IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON’BLE SRI JUSTICE C.V. RAMULU WRIT PETITION NO.4001 OF 2004 DATED:02.08.2010 Between: Jerard Charles David … Petitioner And Reserve Bank of India Rep. by its Deputy General Manager (Banking), Department of Administration and Personnel Management Secretariat Road, Saifabad, Hyderabad and another … Respondents THE HON’BLE SRI JUSTICE C.V. RAMULU WRIT PETITION NO.4001 OF 2004 ORDER: This Writ Petition is filed seeking a Mandamus to declare the proceedings No.DAPM(Hyd)/784/07.08.60/2003-2004, dt.09.08.2003, of the first respondent, dismissing the petitioner from service, and the proceedings of the second respondent, confirming the dismissal order, as arbitrary and illegal, being violative of Article 311(2) of the Constitution of India, read with Regulation 47(2) of the Reserve Bank of India (Staff) Regulations, 1948, and consequently direct the respondents to reinstate the petitioner into service with all consequential benefits, including full back wages, continuity of service and other attendant benefits. It appears that the petitioner was appointed as Clerk/CNE Grade-II in the year 1979 in the Reserve Bank of India (RBI) and since then he has been continuously working without any complaints whatsoever and to the satisfaction of his superiors. He claims that he had put in twenty- four (24) years of unblemished service. While that being so, he was sent on deputation to India Government Mint, Saifabad, Hyderabad, on official duty, for “Coin Bags Recounting” duty from 2.6.2003 to 30.6.2003. However, in between, he was asked to go on remittance duty to State Bank of Hyderabad Currency Chest, Panjagutta, vide Remittance Order No.344/2002-03, dt.27.5.2003. After completing the said duty, he had reported back in the office and he was asked to go to India Government Mint for supervision of “Coin Bags Recounting”. The operation of recounting of coin bags requires that each bag of coins is opened in the presence of RBI representative and the coins recounted on machine. The opening of bags and recounting of coins on machine are done by the Machine Operators of India Government Mint. On such recounting, if the bags found to have correct number of coins, immediately they are secured and sealed by the Ministerial Staff of India Government Mint then and there. The role of the petitioner was only to supervise the process that was carried on by the Staff of India Government Mint. The petitioner never touched the coins, as the same was not his duty. The work was carried out near the furnace where the temperature is 45 degrees and ventilation is almost nil forcing the employees to go out now and then to breath fresh air. In the course of his duties, he used to pass through security check at every sentry conducted by the Central Industrial Security Force (CISF). The security staff had an altercation with the petitioner on one day on a trivial issue and as a result, they appeared to have developed grudge against him. While the matter stood thus, on 10.6.2003, after he had passed through two search points and while he was passing through the third search, Sri S.P. Swamy, Assistant Sub-Inspector, CISF, who was holding a pouch in his hands had shown it to the petitioner alleging that the same belongs to the petitioner. The petitioner informed him that the said pouch does not belong to him. However, a complaint was lodged at Saifabad Police Station, and the Police registered a criminal case, however, on explaining the situation on the very same day the petitioner was released on bail. The General Manager, India Government Mint, without any further enquiry in the matter in a mechanical manner, has suggested to the first respondent to take action against the petitioner. He was issued with a show cause notice dt.19.6.2003 calling for his explanation as to why he should not be dismissed from service. On the basis of the same, the petitioner submitted his explanation stating that he is not guilty of the charge. However, the respondents did not conduct any detailed enquiry and dismissed the petitioner from service by order dt.9.8.2003. Aggrieved thereby, the petitioner filed an appeal before the second respondent and the appeal filed by the petitioner was also dismissed by order dt.24.1.2004. Aggrieved thereby, the present Writ Petition is filed. The main thrust of the learned counsel for the petitioner, Sri B.G. Ravindra Reddy, is that the respondents have not followed the principles of natural justice and the order passed by the primary authority as well as the appellate authority are contrary to Regulation 47(1) and (2) of the Reserve Bank of India (Staff) Regulations, 1948 (for short, ‘the Regulations’), which reads as under: “47.(1) Without prejudice to the provisions of other Regulations, an employee who commits a breach of the Regulations of the Bank, or who displays negligence, inefficiency or indolence, or who knowingly does anything detrimental to the interests of the Bank or in conflict with its instructions, or who commits a breach of discipline or is guilty of any other act of misconduct, shall be liable to the following penalties:- (a) reprimand; (b) delay or stoppage of increment or promotion; (c) degradation to a lower post or grade or to a lower stage in his incremental scale; (d) recovery from pay of the whole or part of any pecuniary loss caused to the Bank by the employee; (e) dismissal. (2) No employee shall be subjected to the penalties (b), (c), (d) or (e) of sub-regulation (1) except by an order in writing signed by the Competent Authority and no such order shall be passed without the charge or charges being formulated in writing and given to the said employee so that he/she shall have reasonable opportunity to answer them in writing or in person, as he/she prefers, and in the latter case his/her defence shall be taken down in writing and read to him/her. Provided that the requirements of this sub-Regulation may be waived if the facts on the basis of which action is to be taken have been established in a court of law or Court Martial or where the employee has absconded or where it is for any other reason impracticable to communicate with him/her or where there is difficulty in observing them and the requirements can be waived without injustice to the employee. In every case where all or any of the requirements of this sub Regulation are waived, the reasons for so doing shall be recorded in writing.” The respondents have dispensed with conducting a detailed enquiry under proviso to Regulation 47(2), without there being any such situation as contemplated there under. Therefore, on this ground alone, the orders passed by the primary authority as confirmed by the appellate authority are liable to be set aside. In this regard, he relied upon the judgment of the Supreme Court in Jaswant Singh v. State of Punjab[1] wherein it was observed as under: “… It was incumbent on the respondents to disclose to the Court the material in existence at the date of the passing of the impunged order in support of the subjective satisfaction recorded by respondent No.3 in the impugned order. Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the following observation at p.270 of 1985 (Supp) 2 SCR 131) : (at p.1479 of AIR 1985 SC 1416) of Tulsi Ram’s case: “A disciplinary authority is not expected to dispense with a disciplinary authority lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case against the government servant is weak and must fail.” The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the counter affidavit filed by the third respondent it is contended that the appellant, instead of replying to the show cause notices, instigated his fellow police officials to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry Officer if any departmental inquiry was held against him. No particulars are given. Besides it is difficult to understand how he could have given threats, etc, when he was in hospital. It is not shown on what material the third respondent came to the conclusion that the appellant had thrown threats as alleged in paragraph 3 of the impugned order. On a close scrutiny of the impugned order it seems the satisfaction was based on the ground that he was instigating his colleagues and was holding meetings with other police officials with a view to spreading hatred and dissatisfaction towards his superiors. This allegation is based on his alleged activities at Jullundur on April 3, 1981 reported by SHO/GRP, Jullundur. That report is not forthcoming. It is no one’s contention that the said SHO was threatened. The third respondent’s counter also does not reveal if he had verified the correctness of the information. To put it tersely the subjective satisfaction recorded in paragraph 3 of the impugned order is not fortified by any independent material to justify the dispensing with the enquiry envisaged by Article 311(2) of the Constitution. We are, therefore, of the opinion that on this short ground alone the impugned order cannot be sustained.” The learned counsel for the petitioner also relied on another judgment of the Supreme Court in State of Punjab v. Harbhajan Singh[2] wherein it was held as under: “Learned counsel then contended that no departmental enquiry could be held against the respondent in view of his involvement with terrorists. In the suit, the State did not place any material to establish that any case was made out for dispensation of a regular departmental enquiry as required under clause (2) to Article 311 of the Constitution of India. The question is now covered by a recent decision of this Court in Tarsem Singh v. State of Punjab[3] wherein this Court has opined that if no material is brought to the notice of the Court on the date of passing of the impugned order in support of the allegations contained therein as to why it was impracticable to hold a regular disciplinary proceedings, the order of termination would not be sustainable.” Thus, he submits that the impugned order suffers from gross violation of principles of natural justice and contrary to the very Regulations. Per contra, learned counsel appearing for the respondents, Sri M.P. Ugle, submits that the Writ Petition is not maintainable. The petitioner is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and instead of availing the efficacious and alternative remedy under Section 2A(2) of the Industrial Disputes Act he has approached this Court directly and therefore the Writ Petition is liable to be dismissed on this ground alone. The learned Counsel for the respondents further stated that once the disciplinary authority has recorded reasons for dispensing with conducting a detailed enquiry as provided under provision to Regulation 47(2) of the Regulations, the question of again conducting a detailed enquiry does not arise. Further, conducting of enquiry has not prejudiced the interests of the petitioner and, in fact, no such prejudice has been pointed out by the petitioner in this writ petition. A show cause notice was issued and while issuing show cause notice it was made clear that a detailed enquiry was dispensed with by invoking the proviso to Regulation 47(2) of the Regulations. Hence, neither it can be called that the enquiry was not conducted nor it can be said that the reasons recorded, as to the dispensing with the detailed enquiry, are arbitrary and illegal. The Writ Petition is therefore devoid of merit and is liable to be dismissed. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the material available on record. The short question that arises for consideration is – “whether the respondents the disciplinary authority as well as the appellate authority, could have ignored conducting of a detailed enquiry while invoking proviso to Regulation 47(2) of the Regulations ?” In the very show cause notice dt.19.6.2003, the disciplinary authority has stated that the detailed enquiry has been dispensed with by invoking proviso to sub-regulation (2) of Regulation 47 of the Regulations. Pleading that he is not guilty, the petitioner has submitted explanation, as under: “In reply to para 4 of the show cause notice I deny the charges levelled against me in para 4(1) to 4(4). And I have adverted to the same in my early paragraphs. At the risk of reiteration, I wish to state that I have never carried any denomination coins much less the alleged 40 pieces of 5 rupee coins and I am innocent of the charge. I further state that gross injustice is sought to be imposed on me by your act of dispensing with the regular detailed enquiry under regulation 47(2) of RBI Staff Regulations 1948. And in issuing show cause notice on the same day for dismissible from service in this regard I wish to state that regulation 47(2) is not applicable to the present case and the allegation though false are serious in nature and I am issuing detailed reply to facilitate a detailed enquiry which would bring out the true facts and save me from both dismissal and disrepute. I humbly submit that dismissal from service is a major penalty and principles of natural justice require that due opportunity should be given to me and a proper enquiry should be conducted before imposing the same on me. I further submit that the allegations are still at the threshold and no decision either from the Hon’ble Criminal Court or from the enquiry come out against me and imposition of penalty of dismissal from service at this stage is highly prejudicial.” The disciplinary authority, however, observed as under: “Contentions as discussed in para 2(j) above advanced by Shri J.C. David have no force as the Bank is not taking any action for the crime of theft which has to be established in a criminal court of competent jurisdiction. Reserve Bank has taken action for the misconduct of having stolen 40 pieces of Rs.5/- coins from India Government Mint while Shri J.C. David was on duty on behalf of the Bank. The Competent Authority based on the facts, circumstances and record of the case came to the conclusion that Shri J.C. David committed the misconduct and the charges set out in para 4(1) to para 4(4) of the findings dated 19th June 2003 have been established. Further, it is for the Competent Authority to decide having regard to the facts and circumstances of the case, whether to conduct a regular detailed enquiry or to dispense with the same under proviso to Sub-Regulation (2) of the Regulation 47 of the Reserve Bank of India (Staff) Regulations, 1948. The present case was found to be a fit case by the Competent Authority to invoke the aforesaid proviso as elaborately discussed in the findings dated 19th June 2003 by the Competent Authority.” Finding thus, the disciplinary authority passed an order of dismissal. The appellate authority, before whom the petitioner has raised the issue of not conducting a detailed enquiry, in its order has observed as under: “The circumstances leading to the issue of the show cause notice are elaborately narrated therein and, therefore, are not repeated here. Considering the facts and circumstances of the case and on the basis of his arrest by the Police and initiation of criminal proceedings against him the Competent Authority (CA) decided to invoke the provisions of the proviso to Regulation 47(2) of the Reserve Bank of India (Staff) Regulations, 1948 and proposed the penalty of dismissal without issuing a charge sheet and conducting enquiry. The show cause notice was issued to the Appellant with a view to affording him a reasonable opportunity to defend his case. A copy of the order (together with enclosures) dated 19th June 2003 recorded by the Competent Authority giving his reasons for dispensing with holding a regular enquiry by invoking proviso to Sub-Regulation (2) of Regulation 47 of Reserve Bank of India (Staff) Regulations, 1948 was also enclosed to the above show cause notice.” Further, while concurring with the findings recorded by the disciplinary authority second respondent rejected the appeal by order dt.24.1.2004. The order passed by the disciplinary authority giving reasons to dispense with the enquiry under proviso to Regulation 47(2) of the Regulations, is as under: ORDER DISPENSING WITH A REGULAR DETAILED ENQUIRY BY INVOKING PROVISO TO SUB-REGULATION (2) OF REGULATION 47 OF RESERVE BANK OF INDIA (STAFF) REGULATIONS, 1948 – ISSUANCE OF SHOW CAUSE NOTICE FOR DISMISSAL – SHRI J.C. DAVID, (P.F.INDEX NO.BHJ-0065) CLERK/CNE GR.II (UNDER SUSPENSION), RESERVE BANK OF INDIA, HYDERABAD Shri J.C. David, Clerk/CNE Gr.II, (P.F. Index No.BGJ- 0065), attached to Cash Department of Hyderabad Office of the Reserve Bank of India was placed under suspension on 10.6.2003 in terms of Regulation 47(4) of the RBI (Staff) Regulations, 1948 following a report received by General Manager, Issue Department, RBI, Hyderabad from Shri L.R. Prasada Rao, General Manager, India Government Mint, Hyderabad that Shri J.C.David was deputed to India Government Mint, Saifabad from 2.6.2003 to 30.6.2003 for duty of coin counting. On 10.6.2003, while leaving the Mint, Shri David was asked by the CISF, Assistant Sub-Inspector Shri S.P. Swamy, who was posted at the final search point to give a body search, which he refused to cooperate with and when forcibly the search was conducted by the Assistant Sub- Inspector, 40 coins of Rs.5/-, out of which 36 are good coins and 4 are wasters were recovered from the possession of Shri J.C. David. The incident was brought to the notice of Saifabad Police Station and a FIR was filed and a Panchanama was also made. Subsequently, a letter No.GMO/CM/RBI/2003/1110 dated 11th June 2003 from Shri L.R. Prasada Rao was received in the Office. A copy of the letter dated 11.6.2003 from Shri L.R. Prasada Rao, General Manager, India Government Mint, Hyderabad, is enclosed herewith and marked as Annexure-I. On the same day, i.e. 11.6.2003 office of Detective Inspection of Police, Saifabad Police Station, Hyderabad, wrote a letter No.CR.483/PS-SB/2003 dated 11.6.2003 to the General Manager, RBI, Hyderabad intimating about the arrest of Shri J.C. David, S/o. H.R. David aged 49 years, Clerk/CNE Gr.II, on account of Shri David being caught red-handed by stealing Rs.5/- coins totaling 40 pieces which were concealed in a velvet blue colour pouch while he was deputed for official duty at India Government Mint. Panchanama was prepared in the presence of Shri David. It is also stated in the aforesaid letter that a criminal case No.483/2003 has been registered under Section 380 of the IPC. It is also informed in the aforesaid letter that Shri J.C. David has been remanded to judicial custody by XV Metropolitan Magistrate, Hyderabad, a copy of the aforesaid letter is enclosed and marked herewith as Annexure-II. There was a newspaper report in the 17.6.2003 issue of Telugu daily, “Eenadu” regarding the incident. A copy of the said newspaper report is enclosed and marked herewith as Annexure-III. Shri J.C. David was put under suspension in terms of Regulation 47(4) of the RBI (Staff) Regulations, 1948 on 10.6.2003 itself after the Reserve Bank of India came to know about the incident. A copy of the Panchnama and a copy of the FIR in the matter is also enclosed herewith and marked as Annexure IV and V. While being deputed to India Government Mint, Hyderabad, Shri J.C. David was placed in a position of trust by Reserve Bank of India. He was allowed to visit India Government Mint, Hyderabad for official work on behalf of Reserve Bank of India. Shri J.C. David was caught red-handed by the Central Industrial Security Force Personnel and a panchanama signed by the witnesses and signed by Shri J.C. David also shows the recovery of 40 coins of Rs.5/- from his possession. The offence for which Shri J.C. David has been charged under Section 380 of IPC is theft and is a cognizable offence under IPC. Shri J.C.David is reported to be on bail. The action of Shri J.C. David who is an employee of Reserve Bank of India has brought gross disrepute to the fair name of Reserve Bank of India. Shri J.C. David was sent by Reserve Bank of India on official duty with the India Government Mint and there he committed a theft of 40 pieces of Rs.5/- coins valuing at Rs.200/-, which was the public money. In the aforementioned circumstances, Shri David has committed a gross misconduct and has knowingly and deliberately acted in a manner not only detrimental to the interest of Reserve Bank of India but has also brought disrepute to it by projecting a poor image of Reserve Bank of India before the public and Government of India by stealing 40 pieces of Rs.5/- coins totaling Rs.200/-. In the circumstances, I am satisfied that the regular enquiry against Shri David can be waived without injustice to him. I am also satisfied that the facts and circumstances of the case and conduct of Shri J.C. David shows that he has no defence to the charges made against him. He has been caught red-handed and a case under Section 380 of the IPC is registered against him. The conduct of Shri J.C. David amounts to misappropriation of public money from the position of trust in which he was placed by Reserve Bank of India. His conduct has also brought disrepute to the Reserve Bank of India and has projected a poor image of Reserve Bank of India and the employees of Reserve Bank of India before the public and the Government of India by stealing/misappropriating 40 pieces of Rs.5/- coins from India Government Mint, Hyderabad. Shri J.C. David has clearly acted in a manner detrimental to the interests of Reserve Bank of India and also detrimental to the public interest by stealing, misappropriating the public money in breach of the trust reposed in him by Reserve Bank of India. In the circumstances, Shri J.C. David has rendered himself liable for punishment of dismissal in terms of Regulation 47(1)(e) of RBI (Staff) Regulations, 1948. I, therefore, order that this is a fit case for invoking Proviso to Sub-Regulation (2) of Regulation 47 of Reserve Bank of India (Staff) Regulations, 1948. Shri J.C. David, Clerk/CNE Gr.II, P.F./Index No.BGJ-0065 (under suspension) should be issued a notice to show cause as to why he should not be dismissed from the Reserve Bank’s services. Accordingly, I direct that a copy of this order may be sent to Shri J.C. David along with the Show Cause Notice. The Show Cause Notice together with all the annexures be sent to all known addresses of Shri J.C. David by Registered Post A.D. and under Certificate of Posting, by Ordinary Post and also a copy of the Show Cause Notice with Annexures be pasted at his residence.” A bare look at the reasons furnished above would show that the same would not satisfy the proviso to Regulation 47(2) of the Regulations. The requirement of the Regulation may be waived if the facts on the basis of which action is to be taken have been established in a Court of Law or Court Martial or where the employee has absconded or where it is for any other reason impracticable to communicate with him/her or where there is difficulty in observing requirements and the same can be waived without injustice to the employee. Admittedly, this is not a case where action