IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 30..6..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 13408 of 1998 D. Kannan .. Petitioner vs. 1. Central Bank of India Central Office Rep. by the Chairman and Managing Director Chander Mukhi Nariman Point, Bombay 2. The Appellate Authority Assistant General Manager Zonal Office 48/49 Montieth Road, Chennai – 8 3. The Disciplinary Authority / Regional Manager Regional Office Raheja Complex, 3rd Floor 834 Anna Salai, Chennai .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records relating to the order dated 22.11.1997 in RO:PRS:DAD:97-98:320 by the Disciplinary Authority / Regional Officer, Central Officer, the third respondent herein as confirmed by the order dated 08.5.1998 of the Appellate Authority / Assistant General Manager, Zonal Office, Chennai, the second respondent herein in his RO:PRS:DAD:98-99:13 quash the orders passed therein and direct the third respondent to proceed on the basis of the findings dated 31.3.1992 rendered by the first Enquiry Officer Mr. S. Srinivasan. For Petitioner : Mr. G. Venkataraman for M/s Aiyar & Dolia For Respondents : Mr. T.M. Hariharan O R D E R Heard the arguments of the learned counsel for the parties and have perused the records. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner was working as a Daftary in the first respondent Bank at its Branch at Mogappair. In this writ petition, he is challenging the order dated 22.11.1997 passed by the third respondent disciplinary authority and confirmed by the order dated 08.5.1998 passed by the second respondent appellate authority. A further direction was also sought for the first respondent to proceed to conclude the enquiry on the basis of the findings dated 31.3.1992. 3. It is seen from the records that the petitioner was charge-sheeted by a charge-memo dated 04.10.1991 issued as per Paragraph 19.5 (j) of the first Bipartite settlement. An enquiry was conducted against the petitioner by the Assistant Branch Manager, Anna Salai. In that enquiry, four witnesses were examined and several documents were also filed. On the basis of the materials placed, the Enquiry Officer rendered the following finding:- "In view of the various details and reasons stated above and also after carefully going through the enquiry proceedings, the Enquiry Officer is of the opinion that the charge against Mr. D. Kannan has not been proved." 4. Instead of taking a decision on the said report one way or the other, the disciplinary authority (third respondent), by his order dated 22.6.1993, passed the following order:- "I have gone through the records of the enquiry held in pursuant to the Charge-sheet RO:PRS:DAD:91-92:349 dated 4.10.1991 issued to Mr. D. Kannan, Watchman cum Peon (now Daftary) presently working at Mogappair Branch. Since the Enquiry Officer has not gone into all aspect of charges levelled against Mr. D. Kannan, I order for further enquiry on the same charge sheet dated 4.10.1991 is adopted ..." 5. The petitioner filed a writ petition against this order before this Court in W.P. No. 1603 of 1993 challenging the initiation of fresh proceedings and the same was dismissed by an order dated 27.9.1993. As against the said order, a writ appeal was filed in W.A. No. 979 of 1993. The said writ appeal was disposed of by a Division Bench vide order dated 09.4.1997. The question which arose before the Division Bench was that in the guise of ordering a further enquiry, the respondent Bank was intending to conduct a fresh enquiry. 6. This contention was rejected by the Division Bench and in paragraph 2 of the order, it was observed as follows:- "We are unable to countenance the said contention. A perusal of the impugned order, in the writ petition dated 22.6.1993 of the Disciplinary Authority will go to show that what is ordered is https://hcservices.ecourts.gov.in/hcservices/ only a further enquiry on the same charge-sheet and not a fresh enquiry as argued by the learned counsel for the Appellant. The Appellant, in our opinion, is not prejudiced in any manner because of the further enquiry now ordered by the Disciplinary authority. The appellant will always have sufficient opportunity to question the correctness of the second report, if any. Since it is only a further enquiry, the report already available on records submitted by the Enquiry Officer can also be relied on by the Appellant at the time of submitting his further explanation to the Enquiry Report. This apart, the first enquiry report has not been superseded at all, and the same forms part of the records. In this view of the matter, we are not inclined to accept both the contentions of the learned counsel for the appellant." 7. After taking advantage of the above said order of the Division Bench, the first respondent conducted a fresh enquiry in which the very same four witnesses examined in the original enquiry, were examined all over again. Apart from those four witnesses, one Scientific Officer from the Forensic Science Department was also examined as a fifth witness. 8. On the basis of the fresh evidence, the Enquiry Officer found the petitioner guilty by his report dated 15.9.1997. After obtaining his objections, he was dismissed from service and his further appeal to the appellate authority was also negatived and thus, the petitioner is before this Court. 9. Mr. G. Venkataraman, learned counsel for the petitioner, appearing for M/s Aiyar and Dolia, learned counsel for the petitioner submitted that the first respondent Bank had really made it to appear before the Division Bench and that it was only conducting a further enquiry and not a fresh enquiry. It was in that view, the earlier Division Bench dismissed the writ appeal giving liberty to the petitioner to challenge if any adverse order is passed. Therefore, if this Court comes to the conclusion that it was a fresh enquiry and not a further enquiry, then the proceedings initiated pursuant to the order dated 22.6.1993 must be eschewed from record and the Bank must be allowed to proceed to pass orders on the basis of the earlier findings dated 31.3.1992. 10. Mr. T.M. Hariharan, learned counsel for the respondent Bank submitted that it is not a fresh enquiry but only a further enquriy. He also submitted that they had examined a Forensic Expert as the fifth witness and that will show that it was only a further enquiry. But when questioned as to why M.W.2 to M.W.5 were examined all over again, the learned counsel was not able to give any satisfactory explanation. https://hcservices.ecourts.gov.in/hcservices/ 11. In this context, it is necessary to refer to the judgment of a Constitution Bench of the Supreme Court in K.R. Deb v. Collector of Central Excise, Shillong [1971 (2) SCC 102] wherein the Supreme Court dealt with the scope of Rule 15(1) of the CCS (CCA) Rules. The relevant passages found in paragraphs 12 to 14 of the said judgment may be usefully extracted below:- Para 12: "It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. Para 13: In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant. Para 14: Before the Judicial Commissioner the point was put slightly differently and it was urged that the proceedings showed that the Disciplinary Authority had made up its mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise that the Collector was determined to get some Inquiry Officer to report against the appellant." 12. Subsequently, this judgment came to be considered by a two Judges' Bench of the Supreme Court in Union of India v. P. Thayagarajan [1999 (1) SCC 733] and after referring to K.R.Deb's case (cited supra), it was distinguished and the following passage found in paragraph 8 of the said judgment may be usefully extracted:- Para 8: "A careful reading of this passage will make it clear that this Court notices that if in https://hcservices.ecourts.gov.in/hcservices/ a particular case where there has been no proper enquiry because of some serious defect having crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined, the disciplinary authority may ask the enquiry officer to record further evidence but that provision would not enable the disciplinary authority to set aside the previous enquiries on the ground that the report of the enquiry officer does not appeal to the disciplinary authority. In the present case, the basis upon which the disciplinary authority set aside the enquiry is that the procedure adopted by the enquiry officer was contrary to the relevant rules and affects the rights of the parties and not that the report does not appeal to him. When important evidence, either to be relied upon by the Department or by the delinquent official, is shut out, this would not result in any advancement of any justice but on the other hand, result in a miscarriage thereof. Therefore we are of the view that Rule 27(c) enables the disciplinary authority to record his findings on the report and to pass an appropriate order including ordering a de novo enquiry in a case of the present nature." [Emphasis added] 13. Without reference to these decisions, the Supreme Court once again considered a similar issue in Union of India v. K.D. Pandey [2002 (10 SCC 471]. Paragraphs 3 to 5 of the said judgment may be extracted below:- Para 3: "The proceedings were initiated against Respondent 1 in respect of six charges. The inquiry authority in the report made, held that none of the charges stood proved. Thereafter, the Railway Board in exercise of powers under Rule 25 of the Railway Servants (Discipline and Appeal) Rules, 1968 examined the matter and found that four of the six charges could be substantially proved beyond doubt with the available documentary evidence and, thereafter, remitted the matter for further inquiry as contemplated under Rule 25(1)(c) of the Rules. Para 4: On remit the inquiry officer made a report finding Respondent 1 guilty of four charges. Based on that report, the Railway Board dismissed Respondent 1, which was challenged in the dispute raised by him. The Tribunal as well as the High Court are of the view that on the same material a fresh opinion has been furnished and it was not a case of further inquiry. Indeed, it was not noticed by the disciplinary authority that the inquiry held earlier https://hcservices.ecourts.gov.in/hcservices/ was bad or that the management or the establishment did not have the proper opportunity to lead evidence or the findings were perverse. In the absence of the same, it was held that there was no justification on the part of the disciplinary authority to commence fresh inquiry on the same set of charges. Para 5: Learned counsel for the appellant contended that in this case the Board had examined the material on record and come to the conclusion that four of the six charges could be proved on the available material, which had not been properly examined in the earlier inquiry. In fact from the order made by the Railway Board as well as from that part of the file where the inquiry report made earlier is discussed, it is clear that specific findings have been given in respect of each of the charges after discussing the matter and, if that is so, we fail to understand as to how there could have been a remit to the inquiry authority for further inquiry. Indeed this resulted in second inquiry and not in a further inquiry on the same set of charges and the material on record. If this process is allowed the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law. In that view of the matter we think that the order made by the High Court affirming the order of the Tribunal is just and proper and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly." 14. The Supreme Court further considered K.R. Deb's case (cited supra) and relied on the same in Kanailal Bera v. Union of India [2007 (11) SCC 517]. The following passage found in paragraph 6 may be usefully extracted below:- Para 6: "The question as to whether a punishment of confinement to Civil Lines could have been directed or not should not detain us as we agree with the contention raised by learned counsel for the appellant that the purported order dated 5.4.1995 of the disciplinary authority was unsustainable in law. Rule 27 of the Central Reserve Police Force Rules 1955, inter alia, lays down the procedure for conducting a departmental inquiry. Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges https://hcservices.ecourts.gov.in/hcservices/ levelled against him another inquiry would be directed to be initiated on the self same charges which could not be proved in the first inquiry." 15. Therefore, in the light of the above binding legal precedents, the exercise carried on by the respondent Bank was not only authorised by the Bipartite Settlement but also contrary to the binding precedents laid down by the supreme Court. 16. Though an attempt is made by T.M. Hariharan stating that the issue has been concluded by the earlier order of the Division Bench between the same parties, it must be understood that at the time of delivering judgment, the Division Bench only considered the statement given by the Respondent Bank and on that premise, it came to the conclusion that what was going to be done was only a further enquiry and not a fresh enquiry. But the Division Bench has given liberty to the petitioner to challenge any resultant order. 17. Now that the completed proceedings were placed before this Court, it has become clear that in the guise of conducting a further enquiry, the respondent Bank had gone ahead with the fresh enquiry contrary to the law laid down by the Supreme Court. If the intention of the respondent Bank was only to examine a Forensic Expert who was not available at the time of the original enquiry, they could have very well informed this Court at an earlier point of time. They had not only to examine one additional witness, but also re-examined all the original four witnesses which is not permissible in law. Therefore, they cannot take undue advantage of the earlier Division Bench's order. 18. In the light of the above, this Court has no hesitation to set aside the orders impugned in this writ petition. Hence, the writ petition will stand allowed with costs. The order of dismissal made against the petitioner will stand set aside. The enquiry report dated 31.3.1992 will stand restored on the file of the second respondent. It is open to the second respondent to proceed from thereafter in the manner known to law. This exercise shall be done within a period of three months from the date of receipt of a copy of this order. The respondent Bank is directed to pay cost of Rs.5000/- to the petitioner. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ Gri To 1. The Chairman and Managing Director, Central Bank of India, Central Office, Chander Mukhi, Nariman Point, Bombay. 2. The Appellate Authority, Assistant General Manager, Zonal Office, 48/49, Montieth Road, Chennai – 8. 3. The Disciplinary Authority/Regional Manager, Regional Office, Raheja Complex, 3rd Floor, 834, Anna Salai, Chennai. + 1 CC To Mr.Aiyar and Dolia, Advocate SR NO.33559 + 1 CC To Mr.T.M.Mariharan, Advocate SR NO.33511 W.P. No. 13408 of 1998 SS(CO) SRA(08/07) https://hcservices.ecourts.gov.in/hcservices/