@JUDGMENTTAG-ORDER
H.L. Dattu, J.@mdashPetitioner was an officer of respondent-Syndicate Bank (''the Bank'' for the short). For the alleged acts of misconduct said to have been committed by him while as an Officer of the respondent Bank, he was served with a charge memo dated December 21, 1998. The Articles of charge read as under.
"ARTICLE OF CHARGE"
That you were working as Manager of Sakleshpur Branch from June 23, 1988 to October 27, 1989 and prior to that as Asst. Manager at Avenue Road, Bangalore and while working in your position as such on April 28, 1988, you executed a written agreement dated April 28, 1988 for sale of the property mortgaged to the Bank agreeing to execute registered sale deed for a consideration of Rs. 1,27,750/- in, favour of Sri Sanjeeva Sapalinga and received from him Rs. 77,750/- on April 28, 1988 and Rs. 50,000/- on November 4, 1988 before obtaining permission from the Bank for selling the property and you failed to remit the sale proceeds towards the Housing Loan Account availed by you from the Bank.
By your above acts, you failed to discharge your duties with utmost integrity and honesty and exhibited conduct unbecoming of the status of the Bank Officer and thus contravened Regulation No 3(1) read with Regulation 24 of Syndicate Bank Officers Employees (Conduct) Regulations, 1976."
2. After receipt of the charge memo, by his reply letter dated February 6, 1999 filed before the disciplinary authority of the respondent Bank, petitioner denied the charges and also had offered his explanation. In that, he had stated that the Bank by its General Manager (Credit), had permitted him to, substitute the security for housing loan by disposing of the existing house property and therefore, he had entered into an agreement with the prospective purchaser to sell the property, and the sale is not yet completed. Therefore, he has not committed any acts of misconduct as alleged in the charge memo. Not being satisfied with the explanation offered by the petitioner, the disciplinary authority of the respondent Bank had appointed one Sri, Koragappa as enquiry officer to conduct enquiry and to submit his report on the charges alleged in the charge memo and the same was informed to the delinquent official by their letter dated March 20, 1999.
3. The enquiry officer had fixed the date of enquiry on April 29, 1999 and the same was intimated to the petitioner by a notice of enquiry dated April 10, 1999. In response to the said notice, petitioner by his letter dated April 25, 1999 had requested the enquiry officer to postpone the enquiry proceedings on the ground he has suffered a head injury in a road accident and that the Doctor has advised him not to undertake journey upto May 19, 1999. In support of this claim, he had also enclosed a photocopy of the medical certificate issued by Gurukripa Nursing Home, Karwar. The letter is acknowledged by the enquiry officer and without doubting the correctness or otherwise of the medical certificate produced, proceeds with the enquiry on April 29, 1999, and while doing so observes-
"As in the preliminary inquiry, which is being held today, no evidence is being recorded and only the time schedule for verification of the document is fixed, I am inclined to proceed with the inquiry exparte Sri M. Gopal Shetty, charge sheeted officer will be given all fair and reasonable opportunities to defend his case in the inquiry."
4. Pursuant to the directions issued by the enquiry officer, the Presenting Officer, by his letter dated April 29, 1999 directs the charge sheeted officer to inspect the listed documents on any working day at Industrial Relation Division, Head Office, Manipal, on or before May 10, 1999.
5. The enquiry officer by another notice dated May 19, 1999 informs the petitioner the next date of enquiry as June 8, 1999 and directs him to appear for the enquiry along with his defence assistant, if any. The charge sheeted officer informs the enquiry officer that he has not yet recovered from his illness and also requests him to fix the enquiry at the place of his posting namely, Zonal Office at Delhi. Pursuant to the request made by the delinquent officer, the enquiry officer adjourns the enquiry to June 10, 1999 and since the petitioner did not participate in the enquiry proceedings on June 10, 1999, the enquiry officer records the evidence of the management witnesses and close the proceedings.
6. The charge sheeted officer by this letter dated June 28, 1999 requests the disciplinary authority of the respondent Bank not to accept the finding of the enquiry officer on the ground that the enquiry officer was biased against him and an ex parte enquiry is held inspite of informing him about his illness and further informs the authority that from the evidence of MW1 and MW2 it is evident that he had sought permission from the competent authority to dispose off the house property and the same was granted to him and therefore the entire enquiry proceedings are vitiated.
7. After completion of the enquiry proceedings, the enquiry officer had submitted his report dated July 28, 1999 together with the records of the enquiry proceedings and other relevant documents to the disciplinary authority. In that, the enquiry officer finds the petitioner guilty of the charges alleged against him in the charge memo.
8. After considering the report of the enquiry officer and record of the proceedings, the disciplinary authority had issued a second show notice dated August 30, 1999 to the delinquent officer calling upon the delinquent officer to make his representations on the findings of the enquiry officer on or before September 18, 1999. Petitioner has filed his reply on September 20, 1999. In that, he had stated that-
"(1) The departmental enquiry was held ex parte inspite of my repeated request to the enquiring Authority to postpone the enquiry in view of my ill-health. All my requests were accompanied with the valid medical certificates.
(2) Instead of accepting my request for postponing the enquiry, the inquiring authority made unwarranted comments stating that I was pretending sickness. Thus, the inquiring authority was not only humiliating me, but also the doctors who had issued the medical certificates. Such was the attitude and approach of the inquiring authority, which proves beyond doubt that he was prejudiced against me.
(3) Further I have to state that the Inquiring Authority has misrepresented the fact regarding my representation for postponing the enquiry fixed for June 9, 1999 and June 10, 1999. He has stated in his report that he had not received my communication requesting for postponement of the enquiry scheduled to be held on June 9, 1999 and June 10, 1999 at Karwar. He further stated that he had received my communication for postponement of enquiry only after he resumed the duties (after the departmental enquiry was held ex parte) at Zonal Office, Udupi on June 12, 1999. To disprove this. I enclose herewith a Xerox copy of the telegram received by me on June 8, 1999 rejecting my plea for postponing the enquiry. The xerox copy of the telegram of the inquiring authority is marked as "Annexure". This conclusively proves that the inquiring authority has misrepresented the fact for the reasons best known to him. This further proves his prejudices against me.
(4) By holding ex parte enquiry, the inquiring authority has denied me the fair and just opportunity to defend myself. As such, the entire enquiry is vitiated in the eyes of law and as such the entire report of the inquiring authority has no legal value."
9. The disciplinary authority of the respondent Bank, after considering the report of the enquiry officer and the reply furnished by the delinquent officer to the second show cause notice and after concurring with the findings, has passed an order dated September 30, 1999 imposing a punishment of "dismissal from service". The reason assigned by the disciplinary authority while concurring with the findings of the enquiry officer requires to be noticed. Therefore, it is extracted and it reads as under:
"I observe from the proceedings of the inquiry that the departmental inquiry has been conducted as per the Regulation No. 6 of Syndicate Bank Officer Employees'' (Discipline and Appeal) Regulations, 1976 by providing all fair and Reasonable opportunities to Sri M. Gopal Shetty to defend his case in the inquiry in consonance with regulations and of principles of natural justice. I also observe from the findings of the Inquiring Authority that the charges levelled against Sri M. Gopal Shetty as alleged in the charge sheet cited supra are proved in the inquiry. I also observe that the same are against the facts on record as the IA has considered the request of Sri M. Gopal Shetty for postponement of the inquiry, made time and again, either on one pretext or on other. Further the IA has clearly brought on record in the proceedings of inquiry and also in his report that Sri M. Gopal Shetty has submitted a medical certificate for his illness recommending rest from May 20, 1999 to June 8, 1999 and accordingly the inquiry fixed for June 8, 1999 was postponed to June 10, 1999. It has further come on record that Sri M. Gopal Shetty vide his telegram dated June 7, 1999 requested for fixing of the inquiry after his joining duties without informing any date, as such the IA vide telegram dated June 8, 1999 informed Sri M. Gopal Shetty to participate in the inquiry fixed for June 10, 1999 at Regional Office, Karwar, which is near to his residence, by making it clear that in case of non-attendance, the same will be held as expert. In view of the above, I am fully convinced about the reasons stated by the IA while conducting and concluding the enquiry as ex- parte as more than fair and reasonable opportunity was provided to Sri M. Gopal Shetty, which he failed to avail for the reasons best known to him. Further the contention of Sri M. Gopal Shetty that as there is no loss to the Bank that he be exonerated is also not tenable as he has not only entered into an agreement to sell the property mortgaged to the Bank without the written permission of the bank, as required, but also did not deliberately credit the sale proceeds, so received towards his Housing Loan Account. I, therefore, fully concur with the findings of the IA and hold Sri M. Gopal Shetty guilty of the charges levelled against him vide charge sheet cited supra. The acts for which Sri M. Gopal Shetty has been held guilty constitute misconduct within the meaning of Regulation No. 3 (1) read with Regulation No..24 of Syndicate Bank Officer Employees'' (Conduct) Regulations, 1976 which invites imposition of an appropriate penalty on him. I further observe that the Articles of Charge proved against Sri M. Gopal Shetty is very grave and serious in nature, as he not only sold the property mortgaged to the bank unauthorisedly but also misappropriated the sale proceeds by not depositing the same/clearing the housing loan liability, which establishes his mala fide and dishonest intention and thus he misutilised the Housing Loan Facility of the Bank. By his above acts he shaked the confidence of the Bank in his integrity and honesty and thus became unreliable and undependable and continuing such an official in the service of the Bank, which is a financial institution dealing with public money, is undesirable and not in the interest of the Institution. Therefore, having regard to the nature, magnitude and gravity of the misconduct proved against Sri M. Gopal Shetty, Sri M. Gopal Shetty deserves awarding of severe penalty, accordingly I pass the following;
ORDER
For breach of Regulation No. 3 (1) read with Regulation No. 24 of Syndicate Bank Officer Employees'' (Conduct) Regulations, 1976, Sri M. Gopal Shetty be and is dismissed from the service of the Bank with immediate effect.
If he so desires, Sri M. Gopal Shetty may prefer an appeal against this order to the appellate authority i.e., General Manager (P), HO, Manipal, within 45 days from the date of receipt of this proceedings in terms of Regulation 17 of Syndicate Bank Officer Employees'' (Discipline & Appeal) Regulations, 1976."
10. The order passed by the disciplinary authority dated September 30, 1999 is confirmed by the appellate authority while rejecting the appeal filed by delinquent officer by his order dated November 26, 1999, and even the review petition filed against these orders is rejected by the authorities of the Bank by their order dated February 22, 2000. It is the correctness or otherwise of these orders, which are called in question by the delinquent officer before this Court, being aggrieved by the same.
11. Sri P. S. Rajagopal, learned counsel appearing for the petitioner has raised the following three issues for consideration and decision of this Court. They are as under:
I. That the expert enquiry in the facts and circumstances of the case was not warranted.
II. The enquiry officer was biased.
III. Allegation of misconduct was not justified.
12. Per contra, Sri Radhesh Prabhu, learned counsel appearing for the respondent Bank submits that though several opportunities were given to the delinquent officer to participate in the enquiry proceedings, he did not choose to make use of those opportunities. Therefore, according to the learned counsel, the enquiry officer was justified in proceedings with the enquiry by placing the delinquent officer expert. Secondly, it is argued that merely because the enquiry officer did not postpone the proceedings at the request of the delinquent officer, it cannot be said that the enquiry officer was biased and therefore submits that the allegation made against the enquiry officer is not based on any relevant material and lastly, on facts, would submit that the delinquent officer has committed a serious act of misconduct which is unbecoming of a Bank Officer and therefore, the disciplinary authority of the Bank is justified in passing the impugned order.
13. Reg. First contention. While working as an Officer of the respondent Bank, petitioner was served with a charge memo dated December 21, 1998. Petitioner after receipt of the charge memo, by his reply letter dated February 6, 1999 had denied the charges alleged in the charge memo. Not being satisfied with the explanation offered by the petitioner, the disciplinary authority of the respondent Bank had appointed one Sri Koragappa as enquiry officer to conduct enquiry and to submit his report on the charges alleged in the charge memo and the same was informed to the delinquent official by their letter dated March 20, 1999. The enquiry officer had fixed the date of enquiry as September 24, 1999 and the same was intimated to the petitioner by a notice of enquiry dated April 10, 1999. In response to the said notice, petitioner by his letter dated April 25, 1999 had requested the enquiry officer to postpone the enquiry proceedings on the ground that he has suffered a head injury in a road accident and that the Doctors had advised him not to undertake journey upto May 19, 1999, In support of this claim, he had also enclosed a photo-copy of the medical certificate issued by Gurukripa Nursing Home, Karwar. The letter is acknowledged by the enquiry officer and without doubting the correctness or otherwise of the medical certificate produced, completes the preliminaries and then directs the Presiding Officer to inform the delinquent officer to inspect the documents, if he so desires, on which the respondents would be placing reliance in support of the charges.
14. The enquiry officer by a second notice dated May 19, 1999 informs the petitioner the next date of hearing as June 8, 1999 and directs him to appear for the enquiry along with his defence assistant, if any, and on that day, nothing transpires and the enquiry is adjourned to June 10, 1999, in view of the request made by the delinquent officer. Since the medical certificate produced by the delinquent officer requires rest till June 8, 1999, and since the charge sheeted officer was not present on the next date of enquiry, the enquiry officer proceeds with enquiry by placing the charge sheeted officer expert.
15. The learned counsel for petitioner contends that the medical certificate issued by the Gurukripa Nursing Home covers the entire period and the enquiry officer without doubting the correctness or otherwise of the sick certificate produced, proceeds with the enquiry in a mortal hurry, as if heaven would fall if the proceedings are adjourned or not completed. According to the learned counsel, the procedure so adopted would clearly demonstrate that the enquiry officer was biased against the petitioner and this has resulted in miscarriage of justice. In support of his submissions, the learned counsel has relied upon the observations made by the Apex Court in the case of
16. The view expressed by the Apex Court in S Ramesh''s case, (supra), on which reliance was placed by the learned counsel for petitioner in support of his contention, in my view, may not assist the learned counsel, since the facts and circumstances of that case were entirely different.
17. In Union of India v. I.S. Singh (supra), the Supreme Court has considered the legality of expert enquiry. In that, the Court has stated as under:
"The enquiry officer proceeded expert inspite of the said letters and made his recommendation on the basis of which the aforesaid penalty was imposed. It is evident from the facts stated above that the Enquiry Officer has not only conducted the enquiry in a manner contrary to the procedure prescribed by Rule 14(2) of Central Civil Services (CCA) Rules but also in violation of the principles of natural justice. The result of this finding would have been to set aside the order of punishment and allowed the authority to proceed with the inquiry afresh. In our opinion, however, this is not advisable at this distance of time and also having regard to the nature of the charges levelled against the respondent. We think that the more appropriate course would be to give a quietus to the matter at this stage itself, at the same time providing for some measure of penalty to the respondent. We suggested to the learned counsel for the respondent whether he is agreeable to our suggestion, viz., that the respondent should forego the emoluments for the period commencing from June 1, 1980 to August 31, 1985 (approximating to the date of punishment and the date on which the respondent approached the High Court). Learned counsel, Shri H.M. Singh, agrees to the said course after consulting his client. In the circumstances, we dismiss the appeal but direct that the respondent shall not be entitled to any emoluments for the period of June 1, 1980 to August 31, 1985. The said period shall, however, count for seniority and other purposes. The respondent shall be reinstated forthwith."
18. In the present case, the enquiry officer with the available oral and documentary evidence on record, has found that the charge sheeted officer has sold the property mortgaged to the Bank while securing the housing loan, without the prior permission of the Bank and further failed to remit the sale proceeds towards the housing loan account by him from the Bank. Accordingly to the learned counsel, these findings of the enquiry officer are vitiated for non-compliance of rules of natural justice during the enquiry proceedings.
19. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. The question whether the requirements of natural justice have been met by the procedure adopted depends on facts and circumstances of particular case. All that the Court is expected to see is whether the non-observance of any of those principles in a given case is likely to have resulted in deflecting the course of justice.
20. In the present case, the enquiry officer had issued a notice dated April 10, 1999 to the delinquent officer fixing the date of enquiry as April 29, 1999. In response to the said notice, petitioner by his letter dated April 25, 1999 had sought adjournment of the proceedings on the ground that he was suffering from head injury due to road accident and the Doctor has advised him to take rest till May 19, 1999. The request made was acceded to by the enquiry officer by adjournment of the proceedings. Thereafter, a second notice dated May 19, 1999 was issued by the enquiry officer to the petitioner fixing the next date of hearing as June 8, 1999. Here again the delinquent officer has stated that he has not yet recovered from his illness and also requests him to fix the enquiry at the place of his posting namely, Zonal office at Delhi, and again produces medical certificate, wherein Doctor has advised him to take rest till June 8, 1999. In my view, nothing prevented the delinquent officer to participate in enquiry proceedings, atleast on that day. He again seeks adjournment and requests the enquiry officer to postpone the date of enquiry till he completely recovers from his illness and resumes duty, by his letter dated June 4, 1999 and telegram dated June 7, 1999. While rejecting unreasonable request made by the charge sheeted Officer, the enquiry officer to facilitate the delinquent officer to participate in enquiry proceedings, adjourns the proceedings till June 10, 1999 and even on that date, the charge sheeted Officer remains absent. It is evident from that the facts stated above, that, the enquiry officer had afforded a reasonable opportunity to the petitioner to remain present during the enquiry proceedings and to make his submissions with the assistance of the defence assistant, if any, and for the reasons best known to him alone, he has not taken that opportunity to participate in the enquiry proceedings to defend his case. This is not one of those cases where no notice and no opportunity of hearing was afforded but it is a case where notice was not only issued but served and sufficient time was also granted to the delinquent officer to participate in the enquiry proceedings, and if petitioner had not made use of the opportunity given to him, he cannot be permitted to blame the enquiry officer and also to contend that the procedure adopted by the enquiry officer is opposed to rules of natural justice. Therefore, it cannot be said that the enquiry officer has conducted the enquiry in a manner contrary to the procedure prescribed under Conduct and Appeal Regulations of the respondent Bank and also in violation of the principles of natural justice. In that view of the matter, there is no merit whatsoever in the first contention canvassed by the learned counsel for petitioner. Accordingly, it is rejected.
21. Reg. Second contention: The next question that requires to be considered and decided is whether on the facts and circumstances of the case, can it be said that the enquiry officer was biased and therefore the proceedings are vitiated? The real question Is not whether the person concerned was biased because it is difficult to prove the state of mind of a person but whether facts on records raise a reasonable ground for believing that he was likely to have been biased. In the present case, the request made by the charge sheeted officer for the second time for postponement of the enquiry proceedings is rejected by the enquiry officer on the ground that the charge sheeted officer for no rhyme or reason is seeking adjournment of the proceedings. This by itself cannot be said that the enquiry officer was biased that therefore the proceedings are vitiated. Ordinarily, Courts would be reluctant to sustain the allegation of bias unless the person, who alleges bias, substantiates the same with relevant material. Even otherwise, the onus of proving bias is on the person who alleges it. The allegation must be clearly proved, if the proceedings are sought to be set aside. The Supreme Court in the case of
22. Now coming back to the allegations contained in the charge memo, it is the specific case of the disciplinary authority of the respondent Bank against the charge sheeted Officer that while he was working as Assistant Manager at Avenue Road Branch, Bangalore, on April 28, 1988 he had executed a written agreement for sale of the property mortgaged to the Bank agreeing to execute a registered sale deed for a consideration of Rs. 1,27,750/-without obtaining the prior permission from the Bank for selling the property. The next accusation is that he failed to remit the sale proceeds towards the Housing Loan Account availed from the Bank. This allegation came to be denied by the charge sheeted officer by filing his reply. In that, it is his specific case that he had obtained permission from General Manager (Credit) of the bank to substitute the security by selling the existing security and infact he was permitted to substitute by disposing the property mortgaged to Bank while availing the housing loan facility. Secondly, the transaction did not come through as the intending purchaser did not fulfil all the conditions in the agreement dated April 28, 1998 and also has filed a case for specific performance and the same is pending and therefore he had not deposited the sale consideration received by him from the purchaser of the property.
23. To prove the charge alleged against the delinquent officer, the respondent Bank has examined one Sri M. Ramchandra, Senior Branch Manager, Moodabidare Branch, as MW1. In his evidence, he has identified the letter of the charge sheeted officer dated November 2, 1988, requesting the Divisional Officer, Udupi, to permit him to sell the house property mortgaged to the Bank as a security to the housing loan availed at Moodabidare Branch and the same is marked as MEX 11. Further, he has identified the letter of the Divisional Officer, Udupi addressed to Moodabidare Branch, dated November 7, 1988 and the same is marked as MEX 13. This document shows that the Divisional Officer had permitted Moodabidare Branch to release the mortgaged property on full settlement of the housing loan account, This was a conditional permission. This part of the evidence of MW1 is not rebutted by the charge sheeted officer since he did not participate in the inquiry proceeding. Therefore, petitioner cannot contend before this Court that the respondent Bank had permitted for sale of mortgaged property.
24. Before the inquiry officer the respondent Bank has also examined one Sri B.V. Somayaji, Deputy Chief Officer, Regional office, Mangalore, as M.W2. In his evidence, he has stated that:
"Examination-in-Chief MW2. MEX14 shows that Sri M. Gopal Shetty executed written agreement dated April 28, 1988 and an additional agreement dated July 15, 1989 for sale of the house property mortgaged by him to the Bank as security to the housing loan availed agreeing to execute the registered sale deed in favour of Sanjeeva Sapalinga for a consideration of Rs 1,27,750/- by October 28, 1988/December 31, 1989. MEX14 also indicates that Sri Gopal Shetty received from Sri Sanjeeva Sapalinga an amount of Rs. 77,750/- on April 28, 1988 and Rs. 50,000/- on November 4, 1988. MEX 11 shows that Sri Gopal Shetty requested the Divisional Manager to permit him to sell the house property on November 2, 1988. MEX 13 shows that permission was given by the Divisional Officer on November 7, 1988 subject to the condition inter alia closure of housing loan account. MEX 14 shows that Sri Shetty executed written agreement to sell the house property on April 28, 1988 well before seeking permission of the bank to sell the house property, by October 28, 1988. This is highly irregular on the part of the officer employee. The record maintained at our office indicates that Sri Gopal Shetty has not remitted that amount received by him from Sri Sanjeeva Sapalinga to the Housing Loan Account"
25. The enquiry officer based on these oral and documentary evidences on record has observed in his report as under:
"From the above analysis of evidence it is established that CSOE executed a written agreement dated April 28, 1988 for sale of the house property mortgaged by him to the Bank agreeing to execute registered sale deed for a consideration of Rs. 1,27,750/- in favour of Sri Sanjeeva Sapalinga and received from him Rs 77,750/- on April 28, 1988 and Rs 50,000/- on November 4, 1988 before obtaining permission from the Bank for selling the property and he failed to remit the sale proceeds towards the housing loan as availed by him from the Bank"
26. A bare perusal of the finding of the enquiry officer would amply demonstrate that the said findings are based on evidence on record. With the available material on record there, only one view is possible and if any other view is taken, it would be not only perverse but also contrary to the evidence on record. The evidence and other material on record shows that the petitioner is guilty of the charges alleged against him with all definiteness. However, Sri P.S. Rajagopal, learned counsel for the petitioner submits that the competent authority had granted permission to sell the property purchased by him by availing housing loan from the Bank by its letter dated June 16, 1989 and therefore the Bank is not justified in informing the petitioner that he could not have entered into sale agreement without obtaining prior permission from the Bank for the sale of mortgaged property. This assertion of the learned counsel is contrary to the fact situation. Petitioner infact had entered into an agreement of sale with the prospective purchaser on April 28, 1988 by receiving the entire sale consideration and further by handing over the possession of the property. It is only thereafter he applied to the competent authority for necessary permission to sell the property vide his letter dated November 2, 1988 and the permission was granted only on June 16, 1989. Therefore, the learned counsel for petitioner is not justified in contending that the delinquent officer had obtained prior permission of the competent authority of the Bank before entering into an agreement for sale of the property mortgaged to the Bank while availing housing loan facility to the prospective purchaser. Therefore, in my opinion, the disciplinary authority is justified in accepting the finding of the inquiry officer while passing the impugned order of dismissal of the petitioner from the service of the respondent Bank. Accordingly, even the third contention canvassed by the learned counsel for the petitioner has no merit whatsoever and it is rejected.
27. These are the only three contentions canvassed by the learned counsel for petitioner. Since I have negatived all of them the petition deserves to be rejected.
28. In the result petition fails. Accordingly, it is dismissed. Rule discharged. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.
