ORDER
H.N. Nagamohan Das, J.
1. The petitioner has called in question the order dated 19.09.1998 dismissing him from service and the order dated 11.06.1999 passed by the Appellate Authority confirming the order of dismissal.
2. In the year 1971, the petitioner was appointed as a Clerk in the establishment of the respondent - Bank. From time to time the petitioner was promoted and in the year 1993, he was promoted to Middle Management Grade Scale in. Between 1989 and 1993 the petitioner was working as Manager at West of Chord Road Branch, Bangalore. In the year 1994 the respondent - Bank appointed an Investigating Officer to investigate the irregularities committed by the petitioner and others between 1989 to 1992 at West of Chord Road Branch. The Investigating Officer submitted his report on 02.08.1994 to the Disciplinary Authority. The Disciplinary Authority issued a show cause notice on 24.12.1994 to the petitioner. On 18.08,1995 the petitioner submitted his reply. The Disciplinary Authority, not being satisfied with the reply submitted by the petitioner, issued a charge sheet on 24.04.1997. The charges levelled against the petitioner in brief reads as under:
1. discounting bills drawn on certain parties although the bills discounted earlier drawn on the same parties were returned unpaid/adjusted to the debit of CC account of M/s. Unity Lammators.
2. discounting bills of M/s. Hindustan Electronics, an associate of M/s. unity Engineering Industries and M/s. Unity Laminators, eventhough he was advised to the contrary by the Zonal Office and committing certain grave procedural irregularities by not maintaining Business Referred Register in respect of BDs returned unpaid; and
3. in the matter of credit facilities sanctioned to M/s. Unity Lamtnators and M/s. Unity Engineering Industries and his failure to effectively follow-up and monitor the overdue bills while he was working as Senior Branch Manager of West of Chord Road Branch, Bangalore.
2. The petitioner denied the charges levelled against him. Disciplinary enquiry proceedings were initiated. Before the Enquiry Officer, the respondent - Bank examined five witnesses as M.W.I to M.W.5 and produced documents marked as Ex.MJ to Ex.M.52. On the side of the petitioner no witnesses were examined but produced certain documents marked as Ex.D.1 to Ex.D.21. The Enquiry Officer submitted his report stating that the charges levelled against the petitioner as proved. The Disciplinary Authority after hearing the petitioner passed the impugned order of penalty dismissing the petitioner from service. The Appellate Authority rejected the appeal filed by the petitioner and confirmed the order of dismissal of the petitioner. Hence, this writ petition.
3. Sri. Subba Rao, learned Senior Counsel and Sri Narayana Bhat, learned Counsel for petitioner contend, that there is a delay of seven years in issuing the charge sheet and on this ground alone, enquiry proceedings are vitiated. The respondent - Bank has not furnished the list of documents and witnesses, copies of documents and copies of statements of witnesses at the time of issue of charge sheet The respondent - Bank also refused to permit the petitioner to verify the original records. This has resulted in denial of fair opportunity to the petitioner to put forth his defence in the enquiry. It is contended, that the charges levelled against the petitioner are vague, they are not specific and this has prejudiced the case of the petitioner. It is further contended, that the petitioner and seven others were issued with charge-sheets on identical charges. The respondent - Bank, instead of holding a joint enquiry against the petitioner and seven other officers, held separate enquiries in contravention of Regulation 10 of the Vijaya Bank Officer Employees (Conduct) Regulations, 1981 (for short 'the Regulations'). The findings of the Enquiry Officer are perverse and contrary to the evidence on record. Lastly it is contended, that the petitioner is victimised by the respondent - Bank.
4. Per contra, Sri. Ananda Ram, learned Counsel for the respondent - Bank contends, that there is no inordinate delay in initiating the enquiry proceedings against the petitioner. The respondent -Bank has given satisfactory explanation for the delay if any. He contends, that under the on amended Regulations it was not obligatory on the part of the respondent - Bank to supply the list of documents, copies of documents, list of witnesses and statement of witnesses. At the time of replying to the show cause notice, the petitioner verified the original records. That apart, during the enquiry proceedings, the petitioner was supplied with the copies of documents relied on by the respondent - Bank, copies of the documents sought for by the petitioner and he was also permitted to verify the records. It is contended, that the petitioner has understood the charges and on that basis he submitted the defence, cross-examined the witnesses and filed the written brief. In these circumstances, it cannot be said that the charges levelled against the petitioner are vague and they are not specific. The Enquiry Officer, on appreciation of the material on record and by assessing the evidence on record, concludes that me charges levelled against the petitioner as proved.
5. Heard arguments on both the sides and penned the entire writ papers and die records made available by the respondent - Bank. In the course of arguments both the learned Counsel relied on number of decisions. I think it is sufficient if reference is made to the relevant decisions.
6. On the basis of the arguments- of both sides, the following questions will arise for my consideration.
I. Whether there M any delay in initiating the disciplinary proceedings and that the same has prejudiced the interest of the petitioner?
II. Whether the respondent - Bank has not supplied the copies of documents and not permitted the petitioner to verify the records and that the same has resulted in depriving the petitioner from putting fourth an effective defence?
III. Whether the charges are vague and they are not specific?
IV. Whether the enquiry proceedings initiated against the petitioner alone is in contravention of Regulation 10 of Regulations?
V. Whether the findings of the Enquiry Officer are perverse and contrary to the material on record?
VI. Whether the petitioner is victimised?
ON POINT No. I.
7. The irregularities alleged to have been committed by the petitioner are in respect of transactions during the period from 1989 to 1991. The respondent - Bank noticed these irregularities in the year 1994 and appointed an Investigating Officer to investigate the irregularities. The Investigating Officer submitted his report on 06.08.1994 to the Disciplinary Authority. The Disciplinary Authority issued a show cause notice to the petitioner on 24.12.1994. The petitioner submitted his reply on 18.08.199S. Since the reply submitted by the petitioner was not satisfactory, the Disciplinary Authority issued a charge-sheet on 24.04.1997. From the date of petitioner's reply on 18.08.1995 there is a delay of one year eight months in issuing the charge-sheet on 24.04.1997. This period of one year eight months cannot be said as inordinate delay. The respondent - Bank in its statement of objections explained this delay of one year eight months. During this period of one year eight months the respondent - Bank issued separate charge-sheets on 09.09.1995, 10.10.1996 and 13.11.1996 for certain irregularities committed by the petitioner. On account of issuance of thaw charge-sheets the respondent -Bank has not issued the charge-sheet in respect of the irregularities in question. It is only after completion of the proceedings in respect of the charge-sheets dated 09.09.1995, 10.10.1996 and 13.11.1996, the charge-sheet in question was issued on 24.04.1997. In view of this explanation of the respondent - Bank there is no delay much less inordinate delay in initiating the enquiry proceedings against the petitioner. The ratio of decisions relied on by the petitioner is that there must be inordinate delay and the same is not explained. But in the instant case there is inordinate delay and the delay of one year eight months is explained For these reasons, I decline to accept the contention of the teamed counsel for petitioner that there is delay in initiating the enquiry proceedings and as such the enquiry is vitiated.
ON POINT No. II.
8. The charge-sheet was issued on 24.04.1997 to the petitioner. Regulation 6.3 of the Regulations as it stood in the year 1997 reads as under:
6.3 Where it is proposed to hold an inquiry, the Disciplinary Authority shall frame definite and distinct charges on the basis of the allegations against the officer employee and the articles of charge, together with a statement of the allegations, on which they are based, shall be communicated in writing to the officer employee, who shall be required to submit within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), or within such extended time as may be granted by the said Authority, a written statement of his defence.
9. A reading of the above Regulation makes it clear, that the Disciplinary Authority shall issue articles of charges together with the statement of allegations and it is not obligatory on the part of the Disciplinary Authority to furnish the list of documents and witnesses, and copies of the documents relied on by the prosecution. Now the Regulations at amended Under the amended Regulation 6.3 the Disciplinary Authority shall communicate to the employer the list of documents with copies of the documents and list of witnesses with copies of statement of witnesses if any on which they are based It is not in dispute that the charge sheet was issued to the petitioner in the year 1997 and the unamended Regulations were in force. Under the old Regulations it was not obligatory on the part of the Disciplinary Authority to communicate the list of documents and copies of documents to the petitioner. Yet the respondent - Bank furnished the copies of documents relied on by the prosecution and also the documents sought for by the petitioner. Before the Enquiry Officer, in the proceedings dated 14.10.1997, the petitioner admitted that he received copies of documents relied on by the prosecution and relevant proceedings are as under:
EO to CSO. - Have you received the copies of the documents marked as Exhibits M 1 to M 48? Do you want to verify/inspect any of the said documents with the original thereof in addition to originals already verified during marking of the documents/verification of documents from 7th Oct. to 9th Oct 97.
CSO to EO. -I hove received copies of documents marked as Exhibits M 1 to M 48 and I have verified the same with the originals thereof.
Again on 16.10.1997, before the Enquiry Officer, the petitioner admitted that he received the copies of the documents sought for by him and the relevant proceedings are as under:
EO to CSO. - Have you received the copies of the documents listed by you in EX-EO-5?
CSO to EO.-Yes.
EO to CSO. - Do you want to verify/inspect the documents with the originals now given by PO OR you have already verified/inspected the original documents?
CSO to EO. - I have verified the copies with the originals thereof now given by PO.
10. In view of Regulation 6.3 of the Regulations as it stood in the year 1997 when the charge-sheet was issued to the petitioner and in view of the admissions made by the petitioner in the enquiry proceedings it in clear that the petitioner has received the copies of all the documents relied on by the prosecution and also conies of the documents sought for by him and that he has also verified the original records. Under these circumstances, the contention of the learned Counsel for petitioner that the petitioner was not supplied with the list of documents, copies of documents and therefore he was prevented from effectively putting forth his defence in the enquiry proceedings is unacceptable to me.
ON POINT No. III.
Regulation 6.3 of the Regulations reads under:
6.3 Where it is proposed to hold an inquiry, the Disciplinary Authority shall frame definite and distinct charges on the basis of the allegations against the officer employee and the articles of charge, together with a statement of the allegations, on which they are based, shall be communicated in writing to the officer employee, who shall be required to submit within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), or within such extended time as may be granted by the said Authority, a written statement of his defence.
(Underlining is by me)
11. A Division Bench of the Court in the case of G.V. Aswathanarayana v. Central Bank of India and Ors. DLR 2003 Kar. 3066 held as under:
'Fair hearing ore-supposes a precise and definite catalogue of charges so that the person charged may understand and effectively meet it. If the charges are imprecise and indefinite or vague or unintelligible, the person charged could not be able to understand them and defend himself effectively and in those circumstances, the subsequent enquiry would not be a fair and just enquiry. The charged official ought to be informed of the charges levelled against him as also the grounds upon which they are based. Charge of misconduct should not be vague. The charge-sheet must be specific and must set out all the necessary particulars and details irrespective of the fact whether the delinquent knows it or not, he must have told about the charges and it was not his duty to connect the charge-sheet with his alleged understanding or knowledge of the charge. The test is whether the charge conveys to the delinquent employee, the exact nature of the alleged misconduct in a way that would enable him to meet the charge effectively. It is well established that in a vague is given to a delinquent, it is a fatal defect, which vitiates the entire proceedings, It is also relevant to notice that the vagueness in the charge is not excused on the plea that the employee concerned should be deemed to have known the facts correctly. It should not be left to the delinquent official to find out or imagine what the charges against him one and it is for the employer to frame specific charges with full particulars.
12. In this case the charge against the petitioner is, mat despite the earlier discounted bills are returned unpaid/adjusted, the petitioner allowed further discounting of bills. It is further alleged that though the Zonal Office advised not to allow the discounting of bills of certain customers, the petitioner has allowed the discounting of bills. A reading of five charges levelled against the petitioner discloses that it lacks necessary details. It is not stated in the charge as to how many bills discounted returned unpaid, on what dates they are returned and what is the amount involved and who are those certain parties mentioned in the charge. The charge do not disclose whether the advise given by the Zonal Office to the petitioner was oral or in writing and that on what date. In the absence of specific details on the face of it the charges levelled against the petitioner are not definite and distinct Therefore, the change* levelled against the petitioner arc contrary to the mandatory requirement of Regulation 6.3.
13. The Enquiry Officer in his enquiry report extracts the relevant instructions in the Book of Instructions - Part II which roads sot under:
Item 31 (page 645) of Book of Instructions-Part-II Advances Vol-3 reads follows:
(i) 'If bills on a particular drawee and cheques drawn by a particular party are often returned unpaid, further bills on this drawee and cheques drawn by the same drawer should not be accepted.
14. According to respondent - Bank the petitioner violated this instruction. A reading of this instruction specifies, that if the discounted bills are often returned unpaid, then the further bills on the same drawee should not be accepted. The meaning of the word 'often returned' gains importance in mis fact situation. The meaning of the expression 'often' as per The Law Lexicon is, 'a word which implies repetition'. As per Chamber's 21 Century Dictionary 'often' means 'many times', 'frequently', 'in many cases'. As per Oxford Universal Dictionary Illustrated 'often' means, 'many times', 'frequently' As per New Websters Dictionary 'often' means, 'frequently', 'many times', 'repeatedly'. Therefore, the meaning of the word 'often' means many times. But in the charge against the petitioner the element of many times is absent. Hence, the charge is contrary to the instructions of respondent - Bank.
ON POINT No. IV.
15. Regulation 10 of the Regulations reads as under:
10. Common Proceedings
Where two or more officer employees are concerned in a case, the authority competent to impose a major penalty on all such officer employees may make an order directing that disciplinary proceedings against all of them may be taken in a common proceedings.
16. The object of holding common proceedings in cases whore two or more officer/employees arc involved is to avoid conflicting of decisions, inconsistent stands, to facilitate the parties to rely on same set of documents and oral evidence, to save public money and time. Admittedly, the charge sheet was issued to the petitioner and seven others. It is not in dispute that die charges levelled against the petitioner and seven others are inter-linked, identical and similar. Further, a perusal of the investigation report makes it clear that the primary accountability for certain irregularities in the respondent - Bank was fixed on seven other employees and not on the petitioner. The investigation report fixes the accountability on the petitioner that he did not ensure the compliance of certain instructions and regulations by the other employees. Therefore, the failure on the part of respondent - Bank in not holding a common enquiry proceedings against the petitioned: and seven others vitiates the enquiry proceedings as die same is contrary to Regulation 10 of the Regulations.
17. The contention of the respondent - Bank that the word 'may' in Regulation 10 of the Regulations is directory and not mandatory is unacceptable to me. The Supreme Court of India in the case of The Textile Corrarussioner and Ors. v. Sagar Textile Mills Private Limited and Ors. : [1977]2SCR825 held that the word 'may' is capable of meaning must or shall in the light of the context and where a discretion is conferred upon a public authority coupled with an obligation the word 'may* which denotes discretion should be considered to mean a command In view of this dictum of the Apex Court the word 'may' in Regulation 10 of the Regulations is not directory but it is mandatory. There are no reasons in this case for the respondent - Bank in not holding common proceedings against the petitioner and seven others particularly when the charges levelled against the petitioner and seven others arc inter-related and identical. Therefore there is no gubstance and merit in the contention of the respondent - Bank that the word 'may' in Regulation 10 of Regulations is directory and not mandatory.
ON POINT No. V.
18. It is settled position of law that tilts Court will not interfere with the findings of the enquiry except under three circumstances. They
(i) If the enquiry is opposed to principles of natural justice.
(ii) If the findings of enquiry are not supported by legally acceptable evidence,
(iii) If the punishment imposed shocks the conscience of the Court.
In the instant case, the findings of the Enquiry Officer Is not supported by any legal evidence. The oral evidence of five witnesses before the Enquiry Officer is biased These five witnesses were all employees of the respondent - Bank working in the Branch where the petitioner was working as Branch Manager. The investigation report reveals that the primary accountability was fixed on these five witnesses and others. Though the respondent - Bank issued charge sheets to these five witnesses, subsequently, they dropped the proceedings against these witnesses and continued the enquiry proceedings only against the petitioner. Thus, the evidence of these five witnesses are interested testimony in favour of the respondent - Bank Thus, the findings of the Enquiry Officer is not supported by any legally acceptable evidence.
ON POINT No. VI.
19. The investigation report dated 02.08,1994 fixes the primary accountability on seven employees of the respondent - Bank by name, Sri. R.L. D'souza, Smt. Mallika Hegde, Smt. Pretna Shetty, Sri. Chidambara Shetty, Sri. Annayya Shetty, Smt. Kamalakshi and Sri. MM. Bhat The investigation report Anther specifies, that the petitioner as Branch Manager failed to ensure compliance of the directions and instructions issued by the Zonal Office. The respondent - Bank issued charge sheets against the petitioner and seven other employees referred to above. The charge against the petitioner and seven others are identical and are interlinked. But, the respondent - Bank dropped the enquiry proceedings against the seven employees and continued only against the petitioner. In the enquiry proceedings, some of the above referred seven employees against whom the charges are dropped are examined as witnesses to prove the charges levelled against the petitioner. There is some force in the contention of the learned Counsel for petitioner that the respondent - Bank dropped the enquiry proceedings against the seven employees referred to above on the condition that they will depose against the petitioner in the enquiry proceedings. This act of quid-pro-quo on the part of the respondent - Bank is a clear case of victimisation of the petitioner.
20. The two customers of the respondent - Bank by name, M/s. Unity Laminations and M/s. Unity Engineering Industries (for short customers) enjoyed the goodwill and privilege from the higher-ups in Head Office and Zonal Office of the respondent - Bank, Though the petitioner as Branch Manager recommended for lesser limits of financial facilities to these customers, the Zonal Office sanctioned higher financial facilities to them. The Zonal Office further orally sanctioned huge financial facilities to the customers, Between December 1991 and March 1992, the petitioner fell sick and he was on sick leave for about three months. After a lapse of three months when the petitioner resumed duty he found that the customers were not prompt in remitting the amounts. The petitioner entertained a doubt about the two customers. Consequently, the petitioner inspected the factory and godowns of the customers and found that the customers have transferred their stock to another concern. Immediately the petitioner reported the matter to the Divisional Office and requested them to permit him to take immediate action to recall the loans granted to the customers, to take further action for recovery of the loans and also to seize the stocks which were pledged to the Bank by his letter dated 22.02.1992. On the other hand the Divisional Office and the Head Office of the Bank were lukewarm in reacting to this request of the petitioner. Finally, the petitioner filed two suits against the customers in O.S. Nos. 8213/1992 and 7891/1992 and obtained an order of attachment before judgment of immovable property of customers. Subsequently, the attachment before judgment of the property of the customers was also published in a local newspaper on 15.05.1992. This newspaper publication irritated the customers. Reacting to this and yielding to tile pressure of the customers, the Bank transferred the petitioner from West of Chord Road Branch to Infantry Road Branch, Bangalore. After transfer of the petitioner, the respondent - Bank settled the suits in O.S. Nos. 8213/1992 and 7891/1992 by giving a total concession of more than Rs. 50.00 lakhs to the customers. Long thereafter, charge-sheet was issued to the petitioner and was dismissed from service. These circumstances manifestly establishes the attitude of the Bank in vitimising the petitioner.
21. On verification of records pertaining to consultation with the Central Vigilance Commission produced by the respondent - Bank reveals that the Disciplinary Authority on recent of the enquiry report issued show cause notice to the petitioner. The Disciplinary Authority after considering the enquiry report and the cause shown by the petitioner opined to impose a penalty on the lower side. The respondent - Bank alter consultation with the Central Vigilance Commission advised the Disciplinary Authority to impose a major penalty of dismissal of petitioner from Bank's service. The Disciplinary Authority acting on the advise of the respondent - Bank levied a penalty of dismissal from service. This material on record establishes that the Disciplinary Authority has not taken an independent decision to levy the penalty of dismissal The order of penalty is passed at the instance of the respondent - Bank. Thus it is manifest on the face of it that the petitioner is victimised Therefore, the order of the Disciplinary Authority and the Appellate Authority arc unsustainable in law.
22. For the reasons stated above, the following;