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LPA/369/1997 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 369 of 1997
In
SPECIAL
CIVIL APPLICATION No. 3769 of 1987
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
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 ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
DILIP
KANTILAL SHAH - Appellant
Versus
UNITED
BANK OF INDIA & 1 - Respondents
=========================================================
Appearance :
MR
MURLI DEVNANI FOR MR YOGESH S LAKHANI
for Appellant
MR BHARAT
JANI for Respondent: 1,
MR RASHEED QURESHI for Respondents : 1 -
2.
MR MOHSIN M PETIWALA for Respondents : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 12/07/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
Heard
learned advocate for the parties.
The
appellant by way of this Letters Patent Appeal under Clause 15 of
the Letters Patent has approached this Court challenging the
judgment and order dated 3.3.1997 passed by learned Single Judge in
Special Civil Application No. 3769 of 1987, whereby, the learned
Single Judge has rejected the Special Civil Application preferred by
the appellant-petitioner.
The
appellant- original petitioner, an Officer of the United Bank
of India filed aforesaid Special Civil Application challenging the
order dated 29th December, 1986, of the Assistant General Manager
(Personnel), Disciplinary authority, under which he was ordered to
be dismissed from the services on a misconduct which was found
proved against him in an inquiry held. The petitioner has also
challenged the order dated 19th June, 1987, of the appellate
authority under which the appeal filed by him against the order of
dismissal has also been dismissed.
The
petitioner was served with a charge-sheet vide memo dated 15th
November, 1982 of the disciplinary authority. As many as eight
charges were there against the petitioner. He was served with
another charge-sheet vide memo dated 4th July, 1983 of
the disciplinary authority under which there were as many as six
charges. The charges against the petitioner are of misappropriation
of the Bank fund for his own personal gains and purposes. The
parties are in agreement that a joint inquiry has been held on
both the charge-sheets given to the petitioner. However, the
inquiry officer has not given any report on the charges which were
there against the petitioner under the second charge-sheet. The
Inquiry Officer found that the charges No.1, 2, 5 and 8 of the
first charge-sheet proved against the petitioner. The charges No.6
and 7 were found not proved. The disciplinary authority after
considering the charges, the finding of the Inquiry Officer and the
evidence, both oral and documentary, produced on the record, under
its order dated 20th December, 1986, the penalty of
dismissal was given to the petitioner. The petitioner filed an
appeal against aforesaid order with the appellate authority and that
appeal came to be dismissed vide order dated 19th June, 1987.
Thereafter, the petitioner has preferred Special Civil Application
before this court.
The
learned Single Judge after considering the rival contentions of the
parties, held that learned counsel for the petitioner is unable to
cite any provision from the Regulations whereunder the assistance of
lawyer as well as personal hearing in the appeal was to be given to
the appellant. Under Regulation 17 of the Regulations there is no
provision that the appellant should be given an opportunity of
personal hearing. Only representation has to be filed and it is to
be taken into consideration while passing the final order. The
petitioner has not claimed any assistance of a lawyer during the
inquiry, but this prayer, as stated earlier, has been made by him in
the appeal. So the petitioner has not considered the charges against
him to be grave and complicated which warrants any necessity of his
defence to be made by a lawyer. It is also held that in the inquiry,
the petitioner has not claimed any such assistance, but he has
prayed for this assistance in the appeal. In the appeal, the
appellate authority has to decide the mater without hearing any of
the parties, and as such, the denial of assistance of a lawyer in
the appeal cannot be said to be illegal or arbitrary or causing any
miscarriage of justice or resulted in denial of defence. It is also
held that the case of the petitioner has been decided on the facts
of the case, and as stated earlier, the preliminary inquiry report
was sought to be produced by the petitioner at the stage of the
examination of the witness, and the petitioner has failed to
establish as to how this report is relevant and non-supply of the
same has caused any prejudice to him and the Presenting Officer of
the management justified the non-supply of the copy of the
preliminary inquiry report on the ground that it is not material for
the purpose of the inquiry. It is also held that moreover, it is not
the case of the petitioner that the preliminary inquiry/
investigation report has been relied in the inquiry against him as
well as the Inquiry Officer has given any finding on the charge
relying on this inquiry report, and the disciplinary authority has
also relied on this inquiry report. It is also held that from the
finding of the Inquiry Officer, it is clear that the bank has
suffered financial loss. The petitioner admittedly has not raised
any objection against the Inquiry Officer at any stage till the
inquiry was completed and the order of punishment has been made
against him. This grievance has been made by the petitioner
admittedly only when he has been punished with the penalty of
dismissal, in the appeal.
Learned
advocate for the appellant has mainly contended that the appellant
was not supplied the copy of the preliminary inquiry report and
according to him, the Disciplinary authority has relied on para-2 of
report contending that I have gone through and considered the
findings of the Enquiry Officer and the evidences both oral and
documentary produced and provided at the enquiry and also other
connected papers and I have applied my mind. Relying on the
underlined sentence, learned advocate for the appellant submitted
that it cannot be said that the Disciplinary Authority has not
referred such documents, which were not supplied to the delinquent.
The learned counsel for the appellant contended that the order of
penalty vitiates only on the ground that the assistance of a lawyer
as well as personal hearing was not afforded to the appellant by the
appellate authority in the appeal. In support of this
contention, the counsel for the appellant placed reliance on the
decision of this court in the case of Smt. M.J. Mehta vs.
Valsad-Dang Gramin Bank reported in 1996(2) GLR 517, and the
decision of the Hon’ble Supreme Court in the case of J.K Aggarwal
vs.Haryana Seeds Development Corporation Ltd. reported in AIR
1991 SC 1221. It has next been contended that copy of
preliminary inquiry report conducted by the Officer, Special
Department in Vigilance Cell, has not been furnished to the
appellant, and as such, the principles of natural justice has
been violated. It has next been contended that no financial loss
has been caused to the Bank by the alleged misconduct of the
appellant, and as such, the penalty of dismissal was not justified.
Lastly, the counsel for the appellant contended that the
disciplinary authority has taken into consideration for giving the
penalty of dismissal to the appellant, other papers which were not
the part of the inquiry record.
We
have heard the learned counsel for the parties at length and perused
the impugned order. The learned Single Judge in detailed has
discussed all the aforesaid contentions raised by learned advocate
for the appellant and therefore, we do not think it fit to
reappreciate the same and we fully concur with the findings recorded
by the learned Single Judge and we do not propose to interfere with
such findings. The submissions canvassed by learned advocate for the
appellant is too general in nature and we not inclined to accept the
submissions made by learned advocate for the appellant. No merit in
the appeal and appeal is accordingly dismissed.
(BHAGWATI
PRASAD, J.)
(S.R.BRAHMBHATT,
J.)
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