-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1628 OF 2001 with NOTICE OF MOTION NO. 199 OF 2008 Vimal Kishor ) adult, Indian Inhabitant, residing at ) A-4/31, NABARD Park, Khira Nagar, S.V. Road, ) Santacruz (West), Mumbai-400 054 )... Petitioner Versus 1. National Bank for Agriculture and Rural Development ) a Body corporate established under the provisions ) of the National Bank for Agriculture and Rural ) Development Act, 1981 having its Head office at ) Plot No. C-24, G-Block, Bandra-Kurla Complex, ) Post Box No. 8121, Bandra (East), Mumbai-400 051 ) 2. The Chairman and the Competent Authority, ) National Bank for Agriculture and Rural Development ) having its Head office at ) Plot No. C-24, G-Block, Bandra-Kurla Complex, ) Post Box No. 8121, Bandra (East), Mumbai-400 051 ) 3. The Central Vigilance Commission, appointed by the ) Central Government having office at Satarkta Bhavan ) General Office Pool Complex, INA, New Delhi-110 023 ) 4. Mr. Sarvesh Kumar, Commissioner for ) Departmental Enquiries and Enquiry Officer, ) Central Vigilance Commission, having office at ) Satarkta Bhavan, General Offices Pool Complex, INA, ) New Delhi-110 023. ) 5. Union of India through Central Government Pleader, ) Ayakar Bhavan, Maharshi Karve Road, Mumbai-400 020 ) -2- 6. The Reserve Bank of India, a body corporate constituted ) under the provisions of Reserve Bank of India Act, 1934 ) having Central Office at Shaheed Bhagat ) Singh Road, Mumbai-400 001 )..Respondents Mr. Sandeep Marne for the petitioner. Mr. S.P. Bharti for respondent Nos. 1 and 2. Mr. R.V. Desai with Mr. H.V. Mehta for respondent no.5. CORAM: P.B. MAJMUDAR & R.M. SAVANT , JJ. DATE: MAY 07, 2009 ORAL JUDGMENT (Per P.B. Majmudar, J.) By filing this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 14th May, 2001, passed by the Disciplinary Authority by which the petitioner was subjected to penalty of degradation from the post of Deputy General Manager (Grade “D”) to the post of Assistant General Manager (Grade “C”). The said order is impugned in the present petition. 2. It is the case of the petitioner that he jointed respondent NO.1 Bank as a Development Officer on 17th May, 1983 and ultimately was posted to the post of Deputy General Manager. According to the petitioner, he was due for promotion as General Manager and in fact he was interviewed on 18th April, 2001. The petitioner’s case is that in the year 1993, he made adverse report -3- indicating corruption in Gurgaon Gramin Bank despite verbal warning issued by the Chairman of respondent No.1 which resulted in serious action against the Chairman of Gramin Bank against the desire of Chairman of respondent No.1 Bank. The petitioner was abruptly transferred to Mumbai. It is the apprehension of the petitioner that because of petitioner’s adverse report in the aforesaid matter, the then Chairman and Chief Vigilance Officer were in search of adverse material against the petitioner so as to harass him for having offended the then Chairman. The petitioner was subjected to show cause notice on 18th September, 1995 alleging private consultancy and association with M/s. Esquire Group on the basis of anonymous complaint. The petitioner gave reply to the said show cause notice denying the allegations. It is the case of the petitioner that no decision was taken for a considerable period. After about 22 months, the petitioner was subjected to charge-sheet on 11th July, 1997. According to the petitioner, since the petitioner made available a file containing case papers of Wind Project of Sri Vidya Trust during the inspection conducted by Reserve Bank of India that he was subjected to the said charge-sheet after such a long time. According to the petitioner, since RBI Inspection Team made serious remarks which caused embarrassment to the then Chairman that he was subjected to the charge-sheet. The petitioner was subjected to the charges viz. (a) undertaking outside commercial activities and associating with private commercial undertaking, (b) failure to obtain Bank’s permission for staying away from the headquarters, (c) showing false/fabricated grounds for availing -4- leave and (d) acting contrary to Rules 25, 35 and 37 of the NABARD (Staff) Rules, 1982. 3. The petitioner submitted his reply to the charge-sheet denying the allegations levelled against him. An Enquiry Officer was appointed on 17th May, 1999. After conclusion of the enquiry, the Enquiry Officer submitted his report. As per the report of the Enquiry Officer, which is at page 204, the allegation regarding association with Esquire Company is concerned, it was found that the participation in the meeting dated 3rd September, 1994 at Hyderabad is proved but the Enquiry officer found that the petitioner has not charged any fees/remuneration and, therefore, the said allegation is partly proved. The charge regarding petitioner represented M/s. Equire Tea Plantation and Industries Limited in a meeting of single window agency convened by the Department of Tourism, Government of Karnataka is concerned, it was held in the report that the same is not proved. Regarding charge at para 2 (d) which is in connection with leaving the headquarters, the same is held to be proved. Regarding charge at 2 (e), it is held that the same is not proved. As regards charge at 2 (f), it is held to be not proved. The summary prepared by the Enquiry Officer is not in consonance with the findings in the report. 4. The petitioner thereafter submitted his reply to the report of the Enquiry Officer. It is the case of the petitioner that initially the Deputy C.V.O. -5- and the C.V.O. of the Bank proposed penalty of reprimand. The disciplinary authority subsequently proposed the penalty of degradation by one stage in increment and sought advice of CVC. The CVC disagreed with the disciplinary authority and recommended stiff major penalty. According to the petitioner, the disciplinary authority was of the opinion that stiff major penalty may not be warranted in the facts of the case. The major charge regarding undertaking outside commercial activities and association with private undertaking was only partly proved and there was no evidence that the petitioner has charged any remuneration for the same or that there was any financial loss to the Bank. On 26th December, 2000, the disciplinary authority proposed enhanced penalty of degradation to lower grade and stoppage of promotion for two years. According to the petitioner, neither the letter for reconsideration was also supplied to the petitioner nor his explanation was called for. By order dated 14th May, 2001, the disciplinary authority imposed penalty of degradation to the post of Assistant General Manager and stoppage of promotion for two years under Rule 47 (1) (b) and (c) of the National Bank for Agriculture and Rural Development (Staff) Rules, 1982. It is the aforesaid order which is impugned in this petition. 5. The learned counsel for the petitioner submitted that considering the facts and circumstances of the case, this is not a case in which such a harsh penalty should have been awarded to the petitioner as, according to him, the -6- disciplinary authority passed the aforesaid order of penalty under pressure of CVO. It is further submitted by the learned counsel for the petitioner that most of the charges levelled against the petitioner were not proved and the charges which are proved cannot be said to be so serious for which such a major penalty should have been imposed which would ruin the career of the petitioner. Learned counsel further submitted that the penalty in question is a dual penalty which is not permissible. Learned counsel further submitted that the enquiry was not conducted in a proper manner. He submitted that the petitioner had visited the concerned Company only for some domestic work of his brother and there was no mens rea on the part of the petitioner. It is submitted that there is no evidence and it is rightly found even by the disciplinary authority that there was no loss to the Bank and that there is nothing on record that the petitioner had received any remuneration for attending such meeting. Therefore, the initial recommendation of the C.V.O. reprimanding the petitioner was just and proper. According to the learned counsel, this argument is of course an alternative as, according to him, the enquiry is not conducted in a proper manner. 6. Mr. Bharti, learned counsel appearing for respondent Nos. 1 and 2, submitted that since the petitioner had attended the meeting of some other Private Company during working hours and for that even permission from the Bank was not taken, it cannot be said that the petitioner has not committed -7- any wrong at all. He submitted that the adequacy of penalty or otherwise is a point which the High Court can never decide in its extraordinary jurisdiction under Article 226 of the Constitution of India. This point can very well be agitated before the appellate authority. Learned counsel further submitted that when the petitioner has got efficacious alternate remedy by way of statutory appeal, the petitioner should first approach the appellate court so that the appellate authority can appreciate the evidence on record as well as even on the question of penalty. It is submitted by Mr. Bharti that the petitioner may be relegated to the appellate authority so that the appellate authority can re- appreciate the evidence as well as even consider the question about penalty also, whether it is adequate or not. 7. We have heard the learned counsel at great length. However, during the course of hearing it was suggested to the learned counsel for the petitioner as to whether the petitioner is willing to go to the appellate authority so that the appellate authority can consider the question of penalty as well as the question as to whether the evidence on record is sufficient to impose penalty against the petitioner. The learned counsel also in principle showed his no objection to follow the said course as the appellate authority can re-appreciate the evidence also. In view of the consensus prevailing between the advocates, we dispose of this petition, by directing the petitioner to prefer a departmental appeal within a period of two months from today. Considering the fact that this petition is -8- pending before this Court since 2001, we direct the appellate authority to dispose of the appeal of the petitioner, within a period of four months from the receipt of the appeal from the petitioner. Since the Chairman is the disciplinary authority, learned counsel Mr. Bharti has submitted that the Chairman shall not participate in the appellate proceedings. We accordingly direct so. It is for the appellate authority to consider as to whether from the evidence on record any misconduct can be said to have been proved against the petitioner and if the answer is yes, whether the penalty imposed by the disciplinary authority is just and proper or is required to be suitably reduced. We are sure, the appellate authority will take into consideration all necessary documents including the notings on the file while deciding the appeal. Whatever may be the decision on the appeal, the same shall be communicated to the petitioner at the earliest. However, the appeal should be disposed of within four months, as stated earlier. 8. We clarify that all points are kept open for the decision of the appellate authority including the submission of the petitioner that the enquiry was not conducted in a proper manner. In case the decision of the appellate is against the petitioner, it will be open to the petitioner to challenge the same by way of appropriate proceedings in accordance with law. Learned counsel for the petitioner submitted that in case the petitioner is required to file fresh proceedings before this Court, the said proceedings may take some time and, -9- therefore, requested that the petitioner be given permission to revive this petition. However, in our view, if the order of the appellate authority is against the petitioner, that will be a fresh cause of action and, therefore, the petitioner may take out appropriate proceedings thereafter. It is for the petitioner to request the appropriate Court, if any fresh proceedings are taken out by him , to expedite such proceedings. 9. Subject to what is stated above, the writ petition is disposed of. Rule is accordingly disposed of in the aforesaid terms. Notice of Motion No. 199 of 2008 is accordingly disposed of. P.B. MAJMUDAR, J. R.M. SAVANT, J.