Kalyanpur Keshav Venkatrai Pai vs The Corporation Bank on 15 October, 1993

Bombay High Court
Kalyanpur Keshav Venkatrai Pai vs The Corporation Bank on 15 October, 1993
Equivalent citations: 1994 (2) BomCR 710
Author: A Savant
Bench: A Savant


JUDGMENT

A.V. Savant, J.

1. This is a petition by a former employee of the respondent – Corporation Bank. The petitioner seeks to challenge the order of dismissal dated 26th June, 1986 which is at page 169 of the petition. The said order has been passed after holding a regular departmental enquiry in accordance with the procedure laid down in the Corporation Bank Officers-Employees (Discipline & Appeal) Regulations, 1982 (for short the 1982 Regulations). The said order dated 26th June, 1986 has been confirmed in appeal after giving the petitioner an opportunity of being heard. The appeal has been dismissed on 14th January, 1987 and the order is at page 148. A few facts leading to the controversy that is sought to be raised in the petition are as under:

2. The petitioner joined the respondent Bank in July, 1947 as an apprentice. He rose from the ranks and in April, 1961 he was posted at Kalbadevi Branch as a Branch Manager. One firm M/s. Bhavarlal Milapchand, a constituent of Kalbadevi Branch of the respondent-Bank, had several dealings with the respondent-Bank. It had an open cash credit limit of Rs.3,00,000/-. Lorry receipt discounting facility was also upto the limit of Rs.3,00,000/-. Facility for dis-counting of cheques was to the tune of Rs.50,000/- and bills of exchange facility was to the tune of Rs.1,00,000. It appears that in respect of certain stale lorry receipts which had already been encashed, on 6th and 7th November, 1984, the petitioner purchased 21 demand documentary bills in his capacity as a Branch Manager of the respondent-Bank. The aggregate value of the 21 receipts was Rs.1,48,734/-. It is alleged that the purchase of the lorry receipts were made on 29th December, 1984 without any authority and solely with a view to afford undue pecuniary accommodation to M/s. Bhavarlal Milapchand. The 21 Demand Documentary bills accompanied by 40 stale lorry receipts issued by Bombay Andhra Transport Co. between the period 3rd October, 1984 and 8th October, 1984 were purchased by the petitioner and the amount was credited to some other account of M/s. Bhavarlal Milapchand. It was alleged that the goods covered under the stale lorry receipts were already delivered to a third party, the drawer of the receipts, under indemnity bonds on 6th November, 1984 and 7th November, 1984. Thus the Bank was put to a loss of Rs.1,48,734/- since no amount could be reimbursed by the Madras Branch when the receipts were sent from Bombay to Madras. Even before the petitioner purchased the said receipts on 29th December, 1984 the goods covered under the said stale receipts were already delivered to the third party on 6th and 7th November, 1984. It was alleged that all these transactions were entered into by the petitioner unauthorisedly and the petitioner was guilty in not acting with utmost integrity, honesty, devotion and diligence and that he had acted in a manner unbecoming of a Bank Officer and had thereby committed a mis-conduct violating Regulation 3(1) of the relevant regulations.

3. On 15th March, 1985 the petitioner was informed that he was relieved after office hours and should proceed to Mangalore where the Bank had its head office for discussion with the General Manager. On 16th March, 1985 he was given an air-ticket for flight to Mangalore. Accordingly, the petitioner reached Mangalore on 16th March 1985. He was suspended on 16th March, 1985 itself as per Regulation 12(1)(viii) of the said 1982 Regulations. On 18th March, 1985 while at Mangalore, the petitioner addressed a letter which is at page 42 of the petition to the Deputy General Manager. He mentioned therein the various limits sanctioned to the firm of M/s Bhavarlal Milapchand with whom the Bank had various dealings. He also mentioned therein that the liability of the lorry receipts was increased by Rs.9,00,000/- under various accounts. He categorically mentioned that total liability of M/s. Bhavarlal Milapchand and also its concerns was around Rs.28,86,000/-. He confessed in the last para of the letter that he regretted having exceeded his limits in allowing the party to increase the liability to the present position and that he should be pardoned for his error of judgment.

4. On 23rd May, 1985 with a view to prevent any criminal action being taken by the Bank against the petitioner, the petitioner wrote to the Bank that he had obtained legal advice in the matter and had come to the conclusion that the constituent M/s. Bhavarlal Milapchand and its associate concerns had committed the offence of cheating the Bank which offence was punishable under section 420 of I.P.C. The petitioner, therefore, made a request that action should be initiated by filing a complaint with C.I.D. or by filing a private complaint before the Magistrate.

5. On 3rd December, 1985 the petitioner was issued a charge-sheet stating that it was proposed to hold an enquiry against the petitioner under Regulation 6 of the 1982 Regulations. Charge-sheet related to the irregularity reported to have been committed by the petitioner in the account of M/s. Bhavarlal Milapchand and its associate concerns. The petitioner was called upon to submit his written statement within 7 days of the receipt of the communication. The charge-sheet at Ex.B page 47 is accompanied by articles of charge setting out the details of the date and quantum of transactions. It is also accompanied by the statement of allegations based on which the article of charge was framed against the petitioner. The detailed particulars of the bills purchased or caused to be purchased on 29th December, 1984 by the petitioner are mentioned in a chart which is annexed to the second annexure to the charge-sheet. The first annexure mentions article of charge and the second annexure mentions statement of allegations. The detailed chart annexed to the second annexure consists of as many as 21 items with their respective dates of purchase, amount, name of drawee, name of the transport company, date of lorry receipt, collection branch, bale number and remarks. Each of the 21 items as described by as many as 9 detailed columns attached to each of the item.

6. There was some controversy about the payment of subsistence allowance and, therefore, on 31st October, 1985 the petitioner had filed Writ Petition No. 2312 of 1985 claiming the particular amount as subsistence allowance. That controversy was decided by this Court soon thereafter when the question of payment of subsistence allowance was sorted out. We are not concerned with that controversy in this petition any longer.

7. The charge-sheet dated 3rd December, 1985 was received by the petitioner on 12th December, 1985. On 14th December, 1985, the petitioner wrote to the Bank denying the charges and the allegations made against him and asking for inspection of the documents referred to in the annexure. On 22nd January, 1986, one Shri M.R. Bhagwath, Manager Disciplinary Cell of the respondent-Bank was appointed as Presenting Officer to present the case on behalf of the Bank. On the same day i.e. on 22nd January, 1986 Shri R. Balakrishnan, Chief Manager, Head Office Mangalore, was appointed as the Enquiry Officer and the papers consisting of the charge dated 3rd December, 1985, reply dated 14th December, 1985 and other papers were forwarded to him. A copy of this letter was also sent to the petitioner.

8. On 1st February, 1986 the petitioner was informed by the Bank that the Enquiry was fixed before the said Shri R. Balakrishnan at Mangalore on Monday the 17th February, 1986 and that the petitioner should attend the said enquiry. Under the rules as and when the petitioner was required to go to Mangalore in connection with the enquiry, he was paid the air fare. The letter dated 1st February, 1986 Ex.D specifically required the petitioner to be present before the Enquiry Officer at 10 a.m. on Monday the 17th February, 1986. It was further stated that it was open to the petitioner to plead guilty to the charges or to make his defence. It further states that in the event the petitioner pleading not guilty, a list of documents and list of witnesses will be furnished to the petitioner. Para 6 further states that the petitioner will be permitted to inspect the documents within five days from the date fixed for enquiry and the petitioner can submit a list of his documents and witnesses which he wanted to examine in support of the defence. Para 7 mentions that the petitioner will be given full opportunity of leading oral evidence including opportunity to cross-examine all the witnesses produced by the Bank. Para 8 says that if the petitioner so desires he will be permitted to take assistance of any other office or employee of the Bank.

9. On 11th February, 1986, the petitioner filed Writ Petition No. 316 of 1986 praying for quashing of the order of charge dated 1st February, 1986 under which the enquiry was fixed at Mangalore. In para 8 of the petition, ground (a) specifically deals with the 1982 Regulations and obligation on the Enquiry Officer to comply with the principles of natural justice and in particular to afford inspection of the documents to the petitioner. A grievance was made that the petitioner was not given inspection of the documents on which reliance was sought to be placed by the Corporation Bank. However, despite this specific ground being taken in the petition, this Court – S.P. Bharucha, J., (as he then was) passed the following order :

“Leave to amend.

The petition is to prevent a disciplinary inquiry. It does not sppear to me to be of any merit. Dismissed.

Sd/-      

12-2-1986.”

10. Against this order of dismissal of the petition on 12th February, 1986, the petitioner preferred Appeal No. 90 of 1986 on 13th February, 1986 and challenged the order of summary dismissal. The Appeal Court admitted the appeal on 14th February, 1986 and wondered as to why the Bank should insist on holding the enquiry at Mangalore and not at Bombay in the facts of the present case. Enquiry was, therefore, stayed. This was on 14th February, 1986. In the mean-while the petitioner was informed on 14th February, 1986 that the list of documents and list of witnesses by whom articles of charge were to be proved would be supplied to him and this was being done to give full opportunity to the petitioner to inspect the documents. On 3rd March, 1986, Shri Pai, Counsel appearing on behalf of the Bank made a statement before the Appeal Court that the Bank was willing to hold the enquiry at Bombay instead of Mangalore though the enquiries were generally held at Mangalore where the Bank has its head office. The Appeal Court was satisfied with this attitude of the Bank agreeing to hold the enquiry at Bombay and in view of the above, the petitioner’s appeal was dismissed on 3rd March, 1986.

11. On 7th March, 1986 the Bank changed the Enquiry Officer and Shri Subba Rao was appointed as Enquiry Officer since due to some administrative reasons Shri Balakrishnan was not able to continue the said enquiry. Immediately on taking over, Shri Subba Rao addressed a letter to the petitioner informing him that the enquiry was fixed at Bombay on Wednesday the 26th March, 1986. This letter is at page 63 which states that the petitioner was permitted to inspect the documents and submit a list of his documents and witnesses required for his defence. The letter also states that the petitioner will be given full opportunity of leading evidence including right to cross-examine the Bank’s witnesses. Thus apart from the earlier offer contained in Ex. D dated 1st February, 1986, the petitioner was again, by a letter page 63 of the petition, issued in the month of March, 1986 called upon to avail of the inspection and it stated that the petitioner had an opportunity of leading necessary evidence including cross-examination of the witnesses of the Bank.

12. In the mean-while, the petitioner filed Special Leave Petition to the Supreme Court against the dismissal of his appeal by the High Court on 3rd March, 1986 being Appeal No. 90 of 1986, arising out of Writ Petition No. 316 of 1986. The petitioner informed the Bank on 15th March, 1986 that he had filed Special Leave Petition in the Supreme Court and, therefore, enquiry should not proceed. However, there was no stay obtained from the Supreme Court. On 27th March, 1986, the petitioner appeared before the Enquiry Officer only to request for an adjournment on the ground that Special Leave Petition was pending in the Supreme Court. The petitioner also prayed for liberty to engage a lawyer. On 27th March, 1986, Bank wrote to the petitioner pointing out that he was not participating in the enquiry. A reference was made to his conduct of the same day, namely, 27th March, 1986 when the petitioner had refused to participate in the enquiry on the ground that he wanted some further time. On 31st March, 1986 the petitioner reiterated his request for engaging the lawyer. It may be mentioned that neither the Enquiry Officer nor the Presenting Officer was a lawyer. On 3rd April, 1986 the petitioner was informed that his request to engage a lawyer cannot be granted.

13. On 15th April, 1986 the petitioner appeared before the Enquiry Officer and handed over the telegram received by him from his advocate in Delhi informing him that the next date of hearing before the Supreme Court was 16th April, 1986 and, therefore, the petitioner should be granted an adjournment. The petitioner was, however, granted time only till 16th April, 1986 since there was no stay from the Supreme Court. On 16th April, 1986 the petitioner again applied for adjournment on the ground that his S.L.P. was coming upon in the Supreme Court for admission shortly. The Enquiry Officer informed the petitioner that the mere fact that the petitioner had filed S.L.P. in the Supreme Court was not enough for granting adjournment. The petitioner was informed that since he had denied the charges he should inspect the documents and participate in the enquiry. This letter is at page 82. The petitioner addressed a letter to the Enquiry Officer on 17th April, 1986 recording that, according to him, had happened on the earlier date namely 16th April, 1986. It appears that the Enquiry Officer proceeded with the enquiry on 16th April, 1986 since the petitioner refused to participate in the enquiry. Though inspection was offered to the petitioner he did not avail of the said opportunity to inspect the documents and insisted on the enquiry being adjourned only on the ground that the S.L.P. was pending in the Supreme Court. The Enquiry Officer recorded his inability to adjourn the enquiry and requested the petitioner to participate in the enquiry. Since, however, the petitioner refused to participate in the enquiry the Enquiry Officer had no alternative but to proceed with the enquiry which he did, on 16th April, 1986 onwards.

14. On 29th April, 1986 the Enquiry Officer submitted his report to the disciplinary authority. In the report also a reference was made to the various proceedings adopted by the petitioner in this Court and also in the Supreme Court and then the petitioner’s refusal to participate in the enquiry has been referred. On merits, the Enquiry Officer came to the conclusion that the petitioner had acted in a manner highly detrimental to the interest of the Bank. Evidence of the witnesses examined on behalf of the Bank clearly showed that, without proper care being taken, stale lorry receipts were purchased resulting in loss being caused to the Bank. A reference is made to the instructions issued to the Officers like the petitioner prohibiting purchase of stale lorry receipts since the goods would be cleared as soon as possible and if lorry receipts were presented subsequently there would be no recovery possible as in the present case. A finding has been recorded by the Enquiry Officer that some third person had produced indemnity bonds and had got the goods cleared in the first week of November, 1984 whereas the lorry receipts were purchased by the petitioner as late as on 29th December, 1984. Relying upon the documentary and oral evidence on record, the Enquiry Officer came to the conclusion that it was clearly established that on 29th December, 1984 the petitioner had purchased/caused to be purchased 21 Demand Documentary Bills accompanied by 40 stale lorry receipts issued by Bombay Andhra Transport Company without any authority whatsoever. It was held that this was done in utter violation of usual banking norms, with a view to afford undue pecuniary accommodation to one of the constituents of the Bank’s Kalbadevi Branch, viz. M/s. Bhawarlal Milapchand. It was further found that the petitioner had suppressed the facts relating the aforesaid transaction from his superiors and that the proceeds of the bills so purchased were utilised against normal banking practice for adjusting certain bills purchased/discounted to the said constituent.

15. On 1st May, 1986 the petitioner’s Special Leave Petition (Civil) No. 4707 of 1986 was dismissed by the Supreme Court with the following order :

“The learned Counsel for the petitioner states that principal grievance has not been considered by the High Court. If that is so, it is open to the petitioner to apply to the High Court in review and the High Court will determine whether that grievance was placed before it. We see no ground for entertaining the Special Leave Petition and it is accordingly rejected.”

It is admitted that despite the liberty given to the petitioner to approach the High Court by way of review petition seeking review of the order passed by this Court, the petitioner did not file any review petition at all. The petitioner had earlier filed Writ Petition No. 316 of 1986 in which he had specifically taken the contention that inspection ought to be given to him of certain documents. This petition was rejected as it was held to be an attempt to delay the enquiry. Appeal No. 90 of 1986 against the said order of dismissal of the Writ Petition No. 316 of 1986 was also dismissed on 3rd March, 1986. S.L.P. was also dismissed on 1st May, 1986 and liberty was given to the petitioner to approach the High Court since the petitioner made a grievance that his principal contention was not considered by the High Court. Unfortunately, despite the advice by the lawyer the petitioner did not prefer any review application in this Court.

16. On 13th May, 1986 the petitioner sent what he calls his written statement mainly denying that he was negligent in discharge of his duties or that he had acted with lack of integrity and unlike a Bank Officer. The fact that the receipts were already encashed on the basis of indemnity bonds on 6th and 7th November, 1984 was not disputed. The fact that in respect of the lorry receipts purchased by the petitioner on 29th December, 1984 the goods were already delivered to a third party was not disputed. However, the petitioner contended that in view of his long services to the Bank no action should be taken against him.

17. As stated earlier, on 16th April, 1986 despite the petitioner being requested to participate in the enquiry he did not participate in the enquiry and, therefore, enquiry proceeded ex-parte. The report of the Enquiry Officer is dated 29th April, 1986 after which the Supreme Court dismissed the S.L.P. on 1st May, 1986. This resulted in the order of dismissal being passed on 26th June, 1986. The disciplinary authority also discussed the entire material on record and recorded a finding that the petitioner, by abusing outright the confidence deposed in him by the Bank, acted in connivance with the constituents M/s. Bhavarlal Milapchand in a manner highly detrimental to the interests of the very Institution in which he was serving. It was, therefore, held that charge was grave enough to warrant deterrent penalty of dismissal. Hence the petitioner was dismissed from service on 26th June, 1986.

18. This order was served on the petitioner on 30th June, 1986. On 7th July, 1986 the petitioner requested for copies of the proceedings. On 15th July, 1986 the petitioner requested the Bank to furnish the notes of evidence. These documents were furnished on 30th July, 1986. In the month of August, 1986 the petitioner filed an appeal to the Chairman against the order of dismissal. He submitted some additional grounds to the Appellate Authority. He was given personal hearing on 17th November, 1986 and appeal has been dismissed on 14th December, 1986 which has given rise to the present petition.

19. The Bank has filed its reply on 21st June, 1985 mentioning the developments datewise as summarised above. It has been contended that the petitioner was being repeatedly invited to participate in the enquiry but he had refused to do so. Reliance was placed on the orders passed by this Court and Supreme Court from time to time and the fact that no review petition was filed by the petitioner after the Supreme Court had dismissed the S.L.P. It is further stated in the said affidavit that there was no failure to comply with the principles of natural justice and the petitioner had failed to participate in the enquiry and he deliberately kept out of enquiry with a view to delay the enquiry proceedings. Despite repeated offers to have inspection of the documents, the petitioner did not take any inspection. He was nevertheless given the personal hearing by the Appellate Authority before the order of dismissal was passed.

20. I have heard both the learned Counsel at length; Shri Talsania for the petitioner and Shri Pai for the respondent-Bank. Shri Talsania for the petitioner has raised two contentions based on the alleged violation of the principles of natural justice. His first contention is that the petitioner was denied inspection of the documents which he applied for in order to be able to file a proper written statement. The second contention is that the petitioner was refused the assistance of a lawyer. Counsel has invited my attention to the scheme of the provisions of the said 1982 Regulations. There can be no doubt that the dismissal is a major penalty within the meaning of Regulation (4) of the said 1982 Regulations. In the event of imposing such a penalty, the procedure laid down in Regulation 4 ought to have been followed. Rule 6 of the said 1982 Regulations contemplates the holding of the Departmental Enquiry. Reliance was placed on the provisions of sub-rule (10) of Rule 6 of 1982 Regulations. In particular, Shri Talsania invited my attention to sub-rules (8) and (10) of Rule 6 of the said 1982 Regulations. His grievance is that when the petitioner had repeatedly demanded inspection it ought to have been granted to him. In support of his contention Shri Talsania has placed reliance on the following decisions of the Supreme Court :

i) Prathama Bank, Head Office Moradabad through its Chairman v. Vijay Kumar Goel and another, reported in 1989(2) C.L.R. 504. This was a case where the delinquent was not given a sufficient opportunity of defending himself. On facts, the Supreme Court came to the conslusion that opportunity given by the bank to the delinquent officer was not adequate and hence order of dismissal was set aside:

ii) D.K. Yadav v. J.N.A. Industries Ltd., reported in 1993(2) C.L.R. 116. This was a case where it was held that there was no distinction between the quasi judicial function and an administrative function for the purpose of principles of natural justice. The aim of both, administrative enquiry as well as the quasi-judicial enquiry, is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent mis-carriage of justice, it is difficult to see why it should be applicable only to quasi judicial enquiry and not to an administrative enquiry.

iii) State Bank of India and others v. D.C. Agarwal and another, reported in 1993(1) C.L.R. 2. This was a case where the report made by the Central Vigilance Commission was not furnished to the delinquent officer. It was held that there was a failure to comply with the principles of natural justice and hence the order of termination was liable to be quashed.

21. On merits, Shri Talsania contended that there was no dis-honesty on the part of the petitioner and at the most what happened was a case of bona fide mistake. It is contended that mere lack of efficiency or failure to perform a duty while holding a high post would not by itself constitute mis-conduct. There may be negligence in performance of duties and lapse in the performance of duty or error of judgment in evaluating the situation may be negligence in the discharge of duty but it will not constitute mis-conduct. Reliance was placed on the observations of the Supreme Court in the case of Union of India and others v. J. Ahmed, .

22. As against this Shri Pai appearing on behalf of the Bank contended that there is no failure to comply with the principles of natural justice. It is no doubt true that 1982 Regulations embody a scheme which ensure that there is full compliance with the principles of natural justice. His argument is that the petitioner refused to participate in the enquiry despite repeated requests made to him. He invited my attention to the charge-sheet at Ex. B dated 3rd December, 1985. The letter Ex. D dated 1st February, 1986, letter issued in March 1986 at page 63 informing the petitioner the date of hearing and offering him inspection and right to examine the witnesses. My attention was also invited to the letter dated 27th March, 1986 at page 71. Where it was recorded that the petitioner had refused to take part in the enquiry. Shri Pai placed strong reliance on the fact that both Shri Balakrishnan by his letter Ex. D dated 1st February, 1986 and Shri Subba Rao by his letter issued in March 1986 at page 63, had invited the petitioner’s attention to the fact that he was required to participate in the enquiry and would be afforded inspection of the documents and right to cross-examine the witnesses of the Bank. My attention is also invited to the affidavit filed by Lawrence D’Souza on behalf of the Bank setting out the details of the enquiry proceedings and the attitude adopted by the petitioner who just refused to participate in the enquiry.

23. Shri Pai then strongly commented upon the fact that this Court was approached in Writ Petition No. 316 of 1986 and a specific contention was raised about the failure to given inspection. Despite the specific contention being raised in the petition, in the form of ground (a) this Court took the view that the petition was filed to prevent the disciplinary enquiry and that there was no merit in the petition. Counsel further relied upon the fact that all that the appeal Court did was to require a change in the venue of the enquiry. Since the Appeal Court suggested that the enquiry should be held at Bombay, the bank agreed to hold the enquiry at Bombay and proceeded with the enquiry at Bombay. Shri Pai relied upon the fact that the appeal was dismissed by the Division Bench on 3rd March, 1986 and S.L.P. was also dismissed by the Supreme Court on 1st May, 1986. Assuming that the petitioner wanted to re- agitate the point before the High Court, Counsel says that the Supreme Court had given liberty to do so as is clear from the Supreme Court order dated 1st May, 1986. But the petitioner did nothing of the kind. He took a chance of not participating in the enquiry deliberately. Shri Pai says that when if the banks did not proceed with the enquiry expeditiously, that invites adverse comments from the Court. More is a case where the bank offered all facilities to the petitioner, invited his attention to the fact that he may take inspection and examine the witnesses but for reasons best known to the petitioner, he had decided to abstain from participating in the enquiry. Counsel, therefore, says that there is no failure to comply with the principles of natural justice and the procedure laid down in 1982 Regulations has been fully complied with.

24. On merits, Shri Pai contends that the scope of the enquiry in a petition of this kind is extremely limited. The Bank has been a victim of series lapses on the part of the petitioner which are grave. The petitioner knew that limits of constituents M/s. Bhavarlal Milapchand had exceeded. He acted with lack of integrity, honesty, devotion and diligence while working as a Branch Manager. Both, before the Enquiry Officer and before the Appellate Authority the petitioner was given an adequate opportunity of being heard and he says that there is no failure to comply with the principles of natural justice.

25. Having heard both the learned Counsel and after perusing the material on record, it is not possible to accept the contentions of Shri Talsania. It is clear from the letter dated 18th March, 1985 that the petitioner was aware of the lapses committed by him. He had, in no uncertain words, accepted the lapses on his part. The charge-sheet is accompanied by article of charge and statement of allegation with which are accompanied the particulars of bills purchased/caused to be purchased on 29th December, 1984. The details of all the 21 bills have been given in the said charge. The petitioner was working as a Branch Manager. The least that was expected of him in the light of the above documents, was to file a proper written statement. Beyond a bare denial he did not do anything. When he was offered inspection by letter Ex. D dated 1st February, 1986 as per the scheme of Regulation 6 of the 1982 Regulations, he did not avail of the opportunity. He thought it proper to file writ petition on 11th February 1986 after he received letter Ex. D dated 1st February, 1986 offering him inspection. In the writ petition he took a specific contention of denial of inspection. The contention did not find favour with this Court which came to the conclusion that the petition was filed to prevent the disciplinary enquiry. Even when the Enquiry Officer was changed and Shri Subba Rao took over from Shri Balakrishnan his letter issued in March 1986 at page 63 he offered the petitioner to have inspection and right to lead necessary evidence including cross-examination of the Bank’s witnesses. The petitioner did not avail of this opportunity. The appeal Court only directed to change the venue of the enquiry from Mangalore to Bombay. The Supreme Court did not find any merit in the S.L.P. but on a contention being raised that the High Court did not consider the main grievance, the Supreme Court permitted the petitioner to move this Court again. The petitioner did not bother to move this Court but took a chance of abstaining from the enquiry despite repeated opportunity being given to him. This is not the conduct of a responsible branch manager who wanted to prove his innocence.

26. The correspondence on record during 1985 and 1986 shows that the petitioner took a some what adament attitude in refusing to participate in the enquiry. The Enquiry Officer repeatedly pointed this out and recorded the fact that the petitioner had refused to participate in the enquiry. Under the circumstances, I find no merit in Shri Talsania’s contention that there is a breach of the provisions of Regulation 6 of 1982 Regulations. There can be no doubt that a disciplinary enquiry has to be held in accordance with the principles of natural justice and denial of opportunity in accordance with the rules of natural justice would amount to failure to comply with the mandate of Articles 14 and 21 of the Constitution. However, if the petitioner had refused to participate in the enquiry, had approached this Court and made a grievance of denial of sufficient opportunity which grievance was not accepted by this Court and even the Supreme Court, it is difficult to come to the conclusion that there is a failure to comply with the principles of natural justice. There can be no doubt about the ratio of the Supreme Court decisions on which Shri Talsania has placed reliance. However, I do not think that the ratio of any of the said decisions has any application whatsoever to the facts of this case. To set aside the order of dismissal on the assumption of denial of sufficient opportunity in the facts of this case, would be placing premium on the conduct of the petitioner which was deliberate and was calculated to delay if not to defeat the enquiry. Petitioner was aged 54 years when the order of dismissal was passed. He had 3 years service to go and normally he would have retired on 31st March, 1990 on his attaining the age of 58 years. He took a chance of remaining absent at the enquiry despite all the facilities being afforded to him. Initially when he was asked to report to General Manager at Mangalore all facilities were provided to him including air travel. When venue of the enquiry was shifted to Bombay he refused to take part in it. It is of some significance that the petitioner’s residence is in the same building where the bank has its guest house which was the venue of the enquiry. The petitioner resides on the 4th floor of the building and the venue of the enquiry was on the 7th floor of the same building. Despite this the petitioner thought it fit not to take part in the enquiry.

27. Having approached the Supreme Court and realising that the Supreme Court was not inclined to entertain the S.L.P., petitioner sought liberty to approach this Court on what he thought was failure to consider the principal grievance. It is not possible to know which principal grievance of the petitioner was not considered by this Court since no application is made to this Court after dismissal of the S.L.P. on 1st May, 1986. In the circumstances, it is not at all a case where one can complain of lack of sufficient opportunity. Shri Pai is perfectly justified in criticising the attitude of the petitioner as unbecoming of the respondent’s branch manager. I find no merit in any of the contentions of Shri Talsania on the point of failure to comply with the principles of natural justice. I am accepting the contentions of Shri Pai.

28. On merits, there is a concurrent finding of fact that the petitioner is guilty of grave mis-conduct. The petitioner had put the bank to a serious prejudice resulting in the loss of a substantial amount. The petitioner has no explanation for his conduct which is most unbecoming of a branch manager. The inference that the petitioner wanted to oblige the constituent is inescapable. It is not open to this Court to re-appreciate the evidence that was led in the departmental enquiry. Where upon hearing the petitioner, a concurrent finding of fact has been recorded. But even on perusal of the said evidence, I find nothing to warrant interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution. The findings recorded by the Enquiry Officer, Disciplinary Authority and the Appellate Authority are borne out by the evidence, both oral and documentary. It is not possible to take a different view of the matter.

29. In the circumstances, there is no merit in the writ petition. The petition is rejected. Rule is discharged. However, there will be no order as to costs.

30. Certified copy, if applied for, be issued expeditiously.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *