THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM W.P.No.21872 of 2014 and M.P.No.1 of 2014 S.Sivaprasath For Petitioner : Mr.T.P.Prabakaran For Respondents : Mr.S.Ravindran Senior Advocate For Mr.K.Chandra Sekaran ..
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.08.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.21872 of 2014
and
M.P.No.1 of 2014
S.Sivaprasath … Petitioner
Vs.
1.The Deputy General Manager (B&O) (Zone-1)
and Disciplinary Authority,
State Bank of India,
Disciplinary Proceedings Cell
Administrative Office,
Chennai Zone, Chennai Network-1
No.86, Rajaji Salai,
Chennai – 600 001.
2.The General Manager (Network-2)
and Appointing Authority
State Bank of India,
Circle Top House,
Aparna Complex,
16, College Lane, Nungambakkam,
Chennai – 600 006.
3.The Chief General Manager /
Appellate Authority,
State Bank of India,
HR Department,
Local Head Office,
Circle Top House,
Post Box No. 737,
16, College Lane, Nungambakkam,
Chennai – 600 006. … Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, calling for the entire records in pursuant to the order passed by the 2nd respondent dated 03.03.2014 and Communicated by the 1st respondent vide No.Dis/Con/ 1257 dated 04.03.2014 and rejection order passed by the 3rd respondent vide A & R -181 dated 30.06.2014 and quash both of them and direct the respondents to reinstate the petitioner in service of the respondent bank with all consequential benefits.
For Petitioner : Mr.T.P.Prabakaran
For Respondents : Mr.S.Ravindran
Senior Advocate
For Mr.K.Chandra Sekaran
O R D E R
The lis on hand has been instituted questioning the validity of the punishment of dismissal imposed on the writ petitioner, which was confirmed by the Appellate Authority.
- The writ petitioner states that he was initially appointed as an Officer Marketing and Recovery (Rural) on contract basis on 01.03.2010 and subsequently, his service was confirmed as JMGS-I (RMRO) from 01.04.2011 by the 2ndrespondent. Initially the petitioner was posted at Tirupattur Branch, Vellore District and thereafter, transferred to Vaniyambadi Branch. The 1st respondent placed the writ petitioner under suspension in proceedings dated 04.01.2012 and the departmental disciplinary proceedings were initiated regarding certain financial irregularities and the petitioner in his letter dated 12.02.2012, intimated his address as No.623, 40th Street, Phase-II, Satuvachari, Vellore-9, Vellore District. The allegations against the writ petitioner are that “You failed to adhere to systems and procedure for up keep of ATM Pin Mailers, undelivered / returned ATM cards, which led to the perpetration of fraud amounting to Rs.5,51,000/-.” The petitioner was called upon to offer his explanations to the charges. The petitioner offered his explanations vide letter dated 29.01.2012, stating that he was not the in-charge for the undelivered / returned ATM cards and the separate officer was entrusted with the said job. The petitioner states that he made a request to furnish full particulars regarding the alleged loss of Rs.5,51,000/- in order to enable him to give a more detailed explanation. However, those details were not furnished to the writ petitioner. The charge sheet dated 28.05.2013 was issued and the Enquiry Officer was appointed. The petitioner states that when the enquiry proceedings were under consideration, the respondents issued the order of punishment of dismissal from service in terms of Rule No.67 (J) of State Bank of India Officers’ Service Rules. The 2nd respondent called upon the petitioner to appear before him in person for personal hearing on 22.02.2014 at 10.15 a.m. at Chennai Local Head Office for the purpose of making his submissions in person if any. The petitioner states that he appeared before the 2nd respondent on 22.02.2014 and made his submissions orally and also in writing. The petitioner has stated that he had not been served with any of the proceedings including the charge sheet dated 28.05.2013, enquiry notice, Enquiry Officer’s notice dated 17.12.2013 and other materials relied upon by the respondent / Bank. The petitioner further stated before the 2nd respondent during the personal hearing that he had already intimated the office about his change of address in letter dated 12.02.2012 and in spite of the said factum, the relevant proceedings were not served on him. The petitioner made a request to reopen the enquiry and provide an opportunity to him to defend his case. However, the 2nd respondent issued the order of dismissal from service. The petitioner approached the High Court by filing a writ petition in W.P.No.9673 of 2014 and this Court granted liberty to the writ petitioner to prefer an Appeal and directed the Appellate Authority to decide the same. Consequently, the petitioner preferred an appeal, which was also rejected. Thus, the petitioner moved the present writ petition.
- The learned counsel for the petitioner mainly contended that the order of dismissal was issued based on ex-parte enquiry. The petitioner during the personal hearing contended before the 2ndrespondent that none of the documents were served to the writ petitioner right from the issuance of the charge memorandum by the Disciplinary Authority and therefore, the enquiry proceedings are to be reopened and afford him an opportunity to defend his case. The petitioner had communicated a letter dated 12.02.2012 informing about his permanent address and present address. Despite the fact that the petitioner has sent a letter dated 12.02.2012 to the Deputy General Manager (B&O) (Zone-I) / Disciplinary Authority of State Bank of India, the documents were not served on him and therefore, the ex-parte enquiry is invalid and consequently, order of punishment of dismissal from service is to be set aside.
- The learned counsel for the petitioner reiterated that the petitioner was not afforded with an opportunity to defend his case on merits and thus, such a valuable opportunity must be provided to him.
- The learned counsel for the petitioner further stated that the address in the appointment order and identity card issued by the Bank was not followed and therefore, the order of punishment of dismissal from service is perverse.
- The learned Senior Counsel appearing on behalf of the respondents / Bank objected the contentions raised on behalf of the petitioner by stating that the case on hand, where the respondents / Bank had followed the procedures scrupulously and there is no procedural violations as far as the conduct of enquiry is concerned. The petitioner had involved in financial irregularities and which is grave in nature. The Regional Manager issued a letter dated 11.01.2012, stating that the petitioner had committed certain financial irregularities and the nature of the irregularities also have been stated in the said letter, which reads that “You failed to adhere to systems and procedure for up keep of ATM Pin Mailers, undelivered / returned ATM cards, which led to the perpetration of fraud amounting to Rs.5,51,000/-.”
- The said letter was received by the writ petitioner and he responded to the allegations and submitted his explanations on 29.01.2012. The explanations submitted by the writ petitioner reveals that he was not in-charge for the undelivered / returned ATM cards during the relevant point of time. Thereafter, the management issued charge memorandum in proceedings dated 28.05.2013 and the petitioner states that the said charge memorandum was not received.
- At this juncture, the learned Senior Counsel appearing on behalf of the respondents emphasised that once an employee had received the letter dated 11.01.2012, containing the nature of allegations / charges against him, thereafter, he has not received the charge memo and other connected proceedings, which would show that he has not participated in the enquiry proceedings intentionally in order to prolong and protract the proceedings or to escape from the clutches of the disciplinary proceedings. Thus, it is not the case, where the petitioner is not aware of the allegations. The definite allegations was set out in letter dated 21.01.2012 and the said letter was acknowledged by the petitioner and he had submitted his detailed explanations denying the allegations and therefore, the petitioner availed the opportunity of responding to the charges at the first instance and thereafter, he had not participated in the enquiry proceedings intentionally and thus, he has no locus to say that order of dismissal was issued merely based on an ex-parte enquiry.
- The learned Senior Counsel appearing on behalf of the respondents opined that an employee intentionally has not participated in the enquiry proceedings and appeared for personal hearing subsequently and submitted his objections / explanations, he cannot turn around and say that the enquiry was conducted ex-parte wholly and he was not aware of any of the proceedings. The respondents have taken all efforts to serve the charge memorandum and the subsequent enquiry proceedings in the very same address given by the writ petitioner in his letter dated 12.02.2012 and the said letter was also mentioned by the writ petitioner in his sworn affidavit filed along with the writ petition in paragraph 4. The very same letter reveals that the petitioner has given both his permanent address and present address and the said addresses were taken by the respondents for the purpose of communication of the proceedings issued in disciplinary matters. Thus, there were no procedural violations as far as the respondents / Bank is concerned and the petitioner intentionally had not participated in the enquiry proceedings and thus, he has no locus to question the ex-parte enquiry proceedings and further, the allegations of financial irregularities were proved based on the materials available on record. Thus, there is no infirmity as such in imposing the punishment of dismissal from service. The Appellate Authority has also considered the grounds raised by the writ petitioner elaborately and a speaking order was passed and thus, the writ petition is liable to be rejected.
- Considering the arguments as advanced by the learned counsel appearing on behalf of the writ petitioner and the learned Senior Counsel appearing on behalf of the respondents.
- Let us consider, whether the ex-parte enquiry conducted by the respondents vitiates the order of punishment or not?
- The factual matrix and the manner in which the efforts are taken by the respondents to serve the proceedings are to be considered for forming an opinion. Whether the charged official remained absent intentionally or the non-servicing of the enquiry proceedings would vitiate the order of punishment. In this context, let us consider the efforts and the manner through which the respondents / authorities acted to serve the enquiry proceedings to the writ petitioner.
- The charge memo dated 28.05.2013 sent to the writ petitioner was returned undelivered. The Disciplinary Authority appointed an Enquiry Officer Shri Rajagopal, Chief Manager, Vellore for conducting enquiry proceedings against the writ petitioner. The same was informed to the petitioner on 05.07.2013. Thus, the petitioner was aware of the fact that an Enquiry Officer was appointed by the Disciplinary Authority. The Enquiry Officer vide letters dated 10.08.2013, 22.08.2013 and 05.09.2013 adviced to attend the preliminary enquiry scheduled to be conducted on 22.08.2013, 05.09.2013 and 18.09.2013 at State Bank of India, Tirupattur Branch. However, the petitioner failed to attend the hearings on all the aforesaid dates. The letter dated 18.09.2013 along with the minutes of the meeting could not be served to the petitioner at Door No.3/121, Saibaba Nagar, Tirupattur on 18.09.2013 at 05.00 p.m. and again at 07.00 p.m. by the Chief Manager, Tirupattur Branch personally as the Door was locked. Mr.K.Udaya Kumar, Advocate and Notary, also accompanied the Chief Manager and endorsed the report to the effect that the Door at petitioner house address was locked. Similarly, Enquiry Officer, Rajagopal also tried to serve the letter dated 18.09.2013 to the petitioner personally, he went to the petitioner’s residence address at NO.623, 40thstreet, Phase II, Sathuvachari, Vellore – 9, along with the Advocate and Notary Public Sri Mohan Raju on 20.09.2013 at 02:30 p.m. and found that the petitioner is not residing in that address. Hence, the said letter along with the enclosures could not be handed over to the petitioner.
- Similarly, again the Enquiry Officer, Mr.Rajagopal also tried to serve the letter dated 04.10.2013 to the petitioner personally, he went to the petitioner’s residence address at Door No.3/1, Saibaba Nagar, Tirupattur, along with the Notary Public Advocate, K.Udayakumar at 04:45, 06:15 and 07:15 p.m. and found that the petitioner door is locked. Therefore, the letter and enclosures could not be served.
- Again one Mr.Rajan, Manager of respondent along with the Notary Public Advocate Mr.Mohanraj tried to serve the above letter dated 04.10.2013, but again the petitioner address at Door No.623, Sathuvachari, 4thStreet, Phase II, Vellore 9, at 05:10 p.m and found that the petitioner door is locked. Therefore, the letter and enclosures could not be served.
- As the petitioner could not be served with the communications relating to the enquiry proceedings, the disciplinary proceedings issued a detailed publication in one local newspaper and one National Newspaper dated 22.11.2013, offering the petitioner another opportunity clearly stating that if the petitioner fails to appear on the fixed date i.e., on 27.11.2013, the enquiry will be concluded ex-parte. However, in spite of the notice issued through paper publication, the petitioner failed to appear on the fixed date. The enquiry officer completed the enquiry proceedings.
- As the petitioner failed to attend the hearing on 22.08.2013, 05.09.2013,18.09.2013 and 04.10.2013, the enquiry was concluded and the prosecution brief submitted on behalf of the Management was forwarded along with the letter dated 21.10.2013 personally to the petitioner address at Door No.623, Sathuvachari, 4thStreet, Phase II, Vellore 9, along with the Advocate and Notary Public Mr.Mohan Raj at 04:00 p.m. and found that the petitioner is not residing in this address.
- In spite of the efforts taken by the respondents to serve the copy of the enquiry proceedings, they could not do so. Thus, the Enquiry Officer proceeded with the enquiry based on the materials available on record and submitted his final report on 17.12.2013 by examining the witnesses and by marking 109 exhibits on the side of the prosecution. Accepting the enquiry report, further proceedings were initiated by the Disciplinary Authority and thereafter by following the procedures, the final order in departmental disciplinary proceedings was issued imposing the penalty of dismissal from service. The appeal filed by the writ petitioner was rejected. However, the Appellate Authority provided a personal hearing in which the petitioner participated and placed his defence statements orally and in writing which were considered by the Appellate Authority elaborately while disposing of the appeal.
- The facts and circumstances and the manner through which a decision is taken by the competent authorities would reveal that the respondents have followed the procedures scrupulously and made all sincere attempts to serve the enquiry proceedings to the writ petitioner. The sequence of facts and the steps taken to serve the proceedings unambiguously portrays that the petitioner had not shown any interest to participate in the enquiry proceedings, despite the fact that he was very much aware of the initiation of the disciplinary proceedings against him, so also the charges made against him through letter dated 11.01.2012 issued by the Regional Manager. Thus, it is not the case where the petitioner was unaware of the disciplinary proceedings. He was very much aware of the allegations regarding financial irregularities and the loss caused to the respondents / Bank. He was aware of the fact regarding appointment of the Enquiry Officer. Thereafter, he evaded and not participated in the proceedings and several attempts taken by the respondent / Bank also went in vein and thus, this Court has no hesitation in forming an opinion that the petitioner had intentionally not participated in the enquiry proceedings and therefore, the petitioner is not entitled for any lenient view in this regard.
- The petitioner made an attempt to either prolong or protract the disciplinary proceedings or to escape from the clutches of disciplinary proceedings. This being the possible inference to be drawn, the Appellate Authority also rightly rejected the contention of the writ petitioner to remand the matter for the purpose of conducting de novo enquiry. The de novo enquiry can be ordered only if the charged official could able to establish that there was no intention on his part for his non-participation in the enquiry proceedings. Once the charged official intentionally avoided the disciplinary proceedings, then he has no locus to seek for a de novo enquiry or to provide any further opportunity.
- In this context, let us consider the principles settled by the Hon’ble Supreme Court of India in the case of Board of Directors, Himachal Pradesh Transport Corporation and Another Vs. K.C. Rahi reported in [(2008) 11 SCC 502], held as follows:
“In the instant case we have been taken through various documents and also from representation dated 19.10.1993 filed by the respondent himself it would clearly show that he knew that a departmental enquiry was initiated against him yet he chose not to participate in the enquiry proceedings at his own risk. In such event plea of principle of natural justice is deemed to have been waived and he is estopped from raising the question of non-compliance of principle of natural justice. In the representation submitted by him on 19.10.1993 the subject itself reads “DEPARTMENTAL ENQUIRES”. It is stated at the Bar that the respondent is a law graduate, therefore, he cannot take a plea of ignorance of law. Ignorance of law is of no excuse much less by a person who is a law graduate himself.”
- The Delhi High Court in the case of Sukhi Devi and Others Vs. The Delhi Vidyut Board and Others reported in [Manu/DE/0677/2000], held that “The respondents were supposed to send communication at the last known address. When no whereabouts of Petitioner were known and he was not responding to any of the communications sent to him and even left the last known address, the opinion of the disciplinary authority that he was satisfied that it was not reasonably practicable to give further opportunity to petitioner is valid and proper”. A perusal of the order shows that it is sent to petitioner at his local address at Delhi as well as his native place at UP. Therefore, as far as respondents are concerned they complied with the requirement of issuing and dispatching his dismissal order at the addresses known to the respondents and taking all possible steps in this respect. Therefore, there is deemed service of the dismissal order.
- The Madras High Court in the case of Madura Coats Ltd. Vs. Presiding Officer, Labour Court and Others reported in [(2001) 3 LLJ 1194], held that “The service of notice, in the present case has to be taken as a valid service as the petitioners were expected to reside in their place of residence and whenever they change their place of residence, even temporarily they are expected to intimate their present address so that the management could communicate the proceedings…..”, It may that proceedings may be ex-parte, but on that scope it cannot be said that the procedure adopted in violation of the principles of natural justice. The ex-parte procedure is also provided for and it is a valid procedure and such an ex-parte proceedings the management had been complied to resolve by the very conduct of the workman.
- In the present case on hand, the writ petitioner in his own affidavit filed along with the writ petition has stated that in response to the letter issued by the 1strespondent dated 04.01.2012, he had issued a letter dated 12.02.2012 and intimated his present address and the permanent address. The copy of the said letter enclosed, which would show that the permanent address and the present address of the writ petitioner. The efforts taken by the respondents also establishes that the authorities have communicated to the said two address and personally went to the addresses and made all attempts to serve the copies of the proceedings. Thus, for all purposes it is to be construed that the proceedings were served on the writ petitioner.
- The Constitutional Bench of the Hon’ble Supreme Court of India in the case of State Bank of Patiala Vs. S.K.Sharma reported in [(1996) 3 SCC 364], reiterated that “It would not be correct, in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a Rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B. Karunakar [(1993) 4 SCC 727] should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hearing (i.e., adequate or a full hearing) or of violation of a procedural Rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as aforesaid.”
- Considering the principles laid down in the cases cited supra, this Court has no hesitation in arriving a conclusion that no prejudice was caused to the writ petitioner as he was very much aware of the nature of the charges at the first instance and he submitted his explanations to the charges pursuant to the letter dated 11.01.2012 issued by the Regional Manager and thereafter, remained absent in the enquiry proceedings. Thus, the intention of the writ petitioner not to participate in the enquiry proceedings is explicit.
- The Court in the exercise of judicial review must restrict its review to determine whether:
(i) The rules of natural justice have been complied with
(ii) The finding of misconduct is based on some evidence
(iii) The statutory rules governing the conduct of the disciplinary enquiry have been observed
(iv) Whether the findings of the disciplinary authority suffer from perversity
(v) The penalty is disproportionate to the proven misconduct.
- The rules of natural justice have been followed in the present case as the procedures contemplated were adhered to by the competent authority. At the first instance, the letter was issued containing the allegations on 11.01.2012. The petitioner submitted his explanations and thereafter, a charge memorandum was issued in proceedings dated 28.05.2013 and subsequently, an Enquiry Officer was appointed, who in turn had taken all efforts along with the competent authorities to serve the proceedings enabling the writ petitioner to defend his case. Despite their efforts, the petitioner intentionally remained absent and thereafter, the enquiry proceedings were proceeded with and the report was submitted, which was accepted by the Disciplinary Authority and a final order was passed imposing penalty of dismissal from service. Thus, there is no violation of principles of natural justice.
- The findings of the misconduct is undoubtedly based on the documents and evidences and based on the statement of witnesses recorded by the Enquiry Officer during the course of enquiry. Thus, the Enquiry Officer considered 109 documents filed by the prosecution side and examined the witnesses listed on and thereafter, formed an opinion and submitted his final report. Thus, the findings of the misconduct are based on the evidences and documents. The Statutory Rules governing the conduct of the disciplinary enquiry also scrupulously followed and there is no perversity or violation. The findings consequently are based on the documents and evidences. The only consideration left out is the proportionality of the punishment. In this regard, the allegation proved against the writ petitioner is a financial irregularities to the tune of Rs.5,51,000/-. The modus through which such offences were committed was also grave in nature, affecting the institutional integrity of the respondents / Bank and thus, this Court is of an opinion that the punishment of dismissal from service cannot be construed as disproportionate to the gravity of the proved charges and for all these reasons, this Court is unable to find any acceptable reason for the purpose of interfering with the orders impugned passed by the Disciplinary Authority and the Appellate Authority.
- Accordingly, the Writ Petition fails and stands dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
25.08.2022
Jeni
Index : Yes
Speaking order : Yes
To
1.The Deputy General Manager (B&O) (Zone-1)
and Disciplinary Authority,
State Bank of India,
Disciplinary Proceedings Cell
Administrative Office,
Chennai Zone, Chennai Network-1
No.86, Rajaji Salai,
Chennai – 600 001.
2.The General Manager (Network-2)
and Appointing Authority
State Bank of India,
Circle Top House,
Aparna Complex,
16, College Lane, Nungambakkam,
Chennai – 600 006.
3.The Chief General Manager /
Appellate Authority,
State Bank of India,
HR Department,
Local Head Office,
Circle Top House,
Post Box No. 737,
16, College Lane, Nungambakkam,
Chennai – 600 006.
S.M. SUBRAMANIAM, J.
Jeni
W.P.No.21872 of 2014
25.08.2022
