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2022 DIGILAW 1524 (KAR)

Tharian Chacko v. Union Bank of India

2022-11-30

ALOK ARADHE, S.VISHWAJITH SHETTY

body2022
JUDGMENT VISHWAJITH SHETTY, J. This intra court appeal is filed by the unsuccessful petitioner challenging the order dtd. 28/2/2013 passed by the learned Single Judge of this Court in W.P.No.4924/2009. 2. Heard the learned Counsel for the parties. 3. Brief facts of the case as revealed from the records which would be necessary for the purpose of disposal of this appeal are, the appellant had joined the services of the respondent-Bank as Officer Grade-II in 1978 and he was later promoted to Middle Management Grade Scale-III in November 1988. When he was working as the Branch Manager at Trivandrum, he was deputed to Andhra Bank Financial Services Limited (hereinafter referred to as 'ABFSL') which is wholly a subsidiary of respondent no.1-Bank as its Senior Vice- President. While he was working in ABFSL, a criminal case was registered against M/s. Fairgrowth Financial Services Limited. The appellant was examined in the said case as a witness. Since he allegedly refused to give a statement against the Officers of the Bank as requested by the Central Bureau of Investigation (CBI) which was investigating the case, a false criminal case was allegedly registered against him and the CBI took the appellant into custody on 1/12/1992. 4. The respondent-Bank, thereafter, on 4/12/1992 passed an order of suspension against the appellant and subsequently a disciplinary proceedings was initiated against him. A charge sheet levelling two charges was served on the appellant and one Sri P.M.Rangasami, Commissioner for Departmental Inquiries, Central Vigilance Commission, New Delhi, was appointed as the Enquiry Officer and Sri G.David Jayaprakash, an employee of the Bank was appointed as the Presenting Officer. Since the Presenting Officer was a Law Degree holder who was trained in handling disciplinary proceedings, the appellant had sought the assistance of an advocate and the said request was rejected by the Disciplinary Authority. The same was questioned by the appellant in W.P.No.33389/1994 which was allowed by this Court with a direction to re-consider the request of the appellant for providing the legal assistance. However, the Disciplinary Authority, thereafter, rejected the appellant's prayer for providing legal assistance on the ground that it had changed the Presenting Officer. The appellant, thereafter, had made a request to take the assistance of one R.Kalyanaraman who was working as an Officer of the Bank as Defence Assistant. The said request was also rejected by the Disciplinary Authority. However, the Disciplinary Authority, thereafter, rejected the appellant's prayer for providing legal assistance on the ground that it had changed the Presenting Officer. The appellant, thereafter, had made a request to take the assistance of one R.Kalyanaraman who was working as an Officer of the Bank as Defence Assistant. The said request was also rejected by the Disciplinary Authority. The appellant, thereafter, participated in the disciplinary proceedings and also examined R.Kalyanaraman as defence witness. 5. The Enquiry Officer, thereafter, submitted a report on 22/12/1998 holding that the charges levelled against the appellant were not proved. However, the Disciplinary Authority did not agree with the same and issued a second show cause notice to the appellant on 13/6/2000. The appellant had submitted a detailed reply to the said show cause notice on 26/6/2000. The Disciplinary Authority not satisfied with the said reply, vide order dtd. 21/10/2000 dismissed the appellant from service and being aggrieved by the same, the appellant had preferred writ petition before this Court in W.P.No.35887/2000 which was dismissed by this Court with liberty to the appellant to avail the alternative remedy of appeal. Accordingly, the appellant had filed an appeal on 24/11/2000 which was dismissed by the Appellate Authority on 12/4/2001. Challenging the order passed by the Disciplinary Authority and the Appellate Authority, the appellant had filed W.P.No.21647/2001 before this Court which was allowed by the learned Single Judge vide order dtd. 21/7/2008 and the matter was remanded to the Appellate Authority for fresh disposal. The Appellate Authority on 25/10/2008 once again passed a fresh order dismissing the appeal. The appellant, therefore, had preferred W.P.No.4924/2009 before this Court challenging the orders passed by the Disciplinary Authority and passed by the Appellate Authority. The said writ petition was dismissed by the learned Single vide the order impugned dtd. 28/2/2013 and hence, this appeal. 6. Learned Senior Counsel appearing for the appellant submits that the appellant was not given proper opportunity to defend his case and his request to provide legal assistance and defence assistance was rejected by the Disciplinary Authority. He submits that the Enquiry Officer has held that both the charges levelled against the appellant were not proved and accordingly, had submitted a report. He submits that the Enquiry Officer has held that both the charges levelled against the appellant were not proved and accordingly, had submitted a report. However, the Disciplinary Authority for extraneous reasons had not accepted the said report and had issued a second show cause notice, a reading of which would go to show that the same was issued with a predetermination. He refers to Regulation 6(7) of the Andhra Bank Officer Employees' (Discipline & Appeal) Regulations, 1981 (for short, 'the Regulations') and submits that the said regulation provides for taking assistance of any other officer/employee of the bank and inspite of the same, the Disciplinary Authority had refused to permit the appellant to take the assistance of the defence assistant. In support of his arguments, he has placed reliance on the judgments in the case of N.BALASUBRAMANIAN VS CAN BANK FINANCIAL SERVICES LTD. - ILR 1996 KAR 2385, C.L.SUBRAMANIAM VS COLLECTOR OF CUSTOMS - (1972)3 SCC 542 , S.P.MALHOTRA VS PUNJAB NATIONAL BANK - (2013)7 SCC 251 , and H.L.TREHAN VS UNION OF INDIA - (1989)1 SCC 764 . He further submits that the Disciplinary Authority had erred in not permitting the appellant to take the service of a Defence Assistant and in not giving cogent reasons for disagreeing with the report of the Enquiry Officer and the said lacuna cannot be cured by the Appellate Authority by substituting reasons. In this regard, he has relied upon the judgment of the Hon'ble Supreme Court in the case of INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA VS L.K.RATNA - (1986)4 SCC 537 . 7. Per contra, learned Counsel appearing for the respondent-Bank submits that a reading of Regulation 6(7) of the Regulations makes it very clear that the appellant has no right to engage the services of an advocate. She submits that though the appellant was permitted to take the services of a Defence Assistant, he had not availed the same and on the other hand, he had decided to examine him as a defence witness. She submits that the Disciplinary Authority has given reasons for disagreeing with the report of the Enquiry Officer and the Appellate Authority has also re-examined the same and has dismissed the appeal. She submits that the Disciplinary Authority has given reasons for disagreeing with the report of the Enquiry Officer and the Appellate Authority has also re-examined the same and has dismissed the appeal. She submits that as against the concurrent finding recorded by two fact finding bodies, the scope for interference in a writ petition is very limited and the learned Single Judge was, therefore, fully justified in dismissing the writ petition. She submits that the appellant has attained the age of superannuation on 30/10/2010 and in the earlier round of litigation, the writ petition filed by the appellant was allowed with certain observations and the Appellate Authority was directed to dispose of the appeal afresh taking into consideration the said observations, and accordingly, the Appellate Authority had once again disposed of the appeal taking into consideration the observations made by this Court, and therefore, there is no scope for interference with the said order. In support of her arguments, she has relied the judgments of the Hon'ble Supreme Court in the case of RAJASTHAN MARUDHARA GRAMIN BANK & ANOTHER VS RAMESH CHANDRA MEENA & ANOTHER - (2022)3 SCC 44 , and LAV NIGAM VS CHAIRMAN & MD, ITI LTD. & ANOTHER - (2007)1 LLJ 223 . 8. The appellant who was the employee of respondent no.1-Bank was deputed to ABFSL which is a subsidiary of respondent no.1-Bank as its Senior Vice-President. While he was working in ABFSL, a criminal case was registered against him by the CBI pursuant to which he was placed under suspension and thereafter, charge sheet was served on him under the Regulations and the two charges levelled against him reads as under: 1. On 31/10/91, you have deployed an amount of Rs.7.10 crores for an interest @ 22% per annum for 6 months with Fair Growth Financial Services Ltd (FGFSL), Bangalore against Memorandum of Sale dt.31/10/91 issued by FGFSL, Bangalore for sale of 9% IRFC Bonds of face value of Rs.7.10 crores. The Memorandum of Sale for this transaction indicated the delivery of the security through a banker's Receipt of American Express Bank. But you have released the funds of Rs.7.10 crores to FGFSL, Bnagalore on 31/10/91 without taking delivery of any security either in the form of physical securities or Banker's Receipt. The Memorandum of Sale for this transaction indicated the delivery of the security through a banker's Receipt of American Express Bank. But you have released the funds of Rs.7.10 crores to FGFSL, Bnagalore on 31/10/91 without taking delivery of any security either in the form of physical securities or Banker's Receipt. Thus, you have made available Rs.7.10 crores to FGFSL for a period of 6 months as a clean advance thereby exposing ABFSL to financial risk for the like amount. By the above act, you have displayed lack of devotion and diligence in discharge of your duties and you have failed to take all possible steps to ensure an prtect the interests of ABFSL and thereby acted in a manner unbecoming of bank officer. 2. You have accepted on 7/4/92 from FGFSL three BRs dt.31/3/91 for a tatal amount of Rs.161, 75, 20, 548.00 purported to have been issued by ANZ Grindlays Bank, Bank of America and PNB Capital Services Ltd. The break up of the three BRs so obtainted is: (1) BR dt.31/3/1991 purported to have been issued by ANX Grindlays Bank for Rs.97, 50, 00, 000.00 (2) BR dt.31/3/1991 purported to have been issued by Bank of America for Rs.17, 50, 00, 000.00 and (3) BR dt.31/3/1991 purported to have been issued by PNB Capital Services Ltd for Rs.46, 75, 20, 548.00. It is observed that the securities mentioned in the above BRs were not the securities mentioned in the Security Receipts issued by FGFSL and outstanding as on 31/3/1992. Moreover these BRs were dated 31-31991. You did not enquire as to why these Brs were outstanding for more than one year without being liquidated and also failed to ascertain from the respective Banks as to the facts. After obtention of these BRs you have informed your Managing Direcotr, ABFSL that the outstanding from FGFSL, Bangalore as on 31-3- 1992 with ABFSL to the extent of Rs.180.70 crores were backed by constructive delivery of securties in favour of FGFSL. Basing on this information you're the then Managing Director Sri Y. Sundara Babu represented to the Statutory Auditors of ABFSL That the outstandings from FGFSL to ABFSL were backed by constructive delivery of securities. Thus, the information give by you resulted in misrepresentation of facts to the auditors. Basing on this information you're the then Managing Director Sri Y. Sundara Babu represented to the Statutory Auditors of ABFSL That the outstandings from FGFSL to ABFSL were backed by constructive delivery of securities. Thus, the information give by you resulted in misrepresentation of facts to the auditors. By the above acts, you have displayed lack of devotion and diligence in discharge of your duties and you have failed to take all possible steps to ensure and protect the interests of ABFSL and thereby acted in a manner unbecoming of Bank Officer." 9. The Disciplinary Authority had appointed Sri G.David Jayaprakash, an employee of the Bank as the Presenting Officer and since the Presenting Officer was a Law Degree holder who was allegedly trained in handling disciplinary proceedings, the appellant had sought the assistance of an advocate before the Enquiry Officer. The Disciplinary Authority had rejected the said request made by the appellant and this Court in W.P.No.33389/1994 had quashed the rejection order passed by the Disciplinary Authority and directed the Disciplinary Authority to consider the appellant's request for providing him legal assistance afresh. In the meanwhile, the Presenting Officer was changed by the Bank, and therefore, the appellant's request for providing him legal assistance was once again rejected by the Bank. Regulation 6(7) of the Regulations reads as under: "(7) The officer employee may take the assistance of any other officer employee but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the Disciplinary Authority, is a legal practitioner or the Disciplinary authority having regard to the circumstances of the case, so permits. Note: The officer employee shall not take the assistance of any other officer employee who has two pending disciplinary cases on hand in which he has to give assistance." 10. From a reading of the aforesaid regulation, it is very clear that unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner, the delinquent employee is not entitled to seek the assistance of a legal practitioner before the Enquiry Officer. It is not the case of the appellant that the newly appointed Presenting Officer in place of G.David Jayaprakash was also a Law Degree holder or a legally trained person, and therefore, he was not entitled to take the assistance of a legal practitioner before the Enquiry Officer. It is not the case of the appellant that the newly appointed Presenting Officer in place of G.David Jayaprakash was also a Law Degree holder or a legally trained person, and therefore, he was not entitled to take the assistance of a legal practitioner before the Enquiry Officer. The judgment in N.Balasubramanian's case supra was rendered by this Court in a case where the assistance of legal practitioner which was initially provided to the delinquent employee was withdrawn on the ground that the services of an advocate engaged by the employer who represented it in the enquiry was subsequently withdrawn by it. The said judgment would not be applicable to the facts and circumstances of the present case. 11. The right to be represented by a lawyer at the departmental enquiry is not a vested or statutory right but can be granted on the discretion of the enquiry officer/disciplinary authority or when it is explicitly provided in the service rules. Denial of permission to be represented by a lawyer in departmental enquiry will itself not amount to violation of the principles of natural justice. During the course of departmental enquiry, the enquiry officer is not required to strictly follow the procedure provided under Cr.PC, CPC or Evidence Act, but he is required to comply the principles of natural justice. The object of principles of natural justice is to secure justice and prevent miscarriage of justice and reduce the instances of misuse of power by the administrative authorities. 12. The material on record would go to show that the request made by the appellant to take the assistance of one R.Kalyanaraman who was working as an officer of the Bank, as Defence Assistant was initially rejected by the Disciplinary Authority since the said request was made by the appellant at a belated stage which was just before two days from the date on which the enquiry was scheduled to be held. Immediately after the said date of enquiry, the Disciplinary Authority had permitted the appellant to take the assistance of R.Kalyanaraman as Defence Assistant. However, the appellant for the reasons best known to him had not availed the services of the aforesaid R.Kalyanaraman as the Defence Assistant, but the appellant had examined him as defence witness. Immediately after the said date of enquiry, the Disciplinary Authority had permitted the appellant to take the assistance of R.Kalyanaraman as Defence Assistant. However, the appellant for the reasons best known to him had not availed the services of the aforesaid R.Kalyanaraman as the Defence Assistant, but the appellant had examined him as defence witness. Therefore, the appellant now cannot make a grievance that he was not permitted to take the service of a defence assistant though Regulation 6(7) of the Regulations provides for the same. Under the circumstances, the judgment in C.L.Subramaniam's case supra cannot be made applicable to the facts and circumstances of the present case. 13. In the S.P.Malhotra's case supra, the Hon'ble Supreme Court has held that whenever, Disciplinary Authority disagrees with the findings recorded by the Enquiry Officer, the Disciplinary Authority is bound to record reason for disagreeing with the findings of the Enquiry Officer and to supply a copy of the same to the delinquent officer. In the present case, after receipt of enquiry report from the Enquiry Officer, the Disciplinary Authority had issued a second Show Cause notice to the appellant and in the said notice, Disciplinary Authority has given its reason for differing with the findings recorded by the Enquiry Officer and therefore, there is compliance of the requirement of law as held in S.P.Malhotra's case supra. 14. In the present case, after receipt of the detailed reply to the said Show Cause notice from the appellant, the Disciplinary Authority had passed an order of penalty on 21/10/2000 and the objections raised by the appellant in his reply to the Show Cause notice has been considered point to point by the Disciplinary Authority and a major penalty of dismissal was imposed on the appellant by the Disciplinary Authority in exercise of its power under Regulations 4(j) of the Regulations of 1981. As against the said order of dismissal, the appellant had filed an appeal before the Appellate Authority which was dismissed and the writ petition filed by the appellant challenging the said order of dismissal dtd. 24/11/2000 was allowed and the matter was remitted to the Appellate Authority for fresh consideration with an observation that the grounds urged in the appeal memorandum was required to be considered by the Appellate Authority. 24/11/2000 was allowed and the matter was remitted to the Appellate Authority for fresh consideration with an observation that the grounds urged in the appeal memorandum was required to be considered by the Appellate Authority. The Appellate Authority thereafter considered all the grounds urged in the appeal memorandum by the appellant and had passed a detailed order afresh on 25/10/2008. 15. From the perusal of order passed by the Disciplinary Authority dtd. 21/10/2000 and the order passed by the Appellate Authority dtd. 25/10/2008, it is very clear that all contentions raised by the appellant before the said authorities have been independently considered by them. The appellant was given ample opportunity to put forward his case before the Enquiry Officer and he was also given opportunity of being heard before the Disciplinary Authority as well as before the Appellate Authority before passing of the order dtd. 21/10/2000 and 25/10/2008 respectively by the Disciplinary Authority and the Appellate Authority. 16. In H.L.Trehan's case supra, the Hon'ble Supreme Court has held that an opportunity of hearing given to the employee post decision will not sub-serve the rules of natural justice. From the analysis of the facts of the present case, we are of the considered view that the appellant was given an opportunity of being heard at every stage of the case and at no point of time, he was given opportunity of being heard after a decision is made. Merely for the reason that the Disciplinary Authority had mentioned in his second Show Cause notice that he is not in agreement with the findings recorded by the Enquiry Officer, that itself cannot be said that he had already made a decision against the appellant. The appellant was admittedly given an opportunity to show cause and after receipt of reply from the appellant, a detailed order was passed by the Disciplinary Authority meeting all the contentions raised by the appellant in his reply to the second Show Cause notice. Therefore, the judgment in S.P.Malhotra's case supra, cannot be made applicable to the facts and circumstances of the present case. 17. It is trite law that the power of judicial review of the High Court in exercise of its power under Article 226 of the Constitution of India as against the order of penalty passed by the Disciplinary Authority is very limited. 17. It is trite law that the power of judicial review of the High Court in exercise of its power under Article 226 of the Constitution of India as against the order of penalty passed by the Disciplinary Authority is very limited. In exercise of its power of judicial review, this Court cannot act as if it is a Appellate Authority and it cannot re-appreciate the evidence and give an independent finding of its own, based on such evidence. Interference with the decision of departmental authorities is permitted, if such authorities have held proceedings in violation of principles of natural justice or in violation of statutory regulations. Merely for the reason that another possible view can also be taken based on the evidence recorded, this Court cannot interfere with the findings recorded by the fact finding authorities during the course of the departmental enquiry. 18. The Hon'ble Supreme Court in the case of UNION OF INDIA AND OTHERS vs. V.P.GUNASEKARAN - (2015) 2 SCC 610 has in paragraph Nos.12 and 13 has held has follows: "12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) reappreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience." 19. The Hon'ble Supreme Court in the case of UNION OF INDIA AND OTHERS vs. SUBRATA NATH (CIVIL APPEAL NOS.7939-7940 OF 2022) disposed of on 23/11/2022, has observed in paragraph No.22 as follows: "22. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P.Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor." 20. Applying the law laid down in the aforesaid cases of the Hon'ble Supreme Court, we are of the view that the learned Single Judge was fully justified in refusing to interfere with concurrent finding recorded by the Disciplinary Authority and the Appellate Authority, more so having regard to the seriousness and gravity of the charges which were levelled against the appellant. Under the circumstances, we are of the considered view that the appeal is devoid of merit and accordingly, the same is dismissed.