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Judgment
Tipnis, J.—By this Writ Petition filed under Arts. 226 and 227 of the constitution of India, the petitioner challenges the legality and validity of order dated 23.6.1980 by which the petitioner was removed from service after finding him guilty under various charges in a departmental enquiry. The petitioner also challenges the order dated 14.4.1982 passed by the appellate authority confirming the order passed by the disciplinary authority. The petitioner has further challenged the order dated 17.3.1983 passed by the reviewing authority confirming the penalty of removal from service.
The petitioner was recruited as a clerk in the year 1967 in Bank of India and was posted at Bhavani Peth Branch, Pune. Eventually, the petitioner came to be promoted as an officer in the Bank. In December 1975, a branch of Bank of India was opened at Taloja. Taluka Panvel, dist. Raigad, and the petitioner was transferred to the said Taloja branch as Manager anchorage of the said branch. The petitioner continued to serve in the capacity of Manager incharge of the said Taloja branch upto February 1979 when he was transferred to Pune. Charge-sheet-cum-suspension order dated 19.3.1979 was served. A regular departmental enquiry was held against the petitioner and by order dated 23.6.1980 the petitioner was held guilty of several charges and different penalties were imposed upon the petitioner, including that of removal from service. The appeal preferred by the petitioner to the appellate authority was dismissed by order dated 14-4-1982 and the review petition preferred by the petitioner was also rejected by order dated 17-3-1983. Aggrieved by the said orders, the petitioner has preferred this Writ Petition to this Court.
We have heard Mr. Chari, learned counsel appearing for the petitioner, at some length. We have also heard Mr. Pai, learned counsel appearing for the respondents. With the assistance of the learned counsel on both the sides, we have gone through the relevant record and material brought to our notice by the respective counsel.
Mr. Chari submitted that in the departmental enquiry. No witness was examined and that the enquiry proceedings without recording oral evidence are vitiated. Mr. Chari further submitted that the report of the enquiry Officer does not make reference to the documents produced at the time of the enquiry and as such, the report is absolutely vague and does not show consideration of the alleged material. Mr. Chari further submitted that the disciplinary authority appears to have consulted the reviewing authority prior to the passing of the order which should vitiate the order. Mr. Chari lastly submitted that so far as the Bank of India is concerned the departmental enquiries are regulated by Bank of India Officer Employees'' (Discipline and Appeal) Regulations, 1976. Mr. Chari, in that behalf, contended that almost each and every requirement of regulation 6 appears to have been observed in breach. Mr. Chari laid special emphasis on provisions of Regulation 6(17) and contended that the said requirement is not observed which must result into vitiating the proceedings and, consequently, the order of removal from service. Mr. Chari, in that behalf, referred to the observations in para 9 of the decision of the Apex Court in Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab and Others, . Mr. Chari also referred to the observation in para 122 of the decision of the Apex Court in Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, and the observations of the apex Court in para 4 of the judgment in Meenglas Tea Estate Vs. Its Workmen, .
Mr. Pai appearing for the respondents, on the other hand, submitted that there is no infirmity in the proceedings. The proceedings were conducted in accordance with the relevant regulations of the Bank and there has been substantial compliance even with the provisions of Regulation 6(17) in the facts and circumstances of the case. He placed great reliance on the decision of the Apex Court in K.L. Tripathi Vs. State Bank of India and Others, in support of his submission that, in the facts and circumstance of the case, the enquiry was held fairly and in accordance with the relevant regulations.
After having gone through the entire record with the assistance of the learned counsel of both the sides, it is clear that 15 charges were levelled against the delinquent officer and all the charges are held proved. However, excepting charges no. (IV), (V), (VII) and (IX), the punishment awarded for rest of the charges is censure for charges no. (I), (VI), (X), (XIII), (XIV) and (XV) and demotion by one stage for charges no. (II), (VIII) and (XI) and demotion by two stages for charges no. (III) and (XII). For charges no. (IV), (V), (VII) and (IX), the penalty is removal from service for each charges. Thus, it is clear that the maximum punishment of removal from service is only in respect of four serious charges.
Charges no. (IV), (V), (VII), and (IX) are as under :-
"(IV). You have authorised withdrawal of & Co. which were drawn ''self on their own accounts operated with Banks at Bombay and Panvel despite the fact that many of such cheques were returned unpaid for financial reasons. You went out of the way in favouring them when those self-cheques were returned unpaid in the following manner -
(a) by representing the same cheques which was returned unpaid and even on some occasions without reflecting the relative debit and credit entries in the account, as required by the laid down procedure of the Bank.
(b) by accepting deposit of cheques on up-country Banks/Branches to meet the returned cheques, when you were fully aware that they were not likely to be honoured.
(c) purchase of cheques which were previously sent under collection to upcountry centres and beyond the delegated authority of the Manger.
(d) by not responding to the debit notes in respect of returned cheques immediately.
(V). You have tried to dishonestly misrepresent to the higher authorities by submitting entirely false statement with imaginary figures in regard to the drawings allowed against uncleared effects in the account of M/s. C. C. Patel & Co. when you were asked to submit the statement by Regional Manager.
(VII). The debit notes received by Taloja Branch from Ballard Estate Branch covering dishonoured cheque/cheque for collection drawn on your customers were deliberately detained by you with yourself and were purposely released for putting the branch receipt stamp thereon after considerable lapse of time from the date of actual receipt thereof, so as to give false impression about the date of their receipt at the branch with the ulterior motive of unduly accommodating the branch customers to the detriment of Bank''s interests.
(IX). You have unduly favoured certain groups of persons by granting the advances on individual basis, in different names for different purpose the moneys of which have ultimately gone to the firm of family as a whole."
In support of the charges, details are given in the statement of allegations accompanying the charge sheet which statement when perused shows that details of each and every documents in support of the said charges have been very meticulously given therein. Not only this but several annexures to the statement of allegation give full, complete and detailed information about the entries and supporting documents. In the written explanation or reply given to the charge-sheet, with reference to these four serious charges, the delinquent officer has stated as under :-
"Charge no. (IV) :
It is true that withdrawals were allowed against the cheques drawn on banks at Panvel and Bombay of their own accounts, some cheques were written unpaid. However, the party has deposited amounts thereafter, and in most of the cases charges are recovered. The present position of the account is in credit balance of Rs. 545. 18.
(a) 1 out of 7 cheques listed here 4 were realised and remaining 3 are returned unpaid. As per my knowledge our charges are recovered in cash of all these cheque.
(a) 2 Annexure ''A'' : in all these cases our charges are recovered.
(b) Annexure ''B'' : In most of the cases charges are recovered.
(c) When cheque returned unpaid balance in the account was Rs. 23,000/- and Rs. 42/- are recovered towards our charges.
(ii) Cheque realised on 20.12.1977, Rs. 35.50 recovered as our interest and charges.
Charge No. (V) :
It is not true to say that I have dishonestly misrepresented the facts to the higher authorities. Reply to the letter of Regional Officer was as per subject matter, whoever, if there are any lapses it may be due to oversight and not with dishonest intention. I may please be permitted to give below few items reflected in my earlier statement submitted in order to give correct picture. Column no. 3 is not reflected in my statement submitted earlier. On the basis of cash deposited by the firm clear balance are taken into account.
---------------------------------------------------------------------- Date of Amount of payments Amount of Clear Cash deposited on the against uncleared effects Balance date as shown in column no. 1 1 2 3 ---------------------------------------------------------------------- Date Amount Rs. Rs. 1977 Rs. 13.1 30,000 24,000 37,000 4.5 45,000 94,500 67,000 12.5 52,000 18,500 10,000 14.5 45,000 50,000 50,000 13.6 15,000 61,000 61,000 17.6 35,000 34,000 34,000 20.6 80,000 26,000 26,000 5.7 8,000 42,000 42,000 4.8 50,000 20,400 20,400 5.11 60,000 1,00,000 1,21,000 24.11 65,000 65,000 90,000 ----------------------------------------------------------------------- Charge no. (VII) :
It is not true that I have done this deliberately. As submitted earlier I have detailed the debit notes with a view to accommodate the customer, in doing so I had no axe to grind. You will please appreciate that the account of M/s. C. C. Patel & Co. is in credit balance i.e. Rs. 545.18 today and Bank has not suffered any loss on account of delay in responding the Debit Notes.
Charge no. (IX) :
It is not true to say that I have made any favour to certain groups of persons by granting the advances on individual basis. I give below complete lists of accounts with their present positions. You will please appreciate from the list that few accounts have been closed, and there is recovery in many accounts. Bank will have no cause of anxiety for recovery in these advances. It will also be appreciated that the branch has been able to obtain renewal documents without any difficulty."
It is also clear that even before the enquiry commenced, at the request of the delinquent officer, he was allowed to take inspection of documents of relevant records pertaining to the serious irregularities. During the enquiry with reference to charge no. (IV) the defending officer has stated as under :-
"While we have no comments to offer other than what we have already stated at the time of dealing with charge no. II(b), we strongly protest against the words ''fraudulent intention''; used by the P. O. while preparing the chargesheet even the charge sheeting authority has to stated anything about fraudulent intention on the part of Mr. Syed. I therefore, offer my comments only to show our protest to the words ''fraudulent intention''."
In reply the P. O. stated :
"Although in the charge sheet the word ''fraudulent'' has not been used, the words ''you went out of the way in favouring them (customer) clearly convey the same meaning that I propose to convey by using the word ''fraudulent'' before the word practices. The word ''fraudulent'' has also been used to convey that the laid down procedures, practices and norms laid down by the Bank has been grossly violated by Mr. Sayed in order to accommodate the customer."
In reply to charge no. (V), the Defending Officer has stated as under :-
"The charge of the Bank is as under : Mr. Sayed in the reply to Regional office letter no. MRO; ADV; KDP; 1705 of 23.3.1978 prepared an entirely false statement with imaginary figures, etc. This statement made by the P. O. as appeared in the charge sheet is not correct. In support of my statement that the figures submitted by Mr. Sayed were not imaginary I request the I. A. to go through the figures given in the statement. I have shown the entries of cash deposits as no those particular days. However, when Mr. Sayed submitted the statement in reply to Regional Office letter he has taken the figures of cash deposits made by the customer on those days and overlooked the withdrawals made correspondingly. However, I humbly submit that these figures were not imaginary inasmuch as they tally with the cash deposits made by the customer. In cash of first six entries the cheques are not returned unpaid. In his statement, while replying to Regional Office letter, the figures given by Mr. Sayed are thus not on imaginary basis but on the presumption of the cash deposits made by M/s. C. C. Patel & Co. As regards the intention and all other matters as presented by the P. O. we once again repeat that we have already dealt with in charge no. II(b) and no more comments are offered by us."
In reply to charge no. (VII), the Defending Officer has stated that they have no comments to offer to this charge. So far as charge no. (IX) is concerned, the charge is to the effect that loans were granted to one Abdul Latif Mohd. Ismail Patel and his family members and employees, irrespective of their actual business activities. In some cases, disbursements have been made in lump sum in cash. In some cases amounts have been transferred to deposit accounts of the borrower and subsequently withdrawn in lump sum. In some cases, the amounts have been further utilised to close earlier loan accounts of some person belonging to the same group. It is obvious that though loans were granted in the names of different persons, they were ultimately utilised by one person i.e. Abdul Latif Mohd. Ismail Patel. The allegation was that the delinquent officer granted loans in different names only with a view to accommodate the said Patel as he could not sanction higher amounts to one person only. The delinquent officer demanded inspection of some other documents which was granted and upon examination of all the records, the defending officer, on behalf of the delinquent officer, submitted that the documents do not show that the delinquent officer did not know the business activities of the aforesaid persons. It was further submitted that there is no evidence to show that the business was managed by one person. It is specifically contended that the funds have been transferred from one account to another, but there is no evidence to prove that transfers were challenged by the person concerned, and it can be objected only if such transfers have been objected by the person concerned. It is further submitted on behalf of the delinquent officer that recovery position of these advances is satisfactory and the Bank will not suffer any loss.
On the basis of the enquiry, ultimately, report is submitted by the Enquiry Officer which report also makes a reference to the board submissions of the presenting officer, defending officer and the conclusions of the enquiring authorities. At the end, the Enquiry Officer came to the conclusion that the delinquent officer did not protect the interest of the Bank and abused his authority as Manager with mala fide intention. In the earlier part of the report, he has held each and every charge as proved. The disciplinary authority after consideration of the record of the departmental enquiry and the report of the Enquiry Officer also held that all the charges are proved and by his order dated 23.6.1980 he awarded punishments of removal from service, censure and demotion in the pay scale for different charges as already mentioned. The appeal preferred was considered by the appellate authority, the delinquent was given personal hearing by the appellate authority and after going through the records of the enquiry, relevant papers, finding of the enquiring authorities and the order of the disciplinary authority, the appellate authority did not find any substance in any of the contentions raised by the petitioner. It held that the charges against the petitioner are conclusively proved and that penalty of removal from the Bank''s service is not disproportionate to the gravity of the misconduct committed by the delinquent officer. Accordingly, the appellate authority confirmed the order of the disciplinary authority. The review application made by the delinquent officer was also rejected by the competent authority. After having gone through all these proceedings and the orders, we find no difficulty in coming to the conclusion that on the basis of the evidence on record, all the authorities concerned were justified in holding that the charges are proved against the delinquent and further imposing the penalty of removal from service. We also find that the enquiry was conducted in a fair manner and the delinquent officer was afforded a fair opportunity to defend himself.
Before we deal with the rival submissions, we would like to refer to the decision of the Apex Court in K.L. Tripathi Vs. State Bank of India and Others, as we find it very relevant and apposite to the facts and circumstances of the case before us. In the case before the Apex Court, the Branch Manager of the State Bank of India was dismissed from the Bank''s services on the ground of misconduct duly proved after the departmental enquiry. In the said case also, the main argument was that the principles of natural justice had been violated and the provisions of Rule 50 of the State Bank of India (Officers & Assistant) Service Rules were not complied with. In para 29 of the judgment, the Apex Court has observed as under :-
"In respect of an order involving adverse or penal consequences against an officer or an employee of Statutory Corporations like the State Bank of India there must be an investigation into the charges consistent with the requirements of the situation in accordance with the principles of natural justice as far as these were applicable to a particular situation. So whether a particular principle of natural justice has been violated or not has be judged in the background of the nature of charges, the nature of the investigation conducted in the background of any statutory or relevant rules governing such enquiries."
In para 36, it is observed as under :-
"We may also mention that the appellant has contended that there is no evidence that the appellant has actually defrauded the Bank of actual loss or damage has been caused to the Bank or actual risk has been incurred by the Bank. That is true. But the charge against the appellant was that he had so conducted himself which exposed the Bank to grave risk and for which his explanation was not accepted, after considering his explanation and after personal hearing reasonably an opinion may be formed that his conduct was such that defrauding of the Bank might have been caused. These were the charges against him and these are the charges upon which he was accused. Therefore, whether actual loss or damage had been caused or not, is in our opinion, immaterial."
In para 41, it is observed as under :-
"It is true that all actions against a party which involve penal or adverse consequences must be in accordance with the principles of natural justice but whether any particular principle of natural justice would be applicable to a particular situation or the question whether there has been any fraction of the application of that principle has to be judged, in the light of facts and circumstances of each particular case. The basic requirement is that there must be fair pay in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons. We must reiterate again that the rules of natural justice are flexible and cannot be put on any rigid formula. In order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of cross-examination, it has to be established that prejudice has been caused to the appellant by the procedure followed."
So far as the first submission of Mr. Chari is concerned, viz., that no oral evidence was recorded, we find no substance in the submission. It is not that in every departmental enquiry, oral evidence has to be adduced, it all depends on the nature of charges and the facts and circumstances of the particular matter. If charges can successfully be proved only on the basis of documentary evidence, we do not see how still oral evidence can be insisted upon. In the facts before us, it is clear that the charges against the petitioner related to not following the requisite procedure while opening the account of M/s. C. C. Patel & Co. of allowing drawings against uncleared effects in certain accounts every frequently and certain amounts which beyond the delegated authority of detaining cheques received from upcountry branches under debts notes and from other banks for collection in unduly long period in order to accommodate the customers by providing funds in their accounts; authorising the withdrawal of amounts of cheques to M/s. C. C. Patel & Co. which were drawn "self'' on their own accounts operated with banks at Bombay and Panvel despite the fact that many of such cheques were returned unpaid for financial reasons; of dishonestly misrepresenting to the higher authorities by submitting entirely false statement with imaginary figures in regard to drawings allowed against uncleared effects in the account of M/s. C. C. Patel & Co. for exceeding the delegated authority in sanctioning advances : and for unduly favouring certain groups of persons by granting advances on individual basis in different names for different purposes the moneys of which have ultimately gone to the firm or family as a whole. The very nature of allegations in the charge-sheet shows that the matter entirely depended upon documentary evidence in the form of record of the ban. As a matter of fact, we find that the charge-sheet makes a reference not only to 15 different charges, but accompanying statement of allegations makes a specific reference to details regarding the occasions, the amount of payment and the names of the accounts on the basis of the record of the bank. Detailed reference regarding the cheque number, the amount, the date of its first deposit, the date of return of the cheque unpaid, etc. are given under the respective charge-heads. It is, therefore, clear that the entire case depended on documentary evidence. It is relevant to notice that apart from the detailed reference in the chargesheet, the petitioner upon his request was allowed to inspect at Taloja branch on 26.3.1979 the relevant records/documents pertaining to the irregularities alleged, it is further relevant to notice that the list of documents by which the articles of charge are proposed to be substantiated was forwarded to the petitioner and details list of several documents was given separately under each charge. It was also mentioned that in addition to this, relevant ledgers, registers, vouchers and other records will be produced for verification in the enquiry proceedings. It is very relevant to notice that at no time before or during the enquiry either the delinquent officer or his representative insisted or demanded for examination of any witnesses. On the contrary, we find that existence and correctness of several documents which consisted entirely the official record of the branch was never challenged on behalf of the delinquent officer. In the facts and circumstances of this case, therefore, we find nothing improper if the case was sought to be proved on the basis of documentary evidence, the existence and correctness whereof was never challenged by the delinquent officer.
We also find that though the inquiry report, as rightly contended by Mr. Chari, does not make a reference to various documents and therefore, appears to be gave on the face of its, if we see the record of the inquiry proceedings, we find that all these documents were produced in the presence of the petitioner and his representative and a detailed reference to all these documents is made separately under each charge. The say of the defending representative of the delinquent officer is also recorded in detail. From the enquiry proceedings, we find that all documents were shown to the charge-sheeted officer and the defending officer. From the report to the charge-sheet and from the submissions made on behalf of the delinquent officer during the proceedings of the enquiry, we do not find that at any time any demand was made for evidence of any witness. in fact, on proper reading of the reply to the charge-sheet and the submissions made with reference to each and every charge on behalf of the delinquent officer, we have no manner of doubt that majority of the charges are almost admitted. The attempt has been to explain or justify the lapse alleged. Under those circumstances, we do not find any merit in the submission of Mr. Chari that the inquiry report is bad on the ground of vagueness or that the inquiry vitiated because no oral evidence is recorded.
We also do not find any force in the submission of Mr. Chari that merely because the disciplinary authority had consulted the reviewing authority had consulted the reviewing authority, the order of the disciplinary authority stands vitiated.
The next submission of Mr. Chari that the regulations framed by the bank must be followed can hardly be disputed. Therefore, we think it unnecessary to refer to the observations of the Apex Court relied upon by Mr. Chari in support of his submission. However, the real question, in our opinion, is as to whether there has been any breach of the regulation or the principles of natural justice. We have gone through regulation no. 6 and all the sub-clauses therein and after having perused the records, we do not find any reason to hold that the said regulations are not followed during the enquiry against the petitioner, Mr. Chari specifically referred to regulation 6(17) which is as under :-
"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 circumstance appearing in the evidence against him."
Mr. Chari referring to the aforesaid regulation contends that it was mandatory for the enquiring authority to jointly question the delinquent officer on the circumstance appearing against him after the employee closes his evidence inasmuch as the officer employee had not got himself examined. Undoubtedly, the petitioner did not examine himself and, therefore, he ought to have been generally questioned under regulation 6(17). However, if we go through the enquiry proceedings, it is found that during the proceedings, the enquiring authority, presenting officer charge-sheeted officer and defending officer were present. The enquiry proceedings specifically mention that for the sake of convenience, it was decided the proceedings should be charge wise. Thereafter, the presenting officer has produced all the documents in support of that particular charge and presented his case and the defending officer has stated whatever he wanted to state on behalf of the delinquent officer with reference to that particular charge and with reference to documentary evidence submitted in support of that charge. All this is recorded in detail in the enquiry proceedings.
This procedure was followed in respect of each and every charge and after having gone through the enquiry proceedings, we find that enough and fair opportunity was afforded to the delinquent officer to say whatever he had to say with reference to each and every piece of evidence adduced in respect of each and every charge. From the submissions made by the defending officer on behalf of the delinquent officer, we find that in most of the charges, factual aspect was hardly disputed. Thus, we find that in substance, in the facts and circumstances of the case, the provisions of Regulation 6(17) were complied with and the petitioner has not at all suffered any prejudice by not following Regulation 6(17) in letter, although it is followed in spirit and in substance as found by us.
In this behalf, it may be relevant to notice that under the provisions of Section 342 of the Code of Criminal Procedure, 1893 (now replaced by Section 313 of the Code of Criminal Procedure, 1973), the accused was almost in mandatory terms required to be examined at the end of the prosecution evidence. Nevertheless, it has been held by the Supreme Court in a series of cases, viz., in Bibhuti Bhusan Das Gupta and Another Vs. State of West Bengal, as also 241 and in Ram Shankar Singh and Others Vs. State of West Bengal, that even non-examination of the accused u/s 342 will not be fatal unless it is shown that prejudice was caused thereby.
In the result, we do not find any merit in this petition and the rule is discharged without any order as to costs.