(2012) 235 KLR 711 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN WEDNESDAY, THE 1ST DAY OF FEBRUARY 2012/12TH MAGHA 1933 WPC.No. 111 of 2006 (L) ----------------------- PETITIONER(S): ------------- T.RAVI, FLAT NO.5B, J.M.CASTLE, KALOOR, COCHIN 682 017, OFFICER MMGS111, FORMERLY MANAGER (SBI), COCHIN, ERNAKULAM. BY ADVS.SRI.V.K.SUBRAMANIAN SRI.N.K.DIVAKARAN SRI.M.K.SASEENDRAN RESPONDENT(S): -------------- 1. THE GENERAL MANAGER, NORTH KERALA, APPOINTING AUTHORITY, STATE BANK OF INDIA LOCAL HEAD OFFICE, S.S.KOVIL ROAD THIRUVANANTHAPUAM-695 001. 2. K.R.PALEKAR, ENQUIRY OFFICER, DEPUTY GENERAL MANAGER, STATE OF BANK OF INDIA LOCAL HEAD OFFICE, S.S.KOVIL ROAD THIRUVANANTHAPURAM-695 001. 3. THE CHIEF GENERAL MANAGER, STATE BANK OF INDIAN (KERALA CIRCLE), LOCAL HEAD OFFICE, THIRUVANANTHAPURAM-695 001 4. THE CHIEF VIGILANCE COMMISSIONER, CENTRAL VIGILANCE COMMISSION, SATARKTA BHAVAN G.P.O. COMPLEX INA, NEW DELHI-110 023. R3 BY ADV.SRI.P.G.PARAMESWARA PANICKER (SR.) R3 BY ADV.SRI.P.GOPAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD WPC NO. 111/2006 PETITIONER'S EXHIBITS P1 COPY OF THE CHARGE MEMO DATD 05.11.2002 P2 COPY OF ENQUIRY REPORT DATED 30.04.2003 P3 COPY OF THE EXPLANATION DATED 15.10.2003 SUBMITTED BY THE PETITIONER P4 COPY OF THE DISMISSAL ORDER 19.03.2004 P5 COPY OF THE CIRCULAR DATED 02.06.1999 No.CDO/PM/CIR/17 P5A COPY OF THE CIRCULAR DATED 28.09.2000 P6 COPY OF THE APPEAL MEMORANDUM P7 COPY OF THE LETTER DATED 13.05.2004 ADDRESSED TO THE 4TH RESPONDENT P8 COPY OF THE ORDER DATED 26.02.2005 PASSED BY THE R3 RESPONDENTS' EXHIBITS NIL // TRUE COPY // P.A. TO JUDGE SD S.SIRI JAGAN, J. ================== W.P.(C).No. 111 of 2006 ================== Dated this the 1st day of February, 2012 Head Note:- State Bank of India Officers' Service Rules, 1992 - Rule 68(2)(xvii) - explain any circumstances appearing in the evidence - the provision is not a mandatory provision, which would render non-compliance of the same a vitiating factor in the enquiry proceedings, especially in the absence of any proof of prejudice. J U D G M E N T The petitioner was the Branch Manager of a branch of the State Bank of India. On getting information regarding certain allegations of misconducts committed by the petitioner, the bank conducted a preliminary enquiry and obtained a preliminary report. On the basis of that report, the bank decided to conduct a detailed disciplinary enquiry against the petitioner. Ext.P1 charge memo was issued to the petitioner. An enquiry officer was appointed. The petitioner participated in the enquiry and the petitioner was permitted to take the assistance of a defence assistant. Three witnesses were examined, who were cross-examined by the petitioner. 21 documents were marked in the enquiry, copies of which were given to the petitioner. The enquiry officer found the petitioner guilty of most of the charges fully and found the petitioner partially guilty in respect of the others. The disciplinary authority furnished a copy of the enquiry report to the petitioner. After considering his representation thereof, the disciplinary authority found that 18 misconducts were fully proved and three were partially proved. Thereafter, the disciplinary authority, by Ext.P4 order, imposed on the petitioner the punishment of dismissal from service. The petitioner filed an appeal before the appellate authority, in which, the appellate authority reduced the punishment to that of removal from service, by Ext.P8 order. The petitioner is challenging Exts.P2 enquiry report, Ext.P4 order of punishment and Ext.P8 appellate order in this writ petition, seeking the following reliefs: "i) to call for the records relating to Ext.P2, P4 and P8 and quash the same by a Writ of certiorari or other appropriate Writ order or direction. ii) to issue a writ of mandamus or other appropriate Writ or order direction directing the respondents to re-instate the petitioner with continuity of service and with all benefits." 2. The petitioner raises four contentions. The first is that the decision to initiate disciplinary proceedings against the petitioner was based on a preliminary enquiry report, copy of which was not furnished to the petitioner, which amounts to violation of principles of natural justice. The second is that under Rule 68(2)(xvii) of the State Bank of India Officers' Service Rules, it was mandatory on the part of the inquiring authority to question the petitioner on the circumstances appearing against him in the evidence for the purpose of enabling the officer to explain any circumstances appearing in the evidence against him, which has not been done by the enquiry officer, for which reason, the enquiry is vitiated. The third is that the disciplinary authority agreed with the findings of the enquiry officer even before forwarding the enquiry report to the petitioner, which also amounts to violation of principles of natural justice. The fourth is that the disciplinary authority had, before imposing punishment on the petitioner, obtained the recommendation of the Central Vigilance Commissioner (CVC), copy of which was not supplied to the petitioner before imposing the punishment, which also amounts to violation of the procedure prescribed and the principles of natural justice. In support of the contentions of the petitioner, the petitioner relies on the decision of the Supreme Court in STATE BANK OF INDIA AND OTHERS v. D.C.AGGARWAL AND ANOTHER, 1993 (1) SC 13, holding that non- compliance with a similar rule vitiated the enquiry itself. The petitioner also relies on the decisions of the Supreme Court in UNION OF INDIA AND ANOTHER v. T.V.PATEL, (2007) 4 SC 785, and MONI SHANKAR v. UNION OF INDIA AND ANOTHER, (2008) 3 SCC 484. 3. The 1st respondent has filed a counter affidavit supporting the impugned orders. The learned Standing Counsel for the bank argues that the preliminary enquiry report was not produced before the enquiry officer and was never relied upon by the enquiry officer or the disciplinary authority and therefore non-supply of copy of the same will not in any way vitiate the enquiry. He submits that Rule 68(2)xvii of the Rules is not a mandatory provision to be complied with in all circumstances without the petitioner showing prejudice caused to him on account of non-compliance with the same. Regarding the third contention of the petitioner, the learned counsel points out that the petitioner was supplied with a copy of the enquiry report along with the tentative opinion of the disciplinary authority calling for the petitioner's representation and after considering the petitioner's representation, a detailed order, Ext.P4, has been passed dealing with each and every evidence adduced before the enquiry officer and entering separate findings of the disciplinary authority in respect of each charge and, therefore, the contention that the disciplinary authority agreed with the findings of the enquiry officer before forwarding the copy of the enquiry report to the petitioner is clearly unsustainable. As far as the fourth contention is concerned, the learned counsel for the bank would submit that non-furnishing of CVC's recommendation to the petitioner will not in any way affect the validity of the order imposing punishment. He points out that the opinion of the CVC was an one line order stating "suitable stiff major penalty" on the petitioner may be imposed. He points out that the order of the disciplinary authority shows that he was not in any way extraneously influenced by any recommendation of the CVC and in fact the recommendation of the CVC was only that suitable stiff major penalty may be imposed on the petitioner. He relies on the decisions in Sunil Kumar v. State of W.B., AIR 1980 SC 1170, Pushkaran v. State of Kerala, 2005 (3) KLT 657, STATE OF A.P. AND ANOTHER v. DR.RAHIMUDDIN KAMAL, (1997) 3 SCC 505, and DISCIPLINARY AUTHORITY-CUM-REGIONAL MANAGER AND OTHERS v. NIKUNJA BIHARI PATNAIK, (1996) 9 SCC 69. He points out that without showing prejudice caused by the reasons stated by the petitioner, the petitioner cannot sustain any challenge against the impugned orders. 4. I have considered the rival contentions in detail. 5. As far as the first contention of the petitioner is concerned, I do not find any merit whatsoever in the same. The preliminary enquiry is only for the purpose of enabling the disciplinary authority to decide whether the matter should be proceeded further. Admittedly, the preliminary enquiry report was not one of documents produced or relied on in the enquiry. As such, non-supply of the copy of the preliminary enquiry report to the petitioner does not in any way vitiate the enquiry. Even otherwise, admittedly, the officer, who conducted the preliminary enquiry and submitted the report was in fact examined as a witness in the enquiry, the petitioner had cross-examined him and it was perfectly open to the petitioner to cross-examine him on any of the evidence given by the witness in the enquiry. The petitioner has also not pleaded and proved that the non-supply of the said report in any way prejudiced the petitioner's defence in the enquiry. Therefore, there is no merit in the first contention. 6. Rule 68(2)xvii of the Rules reads thus: "(xvii) The Inquiring Authority may, after the officer closes his evidence, and shall if the officer has not got himself examined, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer to explain any circumstances appearing in the evidence against him." This is verbatim similar to Rule 14(18) of the Central Civil Services (Classification, Control and Appeal), Rules, 1965. In disciplinary proceedings against workmen as defined under the Industrial Disputes Act, where there is no such rule, if the delinquent employee is questioned by the enquiry officer, that itself would vitiate the enquiry. It is settled law that a delinquent cannot be forced to adduce evidence and he cannot be asked to depose against himself. Therefore, in disciplinary proceedings against workmen under the I.D.Act, if such a practice is followed, that itself would have ended in the courts declaring the enquiry itself unsustainable. Apart from that, nothing prevented the petitioner himself from examining him as a witness or filing any statement in respect of any of the evidence adduced before the enquiry officer. It is not as if the petitioner is a novice or ignoramus regarding disciplinary proceedings in the State Bank of India. He was a Manager in the Bank. He was perfectly capable of understating what is going on in the enquiry proceedings. The petitioner has no case that the petitioner was not aware of any of the evidence adduced in the enquiry. He was perfectly in the know of every evidence adduced against him. Therefore, it was perfectly open to him to explain any circumstances appearing in the evidence against him by himself without the enquiry officer having to question him on the same. Therefore, I am of opinion that the said clause is not a mandatory one, especially in the absence of any pleadings or proof of prejudice against the petitioner on account of non-compliance with the said rule. In fact , that is exactly what the Supreme Court has held in Sunil Kumar' case (Supra), wherein in paragraph 3, the Supreme Court has held thus: '3. There is no substance in the contention of the appellant that the 1955 rules were followed. As pointed out by the High Court in the charges framed against the appellant and in the first show cause notice the reference was clearly to the 1969 rules. The appellant himself mentioned in one of his letters that the charges have been framed under the 1969 rules. The enquiry report mentions that Shri Mukherji was appointed as an Enquiry officer under the 1969 rules. It is, how ever, true that the appellant was not questioned by the Enquiry officer under Rule 8 (19) which provided as follows: "The enquiring authority may, after the member of the services closes his case and shall if the member of the services has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the member of the service to explain any circumstances appearing in the evidence against him." It may be noticed straightaway that this provision is akin to Section 342 of the Criminal Procedure Code of 1898 and section 313 of the Criminal Procedure Code of 1974. It is now well established that mere non-examination or defective examination under Section 342 of the 1898 Code is not a ground for interference unless prejudice is established, vide, K.C.Mathew v. the State of Travancore-Cochin, (1955) 2 SCR 1057: AIR 1956 SC 241, Bibhuti Bhusan Das Gupta v. State of West Bengal, (1969) 2 SCR 104: (AIR 1969 SC 381). We are similarly of the view that failure to comply with the requirements of rule 8 (19) of the 1969 rules does not vitiate the enquiry unless the delinquent officer is able to establish prejudice. In this case the learned single judge of the High Court as well as the learned Judges of the Division Bench found that the appellant was in no way prejudiced by the failure to observe the requirement of Rule 8 (19). The appellant cross-examined the witnesses himself, submitted his defence in writing in great detail and argued the case himself at all stages. The appellant was fully alive to the allegations against him and dealt with all aspects of the allegation in his written defence. We do not think that he was in the least prejudiced by the failure of the Enquiry officer to question him in accordance with rule 8 (19)." Therefore, I have no difficulty in holding that the said provision is not a mandatory provision, which would render non-compliance of the same a vitiating factor in the enquiry proceedings, especially in the absence of any proof of prejudice. The petitioner has not pleaded or proved any prejudice either before the enquiry officer or the disciplinary authority or even in this writ petition. In view of the said Supreme Court decision, which is a three member bench decision, the two Judge bench decision relied on by the petitioner contrary to the said decision cannot be relied upon for upholding the contentions of the petitioner. 7. The 3rd contention is that the disciplinary authority agreed with the findings of the enquiry officer even before forwarding copy of the enquiry report to the petitioner. I do not find any merit in that contention also. What the disciplinary authority has done is to forward the copy of the enquiry report with his provisional findings on the enquiry officer's report and the petitioner had in fact filed very detailed representation, Ext.P3, against the enquiry report. Ext.P4 order of the disciplinary authority shows that based on the representation of the petitioner, the disciplinary authority had considered each and every charge separately discussing the evidence adduced in the enquiry and coming to independent findings in respect of each charge. That being so, I do not find any merit in that contention of the petitioner also. 8. The last contention raised by the petitioner is that the non-supply of the copy of the CVC's recommendation was not communicated to the petitioner. CVC's recommendation has been forwarded to the petitioner along with the order imposing the punishment. The recommendation reads thus: "Suitable Stiff major penalty" on Sh. T. Ravi, MMGS-III I do not find any recommendation as such there. It only says that suitable stiff major penalty may be imposed on the petitioner. Further, the order of the disciplinary authority does not show that the disciplinary authority was in any way influenced by the so-called recommendation of the CVC. The concluding portion of Ext.P4 order of punishment is as follows: "5. Upon careful consideration of the facts and circumstances of the case, I have come to the conclusion that the nature of irregularities/lapses committed by the CSO is grave. The misconduct committed by him evidently shows that he failed to protect the interest of the Bank and discharge his duties with utmost integrity, honesty, devotion and diligence. As regards the penalty that the misconduct warrants, I have applied my mind independently and am of the considered opinion that ends of justice would be met if a penalty of 'dismissal' in terms of Rule 67 (j) of State Bank of India Officers' Service Rules is imposed on him. The suspension period should be treated as not on duty." Ext.P4 does not refer to any recommendation by the CVC. It shows that the disciplinary authority had independently considered the gravity of the misconduct committed by the petitioner and arrived at an independent conclusion as to the punishment to be imposed on the petitioner. Even apart form that, the Supreme Court has in the decision of State Bank of India And Others v. S. N. Goyal, (2008) 8 SCC 92, has categorically held that the non-supply of copy of recommendation of the CVC does not in any way vitiate the enquiry or the punishment. In the above circumstances, none of the contentions of the petitioner is good enough to challenge the impugned orders. Accordingly, this writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge |
