IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12053 of 2001 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to
4 the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= H C MEHTA - Petitioner(s) Versus BANK OF INDIA & 2 - Respondent(s) ========================================================= Appearance :
MR SHALIN N MEHTA for Petitioner(s) : 1, NANAVATI ASSOCIATES for Respondent(s) : 1 - 3.
========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 1/08/2012 CAV JUDGMENT
1. This petition under Article-226 of the Constitution of India, has been preferred by the petitioner- a dismissed employee serving as Deputy Chief Manager (Deposits) Bank of India with the following prayers :
“24.
(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction to quash and set aside the penalty order dated 16.6.2000 passed by the respondent No.3 and the appellate order dated 9.1.2001 passed by the present respondent No.2;
(B) Your Lordships may be pleased to declare the action of the respondent Bank of withholding pension and other retiral benefits of the petitioner from June, 2000 as arbitrary, discriminatory, violative of the principles of natural justice and as violative of Articles 14 and 21 of the Constitution of India;
(C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to direct the respondent Bank to grant pension and all other retiral benefits to the petitioner as they would be payable on the petitioner’s retirement on 31.5.1998 and to further pay all arrears of pension and other retiral benefits to the petitioner from June, 2000,
(D) Pending admission and final hearing of the present petition, Your Lordships may be pleased to stay the implementation and operation of the impugned penalty order dated 16.6.2000 and the impugned appellate order dated 9.1.2000;
(E) Pending admission and final hearing of the present petition, Your Lordships may be pleased to direct the respondent Bank to release the pension of the petitioner forthwith from June, 2000 and to further release the other retiral benefits of the petitioner for payment to the petitioner forthwith; and
(F) Your Lordships may be pleased to pass any other appropriate order as deemed fit in the interest of justice.”
2. The case as set-up by the petitioner in his petition may be summarized as under :
2.1) The petitioner joined the respondent Bank on 5/3/1963 as a Clerk in the Ahmedabad Branch at Ahmedabad. He was promoted as Officer on 1/5/1968. He was transferred from Ahmedabad Branch to Badeli branch in Madhya Pradesh as Branch Manager. From Badeli Branch, M.P. the petitioner was transferred as Branch Manager at Barnagar branch in M.P. The petitioner worked at New Cloth Market Branch, Ahmedabad during 1974 to 1978. The petitioner worked at Surat branch between 1978 and 1983 and thereafter at Navsari between 1985 and 1986. The petitioner also worked at Manekchowk Branch, Ahmedabad from 1986 to 1988.
2.2) The petitioner was, thereafter, promoted to Scale-III and transferred to Jamnagar branch as Deputy Chief Manager at Porbandar Branch between 1990 and 1992 and thereafter was transferred to Surat Service Branch as a Manger from 1992 to 1995. From Surat Service Branch the petitioner was transferred to Surat Main Branch as Deputy Chief Manager (Deposits). It is the case of the petitioner that during his service from 1963 to 1998 he was not served any charge-sheet in respect of any misconduct by the respondent Bank. During these years he had rendered his service only diligently with utmost sincerity and to the best of his ability.
2.3) On 13/2/1998 an order of Suspension was passed by respondent no.3–Chief Regional Manager against the petitioner on the ground that an inquiry/disciplinary proceedings were contemplated against the petitioner.
2.4) Thereafter on 12/5/1998 a charge-sheet along with Articles of Charge was served on the petitioner by the respondent Bank. The charge no.1 alleged that the petitioner abused his official position as Dy. Chief Manager (Deposits), Surat Main Branch and had conspired with outsiders to cheat, commit fraud on the Bank/Depositors to the tune of Rs.4,12,71,799/- with the intention to cause wrongful gain to himself and to the other co-conspirators.
2.5) Charge no.2 alleged that the petitioner had grossly abused his official position as Deputy Chief Manager (Deposits), Surat Main Branch and had conspired with outsiders to cheat, commit fraud on the Bank/Depositors to the tune of Rs.62,64,000/- with the intention to cause wrongful gain to himself and to the outsiders.
2.6) Since the petitioner was to retire on 31/5/1998 an order was passed by the respondent Bank on 26/5/1998 to continue Departmental proceedings against the petitioner under Regulation-20(3)(iii) of the Bank of India (Officers’) Service Regulations, 1979.
2.7) On 30/5/1998 the petitioner gave his written reply to the charge-sheet dated 12/5/1998 denying all the charges. The petitioner stated therein that in view of his foregoing favourable position and his excellent track record of 35 years of service, he may be pardoned for his procedural lapses.
2.8) On 15/10/1998 an order was passed by the respondent Bank appointing a Vigilance IAS Officer as the Inquiring Authority. In the course of the inquiry, a written statement of defence was submitted on his behalf on 11/3/1999 by Mr.M.K.Bhutwala, Defence Assistant. A detailed reply including written submissions to the statement of allegations was also filed by the petitioner in the course of the inquiry.
2.9) On 24/8/1999 the Inquiring Authority submitted its report in respect of the inquiry against the petitioner. The Inquiry Officer, on appraisal of oral as well as documentary evidence placed on the record, came to the conclusion that Articles-I and II of the charge- sheet dated 12/5/1998 stood proved against the petitioner to the extent of procedural irregularities only.
2.10) In other words, the Inquiring Authority negatived the allegations against the petitioner of having abused his official position as Deputy Chief Manager (Deposits), Surat Main Branch or conspiring with outsiders to cheat, commit fraud on the Bank/depositors to the tune of Rs.4,12,71,799/- and additionally to the tune of Rs.62,64,000/- with intention to cause wrongful gain to himself or to the outsiders.
2.11) On 18/9/1999 the petitioner submitted his written representation to respondent no.3–Chief Regional Manager and the Disciplinary Authority on the Inquiry Report dated 24/8/1999 of the Inquiring Authority.
2.12) On 16/6/2000, the respondent no.3 –Chief Regional Manager passed an order imposing major penalty of dismissal. According to the petitioner a bare perusal of the contents of the order of dismissal would go to show that respondent no.3 being the Disciplinary Authority had disagreed with the findings of the Inquiring Authority. According to the petitioner, if that be so, then it was imperative on the part of the respondent no.3 to grant an opportunity to the petitioner to show cause against such disagreement as per the provisions of Regulation-7(2) of the Bank of India Officer Employees (Discipline & Appeal) Regulations, 1976. By not according such opportunity to show cause, or a hearing of any kind, the penalty order could be termed as passed in gross violation of the principles of natural justice.
2.13) Petitioner preferred an appeal before the Appellate Authority, viz. respondent no.2 against the penalty order dated 16/6/2000. However, without appreciating the legal contentions raised by the petitioner in his reply and without appreciating the fact that the Disciplinary Authority could not have disagreed with the findings of the Inquiry Officer in absence of clear and cogent reasons and without granting opportunity of hearing to the petitioner, dismissed the appeal of the petitioner vide Appellate Order dated 9/1/2001.
2.14) It is the case of the petitioner that both, the Disciplinary Authority and the Appellate Authority failed to appreciate that in view of the fact that the petitioner had retired on 31/5/1998 pending the Disciplinary Proceedings and in view of Regulation 20(3) (iii) of the Bank of India (Officers’) Service Regulation, 1979, major penalty of dismissal contemplated by Regulation-4 of the Bank of India Officer Employees (Discipline & Appeal) Regulations, 1976 could not have been imposed on the petitioner. According to the petitioner such penalty could not have been imposed as the Inquiring Authority had come to the clear conclusion that the petitioner was only guilty of procedural irregularity and that no monetary loss was caused to the respondent Bank.
2.15) It is also the case of the petitioner that despite the fact that no monetary loss was caused to the respondent Bank on account of his procedural lapses and every single penny along with interest at market rate was paid into the respondent Bank by the petitioner, the respondent Bank stopped payment of Pension to the petitioner from June, 2000. After the retirement, respondent Bank had made payment of pension to the petitioner from June, 1998 till its stoppage in June, 2000.
3. This petition was admitted vide order dated 18/8/2003 by issuing Rule. The Notice of Rule was served on the respondents and the respondents have appeared and have opposed this petition by filing affidavit-in-reply. The stand of respondent no.1 in the affidavit-in-reply may be summarized thus –
3.1) The petitioner committed misconduct with an intention to cause wrongful gain to himself and/or to the outsider by opening TDR Accounts on the basis of fake/bogus persons without following the procedure and also advanced loans on the deposits to the persons with incomplete details.
3.2) The petitioner grossly abused his official position as Deputy Chief Manager (Deposits) and conspired with outsiders to cheat, commit fraud on the Bank/through depositors to the tune of Rs.4,12,71,799/- with an intention to cause wrongful gain to himself and/or to the outsiders. The petitioner willfully and in blatant disregard to the functioning norms, mobilized large number of NRE/NRNR deposits by opening TDR accounts on his own and on the basis of the signature of bogus persons at the branch. The petitioner caused and persuaded other officers of the branch to open accounts without following the procedure laid down under the Rules for opening such accounts. The petitioner also grossly abused his official position and conspired with outsiders to cheat, commit fraud on the Bank as well as with the genuine depositors to the tune of Rs.62,64,000/- with an intention to cause wrongful gain to himself and to the outsiders. According the respondents the aforesaid facts came to their notice when a phone-call from a depositor based in Dubai was received alleging that some loan has been granted against his Fixed Deposit Receipts. On verification it was informed to the depositor that the original FDR was in the custody of the Bank, however, the depositor confirmed that the original FDR was with him. Under such circumstances suspicion arose about the genuineness of the Fixed Deposit Receipts. Thereafter inquiry commenced in this regard. Preliminary Inquiry revealed that the petitioner had abused his official position as Deputy Chief Manager (Deposits) to open a bogus account and issued receipts later-on to obtain loan to third party against such receipts by checking/verifying/ attesting the signatures of the Depositors appears of various branch records. The petitioner was suspended from service on 13/2/1998 and a charge-sheet dated 12/5/1998 was served by the respondent bank. As the fraud was unearthed, the petitioner and his son, named, Bhavin Mehta deposited a sum of Rs.4.00 lac and Rs.9.29 lac in cash on 28/8/1998. On 29/8/1998 a further sum of Rs.15.89 lac in cash was received by the Bank from the son of the petitioner. The entire amount along with Pay Order of Rs.65 lac was received from the petitioner. According to the respondents, if the advances made were genuine and as per Rules and Regulations, then there was no need for the petitioner himself or his son to deposit the amount. According to the respondents depositing of such amount immediately itself demonstrated that the deposits mobilized and advances made were not genuine and in fact were made by the petitioner with malafide intention of making wrongful gain. According to the respondents, during the course of inquiry, the Inquiry Officer in general examination had asked the following three questions –
i) to what extent the petitioner was responsible to the irregularity ?
ii) soon after the anomalies were detected, huge amounts were brought back, from whom these amounts were collected/realized ?
iii) had the anomalies not been detected and the amounts not realized quickly who would have gained and/or lost financially ?
The aforesaid questions were neither answered by the petitioner or his representative during the inquiry proceedings. According to the respondents, silence on the part of the petitioner itself demonstrated that the petitioner feared that the real truth would come-out and he would be exposed of his misdeeds. According to the respondents the order dated 16/6/2000 passed by the respondent no.3 imposing major penalty of dismissal against the petitioner under Regulation-4 is not violative of Regulation-7(2). According to the respondents there is no question of violation of Regulation-7(2), as alleged, since the Disciplinary Authority had passed an order on the basis of the Inquiry Officer’s report and material on record and therefore, it could not be said that the Disciplinary Authority had disagreed with the findings of the Inquiry Officer. According to the respondents assuming without admitting that the Disciplinary Authority had disagreed that the finding of the Inquiry Officer, even then in view of Regulation-7(2) no opportunity to show cause is required to be given before passing the penalty order. It is the case of the respondents that Regulation-7(2) does not spell-out that opportunity, to show cause, to Charge- sheeted Officer should be given for disagreeing with the findings of Inquiry Officer while giving substituted findings by the Disciplinary Authority.
3.3) According to the respondents, the order dated 16/6/2000 is also not in violation of Regulation-20(3) (iii) as alleged by the petitioner. According to the respondents, Regulation-20(3)(iii) does not contemplate that the nature of punishment imposed on the petitioner could not have been awarded in view of the fact that the petitioner had superannuated from service during the pendency of the departmental proceedings.
4. Affidavit-in-Rejoinder has also been filed by the petitioner to the affidavit-in-reply of respondent Bank and affidavit-in-Sur-rejoinder has also been filed on behalf of respondent no.1 to the affidavit-in- rejoinder filed by the petitioner.
5. Contentions on behalf of the petitioner :
5.1) Mr.Shalin Mehta, learned counsel appearing for the petitioner vehemently contended that the impugned order passed by respondent no.3 imposing major penalty of dismissal is illegal and contrary to the well settled principles of natural justice. Mr.Mehta submitted that the Appellate Authority also dismissed the Appeal of the petitioner without examining the contentions canvassed by the petitioner during the course of inquiry.
5.2) Mr.Mehta laid much emphasis on the provision of Regulation-7(2) of the Regulation, 1976. Mr.Mehta submitted that the findings recorded by the Inquiry Officer would go to suggest that the petitioner was held liable only to the extent of procedural irregularities. In short the sum and substance of Mr.Mehta’s contention is that the allegation, as levelled in the charge-sheet that the petitioner grossly abused his official position and conspired with outsiders to cheat, commit fraud on the Bank with intention to cause wrongful gain, has not been established and proved. Under such circumstances if there is disagreement to this extent then it was incumbent upon the Disciplinary Authority to record its reasons for such disagreement and give an opportunity to the petitioner to meet with the same. Mr.Mehta contended that though Regulation-7(2) is silent in so far as giving an opportunity of hearing to the delinquent is concerned in case of disagreement, even then the principles of natural justice have to be read into Regulation-7(2). As a result thereof, whenever the Disciplinary Authority disagrees with the Inquiring Authority on any article of charge, then before it records its any finding on such charge, it must record its tentative reasons for such disagreement and give to the delinquent an opportunity to represent before it records its findings. Mr.Mehta in support of his contention relied on two decisions of the Supreme Court –(i) In the case of Yoginath D. Bagde Vs. State of Maharashtra & another reported in 1999 (7) SCC -739 and (ii) Punjab National Bank & others Vs. Kunj Bihari Mishra reported in 1998(7) SCC 884.
5.3) Mr. Mehta also submitted that considering Regulation -20(3)(iii) of Regulation, 1979 penalty of dismissal could not have been imposed as the petitioner had already attained superannuation in the year 1998. Mr. Mehta submitted that Regulation-20(3)(iii) of Regulation, 1979 has been interpreted by the Indian Banks Association in its written communication dated 15/7/1998 to mean that none of the penalties as provided in Regulation-4 of the Bank of India Officer Employees’ (Disciplinary & Appeal) Regulation, 1976 could be imposed at the conclusion of the proceeding against an Officer when departmental proceedings instituted against such an officer while in service are continued after he has reached his date of superannuation. According to Mr.Mehta, the Bank could only make recovery in the event of Officer being found guilty of causing monetary loss to the Bank. As the Inquiring Authority held the petitioner guilty of procedural lapses, the action of respondent bank of withholding his pension from June, 2000 without any notice and/or hearing to the petitioner is violative of the decision of the Supreme Court in the case of State of U.P. Vs. Brahm Dutt Sharma and another reported in (1987) 54 Factories Law Reports-529. Mr. Mehta thus urged that this petition be allowed and the relief as prayed for be granted.
6. Contentions on behalf of respondents –
6.1) Mr. Nandish Chudgar appearing for Nanavati Associates on behalf of the respondents submitted that the charges against the petitioner were very serious and they have been proved during the course of departmental inquiry. Mr.Chudgar submitted that Regulation-7(2) would have no application in the present case because it could not be said that there was disagreement with the findings recorded by the Inquiring Authority. Mr.Chudgar further submitted that even if it is assumed that there was some disagreement with the findings recorded by the Disciplinary Authority even then under such circumstances Regulation-7(2) does not contemplate any opportunity of hearing to be given to the petitioner at that stage. Mr.Chudgar also submitted that the Disciplinary Authority passed a final order dated 16/6/2000 assigning cogent reasons and the same is in accordance with the provisions of the Regulations. Mr.Chudgar submitted that as per the revised guidelines issued by the Indian Banks Association dated 5th March, 1999, any penalty enumerated in Clause-4 of the Regulations could be implemented after completion of inquiry for those officers whose inquiry is continued even after reaching the superannuation age. Therefore, according to Mr.Chudgar showing cause for withholding of pension and other retirement benefits to the petitioner was not necessary. Mr.Chudgar urged that there being no merits in this petition, the same be rejected.
7. Having heard the learned counsels for the respective parties and having gone through the materials on record, the question for my consideration is as under :-
“When the Inquiry Officer, during the course of disciplinary proceedings under Bank of India Officer Employees’ (Discipline & Appeal) Regulations, 1976, comes to a conclusion that all or some of the charges alleging misconduct against an official of the Bank are not proved, then can the disciplinary authority differ from that and give a contrary finding without affording any opportunity to the delinquent officer.”
To answer this question, I need to undertake a very important exercise. I need to look into the charges which were actually levelled against the petitioner in the charge-sheet and the findings ultimately recorded by the Inquiring Authority in its report. There is no doubt that the charges which were levelled against the petitioner were very serious. The petitioner was charged having grossly abused his official position as Dy.Chief Manager (Deposits), Surat (M) Branch and also was charged for hatching conspiracy with outsiders to cheat, commit fraud on the bank through depositors to the tune of Rs.4,12,71,799/- with intention to cause wrongful gain to himself and/or to the outsiders. Charge no.2 also is somewhat on the same line with the only difference in the amount. In charge no.2 the amount is Rs.62.64 lacs. On the other hand the Inquiring Authority had to say something different. I deem fit and proper to reproduce the conclusions of the Inquiring Authority so far as the charges leveled against the petitioner is concerned – “On scrutiny of the confessional statement ibid and the written defence brief of the CO. it appears that at the relevant time, there were certain forces/agencies who were lurking in the State befriending the bank officials including senior officers and arranging investments from NRE/NRNR and domestic depositors with a motive of cheating/defrauding the financial institutions later by manipulating the TD accounts. These agencies were very influential and powerful, so powerful and even dreadful that it became risky for anybody to reveal their real identity and design. It seems that the CO fell into their trap while hunting for deposits to reach the target fixed for the bank. It also appears that in this mess, he had acted not only by his own volition, but at the instance of some higher ups also inside and outside the bank premises, whose identities the CO did not like to disclose on moral grounds.
In the course of inquiry proceedings, several witness appeared to confirm the irregularities alleged to have been committed by the CO and which had already been accepted by the CO in his statement at Ex.S.68. But nothing came out about the identity of those who had forged the documents. From the deposition of _W.7 who was the Chief Manager of the Surat Main Branch, it is clear that the moment the fraud was detected, the CO moved quickly, by cutting the period of his training short, to recover the entire amounts sanctioned to 3rd parties within a short period of 15 days which shows that he took care of the interest of the bank. His zeal to increase the deposits and the lending and his gullibility in putting too much trust on the brokers appears to have landed him into committing a number of irregularities in the opening of Term Deposit accounts and in the sanctioning of loans to 3rd parties. A mature and experienced officer is not likely to verify and attest signatures of depositors blindly on important documents as in the present case unless he has full faith in the person who presented the documents. In other words, any scheming devil in the bank who is bent on cheating and defrauding the institution or depositors, will not reveal himself by overtly putting his signatures on forged documents which are likely to inspite trouble later on.
FINDINGS.
“On the basis of oral and documentary evidences adduced during the enquiry proceedings by both the prosecution and the defence sides, my conclusions are that Article I relating to NRE, NRNR. Term Deposits and Article II pertaining to Domestic Term Deposits, granting of loans against the Term Deposit Receipts and Recovery of the amount lent etc. on the part of the C.O. are proved to the extent of procedural irregularities.”
Plain reading of the findings recorded by the Inquiring Authority would suggest that the over zealousness on the part of the petitioner to increase the deposits and lending coupled with implicit trust on the brokers led the petitioner in committing a number of irregularities in the opening of Term Deposit Accounts and in the sanctioning of loans to third parties. Under such circumstances the Inquiring Authority concluded saying that the petitioner was guilty of procedural irregularities relating to NRE, NRNR Term Deposits and Domestic Term Deposits. I am sure of one thing that the Inquiring Authority has not said anything about hatching conspiracy with outsiders to cheat, commit fraud on the banks/true depositors to the tune of Rs.4,12,71,799/- by abusing official position as Deputy Chief Manager. There is no finding that the petitioner committed misconduct with an intention to cause wrongful gain for himself and/or cause wrongful gain to the outsiders by opening TDR accounts on the basis of fake/bogus persons without following the procedure. Therefore, it could be said that the Inquiring Authority has not said in so-many words that all the charges leveled against the petitioner are established, but on the contrary the findings are to the effect that from the deposition of the Chief Manager of the Surat Main Branch suggests that the moment the fraud was detected, the petitioner moved quickly by curtailing the period of his training short to recover the entire amount sanctioned to third parties within a short period of 15 days which showed that he took care of the interest of the Bank. However, his gullibility in putting implicit trust on the brokers landed him in difficulty.
8. The Disciplinary Authority in his order dated 16/6/2000 has committed the same mistake by recording some incorrect facts in para-6 which led to lot of confusion during the course of hearing of this petition. However, it was clarified by Mr.Chudgar that the contents of para-6 have nothing to do with the present case. The fact remains that the Disciplinary Authority came to the conclusion that considering the documentary and oral evidence brought on records of the inquiry, including findings of Inquiring Authority, fraud can be said to have been established crystallizing intention of the petitioner to cheat and defraud the bank.
At this stage I would also like to quote a paragraph of affidavit-in-Sur-rejoinder filed by respondent Bank. In para-5 it has been stated as under :
“In other words, the disciplinary authority as well as the appellate authority has not accepted the observations made by the inquiry officer in respect of non-answering the three questions by the petitioner. I further state that the Discipline & Appeal Regulation of the Bank does not provide any opportunity to show cause to the petitioner for dis-agreeing with the findings of the inquiry officer before passing the final order of the dismissal. I state that the respondent bank has followed principles of natural justice by meticulously complying with the provisions of Bank of India Officer Employees’ (Discipline and Appeal) Regulation, 1976 and, therefore, there is no question of breach of principles of natural justice.”
9. . Having noticed the findings recorded by the Inquiring Authority and also by the Disciplinary Authority in its order dated 20/6/2000 I shall now look into the Regulation-7(2) of Regulations, 1976.
“7. Action on the inquiry report :
(1) The Disciplinary Authority, if it is not itself the Inquiring Authority, may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for fresh or further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of regulation 6 as far as may be.
(2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.
(3) If the Disciplinary Authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in regulation 4 should be imposed on the officer employee it shall, notwithstanding anything contained in regulation 8, make an order imposing such penalty.
(4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the officer employee concerned.”
A para materia Regulation under the Punjab National Bank Officer Employees’ (Discipline & Appeal) Regulation, 1977 fell for consideration before the Apex Court in the case of Punjab National Bank (Supra). The observations made by the Apex Court in para-19 are reproduced hereunder :
“19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer”.
An identical question fell for consideration before the Supreme Court in the case of Yoginath D. Bagde (Supra.) as well as in the case of SBI & Others Vs. Arvind K. Shukla –AIR 2001-SC -2398. The following observations made in paras-28 and 51 are as under :
“28. In view of the provisions contained in the statutory rule extracted above, it is open to the disciplinary authority either to agree with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the disciplinary authority agrees with those findings, there would arise no difficulty. So also, if the enquiring authority has held the charges proved, but the disciplinary authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. Where the rules are in this regard silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent officer and records findings different from those of the enquiring authority that the charges were established, “an opportunity of hearing” may have to be read into the rule by which the procedure for dealing with the enquiring authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be “not guilty” by the enquiring authority, is found “guilty” without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of “not guilty” has already been recorded.”
“51. It was lastly contended by Mr. Harish N. Salve that this Court cannot reappraise the evidence which has already been scrutinised by the enquiry officer as also by the Disciplinary Committee. It is contended that the High Court or this Court cannot, in exercise of its jurisdiction under Article 226 or Article 32 of the Constitution, act as the appellant authority in the domestic enquiry or trial and it is not open to this Court to reappraise the evidence. The proposition as put forward by Mr. Salve is in very broad terms and cannot be accepted. The law is well settled that if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trail are such to which no reasonable person would have reached, it would be open to the High Court as also to this Court to interfere in the matter. In Kuldeep Singh v. Commr. of Police this Court, relying upon the earlier decisions in Nand Kishore Prasad v. State of Bihar, Sate of Andhra Pradesh v. Rama Rao, Central Bank of India Ltd. v. Prakash Chand Jain, Bharat Iron Works v. Bhagubhai Balubhai Patel as also Rajinder Kumar Kindra v. Delhi Admn. laid down that although the court cannot sit in appeal over the findings recorded by the disciplinary authority or the enquiry officer in a departmental enquiry, it does not mean that in no circumstance can the court interfere. It was observed that the power of judicial review available to a High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and the courts can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse.”
10. Applying the aforesaid principles of law as enunciated by the Supreme Court, I have no hesitation in coming to the conclusion that in the present case there is a violation of Regulation-7(2) of the Regulations,1976. No opportunity was given by the Disciplinary Authority to persuade the Disciplinary Authority to accept the favourable part on conclusion of the Inquiry Officer, more particularly, allegations of entering into a conspiracy to cheat and defraud the Bank. As held by the Supreme Court, whenever the Disciplinary Authority disagrees with the Inquiring Authority on any article of charge, then before it records its any findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The principles of natural justice require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the Disciplinary Authority records its findings on the charges framed against the Officer.
11. Having come to the conclusion that there is a gross violation of Regulation-7(2), the next question would be as to what relief be granted to the petitioner. The petitioner attained superannuation way back in 1998. This petition was preferred in 2001 and is being disposed of in 2012. The petitioner has already undergone the pain and agony for last 14 years. As on today he is aged around 72. It will, therefore not be in the interest of justice that at this stage the case should be remanded to the Disciplinary Authority for the start of another inning.
12. Under such circumstances I am left with no other option, but to quash and set aside the order of dismissal dated 20/6/2000 passed by respondent no.3 and confirmed by the Appellate Authority vide order dated 9/1/2001.
13. The petition is hereby allowed. The order dated 16th June, 2000 passed by Chief Regional Manager (Disciplinary Authority) dismissing the petitioner from service is hereby set aside. The appellate order dated 9.1.2001 passed by the Deputy General Manager, Gujarat Zone (Appellate Authority) is also set aside.
14. The respondent-Bank is directed to work out the retiral benefits due and payable to the petitioner from June, 2000, more particularly the amount of pension. The respondent-Bank is directed to calculate the arrears of pension from June, 2000 and pay to the petitioner within a period of two months from today.
(J.B.PARDIWALA, J.) Ashish N.