High Court of H.P. 1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.: 2758 of 2009

Reserved on : 27.04.2016

Date of Decision: 04.05.2016

______________________________________________________________________

Shri P.C. Sharma

……Petitioner.

Vs.

Chairman-cum-Managing Director,

Bank of India and others.

…..Respondents.

Coram:

The Hon’ble Mr. Justice Ajay Mohan Goel, Judge

Whether approved for reporting?

1 Yes.

For the petitioner: Mr. Y.P.S. Dhaulta, Advocate.

For the respondents : Mr. B.S. Chauhan, Senior Advocate,

with Mr. Munish Thakur, Advocate.

Ajay Mohan Goel, J. :

This writ petition has been filed praying for the following

reliefs:

“(i) That a writ in the nature of certiorari may kindly be

issued quashing impugned orders Annexures P-11, P-12,

P13, P-14 and P-16 being illegal, arbitrary and

unconstitutional.

(ii) That a writ in the nature of mandamus may kindly

be issued directing the respondent bank to take back the

service of the petitioner with all consequential benefits

including arrears and seniority.

Whether the reporters of the local papers may be allowed to see the Judgment? Yes.

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 2

(iii) That the respondents may kindly be directed to

produce the entire record pertaining to the case.

(iv) That the cost of writ petition may also be granted.”

2. As per the case put forth by the petitioner, he joined the

services of the respondent-Bank on 02.01.1995 and in his capacity as

such worked to the satisfaction of his superior officers at various places,

such as Dharamshala and Sarog etc. While he was serving in District

Mandi, Himachal Pradesh, on promotion to the post of Staff Manager he

was transferred from Mandi to Goa on 25

th January, 2006. In view of his

domestic issues, the petitioner requested the competent authority for

transfer from Goa Zone to Chandigarh Zone at Manali Branch vide

Annexure P-1, dated 27

th

June, 2006. His request to be transferred to

Chandigarh Zone was considered and declined by the respondents vide

Annexure P-4, dated 16.12.2006. Thereafter, the petitioner applied for

three years’ Sabbatical Leave. Annexure P-5, dated 06.03.2007, is a

communication addressed by the Zonal Manager, Goa Zone, Personnel

Department to the General Manager, Head Officer, Personnel

Department, I.R. Division, on the subject “Request under Bank of India

Sabbatical Leave Scheme Staff-Manager-Mr. P.C. Sharma”. As per this

communication, the application of the petitioner requesting for three

years’ Sabbatical Leave was enclosed therewith and it was mentioned

therein that no disciplinary action is initiated/pending or contemplated

against the petitioner and three years Sabbatical Leave to the petitioner

was recommended. It was further mentioned in this communication that

the petitioner has outstanding loan with Bank aggregating to `13.06 lacs

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 3

and OD against NSC `1.00 lac. The petitioner had undertaken to

service the loans from his family business income and monthly

installments/interest on OD comes to `11937/- and the bank proposed

to instruct the petitioner to deposit in advance `36,000/- being amount

equal to installments/interest for three months and that the petitioner is

a PF optee and his own contribution to PF account as on 30.09.2006 was

`1.70 lacs. The petitioner has appended as Annexure P -7, a

communication addressed by him to the Zonal Manager, Goa Zone, dated

23.03.2007 on the subject “Sabbatical Leave Sanctioned by Head Office

subject to conditions.”. It was mentioned in this communication that the

amount demanded by the Bank was approximately 900000/ -, which is a

very high amount. To deposit this amount, the petitioner has to collect

sufficient funds, which will take reasonable time and accordingly, he

requested the Bank to give reasonable opportunity to deposit the amount

and 15 days Privileged Leave from 26.03.2007 onwards.

3. According to petitioner, the Sabbatical Leal was sanctioned in

his favour and he was also under this bonafide belief that Privileged

Leave has also been accorded in his favour by the respondent-Bank.

4. However, to its utter dismay, he received a communication

from the respondent-Bank, dated 12.09.2007, Annexure P-9, which was

addressed to him C/o P.E. Dogra, Upper Bajaura, District Kullu

(Himachal Pradesh), on the subject “Your unauthorized absence from duty

from 26.03.2007.” It was mentioned in this communication in reference to

a memo dated 11.04.2007, vide which as per the Bank, the petitioner had

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 4

been advised that his absence was being treated as unauthorized and

that he has been un-authorizedly absenting himself from duty w.e.f.

26.03.2007 and despite clear instructions, he has failed to report for

duties. The petitioner was instructed that in case he does not report for

duty on or before 24.09.2007, the Bank shall initiate appropriate

disciplinary proceedings against him.

5. This was followed by memorandum, dated 20

th November,

2007, vide which the petitioner was intimated that the Bank had decided

to proceed against him under Regulation 6 of the Bank of India Officer

Employees’ (Discipline & Appeal) Regulations for the acts of misconduct

committed by him while working at Banks Goa Zonal Office. Petitioner

was directed to submit within seven days from the date of receipt of

memorandum, his written statement of defence.

6. The Article of Charge framed against him was that the

petitioner had remained un -authorizedly absent from duties w.e.f.

26.03.2007 till date, in spite of several specific instructions to him

advising him to report for duty immediately.

7. As per the petitioner, in response thereto, the petitioner sent

a detailed reply. But, in spite of this, preliminary hearing was conducted

and the petitioner was proceeded against ex parte. No due and reasonable

opportunity was provided to him and everything was done by the Bank

with the pre-determined mind to punish the petitioner.

8. Vide Annexure P-12, the inquiry officer submitted the inquiry

report, in which he returned the findings that the petitioner had

remained un-authorisedly absent from duty w.e.f. 26.03.2007 onwards,

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 5

which constitutes misconduct in terms of Regulations 13(1) and 24 of the

Bank of India Officer Employees’ (Discipline & Appeal) Regulations. This

was followed by communication, dated 09.09.2008, Annexure P -13,

issued to the petitioner by the disciplinary authority, vide which the

disciplinary authority informed the petitioner that it concurred with the

findings of the inquiry officer and the petitioner was advised to submit his

representation on the findings of the inquiry authority within ten days

from the receipt of the communication.

9. Vide Annexure P-14, penalty order dated 18.12.2008, the

disciplinary authority imposed the following penalty on the petitioner:

“In view of the above, the undersigned has decided to award

Penalty of “Compulsory Retirement” to you. Accordingly, the

following order is passed.

ORDER

Major penalty of “Compulsory Retirement” in

terms of Clause 4(h) of Bank of India Officer Employees’

(Discipline & Appeal) Regulations, 1976 is awarded to Shri

P.C. Sharma for the acts of misconduct as narrated in the

articles of Charge, dated 20.11.2007 issued to him and

proved in the Departmental Inquiry.”

10. Feeling aggrieved, the petitioner filed an appeal against the

penalty, copy of which is appended as Annexure P -15 with the writ

petition, which was also rejected by the appellate authority vide order,

dated 24.06.2009, copy of which is appended with the petition as

Annexure P-16.

In these circumstances, the petitioner filed the present writ

petition.

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 6

11. Before adverting to the merits of the case, I would first deal

with the preliminary objection which was taken by Shri B.S. Chauhan,

learned Senior Counsel for the respondents with regard to the

maintainability of the writ petition.

12. According to Mr. B.S. Chauhan, learned senior counsel for

the respondents, the petition is not maintainable as this Court has no

jurisdiction to hear the same. As per him, no cause of action has accrued

within the territorial jurisdiction of this Court and in this view of the

matter, this Court cannot exercise its extraordinary jurisdiction and

entertain the present writ petition on merit. The submission of learned

Senior Cunsel is that at the time when the petitioner absented himself

from duties, he was serving at Goa. Disciplinary proceedings were

initiated against him by the Chief Manager, Goa Zone, who was his

disciplinary authority. It is the said authority which has passed the

penalty order, dated 18.12.2008. The appeal has also been addressed by

the petitioner to the appellate authority, i.e. Zonal Manager, Goa Zone,

who has decided the appeal vide order, dated 24.06.2009 at Goa.

Therefore, keeping in view the fact that no cause of action has accrued in

Himachal Pradesh, the present petition is not maintainable and is liable

to be dismissed for want of jurisdiction. He has placed reliance upon the

provisions of Article 226 (1) of the Constitution of India, which reads as

under:

“226. Power of High Court to issue certain writs .-

(1) Notwithstanding anything in article 32, every High

Court shall have power, throughout the territories in

relation to which it exercises jurisdiction, to issue to any

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 7

person or authority, including in appropriate cases, any

Government, within those territories directions, orders

or writs, including writs in the nature of habeas corpus,

mandamus, prohibition, quo warranto and certiorari, or

any of them, for the enforcement of any of the rights

conferred by Part III and for any other purpose.”

13. The contention of Mr. B.S. Chauhan, learned Senior Counsel

is that the High Court shall have power to issue a writ throughout the

territories in relation to which it exercises jurisdiction. As per him, the

cause of action in the present case has arisen at Goa. This Court does not

exercises territorial jurisdiction over Goa. Therefore, according to him, the

present petition per se is not maintainable and is liable to be dismissed.

In this regard, he has placed reliance upon the judgment of the Hon’ble

Supreme Court in Oil and Natural Gas Commission Vs. Utpal Kumar

Basu and others (1994) 4 Supreme Court Cases 711.

14. On the other hand, Mr. Y.P.S. Dhaulta, learned counsel for

the petitioner has argued that this Court has jurisdiction to adjudicate

upon the matter. According to him, the respondent-Bank also carries out

its business within the territory of the State of Himachal Pradesh, over

which this Court exercises jurisdiction, qua which no one can have any

dispute. There are various Branches of the respondent-Bank in the State

of Himachal Pradesh and, in fact, the petitioner has served at various

such Branches in the State of Himachal Pradesh before he was

transferred from District Mandi, Himachal Pradesh to Goa in the year

2006. Therefore, he contends that in this view of the matter, this Court

has jurisdiction to adjudicate the case. Further, Annexures P-9 dated

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 8

12.09.2007, P-10 dated 20.11.2007, P-13 dated 09.09.2008, penalty

order Annexure P-14 dated 18.12.2008 and appellate order dated

24.06.2009 Annexure P-16, have been addressed by the respondents to

the petitioner at his address, i.e. “Bajoura, District Kullu, Himachal

Pradesh”. All these communications have been received by the petitioner

at Bajaura in Himachal Pradesh and he has responded to the

communications and filed appeal against the impugned order passed by

the disciplinary authority from Himachal Pradesh. Therefore, according to

him, a part of the cause of action has arisen in the State of Himachal

Pradesh and therefore this Court has jurisdiction to adjudicate and

decide the present petition on merits. He has placed reliance upon the

judgment passed by the Hon’ble Supreme Court in Nawal Kishore

Sharma Vs. Union of India and others (2014) 9 Supreme Court Cases 329.

15. I find force in the arguments of learned counsel for the

petitioner that this Court has jurisdiction to adjudicate upon the writ

petition on merit, as part of cause of action has arisen in the State of

Himachal Pradesh. It cannot be disputed that the High Court has got

power throughout the territories in relation to which it exercises

jurisdiction, to issue to any person or authority, including in appropriate

cases, any Government, within those territories directions, Orders or

Writs. It is also not in dispute that the respondent-Bank has its branches

in the State of Himachal Pradesh, i.e. within the territories in relation to

which this Court exercises its jurisdiction. It is also not in dispute that

the petitioner has served in the respondent-Bank at various places in the

State of Himachal Pradesh and that besides the impugned orders, various

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 9

communications have been addressed by the respondent -Bank to the

petitioner at his home address in the State of Himachal Pradesh, as the

petitioner otherwise also belongs to the State of Himachal Pradesh. The

Memorandum of disciplinary proceedings having been init iated against

the petitioner was addressed to the petitioner at his home address in the

State of Himachal Pradesh. The impugned order passed by the

disciplinary authority was also addressed to the petitioner at his home

address in the State of Himachal Pradesh. The impugned order passed by

the appellate authority on the appeal filed by the petitioner was also

addressed to the petitioner at his home address in the State of Himachal

Pradesh. These memorandums and orders have been received by the

petitioner in the State of Himachal Pradesh.

16. The expression ‘cause of action’ is defined in Mulla’s Code of

Civil Procedure as under:

“The ‘cause of action’ means every fact which, if

traversed, it would be necessary for the plaintiff to

prove in order to support his right to a judgment of the

Court.”

Therefore, ‘cause of action’ is nothing but a bundle of facts

which taken with the law applicable to them gives the plaintiff a right to

relief against the defendant.

17. In the judgment cited by Mr. B.S. Chauhan, learned Senior

Counsel for the respondents, the petitioner Oil and Natural Gas

Commission through its consultants Engineers India Limited (EIL) issued

an advertisement in the leading newspapers of the country incl uding

those in circulation in West Bengal calling for tenders for setting up of a

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 10

Kerosene Recovery Processing Unit at Hazira Complex in Gujarat,

mentioning therein that the tenders containing offers were to be

communicated to EIL at New Delhi. The respond ent therein filed a

petition before the learned Calcutta High Court praying therein that

NICCO, having its registered office in Calcutta, read and became aware of

the tender notice printed in the Times of India circulated within the

jurisdiction of the Calcutta High Court. The issue with regard to the

territorial jurisdiction of the learned Calcutta High Court to adjudicate

the same was decided by the Hon’ble Supreme Court in para -6 of the

judgment, which reads as under:

“6. It is well settled that the expression

"cause of action" means that bundle of facts which the

petitioner must prove, if traversed, to entitle him to a

judgment in his favour by the Court. In Chand Kour v.

Partab Singh' Lord Watson said:

"... the cause of action has no

relation whatever to the defence which may

be set up by the defendant, nor does it

depend upon the character of the relief

prayed for by the plaintiff. It refers entirely

to the ground set forth in the plaint as the

cause of action, or, in other words, to the

media upon which the plaintiff asks the Court

to arrive at a conclusion in his favour."

Therefore, in determining the objection of

lack of territorial jurisdiction the court must take all the

facts pleaded in support of the cause of action into

consideration albeit without barking upon an

enquiry as to the correctness or otherwise of the said

facts. In other words the question whether a High

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 11

Court has territorial jurisdiction to entertain a writ

petition must be answered on the basis of the

averments made in the petition, the truth or

otherwise whereof being immaterial. To put it

differently, the question of territorial jurisdiction must

be decided on the facts pleaded in the petition.

Therefore, the question whether in the instant

case the Calcutta High Court had jurisdiction to

entertain and decide the writ petition in question even

on the facts alleged must depend upon whether the

averments made in paragraphs 5, 7, 18, 22, 26 and 43

are sufficient in law to establish that a part of the

cause of action had arisen within the jurisdiction of

the Calcutta High Court.”

18. However, in my considered opinion, this judgment of the

Hon’ble Supreme Court is of no assistance to the respondents.

Admittedly, in the present case, letters were sent to the petitioner at his

native place in Himachal Pradesh, where he was staying and the

petitioner also sent his responses, representations and appeal etc. from

his home in the State of Himachal Pradesh to the respondents. The

communications so made by him including the appeal filed by him

against the order passed by the disciplinary authority were replied to by

the respondents, which were addressed to him at his home address in

District Kullu, Himachal Pradesh rejecting his appeal. It is further evident

that when the petitioner came back from Goa, he returned back to his

home in District Kullu, Himachal Pradesh and thereafter he made all his

claims etc. and filed his representations and responses etc. from his

home address and those letters/representations and appeals were

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 12

entertained by the respondents and replied and decisions on the same

were communicated to him at his home address in District Kul lu,

Himachal Pradesh. Considering all the facts together, a part or a fraction

of cause of action has arisen within the jurisdiction of this Court, where

inter alia the petitioner has received communication of imposition of

major penalty upon him and refusal of his appeal being entertained by

way of rejection. The Hon’ble Supreme Court in Nawal Kishore Sharma

Vs. Union of India and others (2014) 9 Supreme Court Cases 329 has

held as under:

“16. Regard being had to the discussion made

hereinabove, there cannot be any doubt that the

question whether or not cause of action wholly or in part

for filing a writ petition has arisen within the territorial

limit of any High Court has to be decided in the light of

the nature and character of the proceedings under

Article 226 of the Constitution. In order to maintain a

writ petition, the petitioner has to establish that a legal

right claimed by him has been infringed by the

respondents within the territorial limit of the Court's

jurisdiction.

17. We have perused the facts pleaded in the

writ petition and the documents relied upon by the

appellant. Indisputably, the appellant reported sickness

on account of various ailments including difficulty in

breathing. He was referred to hospital. Consequently,

he was signed off for further medical treatment. Finally,

the respondent permanently declared the appellant

unfit for sea service due to dilated cardiomyopathy

(heart muscles disease). As a result, the Shipping

Department of the Government of India issued an order

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 13

on 12.4.2011 cancelling the registration of the appellant

as a seaman. A copy of the letter was sent to the

appellant at his native place in Bihar where he was

staying after he was found medically unfit. It further

appears that the appellant sent a representation from

his home in the State of Bihar to the respondent

claiming disability compensation. The said

representation was replied by the respondent, which

was addressed to him on his home address in Gaya,

Bihar rejecting his claim for disability compensation. It

is further evident that when the appellant was signed

off and declared medically unfit, he returned back to his

home in the District of Gaya, Bihar and, thereafter, he

made all claims and filed representation from his home

address at Gaya and those letters and representations

were entertained by the respondents and replied and a

decision on those representations were communicated

to him on his home address in Bihar. Admittedly,

appellant was suffering from serious heart muscles

disease (Dilated Cardiomyopa thy) and breathing

problem which forced him to stay in native place,

wherefrom he had been making all correspondence with

regard to his disability compensation. Prima facie,

therefore, considering all the facts together, a part or

fraction of cause of action arose within the jurisdiction

of the Patna High Court where he received a letter of

refusal disentitling him from disability compensation.

18. Apart from that, from the counter affidavit

of the respondents and the documents annexed

therewith, it reveals that after the writ petition was filed

in the Patna High Court, the same was entertained and

notices were issued. Pursuant to the said notice, the

respondents appeared and participated in the

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 14

proceedings in the High Court. It further reveals that

after hearing the counsel appearing for both the parties,

the High Court passed an interim order on 18.9.2012

directing the authorities of Shipping Corporation of India

to pay at least a sum of Rs.2.75 lakhs, which shall be

subject to the result of the writ petition. Pursuant to the

interim order, the respondent Shipping Corporation of

India remitted Rs.2,67,270/- (after deduction of income

tax) to the bank account of the appellant. However,

when the writ petition was taken up for hearing, the

High Court took the view that no cause of action, not

even a fraction of cause of action, has arisen within its

territorial jurisdiction.

19. Considering the entire facts of the case

narrated hereinbefore including the interim order

passed by the High Court, in our considered opinion,

the writ petition ought not to have been dismissed for

want of territorial jurisdiction. As noticed above, at the

time when the writ petition was heard for the purpose of

grant of interim relief, the respondents instead of

raising any objection with regard to territorial

jurisdiction opposed the prayer on the ground that the

writ petitioner- appellant was offered an amount of

Rs.2.75 lakhs, but he refused to accept the same and

challenged the order granting severance compensation

by filing the writ petition. The impugned order,

therefore, cannot be sustained in the peculiar facts and

circumstances of this case.

20. In the aforesaid, the appeal is allowed and

the impugned order passed by the High Court is set

aside and the matter is remitted to the High Court for

deciding the writ petition on merits.”

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 15

19. In view of the above discussion and the judgment of the

Hon’ble Supreme Court (supra), I am of the considered view that there is

no force in the preliminary objection raised by Mr. B.S. Chauhan, learned

Senior Counsel for the respondent and held that this Court has territorial

jurisdiction to hear and decide the present case on merit.

20. Now, I would revert to the merits of the case. Mr. Dhaulta,

learned counsel for the petitioner has strenuously argued that the

impugned orders are not sustainable in the eyes of law, because neither

the inquiry report nor the penalty order is justifiable in law. He has

further argued that similarly the order passed by the appellate authority

vide which the appeal of the petitioner has been dismissed, is also a

cryptic and non-speaking order. No reasoning has been given by the

appellate authority while passing the said order. The contention of Mr.

Dhaulta is that the inquiry held by the authorities against him per se is

bad and illegal, because he has been condemned unheard. According to

him, no reasonable opportunity has been given to him to defend himself.

The proceedings were started and culminated with a pre-conceived motive

of punishing the petitioner. In fact, according to him, even conducting the

disciplinary proceedings was just a formality, so that the respondents

could demonstrate that the inquiry was held before penalty was imposed

upon the petitioner. He has further argued that the respondents were

knowing fully well that the petitioner was residing in District Kullu,

Himachal Pradesh, which was far off place from Goa. Keeping in view the

distance between these two places, it was expected that the inquiry officer

shall give him reasonable time to jo in the proceedings. However,

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 16

according to him, it is apparent from the record that very short time was

granted to the petitioner on each occasion to join the proceedings and on

account of this, he could not join the inquiry proceedings and defend

himself properly, which has caused material prejudice to him.

21. He has further submitted that the petitioner did everything

which was under his control to join the inquiry proceedings, but could

not join the same for the reasons beyond his control. However, none of

these aspects of the matter were considered by the inquiry officer, who

proceeded to hold the inquiry proceedings in his absence.

22. He further submitted that even the inquiry report, Annexure

P-12, is lopsided and the true factual position has not been appreciated

by the inquiry officer while submitting the same. He further argued that

the petitioner never absented himself from duty un -authorizedly.

According to him, the Sabbatical Leal was sanctioned in his favour and

he was also under this bonafide belief that Privileged Leave has also been

accorded in his favour by the respondent-Bank.

23. According to Mr. Dhaulta, the inquiry officer has not

appreciated these aspects of the matter at all and has submitted his

inquiry report based upon one sided version of the Bank. He has further

argued that the order passed by the disciplinary authority vide which

major penalty of compulsory retirement has been imposed upon h im, is

also totally unsustainable in the eyes of law. According to him, the

inquiry, in fact, has been vitiated because the same was not conducted as

per the provisions of the relevant Regulation of the Bank, which govern

the disciplinary proceedings. He has further argued that the penalty order

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 17

is cryptic, non-speaking and there is no independent application of mind

by the disciplinary authority while passing the said penalty order.

24. He has further argued that the appellate order, dated

24.06.2009, is also per se bad in law, because the appellate authority has

also not applied its independent mind while passing the said order. He

has further contended that in fact inquiry officer has conducted the entire

proceedings with a pre-determined mind to punish the petitioner and

similarly, the disciplinary authority and the appellate authority have also

passed the impugned orders in a stereotype manner without any

independent application of mind and these orders are highly cryptic,

vague, non-speaking and not in consonance with the relevant Regulations

of the Bank and are thus liable to be quashed and set aside. He has

further argued that the manner in which the disciplinary proceedings

have been conducted against the petitioner is violative of Article 14 of the

Constitution of India and the entire exercise has been undertaken in an

arbitrary manner.

25. On the other hand, learned Senior Counsel representing the

respondents has strenuously argued that there is no infirmity either in

the disciplinary proceedings which were conducted by the Bank or in the

orders passed by the disciplinary authority and the appellate authority,

respectively. According to him, the inquiry officer has also proceeded in

the case strictly as per the Regulations and there is no infirmity in the

procedure adopted by the inquiry officer. In order to demonstrate this,

Mr. Chauhan submitted that Annexure P-11, which is appended with the

writ petition is self speaking that due opportunity was granted to the

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 18

petitioner to associate himself with the disciplinary proceedings. He has

drawn my attention to the said Annexure, a perusal of which will

demonstrate that it is recorded in the proceedings of this hearing, dated

28.05.2008, that the petitioner was not present in the inquiry despite

many opportunities having been granted to him. Relevant extract of this

proceeding is quoted hereinbelow:

“I.A. to P.O.: I am admitting the above documents as

Management documents by giving them exhibit numbers ME -

1 to ME-6. I would also like to place on record the e-mail

message dated 24.05.2008 sent by Shri Sharma to the Zonal

Manager with a copy to me and the reply dated 27.05.2008

sent by the Zonal Manager to him and give them Exhibit Nos.

I-1 and I-2. Further with a view to give Shri Sharma a final

opportunity to appear in the regular hearing and in the

interest of natural justice, I am fixing 12

th June, 2008 as the

date for regular hearing of the inquiry. With this I am

adjourning todays proceedings with the directions that both

the P.O. and the C.S.O. should be present on 12

th June, 2008

at 10:30 a.m. at the same venue for regular hearing on the

inquiry. The P.O. should bring his witnesses and the CSO is

also advised to submit the list of documents and witnesses

in his defence. The Regular hearing will be held, thereafter,

on a regular basis and no adjournment will be given under

any circumstances for whatsoever reason.

A copy of this proceedings is sent to Shri

Sharma by Regd. Post AD and also by e-mail. No separate

notice will therefore, be issued for regular hearing which

please note.

With this, the preliminary hearing is concluded

and adjourned for regular hearing.”

26. On the basis of this Annexure, Mr. Chauhan, learned Senior

Counsel has stressed that it is evidently clear that many opportunities

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 19

were granted to the petitioner to join the disciplinary proceedings, but he

intentionally did not join the same. He has further argued that even

otherwise, the conduct of the petitioner is self speaking that he was not

interested in continuing with the services of the respondent-Bank. Mr.

Chauhan has argued that the petitioner un-authorizedly went on leave

without any Sabbatical Leave or Privileged Leave having been sanctioned

in his favour. According to him, vide Annexure P-5, dated 06.03.2007, the

case of the petitioner for Sabbatical Leave was only recommended subject

to fulfillment of certain conditions, which were never fulfilled by the

petitioner. He further stated that simply because the petitioner had

applied for Privileged Leave, this does not mean that the same stood

automatically granted to him. According to him, the petitioner being a

responsible officer of the Bank, understood the implications of said leave

not expressly having been granted in his favour, but despite this, he

opted to absent himself un-authorizedly from the duties of the Bank.

Before initiating disciplinary inquiry, he was instructed by the

respondent-Bank to join his duties. This is apparent from intimation,

dated 12.09.2007, Annexure P-9. However, the instructions of the Bank

issued to the petitioner to rejoin his duties were not adheared to by him.

Therefore, according to Mr. B.S. Chauhan, the Bank had no option except

to initiate disciplinary proceedings against the petitioner.

27. He has further argued that the inquiry report clearly

demonstrate the following. 15

th April, 2008 was the date fixed for

preliminary hearing at Goa Zonal Office Branch of the Bank, but the

petitioner did not attend the said hearing and vide his e-mail, dated

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 20

12.04.2008, requested for postponement of his hearing. His request was

considered and fresh date was fixed for preliminary hearing on

28.05.2008. This was intimated to the petitioner vide letter, dated

26.04.2008 and e-mail of the same date. Thereafter also, the petitioner

failed to appear before the inquiry officer on 28.05.2008 and again sent

an e-mail expressing his inability to come on the alleged ground that he

was cut off by snow and that being tourist season, railway booking was

not available. However, the preliminary hearing was held on 28.05.2008

and the petitioner was given last chance to appear before the inquiry

authority on 12.06.2008 for regular hearing. But, the petitioner did not

present himself on 12.06.2008 also and instead sent an e -mail on

11.06.2008, stating his inability to attend citing non-availibility of train

booking. It is in these circumstances that the inquiry was thereafter held

against ex parte on 12.06.2008. According to Mr. Chauhan all these facts

clearly demonstrate that the petitioner willfully did not associate himself

with the departmental proceedings despite reasonable opportunities

having been granted to him in this regard.

28. He has further argued that there is no infirmity in the inquiry

report submitted by the inquiry officer, because his report is based on the

documentary evidence produced in the inquiry as well as oral evidence of

management witnesses recorded in the course of inquiry. He has further

argued that the penalty order passed by the disciplinary authority is

neither cryptic nor is a non-speaking order. The disciplinary authority

after perusing the entire material placed before it a nd after due

application of mind passed the order of imposition of major penalty of

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 21

compulsory retirement upon the petitioner with immediate effect. He has

further argued that incidentally a perusal of the appeal filed by the

petitioner will demonstrate that there is no challenge to the findings of

the disciplinary authority on merit in the appeal. Despite this, as per him,

the appellate authority has cared to go into all the contentions of the

matter and after due application of mind, has come to the conclusion by

way of a reasoned order that there is no merit in the appeal filed by the

petitioner and the imposition of major penalty of compulsory retirement

was not bad. Therefore, he contended that the petition, even otherwise on

merit, is liable to be dismissed.

29. After hearing both the learned counsel for the parties and

after going through the record of the case, I am of the considered view

that there is sufficient force in the arguments of Mr. Chauhan, learned

Senior Counsel for the respondents. In the present case, it is writ large

that the petitioner absented himself from duty un -authorizedly w.e.f.

26.03.2007. The petitioner has not placed any document on record from

where this Court could gather that either Sabbatical Leave was

sanctioned in his favour or he was given any Privileged Leave.

30. Before the initiation of disciplinary proceedings, the Bank

had instructed the petitioner by issuing intimation to him to re-join his

duties, however, the petitioner failed to join his duties. It is only

thereafter that the respondent-Bank issued memorandum, dated 20

th

November, 2007, vide which Article of charge was served upon him.

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 22

31. The respondent-Bank has framed Bank Officer Employees’

(Discipline & Appeal) Regulations, 1977, copy of which has been made

available to the Court during the course of arguments by Mr. Dhaulta,

learned counsel for the petitioner. Regulation 4 defines the minor and

major penalties. As per regulation 4(f), compulsory retirement is a major

penalty. Regulation 6 provides that no order imposing any of the major

penalties shall be made except an inquiry is held in accordance with this

regulation. Regulation 6 reads as under:

“6. PROCEDURE FOR IMPOSING MAJOR PENALTIES :

1) No order imposing any of the major penalties specified in

clauses (f), (g), (h), (i) and (j) of regulation 4 shall be made

except after an enquiry is held in accordance with this

regulation.

2) Whenever the Disciplinary Authority is of the opinion that

there are grounds for inquiring into the truth of any imputation

of misconduct or misbehavior against an officer employee, it

may itself enquire into, or appoint any other Public servant

(herein after referred to as the inquiring authority) to enquire

into the truth thereof.

Explanation : When the Disciplinary Authority itself holds the

inquiry any reference in sub regulation (8) to sub regulation

(21) to the inquiring authority shall be construed as a reference

to Disciplinary Authority.

3) Where it is proposed to hold an inquiry, the Disciplinary

authority shall frame definite and distinct charges on the basis

of the allegations against the officer employee and the articles

of charge, together with a statement of the allegations, on

which they are based, shall be communicated in writing to the

officer employee, who shall be required to submit within such

time as may be specified by the Disciplinary Authority (not

exceeding 15 days), or within such extended time as may be

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 23

granted by the said Authority, a written statement of his

defense.

4) On receipt of the written statement of the officer employee,

or if no such statement is received within the time specified, an

enquiry may be held by the Disciplinary Authority itself, or if it

considers it necessary so to do appoint under Sub-regulation

(2) an inquiring Authority for the purpose.

Provided that it may not be necessary to hold an

inquiry in respect of the articles of charge admitted by the

officer employee in his written statement but shall be

necessary to record its finding on each such charge.

5) The disciplinary authority shall, where it is not the inquiring

authority, forward to the inquiring authority;

i) a copy of the article of charges and statements of

imputations of misconduct or misbehavior;

ii) a copy of the written statement of defense if any, submitted

by the officer employee;

iii) a list of documents by which and list of witnesses by whom

the articles of charge are proposed to be substantiated;

iv) a copy of statement of the witnesses, if any;

v) evidence proving the delivery of the articles of change under

sub- regulation (3);

vi) a copy of the order appointing the 'presenting officer' in

terms of sub-regulation (6).

6) Where the Disciplinary Authority itself enquires or appoints

an inquiring authority for holding an inquiry, it may by an

order, appoint a public servant to be known as the 'Presenting

Officer' to present on its behalf the case in support of the

articles of charge.

7) The officer employee may take the assistance of any other

office employee but not engage a legal practitioner for the

purpose, unless the presenting officer, appointed by the

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 24

Disciplinary Authority is a legal practitioner or the Disciplinary

Authority, having regard to the circumstances.

Note : The officer employee shall not take the assistance of

any other officer employee who has pending disciplinary cases

on hand in which he has to give assistance.

8) a) The Inquiring Authority shall by notice in writing specify

the day on which the officer employee shall appear in person

before the inquiring authority.

b) On the date fixed by the Inquiring Authority, the officer

employee shall appear before the inquiring Authority at the

time place and date specified in the notice.

c) The Inquiring authority shall ask the officer employee

whether he pleads guilty or has any defense to make and if he

pleads guilty to any of the articles of charges, the Inquiring

Authority shall record the plea, sign the record and obtain the

signature of the officer employee concerned thereon.

d) The Inquiring Authority shall return a finding of guilt in

respect of those articles of charges to which the officer

employee concerned pleads guilty.

9) If the officer employee does not plead guilty, the inquiring

Authority shall adjourn the case to a later date not exceeding

30 days or within such extended time as may be granted by

the inquiring Authority.

10) The Inquiring Authority while adjourning the case as in

sub-regulation (9), shall also record an order that the officer

employee may for the purpose of preparing his defence

i)complete inspection of the documents as in the list furnished

to him immediately and in any case not exceeding 5 days from

the date of such order if he had not done so earlier as provided

for in the proviso to sub-regulation (3);

ii) Submit a list of documents and witnesses that he wants for

the inquiry;

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 25

iii) give a notice within ten days of the order or within such

further time not exceeding ten days as the inquiring Authority

may allow for the discovery or production of the documents

referred to in item (ii).

NOTE : The relevancy of the documents and the examination

of the witnesses referred to in item (ii) shall be given by the

officer employee concerned.

11) The inquiring Authority shall, on receipt of the notice for

the discovery or production of the documents, forward the

same or copies thereof to the authority in whose custody or

possession the documents are kept with a requisition for the

production of the documents, on such date as may be

specified.

12) On receipt of the requisition under sub-regulation (11), the

authority having the custody or possession of the

requisitioned documents, shall arrange to produce the same

before the inquiring Authority on the date, place and time

specified in the requisition; Provided that custody or

possession of the inquiring Authority on the date, place and

time specified in the requisition;

13) On the date fixed for the inquiry, the oral and

documentary evidence by which the articles of 148charge are

proposed to be proved shall be produced by or on behalf or the

Disciplinary Authority. The witnesses produced by the

presenting officer shall be examined by the Presenting Officer

and may be cross-examined by or on behalf of the officer

employee. The Presenting Officer shall be entitled to re-

examine his witnesses on any points on which they have been

cross examined, but not on a new matter, without the leave of

the Inquiring Authority. The Inquiring Authority may also put

Such questions to the witnesses as it thinks fit.

14) Before the close of the case, in support of the charges, the

Inquiring Authority may, in its discretion, allow the Presenting

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 26

Officer to produce evidence not included in the charge sheet or

may itself call for officer employee shall be given opportunity to

inspect the documentary evidence before it is taken on record,

or to cross-examine a witness, who has been so summoned.

The Inquiring Authority may also allow the officer employee to

produce new evidence, if it is of the opinion that the production

of such evidence, is necessary in the interests of justice.

15) When the case in support of the charges is closed, the

officer employee may be required to state his defense, orally or

in writing, as he may prefer. If the defense is made orally it

shall be recorded and the officer employee shall be required to

sign the record. In either case a copy of the statement of

defense shall be given to the Presenting Officer, If any,

appointed.

16) The evidence on behalf of the officer employee shall then

be produced. The officer employee may examine himself in his

own behalf, if he so prefers. The witnesses produced by the

officer employee shall then be examined by th e officer

employee and may be cross-examined by the

Presenting officer. The officer employee shall be entitled to re-

examine any of his witnesses on any points on which they

have been cross-examined, but not on any new matter without

the leave of the Inquiring Authority.

17) The Inquiring Authority may, after the officer employee

closed his evidence, and shall, if the officer employee has not

got himself examined generally question him on the

circumstances appearing against him in the evidence for the

purpose of enabling the officer employee to explain any

circumstances appearing in the evidence against him.

18) The Inquiring Authority may, after the completion of the

production of evidence, hear the Presenting Officer, if any

appointed, and the officer employee, or permit them to file

written briefs of their respective cases within 15 days of the

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 27

date of completion of the production of evidence, if they so

desire.

19) if the officer employee dose not submit the written

statement of defence referred to in subregulation (3) on or

before the date specified for the purpose or does not appear in

person, or through the assisting office or otherwise fails or

refuses to comply with any of the provisions of these

regulations, the inquiring authority may hold the inquiry

expiate.

20) Whenever any Inquiring Authority, after having heard and

recorded the whole or any part of the evidence in an inquiry

ceases to exercise jurisdiction therein, and is succeeded by

another

Inquiring Authority which has, and which exercises, such

jurisdiction, the Inquiring Authority so succeeding may act on

the evidence so recorded by its predecessor, or partly recorded

by itself;

Provided that if the succeeding Inquiring Authority is of the

opinion that further examination of any of the witnesses

whose evidence has already been recorded is necessary in the

interest of justice it may recall, examine, cross-examine and re-

examine any such witnesses as herein before provided.

21) (i) On the conclusion of the inquiry, the inquiring Authority

shall prepare a report which shall contain the following:

a) a gist of the articles of charge and the statement of the

imputations of misconduct or misbehavior

b) a gist of the defence of the officer employee in respect of

each article of charge ;

c) an assessment of the evidence in respect of each article of

charge ;

d) the findings on each article of charge and the reasons

therefore.

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 28

Explanation If, in the opinion of the Inquiring Authority, the

proceedings of the inquiry establish any articles of charge

different from the original article of charge, it may record its

findings on such article of charges ;

Provided that the findings on such article of charge shall not be

recorded unless the officer employee has either admitted the

facts on which such article of charge is based or has had a

reasonable opportunity of defending himself against such

article of charge.

ii. The inquiring Authority, where it is not itself the

Disciplinary Authority, shall forward to the Disciplinary

Authority the records of inquiry which shall include

a. The report of the inquiry prepared by it under clause (i) ;

b. The written statement of defence, if any, submitted by the

officer employee referred to in sub-regulation (15);

c. The oral and documentary evidence produced in the course

of the inquiry ;

d. Written briefs referred to in sub-regulation (18), if any ; and

e. The orders, if any, made by the Disciplinary Authority and

the Inquiring Authority in regard to the inquiry.

32. Regulation 7 provides as under:

“7. Action of the inquiry report :

1. The Disciplinary Authority, if it is not itself the Inquiring

Authority, may, for reasons to be record by it in writing, remit

the case to the Inquiring Authority for fresh or further inquiry

and report and the Inquiring Authority shall thereupon proceed

to hold the further inquiry

according to the provisions of Regulation 6 as far as may be.

2. The Disciplinary Authority shall, if it disagrees with the

findings of the Inquiring Authority on any article of charge,

record its reasons for such disagreement and record its own

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 29

findings on such charge, if the evidence on record is sufficient

for the purpose.

3. If the Disciplinary Authority, having regard to its findings on

al or any of the articles of charge, is of the opinion that any of

the penalties specified in Regulation 4 should be imposed on

the officer employee it shall, notwithstanding anything

contained in regulation 8, make an order imposing such

penalty.

4. If the Disciplinary Authority having regard to its findings on

al or any of the articles of charge, is of the opinion that no

penalty is called for, it may pass an order exonerating the

officer employee concerned.

33. Regulation 8 contemplates the procedure for imposing minor

penalties, which reads as under:

“8. Procedure for imposing minor penalties :

1. Where it is proposed to impose any of the minor penalties

specified in clauses (a) to (e) of 150Regulation 4, the officer

employee concerned shall be informed in writing of the

imputations of lapses against him and given an opportunity to

submit his written statement of defense within a specified

period not exceeding 15 days or such extended period as may

be granted by the Disciplinary Authority and the defenses

statement, if any, submitted by the officer employee shall be

taken into consideration by the Disciplinary Authority before

passing orders.

2. Where, however, the Disciplinary Authority is satisfied that

an enquiry is necessary, it shall follow the procedure for

imposing a major penalty as laid down in regulation 6.

3. The record of the proceedings in such cases shall include -

i) a copy of the statement of imputation of lapses furnished to

the officer

employee;

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 30

ii) the defense statement, if any, of the officer employee; and

iii) the orders of the Disciplinary Authority together with the

reasons therefore.

34. Regulation 9 provides as under:

“9. COMMUNICATION OF ORDERS.

Orders made by the Disciplinary Authority under Regulation 7

or Regulation 8 shall be communicated to the officer employee

concerned, who shall also be supplied with a copy of the report

of inquiry, if any.”

35. Learned counsel for the petitioner has not been able to point

out any infirmity in the inquiry proceedings which were undertaken by

the inquiry officer vis-à-vis regulation 6 of the Bank Officer Employees’

(Discipline & Appeal) Regulations, 1977. His only contention is that the

proceedings are vitiated because the petitioner has not been heard by the

inquiry officer. However, in my considered view, there is no merit in this

contention, because ample opportunities were granted to the petitioner to

participate in the disciplinary proceedings, however, he did not do so. His

conduct also does not inspire any confidence because when he was called

upon to participate in the inquiry in the month of May, his excuse was

that he cannot join the proceedings as he was cut off by snow and that

being tourist season, railway booking was not available. Whereas, this

Court can take judicial notice of the fact that in the month of May,

Bajoura in District Kullu is never cut off from the rest of country on

account of snow. Furthe r, in my considered view, the procedure

prescribed in the abovementioned Regulations for imposition of major

penalty has been duly followed by the authorities concerned. After the

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 31

inquiry report was submitted to the disciplinary authority, he made the

same available to the petitioner and called upon the petitioner to submit

his response to the same. It is only thereafter that the disciplinary

authority has passed the order of imposition of major penalty upon the

petitioner. The order passed by the disciplinary authority is neither

cryptic nor the same can be said to be un-reasonable or non-speaking.

The disciplinary authority has mentioned the reasons as to why he has

come to the conclusion that major penalty of compulsory retirement is to

be imposed upon the petitioner.

36. Even otherwise, this Court while exercising its power of

judicial review has to satisfy its conscious as to whether the procedure

which has been followed by the authorities while imposing the penalty on

the delinquent officer/official, is sustainable in law or not. In my

considered view, there is no infirmity in the procedure which has been

followed either by the inquiry officer or by the disciplinary authority.

Therefore, neither the report of the inquiry officer is bad in law nor the

order passed by the disciplinary authority can be said to be arbitrary,

unjust, non-speaking or unreasonable. The appellate authority has also

passed a reasoned order while rejecting the appeal of the petitioner. While

passing the appellate order, the appellate authority has applied its mind

and has passed a speaking order taking into consideration all the facts

and circumstances of the case. This Court does not find any infirmity

with the order which has been passed by the appellate authority.

Therefore, in my considered view, the disciplinary proceedings have been

conducted in consonance with the provisions of the concerned

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 32

regulations of the respondent-Bank and I do not find any infirmity either

with the procedure followed by the inquiry officer or with the orders

passed by the disciplinary authority and appellate authority, respectively.

37. Mr. Y.P.S. Dhaulta, learned counsel for the petitioner has

lastly argued that the penalty of compulsory retirement imposed upon the

petitioner is otherwise harsh. I am afraid that it is not for this Court to

decide that as to what penalty has to be imposed upon an officer/official

or the Court ordinarily does not interfere with the punishment which has

been imposed until and unless the order of punishment seems to be

passed on extraneous reasons. In the present case, no such circumstance

exists, which may warrant any interference in the penalty which has been

imposed by the authorities concerned.

38. It is settled law that the courts will not act as an appellate

Court and reassess the evidence led in the domestic enquiry, nor interfere

on the ground that another view is possible on the material on record. If

the inquiry has been fairly and properly held and the findings are based

on evidence, the question of adequacy of the evidence or the reliable

nature of the evidence will not be grounds for interfering with the findings

in departmental enquiries. The courts will not interfere with findings of

fact recorded in departmental enquiries, except where such findings are

based on no evidence or where they are clearly perverse.

39. The Hon’ble Supreme Court in State Bank of Bikaner and

Jaipur Vs. Nemi Chand Nalwaya (2011) 4 Supreme Court Cases 584 has

held that the test to find out perversity is to see whether a tribunal acting

reasonably could have arrived at such conclusion or finding, on the

::: Downloaded on - 01/11/2022 20:31:34 :::CIS

High Court of H.P. 33

material on record. The courts will however interfere with the findings in

disciplinary matters, if principles of natural justice or statutory

regulations have been violated or if the order is found to be arbitrary,

capricious, malafide or based on extraneous considerations.

40. In the present case, it is amply clear that principles of

natural justice were adhered to, but the petitioner chose not to

participate in the disciplinary proceedings. Learned counsel for the

petitioner has not been able to demonstrate that statutory regulations

were violated or that the order passed by the disciplinary authority or the

appellate authority is either arbitrary or capricious or is the result of

malafide or is based on extraneous considerations. The conclusions

arrived at by the disciplinary authority and the appellate authority are

borne out from the material on record and, therefore, there is no reason

to interfere with the findings arrived at by the said authorities, by this

Court.

41. Therefore, I find no merit in the writ petition and the same is

dismissed. No order as to costs.

(Ajay Mohan Goel)

Judge

May 04, 2016

(bhupender)

::: Downloaded on - 01/11/2022 20:31:34 :::CIS