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Madhya Pradesh High Court · body

2006 DIGILAW 205 (MP)

Dinesh Kumar Gupta v. Kshetriya Gramin Bank

2006-02-06

R.K.GUPTA

body2006
ORDER 1. Petitioner by way of filing the present petition before this Court has challenged the legality and validity of the order of punishment dated 25.3.1991 which is Annexure P-21 to the petition. By this petition the penalty of dismissal from service has been imposed on the petitioner. Before passing of order of dismissal the petitioner was kept under suspension on 7.4.1984 which is Annexure P-3. Subsequently a charge-sheet was issued to the petitioner on 24.9.1985 which is Annexure P-4 to the petition. 2. In the said charge-sheet the allegations which were against the petitioner had been that at the time when the petitioner was posted as a Branch Manager then he while sanctioned the loan in contravention to the procedure prescribed by the Bank. It is alleged that petitioner has not properly scrutinized cases, therefore, he has violated the instructions time to time issued by the Bank. It is also a charge that the loan which was disbursed to the persons by the petitioner, were suspicious. It is also a charge against the petitioner that petitioner was an instrument in misappropriation of an amount of Rs.23,336/-. Subsequently the said amount was deposited in the Bank. The aforesaid amount was withdrawn from the Bank. It is also a charge against the petitioner that petitioner has taken on 5.1.1984 Rs.150/- from Shri Deepak Kumar, Sharma who has taken earlier the loan. Petitioner only deposited Rs.l00/- and did not deposit Rs.50/-. Thus, the said amount has been defalcated by the petitioner. 3. After issuance of the charge-sheet against the petitioner, the petitioner submitted an application which is Annexure p-5 to the petition. By the said application it is submitted that since a criminal case is pending against the petitioner therefore, the departmental enquiry may be stayed. It is also submitted by the petitioner that the charges are vague. The petitioner by this application required the disciplinary authority to explain the charges . and also the material on which basis the charges were framed against him. Subsequently the petitioner submitted another application which is Annexure P-6 to the petition. The said application was submitted by him on 14.5.1987. By this application the petitioner demanded certain documents. In the said application the ,petitioner submitted a list of documents which were to be supplied for his defence. The enquiry officer passed an order which is Annexure P-7 to the petition dated 14.5.1987. The said application was submitted by him on 14.5.1987. By this application the petitioner demanded certain documents. In the said application the ,petitioner submitted a list of documents which were to be supplied for his defence. The enquiry officer passed an order which is Annexure P-7 to the petition dated 14.5.1987. The enquiry officer informed the petitioner by said letter that documents which are relevant shall be supplied to the petitioner. The documents which were not found to be relevant shall not be supplied to the petitioner. Thus, the enquiry officer has allowed the petitioner to inspect most of the documents but "for certain documents, the petitioner was not given opportunity to inspect the same. The petitioner again objected vide his letter dated 15.5.1987 which is Annexure P-8 to the petition. The enquiry officer again vide his letter dated 15.5.1987 informed the petitioner that the documents as per list supplied by the petitioner in his letter dated 14.5.1987 can be inspected. It is directed by the enquiry officer that the petitioner can inspect the documents by visiting the Nandarbada Branch of the respondent Bank. It is also directed that he will have an opportunity to take notes of the documents by visiting the said Branch. 4. The enquiry thereafter was fixed for 3.3.1987. On this date an application on behalf of the petitioner was moved that he may be permitted to bring his defence assistant in the enquiry. According to him since no person of the respondent bank was willing to act as defence assistant, therefore, an application was moved to the enquiry officer. The, enquiry officer ordered to nominate a defence assistant to any person who is employed by the respondent Bank. The petitioner sought a liberty to nominate a person out of the employees of the Bank and accordingly the request was allowed. On this date the enquiry officer also directed that in case the petitioner wants to inspect certain more documents then the list as such be submitted by 19.5.1987. On 14.7.1987 the enquiry was taken up and on this date the petitioner was subjected to many questions by the enquiry officer and also by the presenting officer. The enquiry officer put the questions to the petitioner by showing him the documents and the vouchers on which basis the charges against the petitioner were made out. Thereafter the petitioner was subjected to the cross-examination. The enquiry officer put the questions to the petitioner by showing him the documents and the vouchers on which basis the charges against the petitioner were made out. Thereafter the petitioner was subjected to the cross-examination. The next date of enquiry was fixed for 31st July, 1987; Oil this date, after completing other formalities the cross-examination of the petitioner continued. In the departmental enquiry one Rajendra Parsai was assisting the petitioner as a defence assistant. The said defence assistant put questions to the petitioner and the petitioner replied to the •same. Subsequently an objection was submitted n behalf of the petitioner which is Annexure P-14 to the petition. The said objection was In relation to the corrigendum of the charge-sheet issued to the petitioner by way of Annexure P-13 dated 26.8.1987. On behalf of the petitioner it was signed by the defence assistant nominated by the petitioner. The next date of enquiry was fixed for 22nd July, 1987. On this date the enquiry officer again directed the cross-examination of the petitioner and on this date the evidence in relation to charge No.2 is adduced and again the petitioner, is subjected to cross-examination. After the enquiry was completed an order-, of dismissal was passed on 25.3.1991 which is Annexure P-21 to the petition. This order was based upon the evidence recorded by the enquiry officer holding the petitioner guilty of the charges. 5. The petitioner by an order Annexure P-21 dated 25.3.1991 was imposed a penalty of dismissal. The petitioner submitted an appeal against the said order of penalty and the appeal has also been rejected by the order dated 4.12.1991 which is Annexure P-23 to the petition. Course (for the petitioner submitted the following submissions: (a) In the departmental enquiry, the enquiry officer has adopted a typical procedure. (b) No prosecution/management's witnesses were examined and directly the enquiry officer has started putting questions to the petitioner, and, therefore, such a procedure is unknown to law. (c) The documents were not supplied to the petitioner and, therefore, non-supply of documents has resulted in prejudice to the petitioner. (d) The petitioner was not permitted to bring his defence assistant of his choice and, therefore, there had been a denial of principles of natural justice. (c) The documents were not supplied to the petitioner and, therefore, non-supply of documents has resulted in prejudice to the petitioner. (d) The petitioner was not permitted to bring his defence assistant of his choice and, therefore, there had been a denial of principles of natural justice. (e) Counsel for the petitioner further submitted that in the instant case neither any show cause notice was issued nor findings of the enquiry officer were supplied to the petitioner and, therefore, the petitioner could not have sufficient opportunity to represent against the findings recorded by the enquiry officer. It is also submitted that the punishment is harsh and excessive. 6. The aforesaid submissions of learned counsel for the petitioner were considered. 7. With regard to first submission as raised by learned counsel for the petitioner, the record of the enquiry proceedings filed by the petitioner and discussed hereinabove itself indicates that the petitioner was compelled to answer various questions which were put to him by the enquiry officer. The record of the enquiry proceedings is from Annexure P-10, P-11 and P-12 and also of P-17. The counsel for the petitioner relied upon the following judgments to substantiate his submission. Ramshakal Yadav v. Chief Security Officer, Railway Protection Force, Bombay V.T and others [1996 JLJ 938= AIR 1967 MP 91 ], Hindustan Steel Ltd. v. Rourkela Mazdoor Sabha and others [AIR 1969 Orissa 209], Menglas Tea Estate v. The Workmen [ AIR 1963 SC 1719 ]. 8. On the basis of the aforesaid judgments the learned counsel for the petitioner submitted that in the present case the procedure which was adopted by the enquiry officer in holding the enquiry is not a fair procedure and the procedure as such is against the principles of natural justice, therefore, on the basis of the ratio laid down by the aforesaid judgments,• it cannot be said that the procedure adopted by the enquiry officer is fair. 9. It may be seen that the apex Court in Employers of Firestone Tyre and Rubber Co. (Pvt.) Ltd. v. The Workmen [ AIR 1968 SC 236 ], in para 9 has considered the aforesaid situation. The apex Court has held that even though in the enquiry the delinquent should not be subjected to cross examination before examining the witnesses on behalf of the prosecution. (Pvt.) Ltd. v. The Workmen [ AIR 1968 SC 236 ], in para 9 has considered the aforesaid situation. The apex Court has held that even though in the enquiry the delinquent should not be subjected to cross examination before examining the witnesses on behalf of the prosecution. The apex Court under the circumstances was considering the situation where such a procedure alleged to have been offended as against the principles of natural justice. The apex Court while considering the same has decided in para 9 as under : "These cases no doubt lay down that before a delinquent is asked anything, all the evidence against him must be led. This cannot be an invariable rule in all cases. The situation is different where the accusation is based on a matter of record or the facts are admitted. In such a case it may be permissible to draw the attention of the delinquent to the evidence on the record which goes against him and which if he cannot satisfactorily explain must lead to a conclusion of guilt. In certain cases it may even be fair to the delinquent to take his version first so that the enquiry may cover the point of difference and the witnesses may be questioned properly on the aspect of the case suggested by him. It is all a question of justice and fair play. If the second procedure leads to a just decision of the disputed points and is fairer to the delinquent then the ordinary procedure of examining evidence against him first, no exception can be taken to it. It is, however, wise to ask the delinqunt whether he would like to make a statement first or wait till the evidence is over but the failure to question him in this way does not ipso-facto vitiate the enquiry unless prejudice is caused. It is only when the person enquired against seems to have been held at a disadvantage or has objected to such a course that the enquiry may be said to be vitiated. It must, however, be emphasized that in all cases in which the facts in controversy are disputed the procedure ordinarily to be followed is the one laid down by this Court in the cited cases. The procedure of examining the delinquent first may be adopted in a clear case only. It must, however, be emphasized that in all cases in which the facts in controversy are disputed the procedure ordinarily to be followed is the one laid down by this Court in the cited cases. The procedure of examining the delinquent first may be adopted in a clear case only. As illustration we may mention one such case which was recently before us. There a bank clerk had allowed overdrafts to customers much beyond the limits sanctioned by the bank. The clerk had no authority to do so. Before the enquiry commenced he admitted his fault and asked to be excused. He was questioned first to find out if there were any extenuating circumstances before the formal evidence was led to complete the picture of his guilt. We held that the enquiry did not offend any principles of natural justice and was proper." 10. Keeping in view the ratio laid down by the apex Court as aforesaid while putting the questions to the petitioner, the enquiry officer has merely to verify from him certain documents maintained in the branch where the petitioner was working. On the basis of the said documents the charges were enumerated against the petitioner. Thus, it is not a case where there had been any prejudice to the petitioner by subjecting him to the cross examination. The charges No.1 and 2 were based upon a documentary evidence and the enquiry officer in relation to the said charges brought to the notice of the petitioner the documents and the petitioner was given a chance to explain the documents with a view to resolve the disputed questions. In view of the aforesaid, no fault can be found with the procedure adopted by the enquiry officer. 11. The another question which the learned counsel for the petitioner submitted is that the petitioner had not been supplied the relevant documents. It may be noticed that the enquiry officer has already passed an order which is Annexure P-9 to the petition. The enquiry officer has permitted the petitioner to take notes of the documents and also to inspect certain documents. The petitioner has also inspected the documents and has also issued a certificate. The counsel for the petitioner had not been able to demonstrate that which documents were supplied to him and which documents were not supplied. The enquiry officer has permitted the petitioner to take notes of the documents and also to inspect certain documents. The petitioner has also inspected the documents and has also issued a certificate. The counsel for the petitioner had not been able to demonstrate that which documents were supplied to him and which documents were not supplied. It is also not demonstrated that during the course of the arguments that if certain documents were not supplied to the petitioner then ultimately what prejudice has resulted in. Keeping in view the aforesaid, this Court cannot agree with the submission raised on behalf of the petitioner that there had been any prejudice due to non supply of full list of the documents supplied by the petitioner. 12. The learned counsel for the petitioner next submitted that in the instant case before passing the order of penalty the petitioner has not been' supplied copy of the enquiry report. For this he relied upon the judgment passed by the apex Court in Managing Director, ECIL, Hyderabad and others v. B.Karumakar and others [C] 1993)4 SCC 727]. Paragraph 43 of the said judgment is relevant. The said Judgment states that non-supply of the copy of the enquiry report even after the judgment passed in Mohd. Ramzan Khan case would be bad. It is also stated that since prior to the judgment passed in Mohd. Ramzan Khan case i.e. on 20th November, 1990 the position of law was unsettled and ultimately ttle position was settled after the judgment was passed by the apex Court in Mohd. Ramzan Khan case, therefore, keeping in view the same, the apex Court directed that case pending in Courts and Tribunal in respect of orders of punishment passed prior to 20th November, 1990, will have• to be decided according to law that prevail prior to the said date. It may be seen that in the present case the order of penalty has been passed on 25th March, 1991, much after the law in relation to supply of copy of the enquiry report settled by the apex Court in Mohd. Ramzan Khan case. The ratio of this case was made applicable with effect from 20th November, 1990. 13. Non-supply of the copy of the enquiry report may cause prejudice to the petitioner. It is submitted by learned counsel for the petitioner that there had been prejudice to the petitioner. Ramzan Khan case. The ratio of this case was made applicable with effect from 20th November, 1990. 13. Non-supply of the copy of the enquiry report may cause prejudice to the petitioner. It is submitted by learned counsel for the petitioner that there had been prejudice to the petitioner. In the present case only the statement of the petitioner was recorded. Petitioner could not get any opportunity to know as to how enquiry officer held the petitioner guilty of the charges. In view of the aforesaid there had been an apparent prejudice to the petitioner as the petitioner could not submit an appropriate representation to the appellate authority against the order of penalty. 14. The petitioner in page 9 to the petition has made the averments that for the first time the copy of the enquiry report dated 20th March, 1991 was supplied to the petitioner along with the final order of penalty dated 25.3.1991. The findings of the enquiry officer has been filed by the petitioner as Annexure P-22 to the petition. Admittedly, the petitioner was supplied the findings recorded by the enquiry officer along with the order of penalty. Thus, it is not a case where at any point of time the petitioner was not supplied the findings recorded by the enquiry officer so that any prejudice would be caused to the petitioner while submitting the appeal to the appellate authority. The petitioner thus has an opportunity to represent effectively against the findings recorded by the enquiry officer while submitting the appeal. 15. It may be noticed that the apex Court in Union Bank of India v. Vishwa Mohan [( 1998(4) SCC 310 ], has held that before passing an order of penalty but before submission of appeal if findings are supplied, it shall not result in any prejudice to the delinquent merely because the copy of the enquiry report was not supplied before imposition of penalty by the disciplinary authority, therefore, the enquiry cannot be vitiated for this reason. In the present case also the petitioner had not been able to demonstrate as to what prejudice has resulted to him due to non-supply of the copy of the enquiry report before passing of final order of penalty. In the present case also the petitioner had not been able to demonstrate as to what prejudice has resulted to him due to non-supply of the copy of the enquiry report before passing of final order of penalty. Again the question in relation to the non-supply of the findings recorded by the enquiry officer before passing the final order was considered by the apex Court in Oriental Insurance Co.Ltd. v. S.Balakrishnan [(2003) 11 SCC 734]. In the said case also the apex Court considered that mere non-supply of the copy of the enquiry report before passing the order of punishment, by itself shall not vitiate the entire proceedings. In view of the aforesaid merely because the petitioner was not supplied the copy of the enquiry report before passing of the final order ,by the disciplinary authority that will not have the effect of vitiating the entire proceedings. Thus, this submission of the learned counsel for the petitioner deserves to be rejected. 16. The learned counsel for the petitioner has argued that in the present case, the punishment is barch and excessive. He relied on the two judgments of the apex Court which are B. C. Chaturvedi v. Union of India and others;," [ AIR 1996 S.C 484 ], U.P. State Road Transport Corporation and others v. Mahesh Kumar Mishra and others [AIR 2000 SC 115]. The apex Court in a subsequent judgment reported in 2003 LIC 1202 had held that the Bank has to function by enjoying the confidence of its depositors. Bank is a sensitive body. Thus, any financial irregularity practised by any officer of the bank shall have the effect of destroying the very image of the Bank. The charges in relation to the financial irregularities were found to be enough for imposing penalty of dismissal even though no charge of misappropriation was made. Thus, this submission is also rejected, Ganesh Santa Ram Sirur v. State Bank of India and another [ (2005)1 SCC 13 ]. 17. The next submission of the learned counsel for the petitioner had been that the petitioner was not given opportunity to bring the defence assistant of his choice. It is seen that the penalty of removal from service was passed on 25.3.1991 on the basis of the material available in the departmental enquiry. 17. The next submission of the learned counsel for the petitioner had been that the petitioner was not given opportunity to bring the defence assistant of his choice. It is seen that the penalty of removal from service was passed on 25.3.1991 on the basis of the material available in the departmental enquiry. In the present case the nature of charges shall be decided keeping in view the fact whether the petitioner had been given sufficient opportunity in the enquiry or not? The charges against the petitioner had been that he had committed certain procedural irregularities while sanctioning loan. The procedural formalities to sanction loan were known to the petitioner. Thus, even though petitioner was not given permission to bring an Advocate in the enquiry that by itself would not result into any prejudice to the petitioner particularly when the petitioner had an occasion and opportunity to bring a defence assistant in the enquiry and the petitioner availed the said opportunity. 18. This next submission of the learned counsel for the petitioner is that the petitioner had been denied the documents as the petitioner was not supplied the requisite documents. The petitioner had not been able to demonstrate the relevant documents in this regard. He made requests by making applications as Annexure G and G-1. It is also submitted by learned counsel for the petitioner that the documents as such were not supplied to the petitioner. 19. For this, counsel for the petitioner during course of the arguments could not show which documents were supplied to the petitioner and which were not supplied. Petitioner has also not been able to demonstrate as to what prejudice has resulted to him. Thus, this is a vague argument which was submitted and therefore it was liable to be rejected. 20. Counsel for the petitioner further submitted that in the present case the charges are vague. The High Court exercising jurisdiction under Article 226 of the Constitution of India cannot exercise the power of judicial review examining the correctness or otherwise of the charges. The apex Court in Principal Secretary, Govt. 20. Counsel for the petitioner further submitted that in the present case the charges are vague. The High Court exercising jurisdiction under Article 226 of the Constitution of India cannot exercise the power of judicial review examining the correctness or otherwise of the charges. The apex Court in Principal Secretary, Govt. of A.P. and another v.M.Adinarayana [ (2004) 12 SCC 579 ], has laid down the said principle and keeping in view this principle the scope of judicial review in relation to the charges for exercising correctness of the charges is restrained by the said judgment of the apex Court, therefore the argument deserves to be rejected. 21. Learned counsel for the petitioner submitted that in the present case the enquiry report was submitted by the enquiry officer on 21.3.1991 and, petitioner filed written brief on 11.11.1983 even though at Hoshangabad, it should have been forwarded to the enquiry officer to Bhopal by the Hoshangabad Office of the respondent Bank. In the present case, it is seen that the petitioner had not been able to demonstrate as to how the findings recorded by the enquiry officer are incorrect. Nothing further has been pointed out that the findings recorded by the enquiry officer are not based upon the documents submitted during the course of enquiry. Therefore, in view of the aforesaid even though the written brief could not be sent by the respondents to the enquiry officer at Bhopal but it has not resulted into any prejudice. This submission of the learned• counsel for the petitioner is devoid of substance. In view of the aforesaid discussions, the present petition is devoid of merit and is dismissed.