D. Kannan v. Central Bank of India Central Office & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 30..6..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 13408 of 1998D. Kannan.. Petitionervs.1.Central Bank of IndiaCentral OfficeRep. by the Chairman and Managing DirectorChander MukhiNariman Point, Bombay2.The Appellate AuthorityAssistant General ManagerZonal Office48/49 Montieth Road, Chennai – 83.The Disciplinary Authority /Regional ManagerRegional OfficeRaheja Complex, 3rd Floor834 Anna Salai, Chennai .. Respondents Petition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorarified Mandamus calling forthe records relating to the order dated 22.11.1997 inRO:PRS:DAD:97-98:320 by the Disciplinary Authority / RegionalOfficer, Central Officer, the third respondent herein as confirmedby the order dated 08.5.1998 of the Appellate Authority / AssistantGeneral Manager, Zonal Office, Chennai, the second respondentherein in his RO:PRS:DAD:98-99:13 quash the orders passed thereinand direct the third respondent to proceed on the basis of thefindings dated 31.3.1992 rendered by the first Enquiry Officer Mr.S. Srinivasan.For Petitioner: Mr. G. Venkataraman for M/s Aiyar & Dolia For Respondents: Mr. T.M. HariharanO R D E RHeard the arguments of the learned counsel for the parties andhave perused the records. https://hcservices.ecourts.gov.in/hcservices/

2.The petitioner was working as a Daftary in the firstrespondent Bank at its Branch at Mogappair. In this writpetition, he is challenging the order dated 22.11.1997 passed bythe third respondent disciplinary authority and confirmed by theorder dated 08.5.1998 passed by the second respondent appellateauthority. A further direction was also sought for the firstrespondent to proceed to conclude the enquiry on the basis of thefindings dated 31.3.1992.3.It is seen from the records that the petitioner wascharge-sheeted by a charge-memo dated 04.10.1991 issued as perParagraph 19.5 (j) of the first Bipartite settlement. An enquirywas conducted against the petitioner by the Assistant BranchManager, Anna Salai. In that enquiry, four witnesses wereexamined and several documents were also filed. On the basis ofthe materials placed, the Enquiry Officer rendered the followingfinding:-"In view of the various details and reasons statedabove and also after carefully going through theenquiry proceedings, the Enquiry Officer is of theopinion that the charge against Mr. D. Kannan hasnot been proved."4.Instead of taking a decision on the said report one wayor the other, the disciplinary authority (third respondent), by hisorder dated 22.6.1993, passed the following order:-"I have gone through the records of the enquiry heldin pursuant to the Charge-sheet RO:PRS:DAD:91-92:349dated 4.10.1991 issued to Mr. D. Kannan, Watchmancum Peon (now Daftary) presently working atMogappair Branch. Since the Enquiry Officer hasnot gone into all aspect of charges levelled againstMr. D. Kannan, I order for further enquiry on thesame charge sheet dated 4.10.1991 is adopted ..."5.The petitioner filed a writ petition against this orderbefore this Court in W.P. No. 1603 of 1993 challenging theinitiation of fresh proceedings and the same was dismissed by anorder dated 27.9.1993. As against the said order, a writ appealwas filed in W.A. No. 979 of 1993. The said writ appeal wasdisposed of by a Division Bench vide order dated 09.4.1997. Thequestion which arose before the Division Bench was that in theguise of ordering a further enquiry, the respondent Bank wasintending to conduct a fresh enquiry. 6.This contention was rejected by the Division Bench and inparagraph 2 of the order, it was observed as follows:-"We are unable to countenance the said contention.A perusal of the impugned order, in the writpetition dated 22.6.1993 of the DisciplinaryAuthority will go to show that what is ordered is https://hcservices.ecourts.gov.in/hcservices/ only a further enquiry on the same charge-sheet andnot a fresh enquiry as argued by the learned counselfor the Appellant. The Appellant, in ouropinion, is not prejudiced in any manner because ofthe further enquiry now ordered by the Disciplinaryauthority. The appellant will always havesufficient opportunity to question the correctnessof the second report, if any. Since it is only afurther enquiry, the report already available onrecords submitted by the Enquiry Officer can also berelied on by the Appellant at the time of submittinghis further explanation to the Enquiry Report. Thisapart, the first enquiry report has not beensuperseded at all, and the same forms part of therecords. In this view of the matter, we are notinclined to accept both the contentions of thelearned counsel for the appellant."7.After taking advantage of the above said order of theDivision Bench, the first respondent conducted a fresh enquiry inwhich the very same four witnesses examined in the originalenquiry, were examined all over again. Apart from those fourwitnesses, one Scientific Officer from the Forensic ScienceDepartment was also examined as a fifth witness.8.On the basis of the fresh evidence, the Enquiry Officerfound the petitioner guilty by his report dated 15.9.1997. Afterobtaining his objections, he was dismissed from service and hisfurther appeal to the appellate authority was also negatived andthus, the petitioner is before this Court.9.Mr. G. Venkataraman, learned counsel for the petitioner,appearing for M/s Aiyar and Dolia, learned counsel for thepetitioner submitted that the first respondent Bank had really madeit to appear before the Division Bench and that it was onlyconducting a further enquiry and not a fresh enquiry. It was inthat view, the earlier Division Bench dismissed the writ appealgiving liberty to the petitioner to challenge if any adverse orderis passed. Therefore, if this Court comes to the conclusion thatit was a fresh enquiry and not a further enquiry, then theproceedings initiated pursuant to the order dated 22.6.1993 must be eschewed from record and the Bank must be allowedto proceed to pass orders on the basis of the earlier findingsdated 31.3.1992.10.Mr. T.M. Hariharan, learned counsel for the respondentBank submitted that it is not a fresh enquiry but only a furtherenquriy. He also submitted that they had examined a ForensicExpert as the fifth witness and that will show that it was only afurther enquiry. But when questioned as to why M.W.2 to M.W.5 wereexamined all over again, the learned counsel was not able to giveany satisfactory explanation. https://hcservices.ecourts.gov.in/hcservices/

11.In this context, it is necessary to refer to the judgmentof a Constitution Bench of the Supreme Court in K.R. Deb v.Collector of Central Excise, Shillong [1971 (2) SCC 102] whereinthe Supreme Court dealt with the scope of Rule 15(1) of the CCS(CCA) Rules. The relevant passages found in paragraphs 12 to 14of the said judgment may be usefully extracted below:-Para 12:"It seems to us that Rule 15, on the face of it,really provides for one inquiry but it may bepossible if in a particular case there has been noproper enquiry because some serious defect has creptinto the inquiry or some important witnesses werenot available at the time of the inquiry or were notexamined for some other reason, the DisciplinaryAuthority may ask the Inquiry Officer to recordfurther evidence. But there is no provision in Rule15 for completely setting aside previous inquirieson the ground that the report of the InquiringOfficer or Officers does not appeal to theDisciplinary Authority. The Disciplinary Authorityhas enough powers to reconsider the evidence itselfand come to its own conclusion under Rule 9.Para 13:In our view the rules do not contemplate an actionsuch as was taken by the Collector on February 13,1962. It seems to us that the Collector, instead oftaking responsibility himself, was determined to getsome officer to report against the appellant. Theprocedure adopted was not only not warranted by therules but was harassing to the appellant. Para 14:Before the Judicial Commissioner the point was putslightly differently and it was urged that theproceedings showed that the Disciplinary Authorityhad made up its mind to dismiss the appellant. TheJudicial Commissioner held that on the facts itcould not be said that the Disciplinary Authoritywas prejudiced against the appellant. But it seemsto us that on the material on record a suspiciondoes arise that the Collector was determined to getsome Inquiry Officer to report against theappellant."12.Subsequently, this judgment came to be considered by atwo Judges' Bench of the Supreme Court in Union of India v. P.Thayagarajan [1999 (1) SCC 733] and after referring to K.R.Deb'scase (cited supra), it was distinguished and the following passagefound in paragraph 8 of the said judgment may be usefullyextracted:-Para 8:"A careful reading of this passage will make itclear that this Court notices that if in https://hcservices.ecourts.gov.in/hcservices/ a particular case where there has been no properenquiry because of some serious defect having creptinto the enquiry or some important witnesses werenot available at the time of the enquiry or were notexamined, the disciplinary authority may ask theenquiry officer to record further evidence but thatprovision would not enable the disciplinaryauthority to set aside the previous enquiries on theground that the report of the enquiry officer doesnot appeal to the disciplinary authority. In thepresent case, the basis upon which the disciplinaryauthority set aside the enquiry is that theprocedure adopted by the enquiry officer wascontrary to the relevant rules and affects therights of the parties and not that the report doesnot appeal to him. When important evidence, eitherto be relied upon by the Department or by thedelinquent official, is shut out, this would notresult in any advancement of any justice but on theother hand, result in a miscarriage thereof.Therefore we are of the view that Rule 27(c) enablesthe disciplinary authority to record his findings onthe report and to pass an appropriate orderincluding ordering a de novo enquiry in a case ofthe present nature."[Emphasis added]13.Without reference to these decisions, the Supreme Courtonce again considered a similar issue in Union of India v. K.D.Pandey [2002 (10 SCC 471]. Paragraphs 3 to 5 of the said judgmentmay be extracted below:-Para 3:"The proceedings were initiated against Respondent 1in respect of six charges. The inquiry authority inthe report made, held that none of the charges stoodproved. Thereafter, the Railway Board in exercise ofpowers under Rule 25 of the Railway Servants(Discipline and Appeal) Rules, 1968 examined thematter and found that four of the six charges couldbe substantially proved beyond doubt with theavailable documentary evidence and, thereafter,remitted the matter for further inquiry ascontemplated under Rule 25(1)(c) of the Rules.Para 4:On remit the inquiry officer made a report findingRespondent 1 guilty of four charges. Based on thatreport, the Railway Board dismissed Respondent 1,which was challenged in the dispute raised by him.The Tribunal as well as the High Court are of theview that on the same material a fresh opinion hasbeen furnished and it was not a case of furtherinquiry. Indeed, it was not noticed by thedisciplinary authority that the inquiry held earlier https://hcservices.ecourts.gov.in/hcservices/ was bad or that the management or the establishmentdid not have the proper opportunity to lead evidenceor the findings were perverse. In the absence of thesame, it was held that there was no justification onthe part of the disciplinary authority to commencefresh inquiry on the same set of charges.Para 5:Learned counsel for the appellant contended that inthis case the Board had examined the material onrecord and come to the conclusion that four of thesix charges could be proved on the availablematerial, which had not been properly examined inthe earlier inquiry. In fact from the order made bythe Railway Board as well as from that part of thefile where the inquiry report made earlier isdiscussed, it is clear that specific findings havebeen given in respect of each of the charges afterdiscussing the matter and, if that is so, we fail tounderstand as to how there could have been a remitto the inquiry authority for further inquiry. Indeedthis resulted in second inquiry and not in a furtherinquiry on the same set of charges and the materialon record. If this process is allowed the inquiriescan go on perpetually until the view of the inquiryauthority is in accord with that of the disciplinaryauthority and it would be abuse of the process oflaw. In that view of the matter we think that theorder made by the High Court affirming the order ofthe Tribunal is just and proper and, therefore, wedecline to interfere with the same. The appeal isdismissed accordingly." 14.The Supreme Court further considered K.R. Deb's case(cited supra) and relied on the same in Kanailal Bera v. Unionof India [2007 (11) SCC 517]. The following passage found inparagraph 6 may be usefully extracted below:-Para 6:"The question as to whether a punishment ofconfinement to Civil Lines could have been directedor not should not detain us as we agree with thecontention raised by learned counsel for theappellant that the purported order dated 5.4.1995 ofthe disciplinary authority was unsustainable in law.Rule 27 of the Central Reserve Police Force Rules1955, inter alia, lays down the procedure forconducting a departmental inquiry. Once adisciplinary proceeding has been initiated, the samemust be brought to its logical end meaning thereby afinding is required to be arrived at as to whetherthe delinquent officer is guilty of charges levelledagainst him or not. In a given situation furtherevidences may be directed to be adduced but the samewould not mean that despite holding a delinquentofficer to be partially guilty of the charges https://hcservices.ecourts.gov.in/hcservices/ levelled against him another inquiry would bedirected to be initiated on the self same chargeswhich could not be proved in the first inquiry."15.Therefore, in the light of the above binding legalprecedents, the exercise carried on by the respondent Bank was notonly authorised by the Bipartite Settlement but also contrary tothe binding precedents laid down by the supreme Court.16.Though an attempt is made by T.M. Hariharan stating thatthe issue has been concluded by the earlier order of the DivisionBench between the same parties, it must be understood that at thetime of delivering judgment, the Division Bench only considered thestatement given by the Respondent Bank and on that premise, it cameto the conclusion that what was going to be done was only a furtherenquiry and not a fresh enquiry. But the Division Bench has givenliberty to the petitioner to challenge any resultant order. 17.Now that the completed proceedings were placed beforethis Court, it has become clear that in the guise of conducting afurther enquiry, the respondent Bank had gone ahead with the freshenquiry contrary to the law laid down by the Supreme Court. Ifthe intention of the respondent Bank was only to examine a ForensicExpert who was not available at the time of the original enquiry,they could have very well informed this Court at an earlier pointof time. They had not only to examine one additional witness, butalso re-examined all the original four witnesses which is notpermissible in law. Therefore, they cannot take undue advantageof the earlier Division Bench's order. 18.In the light of the above, this Court has no hesitationto set aside the orders impugned in this writ petition. Hence, thewrit petition will stand allowed with costs. The order ofdismissal made against the petitioner will stand set aside. Theenquiry report dated 31.3.1992 will stand restored on the file ofthe second respondent. It is open to the second respondent toproceed from thereafter in the manner known to law. Thisexercise shall be done within a period of three months from thedate of receipt of a copy of this order. The respondent Bank isdirected to pay cost of Rs.5000/- to the petitioner.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ GriTo1. The Chairman and Managing Director, Central Bank of India, Central Office, Chander Mukhi, Nariman Point, Bombay.2. The Appellate Authority, Assistant General Manager, Zonal Office, 48/49, Montieth Road, Chennai – 8.3.The Disciplinary Authority/Regional Manager,Regional Office, Raheja Complex, 3rd Floor, 834, Anna Salai, Chennai.+ 1 CC To Mr.Aiyar and Dolia, Advocate SR NO.33559+ 1 CC To Mr.T.M.Mariharan, Advocate SR NO.33511 W.P. No. 13408 of 1998SS(CO)SRA(08/07)