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2005 DIGILAW 1137 (MAD)

V. S. R. Krishna v. Punjab National Bank & Others

2005-07-22

K.P.SIVASUBRAMANIAM

body2005
Judgment :- The proceedings being the subject matter of this writ petition has a checkered history of about two decades and even now does not appear to have reached a finality. The petitioner was originally employed as an Officer in the erstwhile Hindustan Commercial Bank Ltd., on 23.5.1979. He was charge-sheeted on 17.9.1983 on certain allegations. According to the petitioner, without holding an enquiry, his services were terminated by giving three months' salary in lieu of three months' notice. His appeal before the appellate authority under the Tamil Nadu Shops and Establishments Act was allowed and the termination was set aside. The Bank filed W.P.No.6379 of 1985 challenging the said order. During the pendency of the writ petition, the Bank merged with Punjab National Bank on 18.12.1986 and the Punjab National Bank stepped into the shoes of the writ petitioner. The writ petition was finally dismissed on 21.2.1992. 2. On receiving a communication from the Bank calling upon him to join duty, the petitioner joined duty on 29.5.1992. However, on the same day, he was suspended pending enquiry. The petitioner submitted a letter of resignation on 24.6.1992 followed by a reminder on 28.12.1992. According to the petitioner, there was no reply either accepting or rejecting the request for resignation. A charge memo was issued on 22.10.1993 resurrecting the earlier allegations for which the petitioner submitted his explanation on 7.12.1993. The petitioner would state that though an enquiry was purported to be held, no witness was examined and only documents were marked as exhibits. The petitioner would also state that vital documents were suppressed and not produced. However, the enquiry was held to have been completed and the petitioner submitted his defence statement. 3. Of the two charges, the enquiry officer held that the first charge was proved and part of the second charge was also held as proved. According to the petitioner, he had raised objections of delay in the initiation of proceedings and also as the High Court did not give any liberty specifically to re-start the proceedings again, the proceedings were not valid. But the enquiry officer left those issues to be decided by the disciplinary authority. The petitioner was asked to submit his explanation on the enquiry officer's report by letter dated 16.4.1994. But the enquiry officer left those issues to be decided by the disciplinary authority. The petitioner was asked to submit his explanation on the enquiry officer's report by letter dated 16.4.1994. By his letter dated 16.4.1994, the petitioner requested time for 15 days; but without any reply to his request, an order was issued on 26.4.1994 dismissing him from service. In passing the said order, the third respondent had disagreed with the finding of the enquiry officer with reference to part of the second charge finding the petitioner not guilty. The disciplinary authority found the petitioner guilty of the entire second charge. 4. An appeal was filed by the petitioner to the appellate authority on 10.6.1994 which was rejected on 9.12.1994. A review petition was filed on 20.2.1995. However, as no order was passed on the review petition, the petitioner has approached this Court. 5. After narrating the facts as above, Mr.Gokulnath, learned counsel for the petitioner, had raised the following contentions: (i) No liberty was given to the bank in W.P.No.6379 of 1985 to re-start the enquiry again on the same charges. (ii) Unnecessary delay in the re-starting of the enquiry had prejudiced the rights of the petitioner. Though the enquiry officer had left the issue of delay and the correctness or otherwise of initiating proceedings, in the absence of liberty by the High Court in W.P.No.6379 of 1985, the disciplinary authority did not deal with the said issues. (iii) No witnesses had been examined in the enquiry. (iv) The disciplinary authority chose to disagree with the findings of the enquiry officer on the second charge and as such, he ought to have given opportunity to the petitioner to state his defence, and not having done so, the order of dismissal was liable to be set aside. 6. Per contra, Mr.S.Jayaraman, learned counsel for the Bank, contends that as regards whether re-starting of the enquiry was proper or not in terms of the order in W.P.No.6379 of 1985 or whether the delay would be a bar or not, the petitioner cannot be permitted to raise such issues after having participated in the enquiry and not having approached the Court at the proper time. As regards non-examination of witnesses, he would state that in a domestic enquiry, strict rules of evidence of proof of documents, etc., were not mandatory and when the charges could be substantiated on documentary evidence alone, there was no such compulsion for the Management to examine a formal witness. On the issue of failure by the disciplinary authority to give notice to the delinquent, learned counsel submits that the petitioner never pleaded any prejudice much less had proved it. In fact, he had waived the opportunity and when waiver was established, there was no necessity to comply with the formality of giving notice to the delinquent. He would also submit that even on the basis of the enquiry officer's report, the punishment of dismissal was justified. 7. Learned counsel for the respondents referred to few decisions of the Supreme Court in the said context and Mr.Gokulnath, learned counsel for the petitioner also, in his reply, referred to few decisions in the context whether opportunity should be given in the event of the disciplinary authority differing from the views or findings of the enquiry officer, which will be dealt with below. 8. I have considered the submissions of both sides and I would take up first the issue of failure to give notice to the delinquent for differing with the findings of the enquiry officer. 9. Mr.Jayaraman had referred to the following decisions in support of his contentions that the petitioner should have pleaded prejudice and proved the same. He would also state that the petitioner had waived the opportunity: (i) MANAGING DIRECTOR, ECIL Vs. B.KARUNAKAR ( (1993) 4 SCC 727 ); (ii) STATE BANK OF PATIALA Vs. S.K.SHARMA ( (1996) 3 SCC 364 ); and (iii) ALIGARH MUSLIM UNIVERSITY Vs. MANSOOR ALI KHAN ( (2000) 7 SCC 529 ). 10. On the facts of the present case, I am unable to sustain the contention that the petitioner has either waived his right or had not pleaded prejudice. Waiver can be only specific and I have not been shown any feature of the conduct of the petitioner specifically waiving his right. Mere reference to decisions that the right could be waived is of no consequence unless on facts it is shown that the delinquent had specifically waived his valuable right. 11. Waiver can be only specific and I have not been shown any feature of the conduct of the petitioner specifically waiving his right. Mere reference to decisions that the right could be waived is of no consequence unless on facts it is shown that the delinquent had specifically waived his valuable right. 11. On the issue of pleading and proving prejudice also, learned counsel for the respondents had chosen to ignore the specific contention raised by the petitioner in his appeal grounds, which is the first step he could have taken after the receipt of the order of termination. In paragraph 10, he has raised a specific contention that he has not been given opportunity to show cause which was against the principles of natural justice and equity. In the said background, I am unable to sustain the contention that the petitioner had not pleaded prejudice. 12. In a case of failure to give notice, while disagreeing with the finding of the enquiry officer, the prejudice is inherent. In the absence of the prior notice, how else can the delinquent know what was passing in the mind of the disciplinary authority? The petitioner had registered his protest. The plea of protest does not depend upon the usage of the legalistic word "prejudice" when the appeal or representation is by a lay person and not a lawyer. He has positively stated in no uncertain terms that he has been deprived of his opportunity. The need to plead and demonstrate prejudice cannot be taken to the extremes to a breaking point thus rendering the basic principles of natural justice as an empty formality to the extent of adding insult to injury to the aggrieved person. 13. Two of the decisions referred to by Mr.Jayaraman pertain to the need to furnish copy of the enquiry report and not to the issue of the need to give notice in the event of the disciplinary authority disagreeing with the finding of the enquiry officer vide the judgments in MANAGING DIRECTOR, ECIL Vs. B.KARUNAKAR ( (1993) 4 SCC 727 and STATE BANK OF PATIALA Vs. S.K.SHARMA ( (1996) 3 SCC 364 ), cited above. B.KARUNAKAR ( (1993) 4 SCC 727 and STATE BANK OF PATIALA Vs. S.K.SHARMA ( (1996) 3 SCC 364 ), cited above. In fact, in the second case, the Supreme Court has expressed a caution to the effect that a substantive provision relating to natural justice has to be normally complied with and the theory of substantial compliance or the test of prejudice would not be applicable to such a case. The judgment reported in ALIGARH MUSLIM UNIVERSITY Vs. MANSOOR ALI KHAN ( (2000) 7 SCC 529 ) deals with a case of automatic termination for unauthorised absence and on facts of that case, the Supreme Court had chosen to adopt the principle of "Useless Formality Theory". The said judgment also cannot, therefore, apply to the issues arising for consideration in this case. 14. Per contra, in the following cases, the Supreme Court had emphasized the need to issue notice in the event of the disciplinary authority differing from the views of the enquiry officer. 15. In PUNJAB NATIONAL BANK Vs. K.B.MISRA ( AIR 1998 SC 2713 ), the Supreme Court held that while inquiry officer's report was in favour of the delinquent and the disciplinary authority proposes to differ, he must give opportunity of hearing to the delinquent before recording its conclusions. While interpreting the relevant Rule relating to the petitioner, the Supreme Court held that the principles of natural justice has to be read into Regulation 7(2). It is pertinent to note that the Management in this case is also the Punjab National Bank. 16. In STATE BANK OF INDIA Vs. A.K.SHUKLA ( AIR 2001 SC 2398 ), the Supreme Court dealt with a case of the disciplinary authority disagreeing with the conclusions and findings arrived at by the enquiry officer and it was held that the reasons for disagreement should be recorded and be given to the delinquent officer to represent before an ultimate finding is recorded and that non-furnishing of reasons would be fatal and vitiate the ultimate order of dismissal. 17. In STATE BANK OF INDIA Vs. K.P.NARAYANAN KUTTY ( AIR 2003 SC 1100 ) also, the Supreme Court expressed the same views. In fact, it was further held that the Court found it difficult to accept the contention that unless it was shown that some prejudice was caused to the respondent, the order of dismissal could not be set aside. 18. K.P.NARAYANAN KUTTY ( AIR 2003 SC 1100 ) also, the Supreme Court expressed the same views. In fact, it was further held that the Court found it difficult to accept the contention that unless it was shown that some prejudice was caused to the respondent, the order of dismissal could not be set aside. 18. It is true that Mr.Jayaraman referred to the judgment in STATE OF RAJASTHAN Vs. M.C.SAXENA ( (1998) 3 SCC 385 ) in support of his contention that what was required of the disciplinary authority was only to record his reasons for disagreeing and that the Court will not interfere unless the findings of the disciplinary authority are unreasonable. In that case, the judgment related to the specific Rules under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, and in particular, Rule 33. As stated earlier, the subsequent judgments relating to the very same respondent Bank in this case and the judgment in STATE BANK OF INDIA Vs. K.P.NARAYANAN KUTTY ( AIR 2003 SC 1100 ) have not only specifically emphasized the need to issue notice but also that the issue of prejudice was immaterial. This is apart from the fact that I had already pointed out on facts that the delinquent had clearly pleaded prejudice, as could be seen from the grounds of appeal before the appellate authority. 19. Therefore, I am inclined to hold that the failure on the part of the disciplinary authority to have given opportunity to the petitioner before he chose to differ with the views of the enquiry officer has to be held as vitiating the order of dismissal. 20. As regards the issue of delay and whether the Bank could have continued the proceedings or not after the judgment in the earlier writ petition, I do not propose to go into those issues, as the disciplinary authority had not considered the same. It is open to the petitioner to raise the said issues before the disciplinary authority. 21. I am also unable to accept the contention of the learned counsel for the respondents that even on the basis of the enquiry officer's report, the order of dismissal would be justified without the need to set aside the findings of the enquiry officer with reference to the second charge. I find it difficult to accept the said contention. 21. I am also unable to accept the contention of the learned counsel for the respondents that even on the basis of the enquiry officer's report, the order of dismissal would be justified without the need to set aside the findings of the enquiry officer with reference to the second charge. I find it difficult to accept the said contention. The ultimate conclusion of the disciplinary authority to inflict the punishment of dismissal is based on an assessment of the cumulative effect of the findings with reference to all the charges and it is not possible to ignore the violation of principles of natural justice of not having provided opportunity to the delinquent as aforesaid. 22. While parting with this case, I would also point out that in this case, there appears to be a certain amount of unfair attitude on the part of the Bank in dealing with the case of the petitioner. On receipt of the notice calling upon the delinquent to submit his explanation, the petitioner, by his letter dated 16.4.1994, requested grant of time till 12.5.2004 for making a detailed representation. The petitioner had also furnished proof of delivery of the said letter on the respondent on 20.4.1994 vide the letter of the Superintendent of the Speed Post Centre, Madras dated 9.5.1994. However, without granting time, the order of dismissal had been passed on 26.4.1994 by stating that the enquiry report sent to the delinquent for his submission had neither been acknowledged nor replied. There is no justification for such hasty manner of disposal of the proceedings by the disciplinary authority. 23. It is true that the charges levelled against the petitioner are very serious in nature and if found proved, the delinquent deserves to be dismissed from service. However, it is equally indispensable that proceedings should be conducted in a fair and proper manner and without violating basic principles of natural justice. 24. With the result, there is no other alternative except to set aside the order of dismissal with liberty to the disciplinary authority to re-start the proceedings from the stage when the defect had crept in, namely, by issuing a proper show-cause notice to the delinquent giving opportunity to him to state his case as regards the reasons of the disciplinary authority to differ from the views of the enquiry officer with reference to the second charge. It is also made clear that in view of the nature of grave charges against the petitioner, he need not be reinstated in service and his entitlement for the consequential benefits will abide by the result of the proceedings. The writ petition is allowed subject to the above observations. No costs.