Mukesh Taneja v. The Dena Bank & Ors.

Judgment

3. Whether Reporters of local papers may be allowed to see the judgment ? To be referred to the reporter or not ? Whether the Judgment should be reported in the Digest ? R.P. NAGRATH,J. The petitioner has invoked the jurisdiction of this Court under Articles 226/227 of the Constitution of India to challenge the order dated

12.11.1991 ( Annexure P/17 ) passed by the disciplinary authority of the Dena Bank imposing two penalties, (i) reduction in basic pay by two stages with cumulative effect on charge No.1 and (ii) removal from service with immediate effect on charge No.2 and the order Annexure P/19 dated

15.2.1994 passed in appeal by the Appellate Authority dismissing his appeal against the order of punishment. CWP No.5926 of 1994 2

2. The petitioner joined as Agricultural Officer Scale I on

29.9.1980 and was confirmed on 1.10.1982. He was transferred to Jalandhar on 4.10.1980 and thereafter at Gurdaspur on 12.12.1985 where he remained till November,1987 and from there he was transferred to the branch of the Bank in Samana Bahu. The petitioner was promoted as Manager Scale II and posted at the Head-Office, Bombay where he joined on 16.1.1989. According to the petitioner he suffered a sudden pain in the abdomen and came on 21.1.1989 to Karnal, his home town. The version of the respondent-Bank is that the petitioner remained continuously absent with effect from 22.1.1989 and committed serious irregularities in recommending certain loan cases while he was posted as Agricultural Officer at Gurdaspur Branch of the Bank.

3. The petitioner was served with a charge sheet ( Annexure P/3) dated 20.8.1990 containing the following charges:

1. that while he was working as an Agricultural Officer at Gurdaspur Branch during the period from December,1985 to November,1987, he recommended for sanction and/or disbursement the loan amounts to 8 different persons mentioned in the charge sheet; It was stated that the following irregularities were found: a) he did not observe the norms i.e. spot verification of the land records so as to ascertain that the land belongs to the prospective borrowers; to counter check the existence and genuineness of the ownership/possession of land against which the bank was going to lend advance from the local villagers or from the Head of the CWP No.5926 of 1994 3 village ( Pradhan or Sarpanch); to interview the prospective borrowers to ascertain the veracity of their statements regarding ownership of land; expected generation of income from the bank's funds; borrower's repaying capacity before loan/advance is recommended for sanction/disbursement by an Agricultural Officer and carry out post-disbursement supervisions/follow up to ensure proper end use of loan. b) that he either in collusion with revenue officials/advocates or by himself, exposed the bank to financial risk/loss by giving false information based on fake documents in respect of the land etc. while recommending sanction/disbursement, as the land mortgaged to the bank in the above cases does not exit.

2. While working as Manager in Social Banking Department, Head Office, Bombay since 16.1.1989 he left his department on 21.1.1989 at around noon without prior permission of his superiors and had not been attending the office since then. Social Banking Department vide their letters dated 25.1.1989, 16.2.1989 and 21.2.1989 advised him to report for duties immediately. Being not satisfied with the medical certificate submitted by him, Social Banking Department further vide their letters dated 4.4.1989 and

2.5.1989 called upon him to furnish medical certificate from CWP No.5926 of 1994 4 Chief Officer of Government Hospital. Moreover, Personnel Department vide their letter dated 18.5.1989 also advised him to submit medical certificates of Government Hospital and to report for duties immediately. Again on 15.5.1990 Personnel Departmental instructed him to report for duty immediately. Inspite of the aforesaid letters he failed to resume his duties and to submit the necessary Government Hospital's certificate. He has, thus, remained on unauthorized absence from 23.1.1989 thereby affecting the working of the department.

3. His above referred act(s) if proved will constitute the following act(s) of misconduct. (a) Lack of honesty/integrity/diligence in discharge of his duties involving or likely to involve the bank into financial loss/risk; (b) Committing act(s) prejudicial to the interest of the bank's; and/or ( c ) Violation of Bank's rules/procedures resulting into or likely to result into heavy financial loss/risk; and/or (d) Act(s) unbecoming of a bank officer. (4) The above act(s) of misconduct proved against him shall reflect contravention of Regulation 3(1) and 3(3) read with Regulation 24 of the Dena Bank Officer Employee's ( Conduct) Regulation 1976 punishable under Dena Bank Officer Employee's ( Discipline & Appeal) Regulations, 1976.

4. A corrigendum dated 24.10.1990 ( Annexure P/6) was issued and instead of 8 loanees the charge sheet is now confined to the irregularities committed in the recommendation in respect of three loanees namely R.S.Dhillon, Mukhtiar Singh and Balwinder Singh for whom the CWP No.5926 of 1994 5 loan amounts were sanctioned for Rs.70,000/-, 71,000/- and Rs.30,000/- respectively.

5. The departmental inquiry was thereafter held which

commenced on 26.12.1990. Mr. Ranbir Singh co-employee represented the petitioner in the inquiry proceedings held in New Delhi who lateron expressed his inability to represent the petitioner for the rest of the inquiry vide communication Annexure P/7 dated 7.3.1991. Mr.Ranbir Singh informed the petitioner that he was not able to concentrate to defend the charges mentioned in the charge sheet issued to the petitioner. Part of the inquiry proceedings pertaining to the absence period were held at Bombay and on the other charge at New Delhi. In the inquiry proceedings at Bombay, the petitioner was represented by S.G. Patankar, defence representative who in fact wanted to know the status of allowing the petitioner to resume his duties at Bombay but the Enquiry Officer expressed his inability as it was not within his purview and advised the petitioner to approach appropriate authority of the Bank to join his duties.

6. While the further inquiry was being held at Delhi, the petitioner wanted Mr.Patankar to be his defence representative but the Enquiry Officer did not allow the request and insisted that Ranbir Singh defence representative may defend him in the inquiry at Delhi as he had been so doing earlier also but Ranbir Singh had already expressed his inability, as per document Annexure P/7 dated 7.3.1991.

7. The inquiry report Annexure P/15 dated 19.7.1991 was submitted by the Inquiry Officer holding the charges to be proved. It is not disputed that the petitioner was served with a copy of the inquiry report and he submitted his representation Annexure P/16. Thereafter the punishing CWP No.5926 of 1994 6 authority passed the impugned order Annexure P/17.

8. The petitioner's version is that he had left Bombay on

21.8.1989 by night train for Karnal and posted a letter from the Railway Station to the Head Office intimating that he suffered a sudden pain in the abdomen and that he had suffered a similar pain earlier while he was posted at Samana Bahu Branch and remained on one month leave. He also sent letter dated 10.2.1989 to the respondent-Bank with a medical certificate. He was declared medically fit in the first week of April,1990 and sent letter requesting the department to inform him the formalities which are required to be fulfilled for the purpose of joining his duties. The petitioner received letter Annexure P/4 dated 24.10.1990 from respondent No.2 informing that he should contact the Social Banking Branch, Head Office, Bombay where he was then posted, in response to his letter with regard to the formalities to be completed for joining duty. Despite making the communication he did not send any response.

9. Respondents filed written statement to oppose the claim of the petitioner.

10. Learned Counsel for the petitioner and respondents have been heard and I have thoughtfully considered their contentions.

11. Petitioner's Counsel challenge to the impugned orders is mainly on the following grounds: (i) that the principles of natural justice have been violated inter- alia on the following grounds: (a) the subsistence allowance was not paid which was mandatory for meeting the requirements of principle of natural justice. Even the TA Bill for CWP No.5926 of 1994 7 attending the inquiry submitted to the head office vide Annexure P/13 dated 23.3.1991 was not sanctioned; (b) he was not permitted to join his duties despite his repeated requests; (c ) that he was not permitted to take assistance of the co- employee of his choice. (ii) the Appellate Authority has not afforded him personal hearing. Even the orders passed by the Disciplinary Authority and Appellate Authority are non-speaking inasmuch as the detailed reasons for dealing with the petitioner's contentions have not been given.

12. I am of the considered view that the question of payment of subsistence allowance did not arise in this case as the petitioner continued to remain absent with effect from 21.1.1989, till the time the inquiry was concluded. It is established principle of law that unless the employee attends his duties, the pay for the said period cannot be disbursed unless the said period is got regularised. Had the petitioner joined duties at the place of his posting and submitted joining report he could be considered on duty and may be that he could be suspended during pendency of the disciplinary proceedings thereby entitling him to the subsistence allowance.

13. Petitioner's Counsel referred to the Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations 1977 ( for brevity “Regulations of 1977”) contending that these were mutatis mutandis applicable to the employees of the Dena Bank. Regulation 12 deals with the suspension of the Bank employee and Clause (1) says that an officer employee may be placed under suspension by the competent authority; (a) where a disciplinary proceeding against him is contemplated or is pending; CWP No.5926 of 1994 8 or (b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial. Regulation 13 says that no leave shall be granted to an officer employee under suspension. The entitlement of subsistence allowance is provided in regulation 14 and Clause (1) of this regulation says that an officer employee who is placed under suspension shall during the period of such suspension and subject to sub-regulations (2) to (4) be entitled to receive payment from the bank by way of subsistence allowance on the scale given in the said clauses.

14. The petitioner's Counsel referred to State Government of M.P. & others V. Shankarlal 2008(2) SCC 55 the ratio of which rather supports the respondent-Bank. In that case out of 18 dates fixed for hearing in the inquiry proceedings the employee took part only on five dates on which some of the witnesses were examined and cross-examined. On one date he was present but did not take part in the hearing in the said proceedings. In the aforementioned situation, exparte departmental proceeding was held wherein he was found guilty of the charges levelled against him. One of the grounds raised by the employee was that the subsistence allowance was not paid to him for long period from 4.9.1982 to

13.11.1984 and that amounts to failure of the principles of natural justice. The High Court had set aside the punishment order on the ground that non- payment of subsistence allowance amounted to violation of principles of natural justice. The Hon'ble Supreme Court set aside the judgment of the High Court and remitted the matter to the High Court for consideration thereof afresh. It was observed that the High Court may look into the record so as to enable it to arrive at a decision whether non-payment of subsistence allowance caused any prejudice to the respondent in the event it CWP No.5926 of 1994 9 intends to interfere with the finding of fact arrived at by the Tribunal that the respondent himself was responsible therefor.

15. The allegation of the petitioner is that in the first week of April,1990, he was declared medically fit by his doctor at Karnal. He immediately sent a registered letter dated 12.4.1990 to Assistant General Manager(Personnel) of the Head Office showing his willingness to join duty and seeking information about the formalities to be completed in this regard. He also sent a reminder dated 5.5.1990, but to his surprise a charge sheet dated 20.8.1990 was received by him.

16. The above is strange type of plea because the petitioner could straight-way go to the head office and submit joining report because he was not suspended by the department and despatching letter from his home town to the Head Office would show his reluctance to join duty at Bombay. It has been observed by the Enquiry Officer in his report that the petitioner was given opportunity to resume his duties even when he attended the inquiry proceedings at Bombay which he flouted on various grounds. In the view of Enquiry Officer, the petitioner could have resumed duties atleast at that time to substantiate his arguments that he was willing to resume his duties.

17. The respondents in the written statement have pleaded that the petitioner was rather advised vide letter Annexure R/6 dated 24.4.1990 to meet Asstt. General Manager (Personal) on any working day and join duty immediately but he did not report to the authority concerned. Even vide earlier communications dated 25.1.1989( Annexure R/1), 16.2.1989 ( Annexure P/2 ), 18.5.1989 (Annexure R/5) and then dated 15.5.1990 (Annexure R/7) he had been advised to report for duty. In Annexure R/5 it CWP No.5926 of 1994 10 was stated that the medical certificate initially sent by the petitioner with his letter dated 10.2.1989 was not accepted by the Department and he was advised to get himself examined from Government hospital and to submit medical report.

18. Inquiry report Annexure P/15 would show that the petitioner participated in the inquiry on all the dates except in the proceedings held at Bombay where the defence representative walked out under protest. The petitioner kept on insisting to know the status of his joining duties. The defence representative chose to walk out in protest remarking that the inquiring authority may hold the inquiry exparte. It was surely not even within the purview of the enquiring authority to help the petitioner for joining his duty for which the petitioner was supposed to contact his head- office. Thus the rest of the inquiry with effect from 19.3.1991 onwards was again fixed to be held in Regional Office at New Delhi where the petitioner insisted upon taking assistance of Mr.Patankar. The Enquiry Officer informed the petitioner that the inquiry proceedings were almost complete and only one witness was to be examined from defence side for which he may take the assistance of Ranbir Singh, earlier representing him.

19. The petitioner in fact had not taken the plea of his financial crunch in attending inquiry either before the Enquiry Officer or the Appellate Authority. He attended the inquiry proceedings at New Delhi for nine dates and for three dates at Bombay. It was only by way of protest by the defence representative in walking out of the proceedings that exparte evidence was recorded at Bombay relating to charge of continuous absence from duty, but petitioner remained present on the dates of inquiry at Bombay. It has been observed by the Appellate Authority that the inquiry CWP No.5926 of 1994 11 was fixed to be held at Bombay on this charge at the request of the petitioner. So raising this ground for the first time in the instant writ petition is neither justified nor can be accepted particularly when no prejudice on this account has been shown. For the similar reason the non-payment of the TA Bill submitted almost at the end of the inquiry proceedings will not help the petitioner.

20. In Indra Bhanu Gaur V. Committee, Management of M.M.Degree College & others 2003(4) SCT 836 Hon'ble Supreme Court held as under: “.........We find that there was total lack of cooperation from the appellant as the factual background high-lighted above would go to show. Ample opportunity was granted to the appellant to place his case. He did not choose to do so. It is only a person who was ready and willing to avail of opportunity given can make a grievance about denial of any opportunity and not a person like the appellant who despite repeated opportunities given and indulgence shown exhibited defiance and total indifference in extending cooperation. Therefore, on that score the appellant cannot have any grievance. So far as the effect of not paying the subsistence allowance is concerned, before the authorities no stand was taken that because of non-payment of subsistence allowance, he was not in a position to participate in the proceedings, or that any other prejudice in effectively defending the proceedings was caused to him. The appellant could not plead or substantiate also that the non-payment was either deliberate CWP No.5926 of 1994 12 or to spite him and not due to his own fault. It is ultimately a question of prejudice. Unless prejudice is shown and established, mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiate the proceedings in every case. It has to be specifically pleaded and established as to in what way the affected employee is handicapped because of non-receipt of subsistence allowance. Unless that is done, it cannot be held as absolute proposal in law that non-payment of subsistence allowance amounts to denial of opportunity and vitiates departmental proceedings.”

21. In U.P. State Textile Corpn. Ltd. V. P.C.Chaturvedi and others 2005(8) SCC 211 it was held as under : “14. It is to be noted that no grievance was made at any time during the pendency of the proceedings that Respondent 1 employee was being prejudiced on account of non-payment of subsistence allowance. In fact, for the first time the request was made for payment of subsistence allowance on 5.1.1993 i.e. after completion of the enquiry....”

22. A perusal of the inquiry report Annexure P/15 would show that the entire procedure as provided under the Rules was meticulously followed and findings on the article of charges based on detailed reasons were given. The Enquiry Officer has also recorded in the report that the Presenting Officer submitted written arguments copy of which was also sent to the petitioner. The petitioner wrote a letter dated 21.6.1991 that since he was not allowed to be defended as per his choice, he does not want to submit any written arguments and that the Enquiry Officer was prejudicial and pre- CWP No.5926 of 1994 13 determined in his decision. The inquiry report shows that the petitioner was also allowed to have inspection of the record.

23. All the contentions raised by the appellant were dealt with elaborately by the Appellate Authority in its order Annexure P/19 and this order could not be successfully assailed on the ground that it was not reasoned or speaking order. It has been observed in the appellate order as under : “..... it is evident from the various exhibits that the bank had never restrained the appellant from reporting for duties but on the contrary, the appellant had left the department on 21.1.1989 without the permission of his superiors and thereafter remained absent unauthorisedly........” The facts leading to the walk out by Mr. Patankar have also been discussed in detail. It also appeared to the appellate authority from the sequence of events in respect of unauthorized absence of the appellant that the appellant's intention was clear to dodge his transfer from New Delhi Region to Bombay on one pretext or the other. This it has gathered from the fact that after having served the Bank for 8 years in New Delhi Region, on his promotion to Scale II in October,1988 and transfer to Bombay, the appellant only served at Bombay for a week after his reporting and thereafter on some pretext or the other remained unauthorisedly away from work in spite of repeated instructions to join duty at Bombay. The plea of the petitioner was that he was suffering from jaundice and gastric trouble. It was observed that in normal circumstances, such illness will not require bed rest for over a year and a half as was in the case of the appellant etc. etc.

24. The law on the subject is quite well settled. In Apparel Export CWP No.5926 of 1994 14 Promotion Council V. A.K.Chopra 1991(1) RSJ 684 the Hon'ble Supreme Court held that once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High court. The reliance on earlier authorities was placed. These are Union of India V. Sardar Bahadur (1972)4 SCC 618 wherein it was held as under: “Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independing finding on the materials. If the Inquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. “ Other judgment relied upon is Union of India V.Parma Nand 1989(2) RSJ 1 wherein Hon'ble Supreme Court opined as under : “We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings on the Inquiry Officer or Competent Authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the poser to impose penalty on a delinquent officer is conferred on the CWP No.5926 of 1994 15 competent authority either by an Act of Legislature or Rules made under the proviso to Article 309 of the Constitution. If there has been an Inquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter of exclusively within the jurisdiction of the competent authority. If the penalty can lawfullly be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority.” Y.P. Sarabhai V. Union of India and another 2006(3) RSJ 386 was a case of bank employee, wherein Hon'ble Supreme Court held that the appellant was not entitled to any relief in these proceedings. The appellant remained absent from his duty for a very long time i.e. from 3.6.1997 to

23.11.1997 without any reasonable cause and justification in spite of the respondent's requests to join the duty and inspite of the respondent's granting him further time to join the duty. The above principle is squarely applied to the case in hand.

25. In Govt. of A.P. and others V. Mohd.Nasrullah Khan 2006 (2) RSJ 14, Hon'ble Supreme Court held that by now it is a well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by re-appreciating the evidence as an Appellate Authority. CWP No.5926 of 1994 16

26. It was also submitted that the order of punishing authority is non-speaking and not based on reasons. To rebut this contention reliance is placed on National Fertilizers Ltd. and another V. P.K. Khanna AIR 2005 Supreme Court 3742 wherein it was held that the concurrence of the Disciplinary Authority with the reasoning and conclusion of the Inquiry Officer means that the Disciplinary Authority has adopted the conclusion and the basis of the conclusion as its own. It is not necessary for the Disciplinary Authority to restate the reasoning.

27. The present is a case where undisputedly the petitioner was supplied the copy of the inquiry report and he filed representation against the report of the inquiry. The Disciplinary Authority considered the representation dated 26.1.1991 of the petitioner and the report of the Inquiry Officer and agreed with those findings.

28. Another argument put forth with vehemence was that the petitioner was not afforded personal hearing by the appellate authority which vitiates the proceedings. Regulation 17 of the Regulation of 1977 referred to the appeal and there is no clause contained in this regulation requiring the grant of personal hearing. Reliance was placed upon Ram Niwas Bansal V. State Bank of Patiala 1998(2) PLR 768, wherein it was held that adequate opportunity in appeal includes personal hearing.

29. The law has been well settled by the Hon'ble Supreme Court that there is no requirement of personal hearing for disposal of the departmental appeal. In Oriental Bank of Commerce and another v. R.K. Uppal 2012(1) SCT 83 the contention raised before Supreme court was whether in terms of Regulation 17 of the Regulations of 1977, the appellate authority was required to accord personal hearing to the respondent in a CWP No.5926 of 1994 17 departmental appeal. In that case the delinquent official had requested for grant of personal hearing in the appeal preferred by him. Hon'ble Supreme Court held in that case as under : “It is now fairly well settled that the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth. In the words of Ramaswami,J. Union of India & Anr.V.P.K.Roy and Ors., AIR 1969 SC 850: LNIND 1967 SC 320: 1970-1-LLJ-633 the extent and application of the doctrine of natural justice cannot be imprisoned within the straitjacket of a rigid formula. The application of the doctrine depends upon the nature of jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case.” The question was whether the right of personal hearing to the appellant implicit in the provisions. It was held in the negative. Hon'ble Supreme Court held that in the absence of personal hearing to the appellant it cannot be said that the very right of appeal is defeated. The personal hearing may not be required where the appellate authority on consideration of the entire material placed before it, confirms, reduces or sets aside the order appealed against. Regulation 17 of the Oriental Bank of Commerce Officer Employees (Discipline and Appeal) Regulations,1982 which is similar to the Regulation 17 of the Regulations of 1977 referred to by the petitioner's CWP No.5926 of 1994 18 Counsel do not require that in all situations personal hearing must be afforded to the delinquent by the appellate authority. The Hon'ble Supreme Court held that the view taken by the High Court in Ram Niwas Bansal's case (Supra) is too expansive and wide and cannot be held to be laying down correct.

30. Consequently, there is no merit in the petition and the same is dismissed November 29,2012 ( R.P. NAGRATH ) JUDGE