Allahabad
Bank Vs. Prem Narain Pande & Ors [1995] INSC 575 (19 October 1995)
Majmudar
S.B. (J) Majmudar S.B. (J) Jeevan Reddy, B.P. (J) S.B. Majmudar, J.
CITATION:
1996 AIR 492 1995 SCC (6) 634 JT 1995 (7) 419 1995 SCALE (6)76
ACT:
HEAD NOTE:
J U D
G E M E N T
The
appellant-bank by special leave has brought in challenge the order passed by
the Lucknow Bench of the Allahabad High Court in Writ Petition No.3841 of 1986
decided on 30th July 1993. The respondent no.1 was the writ petitioner before
the High Court. The short question involved in this appeal is as to whether the
Assistant General Manager of the Patna Division of the appellant-bank was
entitled to pass the penalty order against respondent no.1.
In
order to appreciate the nature of the controversy between the parties it is
necessary to note a few background facts.
Background
facts
Respondent
No.1 was serving in the appellant-bank in the Junior Management Scale I while
posted in the regional office of the appellant-bank at Lucknow. He was served with a charge-sheet
dated 24th August 1983 containing charges of misconduct as
Manager of the Palia Kalan Branch of the Allahabad Bank, District Lakhimpur Kheri
during the period from April 1979 to December 1980.
The chargesheet
was served on the respondent no.1 by the Deputy General Manager of the Bank
working at the Central Zone, Lucknow. The
said disciplinary authority appointed Shri B.B. Shesh as Enquiry Officer to
enquire into the charges of misconduct. The said appointment was made the
Deputy General Manager on 19th December 1983. It appears that the disciplinary proceedings continued for quite some
time and in the meantime on 15th July 1985
the respondent no.1-employee was transferred from Lucknow to Ranchi, Bihar.
Respondent
NO.1 unsuccessfully challenged his transfer order before the High Court. His
writ petition was ultimately not pressed. The enquiry was completed on 24th February 1986.
The
Enquiry Officer submitted his report together with the records of the enquiry
proceedings and other documents to the Disciplinary Aurhotiry.
It
appears that after transfer of Respondent NO.1 to Ranchi branch of the bank, the Assistant
General Manager, Zonal Office, Allahabad Bank, Patna Zone took over as the
Disciplinary Authority in respect of the pending enquiry against respondent
no.1. On 20th March
1986 the Assistant
General Manager informed the respondent no.1-officer that he has been nominated
by the competent authority to act as the Disciplinary Authority in respect of
the enquiry against him.
That after
considering the report of the Enquiry Officer and record of the proceedings,
the Assistant General Manager, Zonal Office, Patna, passed an order dated 21st
March 1986 dismissing the respondent no.1 from service of the bank in terms of
Regulation No.4 of the Allahabad Bank (Discipline and Appeal) Regulations, 1976
[hereinafter referred to as `the Regulations'].
Respondent
no.1 challenged the said order of dismissal by filling a writ petition in
Allahabad High Court, Lucknow Bench. In the said writ petition respondent no.1
raised various contentions for challenging the impugned order. One of the
contentions canvassed before the High Court by respondent no.1 was to the
effect that when disciplinary proceedings were initiated against him by the Dy.
General Manager, Central Zone, Lucknow, the Asstt. General Manager, Zonal
Office, Patna had no authority or jurisdiction to pass the impugned dismissal
order and it was the Disciplinary Authority which initiated the proceedings
which was competent to pass the final order of penalty, if any. The
appellant-bank resisted the petition and contended amongst others that as per
the Regulations the Assistant General Manager, Zonal Office, Patna was fully competent as a
Disciplinary Authority to pass the impugned dismissal order.
The
High Court took the view that respondent no.7, the Assistant General Manager, Patna
Zone, Patna was not competent to pass the
impugned order of dismissal. Only on this short ground the writ petition was
allowed. The High Court did not, therefore, go into the other contentions
canvassed by respondent no.1 against the impugned order of dismissal. The High
Court accordingly set aside the order dated 21st March 1986 as contained in Annexure 29 to the writ petition. It is the
aforesaid order of the High Court which has brought the appellant-bank to this
Court being aggrieved by the same.
Rival
Contentions ----------------- Shri Sanghi, learned senior counsel for the
appellant- bank contended that the High Court had patently erred in law in
voiding the impugned order of respondent no.7 on the ground that he was not
competent to pass the said order.
That
the relevant regulations of the bank were not properly appreciated by the High
Court. That there was nothing in the Regulations to suggest that once a
Disciplinary Authority had initiated the proceedings by serving a chargesheet
and appointing an Enquiry Officer against the delinquent officer the
proceedings cannot be transferred to another equally competent Disciplinary
Authority as per the Regulations.
That
there was no question of parallel proceedings being conducted by two Deisciplinary
Authorities at a given point of time. That the High Court has wrongly assumed
that that would be the situation if the appellant-bank's contention was
accepted. The High Court had equally erred in assuming that under the
Regulations the respondent no.1 would lose right of appeal if the disciplinary
proceedings initiated by the Deputy General Manager got decided ultimately by
the Assistant General Manager as appeal would otherwise lie against the order
of the Assistant General Manager to the Deputy General Manager. That in such an
eventuality, submitted learned senior counsel, the appeal may be entertained by
still higher authority, namely, the General Manager and that such an
eventuality had still not occurred and it was not the contention of respondent
no.1 that his right of appeal had not whittled down under the Regulations.
It
was, therefore, contended that the decision rendered by the High Court was
required to be set aside.
Shri Verma,
learned senior counsel for respondent no.1- employee, who is the only
contesting party, on the other hand submitted that once the disciplinary
proceedings were initiated by Deputy General Manager they had to be carried to
their logical end by the same Authority and that abruptly in midstream after
the enquiry report was submitted proceedings could not have been transferred to
Assistant General Manager. In any case, submitted learned senior counsel for
respondent no.1, there was nothing on the record to indicate that the competent
authority had ordered continuation of these disciplinary proceedings by
Assistant General Manager though initially they were started by the Dy. General
Manager. It was further contended that respondent no.1 came to know for the
first time that the Disciplinary Authority had been changed only on 20th March 1986 and before he could make any
representation to that Authority almost simultaneously on the next day, that
is, 21st March 1986 the impugned order was passed. It
was ultimately submitted by Shri Verma, learned senior counsel for respondent
no.1 that on the scheme of the Regulations the oroder of the High Court was
perfectly justified and well sustained.
Our
conclusion and reasons thereof ---------------------------------- We have
carefully considered these rival contentions.
We
have reached the conclusion that High Court has taken too narrow a view of the
controversy posed before it and has set aside the dismissal order on too
hyper-technical a view which is not well sustained on the scheme of the
Regulations.
We
will, therefore, proceed to consider the scheme of the Regulations which
governs the controversy between the parties. The Regulations of 1976 have been
framed by the appellant-bank in exercise of powers conferred by Section 19 of
the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. The
Regulations are framed in consultation with the Reserve Bank and with previous
sanction of the Central Government. Regulation 3 contains definitions. It has
been laid down therein that in these regulations, unless the context otherwise
requires.
`Appellate
Authority' means the authority specified in the Schedule to dispose of appeals;
`Competent Authority' means the authority appointed by the Board for the
purpose of these regulations; and `Disciplinary Authority' means the authority
specified in the Schedule which is competent to impose on an officer employee
any of the penalties specified in regulation 4. Regulation 4 deals with
penalties. It provides for imposition on any officer employee for act of
misconduct or for any other good or sufficient reason amongst others major
penalty of dismissal which shall ordinarily be disqualification for future
employment. It is not in dispute between the parties that respondent no.1 at
the relevant time was officer employee who was in Junior Management Scale I. It
is also not in dispute that he was imposed a penalty by way of dismissal from
service.
Regulation
5 deals with authority to institute disciplinary proceedings and impose
penalties. Sub-regulation (1) thereof lays down that the Managing Director or
any other authority empowered by him by general or special order may institute
or direct the Disciplinary Authority to institute disciplinary proceedings
against an officer employee of the bank. It has also been mentioned therein
that the Chairman & Managing Director vide order dated 11th May 1979 has authorised
Deputy General Managers in terms of Rule 5(1) of the said Regulation to take
disciplinary action against officers in Grade III and above as also to impose
on them Minor and/or Major Penalties as under :
Minor
Penalties :
i)
Censure
ii)
Recovery from pay of the whole or part of any pecuniary loss caused by the
Officer to the Bank by negligence or breach of orders.
iii)
Withholding of increaments of pay.
Major
Penalties :
i)
Stoppage of one or more increament (s)
ii)
Reduction to a lower stage in the grade of the officer or to a lower grade.
iii)
Compulsory retirement.
iv)
Termination of service.
v)
Dismissal from service.
The
order of the Chairman & Managing Director dated 11th May 1979 as per sub-regulation (1) of Regulation 5 was further
amended on 15th
December 1980 to the
following effect :
"In
addition to the Schedule to Allahabad Bank Officer Employees' (Discipline &
Appeal) Regulations, 1976, and in furtherance to may order dated 1st July,
1977, as well as 11th May, 1979, I do hereby authorise Deputy General Managers
and Assistant General Managers in terms of Rule 5(1) of the said Regulations to
take disciplinary action against officer in Grade III, Grade II and Grade I
(Corresponding to Scale I, Scale II and Scale III respectively of Allahabad
Bank Officers Service Regulations, 1979) and also to impose on them Minor
and/or Major Penalties as under :- Minor Penalties :
a) ...
...
b) ...
...
c) ...
...
d) ...
...
Major
Penalties :
a) ...
...
b) ...
...
c) ...
...
d)
Dismissal which shall ordinarily be a disqualification for future
employment."
Sub-regulation
(2) of Regulation 5 lays down that the Disciplinary Authority may himself
institute disciplinary proceedings. As per Regulation 6 sub-regulation (2)
`whenever the Disciplinary Authority is of the opinion that there are grounds
for enquiring into the truth of any imputation of misconduct or misbehaviour
against an officer employee, it may itself enquire into, or appoint any other
public servant (hereinafter referred to as the enquiring authority) to inquire
into the truth thereof.' As per sub- regulation (3) of Regulation 6, `where it
is proposes to hold an inquiry, the Disciplinary Authority shall frame definite
and distinct charges on the basis of the allegations against the officer
employee and the articles of charge, together with a statement of the
allegations, on which they are based, shall be communicated in writing to the
officer employee, who shall be required to submit within such time as may be
specified by the Disciplinary Authority (not exceeding 15 days), or within such
extended time as may be granted by the said Authority, a written statement of
his defence.' As per sub-regulation 21(ii) of Regulation 6 after completion of
the inquiry ` the inquiring authority, where it is not itself the Disciplinary
Authority, shall forward to the Disciplinary authority the records of inquiry
which shall include - (a) the report of the inquiry prepared by it under Clause
(i);
(b) the
written statement of defence, if any, submitted by the officer employee
referred to in Sub-regulation (15);
(c) the
oral and documentary evidence produced in the course of the inquiry;
(d) written
briefs referred to in sub- regulation (18), if any, and (e) the orders, if any,
made by the Disciplinary Authority and the Inquiring Authority in regard to the
inquiry.' Then follows Regulation 7 which deals with `Action on the inquiry
report'. Sub-regulation (3) of Regulation 7 provides that `if the Disciplinary
Authority, having regard to its findings on all or any of the articles of
charge, is of the opinion that any of the penalties specified in Regulation 4
should be imposed on the officer employee it shall, notwithstanding anything
contained in Regulation 8, make an order imposing such penalty.' We may now
turn to the Schedule to the Regulations. We have already noted the definition
of Disciplinary Authority as found in Definition Clause (g) of Regulation 3.
The Disciplinary Authority which can impose penalties specified in Regulation 4
are those which are specified in the Schedule. The relevant amended Schedule to
the Regulations lays down that for Officers Scale I to III the Disciplinary
Authority is Deputy General Manager/Assistant General Manager, the Appellate
Authority is Deputy General Manager/General Manager and the Reviewing Authority
is Chairman & Managing director. It becomes, therefore, clear that both the
Dy. General Manager as well as the Asstt. General Manager are disciplinary
authorities who can initiate proceedings against the officer like respondent
no.1 who is in Scale I and who canals pass the final penalty order. It is of
course true as rightly contended by learned senior counsel Shri Verma that
there cannot be two parallel simultaneous proceedings before the two
disciplinary authorities, namely, Dy. General Manager and Assistant General
Manager. However, there is nothing in the Regulations to suggest as the High
Court has with respect wrongly assumed that once a competent disciplinary
authority, namely, Dy. General Manager has initiated disciplinary proceedings
by framing charges and appointing Enquiry Officer as per Regulation 6 sub-regulation
(3), it is only that Disciplinary Authority, namely, the Dy. General Manager
who must necessarity complete the proceedings till they are terminated and
final orders are passed under Regulation 7. It may also be noted at this stage
that there was nothing on the record of the High Court in the writ petition to
suggest that it was the Chairman & Managing Director who had directed the Dy.
General Manager to institute disciplinary proceedings against the respondent
no.1. On the contrary as provided by sub-regulation (2) of Regulation 5 any
competent authority can himself institute disciplinary proceedings. Even
otherwise Regulation 5(1) as further amended don 15th December 1980 shows that
there is a general authorisation given by the Chairman & Managing Director
to all the Dy. General Managers and Asstt. General Managers in terms of Rule
5(1) of the Regulations to take disciplinary action against officers in Scale I
like respondent no.1 and has also authorised them to impose on them minor and
major penalties including the major penalty of dismissal. Therefore, authorisation
both to Dy. General Manager as well as Asstt. General Manager to act as
disciplinary authorities for initiating departmental enquiries against Scale I
officers as per Regulation 6(3) as well as to pass appropriate penalty orders
under Regulation 7 is already granted by general order of the Managing Director
as seen from the amended Regulation 5(1) dated 15th December 1980. It is, of
course, true that in the present case the Dy. General Manager, Lucknow
Division, initiated the disciplinary proceedings as Disciplinary Authority
under Regulation 6(3) by framing charges and appointing the Enquiry Officer.
The enquiry was completed by him but before the stage of Regulation 7 was
reached the Enquiry Officer's report as per Regulation 6 sub-regulation 21(ii)
came to be sent to another equally competent Disciplinary Authority, namely, Asstt.
General Manager, Patna Branch, Beyond that stage, when Regulation 7 was to
operate, it was only the Asstt. General Manager who remained the sole
Disciplinary Authority in the field on account of transfer of these
disciplinary proceedings from initial Disciplinary Authority, namely, Dy.
General Manager to Assistant General Manager who was an equally competent disciplinary
authority.
With
respect the High Court has wrongly assumed that this is likely to result in two
conflicting orders of two equally competent authorities. Such a situation would
never arise for the simple reason that for one disciplinary enquiry against a
concerned officer at a given point of time there would be only one disciplinary
authority. But that would not mean that the entire gamut of the departmental
enquiry against the officer must be conducted from beginning to end by only one
disciplinary authority and one competent disciplinary authority which initiated
the proceedings cannot get changed in midstream by another equally competent
disciplinary authority. As we have seen earlier the amended Schedule clearly
shows that for officers like respondent no.1 in Scale I both the Dy. General
Manager and the Asstt. General Manager are equally competent to act as
disciplinary authorities. Under Regulation 6 such a competent disciplinary
authority can initiate proceedings. He can appoint an Enquiry Officer but for
exigency of service and requirements of administration if final action at the
stage of Regulation 7 is to be taken by any other equally competent
disciplinary authority like Asstt. General Manager it cannot be said that both
the competent authorities are simultaneously acting at the same point of time
in the departmental enquiry against the officer. In our view the High Court has
also erred in taking the view that such a change of disciplinary authority
before completion of the enquiry would whittle down the right of appeal
available to the concerned delinquent. Firstly such a situation has still not
arisen in the present case as it is not the contention of respondent no.1 that
his right of appeal under the Regulations against the impugned order has been
adversely affected. In fact he has not filed any appeal against the impugned
order of dismissal but he straightaway went to the High Court challenging the
same. But even that apart, if the Dy. General Manager has initiated the
disciplinary proceedings against the delinquent officer as per Regulation 6
sub-regulation (3) and if at the stage of passing final orders he is
substituted by another equally competent disciplinary authority like Asstt. General
Manager, then in such a case, the penalty order though passed by Asstt. General
Manager will have a linkage with the initiation of the disciplinary proceedings
by the Dy. General Manager as disciplinary authority and in such an eventuality
the appeal would lie to the General Manager who is also one of the appellate
authorities as mentioned in the amended Schedule and in either case the
Reviewing Authority against the appellate authority will remain the same,
namely, the Chairman & Managing Director. Consequently it cannot be held as
assumed by the High Court that under the Regulations it is the disciplinary
authority which initiates the proceedings as per Regulation 6 sub-regulation
(3) that has necessarily to complete the proceedings till the stage of
Regulation 7 and it is that very authority which must pass the final orders of
penalty. Consequently the decision of the High Court voiding the impugned order
of dismissal on this short ground cannot be sustained.
We may
also mention here that the submission of learned senior counsel for respondent
no.1 that he did not get adequate opportunity against the proposed action baed
on the enquiry report before the changed disciplinary authority, namely,
respondent no.7 is a contention which has nothing to do with the competence of
respondent no.7 as the disciplinary authority to pass impugned order of
dismissal under Regulation 7. The contention about absence of reasonable
opportunity to make such a representation before the new disciplinary authority
has not been gone into by the High Court. Therefore, it cannot be considered by
us at this stage. We, however make it clear that as the High Court has allowed
the writ petition only on the short ground about the competence of respondent
no.7 to pass the impugned order of dismissal and as we disagree with the said view
of the High Court and as the High Court has not gone into other contentions
canvassed by learned counsel for respondent no.1 for challenging the impugned
order it will also be open to respondent no.1 to challenge the impugned order
of dismissal on the ground of non-availability of reasonable opportunity for
putting forward his defence before the ultimate disciplinary authority, as the
proceedings will have to be remanded to the High Court for a fresh decision on
merits on other contentions that may be open for respondent no.1, which of
course will be decided by the High Court in accordance with law after hearing
all concerned.
In the
result this appeal succeeds and is allowed. The order of the High Court is
quashed and set aside. Writ Petition No.3841 of 1986 is restored to the file of
the High Court for decision on merits on remaining contentions which may be
canvassed by respondent no.1 against the impugned order of dismissal. As
respondent no.1 is out of service since 21st March 1986 and as pending this
appeal the order of the High Court was stayed by this Court we request the High
Court to make it convenient to dispose of the remanded proceedings in the
aforesaid writ petition at its earliest convenience and preferably within six
months from the receipt of the writ of this order at its end. In the facts and
circumstances of the case there shall be no order as to costs.
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