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SCA/986820/2008 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9868 of 2008
=========================================
N.S.
DESAI - Petitioner(s)
Versus
CHAIRMAN
& MANAGING DIRECTOR- BANK OF BARODA & 2 - Respondent(s)
=========================================
Appearance
:
MR MS TRIVEDI for Petitioner(s)
: 1,
None for
Respondent(s) : 1 - 3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 12/09/2008
ORAL
ORDER
The
present petition has been filed by the petitioner for the prayer to
issue writ of mandamus, certiorari or appropriate writ or directions
for quashing and setting aside impugned orders dated 17.12.2004,
31.3.2005 and 17.10.2007 passed by the respondents on various
grounds, inter alia, that the said order imposing punishment of
dismissal from the bank’s service is arbitrary, illegal and also
contrary to the statutory rules and regulations of Bank of Baroda
Officers (Discipline & Appeal) Regulations, 1976.
2. The
short facts of the case, briefly stated are, that the petitioner had
withheld the letter of authorization to Bank of Baroda, Pardi Branch,
and had demanded and accepted Rs. 25,000/- as and by way of illegal
gratification from Shri Harish J. Rawal, proprietor of M/s. Raval
Earthmovers, and on the basis thereof, disciplinary proceedings were
initiated under the statutory rules known as Bank of Baroda Officers
(Discipline & Appeal) Regulations, 1976 (hereinafter referred to
as ‘the Regulations’). A full fledged inquiry was conducted and on
the basis of the material, the inquiry officer made a report at
Annexure B that the allegation that Mr. Desai (petitioner) had
demanded and accepted Rs. 25,000/- is not proved and, therefore, he
gave the finding that allegations 1 and 2 has not been proved. The
disciplinary authority disagreed with the findings of the inquiry
authority as per the order at Annexure C and found that the
delinquent viz., the petitioner, had demanded and accepted the
illegal gratification and he was also given an opportunity to remain
present before the disciplinary authority to make his submission
including the written submissions within 7 days. The petitioner also
made written submissions at Annexure D and ultimately the impugned
decision was taken at Annexure A dated 31.3.2005 dismissing the
petitioner from service. It is against this order dated 31.3.2005
that the review petition was filed, which was also rejected vide
order dated 17.10.2007 by the Chairman & Managing Director
which is challenged in the present petition, on various grounds,
narrated in detail in the petition.
3. Learned
advocate Mr. Trivedi for the petitioner submitted that the
disciplinary authority has expressed his disagreement, but has not
given valid and justifiable reasons for not agreeing with the report
of the inquiry officer and, therefore, it is bad and violative of
rules of natural justice. It has also been contended that the
report of the inquiry officer is a fact finding report and if there
is any adverse remark or a different view, then it has to be
justified by reasons. Learned advocate Mr. Trivedi has also
submitted that no motive has been established for making the demand
inasmuch as there was no question of withholding of the letter of
authorization of the proprietor of M/s. Raval Earthmovers. The
learned advocate has also referred to the pleadings as well as the
Regulations. He also referred to p. 63 para 10 of Annexure D, which
is the submission made by the petitioner, to emphasise the point that
it was specifically the case of the petitioner that Mr. Raval had
entered his cabin , threw a file and rushed out. This aspect was
also specifically contended and yet it has been misconstrued, which
has been quoted in this para. Therefore, learned advocate Mr.
Trivedi submitted that the impugned order is bad and violative of
Art. 14 of the Constitution as well as the rules of natural justice.
4. He
also emphasized that when the disciplinary officer himself has a
report holding that the charges are not proved and when the
disciplinary authority has not accepted or disagreed with those
findings, he should have given valid reasons and should have
conducted some inquiry before reversing the findings, but he should
not have substituted his own views.
5. Though
the submissions have been made by the learned advocate, it is not in
dispute that there was a demand made as and by way of illegal
gratification and there was a CBI raid for the incident. However, the
report made by the inquiry officer referring to these very charges
have not been accepted by the disciplinary authority for which there
is a detailed discussion as to why the observations and the findings
are not accepted by the disciplinary authority.
6. In
any view of the matter, the submission that there does not exist a
motive and there is no proof of the motive, or the contention that
Mr. Raval had barged into the petitioner’s chamber and threw the
file, are all defences which have been considered and may be the
inquiry officer has submitted his report on that basis. However, the
point which is required to be considered is whether the disciplinary
authority is bound to accept the recommendations of the inquiry
officer or can give his own conclusion based on the report and
material.
7. It
is well-settled that the disciplinary authority can come to his own
independent conclusion based on the material or evidence on record
and as reflected in the impugned decision by the disciplinary
authority for disagreement with the findings of the inquiry officer
at Annexure C, it has been discussed in detail the reasons for not
accepting the findings given by the inquiry officer. There is a
specific case which cannot be disputed that there was a CBI raid or a
trap for the purpose of illegal gratification, the file and the
envelope were found on his table and the seizure memo, panchnama etc.
have been drawn and it is well accepted that the standard of proof in
a prosecution case for the purpose of establishment of guilt for the
offence under a particular statute stands on a different footing than
the standard in a departmental inquiry as it does not require proof
beyond reasonable doubt and it has to be decided with preponderance
of probabilities.
8. In
these circumstances and in background and gravity of charges levelled
against the delinquent on the basis of the powers conferred under the
Regulations, if the disciplinary has disagreed with the findings of
the inquiry officer, can this Court under Art. 226 of the
Constitution interfere with these findings? Further, the moot
question which is required to be considered is, once the the findings
and the guilt of the delinquent in the inquiry has been established,
whether this court can interfere with the quantum of punishment as in
the facts of the present case?
9. For
that purpose, it is required to be appreciated that the regulations
clearly provide for disagreement with the report of the inquiry
officer. Regulation 7 referring to action on the inquiry report
clearly suggest and provide,
(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.
10. Therefore,
sub-clause(2) of Regulation 7 clearly empower the disciplinary
authority to record the findings on the basis of the evidence on
record and on that basis may proceed to make further order imposing
penalty, which has been done in the present case. The disciplinary
authority has given an opportunity to the petitioner to make a
representation and also gave personal hearing and thereafter passed
the impugned order of dismissal. Therefore, it cannot be said that
the impugned decision is in any way arbitrary or violative of Art. 14
or the rules of natural justice.
11. Another facet of
the argument is that if the procedure followed for the purpose of
inquiry and reaching the conclusion is in accordance with the
regulations, can the quantum of punishment be interfered with by this
court?
12. The Hon’ble Apex
Court has in its pronouncement made the position more than clear and
it leaves very little scope for interference. Th Hon’ble Apex Court
in the case of Bharat Forge Co. Ltd. v. Uttam Manohar Nakate
reported in 2005(2) SCC 489 has observed, quoting the earlier
judgment of the Apex Court in the case of Regional Manager,
Rajasthan State Road Transport Corporation v. Sohan Lal reported
in 2004(8) SCC 218 as under:
…In our opinion,
the High Court failed to exercise its jurisdiction under Article 226
of the Constitution and did not correct the erroneous order of the
Labour Court, which if allowed to stand, would certainly result in a
miscarriage of justice.
Further,
it has also been quoted,
it
has been held that it is not the normal jurisdiction of the superior
courts to interfere with the quantum of sentence unless it is wholly
disproportionate to the misconduct proved. Such is not the case
herein. In the facts and circumstances of the case and having regard
to the past conduct of the respondent, as also his conduct during the
domestic inquiry proceedings, we cannot say that the quantum of
punishment imposed upon the respondent was wholly disproportionate
to his act of misconduct or otherwise arbitrary.
13. Therefore,
in view of the above observations and also in light of the facts
discussed hereinabove in the present case referring to the charges
and the reasons for the disagreement by the disciplinary authority in
detail, it cannot be said that the impugned decision is any way
arbitrary or in violation of the rules of natural justice and it does
not call or any interference with regard to either the findings or
with the quantum of punishment as it cannot be said to be harsh or
perverse.
14. Therefore,
this court is of the opinion that there is no ground made out for
interference in this petition under Art. 226 of the Constitution of
India.
15. In
the result, the present petition deserves to be dismissed and is
accordingly dismissed in limine.
(Rajesh
H. Shukla, J.)
(hn)
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