Judgment:
1. An order made by the disciplinary authority dated 11-1-1990 and confirmed by the Appellate Authority dated 20-3-1990 and the orders made in a review petition by the reviewing authority dated 30-5-1991 are the subject-matters of this writ petition, by a dismissed employee, dismissed from the services of the respondent-Syndicate Bank ('the Bank' for short).
2. During the pendency of this writ petition before this Court, the dismissed employee has expired. With the permission of the Court the legal representatives of the dismissed employee, namely his wife and his minor child have come on record and they are prosecuting the petition filed by the deceased petitioner.
3. The deceased petitioner was an officer of the respondent-Bank. He was governed by the provisions of Syndicate Bank Officer Employees' (Conduct) Regulations, 1976 and the Syndicate Bank Officer Employees' (Discipline and Appeal) Regulations, 1976.
4. While he was working as a Branch Manager during the period 25-8-1984 to 1-2-1985 at Bartan Bazar, Moradabad Branch, Uttar Pradesh State, he was served with a charge memo dated 25-8-1986. The charge memo contained the statement of imputations, the list of documents and the list of witnesses on which the respondent-Bank would be relying on in support of the allegations contained in the charge memo. In the charge memo, petitioner was accused of violating Regulation 3(1) of the Syndicate Bank Officer Employees' (Conduct) Regulations, 1976 read with Regulation 24 of the Regulations. The charge memo that was served on the petitioner requires to be noticed and the same is extracted and it reads as under.-
'That during the period between 25-8-1984 and 1-2-1985 you were functioning as Manager of our Bartan Bazar, Moradabad Branch and that while functioning in your position as such during the said period, you granted/caused to be granted credit facilities in the account of M/s. Rajendra Flour and Allied Industries Private Limited by way of unsecured overdrawals in their OD accounts, discounting the bills and cheques.
That the transactions in question were authorised--(i) in excess of authority vested in you by the Bank;
(ii) weakening the security position of the Bank in detriment to the interest of the Bank;
(iii) by committing/causing to be committed various other irregularities more fully described in the statement of imputations of misconduct on your part here below:
You thereby abused your official position to cause derivation of undue pecuniary advantage by the parties concerned in detriment to the interest of the Bank.
By your above acts, you failed to discharge your duties will utmost integrity, honesty, devotion to duty and diligence and exhibited conduct unbecoming of the status of Bank officer and thus contravened Regulation 3(1) of the Syndicate Bank Officer Employees' (Conduct) Regulations, 1976'.
5. After receipt of the charge memo, petitioner had filed his reply denying the allegations contained in the charge memo and also had offered his explanation which promoted him to facilitate the VVIP customer of the Bank to make use of overdrawal facilities than the permissible limits. The disciplinary authority of the respondent-Bank not being satisfied with the explanation offered by the petitioner, had appointed one Sri B.R. Pai, as the enquiry officer to enquire into the allegations contained in the charge memo. The notice of enquiry was served on the petitioner. The first sitting of the enquiry proceedings was held on 4-3-1987 at the divisional office of Gaziabad. After completion of preliminaries in the enquiry proceedings, petitioner had requested the enquiry officer to direct the presenting officer or the disciplinary authority to furnish him certain documents. While making that request, he had also informed the enquiry officer the relevancy of those documents. He had stated that, those documents are required by him to defend himself effectively in the enquiry proceedings and also to cross-examine the witnesses of the management. The request made by the delinquent officer before the enquiry officer for the documents requested for is noticed by the enquiry officer. The documents that the petitioner had sought for and the relevancy of the documents are extracted in the note sheet made by the enquiry officer on 4-3-1987. At the end of the day's proceedings, the enquiry officer being satisfied with the relevancy of the documents which the delinquent officer was requesting, directs the presenting officer to furnish those documents or at least permit the petitioner to inspect the documents at a place and time to be notified by him. The directions issued by the enquiry officer is as under.-
'The presenting officer has delivered a list of documents along with photostats, which has been served on the delinquent officer against his acknowledgment.
Further, the presenting officer has submitted that Shri A.Y. Nayak is not admitting the charges, the enquiry may be proceeded with.
Hence, in terms of Regulation 6 of the Syndicate Bank Officer Employees' (Discipline and Appeal) Regulations, 1976, I have passed the following order:
(i) The presenting officer shall make available the documents cited by the officer for inspection and taking notes and the delinquent . officer is directed to get in touch with the presenting officer, secure appointment and inspect the documents at a place and time to be notified by the presenting officer.
(ii) The presenting officer shall keep me informed of the documents furnished and documents, if any, that have not been furnished with reasons so as to reach me by 5-4-1987'.
6. At this stage, I should definitely notice the language employed by the enquiry officer while directing the presenting officer to furnish the documents to the delinquent officer. In my view, he consciously uses the expression 'shall' and it means it should be mandatorily complied with by the presenting officer. In the context, the expression used by him cannot be read as 'may'.
7. The management of the respondent-Bank had examined two witnesses in support of the allegations made in the charge memo. Through those witnesses, they had also marked Exhibits Mx1 to Mx9. After completion of the recording of the evidence of the management witnesses and also cross-examination by the delinquent officer, the presenting officer produces before the enquiry officer 8 documents out of 13 documentswhich the petitioner had sought for. The enquiry officer while noticing this aspect of the matter observes as under.-
'With this the management concluded its evidence. At this stage in terms of Regulation 6(15) I enquired the CO whether he likes to give any statement in his defence. In reply CSO states that he wants to give oral statement before the enquiry which may be recorded.
At this stage the PO handed over the following documents requested by the CO at the time of the preliminary enquiry:
(1) Letter No. 201/79/8580/KDH/85/0087/511, dated 30-1-1985 addressed to Moradabad Branch by the sick unit: HO;
(2) Photostat copy of telegram addressed to Moradabad Branch by HO: Sick Unit Division;
(3) Photocopy of the letter No. 79/8580/AYM/MHD/84, dated 7-1-1984 addressed to DGM: New Delhi;
(4) Photocopy of the letter No. 3231/8580/AYM/MBD/84, dated 11-10-1984 of Moradabad Branch addressed to DGM:ZO:Delhi;
(5) Letter of Shri A.Y. Nayak dated 1-10-1984 addressed to DGM:ZO:Delhi;
(6) True copy of the letter No. PD:PAS/DLZ/5192/3993, dated 26-11-1984 of HO:Manipal addressed to J. Raghunath LDM:Morad-abad;
(7) Moradabad Main (Bartan Bazar) Branch letter No. 88/MBD/AYM/8580, dated 7-1-1985; addressed to the MD:HO:Ma-nipal;
(8) Letter No. PDPAS/DLZ/687/STO/3993, dated 20-11-1984 of PD:HO:Manipal.
Further defence at this stage requested that the other documents which they have mentioned in the preliminary enquiry be atleast made available to them subsequently after the enquiry to enable them to submit their written brief. PO agreed to make available the documents that are available with the management which were requested by the CO earlier as early as possible. Defence further stated that the above documents are not immediately required for their defence in the enquiry and are required to submit written brief at a later date'.
8. The aforesaid narration of the factual matrix during the enquiry proceedings demonstrate, that a direction was issued by the enquiry officer to the presenting officer for furnishing of the documents sought for by the delinquent officer before the commencement of the recording of the evidence of the witnesses, but the same were not furnished to the delinquent officer before the evidence of the witnesses was recorded. In the absence of those documents the delinquent officer had to proceed with the enquiry proceedings while cross-examining the managementwitnesses; otherwise he had to suffer an ex parte enquiry proceedings against him.
9. Petitioner had examined himself and he had not examined any other witnesses in support of his defence. After completion of the enquiry proceedings, the enquiry officer by his report dated 7-11-1988 is of the view that the petitioner is guilty of two of the components out of the 4 components in the charge memo.
10. After completion of the proceedings the enquiry officer had submitted a report and the records of the enquiry proceedings to the disciplinary authority of the respondent-Bank. The disciplinary authority after concurring with the findings of the enquiry officer proceeds to pass an order dated 11-1-1990, dismissing the deceased petitioner from the services of the respondent-Bank. The appeal and the review petition filed, as usual were rejected by the Appellate Authority and the reviewing authority of the respondent-Bank. It is the legality or otherwise of the orders made by the reviewing authority, Appellate Authority and disciplinary authority of the respondent-Bank dated 30-5- 1991, 20-3-1990 and 11-1-1990 respectively, are the subject-matters of this writ petition before this Court.
11. Before I notice the contentions canvassed by the learned Counsel for the parties to the lis, let me notice the procedure that is prescribed by the respondent-Bank for imposing major penalties.
Regulation 6 of the Regulations provides for procedure for imposing major penalties.
Sub-regulation (10) of Regulation 6 of the Regulations mandates that, the disciplinary authority shall supply the list of documents and the list of witnesses by whom the articles of charges are proposed to be proved.
Clause (ii) of sub-regulation (10) of Regulation 6 of the Regulations provides that the officer employee may for the purpose of his defence submit a list of documents and witnesses that he wants for the enquiry. The note appended to Clause (ii) of sub-regulation mandates that the officer employee while submitting the list of documents he would inform the relevancy of the documents requested for, to the enquiry officer.
12. Sub-regulations (11) and (12) of Regulation 6 of the Conduct and Discipline Regulations of the Bank requires to be noticed and they are as under:
'(11) The inquiring authority shall, on receipt of the notice for the discovery or production of the documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents on such date as may be specified.
(12) On the receipt of the requisition under Sub-Regulation (11), the authority having the custody or possession of the requisitioned documents, shall arrange to produce the same before the inquiring authority oh the date, place and time specified in the requisition:
Provided that the authority having the custody or possession of the requisitioned documents may claim privilege if the production of such documents will be against the public interest or the interest of the Bank. In that event, it shall inform the inquiring authority accordingly'.
13. Sub-regulation (11) provides that the inquiring authority, after receipt of the notice for production of the documents, forwards the same to the authority in whose possession the documents are kept, with a requisition for the production of the documents on the date notified by him. Sub-regulation (11) of Regulation 6 mandates that the officer in whose possession the documents are kept on receipt of the requisition made under sub-regulation (11) shall arrange to produce the same before the inquiring authority on the date, place and time specified in the requisition. Proviso appended to sub-regulation (12) provides exception to the mandatory requirement envisaged under sub-regulation (12) of Regulation 6. The exception contained in the proviso is that, the person having custody or possession of the requisitioned documents may claim privilege, if the production of such documents will be against the public interest or the interest of the Bank. In such an event, the person having the custody of the documents is required to inform the same to the inquiring authority accordingly.
14. In the present case, as required under Clause (ii) of sub-regulation (10) of Regulation 6, the petitioner, immediately after completion of preliminaries, on the first date of the enquiry proceedings by the enquiry officer, had submitted list of documents that he would require for the purpose of his defence and to effectively participate in the enquiry proceedings. The enquiry officer being satisfied with the relevancy of the documents sought for by the petitioner, had directed the presenting officer to make available the documents sought for by the petitioner. For the reasons best known to the presenting officer and the disciplinary authority, the documents were not furnished to the petitioner before recording the evidence of the management witnesses not they claimed any privilege on the ground that the production of the documents will be against the public interest or interest of the Bank. In fact, they do not come out with any reason whatsoever for non-furnishing of the relevant documents which the petitioner had sought for at the earliest point of time for effectively participating in the enquiry proceedings including for cross-examination of management witnesses. Without intending to be exhaustive, at this stage itself, it may be stated that rules of natural justice requires that a party should have an opportunity of adducing all relevant evidence and that he should also be given sufficient opportunity to effectively participate in the enquiry proceedings, that includes furnishing of relevant documents to the delinquent officer to effectively cross-examine the management witnesses. In order to find out, if there has been failure of natural justice, two aspects require to be kept in mind. The first one is, the relevant provision of the statute under which the action is taken and secondly, whether the non-supply of the documents has caused prejudice to the delinquent officer during the enquiry proceedings. As I have already observed, the statute provides for supplyof documents to the delinquent officer during the enquiry proceedings. It also provides, under what circumstances the production of the documents could be withheld. Now the law on the point, whether the non-furnishing of the documents has caused prejudice to the delinquent officer in the enquiry proceedings, is explained by the Apex Court in the case of State of Tamil Nadu v. Thiru K.V. Perumal and Ors. In the said decision, it is observed that, the enquiry officer/disciplinary authority is only bound to supply relevant documents and not each and every document asked for by the delinquent officer/employee. Secondly, whether the document asked for are indeed relevant documents and whether their non-supply has prejudiced the case of delinquent officer and lastly, it is the duty of the delinquent officer to point out how each and every document was relevant to the charges or to the enquiry being held against him and whether and how their non-supply has prejudiced his case. Lastly, it is the duty of the Courts and the Tribunal to record a finding whether the relevant documents were not supplied and whether such non-supply has prejudiced the delinquent officer/employee's case. The test to be applied in that behalf is as set out in the case of State Bank of Patiala v. S.K. Sharma.
15. Keeping these first principles in view, let me now refer to the contentions canvassed by learned Counsels for the parties.
16. The learned Counsel, Col. Nair (Retired), for petitioners submits that the inquiry officer/disciplinary authority has not furnished the documents in spite of repeated request being made by the delinquent officer. That had prevented the delinquent officer to deny his guilt and establish his innocence by filing additional defence statement and effectively cross-examining the management witnesses. Therefore, the decision making process is vitiated.
17. Per contra, learned Counsel for respondent-Bank, Sri Radhesh Prabhu submits that the documents that was sought for has no relevance to the charges alleged and the enquiry held and therefore, the non-supply of the documents sought for by the petitioner has not caused prejudice to the petitioner and therefore, the proceedings are not vitiated on the ground of violation of principles of natural justice. Alternatively, it is contended that the documents which the petitioner had sought for were supplied by the presenting officer to the delinquent officer after recording the evidence of the management witnesses and therefore, no prejudice is caused to the delinquent officer. In support of his case, the learned Counsel relies on the observations made by the Apex Court in the case of State Bank of Patiala, supra,
18. To appreciate the contention canvassed, let me first notice the accusation made against the delinquent officer in the charge memo dated 25-8-1986. The primary allegation was that while he was functioning as a Branch Manager of Bartan Bazar Branch, Moradabad, by disobeying the orders of Regional Office had granted credit facilities in theaccounts of M/s. Rajendra Flour and Allied Industries Private Limited by way of unsecured overdrawals in their O.D. accounts in excess of authority vested in him by the Bank and thereby failed to discharge his duties with utmost integrity, honesty, devotion to duty and diligence and exhibited conduct unbecoming of the status of Bank Officer.
19. The delinquent officer while filing his defence statement had denied the charges alleged against him and also had stated that even before he took charge, the customer was permitted to make the overdrawals upto Rs. 27 lacs. Apart from stating so in his reply, the delinquent officer repeats his defence before the enquiry officer on the first date of enquiry proceedings. The same is noticed by the enquiry officer in his proceedings dated 4-3-1987. The same requires to be noticed and therefore it is extracted and it reads as under.-
'I was transferred from Moradabad Branch on 1-2-1985 without even allowing me time to file a suit against the party when the party was attempting to walk away with Rs. 20 lacs being insurance claim that was received by them. I shall prove to your satisfaction the circumstances surrounding my removal from Moradabad Branch at a later stage.
Our Lucknow Zonal Office had sanctioned a limit of Rs. 18 lacs through ODGH and OBGP in addition to the party's irregular ODGH balance of about Rs. 27 lacs which was continuing from 1978 onwards. Apart from releasing the sanction of Rs. 18 lacs, I have not given any overdrawal or facility to the party, which, I shall prove to your satisfaction at a later stage.
An amount of Rs. 9 lacs has been altered in OG72 after I ordered discounting of cheques totalling to Rs. 1,94,876/-. A cheque of Rs. 9 lacs was included in the discounting and the party has in a criminal and fraudulent manner derived higher pecuniary advantage to the tune of Rs. 9 lacs. The party has not disputed driving the pecuniary benefit. The documents at the branch make it very clear that the OG 72 and the particulars of cheques on its reverse were altered. The Bank has, instead of treating the matter as one of fraud committed by the party, taken a view that it was overdrawal allowed by me, which is not the correct position and this fact, I shall prove to you at the appropriate stage.
During my short tenure at Moradabad Branch, the amount released by me is in terms of the sanction, fulfilling all the conditions of the letter of sanction. The charge-sheet and the letter from HO: Vigilance Cell do not give the correct picture and make it appear that I have given overdrawals to an extent of Rs. 52 lacs. I desire to prove that the position is not so.
The party was dealing with the branch since 1978 and against an overdraft limit of Rs. 5 lacs, overdrawals were allowed upto Rs. 27 lacs. When I took charge on 25-8-1984, not only this irregularity was existing but after recommending, the then branch authorities had got sanctioned to the party, a further limit of Rs. 18 lacs. Thereasons for such a generosity on the part of the branch is not clear to me. In that situation, if I had not released the sanctioned facility to the party, I would have faced danger to my life and belongings as the party was putting pressure politically and emotionally.
The party was originally sanctioned a limit of Rs. 5 lacs in 1978 which was time barred in 1981, which was again getting time barred in 1984. I had gathered that one of the reasons for sanctioning of additional facilities is to ensure that the already locked up Rs. 27 lacs should be secured and the documents should be got renewed before they are time barred. Sharing the anxiety of my superiors on this count, I as well as the Lucknow Zonal Management thought it fit to release the facilities.
The objection to the release of facilities if at all any, came only after my removal from Moradabad. I have sent the BCS on the day of arranging the facilities that is on 14th September, 1984. If there were to be any objections, I could have been informed at any time before my removal.
The party was neither introduced by me nor their proposals were proposed by me. The transactions and the final facilities given to the party before my joining was so huge that anyone posted in my place could have prevented its release. Though this was a proposal requiring sanction of the Board of Directors, it was sanctioned in extreme haste and this will show that the party was capable of bringing pressure on the Bank, let alone, on me. I desire to establish these facts during the regular hearing of the enquiry'.
20. The delinquent officer to substantiate his defence and explanation requests the enquiry officer to direct the management to furnish him the documents which were in the custody of the Regional office. While making the request, the delinquent officer not only furnishes the particulars of the documents but also the relevancy of each document and the person in whose possession the documents are available. The documents sought for by the petitioner is as under.-
'To enable me to defend myself, I require the following documents. I am furnishing the relevance of the documents as required under the regulations and submit that the enquiry officer may direct the management to make them available.
Particulars
Relevance
Where document is held
1. Copy ofthe letter by HO:LRO:ZO directing the branch to file a suit in 1984 on thesticky liabilities of Rs. 27 lacs.
To showthat there was a irregular balance to the tune of Rs. 27 lacs when Rs. 18lacs were sanctioned and to show that the Bank at one stage had decided tofile a suit but the same was not filed by the branch authorities.
Held withHo/Lucknow Zonal Office/Moradabad Branch.
2. Detailsof steps taken/Vakil notice given for recovery of Rs. 27 lacs.
To showthat recovery steps were proposed but were not taken, that advance was notrecalled, that report was not made to the guaranteeing organisation.
Held withMoradabad Branch.
3.Statement of overdrawals allowed by the branch in ODH No. 29 of 1978 from1978 to 25-8-1984.
To showthat habitually huge overdrawals were given before my joining the branch andto show the extent of patronage enjoined by the party through hisinfluence/pressure.
MoradabadBranch/ Lucknow Zonal Office.
4.Instructions issued by zonal office in the matter of steps for recovery ofODH No. 29 of 1978. 5. Proposal of the party and recommendations of thebranch for sanction of additional facilities of Rs. 18 lacs as per sanctionletter dated 17-4-1984.
To showthat the steps taken for recovery were either inadequate or insufficient ornot taken at all.
LucknowZonal Office.
To showthat the branch was keen on financing the party notwithstanding seriousirregularities already existing in the account.
LucknowZonal Office or Moradabad Branch.
6. Detailsof action taken by the then Manager of Moradabad Branch, Shri Mohatmmad Afzaluddinon HO letter No. LRO/LAD/25003/1712 of 1984, dated 4-8-1984.
To showthat in spite of HO instructions through this letter, no corrective orremedial action was taken.
MoradabadBranch.
7. Leaveapplication of the undersigned for leave availed between 21-8-1984 and24-11-1984.
To showthat the letters received during the leave of the undersigned were suppressedand not made available to me.
MoradabadBranch.
8. Chargetaking report of the undersigned dated 25-8-1984.
To showthat I was directed to take charge and relieve Shri Afzaluddin immediatelywithout going into the affairs of the branch in detail.
MoradabadBranch.
9. Telexand Telegrams received from HO: Large Advances Section directing me to filesuit for attachment of insurance claim of Rs. 20 lacs.
To showthat on my own initiative, I had approached HO for permission to attach aninsurance claim of branch. Rs. 20 lacs which the party was trying to extractfrom the Insurance Company and use it for himself.
HO: LargeAdvances Section/ Lucknow Zonal Office, Moradabad,
10.Relieving order, if any, on my relief from Moradabad and direction, if any,to Shri P. Ragunath, Lead District Manager to assume charge of MoradabadBranch during my absence.
To showthat I/was not allowed to file suit against the party for reasons best knownto the administration. To also show that I was prevented from making anyrecoveries from the party of the amounts which I knew were held by them. Toalso show that Shri Raghunath was foisted upon Moradabad Branch with specificinstructions to remove me as claimed by him.
HO:Personnel Department/Vigilance Cell, Lucknow Office.
11. Copyof my transfer order bearing my acknowledgement thereon.
To showthat a transfer order was issued to me in November 1984 and delivered to mein January 1985 and thereafter, removing me from Moradabad Branch in theabove manner.
MoradabadBranch/Ghaziabad Divisional Office.
12. BCS inrespect of ODH No.35 of 1984 along with notings and instructions passed byZonal Office, Lucknow.
To show that the release of Rs. 18 lacs was within the knowledgeof Zonal Office and this was done with their knowledge and without anyobjections from their side.
LucknowZonal Office.
13. Legalopinion given by Shri Qumar Hussain, Advocate and Bank's Counsel, Lucknow.
To showthat in terms of the sanction, legal opinion was obtained and they haveopined that the release of facilities and taking debt acknowledgement oforder papers by me has secured the position of the Bank.
LucknowZonal Office'.
21. The enquiry officer after going into the question whether the documents asked for are indeed relevant documents to the charges alleged and to the enquiry being held, directs the presenting officer to make available the documents cited by the delinquent officer for inspection and for making notes, if any. He further directs the inquiry officer to keep him informed the documents furnished and those documents which are not furnished so as to reach by 5-4-1987. These mandatory directions are issued by the enquiry officer, strictly in compliance with the procedure prescribed under sub-regulations (11) and (12) of Regulation 6 of the regulations. The directions issued by the enquiry officer clearly demonstrates that firstly, he was satisfied with the relevancy of the documents, which the delinquent officer was requesting by his request made on 4-3-1987. For the reasons best known, those documents were not furnished by the management to the delinquent officer before recording the evidence of the management witnesses by the inquiry officer and what was permitted for inspection to him before recording of the management witnesses was only the original documents of which photostat copies were given to him at the time of preliminary enquiry.
22. The management of the Bank, in support of the charges alleged in the charge memo examines as its witnesses one Sri T. Shanbhogue, who was working as a manager at vigilance unit of the Bank of Calcutta. In his cross-examination, he specifically states that he has investigated all the transactions of M/s. Rajendra Flour Mills. Apart from others, he specifically admits that when the fresh limits were arranged in ODH account was a balance of Rs. 26.39 lacs as against the sanctioned limit of Rs. 5 lacs and that limit had been exceeded even prior to delinquent officer took charge as branch manager of the respondent-Bank. In my view, if Item 3 in the list of documents had been furnished to him, he would have been in a better position to prove that overdrawals in theaccounts of M/s. Rajendra Flour and Allied Industries Private Limited was granted by his predecessor branch managers and not by him and non-furnishing of the said document to him in my opinion, has caused prejudice to the delinquent officer while cross-examining the management witnesses. Similar is the case in respect of other documents sought for by the delinquent officer. Therefore, in my opinion, the learned Counsel for the respondent-Bank is hot justified when he contends the non-supply of the documents to the delinquent officer has not prejudiced his case in any manner whatsoever. In my opinion, the meaning of reasonable opportunity of showing cause against the action proposed to be taken is that the employee officer is afforded a reasonable opportunity to defend himself against the charges on which the enquiry is held. He can do so, provided he is furnished with relevant documents to effectively cross-examine the management witnesses with the assistance of relevant documents. Otherwise, the proceedings held against him would be unfair and unjust and the entire enquiry proceedings would be vitiated.
23. The Apex Court in the case of State Bank of Patiala, supra, was pleased to observe as under.-
'In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment'.
24. In the present case, provisions of sub-regulations (11) and (12) of Regulation 6 of the Regulations are procedural provisions. Violation of the same will automatically vitiate the enquiry proceedings. But I have examined whether the violation of these procedural provisions has prejudiced the case of the delinquent officer. On facts, since I have come to the conclusion, the non-supply of documents which the delinquent officer had requested in the commencement of the enquiry proceedings has prejudiced his case in effectively and usefully cross-examining the management witnesses in establishing his innocence, the decision making process is vitiated and consequently the order imposing punishment cannot be sustained.
25. Sri Radesh Prabhu, learned Counsel for the respondent-Bank nextly contends that the petitioner had disobeyed the express directions issued by the superior officers of the respondent-Bank and the same would amount to misconduct and contravention of Regulation 3( 1) of the Syndicate Bank Officer Employees' (Conduct) Regulations, 1976 and the only punishment that could be imposed in such cases is the dismissal from service. In aid of his submission, the learned Counsel relies on theobservations made by the Apex Court in the case of Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik.
26. This contention of the learned Counsel requires to be noticed only to be rejected. In Nikunja Bihari's case, supra, the Apex Court has not stated, that the employer without an appropriate enquiry in accordance with law and in accordance with rules of natural justice, can still impose a punishment of dismissal from service, even assuming for a moment that the delinquent officer has disobeyed the directions issued by regional office in permitting the overdrawals by a customer. My understanding of the observations made by Apex Court in the aforesaid decision is that though the acts alleged even though might not have resulted in loss, yet the duty of the employee/officer is to act within the discipline and if an officer/employee acts contrary to the guidelines/instructions/circulars issued by the superior officer or head office, and it is only on a finding of guilt by the enquiry officer after holding an enquiry in accordance with regulations governing the employee/officer and in accordance with principles of natural justice, the punishment that could be imposed is dismissal from service. Therefore, in my view, the submission of the learned Counsel for the respondent-Bank has no merit whatsoever and the reliance placed on the observations made by the Apex Court in Nikunja Bihari's case, supra, is wholly misplaced.
27. In conclusion, here is a case where it is an admitted fact that the enquiry officer after being satisfied with the relevancy of the documents which the delinquent officer was seeking before him, had specifically directed the presenting officer to provide those documents to the delinquent officer to effectively participate in the enquiry proceedings. The presenting officer of the respondent-Bank does not claim privilege over the documents which the petitioner had sought for. It is also an admitted position that the documents which the petitioner had sought for, that is 8 documents out of 13 documents were furnished to him only after completion of the recording of the evidence of the management witnesses. In my opinion, if the petitioner was furnished with the documents which he had sought for before the commencement of the recording of the evidence, he would have been in a better position to defend himself in the enquiry proceedings. Since that has not been done, in my opinion, the action of the respondent-Bank is not only arbitrary but in violation of the principles of natural justice.
28. Learned Counsel for the respondents now before this Court cannot contend that the documents which the petitioner had sought for has no relevancy whatsoever. It is for the enquiry officer to find out the relevancy or irrelevancy of the documents which the delinquent officer was requesting before him for production by the disciplinary authority. In the present case, the enquiry officer after being fully satisfied with the relevancy of the documents which the delinquent officer was seeking, had specifically directed the presenting officer to furnish those documents to him. In that view of the matter, the submission of the learned Counsel for the respondent that the documents which the petitioner had sought for has no relevance cannot be accepted.
29. It is now well-settled position of law that the express directions issued by the superior officers and the guidelines issued by the head office of the Bank should be scrupulously followed by the subordinate officers. In the instant case, it is the allegation of the respondent-Bank that the petitioner has disobeyed the directions issued by the superior officers and also the guidelines issued by the head office. Whether petitioner has disobeyed the directions issued by the superior officers of the respondent-Bank has to be investigated in an enquiry held in accordance with law and in accordance with the principles of natural justice. Merely because an allegation is made against the petitioner that he has disobeyed the directions issued by the respondent-Bank and merely because the delinquent officer in his reply states that he has to disobey the directions so issued because of various circumstances, does not mean to say that he has accepted the guilt that the respondent-Bank was alleging against him. In a case of this nature, the respondent-Bank was expected to hold an enquiry in accordance with law. Since that has not been done, in my opinion, the decision making process is vitiated.
30. The delinquent officer in the appeal filed by him had raised all the aforesaid contentions, but the Appellate Authority in a most mechanical manner has proceeded to confirm the orders made by the disciplinary authority. Therefore, even the orders made by the Appellate Authority cannot be sustained. Atleast the reviewing authority should have noticed all these aspects of the matter. But, even the said authority once again proceeds to confirm the orders made by the Appellate Authority without considering any one of the grounds raised by the petitioner in the review petition filed before it. In view of all this, in my opinion, the orders made by the reviewing authority, Appellate Authority and the disciplinary authority require to be set aside by this Court.
31. Accordingly, the following;
ORDER
I, Petition is allowed. Rule made absolute.
II. The impugned orders made by the disciplinary authority dated 11-1-1990, Appellate Authority dated 20-3-1990 and reviewing authority dated 30-5-1991, respectively are set aside.
III. Since petitioner has expired, question of reinstating him into service would not arise and the legal representatives of the deceased petitioner are only entitled to monetary benefits. Therefore, respondent-Bank is directed to calculate the monetary benefits payable to the deceased petitioner from the date of suspension till the date of payment in accordance with the service regulations of the respondent-Bank with interest at 12% within three months from today and make payment within the time prescribed.
IV. The question of holding an enquiry from the stage the defects are noticed by this Court would not arise, since the delinquent officer has expired during the pendency of these proceedings before this Court.
V. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.