Mahesh Chander Kalra vs Bank of India and Others

Valmiki J Mehta, J.—This writ petition filed by Sh. Mahesh Chander Kalra impugns the departmental proceedings and the orders passed by the Disciplinary Authority and the Appellate Authority whereby the petitioner has been visited with the punishment of dismissal from services. The facts of the case are that the petitioner was issued Article of Charges dated 2.7.1993 alongwith relevant Statement of Allegations, List of Documents and List of witnesses by the respondent No. 1-bank. Sum and substance of the charges against the petitioner were effectively of taking fraudulent credits totalling to Rs. 22,571.83/- on the basis of a false credit note. The amount of Rs. 22,571.83/- comprised of three amounts of Rs. 6117.91/-, Rs. 6700/- and Rs. 9753.92/-. The aforesaid three amounts were credited in the savings bank account maintained by the petitioner, his son and his wife as also one Sh. Manish whose account was introduced by the petitioner. The petitioner appeared in the enquiry proceedings. On behalf of respondent No. 1-bank evidence was led of its various witnesses. Petitioner also led evidence of three witnesses whereafter his right to lead evidence was closed. The Enquiry Officer thereafter gave his report dated 27.4.1994 giving a finding of guilt against the petitioner with respect to all the charges. The Disciplinary Authority after hearing the petitioner passed the penalty order dated 30.8.1994 dismissing the petitioner from services. The order of Disciplinary Authority was upheld by the Appellate Authority vide order dated 4.10.1995.

On behalf of petitioner, the following arguments have been urged before me:

(i) The entire case of the respondent No. 1-bank was based on a credit note but since the credit note itself was destroyed there was no primary evidence to fasten the charge of guilt against the petitioner. In the absence of relevant documents, it cannot be said that petitioner should be held guilty.

(ii) As per the relevant regulations of the respondent No. 1, namely Bank of India Officers Employees'' (Discipline and Appeal), Regulations, 1976 the Disciplinary Authority so far as the petitioner who was working in the Scale-I is concerned was to be a Zonal Manager and the Appellate Authority was to be a Deputy General Manager (DGM), however in the departmental proceedings, the Disciplinary Authority was no doubt the Zonal Manager but he was a Deputy General Manager (the rank which was to be of the Appellate Authority) and the Appellate Authority was a General Manager (GM) and hence there is violation of relevant regulations.

(iii) There is violation of principles of natural justice because petitioner asked for documents which were not supplied to him and hence this prejudices the defence of the petitioner in enquiry proceedings.

(iv) The respondent No. 1-bank failed to supply copies of the statement of witnesses which were recorded in the fact finding investigation which was done before the enquiry proceedings begin and since these statements in the preliminary fact finding enquiry were not given, petitioner has been prejudiced.

(v) Petitioner has not been given the preliminary enquiry report pursuant to which the departmental proceedings were initiated against the petitioner and therefore principles of natural justice have been violated.

(vi) Petitioner asked for representation through lawyer which was denied and this denial therefore has caused violation of principles of natural justice.

(vii) Petitioner''s evidence was wrongly closed after three witnesses were examined without giving opportunities to the petitioner to lead evidence of the fourth witness Mr. Wadhwa and also his own deposition.

(viii) In fact, the petitioner is a victim because fraud has been played upon him by crediting the amount in his account by conspiracy and therefore enquiry proceedings are vitiated.

(ix) Finally, it is contended that there is violation of Regulation 6(17) inasmuch as after enquiry proceedings were completed the Enquiry Officer failed to generally question the petitioner so that the petitioner could explain the circumstances appearing in the evidence against him.

Each of the aforesaid arguments has been duly met by the counsel for the respondent No. 1, and which defence arguments will be dealt with at appropriate places in the present judgment.

Before I proceed to deal with the contentions urged on behalf of the petitioner, I must note that while hearing a petition under Article 226 of the Constitution of India, this Court does not sit as an appellate Court against the orders of the Disciplinary Authority and the Appellate Authority. This Court is not entitled to re-apprise the evidence led in the enquiry proceedings and which falls in the realm of functions of the Enquiry Officer. This Court can only interfere with the order of the departmental authorities only if there is perversity or illegality or violation of principles of natural justice. Once the departmental authorities have taken a view on the basis of record which has emerged in the departmental proceedings this Court would not interfere with the plausible view which has been taken by the departmental authorities. In terms of the aforesaid parameters of law, let us see whether the arguments which have been urged on behalf of the petitioner are sustainable. I may also further state that departmental proceedings are not criminal case proceedings where all the aspects have to be proved beyond doubt and nor the technical procedures of a civil court where discharge of onus of proof are applicable strictly. Of course, general principles of proof and establishing the case do apply to the departmental proceedings, however, strict technicalities of the proceedings in terms of the CPC (CPC) are not applicable and Courts have taken a view that unnecessary technicalities and technical flaws should not in any manner cause setting aside of the orders passed by the departmental authorities.

So far as the first argument urged on behalf of the petitioner that the relevant original document namely credit note having not been filed, hence in absence of the original document the charge therefore cannot be sustained, is an argument whereby the petitioner would be allowed to take advantage of his own wrong. Petitioner was posted in the branch. It is the petitioner who created the documents for crediting of the amount in the accounts. So as to avoid getting caught, the petitioner destroyed various documents including the credit note. There is due application of mind by the departmental authorities on this aspect and considering such aspects the departmental authorities have thereafter passed appropriate orders on the basis of other evidences including oral depositions of the witnesses. That being so, I do not think that on this ground the petitioner should be allowed to urge that he is being prejudiced and the findings of the departmental authorities are vitiated. I may note that even if the credit note was not available, yet the Enquiry Officer has considered various other documents including the statements of various savings bank accounts and other documents which were relied upon when the Article of Charges were served upon the petitioner. The argument of the petitioner of enquiry being vitiated on account of non-availability of the original credit note is therefore accordingly rejected.

The second argument is an argument on the aspect of violation of principles of natural justice and prejudice to the petitioner because the petitioner contends that the Disciplinary Authority in the present case could not have been the Deputy General Manager because the Deputy General Manager is an Appellate Authority as per the schedule to the regulations.

I may note that this argument on the first blush did appear to have some effect, however, I may note that ordinarily though DGM has to be the Appellate Authority since because of administrative reasons/postings it sometimes does happen that a Zonal Manager who has to pass the Disciplinary Authority''s can be of the rank of DGM then in such cases the Appellate Authority ought to be of a higher rank than the Deputy General Manager. In the present case, the Appellate Authority which passed the order dated 4.10.1995 was the General Manager i.e. admittedly a rank above the DGM. I do not think that regulations have to be construed so strictly when because of service exigencies the Zonal Manager may be a DGM and therefore is the Disciplinary Authority, because, petitioner can only be prejudiced if the Appellate Authority would have been of the same rank i.e. Deputy General Manager and which is not so in this case. Respondent in its counter-affidavit has referred to the fact that on passing of an administrative order by its Managing Director and to cover such situations it has been directed that the Appellate Authority would be the General Manager. Since in the present case the Appellate Authority admittedly was of the rank of the General Manager i.e. higher to the rank of the DGM who was the Disciplinary Authority, though there may be overlooking of the regulations by the respondent No. 1, however, I do not find that results in prejudice to the petitioner or violation of service law jurisprudence or violation of principles of natural justice because the claim of the petitioner can at best be that the Appellate Authority should be higher than the Disciplinary Authority, and admittedly the Appellate Authority was a higher authority than the departmental authority in the present case. In view of these facts that the judgment of Surjit Ghosh Vs. Chairman and Managing Director, United Commercial Bank, and others, cannot assist because the petitioner has exercised his right of appeal with a higher designated officer. The judgment cited of Municipal Corporation of Delhi Vs. Sh. Ram Pratap Singh, also is not relevant because there is no delegation of powers of the Disciplinary Authority to a lower rank officer and which had happened in the case of Ram Pratap Singh (Supra).

This argument urged on behalf of the petitioner is also misconceived and therefore rejected.

The third argument which is urged on behalf of the petitioner is an argument that the petitioner did not receive the documents which he had asked for while replying to the Article of Charges and hence there is violation of principles of natural justice. When I put it to the counsel for the petitioner to show me averments in the writ petition as to which specific documents were not supplied to the petitioner and how therefore the petitioner was prejudiced no such averments could be pointed out in the writ petition as to which particular documents were not given and consequently how the petitioner has been prejudiced.

In fact, in my opinion, the argument of non-supply of documents will have very little weight because the enquiry proceedings dated 13.10.1993 show that the presenting officer submitted photocopies of the documents duly signed by the petitioner in token of his having inspected the original documents. Once the petitioner has inspected the original documents, petitioner cannot complain of violation of principles of natural justice because principles of natural justice are not hidebound and inflexible rules. The object of principles of natural justice is that the stand of the person must be heard after notice is issued to him. Technicalities should not be able to prevail over substantial justice. Therefore, considering the fact that neither requisite pleadings have been made in the writ petition and also the fact that petitioner has taken inspection of the original documents as recorded on 13.10.1993, I reject the argument that petitioner has been prejudiced and principles of natural justice have been violated.

Learned counsel for the petitioner has sought to place reliance upon the judgment of the Supreme Court in the case of Chandrama Tewari Vs. Union of India (UOI) (through General Manager, Eastern Railways), to contend that once the documents as asked for by the petitioner are not given, the enquiry proceedings are vitiated. In my opinion, the judgment relied has no application because in paragraph 9, the Supreme Court has stated that issue of compliance of the principles of natural justice has to be seen in the facts of each case as to whether prejudice is or is not caused to the delinquent officer. In the present case, as already stated above, the petitioner has neither pleaded what documents ought to have been supplied and how he has been prejudiced on account of documents not having been supplied. The Supreme Court in the judgment of State Bank of Patiala and others Vs. S.K. Sharma, has held that once the case is a case of not at all following of the principles of natural justice viz. a case of no notice/no hearing, and the issue is only of compliance of a facet of the principles of natural justice, such as non-supply of documents, unless and until prejudice is established, principles of natural justice cannot be said to be violated. In my opinion, counsel for the respondent is also justified in placing reliance upon the decision of the Supreme Court in the case of A. Sudhakar Vs. Post Master General, Hyderabad and Another, inasmuch as in the said judgment it is clearly observed that with respect to disciplinary proceedings, there has to be substantial compliance of the principles of natural justice. In para 26 in A. Sudhakar''s case (supra) the Supreme Court has observed that principles of natural justice are required to be examined in the context of a given case as to whether there has resulted in denial of justice, and there is no denial of justice once there had been substantial compliance of the procedure. In the present case, I have already referred to the factum of the documents having been inspected by the petitioner, and which aspect is independent to the aspect as to how the petitioner has been prejudiced has not been stated, and therefore, I reject the argument urged on behalf of the petitioner that the enquiry report is bound to be set aside on account of non-compliance of principles of natural justice.

The next argument which was urged on behalf of the petitioner was that since there was a preliminary enquiry report before the main enquiry commenced, the petitioner ought to have been given copies of the preliminary enquiry report as also the statements of the witnesses in the preliminary enquiry report and non-giving of the same has materially affected the defence of the petitioner in the departmental proceedings. In my opinion, once again this argument is without merit because it is not as if the respondent-bank relied upon the preliminary enquiry report and the statements of the witnesses made in the preliminary enquiry before the Enquiry Officer. The Enquiry Officer has independently gone into the charges and referred to the independent evidence which was led before him to establish the guilt of the petitioner. I therefore reject the argument as it is not the law that copies of the preliminary enquiry report as also the statements of the witnesses in the preliminary enquiry report have to be given to the charged official when the same are not relied upon in the actual disciplinary proceedings.

The next argument urged on behalf of the petitioner was that the petitioner was not allowed to examine the 4th witness Mr. Wadhwa and also lead his own evidence thus causing violation of principles of natural justice. In this regard, I may note that the Enquiry Officer gave sufficient opportunities for appearance of Mr. Wadhwa, who failed to appear, and therefore, the Enquiry Officer has noted that the petitioner must thereafter continue his evidence, but, the petitioner took an obdurate attitude of not continuing with the evidence, and therefore, the right of the petitioner to lead the evidence was closed. In my opinion, there is no interminable right of a charged official to keep on seeking adjournments or take obdurate attitude and refuse to lead evidence. In the facts of the present case, I do not find that the Enquiry Officer, in any manner, has committed an illegality or perversity in closing the evidence of the petitioner. Also, I may note that in departmental proceedings a charged official has to bring his own witnesses and hence strict technicalities of the Court do not apply in the departmental proceedings. If Mr. Wadhwa did not appear in spite of notice to him it was for the petitioner to bring Mr. Wadhwa on his own responsibility and if Mr. Wadhwa was reluctant to come to the witness box I do not think that the Enquiry Officer has, in any manner, committed an illegality or perversity in not allowing the petitioner any further opportunity to call Mr. Wadhwa.

The next argument urged on behalf of the petitioner is that the petitioner is in fact a victim of fraud because he does not know how the subject amount was credited in his account and the accounts of his family members. To a pointed query of the Court, there was no response on behalf of the petitioner that this ground was taken up in the departmental enquiry either by the reply to the show cause notice or by some other pleadings before the Enquiry Officer. Quite clearly, therefore, this argument is only an afterthought, and therefore, is without any basis/substance and is hence rejected.

For the sake of argument even if I assume that the petitioner has taken a stand of alleged conspiracy and fraud against him, in my opinion, the Enquiry Officer was perfectly justified in rejecting this case of petitioner because self-serving statements cannot be a basis for proving an alleged fraud. The Enquiry Officer has arrived at a finding of guilt of the petitioner after referring to the statements of witnesses including documentary evidence before him and which evidence showed that with respect to various accounts of the petitioner and his family on amounts being credited/deposited, the petitioner did take the benefit of the credits which were made in those accounts.

Another argument urged on behalf of the petitioner is that the petitioner was entitled to be represented through a lawyer and since this benefit was denied to him the principles of natural justice have been violated. For this purpose, learned counsel for the petitioner has placed reliance upon the judgment in the case of P. Jayachandra Rao Vs. State Bank of Hyderabad (A.P.), 1991 (1) SLR 79. In my opinion, the judgment relied upon cannot be said to lay down a universal law that in departmental proceedings a person is always entitled to the assistance of a lawyer. Even in the said judgment reference is made to the position that only where there are complicated legal issues or the presenting officer on behalf of the department is a legally trained officer, then, in such circumstances the charged official is entitled to be represented through a lawyer. In the present case, I do not find any complicated legal issues, and admittedly it is not as if the presenting officer on behalf of the department was a lawyer. Therefore, in my opinion, petitioner cannot urge that the principles of natural justice were violated by not allowing him to be represented through lawyer. In this regard, counsel for the respondent-bank is justified in relying on D.G. Railway Protection Force and Others Vs. K. Raghuram Babu, which holds that ordinarily in domestic/departmental enquiry a charged official has to conduct his own case and the proceedings are not of proceedings in a Court where a person has right to be represented through a lawyer. The Supreme Court has said that there is no vested right of a chargesheeted employee to be represented through a lawyer, unless there is a specific statute or standing order or rule which provides such a right. Admittedly, in the present case, there is no such statute or rule or standing order whereby a charged official has compulsorily to be represented through a lawyer. The discretion exercised in refusing the petitioner to be represented by a lawyer cannot be faulted with on account of the reasons already given above. I therefore reject this argument urged on behalf of the petitioner that enquiry proceedings are bound to be quashed because the petitioner was not provided with the assistance of a lawyer.

That takes me to the final argument urged on behalf of the petitioner that there is violation of Regulation 6(17) which provides that the Enquiry Officer after completion of evidence was bound to require the petitioner to give answers to various issues against him and which aspect having not been followed, enquiry proceedings are liable to be quashed for the said reason.

In order to appreciate the aforesaid argument on behalf of the petitioner, it will be necessary to reproduce the relevant regulation and the same reads as under:

6(17) The Inquiring Authority may, after the officer employee closes his evidence, and shall, if the officer employee has not got himself examined, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer employee to explain any circumstances appearing in the evidence against him.

In my opinion, the aforesaid regulation cannot be so strictly read that a specific date has to be fixed by the Enquiry Officer for generally questioning the charged official/petitioner on the circumstances appearing against him in the evidence or for the charged official to explain the circumstances appearing in the evidence. Really this regulation will stand complied with on the petitioner being allowed to address the Enquiry Office, by addressing his final arguments including giving written arguments in support of his case. In the present case it is not disputed that the petitioner not only addressed the Enquiry Officer, but also filed detailed written submissions dated 26.2.1994. In my opinion, therefore in substance Regulation 6(17) shall stand complied with, and since the petitioner has been completely heard in this case, I do not think that there is any violation of Regulation 6(17). This argument is also accordingly rejected. In view of the above, I do not find any merit in this petition, which is accordingly dismissed, leaving the parties to bear their own costs.