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PETITIONER: UNION BANK OF INDIA

       Vs.

RESPONDENT: VISHWA MOHAN

DATE OF JUDGMENT:       07/04/1998

BENCH: SUJATA V. MANOHAR, S.P. KURDUKAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. KURDUKAR,J      The first appellant is a nationalized bank incorporated under the  Banking companies  (Acquisition and  Transfer  of undertakings) Act,  1970, (for short ‘the Act’). The service conditions  of   its  officers/employees   are  governed  by Regulations framed  under the powers delegated under Section 19 of the Act. The disciplinary proceedings for various acts of branch  by its  officers/employees are regulated by Union Bank of  India   Officers Employees  (Discipline and Appeal) Regulations, 1976, (for short ‘ the Regulations’) 2.   The respondent  was initially  recruited in the service of the  Bank as a Clerk. Incidentally, it may be stated that in 1974,  an inquiry was conducted in regard to certain acts of misconduct  and irregularities  committed by him and upon such findings  by the Inquiry Officer, he was dismissed from service,  but,  however,  on  his  representations,  he  was reinstated on  humanitarian grounds  in 1982 pursuant to the order passed by the Managing Director. 3.   On reinstatement,  the respondent  came within the zone of consideration  for promotion. He accordingly participated in the promotion process held in 1982-83  and was empanelled in 1984  for promotion. He came to be promoted as an officer in the year 1988 on his turn in the panel. Sometime in 1989, certain  irregularities   committed  by  him  prior  to  the promotion and  thereafter came  to the  notice of  the  bank authorities and   thereafter  he came  to be suspended under the Regulations  and was paid only the subsistence allowance as admissible  under the  Regulations. The  respondent filed Writ Petition  No. 3789 of 1990 and it appears that the High Court by  its order  dated 9th  February,  1990  stayed  the operation of  the orders  passed by the bank authorities. We are told that the Writ Petition is still pending. 4.   The  Disciplinary   Authority  on   being  prima  facie satisfied that  the alleged  misconduct  of  the  respondent needs to  be inquired into under the Regulations, instituted departmental inquiry.  The four  charge  sheets  dated  17th February 1989, 25th August 1989, 16th December 1989 and 13th February, 1990  came to  be served on the respondent for his alleged acts  of bribery, embezzlement, misappropriation and

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other acts of unbecoming of a bank officer. After service of the charge  sheets  and  the  statement  of  allegations  in respect thereof,  an Inquiry  Officer came  to be appointed. During the  inquiry proceedings,  the respondent attended on few dates  and thereafter  the inquiry  proceeded  ex parte. The Inquiry  Authority  after  analysing  the  evidence  led before it  found the respondent guilty of charges which were levelled against  him and  accordingly submitted it’s report dated 8th December, 1990 to the disciplinary Authority. 5.   The Disciplinary Authority after considering the report by its  order dated  7th January, 1991 warded the punishment of dismissal  of the respondent from the service. This order was unsuccessfully  challenged in  the Writ Petition and the same was  dismissed on  21st March,  1991 on the ground that the respondent  had not  availed  the  alternate  remedy  of appeal as  provided  under  Regulation  17.  the  respondent thereafter preferred  an appeal  under Regulation  17 to the Appellate Authority  which after  considering it  on  merits dismissed the  same vide it’s order dated 30th may 1991. The respondent aggrieved b the orders passed by the Disciplinary Authority and  the Appellate  Authority filed  a Civil Misc. Writ Petition No. 23286 of 1991 in the High Court. 6.   The High Court after hearing the parties and on perusal of their  pleadings vide  its Judgment  and order dated 30th April, 1996  allowed the  writ petition  nd  set  aside  the orders dated  7th January, 1991 and 30th May, 1991 passed by the  Disciplinary  Authority  and  the  Appellate  Authority respectively and  directed  the  Disciplinary  Authority  to serve a copy of the inquiry report on the respondent, who if so chooses,  may file  a representation  against the inquiry report. The  Disciplinary Authority thereafter will consider the report and the representation and will pass the order in accordance with  law. The  High Court  further directed that the respondent  be reinstated  to the  post which he held at the time  of dismissal  forthwith to enable the Disciplinary authority to conclude the inquiry afresh in the light of the observations made  in the  judgment. It is this order passed by the  High Court  which is the subject matter of challenge in this appeal. 7.   We may  briefly indicate the reasons which weighed with the High Court to set aside the order of dismissal dated 7th January, 1991  and 30th may, 1991 passed by the Disciplinary Authority and the Appellate Authority respectively. The High Court assumed  that the copy of the inquiry report was never furnished to  the respondent at any stage and therefore, the respondent was  greatly prejudiced due to non receipt of the copy of  the inquiry  report.  Factually, this is incorrect. It appears  that the copy of the report was not furnished to the respondent  until the  Disciplinary Authority passed the order of  dismissal on  7th January, 1991. But, however, the said copy appears to have been served on the respondent when he  filed  the  statutory  representation/appeal  under  the Regulations before the Appellate Authority. 8.   On perusal of appeal and the writ petition memos, it is quite clear  that the  respondent had challenged the inquiry report/findings on  merits. In  fact, he annexed the copy of the report/findings as Annexure XVI to the said petition. In paragraph 62,  he had  assailed the  findings of the Inquiry Authority and  sought to project that he is totally innocent and none  of the  charges could be sustained on the material produced before the Inquiry Authority. It is thus clear that the  respondent  did  have  an  opportunity  to  assail  the findings of the Inquiry Authority in the statutory appeal as well as  in the  writ petition. In the light of this factual position, the  question that arises for our consideration is

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whether the  High Court  had correctly  applied the ratio of the judgment  of this  Court  in  Managing  Director,  ECIL. Hyderabad and  others Vs.  B. Karunakar and others, 1993 (4) SCC 727.  The High  Court has  reproduced para  31  of  this judgment in  extenso but  while applying  the ratio,  in our considered view, it has committed an error. What weight with the High  Court can  be best  summarised in its own words as under :-      "Whereas  the   first  charge-sheet      relates to the period when he was a      clerk  in  the  bank,    subsequent      three charge  sheets relate  to the      period when  he was promoted to the      cadre of  officers. The  contention      of the  his promotion  to the cadre      of  officers   means  that  he  had      satisfactory record   before    the      date of  promotion. It is submitted      that the  promotion implies  a good      and   satisfactory   past   record.      Unless  the   petitioner  puts   in      satisfactory service  in the  past,      it is contended that he will not be      promoted to  the care  to  care  of      officers and  if  that  is  so,  no      charge of  the period when he was a      clerk in  the bank  , could be made      the    basis     of    disciplinary      proceedings by  the respondents. It      is contended  that if  the  inquiry      report  had   been  served  on  the      petitioner,  then   he  would  have      highlighted  this   aspect  in  his      representation to  the Disciplinary      Authority; and  in that  event  the      Disciplinary  Authority  would  not      have been  influenced by  the grave      charges  as  stated  in  the  first      charge sheet."      While    dealing     with     these      contentions,   the    High    Court      observed:-      "It   is    not   shown   in   what      circumstances the charges under the      first  charge   sheet   have   been      considered .  All  these  questions      deserved to  be considered.  If the      disciplinary authority comes to the      conclusion that  the charges stated      in the  first charge  sheet, cannot      be the  basis of  the  proceedings,      then the  question would be whether      the  charges   as  stated   in  the      subsequent  three   charge   sheets      warrant the  same punishment  which      is awarded  on the  charges of  all      the four charge sheets."      The High  Court  then  went  on  to      observe :-      "We have carefully gone through all      the charges.  In the  first  charge      sheet relating  to the  period when      the petitioner was a clerk, charges      of bribe,  misuse of house loan and      other       serious       financial

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    irregularities  have   been  stated      which    are    stated    by    the      disciplinary   authority   in   his      order. The  charges of such serious      nature  are  not  stated  in  other      charge sheets.  It  is,  therefore,      difficult to  say as to what extent      the  disciplinary   authority   was      authority  was  influenced  by  the      charges which  stand  proved  under      the   first   charge   sheet.   The      question   for   consideration   is      whether the  disciplinary authority      would have  awarded the  punishment      of dismissal  if the  first  charge      sheet were  not there,  There is no      material  to   indicate  that   the      disciplinary authority  would  have      reached the  same conclusion in the      matter of  punishment even only the      subsequent three charge sheets were      there.   On    these   facts,   the      submission of  the petitioner  that      the is greatly prejudiced from non-      supply of  the copy  of the inquiry      report is  not without  force.  The      position would  have been different      had  the   disciplinary   authority      imposed the same punishment without      taking into consideration the first      charge  sheet.  On  the  facts  and      circumstances of  the case,  it  is      difficult to apply the principle of      severeability, because  the charges      are so  inextricably mixed  up.  We      are, therefore,  of the  view  that      non-supply  of   the  copy  of  the      inquiry report  as contended by the      petitioner,  seriously   prejudiced      him." 9.   We are  totally in  disagreement with  the above quoted reasoning of  the High  Court. The  distinction sought to be drawn by  the High  Court that the first charge sheet served on the  respondent related to the period when he was a clerk whereas other three charge sheets related to the period when he was  promoted as  a bank officer. In the present case, we are required  to see  the findings of the Inquiry Authority, the order of the Disciplinary Authority as well as the order of the  Appellate Authority  since the  High Court felt that the charges  levelled against  the respondent  after he  was promoted as  an officer  were not  of serious nature. A bare look at  these charges would unmistakably indicate that they relate to the misconduct of a serious nature. The High Court also committed  an error  when  it  assumed  that  when  the respondent was promoted as a bank officer, he must be having a good  report otherwise  he would  not have  been promoted. This finding  is totally  unsustainable because  the various acts of  misconduct came to the knowledge of the bank in the year 1989  and thereafter  the first charge sheet was issued on 17th  February, 1989.  The respondent  was promoted  as a bank officer  some time  in the  year 1988. At that time, no such adverse  material relating  to the  misconduct  of  the respondent was  noticed by  the bank  on which his promotion could have  been withheld. We are again unable to accept the reasoning  of   the  High   Court  that  in  the  facts  and

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circumstances of  the case  "it is  difficult to  apply  the principle of severability as the charges are so inextricably mixed up."  If one  reads the  four charge  sheets, they all relate to the serious misconduct which include taking bribe, failure to  protect interest  of banks,  failure to  perform duties  with   utmost  devotion   diligence,  integrity  and honesty, acting  in a  manner unbecoming  of a  bank officer etc. In our considered view, on the facts of this case, this principle has  no application  but assuming  that it applies yet the  High Court  has erred in holding that the principle of severability  cannot be  applied in the present case. The finding in  this behalf is unsustainable. As stated earlier, the  appellant   had   in   his   possession   the   inquiry report/findings when  he filed  the statutory appeal as well as the  writ petition  in the High Court. The High Court was required to apply its judicial mind to all the circumstances and then  form its  opinion whether  non-furnishing  of  the report would  have made  any difference to the result in the case and  thereupon pass  an appropriate order. In paragraph 13, this  Court in  Managing Director,  ECIL, Hyderabad  and others (supra) has very rightly cautioned:      "The  Court/Tribunal   should   not      mechanically set aside the order of      punishment on  the ground  that the      report  was  not  furnished  as  is      regrettably being  done at present.      The courts  should avoid  resorting      to short cuts."      In our  considered view,  the High  Court has failed to apply its  judicial mind  to the  facts and circumstances of the present  case and  erroneously concluded that non supply of the  inquiry report/findings  has caused prejudice to the respondent. 10.  Mrs. Rani  Chhabra, Learned  Counsel appearing  for the respondent supported  the view  taken by  the High Court and urged  that   the  respondent   was  denied   a   reasonably opportunity as  he was  not allowed to avail the services of the legal  expert and  consequently  the  Inquiry  Authority proceeded ex-parte.  She further  urged that the allegations of misconduct  levelled against  the respondent could not be said to  be so serious which would warrant the punishment of dismissal. 11.  After hearing the rival contentions, we are of the firm view that  all the  four charge  sheets which  were inquired into relate to serious misconduct. The respondent was unable to demonstrate before us how prejudice was caused to him due to non  supply of the Inquiry Authority’s report/findings in the present  case. It  needs to  be emphasised  that in  the banking business absolute devotion, diligence, integrity and honesty needs  to be preserved by every bank employee and in particular the  bank officer.  If this  is not observed, the confidence of the public/depositors would be impaired. It is for this  reason, we  are of the opinion that the High Court had committed  an error  while setting  aside the  order  of dismissal of  the respondent  on the  ground of prejudice on account of  non furnishing of the inquiry report/findings to him. 12.  For the  foregoing reasons,  we allow  the appeal,  set aside the  order dated  30, 1996 passed by the High Court in Civil Misc.  Writ Petition No. 23286 of 1991 and confirm the order of  dismissal dated   7th  January, 1991 and 30th May, 1991 passed  by the Disciplinary Authority and the Appellate Authority respectively.  The respondent  to pay  the cost of the appellant.

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