Writ Petition No.3812 of 1988

9th September, 1996

Petitioner Counsel: Shri. S. M. PARANJAPE with Shri. D. A. NALAWADE
Respondent Counsel: Shri. GIRISH S. KULKARNI i/b. GHANEKAR & CO

Cases Cited:
AIR 1963 SC 1723 [Para 4]
(1994)2 SCC 537 [Para 4]
(1995)1 SCC 216 [Para 4]
(1995)6 SCC 749 [Para 4]
JT 1996(3) SC 722 [Para 4]
AIR 1981 SC 1395 [Para 5]
AIR 1973 SC 2701 [Para 5]
AIR 1990 SC 1808 [Para 5]
1991(1) SCC 319 [Para 6]
AIR 1991 SC 1221 [Para 7]
AIR 1974 SC 1589 [Para 7]

JUDGMENT

N. D. VYAS, J.:- By the present writ petition under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the order of dismissal dated 25th May 1983 confirmed by the appellate authority by its order dated 7th April 1987 and again confirmed by the reviewing authority by its order dated 23rd September 1987. The petitioner has prayed for quashing of the said orders and prayed for reinstatement with full backwages and consequential benefits.

2. Briefly stated the facts giving rise to the present writ petition are as follows :-

The petitioner joined the employment of the Respondents in 1962 as an Officer and continued in the employment till he was dismissed from service. It is not necessary to trace the subsequent career of the petitioner in service. Suffice it to say that in 1980, the petitioner was transferred as Branch Manager to Amravati Main Branch of the Respondent-Bank and he was further designated as Coordinator of Amravati District with overall control of 16 Branches. During the course of his duty, the petitioner was required to implement Differential Rate of Interest Scheme, 1977 (DIR for short) of the Central Government. On 16th April 1981, the petitioner suddenly went on leave without his leave being sanctioned. On 6th May 1981 order of suspension was passed by the Bank against him. On 29th June 1981 the chargesheet was served on the petitioner and was informed that the departmental enquiry would be held against him and that he should file his reply within the period stipulated therein. In all 9 charges were framed against the petitioner which could be divided into three major heads viz., (i) irregularity in disbursement of DRI loans, (ii) irregularity in disbursements of cash credit and temporary over draft facilities and (iii) insubordination. The said chargesheet was accompained by an elaborate annexure. The petitioner filed his reply on 14th July 1981. One Shri V.H.Gokhale, an officer working with the Bank was appointed as Enquiry Officer to conduct the departmental enquiries. At the very start of the enquiry, the petitioner not only challenged the appointment of Shri Gokhale as the Enquiry Officer on the ground that he was not in the same cadre as that of the petitioner, but the petitioner also requested the Enquiry Officer to permit him to engage the services of an Advocate in order to represent him. The said request of the petitioner was not granted. The petitioner lost his wife on 28th March 1982 and the enquiry which was in progress was adjourned for one month. In August 1982 Shri Gokhale, the Enquiry Officer resigned from the service. However, he continued with the inquiry which was completed on 21st/22nd October 1982. In all 26 witnesses were examined during the inquiry, out of which 4 witnesses were examined by the petitioner as defence witnesses. It is the grievance of the petitioner that the witnesses examined by the Bank on its behalf were examined behind the back of the petitioner as the petitioner was prevented from attending to the proceedings of the inquiry due to illness of his wife. The Enquiry Officer submitted his report dated 26th March 1982 to the disciplinary authority. The disciplinary authority passed an order of dismissal on 25th March 1983. He preferred an appeal under Regulation 17 of the Bank of Maharashtra Officer Employees' (Discipline and Appeal) Regulations 1976 (the said Regulations for short). Pending appeal, the petitioner, however, filed a writ petition being Writ Petition No.1569 of 1985 in this Court. The writ petition was, however, dismissed in limine as being premature in view of the pending appeal by the petitioner. On 13th February 1985, the appellate authority keeping the appeal pending remanded the matter to the Enquiry Officer for allowing the petitioner to cross-examine the witnesses examined by the Bank. The appellate authority fixed the time limit during which the same was to be done. The petitioner remained absent on the day fixed for cross-examining the witnesses. In fact he filed another writ petition being Writ Petition No.1379 of 1986 in this Court on 19th March 1986. The grounds taken in the said writ petition were almost identical to the grounds taken by the petitioner in the earlier Writ Petition No.1569 of 1985 and the gravamen of the charge in the said subsequent writ petition was that no reasonable opportunity was given to the petitioner to defend himself as the witnesses were not allowed to be cross examined by the petitioner. In the said second writ petition viz., Writ Petition No.1379of 1986, Consent Terms were entered into inter alia providing that the appellate authority would given an opportunity to the petitioner to cross-examine the witnesses examined on behalf of the Bank, that the hearing for the purposes of said cross-examination would be held at Nagpur on the date agreed upon and mentioned in the said Consent Terms and that, in the event of cross-examination not being completed on the designated date, the hearing to continue on the next day or on any other day as may be fixed by the appellate authority. The writ petition was allowed to be withdrawn. The said Consent Terms were not only signed by the Advocates for the parties, but was signed by the petitioner himself. On 10th July 1985, after the petitioner availed of the liberty of cross-examining the witnesses as per the Consent Terms, the appellate authority dismissed the appeal preferred by the petitioner. Review Application was also made by the petitioner. The same was also dismissed. Hence the present writ petition challenging all the three orders enumerated at the outset.

3. Before we deal with the grievances ventilated by the petitioner before us, we wish to mention that this is the third writ petition which is filed by the petitioner and all the three writ petitions have been against the same order of dismissal. The earlier two writ petitions were filed basically complaining that the petitioner was not permitted to cross-examine the witnesses of the Bank. The 1st writ petition was dismissed in limine on the ground that the appeal preferred by the petitioner against the order of dismissal was pending. Thus th e merits of the case were not obviously considered. However, the second writ petition being Writ Petition No.1379 of 1986 which was filed culminated into consent Terms wherein the only grievance of the petitioner regarding not being allowed to cross-examine the witnesses was taken care of. No other ground was taken in the said two petitions much less the new grounds which are now taken in the present writ petition. The same grounds, to say the least, were available if the petitioner was really aggrieved by the same. In our view, the order passed by this Court in Writ Petition No.1379 of 1986 on the basis of the consent terms filed therein has become final and cannot be reopened. In fact the petitioner has acted in pursuance of the said order. To say that the Consent Terms do not bind parties and filing of a fresh petition, may be on a new ground on which the petitioner seems to have suddenly become aware, is an abuse of the process of the Court. The petitioner cannot be permitted to reopen the entire matter by saying that these ground which he has taken in the present writ petition were not considered or decided. Either way, the petitioner cannot be permitted to challenge the said orders passed in the disciplinary action taken by the Bank against him. Whether he had taken these grounds or not, he is bound by the Consent Terms. Non taking these grounds does not mean that the petitioner is free to file as many petitions as he wants on and when he is made aware of some new ground. In this view of the matter, the petition on this ground alone can be dismissed without consideration of any further arguments. However, instead of adopting this course, as we feel that as the grievances of the petitioner have been gone into at great length by the learned Counsel appearing for the parties, it is better to deal with the grounds raised for the first time in the present writ petition.

4. At the outset, it is necessary to mention that the petition is filed challenging the decisions arrived at by the appellate authority and the reviewing authority. The powers of the High Court under Article 226 of the Constitution of India in respect of departmental inquiries are very limited. The Supreme Court has in the decision of State of Andhra Pradesh and other vs. S. Sree Rama Rao, reported in A.I.R. 1963 SC 1723 inter alia held :

"The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental inquiry against a public servant; it is concerned to determine whether the inquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of inquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the inquiry is other wise properly held, the sole judges of facts and if there be some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding under Article 226 of the Constitution."

The Supreme Court again in the case of State Bank of India and others vs. Samarendra Kishore Endow and another reported in (1994) 2 SCC 537 reaffirmed the above position. It is very clear from the above that the powers of Court under Article 226 of the Constitution in exercise of its writ jurisdiction are very limited. It is only in cases where either principles of natural justice are violated or there are procedural irregularities or findings are either perverse without any evidence, that the Court in exercise of its writ jurisdiction interferes with the decisions arrived at departmental enquiries. After the decision of the Supreme Court in (1994) 2 SCC 537 (supra), the Supreme Court has again in the case of Government of T.N. and another vs. A. Rajapandian reported in (1995) 1 SCC 216 inter alia held that it has been authoritatively settled by string of authorities of the Supreme Court that the Administrative Tribunal (in our case High Court under Article 226) cannot sit as a court of appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings and that where there is some relevant material which the disciplinary authority has accepted and when material reasonably supports the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority. In short, the Supreme Court has held that the Administrative Tribunal has no jurisdiction to sit as an appellate authority over the findings of the inquiring authority. The Supreme Court again in the case of B. C. Chaturvedi vs. Union of India and others, reported in (1995) 6 Supreme Court Cases 749 has inter alia held that when an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with or whether the findings or conclusions are based on some evidence and the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. It further held that neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding and that adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. Lastly, it further held that when the authority accepts the evidence and the conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge and that the disciplinary authority is the sole judge of facts. In a very recent decision, the Supreme Court has in the case of State Bank of Patiala & Ors. vs. S.K.Sharma, reported in JT 1996(3) S.C.722 summarised principles in the context of the disciplinary inquiry and the order of punishment imposed by an employer upon him. It has held as follows :-

(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.

(emphasis supplied)

(2)----------------------------------------

(3) 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 ........."

5. In the light of the above discussion, we will now examine the grievances of the petitioner. It was submitted by Mr. Paranjape, the learned Counsel appearing for the petitioner, that the order of dismissal is liable to be quashed inasmuch as the said regulations requiring a public servant to conduct an inquiry have been grossly violated as the Enquiry Officer Shri Gokhale during the inquiry ceased to be a public servant and thus the entire inquiry was vitiated. The said regulations which govern the officer/employee of the said Bank provided inter alia for holding of departmental inquiries. Regulation 6(2) is reproduced below :

"6(2) Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an officer employee, it may itself inquire into, or appoint any other public servant (hereinafter referred to as the inquiring authority) to inquire into the truth thereof.

The said regulations again defined 'public servant' in Regulation 3(m) which is as follows :

"3(m) "Public Servant" means a person defined as public servant in section 21 of the Indian Penal Code (45 of 1860)."

It was submitted by Mr. Paranjape, on the basis of the above Regulations, that on Shri Gokhale ceasing to be in the employment of the Bank, he ceased to be a public servant and had thus no authority to proceed further with the inquiry and complete the same. Thus, the very basis of the order of dismissal being the report of the Enquiry Officer was vitiated, therefore, the impugned order of dismissal should be set aside. Mr. Parnajape in support of his submission cited a decision of the Supreme Court in the matter of S.S.Dhanoa vs. Municipal Corporation Delhi and others, reported in A.I.R. 1981 SC 1395, wherein it was held that civil servant working on deputation with a co-operative society cannot fall within the definition of public servant as defined in Section 21, clause (2) of the Indian Penal Code. He further relied on the decision of the Supreme Court in the matter of S. Parthasarathi vs. State of Andhra Pradesh, reported in A.I.R. 1973 S.C.2701, wherein it was inter alia held that the continuance of inquiry by a biased officer, ceasing to officiate as officer appointed to inquire was bad in law and that the subsequent authorisation by Government by name did not validate the inquiry proceedings and the order of punishment passed on the basis of such inquiry was illegal. He further relied on another decision of the Supreme Court in the matter of M/s.J.K.Cotton Spg. & Wvg. Mills Company Ltd. vs. State of U.P. and others, reported in AIR 1990 SC 1808 wherein it was held that on an employee voluntarily retiring, the relationship of master and servant ceased to exist. Lastly he relied on the decision of the Manipur High Court reported in A.I.R. 1965 Manipur 46 wherein it was inter alia held that dismissal based on an inquiry by a person not duly authorised under the service rules was of no avail to the employer as it resulted in vitiating the entire inquiry.

6. In our opinion, none of these authorities help Mr. Paranjape. The short question which requires consideration in the matter is as to whether a departmental enquiry entrusted to and conducted by a person authorised to do so, would stand vitiated if during the continuance of the said enquiry, the officer concerned ceased to be an employee of the Bank. We drew Mr. Paranjape's attention to a decision of the Supreme Court in the matter of Central Bank of India Vs. C. Bernard, reported in 1991(1) S.C.C.319. The short question to which the Supreme Court addressed itself in the said case was almost identical to the question posed before us. The facts of the said decision are required to be stated in order to appreciate the consideration of the said question by the Supreme Court. Under a bi-partite settlement the Chief Executive Officer of the Bank was empowered to hold inquiry and take disciplinary action in the case of each office or establishment. In respect of the inquiry against the Respondent-employee in the said case, one U.B.Menon, Special Officer, was appointed the Enquiry Officer. The said Enquiry Officer conducted the departmental inquiry against the respondent-employee. However, during the pendency of the departmental enquiry, he retired from service. Notwithstanding his retirement, he continued to function as an Enquiry Officer and concluded the inquiry against the employee. He then gave the respondent-employee an opportunity to be heard on the question of punishment and then passed the order of discharge impugned in the said matter. The appeal preferred by the employee was dismissed. The employee filed a Writ Petition in the High Court and for the first time raised an objection regarding the continuation of the inquiry by the Enquiry Officer even after his retirement. In the writ petition The Single Judge of the High Court came to the conclusion that on the retirement of Shri U.B.Menon, he was nobody in the hierarchy of authorities to impose punishment on the Respondent-employee and hence the order imposing punishment was clearly incompetent and without jurisdiction. Thus the learned Single Judge of the High Court allowed the writ petition, quashed the order of punishment imposed therein and directed the appellant Bank to pay all the consequential benefits. The same was however, dismissed by the Division Bench by a one line order. Thus the appeal to the Supreme Court under Article 136 of the Constitution of India. The Supreme Court accepted the submission on behalf of the Appellant-Bank that the Enquiry Officer need not be an officer of a Bank and that even a third party could be appointed as an Enquiry Officer to enquire into the conduct of the employee and thus found nothing wrong with the enquiry report given by the Enquiry Officer who had during the continuance of the inquiry ceased to be an employee of the Bank and thus had ceased to be an officer. However, the Supreme Court did not agree with the submission raised on behalf of the appellant-Bank therein that even the order passed by the said Enquiry Officer who was authorised also to impose punishment, imposing punishment on the employee was also in order and that there was nothing wrong with it. The Supreme Court thus set aside the order of the said enquiry officer imposing punishment but instead of remitting the matter to the disciplinary authority to take fresh decision based on the report of the Enquiry Officer, disposed of the matter itself. When Mr. Paranjape's attention was drawn to the said decision, and from what is mentioned hereinabove although it was pointed out to him that the Supreme Court had in almost similar situation upheld the findings given by the Enquiry Officer in that case when the said Enquiry Officer during the pendency of the enquiry had ceased to be an officer of the Bank, Mr. Paranjape submitted that the Supreme Court had set aside the order imposing punishment and tried to distinguish the said decision by submitting that in the case before us, the inquiry is supposed to be conducted by the public servant as defined in the Indian Penal Code and that the minute Shri Gokhale ceased to be the employee of the Bank,Shri Gokhale had no power to proceed further with the inquiry. In our opinion, the decision of the Supreme Court concludes the matter. Whether the regulations required a public servant to conduct an inquiry or whether an officer is required to conduct an inquiry, the point remains that conducting an inquiry is for the purpose of gathering and ascertaining facts which is done in the presence of the delinquent employee who is given an opportunity of cross-examining the witnesses and thus the veracity of facts is tested. It is another thing when the Enquiry Officer who conducts the enquiry is also authorised to impose punishment as it was the case in the matter of Central Bank of India Vs. C. Barnard, before the Supreme Court. Surely the person who is designated to impose punishment viz., the disciplinary authority when it ceased to occupy the said position by virtue of which it was authorised to impose punishment cannot be permitted to impose punishment. In view of the above, we see no substance in the submission advanced by Mr. Paranjape. In our view, as the disciplinary authority was distinct from inquiry Officer, the fact that Shri Gokhale ceased to be in the employment of the Respondent-Bank would not affect and has not affected the inquiry at all. Moreover, as mentioned at the outset, nowhere during the inquiry such an objection was taken by the petitioner. Neither in the first writ petition which was filed in this Court and which was dismissed in limine nor in the second writ petition being Writ Petition No.1379 of 1986, the said ground was taken. Surely the petitioner cannot be permitted to take up fresh grounds now in the third writ petition which he has filed.

7. This brings us to the second contention raised by the petitioner. It was the submission of Mr. Paranjape that the petitioner had at the earliest opportunity requested the Enquiry Officer to permit the petitioner to engage a Lawyer to represent him. However, the same was not allowed. This according to him, has resulted in grave injustice to the petitioner as he was not given a reasonable opportunity to defend himself. Mr. Paranjape drew our attention to Regulation 6(7) which reads as follows :

"6(7) The officer employee may take assistance of any other officer employee but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner or the Disciplinary Authority having regard to the circumstances of the case so permits."

It was the submission of Mr. Paranjape that there was a voluminous, oral as well as documentary record and the matter involved complicated questions of law and fact which were beyond the comprehension of a layman. Further more, the manner in which the record and proceedings were kept and the manner in which Presenting Officer conducted the proceedings and also the manner in which the arguments were advanced clearly indicated that a legal brain was guiding the said officer. He pointed out to the fact that the Presenting Officer was trained in the Staff College and was thus trained in conducting the departmental enquiries. It was submitted that the Presenting Officer was thus well trained in law and thus the bank had decidedly an advantage over the petitioner. Mr. Paranjape in support of his submission relied on the decision of he Supreme Court in he matter of J.K.Aggarwal v. Haryana Seds Development Corporation Ltd. and others, reported in AIR 1991 S.C. 1221, wherein the law as to right of representation by a lawyer at a departmental inquiry has been discussed at great length. Mr. Paranjape in particular laid stress on the observation of the Supreme Court therein that where charges are so serious as to entail a dismissal from service the inquiry authority may permit the services of a lawyer to the delinquent employee and that this rule vests a discretion. However, in the matter of exercise of this discretion one of the relevant factors is whether there is likelihood of the combat being unequal entailing a miscarriage or failure of justice and a denial of a reasonable opportunity for defence by reason of the employee being pitted against a Presenting Officer who is trained in law. He next relied on the decision of the Supreme Court in the matter of Krishna Chandra Tandon v. The Union of India, reported in AIR 1974 S.C. 1589, wherein it was held that refusal to permit assistance of a lawyer at enquiry amounted to denial of reasonable opportunity. In our opinion, none of the two decisions help Mr. Paranjape. As far as the first decision of the Supreme Court i.e. A.I.R.1991 SC 1221 (supra) is concerned, the said decision clearly lays down that the matter is of discretion and the decision has to be arrived at on a case to case basis on the situational particularities and the special requirements of justice of the case. As far as the second decision viz., A.I.R.1974 S.C.1589 (supra) is concerned, the appellant employee therein was an Income Tax Officer and the Supreme Court held that he was not entitled under the Rules to an assistance of advocate during the course of enquiry and that the Division Bench of the High Court was right in pointing out that all the appellant had to do during the course of the inquiry was to defend the correctness of his assessment orders. Same is the case before us. Under the Regulation No.6(7) discretion is given to the disciplinary authority to allow an officer employee to engage a legal practitioner unless the Presenting Officer appointed by the disciplinary authority is also a legal practitioner. In the case before us, there is nothing to show that the Presenting Officer was a legal practitioner. From the facts it also appears that the petitioner was called upon to explain the irregularities committed by him. Surely there was no question of any complicated question either of law or facts. In fact as it appears from the order of the appellate authority the petitioner although was admittedly not allowed services of a lawyer, was permitted to engage any other officer to assist him. Although efforts were made by the petitioner to engage the services of some of the officers working with him, he was not successful. In any view of the matter, no prejudice could be said to have been caused to the petitioner as is indicated by us above as there was no complicated question of either facts or law. In view of the above, we find no substance in the said submission. More so when in the earlier two writ petitions filed by the petitioner this ground was not taken at all and it is for the first time that this submission is urged before us. In view of the above we find no substance in this submission also.

8. The above were the only submissions urged by Mr. Paranjape before us. None of them has found favour with us. In these circumstances, we see no substance in the present writ petition and the same deserves to be dismissed. Mr. Paranjape, the learned Counsel submitted that there are certain dues of the petitioner which are not yet cleared by the Bank. On enquiring about the same with Mr. Kulkarni, Mr. Kulkarni after taking instructions, stated that as far as the Bank is concerned, dues which are legitimately due to the petitioner, if not paid, will be paid within a period of four months from today, provided if further information is required from the petitioner would be furnished to the bank.

9. In view of the above, writ petition dismissed with costs. Rule discharged.

Petition dismissed.