Chairman & Managing Director, Allahabad Bank, Kolkata v. P. K. Pani
2016-10-17
K.R.MOHAPATRA, VINOD PRASAD
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JUDGMENT K.R. MOHAPATRA, J. - This Writ Appeal been filed assailing the legality and propriety the judgment dated 04.08.2005 passed by the learned Single Judge in W.P.(C) No. 5845 of 2003 allowing the writ petition filed by the respondent and thereby setting aside the order of his removal from service dated 19.08.1999 passed by the Disciplinary Authority and confirmed by the Appellate as well as Reviewing Authorities. 2.Facts in nut shell relevant for proper adjudication this case are stated hereunder; The Respondent joined service as Agricultural Field Assistant under the Appellant-Bank (for short ‘Appellant’) on 10.01.1978 in its Kolkata Regional Office. In due course, he was promoted to the rank of Officer Scale –II and posted as Deputy Manager (Advance) at Cuttack. While continuing as such, he was transferred to Industrial Finance branch of the Bank at Mumbai. On 31.12.1990, he got his next promotion to the rank of Officer Scale –III and was posted as Officer on Special Duty in Manjuri branch of the Appellant at Pune. Subsequently on 12.10.1991, he was posted as Senior Manager at Parel branch, Mumbai. While continuing as such, although an order of transfer was issued on 17.04.1993 transferring him to the Regional Office at Bhubaneswar under the repatriation scheme, the Respondent was allowed to continue at Parel Branch without being relieved. Thereafter, the Respondent was transferred to the Regional Office of the Bank at Mumbai and posted as Senior Manager (Advance) vide order dated 02.07.1995. While continuing as such, he was issued with charge sheet on 17.03.1997 by the Assistant General Manager of the Bank at Mumbai on several imputations relating to period of his continuance at Parel Branch of the Appellant-Bank, i.e., from 12.10.1991 to 02.07.1995 and the Respondent was called upon to submit explanation, which he complied with on 05.05.1997. His explanation not being found satisfactory, an inquiry was conducted which commenced from 18.01.1999, i.e. two years after the submission of explanation by the Respondent. The in inquiry was completed on 28.01.1999, within 10 days of its initiation, holding the Respondent guilty of all 11 heads of charges leveled against him except charge No. 9 and the enquiry report was submitted on 15.05.1999 to the Disciplinary Authority. The Enquiry Report was submitted without waiting for the submission of the written brief of defence by the Respondent, which was submitted by him on 19.08.1999.
The Enquiry Report was submitted without waiting for the submission of the written brief of defence by the Respondent, which was submitted by him on 19.08.1999. Accepting the findings of the Enquiry Officer in the Enquiry Report, the Disciplinary Authority imposed a punishment of “Removal from Service” on the Respondent vide order dated 19.09.1999. He received the same on 28.08.1999, during his incumbency at Regional Office, Bilaspur, on which date he was removed from service. The Respondent had preferred appeal against the said order of “Removal from Service” on 04.09.1999, which was rejected on 19.12.2000, i.e., after a lapse of more than one year. The Respondent had also submitted a Review Petition on 15.01.2001, which faced the same fate on 22.02.2002 and the order of removal of the Respondent from service passed by the Disciplinary Authority and confirmed by the Appellate Authority was upheld. Assailing the Memorandum of charges as well as the order of punishment of “Removal from Service” passed by the Disciplinary Authority, subsequent orders passed by the Appellate as well as Reviewing Authority (as under Annexure-1, 4, 5 and 6 respectively, to the writ petition), the Respondent filed W.P.(C) No. 3845 of 2003 before this Court. Learned Single Judge on a threadbare discussion of the submissions made, materials available on record as well as point of law involved, allowed the writ petition by judgment dated 04.08.2015 quashing the orders under Annexures-4, 5 and 6 therein and directed the Appellants herein to extend all consequential service benefits, as due and admissible, to the Respondent in accordance with law. The Appellants being not satisfied with the order passed by learned Single Judge have filed this Appeal. 3.Mr. A.K. Mishra, learned Senior Advocate for the appellants submitted that the Respondent during his incumbency at Regional Office at Mumbai was served with the charge sheet containing imputation relating to the period of his incumbency at Parel Branch from 12.10.1992 to 02.07.1995. The enquiry was held at Parel Branch of the Appellant. During that period, he was posted as Senior Manager (Inspection) at the Regional Office, Bilashpur, Chhatishgarh. The order of dismissal was passed by his Disciplinary Authority, namely, Assistant Manager of the Bank at Mumbai. The Appelalte and Reviewing Authority being the General Manager and Chairman-cum-Managing Director of the Appellant-Bank, respectively stationed at Mumabi and Netaji Subash Road, Kolkata passed the impugned orders under Annexure-5 and 6.
The order of dismissal was passed by his Disciplinary Authority, namely, Assistant Manager of the Bank at Mumbai. The Appelalte and Reviewing Authority being the General Manager and Chairman-cum-Managing Director of the Appellant-Bank, respectively stationed at Mumabi and Netaji Subash Road, Kolkata passed the impugned orders under Annexure-5 and 6. As such, neither the cause of action nor any part of it arose within the territorial jurisdiction of this Court. Hence, this Court lacks territorial jurisdiction to entertain the Writ Petition. Learned Single Judge overruled such objection raised by the appellants and held that a part of the cause of action arose within the territorial jurisdiction of this Court as the order of dismissal along with subsequent orders were communicated to the respondent at his permanent address at Bhubaneswar. Learned Single Judge committed an error of law holding that a part of the cause of action arose in Odisha as the respondent has been residing at Bhubaneswar after his dismissal. 4.Mr. N.K. Sahu, learned counsel for the respondent, submitted that the respondent was communicated with the order of dismissal at his permanent address at Bhubaneswar. The Appellant carries on its business throughout Odisha and also have its Regional Officer at Bhubaneswar. Thus, this Court has territorial jurisdiction to entertain the Writ Petition. Learned Single Judge in order to examine the issue with regard to territorial jurisdiction of this Court relied upon the judgments of the Hon’ble Supreme Court in the cases of Eastern Coalfields Ltd. and others Vs. Kalyan Banerjee, (2008) 3 SCC 456 , Navinchandra N. Majithia Vs. State of Maharashtra, AIR 2000 SC 29 , and OM Prakash Srivastava Vs. Union of India & Ors., (2006) 35 OCR (SC) 154 and held that this Court has territorial jurisdiction to entertain the Writ Petition, which needs no interference. 5.In the case of Navinchandra N.Majithia (supra), the Hon’ble Supreme Court has categorically held that power conferred on the High Court under Article-226 could as well be exercised by any High Court exercising any jurisdiction in relation to the territories within which the cause of action, wholly or in part arises and it is no matter that the seat of the authority concerned is outside the territorial limits of the jurisdiction of that High Court. The amendment inserting Clause-2 of Article 226 of the Constitution is thus aimed at widening the scope for reaching the writs issued by different High Courts.
The amendment inserting Clause-2 of Article 226 of the Constitution is thus aimed at widening the scope for reaching the writs issued by different High Courts. In the instant case, the order of dismissal of the respondent was communicated to him at his permanent address at Bhubaneswar. All subsequent correspondences were also made at his Bhubaneswar address. Refusing to entertain a Writ Petition within a narrow compass of cause of action would frustrate the mandate of the Constitution made under Article 226(2) of the Constitution of India. In the decision reported in 2000 (2) OLR 126 (Janardan Mohanty Vs. Union of India and three others), this Court held that the Petitioner therein, who was an employee of CISF, on being removed from service came back to the place of his permanent residence in Odisha to take shelter. It would not be possible for a jobless employee to come to the State where he was last posted to avail his right under Article -226 of the Constitution of India. CISF, with its network offices and establishments throughout India, is not likely to suffer any irreparable loss, if the legality of the removal order is challenged before this Court. Communication of order of dismissal by the Disciplinary Authority and subsequent orders of higher authorities are part of cause of action which gives rise to filing of the Writ Petition. In that view of the matter, we do not find any infirmity with the finding of the learned Single Judge with regard to territorial jurisdiction of this Court to entertain the Writ petition. In the instant case, a part of cause of action having arisen within the territorial jurisdiction of this Court, i.e., at Bhubaneswar, where the order of dismissal as well as all subsequent correspondences were made to the Respondent, this Court has ample jurisdiction to entertain the writ petition. 5.Mr. Mishra, learned Senior Advocate assailing the finding of the learned Single Judge on the question of delay and violation of principles of natural justice in holding the enquiry by the Enquiry Officer as well as the manner in which the enquiry has been conducted, submitted that the Respondent was communicated with the charge sheet on 17.03.1997 containing 11 heads of charges by the Disciplinary Authority, namely, Assistant General Manager, Allahanbad Bank, Mumbai, but he took two months to submit his reply which was submitted only on 05.05.1997.
Thus, at the initial stage, the enquiry was being delayed for the latches of the Respondent. On receipt of the reply/explanation from the Respondent, the Disciplinary Authority without any further delay took a decision on 10.05.1997 to proceed with the enquiry. As the explanation submitted by the Respondent was not satisfactory, Mr. R.C.Verma was appointed as the Enquiry Officer and Mr. J.R. Nagpal was appointed as Presenting Officer in the said enquiry proceeding. Due to the transfer of the Enquiry Officers in short intervals, the enquiry could not be proceeded. Likewise, transfer of the Presenting Officers also caused certain delay. During that period, there was also promotion of the incumbent of the Disciplinary Authority, which caused certain delay, thus, the delay caused in commencement of the enquiry proceeding cannot be said to be intentional. Rather, the same was circumstantial, which occurred for the reasons stated above and was beyond the control of the Enquiry Officer. The delay so occasioned cannot be said to have prejudiced the Respondent. He had also not raised any plea of prejudice for the delay in commencement of the enquiry proceeding. However, the enquiry commenced on 18.01.1999 and proceeded on regular basis. After giving all possible opportunity of hearing to the Respondent, the enquiry was completed on 28.01.1999. The respondent effectively participated in the process of enquiry along with his Defence Assistant. The respondent did not choose to produce any witness in support of his case, but he cross-examined witnesses of the Management (appellant herein). On refusal of respondent to produce any witness on his behalf, the evidence from both the sides was declared closed, which also brought and end to the process of enquiry. Thereafter the Enquiry Officer in compliance of the provisions of Regulation 6(18) of the Allahabad Bank Officer Employees’ (Discipline and Appeal) Regulations, 1976 provided ten days time to both the Presenting Officer as well as the respondent to submit their respective written briefs. However, neither the Presenting Officer nor the Respondent produced their written briefs within the period so directed. However, the Presenting Officer submitted his written brief to the Enquiry Authority on 12.05.1999 sending a copy thereof to the Respondent. The Enquiry Officer without getting any response from the Respondent submitted his report to the Disciplinary Authority on 15.05.1999 holding the Respondent guilty of all the charges except charge No. 9, which was partially proved.
However, the Presenting Officer submitted his written brief to the Enquiry Authority on 12.05.1999 sending a copy thereof to the Respondent. The Enquiry Officer without getting any response from the Respondent submitted his report to the Disciplinary Authority on 15.05.1999 holding the Respondent guilty of all the charges except charge No. 9, which was partially proved. However, the respondent for the reasons best known to him served a copy of his written brief on the Presenting Officer on 09.06.1999 and a copy of the same was sent to the Enquiry Authority on 21.06.1999. Since by that time, the Enquiry Officer had already submitted his report, he (the Enquiry Officer) sent the written brief of the Respondent to the Disciplinary Authority. Mr. Mishra, learned Senior Advocate for the Appellant relied upon a decision of the Hon’ble Supreme Court in the case of State of Andhra Pradesh Vs. N.Radhakishan, reported in AIR 1998 SC 1833 , which reads as follows:- 19.It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when there are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee.
If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basis principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.” Thus, it is submission that the delay in initiation of the disciplinary proceeding has been properly explained and the circumstances were beyond the control of the Disciplinary Authority together with the fact that the delinquent officer (respondent herein) had not raised any objection to the delay in termination of the disciplinary proceeding it cannot be considered to be fatal. No unreasonable delay was caused in holding the enquiry nor was the enquiry a perfunctory. Hence, he made a submission to set aside the finding of learned Single Judge on the aforesaid issue. 7.Mr. N.K. Sahu, learned counsel for the Respondent, on the other hand, admitting the factual aspect of the submission made by Mr. Mishra, submitted that Regulation 6(18) of Allabadad Bank Officer Employees’ (Discipline and Appeal) Regulations, 1976 (for short, Regulations, 1976‘) provides for submission of written brief by the Management (Appellant herein) on the delinquent employee within 15 days from the date of completion of production of evidence. Thus, on closure of evidence from both sides, the Enquiry Officer on 28.01.1989 directed the Presenting Officer to submit his written brief within a period of ten days with a copy to the Defendant (Respondent) and the Respondent was directed to submit his reply within ten days after receipt of the written brief from the Presenting Officer.
Thus, on closure of evidence from both sides, the Enquiry Officer on 28.01.1989 directed the Presenting Officer to submit his written brief within a period of ten days with a copy to the Defendant (Respondent) and the Respondent was directed to submit his reply within ten days after receipt of the written brief from the Presenting Officer. Surprisingly, the Enquiry Officer although waited for a period of four months to receive written brief from the Presenting Officer, which was submitted only 12.05.1999, he without giving any opportunity to the Respondent to submit his written brie, submitted the report to the Disciplinary Authority within three days of submission of written brief by the Presenting Officer, i.e., on 12.05.1999, which shows discriminatory attitude of the Enquiry Officer. Further, the Disciplinary Authority went on changing the Enquiry Officers at regular intervals for some reason or the other. The enquiry was also delayed on the vague plea of promotion of Disciplinary Authority and transfer of the Presenting Officer. Thus, the process of enquiry not only suffered from delay and latches, but also the same is perfunctory one, which vitiates the entire proceeding. The Enquiry Officer ought to have waited at least for a period of ten days, which was granted by him vide order dated on 28.01.1999 for submission of written brief by the respondent. Mr. Sahu, further submitted that in all fairness, when those facts were brought to the notice of the Disciplinary Authority, he could have remitted the matter back to the Enquiry Officer to entertain the written brief submitted by the Respondent on 09.06.1999. But the Disciplinary Authority, without resorting to the principles of natural justice most illegally passed an order of removal from service. Thus, the entire process of enquiry is vitiated and learned Single Judge has rightly dealt with the issue in detail and recorded a finding that the Enquiry Officer has misdirected himself by concluding the proceeding within a period of 10 days which started from 18.01.1999 to 28.01.1999 and has not given an opportunity to the Respondent to file his written brief in advance in compliance of the order dated 28.01.1999. He also recorded a categorical finding to the effect that the Enquiry Officer was prejudiced against the respondent. On the submissions as aforesaid, Mr.
He also recorded a categorical finding to the effect that the Enquiry Officer was prejudiced against the respondent. On the submissions as aforesaid, Mr. Sahu submitted that the findings on the issues of delay, violation of principles of natural justice and the manner in which the enquiry conducted by the Enquiry Officer, should not be interfered with. Mr. Sahu, further relying upon the decision of the Hon’ble Supreme Court in the case of P.V. Mahadevan Vs. M.D. Tamil Nadu Housing Board, reported in AIR 2006 SC 207 submitted that protracted disciplinary enquiry against a delinquent employee should have been avoided not only in the interest of the institution (the Bank herein) but in public interest and also in the interest of inspiring confidence in mind of the delinquent officer. 8.In order to scrutinize the rival contentions of the parties, it is necessary to go through some of the provisions of Regulations 1976. Regulation 6(17) of Regulations, 1976 provides as follows:- “(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” Thus, in the case at hand, the Enquiry Authority was required to put question to the respondent to explain the circumstances appearing against him in the evidence recorded by him. On perusal of the order sheet it does not appear that such a procedure was at all followed. Further, Regulation 6(18) reads as follows:- “(18) After the completion of the production of the evidence, the officer employee and the Presenting Officer may file written briefs of their respective cases within 15 days of the date of completion of the production of evidence.” In compliance thereof, the Enquiry Officer on 28.01.1999 directed as under :- “The P.O. should submit his written brief within 10 days from to-day under copy to defence. The defence shall submit their 10 days after they received brief from the P.O.” 9.Thus, it necessarily indicates that the Presenting Officer was directed to submit the written brief within 10 days from the date of order, i.e., 28.01.1999, in compliance of Regulation 6(18) of the Regulations, 1976.
The defence shall submit their 10 days after they received brief from the P.O.” 9.Thus, it necessarily indicates that the Presenting Officer was directed to submit the written brief within 10 days from the date of order, i.e., 28.01.1999, in compliance of Regulation 6(18) of the Regulations, 1976. But, for the reasons best known to the appellants, it was submitted on 12.05.1999, which was also accepted by the Enquiry Officer, However, the Enquiry Officer without waiting for the reply as was directed vide order dated 28.01.1999, submitted his report to the Disciplinary Authority within three days there-from, i.e., 15.05.1999. The written brief submitted by the respondent was sent to the Disciplinary Authority by the Enquiry Officer. The Disciplinary Authority, however, without affording any opportunity to the Respondent passed the order of punishment of removal of the Respondent from service on 19.08.1999. Thus, the entire process of enquiry, as reveals from the records available, shows that the Enquiry Authority took more than two years to initiate the process of enquiry after receiving the explanation of the respondent (delinquent officer). However, the entire process of enquiry was concluded within ten days, i.e., by 28.01.1999. On 28.01.1999, both the Presenting Officer and the delinquent were directed to submit their written briefs. The Presenting Officer, however, took his own time to submit the written brief on 12.05.1999, though it was directed in the order dated 28.01.1999 to submit the written brief within 10 days serving copy thereof on the delinquent officer. Further, although it was directed that the delinquent officer (the Respondent) should submit his written brief within ten days of receipt of the written brief from the Presenting Officer, the Enquiry Officer without waiting for the same submitted the enquiry report, as if he has only waiting for the written brief from the Presenting Officer. This amounts to gross violation of principles of natural justice and casts a doubt on the fairness and reasonableness of the Enquiry Officer in dealing with the entire process of enquiry. Thus, we find no infirmity in the finding of the learned Single Judge with regard to delay, violation of principles of natural justice and perfunctory enquiry. 9.Mr. Mishra, learned Senior Advocate for the Appellant-Bank relying upon the decision of the Hon’ble Supreme Court in the case of Managing Director ECIL Hyderaband etc. etc. Vs. B. Karunakar Etc.
Thus, we find no infirmity in the finding of the learned Single Judge with regard to delay, violation of principles of natural justice and perfunctory enquiry. 9.Mr. Mishra, learned Senior Advocate for the Appellant-Bank relying upon the decision of the Hon’ble Supreme Court in the case of Managing Director ECIL Hyderaband etc. etc. Vs. B. Karunakar Etc. Etc, reported in AIR 1994 SC 1074 submitted that when it appears to the Court that there is procedural illegality or irregularity in conducting the disciplinary enquiry, the Court is not powerless to set aside the proceeding from that stage and direct for de novo enquiry from the state where any illegality or irregularity occurred. Mr. Sahu, learned counsel for the respondent, on the other hand submitted that the case law and the principles decided therein, has no universal application. It always depends on the facts and circumstances of each case. In the case at hand, respondent has already crossed the age of superannuation and a de novo enquiry would amount to further mental harassment and pecuniary loss to the Respondent for no fault on his part. The respondent should not be pushed to a situation to suffer for the latches of the Appellants. Hence, the learned Single Judge has rightly directed to extend all consequential benefits admissible to the respondent as per law. 10.In view of the discussions made above, there can be no second opinion that the Enquiry Officer had acted in a manner prejudicial to the respondent. It evinces from the record that the Enquiry Officer had proceeded with the enquiry only to punish the respondent. At all the stages, respondent was subjected to harassment and prejudice. The respondent had no contribution for the delay caused initiation of the disciplinary proceeding, manner of submission of the enquiry report as well as the disposal of the appeal. The respondent at present has crossed the age of superannuation. As such, direction for conducting a fresh enquiry would amount to further harassment of the respondent. Further, no fruitful purpose would be served in issuing such a direction for a de novo enquiry for the discussion made above. Thus, we are at one with the learned Single Judge. From the analysis made above, we find no merit in the writ appeal, which is accordingly dismissed. Appeal dismissed.