case, by the said regulations. When statutory regulations have been enacted, the same must be followed. It cannot be departed from on the basis of inherent right or power of an employer to punish an employee. The general law of master and servant is not applicable here. This has been made clear by the Hon'ble Supreme Court in its Constitution bench judgment in the case of Delhi Transport Corporation vs. D. T. C. Mazdoor congress reported in AIR 1991 SC 99 (See para 240 and page 186 of the report ). ( 12 ) SO the learned Judge, with great respect, possibly has committed an error by allowing the exercise of review in a manner which is contrary to the said regulation. ( 13 ) THE learned Judge also went on to the extent of saying that if a Bank officer commits a misconduct and the authorities find that an enquiry is required, even five years of passing of the final order of exoneration, in such a situation, the rule providing for review must be construed in such a manner as to allow an enquiry and the learned Judge also committed an error in law by saying that the Court of equity cannot prevent such an enquiry. ( 14 ) WE are, with great respect to the learned Judge, unable to share the aforesaid reasoning given by His Lordship. ( 15 ) IT is well-settled when a departmental proceeding is initiated against an employee, be is entitled to rely on the procedural safeguards which are given to him under the relevant statutory rules. Since the statutory rules on the point is clear, equity does not come into play. Of course, there are equitable principles which every Court has to take into account in the administration of justice. But where legal provisions is clear on the vague concept of equity, the relevant statutory provisions cannot be circumvented. It is well-known that equity follows the law. ( 16 ) THE authorities of the Bank in order to overcome the enormous delay, referred to Regulation 21 of the said regulations. ( 17 ) THE learned Judge did not hold that time of six months has been or can be extended by relying on the provisions of Regulation 21. We are of the view that the period of six months mentioned in Regulation 18 cannot be extended by relying on Regulation 21. ( 18 ) REGULATION 21 is to be passed into service in other situation, specially in view of the fact that Regulation 18 starts with an overriding clause. Therefore, the review proceeding must be initiated within six months. This is a mandatory requirement, apart from the question of delay. The provision under clause 18 has two parts. Part (i) and Part (ii ). Part (i) is applicable in a case where no enquiry has been held. But, in the instant case, as in the enquiry in respect of first charge enquiry was held and the appellant was exonerated. So, Part (i) of regulation 18 is not applicable. ( 19 ) SO far as Part (ii) is concerned, the same is applicable where reviewing authorities decide to enhance the punishment. This is also not applicable in the instant case since no punishment was at all imposed on the appellant after the first enquiry as he was exonerated. The question of enhancement of punishment presupposes imposition of some punishment. In a case of exoneration no punishment can be imposed, so there is no possibility of enhancement. This is also not applicable in the instant case since no punishment was at all imposed on the appellant after the first enquiry as he was exonerated. The question of enhancement of punishment presupposes imposition of some punishment. In a case of exoneration no punishment can be imposed, so there is no possibility of enhancement. So, in our view, apart from the question of delay in this case neither clause (i) nor clause (ii) of Regulation 18 of the said regulation is applicable. ( 20 ) WE, therefore, hold that the exercise of power by the reviewing authority is ultra vires clause 18 of the said regulations and is not sustainable in law. The said impugned order of review dated 25. 7. 1995 is quashed. As such, charge-sheet issued on the basis of such review, is also quashed, as also the order of dismissal. This Court, therefore, directs the Bank to reinstate the appellant forthwith to the post from which he was dismissed. But having regard to the nature of charges against the appellant, we do not direct the Bank to pay the appellant anything by way of back wages, but the reinstatement should be made within a period of six weeks from date. ( 21 ) WE, however, give the Bank liberty, if they are so advised, to initiate a fresh proceeding on proper materials. It is made clear that if they initiate such a further proceeding, they can do so not on the basis of the charges levelled against the appellant in the first and second chargesheet. If they have any other material, then this judgment will not be an impediment in the way of initiation of such a proceeding. ( 22 ) THE appeal is, therefore, allowed to the extent indicated above. The judgment of the learned Single Judge is quashed. ( 23 ) THERE will be no order as to costs. A. K. Ganguly and S. P. Talukdar, J. : I agree. Appeal allowed to the extent indicated.