*THE HON’BLE Ms. JUSTICE G. ROHINI + WRIT PETITION NO : 16750 of 2000 % 29/12/2010 # A. Sadanand ... Petitioner Vs. $ 1. Syndicate Bank, rep. by its General Manager, Industrial Relation Division, H.O: Manipal, Karnataka State and two others. … Respondents < Gist > Head Note: ! Counsel for the petitioner : Sri Pratap Narayan Sanghi ^ Counsel for the respondents: Sri K. Srinivasa Murthy, Standing Counsel for RRs 1 to 3. Cases referred : [1] (1996) 11 SCC 599 2 (1997) 1 SCC 299 3 (1998) 8 SCC 572 4 (2008) 4 SCC 42 5 (2002) 8 SCC 68 6 (1996) 10 SCC 702 7 (2002) 3 SCC 443 8 (2009) 11 SCC 266 9 (2006) 3 SCC 276 10 (2005) 10 SCC 131 11 (2006) 10 SCC 572 12 (2005) 8 SCC 211 13 (1998) 6 SCC 651 14 AIR 1982 SC 937 15 AIR 1986 SC 2118 16 2010 (2) SCC 772 17 AIR 1988 SC 117 18 AIR 1964 SC 719 19 AIR 1969 SC 983 20 (1999) 2 SCC 10 21 (2009) 2 SCC 570 22 AIR 1996 SC 484 23 (2005) 7 SCC 338 THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.16750 OF 2000 ORDER: This writ petition is filed seeking a declaration that the proceedings of the 2nd respondent dated 23.11.1999 dismissing the petitioner from service as confirmed on appeal by the 1st respondent by order dated 20.03.2000 is arbitrary, illegal and in violation of principles of natural justice. The petitioner was recruited as a Clerk in the Syndicate Bank on 15.9.1976. While working at Shalibanda Branch, by proceedings dated 30.04.1996 the petitioner was placed under suspension pending enquiry into various irregularities amounting to gross misconduct. Thereafter, charge-sheet dated 25.06.1996 was issued and after conducting enquiry, all the charges were held proved. Accordingly the 2nd respondent by proceedings dated 23.11.1999 ordered penalty of dismissal from service with immediate effect and on appeal the same was confirmed by 1st respondent by order dated 20.03.2000. The said orders are under challenge in this writ petition. FACTS : - The facts which are not in dispute are as under: The petitioner was served with a charge-sheet dated 25.6.1996 alleging gross misconduct by doing acts prejudicial to the interest of the Bank and engaging in trade or business outside the scope of his duties while working at Shalibanda Branch of the 1st respondent Bank during the period from 7.10.1991 till he was placed under suspension on 30.04.1996. The six irregularities alleged in the charge-sheet are as under: “1. The petitioner had received / collected payment of Rs.10,000/- purportedly in respect of SB A/c. No.27797 of Miss Heba Samdhani on 25.2.1994; 2. On 30.8.1994 he had cancelled a cash debit entry of Rs.30,000/- in the sub-day book in respect of Cheque No.880891 purportedly drawn on SB A/c No.6043; 3. He made a credit entry of Rs.17,000/- in SB A/c No.9953 of Sri E. Rajaiah on 7.2.1994; 4. He made alteration /cancellation in the Bank records in respect of payment of Rs.2,000/- on 5.10.1995 while functioning as payment cashier; 5. He had availed LFC for self and family members; and 6 . He had issued/drawn cheque on his SB A/c Nos.25552 and 26425.” The petitioner was directed to submit his written statement of defence within 15 days from the date of receipt of the charge-sheet. The petitioner by letter dated 25.07.1996 requested to provide all relevant documents on which the charge-sheet was based upon so as to enable him to submit his written statement of defence. By letter dated 31.07.1996 the petitioner was informed that all documents connected to the case would be made available for verification at the appropriate stage and he was advised to submit his written statement of defence within seven days. Aggrieved by the said action of the respondents, the petitioner filed W.P.No.16216 of 1996. The said writ petition was disposed of by this Court by order dated 5.11.1996 directing the respondents to furnish all the relevant material in support of the imputations of the allegations made against the petitioner within two weeks. The 1st respondent Bank was also directed to complete the departmental enquiry within six months from the date of furnishing the copies of documents to the petitioner. Pursuant thereto, the 2nd respondent vide his letter dated 16.12.1996 furnished Photostat copies of 179 documents on which the Bank had relied upon to substantiate the charges levelled against the petitioner and called upon the petitioner to submit his written statement of defence within seven days. The petitioner while contending that some of the relevant documents were not still made available, by letter dated 26.12.1996 requested to furnish the copies of 21 documents specified therein. The petitioner had also requested in the letter dated 26.12.1996 to furnish a copy of the report of the investigating officer, who was cited as a witness, if the respondents were relying upon the said report. In response to the same, the 2nd respondent by letter dated 5.2.1997 while sending copies of 11 documents informed the petitioner that the other documents sought by the petitioner were missing from the records of the Branch as mentioned in the charge-sheet itself. It was also stated that the respondents did not rely upon the report of the investigating officer for issuing the charge-sheet and therefore the same was not furnished to the petitioner. By letter dated 15.2.1997 the petitioner made it clear that unless all the documents requested in his letter dated 26.12.1996 were furnished he was unable to give the reply to the charge-sheet. In response to the same, the 2nd respondent by letter dated 28.02.1997 while reiterating that the 8 documents out of the documents sought by the petitioner were missing from the records of the Bank, alleged that as mentioned in the charge-sheet the petitioner while acting as Supervisor in the capacity of a Temporary Special Assistant at Shalibanda Branch had not only withdrawn the Bank’s funds in a fraudulent manner but also resorted to tampering / destruction / stealthily removal from branch records of relevant documents to conceal the factual position. Thus the petitioner was called upon to submit his explanation within three days alleging that he was deliberately attempting delaying tactics and was not co-operating to conduct the enquiry. As there was no response from the petitioner, by letter dated 10.04.1997 the 2nd respondent informed the petitioner that one K.L.N. Joshi, Manager, I.R. Section, Zonal Office, Hyderabad was appointed as the Enquiry Officer to conduct an enquiry into the matter and to submit a report. Pursuant thereto, the Enquiry Officer, having initiated the enquiry, called upon the petitioner to participate in the enquiry along with his Defence Assistant. In the meanwhile the petitioner filed Contempt Case No.271 of 1997 alleging that by proceeding with the enquiry without furnishing the copies of all the documents sought by the petitioner, the respondents had flouted the order in W.P.No.16216 of 1996. While informing the said fact, the petitioner requested the Enquiry Officer not to proceed with the enquiry till the contempt case was decided. The said request was rejected and the petitioner was called upon to participate in the enquiry. Though the enquiry was adjourned from time to time, the petitioner did not appear. On 09.06.1997 the Enquiry Officer had proceeded with the enquiry ex parte and examined-in-chief three witnesses on behalf of the Management. On 10.06.1997 two more witnesses were examined on behalf of the Management. The copies of the proceedings of the enquiry held on 9.6.1997 and 10.6.1997 were sent to the petitioner by registered post and the enquiry was adjourned to 26.6.1997. As the petitioner failed to appear even on 26.6.1997, the matter was adjourned to 8.7.1997 informing the petitioner that the cross-examination of management witnesses was kept pending and if he failed to appear on 8.7.1997, the evidence on behalf of the management would be closed and the enquiry would be treated as concluded. The petitioner by letter dated 3.7.1997 while pointing out various infirmities / lapses in the enquiry proceedings, made a request to stop the proceedings and order re-investigation by an experienced unbiased officer. The evidence on behalf of the management was concluded on 8.7.1997 and the petitioner was informed of the said fact stating that the next date of the enquiry would be communicated separately and if the petitioner wanted to avail the opportunity, he should inform his willingness in time. Meanwhile C.C.No.271 of 1997 was heard and disposed of by this Court by order dated 4.9.1997. Though this Court did not agree with the petitioner’s contention that the respondents had flouted the order in W.P.No.16216 of 1996, it was held that if the respondent Bank wanted to rely upon the evidence of M.W.3 and M.W.4, the petitioner was entitled to have a copy of the preliminary enquiry report wherein M.W.3 and M.W.4 had recorded their own impressions after going through the records of the Bank. It was also held that the action of the respondent Bank in not furnishing the copy of the preliminary enquiry report submitted by M.W.3 and M.W.4 while examining them as Management Witnesses had vitiated the entire proceedings. Accordingly, the enquiry officer was directed to eschew the evidence of M.Ws.3 and 4 while determining the guilt of the petitioner. Aggrieved by the said order, the respondent Bank preferred Contempt Appeal No.13 of 1998. The said Appeal was allowed and the directions in C.C.No.271 of 1997 were set aside by a Division Bench of this Court by order dated 16.10.1998 holding as under: “We have gone through the investigation report furnished by the learned counsel for the appellant- Bank and also the depositions of M.Ws.3 and 4, who submitted the preliminary investigation report. It is noticed that M.Ws.3 and 4 have only reiterated what they stated in the investigation report. It is further noticed that M.Ws.3 and 4 have only referred to and produced various documents which according to them prove the commissions and omissions which are the subject-matter of the various charges. The Management had made it clear that the preliminary enquiry report as such is not being relied upon. It cannot be said that having regard to the contents of the investigation report and the substance of the depositions of M.Ws.3 and 4, the evidence of M.Ws.3 and 4 will have no value at all and has got to be eschewed at the threshold. It is for the Enquiry Officer to assess to what extent the evidence of M.Ws.3 and 4 will go to substantiate the charge. It is needless to state that mere opinion expressed by M.Ws.3 and 4 that for so and so reasons the charges are proved should not be mechanically acted upon by the Enquiry Officer. The Enquiry Officer should make independent appraisal of the evidence and reach his own conclusion. To what extent and how far the evidence of M.Ws.3 and 4 go to substantiate the charges is a matter for the Enquiry Officer and Disciplinary Authority to decide ultimately and it is premature to express any opinion at this stage. At this stage, we are of the view that the direction to eschew the evidence of M.Ws.3 and 4 in the absence of furnishing the preliminary investigation report is not warranted. The clarifications given above would, however, suffice to serve as guidance to the Enquiry Officer in the conduct of the enquiry. We therefore allow the Appeal and set aside the directions given by the learned Judge subject to the clarifications given above.“ Pursuant thereto, the Enquiry Officer called upon the petitioner to attend the enquiry on 8.2.1999 for cross-examining M.Ws.3 and 4. On 8.2.1999 though the petitioner had appeared before the enquiry officer, he expressed his unwillingness to participate in the enquiry and to cross-examine the Management Witnesses stating that the enquiry officer had no authority to reopen the case which was concluded on 8.7.1997. In the circumstances, the enquiry was concluded and the enquiry officer submitted his report dated 29.4.1999 holding that the charges levelled against the petitioner were proved. While communicating a copy of the said enquiry report, the 2nd respondent – The Disciplinary Authority – vide his letter dated 30.04.1999 called upon the petitioner to send his submissions on the findings of the enquiry officer within fifteen days failing which the matter would be proceeded further and a suitable decision would be taken. Having received the same, the petitioner by letter dated 15.5.1999 informed the 2nd respondent that he did not say that he was not interested to participate in the enquiry but only objected to the authority of the enquiry officer to reopen the enquiry. It was also alleged that the enquiry officer was not fair in conducting the enquiry. The petitioner had also pointed out certain alleged lapses on the part of the enquiry officer in proceeding with the enquiry and sought clarifications from the 2nd respondent. While acknowledging the same, the 2nd respondent by letter dated 29.5.1999 had again called upon the petitioner to submit his representation, if any, against the enquiry report within a week. In response, the petitioner had again sought certain clarifications by his letter dated 4.6.1999 so as to enable him to prepare himself for making his submissions on the enquiry report. As the petitioner failed to avail the opportunity given to him to make his submissions on the findings of the enquiry report but went on seeking clarifications, the 2nd respondent after considering the enquiry report, accepted all the findings recorded by the Enquiry Officer and held that the charges levelled against the petitioner were established. It was also held that the enquiry was held in accordance with the provisions of the Bipartite Settlement after giving sufficient opportunity to the petitioner to defend his case. Accordingly, having proposed to award the punishment of dismissal from service with immediate effect, the 2nd respondent by letter dated 15.6.1999 called upon the petitioner to attend the personal hearing on 30.06.1999 so as to make his submissions on the punishment proposed. The hearing was adjourned from time to time and ultimately on 11.8.1999 the petitioner attended the personal hearing and made his submissions. By that time W.P.No.13983 of 1999 filed by the petitioner seeking a declaration that the proceedings of the 2nd respondent dated 15.6.1999 proposing punishment of dismissal from service was arbitrary, illegal and in violation of the principles of natural justice was dismissed by this Court by order dated 21.07.1999. Against the said order, the petitioner preferred W.A.No.1140 of 1999. The said Writ Appeal was disposed of by a Division Bench of this Court by Judgement dated 18.08.1999 holding as under: “Thus, in the totality of the circumstances, without interfering with the orders of the learned single judge and even affirming the finding of the learned single judge, we are of the considered view that ends of the substantial justice will be squarely met if the principles of fair play are allowed to operate reasonably in the proceedings. In view of the fair concession given by the learned counsel for the appellant that he desires to cross-examine only the two management witnesses M.Ws.3 and 4, the respondents are directed to grant an opportunity to cross examine the witnesses, may be, before the disciplinary authority itself. And it is only after the cross examination is over that the disciplinary authority would proceed with respect to making of his mind whether or not the charges have been proved and also with respect to the issuing of show-cause notice for awarding of punishment in accordance with the rules. The appellant would appear before the disciplinary authority on 30.8.1999 at 10.00 a.m. when the disciplinary authority shall fix the date and summon the witnesses M.Ws.3 and 4 for cross-examination. No other date will be given on any account whatsoever for cross-examination of witnesses except the one fixed on 30.8.1999 by the disciplinary authority. The disciplinary authority will be at liberty to permit the cross-examination either before him or before the enquiry officer. In view of the above observations, the writ appeal is disposed of in the above terms. No costs.” In terms of the directions of the Division Bench, the petitioner had appeared before the 2nd respondent and cross-examined M.Ws.3 and 4 on 30.09.1999 and 1.10.1999. The copies of their evidence were provided to the petitioner in the enquiry itself. After considering the evidence of M.Ws.3 and 4 in the cross- examination as well as the other evidence already on record, the 2nd respondent held that the charges levelled against the petitioner were proved and again proposed punishment of dismissal from service. Accordingly, a show-cause notice dated 7.10.1999 was issued calling upon the petitioner to appear for personal hearing on 20.10.1999 to make his submissions on the punishment proposed. On a request made by the petitioner, the hearing was postponed from time to time. Ultimately the petitioner appeared before the 2nd respondent on 10.11.1999 and sought permission to take the assistance of his Defence Representative N.R. Srinivasan. Accordingly the hearing was fixed on 17.11.1999 on which date the petitioner appeared before the 2nd respondent along with his Defence Representative and made written submissions to drop the charges against him. After considering the same, the 2nd respondent by proceedings dated 23.11.1999 ordered dismissal of the petitioner from service holding that the petitioner was guilty of all the charges levelled against him even after taking into account the evidence brought out in the subsequent cross-examination of M.Ws.3 and 4. Challenging the same, the petitioner preferred an appeal before the General Manager of the 1st respondent Bank requesting to order re-investigation and to reinstate him into service by exonerating the charges. After giving a personal hearing on 18.2.2000, the Appellate Authority while holding that there was sufficient evidence on record to sustain the charges and that the punishment of dismissal from service awarded was not disproportionate to the gravity of misconduct committed by the petitioner, dismissed the Appeal by order dated 20.03.2000. Aggrieved by the said orders, the present writ petition is filed contending that the impugned order of dismissal from service was based on no evidence and therefore it is liable to be dismissed on that ground alone. It is also contended that the entire enquiry was vitiated for violation of principles of natural justice, particularly for non-supply of preliminary enquiry report to the petitioner. It is further contended that the impugned order of dismissal was contrary to the order passed by this Court in Contempt Case No.271 of 1997 and Contempt Appeal No.13 of 1998 inasmuch as neither the Enquiry Officer nor the Disciplinary Authority nor the Appellate Authority had gone into the reasons and effect of non-supply of preliminary enquiry report. COUNTER AFFIDAVIT FILED BY THE RESPONDENTS: The incident alleged against the petitioner took place in the year 1994 which came to light during 1995-1996 and the disciplinary action was initiated against the petitioner at the earliest opportunity. The petitioner was placed under suspension pending disciplinary action during May, 1996 and he was served with the charge sheet during June, 1996. The copies of all the available documents were furnished to the petitioner as per the order of this Court in W.P.No.16216 of 1996. In spite of the same, the petitioner did not submit his explanation nor attended the enquiry. The insistence upon the petitioner to produce the documents which were suspected to have been destroyed by some interested parties was only to avoid the enquiry proceedings on untenable grounds. The allegation that the respondent-Bank had intentionally and deliberately suppressed the crucial documents is false and without any basis. The investigation was made by the officials of the Bank strictly in accordance with the practice prevailing in the respondent-Bank and investigation report is based on the documents collected during the investigation. All the charges against the petitioner were framed on the basis of the documents collected by the investigating officers and they had also deposed in the enquiry on the basis of the said documents only and the investigation report was not relied upon at any stage of the proceedings. The investigation report may also contain allegations against the other staff members including the higher authorities in the branch and it will not be in the interest of the Bank to part with such reports to the sub-ordinate employees. Action will be initiated against all the cadres who are found involved or who are found negligent. The petitioner in spite of having received communication of dates of enquiry failed to participate in the enquiry for the reasons best known to him. The petitioner’s apprehension that the 3rd respondent was influencing the enquiry officer was also without any basis. All other allegations made by the petitioner, including that the disciplinary action was initiated for the trade union activities of the petitioner, that the petitioner was harassed by the 3rd respondent and that the management had intentionally denied opportunity to the petitioner to participate in the enquiry have been specifically denied. SUBMISSIONS MADE BY THE COUNSEL FOR THE PETITIONER: The contentions advanced by the learned counsel for the petitioner may be summed up as under: (1) Since the disciplinary enquiry was admittedly preceded by a preliminary enquiry, the respondents were bound to furnish a copy of the preliminary enquiry report and the failure of the respondents to furnish the preliminary enquiry report had vitiated the entire enquiry proceedings. (2) Since no independent witness or the account-holders or the affected parties were examined and there was no direct evidence against the petitioner, the conclusion of the respondents 1 and 2 that all the charges against the petitioner were established was erroneous and unsustainable. (3) The enquiry is also vitiated for violation of principles of natural justice for the following reasons : (a) The report of the enquiry officer after the cross- examination of M.Ws.3 and 4 was not furnished to the petitioner. (b) The pre-recorded statement of M.W.2 was marked which was contrary to law. (c) M.W.2 who was not cited in the list of witnesses was examined which vitiated the enquiry. (4) Since neither the enquiry officer nor the disciplinary authority nor the appellate authority had gone into the reasons and affect of non-supply of preliminary enquiry report, the impugned dismissal was contrary to the orders passed by this Court in Contempt Appeal No.13 of 1998. SUBMISSIONS OF THE COUNSEL FOR THE RESPONDENTS: Per contra, it is contended by the learned counsel for the respondents that as the charges against the petitioner were based upon the documents collected during the investigation and not on the preliminary investigation report as such, and moreover a full-fledged enquiry was held after affording an opportunity to the petitioner at every stage, the preliminary enquiry had lost its importance and the mere non-supply of the preliminary enquiry report cannot be said to have vitiated the enquiry. At any rate since the petitioner failed to show the prejudice, if any, suffered by him for non-supply of the preliminary enquiry report, the petitioner’s contention that the disciplinary proceedings were vitiated for violation of principles of natural justice is untenable. While inviting this Court to the findings recorded by the enquiry officer as well as the disciplinary authority, the learned counsel further contended that the said findings which were arrived at on proper appreciation of the evidence available on record warrant no interference by this Court. In support of her submissions, the learned counsel for the respondent relied upon the decisions in VIJAY KUMAR NIGAM v. STATE Of M.P.[1], NARAYANA DATTATRAYA RAMTEERTHAKHAR v. STATE OF MAHARASHTRA AND OTHERS[2], SUPERINTENDENT, GOVT., T.B. SANATORIUM AND ANOTHER v. J.SRINIVASAN[3], PEPSU ROAD TRANSPORT CORPORATION v. RAWEL SINGH[4], DEBOTOSH PAL CHOUDHURY v. PUNJAB NATIONAL BANK AND OTHERS[5] , STATE OF U.P. AND ANOTHER v. T.P.LAL SRIVASTAVA[6], STATE OF U.P. AND OTHERS v. RAMESH CHANDRA MANGALIK[7], CHAIRMAN, GANGA YAMUNA GRAMIN BANK AND OTHERS v. DEVI SAHAI[8], STATE OF U.P. v. SHEO SHANKER LAL SRIVASTAVA AND OTHERS[9], APPOINTING AUTHORITY, G.B.P.SPL.S.I. AND ANOTHER v. R.K.SINGH[10], SURESH PATHRELLA v. ORIENTAL BANK OF COMMERCE[11], U.P.STATE TEXTILE CORPORATION LTD. v. P.C. CHATURVEDI AND OTHERS[12]