1.0 By way of present petition, the petitioner has prayed to quash and set aside the orders at Annexure E and J passed by the respondent Bank dismissing the petitioner from service as Agricultural Officer and to grant consequential benefits like continuity of services, arrears of pay, fixation of salary, seniority, promotion etc. to the petitioner as if the said two orders were not passed and had not come into existence.
2.0 The petitioner joined the respondentDena Bank as Agricultural Officer at their Regional Office at Surat and worked on the administrative side upto May 1987. The petitioner was posted on Operational Side for three different branches viz., Kamrej, Kholvad and Savni with Head Quarter at Kamrej from May 1987 to August 1987. On 12.01.1989, the order of suspension was issued after show cause notice and the reply was filed by the petitioner. On 16.05.1989, chargesheet was served upon the petitioner. From 18.10.1989 to 03.09.1990, Enquiry proceedings were conducted after the reply was filed to the charge sheet by the petitioner. On 08.06.1991, Zonal Manager passed order of dismissal of the petitioner on the basis of the Report of the Enquiry Officer dated 08.10.1990. The petitioner preferred Appeal under Regulations 17(2) of the Bank Regulations. The General Manager, vide order dated 21.3.1992 disposed of the appeal without giving any hearing and served an illegible order.
2.1 On 12.07.1994, the High Court allowed the petition filed against both the orders being Special Civil Application No. 6618 of 1992 and the matter was remanded to the Bank. On 12.07.1995, the Assistant General Manager again passed order of dismissal of the petitioner from service after considering the written explanation and the Enquiry Report. Appeal was filed by the petitioner under Regulation 17(2) of the Bank Regulations.
2.2 On 30.12.1997 the said appeal was kept pending for two years and was dismissed, copy of which was received by the petitioner on 05.01.1998. Hence this petition.
3.0 Learned advocate for the petitioner raised the following contentions:
(1) That the orders at Annexure E and J are null and void since the same are passed by the authority lower than the appointing authority. It is submitted that the petitioner was appointed as Agricultural Officer by Deputy General Manager who is higher in rank than the Assistant General Manager and, therefore, he could not have been removed by the said authority. The said contention was raised specifically in the earlier petition and in the representation submitted after the remand which are lost sight of by the Appellate Authority in particular.
(2) That the order at Annexure E is not only against the mandatory requirements of the Discipline & Regulations of the Bank but is also against the principles of natural justice in view of the patent infirmities.
(3) That the departmental proceedings were initiated and the charges are levelled against him out of bias and prejudice entertained by the officers of the Bank and though the Agricultural Officer is not delegated with the authority to sanction or disburse any kind of loan and the Bank Managers are the only authorities to take decisions, the petitioner was saddled with the said charge as if he had disbursed or sanctioned the loan.
(4) The findings recorded by the Enquiry Officer and later on confirmed by the Disciplinary Authority are based on no evidence and are nothing but the outcome of inference, assumption and surmise arrived at from nonexistent facts.
(5) That both the orders are perverse and are of no effect since (i) the orders are nonspeaking orders, (ii) the findings recorded are nothing but the outcome of predetermined intention to hold the petitioner guilty though there was no material to do so, (iii) the Appellate Authority has decided the appeal mechanically and without focusing his attention to several legal infirmities and confirmed the order of dismissal as if he has no other alternative as can be seen from the general discussion made by him in his order and (iv) the said Appellate Authority in his long order has travelled beyond the charge exposing his patent nonapplication of mind.
(6) The appellate authority did not decide the material objections raised by the petitioner that (i) the disciplinary authority has added one more charge, without giving opportunity to the petitioner, that the Bank scheme of giving loans was misused for personal gain and (ii) the reliance was placed in the enquiry on a Circular dated 07.11.1989 with regard to the duty of Agricultural Officers overlooking that the same was not in existence in 1987.
4.0 Learned advocate for the respondent submitted that the contention raised by the petitioner is misconceived inasmuch as the departmental proceedings were initiated after giving him opportunity. The facts which have been emerged from the record show that the petitioner had given loan to the persons who were not in existence and he had made correction in the loan application and also fixed the photographs.
5.0 Learned advocate for the respondent further contended that in connivance with the two officers huge loss is caused to the Bank and the very object of giving subsidy or loan to the agriculturist is defeated.
6.0 The contention of the petitioner that the petitioner was not given an opportunity of hearing by the Assistant General Manager is untenable as no such personal hearing by the Disciplinary Authority is called for before passing the order of penalty. The petitioner had in fact opportunity to have his comments made on the findings of the Inquiry Officer. The petitioner availed of that opportunity.
7.0 The Disciplinary Authority considered the entire record of inquiry including the comments of the petitioner on the report of the Inquiry Officer as can be seen from the order of dismissal.
7.1 In support of his contention learned advocate for the respondent placed reliance on the decision of the Hon'ble Apex Court in case of Oriental Bank of Commerce and another versus R.K. Uppal reported in (2011) 8 Supreme Court Cases 695 wherein it is held that in absence of specific requirement in relevant rules, there is no right to personal hearing at appellate stage where appellate authority seeks to confirm, reduce or set aside order appealed against.
7.2 He submitted that the requirement of natural justice would depend on circumstances of each case, nature of enquiry and the rules under which appellate authority is dealing with the subject matter.
7.3 According to him Regulation 17 of 1982 of the Regulations did not expressly provide for personal hearing to delinquent at appellate stage, nor could such requirement be implicitly inferred therefrom.
7.4 He submitted that in absence of any provision for personal hearing, it cannot be said that very right of appeal would be defeated. He further submitted that the the petitioner was heard in person by the Appellate Authority and thereafter, passed a detailed reasoned order dealing with various contentions of the petitioner and dismissing the appeal on 30.12.1997.
8.0 I have heard learned advocates for the parties. As regards the contention that no personal hearing was afforded to the petitioner is concerned, it is required to be noted that the petitioner had opportunity to offer his comments on the findings of the Inquiry Officer. The petitioner had availed of that opportunity. The Disciplinary Authority considered the entire record of inquiry including the comments of the petitioner on the report of the Inquiry Officer which is evident from the order of dismissal. At this stage, it is required to be noted that as per principles laid down in case of Oriental Bank of Commerce and another versus R.K. Uppal (supra) it is held that in absence of specific requirement in relevant rules, there is no right to personal hearing at appellate state where appellate authority seeks to confirm, reduce or set aside order appealed against.
9.0 A contention has been raised that the order has been passed by an authority lower in rank than that of the appointing authority. The order of penalty of dismissal has been passed against the petitioner by the Assistant General manager who was the Disciplinary Authority in case of the petitioner at the relevant time. The order has been passed by the authority who was designated as disciplinary authority under the statutory regulations. It is a delegated power and therefore the contention of the petitioner cannot be accepted.
10.0 It is pointed out that Dena Bank Officers Employees (Discipline and Appeal) Regulations, 1976 are framed in exercise of power under section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and they are statutory in character. As per the said Regulations, for the officers in Scale I and II the disciplinary authority is the Regional Authority and if the region is headed by AGM then the Chief Manager attached to the Regional Office is the Disciplinary Authority. Therefore the Assistant General Manager is the Regional Authority and he has exercised power as disciplinary authority in accordance with the authority conferred on him by the Board of Directors as per the said Regulations. It, therefore, cannot be said that the order has been passed by the authority lower in rank to that of appointing authority.
11.0 It is also required to be noted that the appointment order issued to the petitioner is by the Deputy General Manager who is a delegate of the Board of Directors by virtue of the power conferred on him by the Board of Directors. It is therefore clear that the power has been delegated to the respective authorities by the highest executive body i.e. Board of Directors and the powers have been exercised as per the delegation/conferment of power by the highest executive authority. Therefore I do not find any merits in the contention of the petitioner.
12.0 The petitioner failed to show as to how he has been prejudiced on account of the alleged deviation or noncompliance with any regulation alleged and therefore, the order of penalty passed against the petitioner does not call for any interference.
13.0 The petitioner also cannot wriggle out of his responsibility by alleging that the powers to sanction and disburse loan was with the Branch manager and not with him. The report of the Inquiry Officer and the order passed by the Appellate Authority reveal that the findings and conclusion drawn by the authorities are based on the evidence on record of inquiry. The inquiry officer in his report has referred to the evidence on record of inquiry in support of his conclusion holding the charges against the petitioner as proved. The appellate authority has also dealt with the contention of the petitioner in his appellate order.
14.0 In view of the above, I am of the view that it will not be appropriate SCA/3925/1998 10/10 JUDGMENT for this Court to substitute opinion of two authorities who have considered the matter. No case is made out to cause interference. The petition is therefore dismissed. Rule is discharged with no order as to costs.
(K.S.JHAVERI, J.) niru*