Petitioner challenged dismissal from bank service, alleging violation of natural justice and procedural irregularities. Court examined enquiry report and held disiplinary proceedings were valid no prejudice demonstrated dismissal order affirmed.
Writ petition dismissed maintaining dismissal order and appellate order.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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RESERVED
Court No.39
Case :- WRIT - A No. - 31840 of 2013
Petitioner :- Naveen Chopra (since deceased) Respondent :- Bank Of India And 3 Ors. Counsel for Petitioner :- Teerath Raj Shukla,Dharampal Singh,S.Niranjan Counsel for Respondent :- Sanjeev Singh,S.C.
Hon'ble B. Amit Sthalekar,J. Hon'ble Jayant Banerji, J.
(Delivered by Hon'ble Jayant Banerji, J.)
By means of this writ petition, the petitioner is challenging the penalty order dated 7 June 2010 passed by the Deputy Zonal Manager and the appellate order dated 15 September 2010 passed by the Zonal Manager of the respondent-Bank of India whereby he had been dismissed from service as also all the subsequent proceedings in pursuance thereof including any recovery proceeding of alleged loss to the bank (if any).
On 28 May 2018, the counsel for the petitioner namely Shri S. Niranjan and Shri Teerath Raj Shukla stated that they wanted to withdraw their vakalatnamas since the petitioner himself wanted to argue the matter. Accordingly, permission was granted by the Court and it was further directed that the names of the counsel for the petitioner shall not be shown in the cause list. It is stated that the original petitioner, Navin Chopra against whom the order of dismissal from bank's service was passed, had died and thereafter his heirs were substituted as the three petitioners.
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Shri Gaurav Chopra son of late Navin Chopra (petitioner no.1/2) has appeared in person to argue the writ petition. We have also heard Shri Sanjeev Singh, learned counsel appearing for the respondent-bank.
It is stated in the writ petition that the deceased-Navin Chopra1 was suspended by means of the order dated 1 September 2008 whereafter he was served with a memorandum dated 30 November 2009 enclosing therewith articles of charge dated 30 November 2009, statement of allegations in respect of the articles of charge, list of documents by which and the list of witnesses by whom the articles of charge were proposed to be substantiated.
The articles of charge which reflected acts of misconduct during the tenure of the former petitioner as Senior Branch Manager at the Bank's Begum Bridge Branch from 2 July 2007 to 8 May 2008 are as follows :-
“ ARTICLE-1
You abused your official position while indiscreetly granting credit facilities/TODs to the detriment of Bank's interest, in as much as :
In gross violation of Bank's lending norms, you sanctioned credit facilities in 46 accounts during the period 02.07.2007 to 058.05.2008 which were also disbursed. Out of which 11 accounts have become non performing, Bank's funds were in jeopardy and Bank is likely to suffer substantial loss, which presently is estimated at Rs.70.92 lacs;
ARTICLE-2
You also sanctioned/granted TOD's in 17 S/B and C/D Accounts beyond your delegated authority and did not report the same to the Controlling Authority in violation of Bank's guidelines. Bank is likely to suffer substantial loss, which presently is estimated at Rs.15.88 lacs;
ARTICLE-3
1 former petitioner
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You deposited cash amounting to Rs.8.99 lacs and also transferred funds amounting to Rs.6.31 lac from your personal account on different dates during July 2007 to May 2008. There were heavy cash/transfer transactions, unusual in nature and to the tune of Rs.15.30 lacs, reflecting in your/family members' accounts maintained at Begum Bridge Branch of the Bank. These transactions are indicative that you have acquired assets beyond your known source of income.
You have thus failed to discharge your duties with utmost integrity, honesty, devotion and diligence, which if proved would amont to breach of Regulation 3(1) of Bank of India Officer Employees' (Conduct) Regulations, 1976.”
On an application filed by the former petitioner, he was permitted to inspect all the documents at the Branch Office though it is alleged that he could not inspect all the documents. Thereafter, the departmental enquiry was started against the former petitioner and Shri R.S. Gupta was appointed as the Enquiry Officer. The enquiry proceedings were held on several dates and were concluded by the Enquiry Officer on 24 February 2010. It is alleged that the Defence Assistant who was appearing on behalf of the former petitioner was not allowed by the Enquiring Authority to examine the material witness fully on the entire evidence leading to violation of principles of natural justice and the enquiry proceedings were concluded hastily. The former petitioner had not got himself examined during the enquiry and, therefore, it was mandatory for the Enquiring Authority to generally question the former petitioner for the purpose of enabling him to explain the circumstances appearing in the evidence against him but this was not done. The enquiry report was submitted on 12 April 2010 and thereafter a memorandum dated 16 April 2010 was sent by the Assistant General Manager (Disciplinary Authority)
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to the former petitioner enclosing a copy of the evidence of the Enquiring Authority to submit his written representation thereon. The former petitioner submitted his reply alongwith a representation dated 29 April 2010 that is enclosed as Annexure-16 to the writ petition.
The Disciplinary Authority by means of an order dated 7 June 2010, after considering the representation dated 29 April 2010 of the former petitioner, imposed the penalty of dismissal from the bank's service treating the period of suspension of the former petitioner as not being spent on duty and, therefore, he was not entitled for any pay and allowance for the suspension period other than the subsistence allowance already drawn by him during the period. The former petitioner then filed a departmental appeal dated 22 July 2010 before the Appellate Authority of the respondent bank which was dismissed by means of an order dated 15 September 2010. It is alleged that the findings of the Enquiry Officer are perverse and vitiated inasmuch as they have been recorded in violation of the guidelines of the Central Vigilance Commission2 Circular dated 28 September 2000 and the bank's Circular dated 22 September 2003. It is alleged that the Disciplinary Authority has passed the penalty order without considering the evidence on record and without applying its mind. It is stated that the allegation of loss caused to the bank was not proved and only the vague assertion made in the articles of charge was accepted. It is also alleged that the former petitioner's representation dated 29 April 2010 against the findings of the Enquiring Authority was not considered by the Disciplinary Authority. It is stated that the 2 CVC
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Appellate Authority has mechanically and without any application of mind rejected the departmental appeal of the former petitioner and affirmed the order of the Disciplinary Authority.
It is urged on behalf of the former petitioner that in view of the nature of allegation and the enquiry proceedings as conducted, the punishment of dismissal from service could not have been imposed on the former petitioner and the same is grossly disproportionate to the proved allegations. It is further contended that witnesses were not permitted to be cross-examined by the Defence Assistant appearing on behalf of the former petitioner and that photocopies of the documents demanded were also not supplied. It is stated that charge of the office was not taken over from the former petitioner and due to conspiracy of the bank, documents were fabricated and the enquiry was conducted. It is alleged that various mandatory provisions of Bank of India Officer Employees' (Disciplinary and Appeal), Regulations, 19763 have not been followed and, therefore, the enquiry proceedings as a whole are vitiated and the subsequent penalty order and the appellate order deserve to be set aside.
Learned counsel appearing for the respondent-bank, on the other hand, has urged that the allegations made on behalf of the former petitioner are baseless and contrary to the record. He has referred to the enquiry report to submit that the former petitioner was permitted to inspect the documents on three separate dates. It is stated that despite time being granted to the Defence Assistant to produce witnesses, no witnesses on behalf of the former petitioner were produced. It is also
3 Regulations of 1976
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stated that opportunities were available with the Defence Assistant appearing for the former petitioner to examine the witness of the respondent bank (MW-1) in respect of each of the charges but, as is reflected from the enquiry itself, the Defence Assistant chose not to examine MW-1. It is stated that the enquiry was duly and lawfully conducted and the penalty order as well as the appellate order are sound and have been passed after proper application of mind and on consideration of the evidence on record and, therefore, call for no interference.
It is to be borne in mind that this Court is not sitting in appeal over the penalty order or the appellate order imposed on the former petitioner by the authorities of the respondent bank. What has to be seen is whether the charges were duly proved by preponderance of probabilities. It is also to be seen that the principles of natural justice including those incorporated in the Regulations of 1976 of the respondent bank have been duly adhered to by the respondent bank in the conduct of the enquiry and in passing the order imposing penalty as well as order passed in appeal.
The allegation made on behalf of the former petitioner that witnesses for the former petitioner were not permitted to be examined by the respondent bank is based on the document containing the proceedings of the departmental enquiry held on 24 February 2010 that has been enclosed as Annexure-9 to the writ petition. A perusal of the proceedings held on 24 February 2010 reveals that two letters were submitted by the Defence Assistant to the Enquiry Officer regarding the list of witnesses
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on which the Enquiry Officer asked the Defence Assistant to give the relevancy of having the branch customers as witnesses to the enquiry in connection with the charges whereas all the charges against the former petitioner pertained to exceeding delegation of power and of procedural lapses. On this query, the Defence Assistant himself admitted that customers are not relevant as witnesses for the defence. The Enquiring Authority also found that there was no relevance of summoning the previous Managers of the Branch as witnesses with respect to the enquiry being conducted against the former petitioner and hence was disallowed. Even at the time of hearing of the writ petition, it has not been demonstrated by the petitioner that how the former Managers of the Branch of the Bank and customers were relevant witnesses in respect of the charges levelled against the former petitioner. With regard to providing photocopies of two debit vouchers in respect of the two accounts with the bank, the Enquiring Authority declined the same as the statement of account had already been provided to the former petitioner. Again the Defence Assistant wanted to produce two witnesses who were not available on the previous date of enquiry. The Enquiring Authority spoke to the two persons over phone and they confirmed that they were not ready to come as defence witnesses in the enquiry and, therefore, the plea of the petitioner that none of their witnesses were permitted to be examined is not correct and neither is it correct that they were not provided all relevant documents.
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A perusal of the enquiry report reveals that the enquiry proceedings were held on ten different dates. With respect to the first article of charge, the Defence Assistant cross-examined the bank's witness (MW-I) only with regard to the credit facilities sanctioned in respect of M/s Ramashram Packaging Company. However, the Defence Assistant did not examine MW-1 on any other allegations in respect of any of the articles of charge. Therefore, the contention on behalf of the former petitioner that the Defence Assistant was not permitted to examine the material witness fully is belied by the record. As a matter of fact, we find that the findings were based after due consideration of the details of articles of charge, the written brief and contentions of the Presenting Officer and the contentions of the defence having due regard to the record. Each of the three articles of charge were found to be fully proved by the Enquiring Authority. The postscript of the Enquiring Authority reveals that even after the defence was allowed sufficient time, they had not submitted any defence brief and only the Presenting Officer had submitted his brief on behalf of the bank. The former petitioner was a Senior Manager of the Bank and during the course of the enquiry, the Enquiry Officer found that the credit facilities were granted without due diligence and beyond the authority of the former petitioner. The contention that the enquiry was abruptly closed also is not bourne out from the record as the enquiry was conducted on various dates from 27 January 2010 to 24 February 2010 and the Defence Assistant himself, in the departmental proceedings held on 24 February 2010 (Annexure-9 to
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the writ petition), categorically stated that the defence case should be treated as closed at this stage. The petitioner has not been able to point out any error of procedure during the enquiry that had the effect of prejudicing the former petitioner. Therefore, the contention that the former petitioner not having got himself examined during the enquiry and so it was mandatory for the Enquiring Authority to generally question the former petitioner for the purpose of enabling him to explain the circumstances appearing in the evidence against him would not be of consequence. The former petitioner was required to demonstrate the prejudice caused to him in this regard which he had failed to do. In this connection, reference can be made to the judgment of the Supreme Court in the case of State Bank of Patiala & Ors. Vs. S.K. Sharma4 wherein the Supreme Court has held that even a mandatory procedural provision, if it is in the interest of person proceeded against and not in public interest, can be waived and if such person waives the requirement thereof, then also non compliance of such requirements would not vitiate the action. The Supreme Court observed that the test is : all things taken together whether the delinquent officer/employee had or did not have a fair hearing. The allegation of violation of procedural provision should be examined from the point of view of prejudice namely, whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. No prejudice being caused to the former petitioner by alleged non-compliance of any procedural provision has
4 (1996) 3 SCC 364
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been demonstrated in this writ petition. He was represented by a Defence Assistant and no objection was raised in this regard by him.
The allegations of violation of guidelines of the CVC's Circular dated 28 September 2000 and the Bank's Circular dated 22 September 2003 are not of consequence inasmuch as the bank in its counter affidavit has stated that the matter is not CVC matter and only in cases where the matter is referred to the CVC does the first stage advice need to be given to the individual concerned. The petitioner has not been able to demonstrate that the case of the petitioner was required to be dealt with by the CVC. As a matter of fact, consultation with the CVC is not necessary in absence of any rule in this regard. Moreover, if any advice rendered by the CVC is considered by the Disciplinary Authority in the enquiry without giving a copy thereof to the delinquent officer and that had a prejudicial effect on the delinquent officer, then cause for interference would arise. In this regard, reference may be made to the decision of the Supreme Court in the case of Union of India & Ors. Vs. Alok Kumar5 . It is not the case of the petitioner that any advise was rendered by the CVC to the Disciplinary Authority in the enquiry.
The contention that the former petitioner's representation dated 29 April 2010 against the findings of the Enquiring Authority was not considered by the Disciplinary Authority is also belied by a perusal of the penalty order dated 7 June 2010 that has been enclosed as Annexure-18 to the writ petition in which the contentions raised by the former petitioner were duly considered and examined and the Disciplinary Authority
5 (2010) 5 SCC 349
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recorded his observations thereon. The penalty order discloses proper application of mind after considering the entire material on record. As stated above, the former petitioner was a Senior Manager of the Bank and occupying a position of trust and was dealing with public money. The articles of charge framed and proved against him were very serious in nature involving reckless sanctions and disbursements of credit facilities, acting beyond his delegated authority, depositing and transferring heavy amounts to and from his personal account, acquiring assets beyond his known source of income, leave no room for doubt that the penalty of dismissal imposed upon him is commensurate with the gravity of the charges proved. The allegation that the Appellate Authority has acted mechanically is not bourne out from the record. The appellate order, which is enclosed as Annexure-22 to the writ petition, itself reflects that the Appellate Authority had duly considered the appeal filed by the former petitioner and affirmed the penalty imposed by the Disciplinary Authority. It reveals that the order was passed after going through the entire enquiry report and reasons were recorded by the Appellate Authority in coming to its conclusion and then the appeal was dismissed. The Supreme Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney6 has held that the Appellate Authority even when affirming the order of the Disciplinary Authority is required to give reasons, at least in brief, so that one can know whether the Appellate Authority has applied its mind while affirming the order of the Disciplinary Authority. In our
6 (2009) 4 SCC 240
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opinion, this has been observed by the Appellate Authority in the instant
case.
For reasons aforesaid, we do not find any merit in the writ petition
and the same is, accordingly, dismissed .
Date :25.09.2018 SK
3 issues framed by the court
Whether departmental enquiry proceedings violated principles of natural justice by denying opportunity to examine witnesses or personal presence.
Whether penalty of dismissal was disproportionate to proved charges of misconduct.
Whether the appeal authority mechanically affirmed the dismissal order without application of mind.
Colour shows how this judgement treated each authority
State Bank of Patiala & Ors. Vs. S.K. SharmaReferred¶42
State Bank of Patiala & Ors. Vs. S.K. Sharma
Union of India & Ors. Vs. Alok KumarReferred¶46
Union of India & Ors. Vs. Alok Kumar
Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan VarshneyReferred¶50
Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney
Naveen Chopra (represented by heirs)
Bank of India
B. Amit Sthalekar
Jayant Banerji
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
