* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + W.P.No.22676 OF 1999 % Dated -06-2006 # T. Premchandra Rao …. Petitioner Vs. $ B. Pramod, General Manager (Plg&Dev.), Sydicate bank, Manipal –576119 and two others. …. Respondents ! Counsel for the Petitioner: Mr. J.Sudheer ^ Counsel for the Respondents: Mr.T.Gopalakrishna <GIST: > HEAD NOTE: ? Cases referred [1] 1998(2) ALT 598 2 AIR 1970 SC 1255 3 AIR 1997 SC 2148 4 1998(6) Supreme 587= AIR 1998 SC 3038 5 1991(1) LLJ 130 6 1998(1) ALT 501 7 AIR 1964 SC 364 8 AIR 1972 SC 2535 9 AIR 1972 SC 330 10 1996(2) ALD 1160 11 1996(3) ALD 163 12 1998(2) LLJ 511 13 (2005) 3 SCC 241 14 (2003) 3 SCC 583 15 1967(2) LLJ 715 16 1971 (1) LLJ 83 17 1978(1) LLJ 443 18 1996(3) SCC 364 19 AIR 1974 SC 1596 20 AIR 1976 SC 2547 21 AIR 1989 SC 1933 22 2002(4) SCC 234 23 1966 M.P.L.J. 26 24 1969 NSC 186 25 AIR 1965 SC 155 26 AIR 1984 SC 289 27 1969 (2) SCC 372 28 1981(II) ALT 455 29 AIR 1954 SC 51 30 AIR 1991 SC 1260 31 AIR 1974 SC 555 32 AIR 1977 SC 567 33 AIR 1987 SC 2043 34 (1990) 4 SCC 594 35 AIR 1977 SC 1512 36 AIR 1982 SC 673 37 AIR 1963 SC 779 38 AIR 1969 SC 966 THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.22676 of 1999 JUDGMENT: This writ petition is filed, seeking to have the orders passed by the 2nd respondent - disciplinary authority in compulsorily retiring the petitioner from service, vide proceedings dated 15.4.1999, as confirmed by the 1st respondent-appellate authority, vide proceedings dated 23.8.1999, quashed. 2. Brief facts, to the extent necessary, are that the petitioner joined the service of the respondent – bank on 06.01.1977. While he was working as a clerk, at the Kothapeta branch of the respondent bank, he was served charge sheet, dated 13.06.1998, by the disciplinary authority, on 27.06.1998, for gross misconduct of “doing acts prejudicial to the interest of the bank” under clause 19.5(j) of the bipartite settlement. The petitioner was asked to submit his written statement of defence within 15 days. The petitioner, vide letter dated 03.09.1998, sought for certain documents, receipt of which was acknowledged by the 2nd respondent on 06.09.1998. The petitioner was informed, vide letter dated 4.9.1998, that since he had failed to submit his explanation, the disciplinary authority had ordered for an enquiry and that an enquiry officer was being appointed. Petitioner would contend that since, along with the charge sheet, no list of documents and witnesses was supplied, to enable him to submit his reply to the charge sheet, the action of the respondents in appointing an enquiry officer was illegal. On being advised, to obtain the documents he had sought for from the enquiry officer, the petitioner in his letter dated 12.10.1998 is said to have pointed out the lapses on the part of the respondents in not furnishing him the list of documents. In response thereto the 2nd respondent informed him, vide letter dated 14.10.1998, that an enquiry had already been ordered on 3.09.1998 and the same had been communicated to the petitioner on 04.09.1998. Petitioner would contend that he is entitled, as of right, to have the list of documents and list of witnesses forwarded along with the charge sheet to enable him to prepare for his defence and to submit his written statement of defence and that non-supply thereof would render the charge sheet vague and incomplete thereby denying reasonable opportunity of defending himself. 3. The 3rd respondent, vide letter dated 03.10.1998, informed the petitioner that the first date of enquiry had been fixed on 26.10.1998 and that, in accordance with clause 19.12(a) of the bipartite settlement, the petitioner should participate in the enquiry along with his defence representative. The petitioner is said to have participated in the enquiry on 26.10.1998 along with his defence representative and to have informed the 3rd respondent that he had not yet submitted his reply to the charge sheet, inasmuch as the list of documents and witnesses had not been furnished to him. The management representative, vide letter dated 26.10.1998, supplied the list of documents and witnesses along with copies of documents which formed part of the enquiry. The petitioner’s defence representative requested the 3rd respondent to adjourn the enquiry to a later date to enable them to go through the documents and prepare for their defence and for effective cross-examination of the management witness. The 3rd respondent, without accepting the petitioner’s request, is said to have proceeded further in the matter and to have ordered the management representative to lead his evidence. Petitioner would contend that the enquiry officer should have adjourned the enquiry, by giving him three clear days time, to prepare himself and to verify the documents furnished to him at the commencement of the enquiry held on 26.10.1998. Petitioner would submit that the examination in chief, of the sole witness on behalf of the management, was completed on 26.10.1998 and, after repeated requests, the proceedings were adjourned to the next day i.e., 27.10.1998. Petitioner would attribute bias to the enquiry officer. Petitioner would rely on A. Sadanand v. Syndicate Bank[1]. During the course of enquiry the bank examined Sri S.V.H.V. Sharma, the vigilance Officer, who conducted the preliminary investigation in the matter, as their sole witness who deposed at length about the allegations made in the charge sheet and marked all management documents. Petitioner would contend that the investigation officer is not a material witness and that no case can be decided on the basis of his evidence alone, inasmuch as he has no personal knowledge of the matter in issue and that he merely collects all information from the documents and witnesses he had examined which cannot be treated as direct evidence. Petitioner would contend that, in his case, no direct witness was examined. Petitioner would submit that when the investigating officer himself appeared as a witness during the enquiry, to explain certain points, refusal by the enquiry officer to permit the petitioner to inspect the preliminary enquiry report was in violation of the rules of natural justice, as he was denied reasonable opportunity of defending himself. Reliance is placed on State of Assam v. Mahendra Kumar Das[2] in this regard. 3. The 2nd respondent disciplinary authority, vide letter dated 04.03.1999, forwarded to the petitioner a copy of the enquiry officer’s report dated 30.01.1999 wherein the petitioner was held guilty of the charges. The petitioner, vide letter dated 18.03.1999, submitted his objections to the enquiry officer’s report. According to the petitioner the 2nd respondent, without considering the objections raised by him, concurred with the enquiry officer’s report, and held that the enquiry officer had given the petitioner reasonable opportunity and had followed the prescribed procedure in consonance with principles of natural justice. The petitioner was issued show cause notice, dated 27.03.1999, proposing to impose punishment of compulsory retirement. Thereafter a personal hearing was afforded and the petitioner, along with his defence representative, appeared before the disciplinary authority on 06.04.1999. The 2nd respondent passed final orders, vide proceedings dated 10.04.1999, confirming the punishment of compulsory retirement. 4. The petitioner preferred an appeal, to the General Manager (Personnel) – appellate authority, vide letter dated 01.06.1999. The petitioner was informed, vide letter dated 09.06.1999, to appear before the General Manager (Personnel) on 03.07.1999 for personal hearing. The petitioner, vide letter dated 21.06.1999, requested the Chairman & Managing Director to change the appellate authority as he was the person who had issued the charge sheet when he was the disciplinary authority. Consequent thereto, the petitioner was asked to appear before the changed appellate authority i.e., General Manager (Planning and Development) and accordingly the petitioner appeared before the 1st respondent on 03.07.1999. The 1st respondent, vide proceedings dated 23.08.1999, dismissed the petitioner’s appeal, concurred with the decision of the 2nd respondent and confirmed the order of compulsory retirement from service. Petitioner would contend that the action of the 2nd respondent was premeditated in as much as the bank had already issued circular dated 22.07.1999 informing all the branches about his compulsory retirement from service. 5. In the Counter affidavit, filed on behalf of respondents 1 to 3, it is stated that since the petitioner is a workman he has an effective and efficacious alternative remedy under the provisions of the Industrial Disputes Act. Respondents, while denying that the appellate authority had dismissed the petitioner’s appeal in a cryptic manner, would state that the 1st respondent, vide proceedings dated 23.08.1999, had considered all the petitioner’s contentions judiciously, found no extenuating circumstances warranting reconsideration of the order of the disciplinary authority, had assessed the punishment awarded by the disciplinary and found it to be proportionate to the gravity of misconduct and had thereafter, while dismissing the appeal, confirmed the punishment awarded. With regards the earlier service record of the petitioner, it is stated that an unblemished record does not entitle the petitioner to commit fraud or to claim immunity against being punished. It is stated that despite being given 15 days time, to give reply to the charge sheet, the petitioner did not respond thereto before 12.07.1998, but later on 24.07.1998 had sought 30 days time to submit his reply to the charge sheet. Even within this extended period of 30 days, the petitioner did not furnish his reply to the charge sheet and, instead, on 02.09.1998 had sought for a list of documents and witnesses. Respondents would allege that this request, for being supplied the list of witnesses and documents, was dilatory, that diversionary tactics had been adopted by the petitioner and that, in the absence of an explanation to the charge sheet, the disciplinary authority had decided, vide letter dated 04.09.1998, to hold an enquiry. Respondents would state that the petitioner’s letter dated 03.09.1998, seeking a list of documents and witnesses, was received after the decision had been taken by the disciplinary authority on 04.09.1998 to order for a domestic enquiry and as such the petitioner was advised accordingly by the disciplinary authority. It is stated that the petitioner had renewed his request for being issued a list of documents, vide letter dated 12.10.1998, and he was advised, vide letter dated 14.10.1998, to attend the enquiry and obtain the list of witnesses and documents. It is stated that the petitioner was provided all the required material in the first sitting of the enquiry itself on 26.10.1998 and that no prejudice had been caused to the petitioner in this regard. Respondents would contend that ordering of an enquiry is not an end but a means for reaching the end and the disciplinary authority had no option but to order for the domestic enquiry, to ascertain the truth of the allegations leveled in the charge sheet, in the absence of petitioner’s written reply. It is stated that the enquiry officer had provided ample opportunity to the petitioner to defend his case and that the opportunity given to him by the enquiry officer was availed by the petitioner who participated during the enquiry and defended his case effectively. It is contended that, even before the enquiry officer, the petitioner had not stated as to how prejudice had been caused to him in this regard. Respondents would deny the allegations of malafides and bias against the enquiry officer and the disciplinary authority. They would state that they had waited for nearly two months, after the charge sheet was issued, for the petitioner to submit his reply thereto and it is only thereafter that the disciplinary authority had ordered for an enquiry. Respondents would state that the petitioner, having failed to submit his explanation to the charge sheet cannot contend, more so in the absence of any specific provision in this regard, that failure to furnish the list of witnesses and documents, prior to the commencement of the enquiry, had caused him prejudice and had denied him the opportunity of submitting his reply to the charge sheet. Respondents would contend that the petitioner had participated in the enquiry, had availed the opportunity afforded to him, had cross-examined the management witness at length and had adduced evidence in his defence. It is stated that the 3rd respondent informed the petitioner, vide letter dated 03.10.1998, that the enquiry was fixed on 26.10.1998. On 26.10.1998 the petitioner is said to have appeared before the enquiry officer, along with his defence representative, and to have stated that he understood the contents of the charge sheet and the procedure for conducting the enquiry. On being asked as to whether he admitted or denied the charges, the petitioner stated that the charge sheet was vague, that the list of witnesses was not furnished to him, and that appointment of the enquiry officer was hasty and manifested prejudice. It is stated that the management witness was examined in the forenoon and was exposed for cross-examination in the post lunch session of 26.10.1998. The petitioner and his defence representative requested that the enquiry proceedings be adjourned to enable them to have an opportunity to go through the documents and that a copy of the investigation report be furnished. The enquiry officer held that the petitioner’s request for a copy of the investigation report was uncalled for since the management witness had deposed on the basis of the documents in the enquiry. With regards the petitioner’s request to be provided an opportunity to go through the documents, the enquiry officer adjourned the enquiry to the next day to enable the petitioner to come prepared. On 27.10.1998 the petitioner commenced cross- examination of the management witness and concluded the examination raising 22 cross-examination questions in the forenoon itself and the management had closed their evidence thereafter. The petitioner sought an adjournment to adduce evidence in his defence. His request was acceded to and the enquiry date was fixed for 16.11.1998 to enable the petitioner to come prepared for leading his evidence. The petitioner is said to have examined himself in his defence and to have closed his side of the enquiry. Respondents would contend that non-furnishing of a reply to the charge sheet did not preclude the enquiry officer from commencing the enquiry on 26.10.1998. Respondents would deny that adequate opportunity was not given to the petitioner to defend himself or that the enquiry was an empty formality. Respondents would state that the petitioner was given nearly 20 days to lead evidence in his defence and that the very commencement of the enquiry on 26.10.1998, and its adjournment to 16.11.1998, was only after adequate notice was given to the petitioner. Allegations of bias and malafides are denied. Respondents would state that the rules do not mandate adjournment of three clear days and the petitioner’s contention to the contrary was erroneous. Respondents would contend that since the investigating officer’s report had not been relied upon, in the enquiry, failure to furnish the petitioner a copy thereof would not amount to denial of reasonable opportunity more so when the Investigating Officer had himself appeared before the enquiry officer as a management witness and was subjected to cross- examination by the petitioner/ his defence representative. Respondents would rely on Narayan Dattatraya Ramteerthakhar v. State of Maharashtra[3] in this regard. It is stated that, on conclusion of the domestic enquiry on 16.11.1998, both the parties were asked to submit their written briefs within 15 days, and they had submitted their written briefs on 23.11.1998. The enquiry officer submitted his report to the disciplinary authority on 30.01.1999 holding that the charges levelled against the petitioner, of acting prejudicial to the interest of the bank, vide clause 19.5 (j) of the bipartite settlement, had been established, and a copy thereof was forwarded to the petitioner under cover of letter dated 04.03.1999 asking him to make his submissions, if any, on the findings within 15 days of receipt of the letter. The defence representative, on behalf of the petitioner, furnished submissions on the findings of the enquiry officer, in his letter dated 18.03.1999. It is stated that the disciplinary authority disagreed with the petitioner’s contention that the findings of the enquiry officer were perverse and was not based on evidence. The disciplinary authority agreed with the findings of the enquiry officer and held the petitioner guilty of the charges levelled against him and, vide order dated 27.03.1999, dealt with the various contentions raised by the petitioner, considered the gravity of the misconduct and then proposed imposition of punishment of compulsory retirement from service. The petitioner was permitted to make oral submissions in this regard on 06.04.1999. Respondents would state that, on 06.04.1999, the petitioner along with his defence representative appeared before the disciplinary authority and made oral submissions, and thereafter the disciplinary authority, in his proceedings dated 10.04.1999, confirmed the proposed punishment taking into account various aspects brought out by the petitioner during the personal hearing. The disciplinary authority observed that the matter raised by the petitioner had already been dealt with earlier by the enquiry officer, in the enquiry, and by the disciplinary authority at the stage of proposing the punishment. The petitioner’s grievance regarding inadequate opportunity was rejected by the disciplinary authority. Respondents would state that each and every General Manager, individually, at the head office is empowered by the Chairman and Managing Director to be the appellate authority and hear and dispose of appeals against original orders passed by the disciplinary authority, in respect of workmen staff, as per clause 19.14 of the bipartite settlement. It is stated that the petitioner’s appeal submitted to the General Manager (P) was disposed of, after the personal hearing, on 03.07.1999. It is stated that the appellate authority, in his order dated 23.08.1999, had assigned reasons as to why he was concurring with the decision of the disciplinary authority in confirming the punishment already awarded. While dismissing the appeal the appellate authority dealt with the contentions raised by the petitioner and the submissions made by him during the personal hearing held on 03.07.1999. Respondents would deny the contention that the appellate authority had passed the order without considering any of the facts mentioned by the petitioner during the personal hearing. Respondents also deny that the appellate authority had passed a cryptic order without application of mind. It is stated that the bank, in its circular dated 22.07.1999, gave details of employees who had been dismissed/terminated/discharged and compulsorily retired from service during the period 01.03.1999 to 30.04.1999 and since the petitioner was compulsorily retired from service, with effect from 23.04.1999, this circular only took note of this factual position. Respondents would state that the enquiry officer’s report and the order of the disciplinary authority were in conformity with the rules, procedure and principles of natural justice and were passed with due application of mind. 6. In his reply affidavit, the petitioner would state that the punishment imposed by the respondents is required to be set aside on the ground that the findings recorded by the enquiry officer are based on no evidence. Petitioner denies that the alternative remedy is effective and efficacious and would submit that mere existence of an alternative remedy is not a bar for exercise of jurisdiction under Article 226 of the Constitution of India. Petitioner would state that the sole witness examined on behalf of the management was the investigating officer and his entire deposition was false. Petitioner would refer to the admission of the investigating officer that he did not contact the Branch Manager and did not obtain any kind of statement from him. Petitioner would state that though this fact was brought to the notice of the 1st respondent in his appeal, the said contention was not considered and that the order of the appellate authority is not a speaking order. Petitioner would rely on State of Uttar Pradesh v. Shatrughan Lal[4]. Petitioner would state that, even in the absence of any specific rules, principles of natural justice would require that a list of documents and witnesses be provided to the delinquent employee. Petitioner would contend that where an investigating officer is cited as a witness, the delinquent employee has the right to have a copy of the investigating officer’s report to cross-examine him and failure to provide a copy thereof had resulted in denial of reasonable opportunity. 7. Petitioner would seek to have the disciplinary proceedings, culminating in the order of punishment of compulsory retirement, quashed on the following grounds: 1) Issuance of the charge sheet without enclosing the list of documents and the list of witnesses thereto and failure to supply the said documents, despite a specific request by the petitioner, resulted in his being denied reasonable opportunity of effectively preparing for his defence, to submit his written statement of defence and was, therefore, in violation of principles of natural justice. 2) Time granted, of just one day, for perusal of the list of documents and witnesses was grossly insufficient resulting in the petitioner being denied reasonable opportunity of cross-examining the management witness; 3) Since the sole witness examined, on behalf of the management, was the officer who conducted the preliminary enquiry, failure to furnish a copy of the preliminary investigation report was in violation of principles of natural justice and vitiated the domestic enquiry proceedings; 4) Failure to produce any witness, other than the investigating officer, vitiated the enquiry, more so when the investigating officer admitted not to have even met the Branch Manager who, despite being the prime witness in the case, was not examined. The petitioner could not have been guilty based on the sole testimony of the investigating officer who was neither directly connected nor was he a witness to the incidents which form the basis on which the charge sheet was issued; 5) The findings of the enquiry officer are based on no evidence and are perverse; 6) The order of the disciplinary authority and the appellate authority suffer from non-application of mind, are cryptic orders and are bereft of reasons; 7) The procedure adopted by the respondent bank, in conducting the disciplinary proceedings, is contrary to the rules and the bipartite settlement. 8. In support of his contention that failure to furnish a copy of the preliminary enquiry report, where the investigating officer is examined as the witness, would vitiate the enquiry proceedings, Sri J. Sudheer, learned Counsel for the petitioner, would rely on a Division Bench judgment of the Orissa High Court in Prafulla Chandra Behera Vs. Dena Bank[5]. Learned Counsel would submit that since the officer who conducted the preliminary enquiry was the sole witness in the departmental enquiry and the material collected by him alone formed the basis for the petitioner being held guilty of the charges, the respondents were duty bound to furnish a copy of the preliminary investigation report, and failure to do so vitiated the domestic enquiry. Learned Counsel would contend that failure to examine the then branch Manager, a material witness, vitiated the enquiry proceedings. According to the learned Counsel, since the very basis for holding the petitioner guilty of the charge was that he had received the registered letter in which the cheque had been sent for collection, and since it is the petitioner’s case that he had handed over the cover intact to the branch manager, the respondents ought to have examined the branch manger to establish the truth or otherwise of the petitioner’s contention. Learned Counsel would submit that the Branch Manager was a crucial witness and the person best suited to explain about the missing cheque, more so since the Vigilance Officer, who was examined as M.W-1, had admitted that he had not enquired from the then Branch Manager regarding the missing cheque. In support of his submission that failure to examine this crucial witness vitiated the enquiry, learned counsel would rely on N. Subramanyam Vs. Chairman, Visakhapatnam Port Trust[6]. Learned Counsel would submit that the findings of the enquiry Officer, that it had come on record that the petitioner had not handed