Devakumar L.M.V., Senior Manager, Canara Bank, District Co-ordinator vs General Manager, Canara Bank and Another

Ms. T. Meenakumari, J.—The petitioner has filed the above writ petition seeking to issue a Writ of certiorarified Mandamus calling for the

records of the first respondent in his proceedings No. IRS:DP: MC:CHF/262.91 dated February 6, 1991 and of the second respondent dated

August 19, 1991 sent through proceedings in MC. DAC. 1074 E. 37 Disciplinary Action Cell, Circle Office, Canara Bank, Madras dated

September 10, 1991, quash the same and direct the respondents to restore the petitioner to his original place of seniority in the Canara Bank and

to pay the petitioner the arrears of pay and other consequential benefits from the date of petitioner''s suspension.

The petitioner has filed an affidavit in support his contention and stated that he has entered into the service in 1967 as Officer-on-Contract in

Canara Bank; that he was regularised in service in the year 1968; that he was promoted as Manager, Grade III in September, 1972; that he was

brought to Manager Grade, II in 1976 and Grade I in 1979; that he was fitted in the middle management as a Senior Manager in Scale III. He has

also stated that till February 28, 1991, he was in the same position and when he was working as Senior Manager in Mint Street Branch, during the

period between May 30, 1984 and August 29, 1986, he was suspended from service under Regulation 12(1)(a) of the Canara Bank Officer

Employees'' (Discipline and Appeal) Regulations, 1976 on September 1, 1986; and that in June, 1988, four charges were framed against him for

non performing duties on the ground that the petitioner contravened Regulation 3(1) and committed misconduct within the terms of Regulations 24

of Canara Bank Officer Employees'' (Conduct) Regulations, 1976.

The petitioner has further contended that the petitioner has submitted his explanation to the charges that his suspension was revoked on July 12,

1988; that the Commissioner for Departmental Inquiries of the Central Vigilance Commission had conducted the enquiry and'' held that the first

charge was proved; that the second charge was proved to the extent that he contributed to it; that third and fourth charges were partly proved and

the Inquiring Authority has reported as follows:

C.O.(I) took over as a Senior Manager of the Mint Street Branch on May 30, 1984. By then the Bipin group had already runover due bills. They

were also being given facilities by the Circle Office indiligently. These factors may be taken into consideration at the time of passing final orders of

the charge sheet.

The main contention of the petitioner is that the Disciplinary Authority did not agree with the findings of the Inquiry Authority and held that

charges 2 and 4 were fully proved, against the petitioner; and that the petitioner has submitted his explanation to the above extent. He has also

further contended that the Disciplinary Authority without discussing evidence vis-a-vis his explanation and without application of mind imposed

major punishment of reduction to lower grade i.e. from Scale III to Scale II.

Aggrieved by the major punishment imposed by the Disciplinary Authority the: petitioner preferred an appeal to the Executive Director, Canara

Bank (Head Office) at Bangalore and the same was rejected. He made a review petition to the Chairman and the Managing Director of Canara

Bank and the same was also returned. Aggrieved by the above orders, the present writ petition has been filed.

The learned counsel for the petitioner has argued that the partners of the Bipin Group were functioning from Bombay and to accommodate this

group, Canara Bank Management circumvented many basic banking norms and fixed the limits to individual firms and the total credit facilities

permitted to the Bipin Group consisting of four firms was to the tune of Rs. 1 crore and no security was taken by the bank nor their financial

position was fully ascertained. The management of Canara Bank committed certain lapses and that the Bipin Group of firm enjoyed the partronage

of the Circle Office of Canara Bank, Madras and failed gradually with the knowledge of the Circle Office, making Canara Bank to suffer huge

loss. But now the action has been taken against the petitioner for the lapses committed by the Circle Office of the Canara Bank at Madras. But,

however, the learned counsel relied upon the findings of the Inquiry Authority in his report dated October 31, 1989, wherein the Inquiry Authority

has held thus:

CO took over as a Senior Manager of the Mint Street Branch on May 30, 1984. By then the Bipin Group had already run overdue bills. They

were also being given facilities by the Circle Office indiligently. These factors may be taken into consideration at the time of passing final orders on

the charge sheet.

Basing on the above, the credit facilities have been given by the Circle Office and hence, the petitioner is in no way connected with the credit

facilities to the Bipin group.

The contention raised on behalf of the petitioner is that the disciplinary authority even though agreed certain charges, did not agree with the

finding of the Inquiry Officer''s report on other charges and has held that the charges are fully proved. The learned counsel further argued that the

disciplinary authorities basing on the case law that even though the disciplinary authority prima facie agreed with the findings of the enquiry officer,

but has held that the charges have been fully proved. It has to be concluded that the disciplinary authority did not agree with the findings of the

enquiry officer, and also taking into consideration of the fact that the credit facilities have been extended to the Bipin Group by the Circle Office.

The respondents have filed counter and additional counter. In the counter it has been stated that the enquiry was conducted in compliance with

the principles of natural justice by an officer of the Central Vigilance Commission of the Government of India and the report was considered by the

Disciplinary authority. But however, in the counter the respondents have discussed about the charges.

It has been admitted in the additional counter that the disciplinary authority had disagreed with, the finding of the enquiry authority in respect of

charges 2 and 4, that the explanation was submitted on December 17, 1990 and the petitioner''s explanation was taken into consideration and

punishment of reduction to the lower rank was imposed by the General. Manager. The learned counsel for the respondent has further submitted

that the impugned order is perfectly valid and no interference is called for.

The learned counsel for the petitioner in support of his contention relying upon the decision reported in Yoginath D. Bagde Vs. State of

Maharashtra and Another, , contended that the disciplinary authority disagreed with the findings recorded by the enquiry officer in favour of the

delinquent and came to the conclusion that the charges against the officer were proved. It is mandatory on the part of the disciplinary authority to

afford an opportunity of hearing. If no opportunity of hearing is granted, the findings of the disciplinary authority is vitiated and the punishment is

liable to be set aside.

It has to be seen in this case, even though the Vigilance report has stated that the credit facilities have been extended from the facilities given by

the Circle Office, these factors have to be taken into consideration at the time of passing final orders on the charge sheet. But this procedure has

not been followed by the authorities.

It is true that in the counter and additional counter filed by the respondents, it has not been stated that the disciplinary authority has followed the

observations by taking into consideration that the credit facilities have been given from the Circle Office even before passing of the final orders. It is

also disputed that the findings of the enquiry authority that charges 2 and 4 are fully proved. It is also not in dispute that the petitioner was issued

show cause notice, before affording an opportunity of hearing the case.

The learned counsel for the petitioner relied upon the decision of the Supreme Court in Yoginath D. Bagde v. State of Maharashtra and Anr.

(supra) wherein it is held as follows:

Where the Disciplinary authority disagreed with the findings recorded by the enquiry officer in favour of the officer of subordinate judiciary and

came to the conclusion that the charges against the officer were proved and then merely issued show cause notice to the officer as to why he

should not be dismissed from service, without providing any opportunity of hearing, the subsequent order of dismissal of officer would be invalid as

being violative of principles of natural justice. In such case, though along with the show cause notice, a copy of the findings recorded by the

Enquiry Officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant

but it was immaterial as he was required to show cause only against the punishment proposed by the Disciplinary Committee which had already

taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only

to a ''tentative'' decision and that he could show cause against that too. It was more so when, on facts of the case disciplinary authority was in error

in disagreeing with the findings of Enquiry Officer.

Following the same, as no opportunity was given to the petitioner before disagreeing with the findings of the Enquiry report, it has to be held

that the action of the respondents by imposing punishment of reduction to a lower grade i.e. from Scale III to Scale II in proceedings No. IRS.

DP. MC.CHF : 262 : 91 dated February 6, 1991 are vitiated and accordingly, the impugned order is quashed and the writ petition is allowed. But

however, liberty is granted to the respondents bank to proceed afresh after affording an opportunity of hearing to the petitioner, on the charges the

respondents bank disagreed with the findings of the enquiry officer, if they so desire. No costs. W.M.P. No. 1081 of 1992 is closed.