High Court · 2007

THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.1.2007 CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDRENWrit Petition No.11041 of 1997S.Dharmaraj.. Petitioner vs. 1. The Chairman and Disciplinary Authority Pandyan Grama Bank, Administrative Office P.B.6, 71, Kandapuram Street, Virudhunagar – 626 001.2. The Board of Directors, Pandyan Grama Bank, Administrative Office P.B.6, 71, Kandapuram Street, Virudhunagar – 626 001... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorarifiedmandamus as stated therein. For petitioner : Mr.P.Thangaraja for Mr.W.M.Abdul Majeed For respondents : Mr.K.Srinivasamoorthy for M/s.N.G.R.Prasad O R D E RThe Writ Petition has been filed praying for the issuance ofa writ of Certiorarified Mandamus to call for the recordspertaining to the proceedings made in AIVD/DP/116/11-0-8/90-91/1284/94-95, dated 27/28.2.95, as confirmed by the AppellateAuthority, Chairman, Pandyan Grama Bank, Administrative OfficeP.B.6, 71, Kandapuram Street, Virudhunagar-1 made in hisproceedings No.AIVD/DP/739/96-97, dated 30.1.97 and quash the sameand to direct the respondents to reinstate the petitioner inservice with attendant benefits and backwages. https://hcservices.ecourts.gov.in/hcservices/ The brief facts of the case, as stated in the affidavit filedin support of the writ petition, are as follows:2. The petitioner had been appointed as a Clerk, on 4.6.1977,at Pandyan Grama Bank Branch at Idinthakarai, TirunelveliDistrict. On 1.8.1984, he was promoted as an Officer and posted atKalkurichi Branch as Additional Officer and later, transferred tovarious other places. While the petitioner was working asAdditional Officer at Ragunathapuram, he was served with a chargememo, dated 29.10.1990, containing 10 charges. The petitioner hadsubmitted his reply to the charges. A Departmental Enquiry Officerwas appointed to conduct the departmental enquiry, based on thealleged charges. 3. After the enquiry was conducted, an enquiry report hadalso been submitted. The Enquiry Officer had given his findingsthat except charge Nos.4 and 6 (a,b & d), other charges had beenproved. Based on the said findings, a show cause notice, dated14.1.1997, was served on the petitioner by the first respondent,agreeing with the enquiry findings and proposing to impose apenalty of dismissal from service and asking the petitioner toshow cause as to why he should not be dismissed from service, interms of Regulation 30(1) (f) of Pandyan Grama Bank (Staff)Service Regulations, 1980. The petitioner had submitted his replyto the show cause notice, dated 29.10.1990. However, the firstrespondent, by his proceedings AIVD/DP/116/11-0-8/90-91/1284/94-95, dated 27/28.2.1995, had confirmed the proposed penalty ofdismissal. The petitioner had preferred an appeal before the Boardof Directors and the said appeal was disposed of, on 30.1.1997,holding that there were no valid reasons to interfere with thepunishment of dismissal awarded by the Disciplinary Authority.Therefore, the petitioner has preferred the present writ petition.4. The petitioner has further stated that in view of order ofdismissal from service, dated 30.1.1997, he has been withoutemployment from 28.2.1995. Some of the main contentions raised bythe petitioner are that the order of dismissal from service hasbeen passed without any evidence and that the charges alleged inthe charge sheet, dated 29.10.1990, were vague. The petitioner hadalso contended that the investigation report had not been suppliedto him and that the petitioner was not given sufficientopportunity to cross-examine the persons, whose statements againstthe petitioner were recorded. The petitioner had also stated thatthe first respondent, who was the Disciplinary Authority, was alsothe Chairman of the Board of Directors, which had heard the appealand it was contrary to the principles of natural justice. Thepetitioner had also stated that the Enquiry was not conductedproperly and that all the charges were not proved and once the https://hcservices.ecourts.gov.in/hcservices/ findings of the Enquiry Officer were not accepted by theDisciplinary Authority, he ought to have given reasons for hisdecision. There were only certain irregularities, which were foundagainst the petitioner and there was no misappropriation of thefunds of the bank. The Disciplinary Authority had not applied hismind while accepting the findings of the Enquiry Officer. Eventhough some of the serious charges had not been proved, thepunishment rendered to the petitioner was based on the principleof preponderance of probabilities. 5. In the counter affidavit filed on behalf of therespondents, it is stated that the Enquiry Officer had conducted15 sittings to enquire into the charges. During the enquiry, 77Management Exhibits were marked and 3 witnesses were examined. Thewitnesses were also cross-examined on behalf of the petitioner.During the enquiry the petitioner had not raised the issue withregard to the vagueness of the charges. The Enquiry Officersubmitted his findings based only on the evidence available. Thefinal order was passed by the Disciplinary Authority after carefulconsideration of the materials on record and based on the findingsof the Enquiry Officer. While participating in the enquiry, thepetitioner had not requested for the production of theinvestigation report as alleged by him. Since the proved chargeswere serious in nature, including non-creation of assets, mockpurchase, illegal gratification, causing misappropriation offorged withdrawal, breach of trust and dishonesty and since therewere no mitigating circumstances to grant a lesser punishment, anorder of removal from service had been issued. 6.Heard the learned counsel for the petitioner as well asthe respondents.7. The learned counsel appearing on behalf of the petitionerhad placed reliance on the following cases to support of hiscontentions.7.1. In STATE OF U.P. Vs. SHATRUGHAN LAL & ANR., (JT 1998 (6)SC 55), the Supreme Court has held that "one of the principles ofnatural justice is that a person against whom an action isproposed to be taken has to be given an opportunity of hearing.This opportunity has to be an effective opportunity and not a merepretence. In departmental proceedings where charge-sheet is issuedand the documents which are proposed to be utilised against thatperson are indicated in the charge sheet but copies thereof arenot supplied to him in spite of his request, and he is, at thesame time, called upon to submit his reply, it cannot be said thatan effective opportunity to defend was provided to him.Preliminary inquiry which is conducted invariably on the back ofthe delinquent employee may, often, constitute the whole basis of https://hcservices.ecourts.gov.in/hcservices/ the charge-sheet. Before a person is, therefore, called upon tosubmit his reply to the charge sheet, he must, on a request madeby him in that behalf, be supplied the copies of the statements ofwitnesses recorded during the preliminary enquiry particularly ifthose witnesses are proposed to be examined at the departmentaltrial. Merely saying that the respondent could have inspected thedocuments at any time is not enough. He has to be informed thatthe documents, of which the copies were asked for by him may beinspected. The access to record must be assured to him. therespondent was not afforded an effective opportunity of hearing,particularly as the appellant failed to establish that non-supplyof the copies of statements recorded during preliminary enquiryhad not caused any prejudice to the respondent in defendinghimself.7.2. In MANAGING DIRECTOR, ECIL, HYDERABAD Vs. B.KARUNAKAR(1993(3) SLJ 193 (SC)), the Supreme Court has held that "Article311 (2) applies only to members of the civil services of the Unionor an all-India service or a civil service of a State or to theholders of the civil posts under the Union or a State. In thematter of all punishments both Government servants and others aregoverned by their service rules. Whenever, therefore, the servicerules contemplate an inquiry before a punishment is awarded, andwhen the Inquiry Officer is not the disciplinary authority thedelinquent employee will have the right to receive the InquiryOfficer's report notwithstanding the nature of the punishment.Since it is the right of the employee to have the report to defendhimself effectively, and he would not known in advance whether thereport is in his favour or against him, it will not be proper toconstrue his failure to ask for the report, as the waiver of hisright. Whether, therefore, the employee asks for the report ornot, the report has to be furnished to him.When the employee isdismissed or removed from service and the inquiry is set asidebecause the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while inother cases it may have made no difference to the ultimatepunishment awarded to him. Since to direct reinstatement of theemployee with back-wages in all cases is to reduce the rules ofjustice to a mechanical ritual. The theory of reasonableopportunity and the principles of natural justice have beenevolved to uphold the rule of law and to assist the individual tovindicate his just rights. They are not incantations to be invokednor rites to be performed on all and sundry occasions. Whether infact, prejudice has been caused to the employee or not on accountof the denial to him of the report, has to be considered on thefacts and circumstances of each case. Where, therefore, even afterthe furnishing of the report, no different consequence would havefollowed, it would be perversion of justice to permit the employeeto resume duty and to get all the consequential benefits. It https://hcservices.ecourts.gov.in/hcservices/ amounts to rewarding the dishonest and the guilty and thus tostretching the concept of justice to illogical and exasperatinglimits. It amounts to an "unnatural expansion of natural justice"which in itself is antithetical to justice.7.3. In AMARNATH CHOWDHURY Vs. BRAITHWAITE AND CO. LTD., ANDOTHERS ((2002) 2 SCC 290), the supreme Court has held as follows:"6. One of the principles of naturaljustice is that no person shall be a judge inhis own cause or the adjudicating authoritymust be impartial and must act without any kindof bias. The said rule against bias has itsorigin from the maxim known as nemo debet esseJudex in Propria Causa, which is based on theprinciple that justice not only be done butshould manifestly be seen to be done. Thiscould be possible only when a judge or anadjudicating authority decides the matterimpartially and without carrying any kind ofbias. Bias may be of different kind and form.It may be pecuniary, personal or there may bebias as to the subject-matter etc. In thepresent case, we are not concerned with any ofthe aforesaid forms of bias. What we areconcerned with in the present case is whetheran authority can sit in appeal against its ownorder passed in the capacity of DisciplinaryAuthority. In Financial Commissioner (Taxation)Punjab and Ors. v. Harbhajan Singh 1(1996)9 SCC 281 itwas held that the Settlement Officer has nojurisdiction to sit over the order passed byhim as an Appellate Authority. In the presentcase, the subject-matter of appeal before theBoard was whether the order of removal passedby the Disciplinary Authority was in conformitywith law. It is not disputed that Shri S.Krishnaswami, the then Chairman-cum-ManagingDirector of the Company acted as a DisciplinaryAuthority as well as an Appellate Authoritywhen he presided over and participated in thedeliberations of the meeting of the Board whiledeciding the appeal of the appellant. Such adual function is not permissible on account ofestablished rule against bias. In a situationwhere such a dual function is discharged by oneand the same authority, unless permitted by anact of legislation or statutory provision, thesame would be contrary to rule against bias. https://hcservices.ecourts.gov.in/hcservices/ Where an authority earlier had taken adecision, he is disqualified to sit in appealagainst his own decision, as he alreadyprejudged the matter otherwise such an appealwould be termed an appeal from Caesar to Caesarand filing of an appeal would be an exercise infutility. In that view of the matter, in thepresent case, fair play demanded that ShriKrishnaswami, the then Chairman-cum-ManagingDirector of the Company ought not to haveparticipated in the deliberations of themeeting of the Board when the Board heard anddecided the appeal of the appellant."7.4. In DIRECTOR (MARKETING) I.O.C. LTD., Vs. SANTOSH KUMAR(2006-II-LLJ-1043 (SC)) the Supreme Court has held that "a perusalof the order passed by the Appellate Authority would only revealthe total non-application of mind by the Appellate Authority. We,therefore, have no other option except to set-aside the orderpassed by the Disciplinary Authority and the Appellate Authorityand remit the matter for fresh disposal to the DisciplinaryAuthority. The Disciplinary Authority shall consider the detailedrepresentation made by the respondent and also consider thedetailed report of the Enquiry Officer and the records placedbefore him in its proper perspective and decide the matter afreshon merits."8. Per contra, the learned counsel appearing on behalf of therespondents has placed reliance on the following decisions:8.1. In CHANDRAMA TEWARI Vs. UNION OF INDIA (AIR 1988 SC117), the Supreme Court has held that it is now well settled thatif copies of relevant and material documents including thestatement of witnesses recorded in the preliminary enquiry orduring investigation are not supplied to the delinquent officerfacing the enquiry and if such documents are relied in holding thecharges framed against the officer, the enquiry would be vitiatedfor the violation of principles of natural justice. Similarly, ifthe statement of witnesses recorded during the investigation of acriminal case or in the preliminary enquiry is not supplied to thedelinquent officer that would amount to denial of opportunity ofeffective cross-examination. It is difficult to comprehendexhaustively the facts and circumstances which may lead toviolation of principles of natural justice or denial of reasonableopportunity of defence. This question must be determined on thefacts and circumstances of each case. While considering thisquestion it has to be borne in mind that a delinquent officer isentitled to have copies of material and relevant documents onlywhich may include the copy of statement of witnesses recorded https://hcservices.ecourts.gov.in/hcservices/ during the investigation or preliminary enquiry or the copy of anyother document which may have been relied in support of thecharges. If a document has no bearing on the charges or if it isnot relied by the enquiry officer to support the charges, or ifsuch document or material was not necessary for the cross-examination of witnesses during the enquiry, the officer cannotinsist upon the supply of copies of such documents, as the absenceof copy of such document will not prejudice the delinquentofficer. The decision of the question whether a document ismaterial or not will depend upon the facts and circumstances ofeach case. The documents not being relevant or material, non-supply of its copy did not amount to violation of the principlesof natural justice. No prejudice was caused to the delinquent incross-examining the concerned Police Officer."8.2. In STATE OF HARYANA AND ANOTHER Vs. RATTAN SINGH (1982-I-LLJ-46 (SC)), the Supreme Court has held as follows:"4. It is well settled that in a domesticenquiry the strict and sophisticated rules ofevidence under the Indian Evidence Act may notapply. Ail materials which are logicallyprobative for a prudent mind are permissible.There is no allergy to hearsay evidenceprovided it has reasonable nexus andcredibility. It is true that departmentalauthorities and administrative tribunals mustbe careful in evaluating such material andshould not glibly swallow what is strictlyspeaking not relevant under the IndianEvidence Act. For this proposition it is notnecessary to cite decisions nor text books,although we have been taken through case lawand other authorities by counsel on bothsides. The essence of a judicial approach isobjectivity, exclusion of extraneous materialsor considerations and observance of rules ofnatural justice. Of course, fairplay is basisand if perversity or arbitrariness, bias orsurrender of independence of judgment vitiatethe conclusions reached, such finding, eventhough of a domestic tribunal, cannot be heldgood. However, the Courts below misdirectedthemselves, perhaps, in insisting thatpassengers who had come in and gone out shouldbe chased and brought before the Tribunalbefore the valid finding could be recorded.The 'residium' rule to which counsel for therespondent referred, based upon certainpassengers from American jurisprudence does https://hcservices.ecourts.gov.in/hcservices/ not go to that extent nor does the passagefrom the Halsbury insist on such rigidrequirement. The simple point is, was theresome evidence or was there no evidence not inthe sense of the technical rules governingregular court proceedings but in a faircommonsense way as men of understanding andwordly wisdom will accept. Viewed in this way,sufficiency of evidence in proof of thefinding by a domestic tribunal is beyondscrutiny. Absence of any evidence in supportof a finding is certainty available for thecourt to look into because it amounts to anerror of law apparent on the record. We find,in this case, that the evidence of Chamanlal,Inspector of the flying Squad, is someevidence which has elevance to the chargelevelled against the respondent. Therefore, weare unable to hold that the order is invalidon that ground."8.3. In DISCIPLINARY AUTHORITY-CUM-REGIONAL MANAGER ANDOTHERS Vs. NIKUNJA BIHARI PATNAIK ((1996) 9 SCC 69), the SupremeCourt has held that "acting beyond one's authority is by itself abreach of discipline and a breach of Regulation 3. It constitutesmisconduct within the meaning of Regulation 24. No further proofof loss is really necessary though as a matter of fact, in theinstant case there are findings that several advances andoverdrawals allowed by the respondent beyond his authority havebecome sticky and irrecoverable. Just because, similar acts havefetched some profit they are no less blameworthy. It is wrong tocharacterise them as errors of judgment. It is not suggested thatthe respondent being a Class-I Officer was not aware of the limitsof his authority or of his powers. In spite of instructions by theRegional Office to stop such practice, the respondent continued toindulge in such acts. The Enquiry Officer has recorded a clearfinding that the respondent did flout the said instructions andhas thereby committed an act of disobedience of lawful orders.Similarly, in spite of reminders, the respondent did not submit"Control Returns" to the Regional Office. All this could not becharacterised as errors of judgment and not as misconduct asdefined by the Regulations." 8.4. In SUB-DIVISIONAL OFFICER, KONCH Vs. MAHARAJ SINGH(2003-III-LLJ-1080 (SC)), the Supreme Court had observed "bymaking the order under appeal, the High Court had exceeded itsjurisdiction under Article 226 of the Constitution of India, ininterfering with the findings arrived at by the enquiringauthority, by its reappreciation of the evidence. It pointed out https://hcservices.ecourts.gov.in/hcservices/ that the jurisdiction under that Article was only supervisory andnot appellate one."8.5. In STATE BANK OF INDIA Vs. TARUN KUMAR BANERJEE ANDOTHERS (2000-II-LLJ-1373 (SC)), the Supreme Court has held asfollows:"6. A customer of the Bank need not beinvolved in a domestic enquiry conducted; assuch a course would not be conducive to properbanker-customer relationship and, therefore,would not be in the interest of the Bank.Further, when money was secured a prudentbanker would deposit the same in the account ofthe customer complaining of loss of money and,therefore, non- production of money also wouldnot be of much materiality. When in the courseof the domestic enquiry no reliance was placedan the so-called confessional statement made bythe first respondent, then non-production ofthe same is also of no significance. Thus, inour opinion, these circumstances are irrelevantand the Tribunal could not have placed relianceon the same to reach the conclusion it did and,therefore, the learned Single Judge wasjustified in interferring with the same. In thewrit appeal the learned Judges of the DivisionBench reiterated the view expressed by theTribunal which we have found to be fallacious."9. The learned counsel appearing for the respondents hadsubmitted that the Disciplinary Authority, the first respondentherein, did not participate in the meeting of the Board, when thedecision was made to render the punishment of dismissal fromservice on the petitioner. There was sufficient proof, based onrecords and by the statements of witnesses, to show that thepetitioner had intentionally committed the irregularities with aview to commit loss and that the charges have been clearly provedleading to the disciplinary action against the petitionerdismissing him from service, which is the appropriate punishmentfor the serious irregularities committed.10. On analysing the rival contentions and based on a perusalof the records placed before this Court, it is clear that thecharges against the petitioner were serious in nature. Thecharges, which have been proved, involve breach of trust anddishonesty involving moral turpitude. The petitioner as theManager of the bank had been vested with the seriousresponsibility of safeguarding the assets of the bank. While so,it was inappropriate on his part to have committed breach of such https://hcservices.ecourts.gov.in/hcservices/ trust reposed on him by involving in acts of illegal gratificationand misappropriation of the assets of the bank. There is no doubtthat such acts of dishonesty and breach of trust should be putdown with an iron hand, especially, if it involves a person in theposition of the petitioner, being in-charge of a financialinstitution like the respondent bank. In such a case, no sympathycan be shown and no leniency in punishment can be recommended.This is the view that has emerged from the various decisionsrendered by the Supreme Court. The contentions raised on behalfof the petitioner that some of the procedural formalities have notbeen followed during the enquiry does not gather any support fromthe evidence available on record. On the other hand, therespondents have denied the allegations made by the petitioner andit has been emphasised by the respondents that all the necessaryprocedures were followed and the principles of natural justicewere fully adhered to. Even if it is assumed that some trivialformalities have not been followed during the process of enquiryand thereafter, unless the petitioner could show that substantialprejudice had been caused to him, this Court would be reluctant tointerfere. In such circumstances, the claims made by thepetitioner cannot be sustained. 11. In such view of the matter, this writ petition is liableto be dismissed. Therefore, the writ petition stands dismissed.No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1. The Chairman and Disciplinary Authority Pandyan Grama Bank, Administrative Office P.B.6, 71, Kandapuram Street, Virudhunagar – 626 001.2. The Board of Directors, Pandyan Grama Bank, Administrative Office P.B.6, 71, Kandapuram Street, Virudhunagar – 626 001. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Mr. N. G. R. Prasad, Advocate, SR No.5302+ 1 cc to Mr. W.M. Adbul Majeed, Advocate, SR No.53790LA(CO)SR/5.2.2007W.P.No.11041 of 1997