Sampada Joshi and ors. Vs. Bank of Maharashtra and ors. - Court Judgment

Excerpt:
service - opportunity to defend - petitioner was employee of respondent bank - charges of misconduct leveled against him - departmental enquiry was initiated against him - after conclusion of enquiry he was found guilty of misconduct - subsequently he was dismissed from service - hence, present petition challenging order of dismissal - held, according to facts in departmental enquiry petitioner was given reasonable opportunity to defend himself - he was heard - petitioner did not cross examine complainant witnesses - all procedural requirements had been complied with before passing order of dismissal - hence, interference by court in order of dismissal unwarranted for - petition accordingly dismissed - constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay.....orderarun mishra, j. 1. late shri s.s. joshi was an employee of bank of maharashtra. he died during pendency of the writ petition. his legal representatives are continuing the writ petition.2. late shri s.s. joshi was appointed as clerk in the erstwhile bank of nagpur which merged in bank of maharashtra in 1961. subsequently, he was promoted as officer and thereafter as manager in april, 1978. in the month of april, 1980, meeting was arranged at bhopal of chairman of bank of maharashtra and the branch managers of the bhopal division. certain remarks were made by chairman against the family of the branch. managers and employees. when the petitioner was asked to move vote of thanks, he criticised the chairman dr. m.v. patwardhan, due to which he became revengeful. petitioner was a union.....

Judgment:
ORDER

Arun Mishra, J.

1. Late Shri S.S. Joshi was an employee of Bank of Maharashtra. He died during pendency of the writ petition. His legal representatives are continuing the writ petition.

2. Late Shri S.S. Joshi was appointed as Clerk in the erstwhile Bank of Nagpur which merged in Bank of Maharashtra in 1961. Subsequently, he was promoted as officer and thereafter as Manager in April, 1978. In the month of April, 1980, meeting was arranged at Bhopal of Chairman of Bank of Maharashtra and the Branch Managers of the Bhopal Division. Certain remarks were made by Chairman against the family of the Branch. Managers and employees. When the petitioner was asked to move vote of thanks, he criticised the Chairman Dr. M.V. Patwardhan, due to which he became revengeful. Petitioner was a union leader and he was President of the Award Staff. Bank of Maharashtra has framed regulations named as Bank of Maharashtra Officers Employees (Discipline and Appeal) Regulations, 1976. Certain irregularities were pointed out and the petitioner was suspended on September 22, 1980 at the instructions of Asstt. General Manager. A charge sheet was issued on April 8, 1981. Charges were denied by submitting a reply. Mr. V.J. Highway was appointed as enquiry officer. Enquiry was directed to be held at Jabalpur whereas the petitioner was under suspension at Eklahra. The petitioner was getting only subsistence allowance. Enquiry was held at a different place so that he may not be able to attend the enquiry. He asked for TA/DA for attending the enquiry but no TA/DA was given to him. Management constrained him to attend the enquiry without TA/DA on the pretext that the matter was referred to the higher authority. Petitioner attended enquiry, but no defence counsel/assistant was provided; he could not cross-examine the witnesses properly. He was forced to admit some of the charges. He filed a statement of defence Annexure P/7. An enquiry report was submitted on April 13, 1982, but copy of the enquiry report was not furnished to the petitioner. Relying on the enquiry report, order of dismissal was passed. For charge Nos. 3 and 4, the petitioner was dismissed from service with immediate effect, and for charge Nos. 1, 2 and 5 punishment of removal from service was ordered.

3. Petitioner submits that Divisional Manager himself became complainant as well as judged the issue; there was allegation of disobeying the orders issued by Divisional Manager. Thus, initiation of enquiry by Divisional Manager and award of punishment by him is against the principles of natural justice. An order was issued on May 18, 1982. Another order was issued on June 7, 1982 which mentioned that for all the charges petitioner was removed from service. Order Annexure P/9 dated May 18, 1982 was issued by Divisional Manager whereas order dated June 7, 1982 (Annexure P/10) was issued by Asstt. General Manager. Petitioner filed an appeal challenging the dismissal. Appeal was dismissed on May 11,1985. The appeal was dismissed in mechanical manner. Review was also filed which was dismissed on April 2, 1987 as per Annexure P/14.

4. The petitioner submits that his removal is bad in law as he was removed by Divisional Manager whereas appointing authority is Asstt. General Manager which is violative of Article 311(1) of Constitution of India. Dismissal of appeal and review was made in mechanical manner. The findings are based on no evidence. Order is retrospective in operation; hence is liable to be set aside. He was not heard on the quantum of penalty.

5. Respondents Nos. 1 to 4 in their return contend that late Shri S.S. Joshi committed several financial irregularities and breach of trust which was reposed in him and acted prejudicially to the interest of the institution. He committed breach of trust and faith reposed by him by not submitting noting/proposals; he has misled the higher authorities and failed to discharge his duties. He committed breach of rules of business in exercising powers conferred upon him. He also committed breach of Regulation 3 of Bank of Maharashtra Officers Employees (Conduct) Regulations, 1975 which amounts to gross misconduct punishable under the Bank of Maharashtra Officers Employees (Discipline and Appeal) Regulations, 1976. Petitioner admitted the allegations contained at Sr. No. 1, 3 and 5. The allegations at Sr. No. 2 and 4 were not accepted, therefore, enquiry was held in respect of these charges. He was afforded an opportunity of inspection; management examined two witnesses, namely, D.V. Gijre and A.A. Bhinde. The petitioner was asked to cross-examine the witnesses which he declined. The Presenting Officer as also the petitioner submitted written submissions. The enquiry officer found charge Nos. 2 and 4 proved and petitioner was found guilty of defying and disobeying the instructions of higher officials, by granting advances indiscreetly without proper scrutiny and assessment, thereby ignoring the safety of the Bank money. He was given an opportunity to defend himself; there was no infirmity in the appellate as well as the order passed by the reviewing authority. The petitioner did not ask for any defence assistant; he should have asked for it. Enquiry was held by independent senior officer. The order dated June 7, 1982 issued by Asstt. General Manager only communicates the dismissal order passed by the disciplinary authority. Divisional Manager is the disciplinary authority; was competent to inflict punishment imposed on the petitioner; appeal was considered by totally a different authority. Bank officer is not a civil servant, hence provision of Article 311 of the Constitution of India is not attracted. Supply of the enquiry report to the charge sheeted officer/employee before passing of final order by Disciplinary Authority is not required as per Bank of Maharashtra Officer Employees' (Discipline and Appeal) Regulations, 1976. Second show cause notice as to penalty was not required. Divisional Manager, as a matter of fact, was competent to impose the punishment being disciplinary authority as per Board Resolution R/8, therefore, was competent to deal with the cases of disciplinary action.

6. Learned counsel for petitioners submits that non-supply of the enquiry report has caused prejudice to the petitioner. It was essential to be supplied. The petitioner was dismissed by Divisional Manager whereas he was not an appointing authority. Thus, the dismissal of petitioner is violative of Article 311(1) of Constitution of India. Notice of penalty was not issued.

7. Learned counsel for respondents submits that show cause notice as to penalty is not necessary and is not provided under the rules. Copy of the enquiry report is also not required to be supplied as per regulations and no prejudice has been shown on these accounts and the decision of Union of India and Ors. v. Mohd. Ramzan Khan, AIR 1991 SC 471 1991 (1) SCC 588 : 1991-I-LLJ-29 is prospective.

8. The first submission raised that Divisional Manager was not competent to inflict the punishment as he was below in rank than the appointing authority, hence the action is violative of Article 311(1) of: Constitution of India. The submission raised need not detain much as the Supreme Court has held in Pyare Lal Sharma v. Managing Director, Jammu and Kashmir Industries Ltd. and Ors., AIR 1989 SC 1854 : 1989 (3). SCC 448 : 1990-I-LLJ-32 that employees of the State Bank do not fall under any of the categories specified in Article 311 of Constitution of India. They cannot be treated to be in civil service of the Union and All India Service or Civil Service of State; they cannot be said to hold a civil post under the Union or the State. Similar is the view laid down in State Bank of India v. S. Vijaya Kumar, AIR 1991 SC 79 : 1990 (4) SCC 481 : 1991-II-LLJ-122 and by this Court in Ram Dhin Gupta v. State Bank of India and Anr., 1989 MPLJ 552.

9. In the instant case, it is apparent from resolution R/8 of the Board that Divisional Manager is the competent disciplinary authority for rank of Branch Manager; thus was competent to inflict the punishment being disciplinary authority.

10. As to non-supply of the enquiry report, it is the common case that regulations did not provide for it. The order of punishment was passed in May, 1982. What prejudice has been caused due to non-supply of the enquiry report has not been established. The petitioner had admitted charge Nos. 1, 3 and 5 and did not cross-examine two witnesses examined by management. He submitted his defence version which was taken into consideration. Firstly, I am of the opinion that no prejudice has been established on account of non-supply of enquiry report. The decision of Ramzan Khan's (supra) is prospective in application; the case as decided on November 20, 1990, eight years after the punishment was imposed on the petitioner in the instant case. Thus, it cannot be said that enquiry stood vitiated due to non-supply of enquiry report. In Commandant, Central Industrial Security Force and Ors. v. Bhopal Singh, AIR 1994 SC 573 : 1993 (4) SCC 785 : 1995-II-LLJ-829 the Supreme Court held that if the removal order was passed before the decision in Ramzan Khan's case, the punishment cannot be set aside for non furnishing of the copy of enquiry report. Similar is the view expressed in Managing Director ECIL, Hyderabad v. B. Karunakar AIR 1994 SC 1074 : 1993 (4) SCC 727 : 1994-I-LLJ-162.

11. The next submission is about the disciplinary authority acting as a judge in its own cause inasmuch as violations of directions of Divisional Manager were complained of and the Divisional Manager himself passed the order of punishment.

12. The submission has no force at all as it cannot be said that disciplinary authority cannot look into the violations of the various instructions issued by it or by superior officers. It is open to disciplinary authority to look into the violations of the instructions issued by it and whether such a violations constitute misconduct or not; it cannot be said that disciplinary authority acted as a judge in its own cause. Disciplinary authority himself can be enquiry officer and first assessing authority; it can consider the evidence while finding out whether, the delinquent is guilty and liable to be punished.

13. Principles to be followed in context of disciplinary enquiry and order of punishment imposed by the employer upon employee are considered by the Supreme Court in State Bank of Patiala and Ors. v. S.K. Sharma, AIR 1996 SC 1669 : 1996 (3) SCC 364 : 1996-II-LLJ-296. In cases of violation of the rules, regulations, statutory provisions governing such enquiries, order/enquiry should not be set aside automatically. It should be enquired whether the provisions violated is of substantive nature or whether it is procedural. Substantive provisions require compliance; procedural require to provide an adequate opportunity to the delinquent officer/employee except cases falling under 'no notice' 'no opportunity' and 'no hearing'. The complaint of violation of procedural provision should be examined from the point of view of prejudice. Where employee defended himself effectively and properly in an enquiry if no prejudice is shown, no interference is called for. If the procedural provisions are of fundamental character, the Court may not insist on proof of prejudice. Where no opportunity was given to lead defence evidence, no prejudice need be shown, as prejudice is self- evident. If procedure has been substantially complied with, there is no prejudice. If a person waived procedural provision, then the order of punishment cannot be set aside on the ground of said violation. Where enquiry is not governed by rules/regulations, the only observation is to observe the principles of natural justice. There has to be distinction made between 'no opportunity' and 'no adequate opportunity'. The Courts are to ensure that there was no failure of justice and interest of state or public interest may call for a curtailing or the rule of audi alteram partem in suitable cases.

14. In Oriental Insurance Company v. S. Balkrishanan, 2001-II-LLJ-494 where the interference was made by the High Court on the ground that non-supply of enquiry report has vitiated the entire proceedings, the decision of Ramzan Khan (supra) was considered and the Supreme Court held that it is necessary to establish the prejudice which is said to have been caused to the delinquent and in absence of it, non-supply of enquiry report could not have been held to have vitiated the entire proceedings.

15. In the instant case, petitioner had admitted charge Nos. 1, 3 and 5. Charge No. 1 related to sanction and disbursing the advances exceeding discretionary powers under the Rules in 111 cases. Charge No. 3 which petitioner admitted was about finance without proper documentation and thus involved in serious losses by an act of his gross negligence in 111 cases mentioned in Annexure II. Charge No. 5 which was also admitted was about purchase of BPs/BDs without processing the proposal documentation and information/permission of the higher authorities and by exceeding his discretionary powers in the cases mentioned in Annexure-II. Charge Nos. 2 and 4 were proved by the management by examining the witnesses. Charge No. 2 relates to disbursement of the advances without processing the proposals and/or without submitting the nothings to higher authorities in 111 cases. Charge No. 4 was about continued disobedience of the instructions and breach of instructions given to him from time to time and also ignored the cautions given repeatedly against the deviations of Bank rules and procedures; details of which were given. All the charges were of serious nature. Three of them were admitted and charge Nos. 2 and 4 were established by examining the witnesses, petitioner did not choose to cross-examine them at all. Petitioner did not ask for a defence representative. Thus, it cannot be said that he was prejudiced in any manner since he attended the enquiry, it cannot be said that it is vitiated for the reason that it was conducted at Jabalpur. No other infirmity in the enquiry is pointed out.

16. Last submission is about the non-issuance of the notice before inflicting the punishment.

17. It is not shown that any rule exist that notice of penalty should be given. Petitioner knew that he was levelled with the charges of gross misconduct. He was clearly informed earlier as per statement of article of charges that he acted prejudicially to the interest of the Bank and committed breach of regulation 3 of the Bank of Maharashtra Officer Employees (Discipline and Appeal) Regulations, 1976. In similar circumstances, such a notice was held not to be required in Mukul v. State Bank of India and 2 Ors., 2000 (1) MPHT 216 by a Single Bench of this Court.

18. Moreover no prejudice is shown and issuance of such a notice not being a requirement under the regulation the prejudice cannot be culled out. Even applying the principles of natural justice, it cannot be said that any prejudice was caused to the petitioner; he knew the charges very well and the punishment imposed was obviously proportionate to the allegations of misconduct found established against the petitioner.

19. The last submission is that Appellate Authority did not exercise mind nor the reviewing authority.

20. It is apparent personal hearing was afforded to the petitioner; he was heard. Appellate order Annexure P/12 was passed after hearing him. The Appellate Authority has recorded that enquiry was properly conducted and sufficient opportunity was given to the petitioner to defend himself. It was mentioned that certain charges were admitted by the petitioner which were of serious nature and others have been established; he did not cross-examine the management witnesses. Annexure P/12 is a speaking order and shows application of mind. The reviewing authority as per Annexure P/14 has also mentioned facts in detail and considered the matter as required and has recorded the findings in detail.

21. Thus, it cannot be said that order Annexure P/12 and Annexure P/14 suffers with any infirmity of being passed in mechanical manner.

22. Resultantly, there is no merit in the writ petition. The same is dismissed.