Kalpataru Senapati vs Odisha Gramya Bank and another

This writ petition involves challenge to the orders involving Annexures-2, 5, 7 and 9 and further for a direction to the opposite parties to

reinstate the petitioner in service and to treat the period of his suspension and the entire period since when the petitioner went out of service till the

date of his resumption in duty on reinstatement as on duty with all consequential reliefs.

Factual narratives involving the case as available from the pleadings is; on or about 17.09.1996 petitioner joined Sankhatras Branch of Cuttack

Gramya Bank as a Field Officer while one Sri D.P. Dora was working as permanent Branch Manager and one Sri S.C. Mishra as Cashier-cum-

clerk of the said Branch. During 17.09.1996 to 17.08.1998 Sri Dora continued as Branch Manager. There were regular detail inspections and

snap inspections during the above period. In the month of August, 1998 Sri Dora was transferred and in his place one Sri B.D. Parida was posted

as Branch Manager, but for some reason or other, Sri Parida''s joining was delayed and in the meanwhile the petitioner was kept temporarily in-

charge of the Branch. On 09.02.1999, the petitioner''s wife died, while he was on leave, one Amiya Das, Field Officer, Balikuda Chhak Branch

remained in-charge of Sankhatras Branch. In the month of March, 1999, as it as a closing month, on the request of the Area Manager, the

petitioner was asked to perform closing work. It was, however, the entire accounts and closing work were completed by the Cashier-cum-Clerk,

Sri S.C. Mishra and one deputed C/C Maheswar Moharana under the supervision of the petitioner. While continuing on leave the petitioner also

prayed for transfer on account of his unable to perform duties both as Manager and Field Officer in the said Branch for the sad demise of his wife.

Sri B.D. Parida, who was transferred and being appointed as Branch Manager, failed to join for about one and half years and thus compelling the

petitioner to continue temporarily in-charge Branch Manager till 05.03.2000. On 11.03.2000 Sri S.C. Mishra was relieved and transferred, in the

meantime, the petitioner remained on leave on account of ""Sradha ceremony"" of his father and on the very next day the petitioner was informed

over telephone about the fraud taken place in the Bank and that Sri S.C. Mishra, the Cashier-cum-Clerk got absconded. A F.I.R. was lodged on

16.07.2000 at the Sadar Police Station, Cuttack by Sri B.D. Parida on the alleged fraud in the accounts and misappropriation committed in the

Bank. The Head Office in the process suspended the petitioner and Sri S.C. Mishra on 17.07.2000. It is further pleaded that while the petitioner

was continuing under suspension, a charge-sheet was framed involving a Vigilance case and communicated to the petitioner on 13.03.2001. It

appears that the charge-sheet was framed by the Vigilance Officer, Sri B.S. Nanda appearing to be the uncle of Sri S.C. Mishra. Petitioner

requested for supply of documents for submitting his show-cause, supply of the documents being refused, the petitioner under compulsion

submitted a showcause on 08.06.2001. It is also alleged that the petitioner was not even allowed to verify the ledger and books of accounts

despite the repeated reminders and representations dated 27.03.2001 and 03.05.2001. Establishment appointed one N. Rath as the Enquiring

Officer and one A.K. Hota as Presenting Officer. In the meantime, Sri N. Rath was taken out and one Sri P.C. Pradhan was appointed as the

Enquiring Officer. A couple months after, the Presenting Officer was also replaced by one Sri B.K. Biswal. There is also subsequent change of the

Presenting Officer Sri Prakash Mishra. On 13.02.2003 there is again a change of the Enquiring Officer by appointing one Sri S.K. Mohanty. Upon

completion of the enquiry, the enquiry report was submitted on 24.12.2003. Based on the recommendations in the enquiry, the disciplinary

authority passed an order of punishment of dismissal against the petitioner on 06.02.2004 appearing at Annexure-7. Petitioner preferred appeal

and the appeal was also dismissed vide the order of dismissal appearing at Annexure-9 resulting the filing of the present writ petition.

Assailing the notice to show-cause, enquiry report, the order of dismissal and the order in appeal, Shri Ray, learned senior counsel appearing for

the petitioner submitted that the charges involving the petitioner have been framed under nonexistence Service Regulation which got natural death in

the year 2000 for being repealed and substituted by Cuttack Gramya Bank Officers Service Regulation, 2000 (for short the ""Regulation, 2000"")

came into force with effect from 26.02.2001. Shri Ray, learned senior counsel vehemently urged that for the order of dismissal since involved

initiation of a proceeding under a non-existing Service Regulation, not only the enquiry proceeding but also the order of dismissal as well as the

appellate order, all stand vitiated. Shri Ray, learned senior counsel appearing for the petitioner further advancing his argument also contended that

the enquiry proceeding also vitiated for violation of Regulation 38 of the Regulation, 2000 as the enquiry was concluded without affording

opportunity of receiving documents as well as perusal of documents mooted during course of enquiry. It is next contended by Shri Ray, the learned

senior counsel for the petitioner that even though the F.I.R. involved the petitioner and Sri S.C. Mishra, but the charge-sheet was only submitted

against said S.C. Mishra, thereby exonerating the petitioner from the charges and further documents involving the criminal case even though were

called for by the petitioner during the enquiry, there is no supply of any such document, thereby denying the delinquent/petitioner to properly

defend his case. There is also no witness examined on behalf of the establishment except the P.O. which also vitiates the enquiry. Referring to a

decision of the Hon''ble Apex Court in the case of Qudrat Ullah vrs. Municipal Board, Bareilly, reported in AIR 1974 S.C. 396, dealing with the

undertaking of proceeding under non-existing statutes, Shri Ray, learned senior counsel appearing for the petitioner contended that the decision

referred to hereinabove has full support to the petitioner''s case. Further, referring to a decision of the Hon''ble Apex Court in the case of State of

Madhya Pradesh vrs. Chintaman Sadashiva Waishampayan, reported in AIR 1961 S.C. 1623 and another decision of this Court in the case of

Duryodhan Lenka vrs. Chairman of Board of Directors, Kalinga Gramya Bank, Cuttack and others, reported in 108 (2009) CLT 304 on the

ground of violation of natural justice, particularly for non-supply of relevant records and not permitting the delinquent to have the perusal of the

relevant documents during the Enquiry proceeding, Shri Ray, learned senior counsel appearing for the petitioner contended that the enquiry

proceeding also otherwise vitiates and for the illegal enquiry proceeding all subsequent orders like the order of dismissal as well as the appellate

order also fails. Shri Ray, learned senior counsel appearing for the petitioner in the above circumstances contended that this Court should interfere

in the impugned orders, set-aside the same and allow the writ petition by giving appropriate relief to the petitioner.

In his opposition, Shri Manoj Kumar Mishra, learned senior counsel appearing for the contesting opposite parties referring to the preliminary

counter affidavit of the opposite parties while admitting that the charges were framed under a non-existing law, but under the premises of

continuance of same provision in the new Rule, following the procedures of the existing statute relevant for the employees of the establishment and

for the new Rule came into force during the course of initiation of proceeding creating some bonafide confusion, Shri Mishra, learned senior

counsel contended that there is no procedural irregularities or illegalities requiring any judicial review of such matters. Referring to the case record,

Shri Mishra, learned senior counsel appearing for the contesting opposite parties also contended that the record of the proceeding reveals that

even though the charges were framed under Cuttack Gramya Bank (Staff) Service Regulation, 1980 (for short the ""Regulation, 1980""), but the

proceeding has been concluded following the Regulation, 2000 and the mentioning of the Regulation, 1980 in the show-cause or charge-sheet is an

inadvertent as well as a bonafide mistake and the enquiry enquiry proceeding should be treated as a proceeding under the Regulation, 2000. To

establish their case, Shri Mishra, learned senior counsel appearing for the contesting opposite parties also took this Court to certain provisions in

the Regulation, 1980 and Regulation, 2000. Further, for the petitioner''s preferring an appeal under Regulation 48 of the Regulation, 2000, Shri

Mishra, learned senior counsel appearing for the contesting opposite parties contended that the petitioner being conscious of the proceeding

initiated following the Regulation, 2000 participated although, having not raised this technical defect at any time and consciously preferring the

appeal under the provisions of the new Regulation, is estopped from taking disadvantage of an inadvertent and bonafide mentioning of the non-

existing Regulation in the Enquiry proceeding. Further, taking this Court to the charges framed involving the petitioner, Shri Mishra, learned senior

counsel appearing for the contesting opposite parties also alleged that looking to the gravity in the offence involved involving financial irregularity,

forgery, fraud which amounts to serious acts of misconduct being established contended that this Court should refrain itself from interfering in such

matters as protection of such person will result in bad precedence particularly involving the financial institution. Shri Mishra, learned senior counsel

taking the existence of the new Regulation by the time of initiation of Disciplinary proceeding contended that the proceeding initiated involving the

petitioner will be deemed to have been initiated under the New Regulation and petitioner is estopped from taking any such plea. Further, for the

provision contained at Regulation 73(2) of the Regulation, 2000, it also becomes clear that proceeding initiated following the provision of

Regulation, 1980 shall have to be deemed to be proceeding under Regulation, 2000. It is also contended by Shri Mishra, learned senior counsel

that there being no difference in procedure with regard to initiation of disciplinary proceeding for major misconduct in both the Service Regulations

1980 and 2000, there is also otherwise no prejudice to the petitioner in the matter of conducting of the Disciplinary proceeding. It is under the

circumstances and on the premises of specific pleading and no allegation of prejudice, Shri Mishra, learned senior counsel contended that there is

no scope for interfering in the Disciplinary proceeding matters on account of non-supply of any material document or not allowing perusal of any

document and that for the settled position of law restricting the power of Court and restricting the power of judicial review of the High Courts. Shri

Mishra, learned senior counsel also relied on decisions, such as, in the cases of State Bank of Patiala and others vrs. S.K. Sharma, reported in

(1996) 3 SCC 364, Bank of India & Others vrs. T. Jogram, reported in (2007) 7 SCC 236, Union of India & Others vrs. Alok Kumar, reported

in (2010) 5 SCC 349, Sarva Uttar Pradesh Gramin Bank vrs. Manoj Kumar Sinha, reported in (2010) 3 SCC 556, S.B.I. and Others vrs. Bidyut

Kumar Mitra & Others, reported in (2011) 2 SCC 316, Union of India and others vrs. G. Annadurai, reported in (2009) 13 SCC 469, Managing

Director, ECIL, Hyderabad, etc. vrs. B. Karanakar etc., reported in (1993) 4 SCC 727, Hiran Mayee Bhattacharya vrs. Secretary, S.M. School

for Girls & others, reported in (2002) 10 SCC 293, State Bank of India and another vrs. Bela Baghchi & Others, reported in AIR 2005 SC

3272, State Bank of India vrs. Ramesh Dinakar Pande, reported in 2006 (7) SCC 212, Chairman-cum-M.D., TNCS Corporation Ltd. and

others vrs. K. Meerabai, reported in AIR 2006 SC 3522, Regional Manager, DPRTC vrs. Moti Lal, reported in AIR 2003 SC 1462 and B.C.

Chaturbedi vrs. Union of India and others, reported in 1995 (6) SCC 749, Shri Mishra, learned senior counsel appearing for the contesting

opposite parties submitted that there is no infirmity in the impugned order and as the matter involves an inadvertent and bonafide mentioning of

nonexiting Regulation leaving no scope for this Court to interfere in such matters otherwise.

Considering the facts involved herein, this Court frames the following questions for adjudication of the issues at hand :-

(i) Whether the Disciplinary proceeding suffers for being initiated under non-existing Regulation ?

(ii) Whether the Disciplinary proceeding suffers on account of non-compliance of natural justice inasmuch as for non-supply of vital

documents and not allowing the petitioner to at least have the chance of scrutinizing the documents relied upon by the employer ?

Considering the rival contentions of the parties, this Court firstly moving to the objection on maintainability of the proceeding as raised by Shri

Ray, learned senior counsel appearing for the petitioner particularly dealing with the Issue No.1 framed hereinabove, this Court finds, on perusal of

the F.I.R. appearing at Annexure-1 it discloses involvement of one Sri S.C. Mishra and not the petitioner. The pleadings reveal charge-sheet

involving the F.I.R. vide Annexure-1 is a pointer to the involvement of said S.C. Mishra and non-involvement of the present petitioner which has

no denial by the contesting opposite parties. The article of charges involving the disciplinary proceeding against the petitioner appearing at page-26

of the brief reads as follows :-

Shri Kalpataru Senapati, while discharging his duties as Manager-in-charge of Sankhatras Branch did not follow the systems and

procedures of the Bank created a chaotic condition in the branch. The special inspection team consisting of Sri A.P. Rao and Sri

M.K. Prusty, Inspecting Officers inspected the Branch functioning from 11.03.2000 to 18.03.2000 and during this period they

observed the following lapses on the part of Mr. Senapati :

(a) The daily vouchers were not released since 01.02.2000.

(b) General Ledger was not written after 12.02.2000.

(c) General Ledger balance was not written after 12.02.2000.

(d) Supplementary and Cash Book were not written after 25.02.2000.

(e) Interest calculations in SB a/cs for the half year ended March 2000 was not completed and the interest was not posted in the

ledger till 10.03.2000.

(f) Balancing of Books and accounts was in arrear. No attempt was made to update the same nor balancing of books, particularly SB

and Loan head was not being done for the current period.

(g) Following books were not maintained:

i. Scroll Book.

ii. Register for Cash requisition.

iii. Voucher register.

iv. Overdue Time Deposit Register.

v. Limit Sanctioned Register.

vi. Time barred loan document Register.

vii. Loan security Register.

viii. Recovery Register.

ix. Statement Register.

x. Security & Printing register.

xi. Movement register.

xii. Movement register.

xiii. Suit filed Register.

xiv. Loan Pass Book issued Register.

xv. Standing Instruction register.

xvi. Loan Notice issue Register.

xvii. Letter Inward Register.

xviii. Title deed Register.

(h) Cash-in-hand was not posted in General Ledger since 23.11.98.

(i) Salary of the sub staff was kept in sundry Creditors a/c and Sundry Creditors was not tallying with General Ledger.

(j) GCR was not realized from SB a/cs/RD a/cs where ever applicable.

The above omission and commissions were made by Shri Senapati with ulterior motive and malafied intention to defraud the Bank.

By creating such chaos in the Branch he in connivance with the Cashier-cum- Clerk of the branch, misappropriated amounts which

are detailed hereunder. Shri Senapati knowingly created the above type of chaotic condition which are detrimental to the interest of

the bank and in conflict with instructions of HO regarding systems and procedure. He is therefore guilty of misconduct in terms of

Regulation 19 and 30(1) of Cuttack Gramya Bank Staff Regulation, 1980 for which he is charged.

In 64 SB a/cs different amounts on different dates totaling to Rs.17,37,200/- as per Annexure-I was received at Sankhatras

Branch. Shri Kalpataru Senapati in connivance with the receiving Cashier misappropriated the amounts after issue of counterfoils of

pay-in-slips and making entries in the respective Pass Books. Shri Senapati did not preserve the pay-in-slip (Bank''s portion) nor got

the amounts entered in Bank''s Books viz. Cash receipt Book, Supplementary, Ledger folio etc. Thus he did not serve the Bank

honestly and faithfully and therefore he is guilty of misconduct in terms of Regulation 19 and 30(I) of Cuttack Gramya Bank Staff

Regulation 1980 for which he is hereby charged.

In 29 SB a/cs different amounts on different dates totaling to Rs.8,21,875/- as per Annexure-II was received at Sankhatras

Branch. Shri Senapati, in connivance with the receiving Cashier, misappropriated the amounts after issue of counterfoils of respective

pay-in-slips to the depositors. Shri Senapati did not arrange to preserve the pay-inslip nor got the amounts entered in Banks Books.

Thus he did not function honestly and faithfully and therefore he is charged for misconduct in terms of Regulation 19 and 30(1) of

Cuttack Gramya Bank Staff Regulation, 1980.

Different amounts on different dates in 11 nos. of SB a/cs totaling to Rs.2,25,500/- was received at Sankhatras Branch as per

Annex-III in connivance with the receiving Cashier Shri Senapati misappropriated the amounts after entry in respective Pass Books.

Shri Senapati did not preserve the respective pay-in-slips (Bank''s portion) nor got the amounts entered in any of the Bank''s Books.

Thus, he did not function honestly and faithfully and therefore he is charged for misconduct in terms of Regulation 19 and 30(1) of

Cuttack Gramya Bank Staff Regulation, 1980.

Shri Senapati allowed unauthorisedly posting of higher amounts of interest in 17 nos. of SB Pass Books totaling to Rs.61,621/- as

per details in Annexure-IV. Thus Shri Senapati displayed indolence and therefore charged for misconduct in terms of Regulation

30(1) of Cuttack Gramya Bank Staff Regulation, 1980.

In 19 nos. of SB a/cs Shri Senapati passed withdrawal slips of different dates and different amounts totaling to Rs.2,46,280/- for

payment as per details in Annexure-V. The account-holders have denied having receiving the amounts. Shri Senapati in connivance

with the paying cashier, did not function honestly and faithfully and misappropriated the amounts. He is therefore charged in terms of

Regulation 19 and 30(1) of Cuttack Gramya Bank Staff Regulation, 1980.

Shri Senapati did not exercise proper control and supervised and unauthorisedly got posted different amounts of withdrawals on

different dates in 14 nos. of SB Pass Books totaling to Rs.2,40,100/- although money was actually not paid from the Bank. This act

on his part is unauthorized and wrongful. Therefore, Shri Senapati is hereby charged for misconduct in terms of Regulation 19 and

30(1) of Cuttack Gramya Bank Staff Regulation, 1980.

Sri Kalpataru Senapati credited Rs.12,300/- (Twelve thousand three hundred only) on 28.06.2000 in SB a/c no.4521 of Sri

Rama Chandra Mallick without receipt of any amount on that day. He also passed one withdrawal slip dated 30.06.2000 in this

account with forged signature. Thus Sri Senapati maligned the faith and confidence reposed on him and defrauded the bank and

misappropriated the amount. Therefore, Sri Senapati is guilty of misconduct in terms of Regulation 19 and 30(1) of Cuttack Gramya

Bank Staff Regulation, 1980.

Shri Senapati passed one withdrawal slip dated 15.01.2000 for Rs.11,000/- in SB a/c. no.2292 of Sri Nageswar Rao. The

fingerprint on the withdrawal slip was of a different person than the account holder and the same was unidentified. He passed the

withdrawal slip in order to defraud the Bank and misappropriated the amount. He is guilty of misconduct in terms of Regulation 19

and 30(1) of Cuttack Gramya Bank Staff Regulation, 1980.

Shri Senapati passed one withdrawal slip dated 17.04.2000 for Rs.19,000/- with forged signature of the account holder, Shri

Manoranjan Behera in his SB a/c. no.3023 in order to defraud the bank and misappropriated the amount. Thus Shri Senapati did not

function honestly and guilty of misconduct in terms of Regulation 19 and 30(1) of Cuttack Gramya Bank Staff Regulation, 1980.

Shri Senapati passed one withdrawal slip dated 28.09.98 for Rs.9,500/- with forged signature in SB a/c no.2173 of one Situ

Mallick in order to defraud the bank and misappropriated the amount. Thus he did not function honestly and faithfully. He is guilty of

misconduct in terms of Regulation 19 and 30(1) of Cuttack Gramya Bank Staff Regulation, 1980.

Shri Senapati passed one withdrawal slip dated 25.04.2000 for Rs.4,000/- in SB a/c no.3436 of one Sri Prasanta Kumar Nayak

on which signature of account holder was forged. Shri Senapati did so in order to defraud the bank and misappropriated the amount.

Thus he did not function honestly and faithfully. He is guilty of misconduct in terms of Regulation 19 and 30(1) of Cuttack Gramya

Bank Staff Regulation, 1980.

Shri Senapati allowed payment of withdrawal slip dated 28.05.99 for Rs.30,000/- in SB a/c. no.1408 of one Mr. Prakash

Kumar Pradhan. The withdrawal slip does not contain ""Pay Cash"" instruction, nor signature was verified. The ""Cash paid"" seal has

not been fixed on the withdrawal slip. The withdrawal amount has not been posted in the ledger account. Shri Senapati, however, has

signed the Cashier''s Summary which confirms the payment of Rs.30,000/- on 28.05.99. Thus, Shri Senapati grossly neglected in his

duty and due to omissions on his part Bank is likely to incur loss to the extent of overdrawal in the account, if any, which may be

detected in course of balancing of books and interest attributable thereagainst. Thus Shri Senapati is guilty of misconduct in terms of

Regulation 19 and 30(1) of Cuttack Gramya Bank Staff Regulation, 1980.

In gross abuse of position Shri Senapati withdrew Rs.2,000/- on 27.03.99 from his SB a/c no.3354 with Sankhatras Branch

without submitting any withdrawal slip and without posting the debit entry in his SB a/c which resulted in inflated balance in his

account and consequent over drawal in his account to the extent of Rs.2,000/-. Thus he maligned the faith and confidence reposed on

him as Manager-in-charge of the branch and therefore guilty of misconduct in terms of Regulation 19 and 30(1) of Cuttack Gramya

Bank Staff Regulation, 1980 for which he is hereby charged.

In gross abuse of position Shri Senapati gave fictious credit of Rs.600/- in his own SB a/c. no.3354 and withdrew the amountin

course of time resulting in overdrawal of Rs.600/- from his account. Thus, Shri Senapati did not function honestly and faithfully for

which he is found guilty of misconduct in terms of Regulation 19 and 30(1) of Cuttack Gramya Bank Staff Regulation, 1980.

Shri Senapati credited Rs.900/- each on 11.06.99 and 01.09.99 in the SB a/c no.1287 of Sri N.C. Pati, landlord of Sankhatras

Branch without any voucher. On 02.08.99 another credit entry of Rs.900/- and withdrawal of Rs.900/- in the said account were not

posted in the account. On 30.09.99 Shri Senapati made a fictitious credit Rs.2,700/- to the above said SB a/c. Thus, Sri Senapati

extended excess credit to the account which consequently resulted in overdrawal of Rs.1091.70p in the account. Shri Senapati is

therefore guilty of indolence and dishonesty which are misconduct in terms of Regulation 19 and 30(1) of Cuttack Gramya Bank

Regulation, 1980 for which he is hereby charged.

Charges from Item nos.1 to 16 clearly reveal that the petitioner has been charge-sheeted for guilty of misconduct in terms of

Regulations 19 and 30(1) of the Regulation, 1980. Entire reading of the charge-sheet leaves no doubt that the petitioner has been

charge-sheeted under the provisions of Regulation, 1980. For better appreciation of the above, this Court takes note of the provision

at Regulation 19 and Regulation 30(1) of the Regulation, 1980 which are quoted as herein below:-

Officer and employee to promote the bank''s interest - Every Officer or employee shall serve the Bank honestly and faithfully,

and shall use his utmost endeavours to promote the interests of the Bank and shall show courtesy and attention in all transactions and

intercourse with the officers of Government and the Bank''s constituents.

30(1). Penalty - Without prejudice to the provisions of other regulations, an officer or employee who commits a breach of these

regulations or who displays negligence, inefficiency or indolence, or who knowingly does anything detrimental to the interests of the

Bank or in conflict with its instructions or who commits a breach of discipline or is guilty of any other act of misconduct, shall be liable

to the following penalties -

(a) reprimand;

(b) delay or stoppage of increments or promotion;

(c) degradation to a lower post or grade or to a lower stage in his incremental scale;

(d) recovery from pay of the whole or part of any pecuniary loss caused to the Bank by the officer or employee;

(e) Removal from service which shall not be a disqualification for future employment.

(f) dismissal.

It is at this stage, considering the contentions of the opposite parties that the proceeding can be declared to be a proceeding under the

Regulation, 2000 for the provision contained at Regulation 73(2) of Regulation, 2000, this Court finds Regulation 73(2) of

Regulation, 2000 reads as hereunder :-

Repeal and Savings

(1) ........................

(2) Notwithstanding such repeal, any order made or action taken under the provisions so repealed shall be deemed to have been

made or taken under the provisions of these regulations.

This Court also takes note of Regulation 19 and Regulation 38 of Regulation, 2000 to have better appreciation of the matter and the

provision at Regulation 19 and 38 of the Regulation, 2000 reads as hereunder :-

Obligation to Promote the Bank''s Interest - Every officer or employee shall serve the Bank honestly and faithfully, and shall use

his utmost endeavour to promote the interests of the Bank and shall show courtesy and attention in all transactions and dealings with

officers of Government, the Bank''s constituents and customers.

Penalties - Without prejudice to foregoing Regulations of this Chapter an officer or employee who commits a breach of these

Regulations or who displays negligence, inefficiency or indolence or who commits acts detrimental to the interests of the Bank or in

conflict with its instructions, or who commits a breach of discipline or is guilty of any other acts of misconduct, shall be liable for any

one or more penalties as prescribed hereinafter.

Reading of both the provisions, this Court does not find any basic difference therein. Reading of the brief this Court finds, the

petitioner was placed under suspension on 17.07.2000, contemplation of preliminary enquiry was charge-sheeted on 17.07.2000.

The Regulation, 2000 though is of the year 2000, but in fact came into effect on 26.02.2001. For provision at Regulation 73(2)

protecting such action taken in the existence of the Regulation, 1980, looking to the continuance of the provision at Regulation 19 also

in the Regulation, 2000 and further looking to the allegations involving the petitioner developing up to framing of charges, this Court

finds indication of drawing of the proceeding under Regulation, 1980 is just a mere inadvertent mentioning further in any event the

proceeding also gets protected under the provisions at Regulation 73(2) of the Regulation, 2000. It has not materially affected the

enquiry further. There is also no allegation that there is any violation of any of the provision in the Regulation, 2000 except making an

objection on the maintainability of the Disciplinary proceeding on account of being drawn up under the non-existing Regulation. From

the conduct of the petitioner upto the stage of Appeal, it all through appears petitioner never remained in impression that the

proceeding is not covered by the Regulation, 2000. There was never any allegation during the Enquiry proceeding. It is on the other

hand, it appears that the charges involving the petitioner were communicated to the petitioner vide Annexure-2 on 13.03.2001, the

Regulation, 2000 was brought into effect on 26.02.2001 by way of publication in Gazette on 26.02.2001 there remain no doubt that

the indication of Regulation, 1980 in the charge-sheet dated 13.03.2001 might be as a result of bonafide impression again for the

protection under Regulation 73(2) of the Regulation, 2000 all proceedings initiated by this date continues. As such, this Court finds,

the proceeding involving the petitioner is very much maintainable. Besides entire reading of the show-cause in response to

communication by the petitioner at Annexure-3 to the writ petition as well as the pleadings involving the writ petitioner, there is

absolutely no pleading on the score of maintainability of the Disciplinary proceeding and such a plea is only taken at the time of

hearing. For the observations and reasons indicated hereinabove, this Court finds the Issue No.(i) framed by this Court fails and

answered against the petitioner.

Now, coming to answer on Issue No.(ii) as to ""Whether the Disciplinary proceeding suffers on account of noncompliance of natural justice

inasmuch as for non-supply of vital documents and not allowing the petitioner to at least have the chance of scrutinizing the documents relied upon

by the employer ?

From the fact narrations, this Court finds, petitioner is absolutely silent on aspect of non-compliance of natural justice in his show-

cause vide Annexure-3. But, however, while considering the allegations made by Shri Ray, learned senior counsel particularly on the

aspect of violation of natural justice, scan of the record this Court finds the petitioner has filed Memorandum of Appeal to the

Appellate authority vide Annexure-6 which bears the following infirmities at the instance of the petitioner :-

B. INFIRMITIES IN THE CONDUCT OF THE INQUIRY AND THE ENQUIRY REPORT.

The procedure of inquiry outlined above fulfil the principles of ""reasonable opportunity"" and ""natural justice"" and is generally followed

everywhere. But, in the instant case, the Hon''ble Inquiry Officer gave total go-by to the above universally accepted procedure of

inquiry and finished the inquiry in a maverick manner, as elaborated hereinafter :-

(i) In paragraph 2 of the Enquiry Report, the Enquiry Officer has written that there had been 17 (seventeen) sittings of the enquiry.

The business transacted in those sittings are given below in brief:

20.9.2001 : (Preliminary hearing) adjourned to 28.9.2001.

28.9.2001 : On being asked by the Enquiry Officer, I denied the charge, and asked time for communication of my decision in the

matter of engaging a defence representative, which was allowed.

6.12.2001 : The presenting officer asked for 15 days time for collection of relevant documents relating to the matter from various

offices such as vigilance department, etc. The time asked for was granted.

8.1.2002 : The presenting officer submitted photocopies of a 60 (sixty) documents, marked as M.E.I. to M.E.60. I requested the

Enquiry Officer for allowing me time for verification of the Exhibits produced by the presenting officer. The presenting officer stated a

number of further documents and Registers were in the police custody and the same would be produced in the inquiry.

19.2.2002 : The presenting officer submitted further documents marked as M.E.61 to M.E.73, photocopies of which were handed

over to me. The presenting officer also submitted a list of management witnesses to be examined in support of the charges.

18.4.2002 : On request, I was allowed 15 days time for appointment of my Defence Representative.

9.10.2002 : Allowed further time upto 17.10.2002 for giving the name and consent letter of the Defence Representative.

17.10.2002 : Permission given by the Enquiry officer to appoint Shri Amiya Das, Field Officer, as Defence Representative.

14.3.2003 : No enquiry held as the Bank was closed on account of holidays under N.I. Act.

11.4.2003 : Defence Representative Sri Amiya Das having been transferred to a distant branch had withdrawn his consent letter to

act as Defence Representative. Therefore, time was given for finding out another person to act as Defence Representative.

16.4.2003 : The hearing adjourned as the presenting officer was absent on leave.

23.4.2003 : Time allowed for giving the name of the Defence Representative.

6.5.2003 : Failing to arrange any Defence Representative, I stated that I would defend my case myself. I prayed for 15 days time for

submitting list of defence documents and witnesses, which was granted.

16.5.2003 : I submitted a letter containing the list of documents numbering 32 (thirty-two) which I required for my defence.

27.5.2003 : As the presenting officer failed to provide me with the additional documents indicated in my letter dated 16.5.2003, I

submitted a petition, dated 27.5.2003 for giving me permission to collect those vital documents from

(1) various departments of H.O.

(2) Area Office,

(3) Other branches,

(4) Crime Branch Office and Other courts.

6.6.2003 : Remained absent from the sittings of the inquiry on health ground under intimation.

17.6.2003 : to the Inquiry officer.

23.6.2003 : The Inquiry Officer allowed the inquiry to proceed ex-parte on 23.6.2003.

(ii) From the details of the inquiry proceedings narrated above, it is clear

(a) that the presenting officer submitted photocopies of 60 (sixty) documents on 8.1.2002 which were marked as M.E.I. to M.E. 60,

and 12 (twelve) documents on 19.2.2002 marked as M.E. 61 to M.E. 73 to prove the charges framed against me. I requested for

allowing me to inspect the original documents. But the same was not allowed denying me the right of the reasonable opportunity to

defend myself by inspecting the original documents which were proposed to be relied upon to prove the charges framed against me.

This was in violation of Regulation 38 of Cuttack Gramya Bank Officers and Employees Service Regulation, 2000.

(iii) The Enquiry Report under discussion in the present case is vitiated due to the infirmities stated above.

(a) In the inquiry held on 16.5.2003, I submitted a list of 32 additional documents for production in the inquiry for my defence.

(iv) As per sub-regulation (16) of UCO Bank Officer Employees (D&A) Regulation, the evidence on behalf of the charge officer is

required to be produced after the completion of the following stages :-

(a) Production of management documents in support of the charges and inspection thereof by the accused officer, and

(b) examination and cross-examination of the witnesses produced on behalf of the management.

(v) In his report, the Enquiry Officer has admitted the enquiry was completed on 23.6.2003 ex-parte.

(vi) At page 2 of his Report, the Hon''ble Enquiry Officer observed as under :-

...... In the enquiry proceedings dated 17.6.2003, the presenting officer (P.O) requested to present the case on behalf of

management through his ''selfexamination'' instead of examining the management witnesses the list of which was submitted in the

enquiry proceedings dated 19.2.2002. Considering the non-attendance of the CSO in the enquiry proceedings dated 23.6.2003 also,

I allowed the presenting officer (P.O.) to present the case on behalf of the management through his ''self-examination.

Going through the above, this Court finds, petitioner has several fronts on violation of principle of natural justice. There was serious allegation to

the effect that there have been production and making of several documents by the Presiding Officer by submitting photocopies and the request of

the petitioner for allowing him to inspect the original documents has been denied which is claimed to be in violation of Regulation 38 of the

Regulations, 2000. It is also alleged by the petitioner that the charge-sheeted officer produced 32 additional documents to support of his case,

there has been no consideration of such documents and that there has been again violation of Regulation 38 of the Regulations, 2000. The Enquiry

Officer has a clear indication in his proceeding that he completed the enquiry on 23.06.2003 ex-parte, it is alleged that in spite of petitioner''s

asking for deferring the enquiry on account of his illness the Enquiry proceeding was concluded abruptly. It is again alleged that the Enquiry Officer

allowed the Presenting Officer to prove the case of management on his self examination goes to clearly establish that there is no independent

witness examined to establish the case of the management, this Court thus observes, the Enquiry Officer followed a procedure unknown to law.

There is also an observation of the Enquiry Officer that neither the Presiding Officer nor the C.S.O. has submitted the briefs. Thus, this Court

observes, the Enquiry Officer closed the enquiry in a perfunctory manner. There is virtually no evidence establishing documents from the side of

management. It is at this stage, on perusal of the order of the Disciplinary Authority finds place at Annexure-7, this Court finds though the

Disciplinary Authority took note of certain observations establishing the charges involving the petitioner, but the Disciplinary Authority nowhere

either discussed the objections being raised by the delinquent nor dealt with the same. Now, coming to peruse the Appeal memorandum submitted

by the petitioner finds place at Annexure-8, this Court again finds, the petitioner raised the issue of violation of principle of natural justice as well as

the closure of enquiry proceeding ex-parte on non-acceptance of medical certificate in proof of adjournment and there was absolutely no evidence

by the management establishing the charges against the petitioner, the Appellate authority did not consider the allegations of the petitioner on all

these accounts on the other hand in one sentence at paragraph-5 of the Appellate order observed as follows :-

The Appellate Board found that the Disciplinary Authority has given sufficient opportunity to Sri Senapati to defend his case.

There is no violation of natural justice at any stage.

This Court observes that the Appellate Authority is not an empty formality and since the question of survival of employment of a person got

involved, the Appellate Authority ought to have dealt with all such issues raised by the delinquent-petitioner, in absence of which such orders are to

be simply declared illegal.

The case at hand not only involves a case of ex-parte closure of the Enquiry proceeding in spite of petitioner''s asking for adjournment on

ground of ailment, this case also involves non-furnishing of documents relied on by the management to the delinquent, this case also involves non-

consideration of documents produced by the delinquent and non-confrontation of the same, further the case also involves non-examination of

management witnesses independent of the Presenting Officer and thereby failure of establishing the charges against the delinquent, for all these

above, this Court finds that there is serious violation of fundamentals in the matter of domestic enquiry, thereby causing a serious prejudice to the

delinquent.

It is at this stage this Court further considers that the petitioner has the specific allegation that Enquiry Officer was changed four times and the

Presenting Officer is also changed five times. Even Departmental representative was changed two times and the Departmental Authority also got

changed four times. Documents asked for were denied on the ground of being available in police custody. There is no opportunity of examining his

own witnesses. No personal hearing and there is closure of the proceeding ex-parte. Writ petition got pending for over 13 years, but there is no

counter denying all these allegations. It is here this Court takes into account the decision of the Hon''ble Apex Court in the case of Ravi S. Naik

vrs. Union of India and others, reported in 1994 Supp. (2) SCC 641 wherein the Hon''ble Apex Court held ex-parte closure of enquiry resulted in

violation of principles of natural justice and fair play of Articles 14, 21 and 311(3) of the Constitution of India. Law is also fairly well settled that

mere saying that the petitioner had the opportunity of going through the documents is not sufficient, on the other hand the enquiry record must

establish that he was asked to have the inspection. In the case of Canara Bank vs. VK Awasthy, reported in (2005) 6 SCC 321, it was held that

Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of

the duty to be performed under a statute, what particular rule of natural justice should be implied and what its context should be in a given case

must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. Noticing

the principles of natural justice, the decision of the Hon''ble Apex Court in Kihoto Hollohan case, Mrs. Maneka Gandhi vrs. Union of India &

another, reported in (1978) 1 SCC 248, Union of India and another vrs. Tulsiram Patel, reported in (1985) 3 SCC 398 and reiterating that an

order of an authority exercising judicial or quasi judicial functions passed in violation of the principles of natural justice is procedurally ultra vires

and, therefore, suffers from a jurisdictional error and that is the reason why in spite of finality under paragraph 6 (1) of the Tenth Schedule, such a

decision is subject to judicial review on the ground of noncompliance with the rules of natural justice, it is settled that while applying the principles

of natural justice, it must be borne in mind that ""they are not immutable but flexible"" and they are not cast in a rigid mould and cannot be put in a

legal straitjacket. Whether the requirements of natural justice have been complied with or not has to be considered in the context of the facts and

circumstances of a particular case.

Under the above circumstances and as a result, this Court thus interfering in the Enquiry proceeding declares the manner of closing the

Disciplinary proceeding as bad, as a consequence while setting aside the Enquiry report at Annexure-5 also set-aside the subsequent orders

passed by the Disciplinary Authority as well as the Appellate Authority vide Annexures-7 and 9 as bad in law and not sustainable. But, however,

considering the serious allegations involving the petitioner and as this Court interferes in the Enquiry proceeding also on the premises of gross

violation of principle of natural justice and that the Disciplinary proceeding being concluded ex-parte, this Court directs for restart of the Enquiry

proceeding involving the charge-sheet vide Annexure-2 and to conclude the Disciplinary proceeding afresh, but however, providing opportunity of

defence to the delinquent-petitioner who shall be appearing before the Disciplinary Authority with the certified copy of the order of this Court on

02.02.2018. This Court also makes it clear that in the event of necessity of appointment of a fresh Enquiry Officer for long lapse of time in the

meanwhile, it will be open to the Disciplinary Authority to appoint a fresh Enquiry Officer and conclude the Disciplinary proceeding within a period

of six months. For the remand of the proceeding and as the petitioner was facing a dismissal order, but for the reopening of the Enquiry

proceeding, the status of the petitioner so far his employment is concerned shall be relegated back to the stage as on 23.06.2003 on which date he

was set ex-parte and his reinstatement be solely for the purpose of completing the departmental proceeding. His entitlement, if any, will be

dependent upon the ultimate outcome in the Disciplinary proceeding following a decision of the Hon''ble Apex Court in the case of Managing

Director, ECIL, Hyderabad, etc. vrs. B. Karanakar etc., reported in (1993) 4 SCC 727.

The writ petition succeeds to the extent indicated hereinabove and with an order of remand. In the circumstance, there is no order as to costs.