The orders dated 23rd June 2016 and 31st October, 2016 are under challenge in this Writ Petition.
2.The writ petitioner joined in the respondent Bank as peon/ Hammal on 29th January, 2009 and his services was confirmed with effect from 5th August, 2009. Certain allegations were raised against the writ petitioner and a charge sheet was issued by the respondent in proceedings dated 17th August, 2015.
3.On a perusal of the charge memo, it is seen that certain gross misconducts were noticed against the writ petitioner and charges were framed. Thereafter, an enquriy officer was appointed, who in turn conducted enquiry on various dates. A report was submitted by the enquiry officer on 15.12.2016. Pursuant to the enquiry report, the second show cause notice was issued on 23rd June, 2016. Thereafter, the writ petitioner submitted a reply on 21st July, 2016. Subsequently, a notice was given to the petitioner for personal hearing on 21st July, 2016. By an order dated 31st October, 2016, the respondent-Bank have decided to deviate the findings of the enquiry officer and assigned certain reasons for such deviation. In respect of the deviation, the second show cause notice was issued, granting the opportunity of personal hearing to the writ petitioner for imposing the proposed punishment on 11.11.2016 at 11.00 am. The said notice issued by the respondent inviting the writ petitioner for personal hearing to hear him in respect of the deviated findings adopted by the respondent, is under challenge in this writ petition.
4.The learned counsel appearing for the writ petitioner strenuously contended that the disciplinary authority has been conferred with the power to deviate the findings of the enquiry report, but not based on any new materials, and only based on the materials which were available during the course of the enquiry and therefore, the respondent cannot proceed with the fresh material, after completion of the enquiry. In support of the said claim, the learned counsel cited the Judgment of the Hon'ble Supreme Court in K.R.DEB v. THE COLLECTOR OF CENTRAL EXCISE, SHILLONG [ 1971(2) SCC 102], wherein it has been observed as follows:
12.It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report- of, the Inquiring Officer or Officers does not appeal to the disciplinary, Authority-. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.
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14.Before the Judicial commissioner the point was put slightly differently and, it was urged that the proceedings showed that the Disciplinary Authority had made up its mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise, that the Collector was determined to get some Inquiry Officer to report against the appellant.
5.The learned counsel appearing for the respondent opposed the contentions raised by the learned counsel for the petitioner, by stating that the writ petition itself is filed questioning the second show cause notice issued to the writ petitioner and therefore, the writ petition cannot be entertained at this stage. It is a process of providing an opportunity to the writ petitioner and he has to avail the opportunities and defend his case before the disciplinary authority. Instead of submitting his explanations/objections during personal hearing and in writing, he has chosen to prefer this Writ Petition, for quashing the second show cause notice, which cannot be entertained at this stage.
6.Considering the arguments of the learned counsel for the petitioner and the respondent, this Court is of the view that any disciplinary proceedings initiated against the employee on account of certain alleged misconduct, the disciplinary proceedings are to be concluded and it should reach its logical conclusion. Any intervention in the enquiry proceedings are to be viewed cautiously. Such an exercise can be carried out only in the event of error of jurisdiction, incompetency or if mala fides are raised. Even in case of raising allegations of mala fides, it is necessary that the authority against whom such allegations are made has to be impleaded as party to the writ petition in personal capacity.
7.In the absence of any of these legal grounds, it is not desirable to entertain the Writ Petition at the stage of second show cause notice, which will certainly affect the interest of both the Management as well as the delinquent. The delinquent at every stage need not be allowed to file a writ petition in this regard and the only idea of such delinquents will be either to protract or to protect their interest. Such an attitude is certainly deserves to be deprecated.
8.In the case on hand, if any new material as alleged by the learned counsel for the petitioner is considered by the respondent, it is for the writ petitioner to object the same or to submit his explanations/objections in this regard. Contrarily, he moved the writ petition to stall the completion of the disciplinary proceedings, which is certainly not preferable. It is the duty of an employee against whom the allegation is raised to prove his innocence before the enquiry officer and all the opportunities given to him during the course of enquiry has to be exhausted and utilised for the purpose of proving his innocence.
9.Thus, this Court is of the firm opinion that the scope of entertaining the writ petition at the stage of second show cause notice, cannot be in a routine manner. In this view of the matter, it is left open to the writ petitioner to submit his explanations/objections to the second show cause notice and defend his case before the disciplinary authority. Thus, no further consideration in this writ petition is required.
10.Accordingly, the Writ Petition stands dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
26.07.2017 rpa To United Bank of India rep. By its Chief Manager Disciplinary Authority Department of Personnel Nodal Regional Office T.Nagar, Chennai 600 017.
S.M.SUBRAMANIAM,J.
rpa W.P. No. 39461 of 2016 26.07.2017