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2016 DIGILAW 1396 (GUJ)

A. H. Bhatt v. Surat Bharuch Gramin Bank

2016-07-20

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 226 of the Constitution of India, the writ applicant, a former Manager of the Surat - Bharuch Gramin Bank, has prayed for the following reliefs: "18(a) issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the said impugned dismissal order dated 4/4/98 and directing the respondent to immediately take the petitioner on duty and pay all backwages from the date he has not been paid viz. 19th June 1997 with all other consequential benefits. (b) Pending admission and final hearing of this writ petition, this Hon'ble Court may be pleased to direct the respondents to immediately take the petitioner on duty so that he is not deprived of his livelihood. (c) Cost of this petition may be awarded. (d) Any other relief deemed fit, just and proper in the circumstances may kindly be granted to meet the ends of justice." 2. The case of the writ applicant may be summarised as under: 2.1 The writ applicant was serving as a Manager of the Surat - Bharuch Gramin Bank. He had joined the Surat - Bharuch Gramin Bank as an officer on 17th June 1988, and thereafter, was posted at the Sejpur branch (Taluka: Bhadbhunja, District: Bharuch). Thereafter, on 5th July 1988, he was posted at the Chanchvel branch (Taluka: Vagra, District: Bharuch) as the Branch Manager. 2.2 On 2nd July 1992, he was posted as the Branch Manager at the Kolwana branch (Taluka: Amod, District: Bharuch). On 8th November 1995, he was posted at the Atali (Taluka: Vagra, District: Bharuch). 2.3 It is alleged that while serving as a Branch Manager at the Kolwana branch, the writ applicant committed certain acts of misconduct. 2.4 On 18th December 1996, a departmental chargesheet was served upon the writ applicant containing the following charges: "1. You did not take all positive steps to ensure and protect the interest of the bank, but in fact took such steps and did such acts, which were derogatory/detrimental, prejudicial and injurious to the interest of the bank. 2. You did not discharge your duties with utmost integrity and honestly but in fact did such action which displayed a lack of probity on your part. 3. You did acted unbecoming of a Bank Officer. 4. You have violated and flouted rules, procedure and regulations of the Bank. 5. 2. You did not discharge your duties with utmost integrity and honestly but in fact did such action which displayed a lack of probity on your part. 3. You did acted unbecoming of a Bank Officer. 4. You have violated and flouted rules, procedure and regulations of the Bank. 5. You have mislead higher authority by hiding the facts and reported wrongly to the Head Office." 2.5 The writ applicant filed his defence statement denying all the charges levelled against him in the chargesheet. 2.6 The Bank appointed an Inquiry Officer for the purpose of the departmental inquiry. The Inquiry Officer, at the end of the inquiry, reached to the conclusion that the charges against the writ applicant were established. 2.7 The Chairman and disciplinary authority, thereafter, issued a show cause notice calling upon the writ applicant to show cause as to why he should not be dismissed from service having regard to the findings recorded by the Inquiry Officer and the other materials on record. 2.8 The writ applicant filed his reply to the said show cause notice explaining in his own way why he deserved to be exonerated. 2.9 The disciplinary authority, thereafter, passed the final order dated 4th April 1998 dismissing the writ applicant from service. The order dated 4th April 1998 reads as under; "FINAL ORDER I gave a personal hearing on 3rd April, 1998 regarding the proposed punishment in this matter, vide my office order dated 30th March, 1998 to the chargesheeted officer Mr. A.H. Bhatt, who was present with his Defence Representative Mr. K.C. Joshi. The Presenting Officer, Mr. K.R. Patel was also present. I heard Mr. A.H. Bhatt and Mr. K.C. Joshi about the proposed punishment. Mr. Bhatt and Mr. Joshi have pleaded that "the proposed punishment is not acceptable to Mr. A.H. Bhatt. I have given careful consideration to this plea, but I cannot persuade myself to take a lenient view of a fraud, gravity of major misconduct of the case and the acts committed by Mr. A.H. Bhatt in the banking institution and hence bank has lost faith in him. An officer like Mr. Bhatt is a potential source of danger to his colleagues and his conduct accounts to deliberate dishonesty and therefore, he does not deserve to be continued in Bank's service. I have, therefore, come to conclusion that the proposed punishment should be confirmed. A.H. Bhatt in the banking institution and hence bank has lost faith in him. An officer like Mr. Bhatt is a potential source of danger to his colleagues and his conduct accounts to deliberate dishonesty and therefore, he does not deserve to be continued in Bank's service. I have, therefore, come to conclusion that the proposed punishment should be confirmed. I, therefore, impose the following punishment on Mr. A.H. Bhatt the chargesheeted officer, who is found guilty as charged:- "Mr. A.H. BHATT IS DISMISSED FROM BANK'S SERVICE WITHOUT NOTICE WITH IMMEDIATE EFFECT." Order passed on 4th April, 1998. Head Office Bharuch 4th April 1998 (R.M. Dhagat) Disciplinary Authority and Chairman." 2.10 Being dissatisfied with the order passed by the disciplinary authority, the writ applicant preferred an appeal on 2nd May 1998 addressed to the Board of Directors of the Bank. The appeal memo is on record. The same is at Annexure: "N" to this petition (page 138). Manifold grounds were raised in the appeal memo. Along with the appeal memo, few documents were also annexed. 2.11 It appears that when this application was filed, the appeal preferred by the writ applicant against the order of dismissal was pending. In such circumstances, on 13th March 2000, the following order was passed: "1. Mr. K.K. Shah, learned advocate appears for the petitioner. Petitioner is challenging the order of the dismissal against which an appeal is already pending. Such appeal is pending since 1998. It is pretty long time during which the authority ought to have considered but authority has failed to decide that appeal. The concerned authority is directed to decide the pending appeal latest by 30.4.2000. 2. In case the authority do not decide the aforesaid appeal within aforesaid period, the petitioner will have liberty to revive this petition. It is made clear, that if the appeal is decided adversely affecting the petitioner, it will be open to the petitioner to challenge the decision in the appropriate proceeding. D.S. Permitted. 3. The petition is disposed of with aforesaid direction." 2.12 The writ applicant, thereafter, received a communication dated 20th June 2000 from the Chairman of the Bank informing him about the disposal of his appeal. The intimation reads as under: "To, Mr. A.H. Bhatt, 308, Nilkanth Apartment, Sevashram Road, Bharuch. Dear Sir, We refer to our letter No. HO:STAFF:17/3 dated 29.4.2000. The petition is disposed of with aforesaid direction." 2.12 The writ applicant, thereafter, received a communication dated 20th June 2000 from the Chairman of the Bank informing him about the disposal of his appeal. The intimation reads as under: "To, Mr. A.H. Bhatt, 308, Nilkanth Apartment, Sevashram Road, Bharuch. Dear Sir, We refer to our letter No. HO:STAFF:17/3 dated 29.4.2000. Please be informed with reference to your appeal to the Appellate Authority i.e. Board of Directors who had called for record and proceedings of your enquiry. Also necessary detailed information and data was put before the Appellate Authority viz. Board in its various meeting held on 29.4.2000, 9.6.2000 and 19.6.2000. Your appeal was discussed in detail by the appellate authority and after due considerations and deliberation the appellate authority has arrived has arrived its decision and your appeal has been dismissed, which please note. Yours faithfully, Chairman" 2.13 Since the appeal filed by the writ applicant before the Board of Directors was dismissed as informed by the Chairman, this writ application was revived. 2.14 Mr. K.K. Shah, the learned advocate appearing for the writ applicant submitted that impugned orders of dismissal deserve to be quashed. Mr. Shah pointed out many infirmities in the conduct of the departmental inquiry. He submitted that many vital and relevant documents, although demanded, were not supplied to his client. He pointed out that the supplementary chargesheet dated 6th August 1997 could be termed as incomplete and vague. 2.15 According to him, the departmental inquiry proceeded ex parte. He submitted that his client was sick and was unable to personally remain present in the inquiry although his representative was there, but the Inquiry Officer did not allow his representative to participate in the inquiry. 2.16 Mr. Shah submitted that many grounds were raised in the memo of the appeal, but none of those were considered by the appellate authority and in a very slip shod and mechanical manner, the appeal was ordered to be dismissed. 2.17 Mr. Shah pointed out that in fact there is no order on record passed by the appellate authority dismissing the appeal. His client was informed by the Chairman vide communication dated 20th June 2000 that his appeal, after due consideration and deliberations, was ordered to be dismissed. According to Mr. 2.17 Mr. Shah pointed out that in fact there is no order on record passed by the appellate authority dismissing the appeal. His client was informed by the Chairman vide communication dated 20th June 2000 that his appeal, after due consideration and deliberations, was ordered to be dismissed. According to Mr. Shah, what was discussed and why the grounds raised in the memo of appeal did not find favour with the appellate authority, has not been placed on record by the Bank. 2.18 According to Mr. Shah, the order passed by the appellate authority could be termed as a non-speaking order. He prays that on this count alone, this writ application deserves to be allowed and the impugned orders be quashed. 3. On the other hand, this writ application has been vehemently opposed by Mr. Uday R. Bhatt, the learned advocate appearing for the respondent - Bank. He submits that no error, not to speak of any error of law could be said to have been committed by the authority concerned in dismissing the writ applicant from service. 4. Mr. Bhatt submits that the allegations levelled against the writ applicant were quite serious and they were found to be established by the Inquiry Officer. He submits that all the relevant aspects of the matter were considered by both the disciplinary authority as well as by the appellate authority. 5. Mr. Bhatt submits that the writ applicant had not participated in the departmental inquiry. The explanation put forward by the writ applicant about his ailment was not found to be satisfactory by the Inquiry Officer, and therefore, the departmental inquiry proceeded ex parte. 6. Mr. Bhatt further submitted that there is no provision in the rules or regulations governing the conduct of the departmental inquiry permitting the delinquent to defend himself through his representative. 7. Mr. Bhatt submitted that no interference is warranted in the facts of this case. He has placed reliance on the averments made in the affidavit-in-reply which has been filed on behalf of the respondent - Bank. 8. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the authorities committed any error in dismissing the writ applicant from service. 9. 8. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the authorities committed any error in dismissing the writ applicant from service. 9. I take notice of the fact that in the order passed by the disciplinary authority dated 4th April 1998, except stating that the acts of misconduct complained against the writ applicant herein reflected of his integrity and lack of devotion towards duty, there is no discussion worth the name justifying the order of dismissal. It is not just enough for any disciplinary authority to concur with the findings recorded by the Inquiry Officer and pass an order of major penalty. The disciplinary authority owes a duty to consider the reply filed by the delinquent to the show cause notice issued to him, and if not in details, at least indicate in the order why the explanation put forward by the delinquent was not reasonable or acceptable. 10. The aforesaid infirmity could have been taken care of by the appellate authority, but the appellate authority seems to have acted in a more highhanded manner than what was accepted of it. 11. As stated above, manifold grounds were raised by the writ applicant in the memo of appeal. The appeal memo is quite exhaustive. It is expected of the appellate authority to at least address itself on three basic issues: "(i) whether the procedure prescribed in the rules have been complied with; (ii) whether such non-compliance, if any, has resulted in any material irregularity or illegality so as to result in miscarriage of justice; (iii) whether the findings recorded by the Inquiry Officer are justified; (iv) whether the penalty imposed is excessive or adequate or inadequate." 12. The legal importance of the reasons in an order has been well explained by the Supreme Court in Daya Ram v. Rathunath, 2007 11 SCC 241 in the following words: "Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The legal importance of the reasons in an order has been well explained by the Supreme Court in Daya Ram v. Rathunath, 2007 11 SCC 241 in the following words: "Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking order." 13. The recording of reasons is an aspect of the natural justice. The reasons properly recorded in support of an order is the natural justice duly complied with in that part. The principle that the reason in an order is an ingredient of the natural justice becomes clear from the following judgment of the Supreme Court in the Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v. Shukla & Brothers, (2010) 4 SCC 785 . The Supreme Court observed as under: "The principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities....... (Para 14)" 14. It is very depressing to note that the appellate authority did not even deem fit or bother to pass an order in writing. All that was communicated to the writ applicant through the Chairman of the Bank vide letter dated 20th June 2000 was that the appeal was considered and dismissed. (Para 14)" 14. It is very depressing to note that the appellate authority did not even deem fit or bother to pass an order in writing. All that was communicated to the writ applicant through the Chairman of the Bank vide letter dated 20th June 2000 was that the appeal was considered and dismissed. Even as on date, the writ applicant nor this Court has any idea what was considered by the appellate authority and in what manner. 15. In B.V. Gor V. Gujarat Water Supply And Sewerage Board & Another reported in 2011 (4) GLR 3211, I have explained what is expected of the appellate authority and how he supposed to decide the appeal. I may quote the observations as under:- "5. It is abundantly clear from the nothings in the file that there is no order passed by the appellate authority which would indicate any independent application of mind by the appellate authority. The findings which are recorded by the disciplinary authority can always be re-appreciated by the appellate authority. As an appellate authority, it can take a different view on the same set of evidence. Appellate authority also owes a duty to see as to whether procedure laid down in the rules was complied with, inquiry officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him and, whether penalty imposed by the disciplinary authority was excessive. 6. I am of the view that the appellate authority has failed to discharge his duty as the law demands. Appeal is a statutory remedy available to the petitioner as a delinquent. It is a valuable right which the rules has conferred upon the petitioner as a delinquent and, therefore the delinquent is well within his rights to expect the appellate authority to reconsider the entire matter being the final fact finding authority. 7. I am not at all satisfied with the manner in which the appeal is decided and disposed of. It is a settled position of law that an appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regard the compliance of the requirement of the law while exercising his jurisdiction under the Rules. 7.1 In case of Apparel Export Promotion Council v. A.K. Chopra [1991 (1) SCC 759], it has been stated as under: "The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities." (Emphasis supplied) 7.2 In case of Narinder Mohan Arya v. United India Insurance Co Ltd., & Ors., AIR 2006 SC 1748 , in paragraph No. 36 and 37 the Hon'ble Apex Court has observed as under: 36. The order of the appellate authority demonstrates total non-application of mind. The appellate authority, when the rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression 'consider' is of some significance. In the context of the rules, the appellate authority was required to see as to whether (i) the procedure laid down in the rules was complied with; (ii) the Enquiry Officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him; and (iii) whether penalty imposed by the disciplinary authority was excessive. 37. In R.P. Bhatt v. Union of India, (1986) 2 SCC 651 this Court opined: "The word "consider" in Rule 27(2) implies "due application of mind". It is clear upon the terms of Rule 27(2) that the Appellate Authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside." 7.3 In a recent pronouncement of the Supreme Court in the matter of Divisional Forest Officer, Kothagudem & Ors. v. Madhusudhan Rao reported in (2008) 3 SCC 469 , the Supreme Court has observed in paragraph No. 20 as under: 20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum. 7.4 In the facts and circumstances of the case, it would also be appropriate for me to quote the well known judgment of the Apex Court in Bachhittar Singh v. State of Punjab. It was a case where a Constitution Bench of the Apex Court had to consider the effect of an order passed by a Minister on a file, which order was not communicated. It was a case where a Constitution Bench of the Apex Court had to consider the effect of an order passed by a Minister on a file, which order was not communicated. This is how the Apex Court dealt with the effect of the noting by a Minister on a file: [ AIR 1963 SC 395 (Para No. 9)]. '9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones." (emphasis supplied) 16. The affidavit-in-reply filed on behalf of the Bank so far as the disposal of the appeal is concerned states as under: "11...It is submitted that the Board of Directors has duly deliberated the whole issue after calling for the records and proceedings of the inquiry itself. Also necessary detailed information and data were put before the appellate authority namely the Board of Directors and its various sitting/meetings held on 29.4.2000, 9.6.2000 and 19.6.2000 and after the appeal was discussed in detail by the appellate authority and after due consideration and deliberation the appellate authority arrived at a decision. The said factum is duly communicated to the petitioner which is communicated to the petitioner which is communication dated 20.6.2000 under reference No. STF/17/5 which has been signed by the Chairman of the bank which informs the petitioner about the decision of the appellate authority i.e. the Board of Directors and the decision is for information. However, the said letter clearly states of due just and proper deliberation of the appeal and its decision in accordance with law. However, the said letter clearly states of due just and proper deliberation of the appeal and its decision in accordance with law. Also it will not be out of place to repeat here that even though the appeal was time barred and in violation of regulations 33 and regulation 34, still however, the appeal, without prejudice to the rights and contentions of the bank, was entertained and decided in accordance with law as also due care and caution was exercised by the respondent bank and the Vigilance Department of the sponsor bank namely Bank of Baroda was also consulted and apprised from time to time. All this clearly goes to show that the decision of the respondent Bank and its appropriate authorities including the appellate authority are just, proper and legal." 17. The explanation offered by the Bank in the affidavit-in-reply as regards the disposal of the appeal is very unfortunate. It is not just sufficient to say in the affidavit-in-reply that the appeal was considered and ordered to be dismissed. There has to be something on record to indicate in this regard. 18. The right of preferring an appeal has been conferred upon the officer of the Bank under the Surat - Bharuch Gramin Bank (Staff) Service Regulations, 1984, more particularly, the Regulation No. 31, which reads as under: "31. An Officer or employee shall have a right of appeal against any order passed by an authority which injuriously affects his interest." 19. The Regulation No. 33 of the Service Regulations 1984 reads as under: "33. Every appeal shall comply with the following requirements- (a) it shall be in writing and couched in polite and respectful language and shall be free from unnecessary padding or superfluous verbiage. (b) it shall contain all material statements and arguments relied on shall be complete in itself. (c) it shall specify the relief desired (d) it shall be preferred within one month of the date of the order against which the appeal is made." 20. Thus, without going into the merits of the other contentions canvassed on behalf of the writ applicant, I am inclined to allow this writ application in part by quashing both the orders and remitting the matter to the disciplinary authority for fresh consideration. 21. In the result, this writ application is allowed in part. Thus, without going into the merits of the other contentions canvassed on behalf of the writ applicant, I am inclined to allow this writ application in part by quashing both the orders and remitting the matter to the disciplinary authority for fresh consideration. 21. In the result, this writ application is allowed in part. The impugned orders i.e. the order dated 4th April 1998 passed by the disciplinary authority and the communication dated 20th June 2000 regarding appeal are hereby ordered to be quashed. The matter is remitted to the disciplinary authority to consider a fresh and pass an appropriate reasoned order. If the writ applicant is dissatisfied in any manner with the order the disciplinary authority may pass, then it shall be open for him to prefer an appeal before the Board of Directors as provided in the Regulation No. 31 of the Service Regulations, 1984. 22. It appears that the name of the Surat - Bharuch Gramin Bank has been changed and is now known as the Baroda Gujarat Gramin Bank. In such circumstances, these directions are issued to the Baroda Gujarat Gramin Bank having its Head Office at Bharuch. Direct service is permitted.