1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 4th DAY OF AUGUST 2014 BEFORE THE HON'BLE MR. JUSTICE DILIP B BHOSALE W.P.NO.37115/2002 (S-DE) BETWEEN Y V NAGARAJ AGED ABOUT 54 YEARS S/O.VENKATACHALAIAH EARLIER WORKING AS SR.MANAGER AN OFFICER IN MIDDLE MANAGEMENT GRADE SCALE II AT KOLAR GRAMIN BANK MANDIKAL 'A' BRANCH, KOLAR DISTRICT SINCE ILLEGALY REMOVED FROM SERVICE AND R/AT NO.C-85, IST MAIN ROAD SREE DHARMARAYASWAMY TEMPLE STREET VIJAYAPURA-562135 DEVANAHALLI TALUK BANGALORE RURAL DISTRICT PETITIONER (BY SRI M N PRASANNA, ADV., FOR M/S P S RAJAGOPAL & ASSTS.) AND KOLAR GRAMIN BANK A BODY CONSTITUTED UNDER THE REGIONAL RURAL BANKS ACT, 1976 REPRESENTED BY ITS CHAIRMAN HEAD OFFICE, KOLAR 563 101 RESPONDENT
(BY SRI T P MUTHANNA, ADV.,) THIS W.P. FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF DISCIPLINARY AUTHORITY IN No. REF.SS/798/2001-02 DT.24- 11-2001 VIDE ANN.X AND ORDER OF APPELLATE AUTHORITY IN AGENDA ITEM No.4 RECORDED IN THE 118TH MEETING OF THE BOARD OF DIRECTORS HELD ON 13-3-2002 VIDE ANN.Z AND DIRECT THE RESPONDENTS TO REINSTATE THE PETITIONER INTO THE SERVICES OF THE BANK FORTHWITH WITH ALL CONSEQUENTIAL BENEFITS INCLUDING PAYMENT OF FULL ARREARS OF SALARY, GRANT OF PROMOTIONS AND OTHER SERVICE BENEFITS AS IF THE IMPUGNED ORDERS WERE NEVER IN EXISTENCE.
THIS W.P. COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
[ACT]:
This writ petition under [SECTION] of the [ACT] challenges the orders dated 24-11-2001 and 13-3-2002 passed by the disciplinary authority and the appellate authority respectively, whereby the petitioner had been removed from service as provided for in [SECTION] of [SECTION] of [ENTITY] (Staff) Service Regulations 1983 (for short "Regulations").
2. The petitioner, at the relevant time, was working as Senior Manager with the respondent-Bank (for short "Bank"). The Bank issued charge-sheet against the petitioner under the Regulations on 18.1.2000. In short, the charge against the petitioner was that he had sanctioned loans in violation of the procedure laid down by the Bank. It appears that even on an earlier occasion he was charge-sheeted for similar misconduct. Enquiry was conducted by the enquiry officer appointed vide order dated 10.5.2000. Since there is no dispute and no question was raised as to correctness of the procedure that was followed by the disciplinary authority, I am not entering into a question whether due procedure was followed by the enquiry officer. The enquiry officer submitted his findings dated 24.4.2001 to the disciplinary authority. The disciplinary authority issued show cause notice to the petitioner along with a copy of the enquiry report on 2.5.2001. The petitioner made representation in reply to the show cause notice issued by the disciplinary authority dated 12.11.2001. The disciplinary authority, after granting an opportunity of being heard to the petitioner, passed the impugned order. Operative portion of the order reads thus :
"AND WHEREAS a personal hearing was given to charge sheeted officer on 12.11.2001 by the Disciplinary Authority.
AND WHEREAS after taking all factors including the submission given by the charge sheeted officer during the personal hearing on 12.11.2001 into consideration, the Disciplinary Authority has considered that the ends of justice will be met if the following punishment is imposed on the charge sheeted officer. NOW, THEREFORE, the punishment:
"Removal from service which shall not be a disqualification for future employment"
as provided in [SECTION] of [ENTITY] (Staff) Service Regulations, 1983/[SECTION] of [ENTITY] (Officers and Employees) Service Regulations, 2001, is hereby imposed on the charge sheeted officer." Feeling aggrieved and dissatisfied with the order passed by the disciplinary authority dated 2nd January 2002, the petitioner preferred an appeal under [SECTION] of the Regulations before the Board. The Board-appellate authority dismissed the appeal by a reasoned order dated 13-3-2002. Feeling aggrieved and dissatisfied with the orders passed by the disciplinary authority and the appellate authority the petitioner preferred this writ petition under [SECTION] of the [ACT].
3. I have heard learned counsel for the parties and with their assistance gone through the entire record, more particularly, the impugned orders. Learned counsel for the petitioner assailed the orders passed by the authorities below on three grounds. Firstly, he submitted that the petitioner was denied assistance of legal practitioner in the course of enquiry though, such request was made by him in writing. Secondly, he submitted that the disciplinary authority failed to record reasons in the impugned order and on this ground alone, the orders passed by the authorities below deserve to be set-aside, and lastly, he submitted that the punishment imposed is disproportionate to the charge against the petitioner. He did not urge any other contention.
4. [SECTION] clearly provides that for the purpose of enquiry, the officer or employee may not engage a legal practitioner. After inviting my attention to this regulation, learned counsel for the petitioner submitted that having regard to the bulk/voluminous record, authorities below in response to the petitioner's application dated 28.8.2000 ought to have allowed him to engage legal practioner to defend him. Admittedly, the petitioner was given an opportunity to engage, as per the provisions in the Regulations, a Senior Officer to defend him in the course of enquiry, but he chose not to engage any senior officer to defend him and he conducted the case himself. It is not in dispute that the Presenting officer was not a legal practioner. In this backdrop, my attention was invited to the judgments of the Supreme Court in [ENTITY] vs. High Court of Madhya Pradesh and another, (2010) 11 SCC 500 to contend that it is not absolutely mandatory that disciplinary authority should permit engagement of legal practitioner irrespective of the facts and circumstances of the case. Paragraph 14 of the report reads thus :
"14. The bare reading of this Rule shows that the government servant may take the assistance of any other government servant to represent his case but may not engage a legal practitioner for the purpose unless the presenting officer appointed by the authority is a "legal practitioner" or the disciplinary authority, having regard to the circumstances of the case, so permits. The expression "may"
cannot be read as "shall". The normal rule is that a delinquent officer would be entitled to engage another officer to present his case. But if the presenting officer is a "legal practitioner", he may normally be permitted to engage a legal practitioner. The third category is where the disciplinary authority having regard to the circumstances of the case so permits. It is, therefore, not absolutely mandatory that the disciplinary authority should permit the engagement of a legal practitioner irrespective of the facts and circumstances of the case. There is some element of discretion vested with the authority which, of course, has to be exercised properly and in accordance with the settled principles of service jurisprudence."
5. From bare perusal of the law laid down by the Supreme Court in [ENTITY] and having considered [SECTION], in my opinion, the petitioner, not as of right was entitled to seek assistance of legal practitioner. Having regard to overall facts and circumstances of the case and judgment of the Supreme Court it cannot be stated that merely because assistance of legal practitioner was not allowed, the enquiry would vitiate. It is not in dispute that the petitioner was provided the entire material that was relied upon by the enquiry officer so also by the disciplinary authority in submitting the report and imposing punishment, well in advance. No opportunity of being heard was denied to the petitioner. Thus the first ground of challenge, in my opinion, fails and deserves to be rejected outright.
6. The second contention that the disciplinary authority did not record reasons also, in my opinion, deserves to be rejected. Learned counsel for the petitioner placed heavy reliance upon the judgment of the Supreme Court in [PRECEDENT]. It is true that the disciplinary authority in its order dated 24.11.2001 has not recorded elaborate considerations or reasoning in support of its conclusion. It is also equally true that the disciplinary authority has simply recorded in the order that it agreed with the findings of the enquiry officer. It is not in dispute that the charge sheet and the findings of the enquiry officer were before the disciplinary authority and after perusing the same, it passed the impugned order. The Supreme Court in [PRECEDENT] (supra) observed that it is open to the disciplinary authority to agree on the findings of the enquiry officer and in which event it need not record elaborate consideration or reasonings in support of his conclusion, but the order must bear out his application of mind to the questions involved and brief reasons in support thereof, though not like a judgment. Based on this observations, it was vehemently submitted that no reasons whatsoever nature were recorded by the disciplinary authority in the impugned order. My attention was invited to the judgment of the Supreme Court in [PRECEDENT]. While dealing with similar question, Supreme Court in paragraph 13 observed thus :
"On careful perusal thereof we find that only in those cases where the Disciplinary Authority considers it necessary to direct fresh or further enquiry or disagrees with the findings of the Enquiry Officer, it has to record the reasons for its such directions, but there is no such obligation if it agrees with the findings of the Enquiry Officer. It can, therefore, be legitimately inferred that when express provisions have been made in the Regulations for recording reasons in only the first two of the three fact situations - and not the other - there is no implied obligation also to record the reasons in case of concurrence with the findings of the Enquiry Officer. Even if we proceed on the basis that such an obligation is implicit, still the order of the Disciplinary Authority cannot be held to be bad as, on perusal thereof, we find that before concurring with the findings of the Enquiry Officer it has gone through the entire proceeding and applied its mind thereto. In our considered opinion, when the Disciplinary Authority agrees with the findings of the Enquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to re-appraise the evidence to arrive at the same findings. We are, therefore, unable to accept the contention of Mr.[ENTITY] that the order of punishment was liable to be struck down as it was a non-speaking order and did not contain any reason."
(emphasis supplied) There is no dispute that insofar as Regulation, with which we are concerned in the present petition, are concerned, it does not provide for recording reasons as such. In the present case, from the facts of the case, I am satisfied that the Appellate authority before agreeing with the findings of the disciplinary authority/enquiry officer had gone through the entire proceedings and applied its mind thereto. That apart, the appellate authority also gave an opportunity to the petitioner to place his case before it and then passed a reasoned order concurring with the findings recorded by the enquiry officer, and the punishment imposed by the disciplinary authority. I am satisfied that no prejudice whatsoever is caused to the petitioner merely because the disciplinary authority did not record elaborate reasons while imposing the punishment. Thus, the second ground of objection also deserves to be rejected.
7. Having regard to overall facts and circumstances of the case and considering the nature of charge framed against the petitioner, which came to be proved by cogent material on record, it cannot be stated that the punishment imposed is disproportionate to the alleged misconduct. Hence, this ground also deserves to be rejected.
The writ petition is accordingly dismissed. Rule discharged. No costs.
JUDGE [ENTITY]