WA/1647/2008 of The UCO Bank Vs L.S.R.Murthy on 30 December 2008

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

, THE DAY OF DECEMBERTWO THOUSAND AND EIGHT

PRESENTHON'BLE THE CHIEF JUSTICE SRI ANIL R. DAVEand HON'BLE SRI JUSTICE R.SUBHASH REDDY

WRIT APPEAL No.1647 of 2008

(Writ Appeal under Clause 15 of the Letters Patent against the orderdated 19-01-2007 in W.P.No.4965 OF 2001 on the file of the HighCourt)

Between:

1 The UCO Bank Chairman & Managing Director 10, B.T.M. Sarani, Kolkata-700 001

2 The General Manager (Operations II) ( Appellate Authority ) UCO Bank, 2, India Exchange Place, Kolkata 3 The Zonal Manager, ( Disciplinary Authority ) UCO Bank , Zonal Office E-5, Area Colony, Bhopal4 The Executive Director ( Reviewing Authority ) UCO Bank, 10, B.T.M. Sarani Kolkata-700 001

...

APPELLANTS

AND

L.S.R. Murthy son of Viswanddha Sastry F-3, UCO ARCADE, Navodaya Colony, Srinagar Colony Extn., Hyderabad-500 073

...RESPONDENT

Counsel for the Appellants: Mr. V. Ajay Kumar Counsel for the Respondent: Mr. K. Balagopal The Court made the following:

Judgment: (Per Hon’ble Sri R. Subhash Reddy, J.)

This writ appeal, under clause 15 of the Letters Patent, isfiled by the respondents in W.P.No.4965 of 2001 aggrieved by theorder dated 19-09-2007 passed by the learned single Judge. By the aforesaidorder, the learned single Judge allowed the said writ petition andquashed the final order imposing punishment in the disciplinaryproceedings initiated against the respondent herein.

2. The respondent herein was functioning as Manager ofUCO Bank between May 1987 and February 1990 at its branch atPatighanpur. On the ground that he committed certainirregularities in the conduct, appraisal and reporting of the accountof a Private Limited company, M/s. Geekay Wires Pvt. Ltd.,disciplinary proceedings were initiated against him. In view ofdenial of the charges, after conducting necessary departmentalenquiry, order dated 31-07-1999 was passed by the disciplinaryauthority reducing his pay from Rs.9,700/- to Rs.7,820/- for aperiod of one year. Further, it was ordered that reduction in thepay will have the effect of postponing his future increments. Therespondent herein has questioned the said final order by way ofdepartmental appeal and the General Manager (Operation II), whois the appellate authority, by order dated 04-12-2000, rejected thesaid appeal. After dismissal of the departmental appeal, therespondent filed W.P.No.4965 of 2001 questioning the final orderdated 31-07-1999 passed in the disciplinary proceedings.

3. Before the learned single Judge, mainly, it was the case ofthe respondent herein that he was denied reasonable opportunityof defending himself in the enquiry as much as his request toexamine certain witnesses in his defence was rejected by theenquiry officer. The learned single Judge, while recording afinding that the relevant Regulations governing the procedure forimposing major penalties did not empower either the enquiryofficer or the disciplinary authority to reject the delinquentemployee’s request for examination of witnesses in his defence,allowed the writ petition and set aside the final order passed in thedisciplinary proceedings.

4. Heard Sri V. Ajay Kumar, learned counsel appearing forthe appellants-bank and Sri K. Balagopal, learned counselappearing for the respondent-employee.

5. It is contended by Sri V. Ajay Kumar, learned counsel forthe appellants, that as per the UCO Bank Officer Employees’(Conduct) Regulations, 1976 (for short ‘the Regulations’)governing the procedure for imposing major penalties, it is notobligatory on the part of either the enquiry officer or thedisciplinary authority to allow all the witnesses proposed toexamined by the employee in the disciplinary proceedings. It issubmitted that when the list of witnesses was furnished, theenquiring authority has considered the relevancy of suchwitnesses and refused to allow the said witnesses by recording areason that the respondent-employee has not indicated anyrelevancy of the said witnesses with reference to the chargesframed against him. It is submitted that, merely because all the witnesses who were proposed to be examined were not allowed, itcannot be said that the respondent-employee was deniedreasonable opportunity in the enquiry proceedings. It is furthersubmitted that it is always open to the enquiring authority toexamine the relevancy of witnesses and allow only such of thewitnesses who are relevant for the purpose of enquiry, on thecharges framed against the delinquent employee.

6. On the other hand, it is contended by Sri K. Balagopal,learned counsel for the respondent-employee, that all thewitnesses specified in the list given by the respondent-employeeare relevant witnesses; in spite of the same, he was not allowed toexamine such witnesses. It is submitted that as much as therespondent-employee wanted to examine the witnesses on hisown, the appellants could not have denied for examination of suchwitnesses. It is submitted that the said action is arbitrary and ithas resulted in passing of an adverse final order in the disciplinaryproceedings. It is further submitted that in view of the procedurecontemplated, the learned single Judge has rightly recorded afinding that the Regulations did not empower the enquiry officer toreject the request for examination of witnesses.

7. In exercise of powers conferred by Section 19 of theBanking Companies (Acquisition and Transfer of Undertakings)Act, 1970, the Board of Directors of the UCO Bank in consultationwith the Reserve Bank and with the previous sanction of theCentral Government, framed the Regulations, titled as UCO BankOfficer Employees’ (Discipline and Appeal) Regulations, 1976. Regulation 6 of the aforesaid Regulations deals with the procedurefor imposing major penalties. For the purpose of deciding the issue in the present case, it is apposite to refer to Regulation 6(10) to (12) of the Regulations. Under Regulation 6 (10)(a), theenquiring authority, shall where the officer employee does notadmit all or any of the articles of charge, furnish to such officeremployee a list of documents by which, and a list of witnesses bywhom, the articles of charge are proposed to be proved. UnderRegulation 6 (10)(b)(ii), the enquiring authority shall also record anorder that the officer employee, may for the purpose of preparinghis defence, submit a list of documents and witnesses that hewants for the enquiry. There is a note to Regulation 6(10)(b)(ii),which reads as under:

“The relevancy of the documents and theexamination of the witnesses referred to in item(ii) shall be given by the officer employeeconcerned.”

8. So far as the documentary evidence is concerned, there isa power, under proviso to Regulation 12, to the authority havingthe custody or possession of the documents to claim privilege ifthe production of such documents will be against public interest orthe interest of the bank.

9. A reading of the aforesaid provisions, particularly, the noteappended to Regulation 6(10)(b)(ii), makes it clear that it isobligatory on the part of the officer employee, while giving the listof witnesses proposed to be examined in his defence, to show therelevancy of such witnesses. The learned single Judge, whilemaking a distinction, between the proviso to sub-regulation 12 ofRegulation 6 and to that of other Regulations, has held that, in theabsence of any provision in the Regulations, to reject such witnesses for examination, as proposed by the officer employee,the action of the enquiry officer not allowing such witnesses, isillegal.

10. In this case, it is to be noted that after initiation ofdisciplinary proceedings, the respondent-employee has given a listof witnesses as contemplated under Regulation 6(10)(b)(ii) of theRegulations, vide his letter dated 19-11-1997. But his request wasrejected by the enquiry officer vide letter dated 28-11-1997 holdingthat the relevancy of the witnesses as shown by the respondent-employee was vague and totally irrelevant. In the impugned order,the learned single Judge did not go into the relevancy of thewitnesses as proposed by the respondent-employee, withreference to the charges framed against him, but, merely on theground that there is no such provision in the Regulations to rejectsuch request, accepted the plea of the respondent-employee andallowed the writ petition. We have carefully considered theprocedure contemplated under the Regulations with reference tothe note appended to Regulation 6(10)(b)(ii) of the Regulations. When it is indicated in the note that the officer employee has togive the list of witnesses to be examined on his behalf in theenquiry, by showing the relevancy, it is always open to the enquiryofficer to examine the relevancy of such witnesses vis-à-vis thecharges framed against the delinquent employee. It cannot beruled out that, many a time, the employees against whomdisciplinary proceedings are initiated try to prolong the issue byexamining the witnesses and also by requisitioning the documents,which are irrelevant for the purpose of the enquiry, on the chargesframed against them. The note appended to Regulation 6(10)(b)(ii)

of the Regulations, which mandates the employee to show therelevancy of the documents and the witnesses, impliedly givespower to the authority to examine the relevancy and to decidewhether to allow such documents and witnesses. We are of theview that, to examine relevancy of witnesses, there need not beany specific provision in the Regulations. Further, it is also wellsettled in the service jurisprudence that unless the employeepleads and proves the prejudice caused to him on account ofdenial of opportunity of examining a particular witness, it is notopen to nullify the final order passed in the disciplinaryproceedings, which is otherwise in conformity with theRegulations.

11. As much as the learned single Judge did not examine therelevancy of the witnesses who were proposed to be examined bythe respondent-employee, we allow this writ appeal and remit thematter for fresh consideration by the learned single Judge.

12. For the foregoing reasons, the order dated 19-01-2007passed by the learned single Judge in W.P.No.4965 of 2001 is setaside. Registry is directed to post W.P.No.4965 of 2001 for finalhearing before the learned single Judge, hearing such subjectmatter of cases, as per the present sitting arrangements.

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ANIL R. DAVE, CJ.

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R. SUBHASH REDDY, J.