Indra Mohan Arora vs Bank of Baroda and Others

Barin Ghosh, C.J.—On 3.12.2001, a show cause was issued to the Petitioner asking him to show cause, in view of the allegations made in the show cause, as to why a disciplinary proceeding shall not be initiated against the Petitioner. Petitioner was asked to react on the show cause within 15 days from receipt thereof. This show cause was sent under Registered Post with Acknowledgment Due and also Under Certificate of Posting. Petitioner does not dispute that the said show cause was received by him at his residence at Nainital. Petitioner is also not disputing that the said show cause was tendered to him through post. It is the contention of the Petitioner that before expiry of15 days from the date of receipt of the said show cause, a chargesheet was issued, which is not permissible under the Rules. The fact remains that the chargesheet was issued on 12th December, 2001. According to Petitioner, that is in violation of Bank of Baroda Officer, Employees'' (Discipline and Appeal) Regulations, 1976.

We have, however, not been shown any provision contained in the said Regulation which suggests that before a chargesheet is issued, a show cause is required to be given and only after expiry of the time to react to the said show cause, the chargesheet can be issued. The said contention of the Petitioner, therefore, is of no effect.

It is next contended that the chargesheet was not sent to the Petitioner at his place of posting at Jalalabad branch. It was contended that the certificate pertaining to Under Certificate of Posting and the receipt for sending by Registered Post, as annexed to the counter affidavit, would show that the chargesheet was sent to the Petitioner at the branch where the Petitioner was working prior to his transfer to Jalalabad branch. The certificate pertaining to under Certificate of Posting and the receipt pertaining to Registered Post, copies whereof have been annexed to the counter affidavit, suggest that the chargesheet was sent to the Petitioner at Mallital branch of the bank situated at Nainital on 12.12.2001 and at the same time, the 4th charge contained in the chargesheet clearly indicates that the Petitioner joined his transferred post at Jalalabad branch, Shahjahanpur region on 23.6.2001 and remained there till 3.7.2001. It was contended by the Petitioner that there is no evidence to suggest that the chargesheet was sent to his residence at Mallital, Nainital. There appears to be substance in the said contention. It was contended by the Petitioner that in terms of Regulation 20 of the said Regulations, it was obligatory for the disciplinary authority to send the chargesheet to the last known address of the Petitioner. It was contended that the last known address of the Petitioner would have been his residence at Mallital, Nainital or the branch where he was transferred, namely, Jalalabad branch, Shahjahanpur region. It was contended that there is no evidence that the chargesheet was, in fact, sent to either of the said last known addresses of the Petitioner. As aforesaid, there is substance in the contention. These submissions were made in view of the provisions contained in sub-Regulation (19) of Regulation 6 of the said Regulations, where it has been provided that if the delinquent does not submit his defence on or before the date specified or does not appear in person or through assisting officer or otherwise fails or refuses to comply with any of the provisions of these Regulations, the enquiry may proceed ex parte. It was contended that only if the Petitioner was served with the chargesheet, he could submit his defence thereto and since he was not served with the chargesheet, no question arose for the Petitioner to submit his defence and, accordingly, the enquiry could not proceed ex parte. It was stated that since the enquiry proceeded ex parte, the entire enquiry is vitiated.

Opposing the above submissions, the learned Counsel for the Respondent employer has brought to our notice the advertisements published in ''Amar Ujala'', one from Dehradun and the other from Bareilly respectively on 2.11.2002 and 3.11.2002, whereby the Enquiry Officer gave a public notice requiring the Petitioner''s attendance in the enquiry proceedings. In the counter affidavit filed, the Respondent employer had stated about the publication of those advertisements. The learned Counsel for the Petitioner submitted that publication of a notice by way of an advertisement in a newspaper can only be treated as a substitute to the original notice and right to issue a substituted notice accrues only when service of the notice has been effected by observing the statutory mode of effecting service of notice. We do not accept this contention. In the event, statutory service has already been effected, then there is no question of effecting a substituted service. Only when statutory service could not be effected and there is no possibility of effecting such service, then only recourse can be had to substituted service. In the instant case, however, it was not a question of service, substituted or otherwise, of the chargesheet. The advertisement notified the Petitioner that an enquiry in respect of a chargesheet dated 12.12.2001 issued to the Petitioner is being enquired by the person who published the said advertisement. Despite that, the Petitioner did not respond to the person who published the said advertisement. Furthermore, as it appears, the Petitioner submitted an application seeking voluntary retirement on 14.2.2001. He was thereafter transferred to Jalalabad branch within Shahjahanpur region, where he joined on 23.6.2001 and remained there till 3.7.2001 and thereafter obtained casual leave from 4.7.2001 to 7.7.2001 and subsequent thereto vanished in the thin air.

There is nothing on record wherefrom it would be evidenced that after 7.7.2001, the Petitioner had shown his face in any of the branch offices or at any of the regional offices or at the head office of the employer bank, though he purported to ask through correspondence for leave on medical ground.

Being satisfied that the Petitioner was made to know by public notifications, put up by way of advertisements in a newspaper, on two consecutive dates, circulated in the region, where the Petitioner was likely to remain during the relevant time, that an enquiry into the charges contained in the chargesheet dated 12.12.2001 is proceeding, we are not inclined to accept the contention of the Petitioner that in the facts and circumstances of the case, the enquiry proceeding could not be conducted ex parte or that the enquiry proceeding is vitiated because the same was conducted ex parte.

Clause (19) of Regulation 6 of the said Regulations permits ex parte enquiry also when the delinquent does not appear in person or through the assisting officer. In the notifications, referred to above, the Petitioner was asked to appear at the enquiry on 8th November, 2002 at 11 am at Bank of Baroda, Regional Office, 129D, Civil Lines, Bareilly to avail of an opportunity of hearing. Petitioner refused to appear in person or through assisting officer and, accordingly, the enquiry could, as it did, proceed ex parte.

No other ground having been urged by the learned Counsel in support of the writ petition, we conclude thus and dismiss the writ petition. The newspapers, referred to above, as produced, are returned to the Counsel for the Respondent employer.