P.K. Rajeevan v. The Chairman and Managing Director, Indian Bank

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`&`** ## **`THE HONOURABLE MRS. JUSTICE C.S. SUDHA`** ``` WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945 ``` ## **`WA NO. 1136 OF 2017`** ## **`AGAINST THE ORDER/JUDGMENT WPC 20557/2013 OF HIGH COURT OF KERALA APPELLANT/RESPONDENTS:`** ``` 1THE CHAIRMAN AND MANAGING DIRECTOR, INDIAN BANK 254-260, AVAAI SHANMUGHAM SALAI, ROYALPETTAH, CHANNIA 600 014 2THE EXECUTIVE DIRECTOR INDIAN BANK 254-260,AVAAI SHANMUGHAM SALAI, ROYALPETTAH, CHANNIA 600 014 ``` ``` 3THE GENERAL MANAGER (VIGILANCE & HR) INDIAN BANK, 254-260, AVAAI SHANMUGHAM SALAI, ROYALPETTAH, CHANNIA 600 014 ``` ``` 4THE DEPUTY GENERAL MANAGER INDIAN BANK, 38/1672,CHITTOOR ROAD, PULLEPADY JN.EERNAKULAM, COCHIN - 682 035 ``` ``` BY ADV SRI.S.EASWARAN ``` ## **`RESPONDENT/PETITIONER:`** ``` P.K.RAJEEVAN, RADHA VIHAR, CHIRAKKARA P.O.,THALASSERY, KANNUR DISTRICT, PIN-670104. ``` ``` BY ADVS. K.C.SANTHOSHKUMAR K.K.CHANDRALEKHA ``` ``` THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WA NO. 1136 OF 2017 ``` ``` 2 ``` ## **JUDGMENT** ## **Amit Rawal, J.** 1. The present appeal is directed against the judgment of the Single Bench whereby the prayer of the respondent-petitioner for quashing of Ext.P4 order dated 05.05.2005, Ext.P6(a) dated 28.07.2006, Ext.P8(a) dated 30.03.2007 and Ext.P12 dated 8.6.2012 has been allowed in part by quashing Ext.P12 with a direction to the appellants-respondents to take a call on the representation of the respondent-petitioner Ext.P13. The facts in brief are as under: 2. The respondent/petitioner while working as Assistant Manager in the Bank was suspended and was issued a charge sheet on the ground of certain financial irregularities. Dissatisfied with the reply submitted to the charge sheet, an Enquiry Officer was appointed. Enquiry Officer on the basis of the evidence brought on record submitted report to the effect that the charges have been proved and accordingly after having complied with the principles of natural justice, vide order ``` WA NO. 1136 OF 2017 ``` ``` 3 ``` Ext.P4 dated 05.05.2005, was dismissed. Appeal preferred against the order of the disciplinary authority dismissing him from service was also dismissed vide order dated 29.07.2006 Ext.P6. As per Regulation 18 of the Indian Bank Officer Employees’ (Discipline & Appeal) Regulations, 1976 (Regulations 1976, in short) preferred a review petition which was also dismissed vide order dated 30.03.2007. At that time the respondent did not assail the aforementioned order by filing writ petition. 3. It is pertinent to mentioned here that simultaneously matter was reported to the CBI, CBI submitted a report and a crime was registered. The said crime case resulted into acquittal Ext.P9 dated 21.11.2011. It is on the basis of that acquittal a representation dated Ext.P11 dated 24.04.2012 was submitted which was dismissed vide order dated 08.06.2012 Ext.P12. On receipt of the aforementioned communication respondent challenged the order of dismissal dated 05.05.2005, orders in appeal and review Exts.P6 and P8 much less Ext.P12 by filing a writ petition in 2013. 4. In response to the notice, appellant-bank raised ``` WA NO. 1136 OF 2017 ``` ``` 4 ``` objection of delay and laches and also submitted that the parameters for consideration of charges vis-a-vis the Criminal and departmental are totally different and they are based upon the preponderance of evidence let in in each of the matter. The writ petition was admitted and taken up for final hearing in 2017. 5. Sri.Easwaran, learned counsel appearing on behalf of the appellant-bank in support of the intra court appeal has raised the following submissions: 1) The learned Single Judge has failed to notice that admission of the writ petition would not overcome the hurdles of the delay and laches, rather while taking the same to the other way found that the admission would result into condonation of delay which is contrary to the settled law. 2) There is no provision in the regulations providing reconsideration of the punishment in case of acquittal in criminal matter. In support of the aforementioned contentions reliance has been laid to the judgment of Supreme Court in **Deputy Inspector General of Police and Another** v. **S.Samuthiram** ``` WA NO. 1136 OF 2017 ``` ``` 5 ``` [(2013) 1 SCC 598]. 3) Issuance of directions vide impugned judgment to the Bank to decide representation Ext.P13 would tantamount to re-agitating the issue which has already been put to rest vide impugned order Ext.P12 while rejecting the representation Ext.P11 dated 24.04.2012. In other words, the contents of representation Ext.P11 and Ext.P13 are identical. Thus it would be farcical for the Court below to put the clock back and issue directions to the employer for deciding the controversy already decided in a pragmatic and reasonable manner. 4) The contention that respondent did not receive the order of review dated 30.03.2007 is neither here and there, for, the communication of the decision was sent by registered post but was unclaimed. As per the settled law, the report on the registered notice qua unclaimed is deemed service. 6. On the other hand, learned counsel appearing on behalf of the respondent/petitioner supported the impugned order by submitting that no doubt the respondent/petitioner did not receive ``` WA NO. 1136 OF 2017 ``` ``` 6 ``` the communication of order dated 30.03.2007 and came to know only when received the order Ext.P12 dated 08.06.2012 wherein for the first time it was disclosed that the review petition was dismissed on 30.03.2007. Thus the respondent cannot be blamed on the ground of delay and latches and by that time there was already an order of acquittal and thus gave a cause to challenge the original order of dismissal from service, order passed in the appeal as well as in the review petition. 7. Explanatory note to Regulation 18 of Regulations, 1976 also empowers the management/employer to review the punishment imposed on an Officer employee either on the basis of a representation preferred by the Officer employee or its own and to pass such orders as it may deem fit, even wider than the Appellate Authority. Review can done within six months of the date of final order. It is in that background, representation Ext.P12 was submitted. Even after the rejection Ext.P12 dated 08.06.2012, other representation Ext.P13 was submitted which was based upon an broad spectrum. No harm and prejudice would be caused in case the management is called upon to decide the same in ``` WA NO. 1136 OF 2017 ``` ``` 7 ``` accordance with law and urged this Court for dismissal of the appeal. 8. We have heard the learned counsel for the parties and appraised the paper book and of the view that the order of the Single Bench is not sustainable and the ground is not one but many. 9. The following dates and events would reveal that the petitioner had been remiss in not availing the remedy by challenging the orders of dismissal from service, dismissal of appeal and rejection of review petition. i) On 05.04.2007 dismissed from service. ii) On 29.07.2006 appeal was dismissed. iii) On 30.03.2007 review petition was dismissed. For five years respondent/petitioner did not agitate the issue and woke up from slumber only on receipt of judgment of acquittal Ext.P9 and submitted a representation on 24.04.2012 resulted into rejection on 08.06.2012. It is worth to extract the contents of the order dated 08.06.2012 Ext.P12 which has been set aside/quashed ``` WA NO. 1136 OF 2017 ``` ``` 8 ``` ## by the Single Bench, the same reads as under: **“Penalty of ‘Dismissal’ imposed on you by DGM/DA vide orders dated 05-05-2005 in respect of Charge Sheet dated 05-11-2002 issued to you.** **Your representation dated 24.04-2012 for reinstatement in the services of the Bank based on acquittal ordered by Hon’ble CBI Court** We inform as under: 1. Your review petition dated 25.09.2006 was dealt and disposed of by the ED/Reviewing Authority, vide his order dated 30.03.2007. The said order was sent to you by registered post, but was returned for the reason 'unclaimed. Copy of the said order, along with copy of the returned envelope, is enclosed. 2. Your acquittal by the Hon'ble Court in the criminal case does not have a bearing on the decision reached in the departmental proceedings held into the charges leveled against you, since the two sets of proceedings stand on a different footing. While court proceedings are conducted to determine criminality of action, departmental proceedings are held to determine misconduct in employment which is inconsistent with the expected norms of conduct and adherence to bank's procedures. It is therefore directed to inform that your representation dated 24.04.2012 cannot be considered.” 10. We would be also failing in our duty in not extracting the operative part of the judgment of the Single Bench ``` WA NO. 1136 OF 2017 ``` ``` 9 ``` ## disagreeing with the contention of the employer qua the objection of delay and laches, the same reads as under: “10. I have considered the contentions advanced. At the outset, it is clear from the fact that the writ petition had been admitted and entertained and kept pending in the court for nearly four years that the objection raised as to the maintainability of the same on the ground of delay has been virtually found against by this Court. Exhibit P12 order is dated 8.6.2012. By the forwarding of Exhibit P8(a) along with Exhibit P12, the respondents have also accepted the fact that it had not been served on the petitioner. After Exhibit P12, the petitioner has preferred Exhibit P13 before the Chairman and Managing Director of the Bank. Exhibit P13 is dated 10.11.2012. The filing of the writ petition on 4.8.2013, in the facts of the case cannot be said to be so belated as to attract a summary dismissal on the ground of delay. I find that after the question of maintainability was raised, the writ petition was admitted on 2.12.2016 and posted for hearing. The question of maintainability had been taken up as early as in the first statement filed by the respondents on 20.9.2013. It was thereafter that the writ petition was admitted notwithstanding the objection as to the maintainability raised by the respondents. Such admission of the writ petition, according to me, amounted to a condonaton of delay in filing the writ petition as has been held by the Apex Court in M.Sudakar's case (supra). In exercise of discretionary jurisdiction by this Court under Article 226 of the Constitution of India, the question would not be as much of a bar of ``` WA NO. 1136 OF 2017 ``` ``` 10 ``` jurisdiction as of that of the discretionary exercise of such jurisdiction by this Court. Where this Court has consistently refused to non suit the petitioner on the ground of delay in approaching this Court, I am of the view that it is not open for this Court so late in the day, to dismiss this writ petition on the strength of the objections raised in that regard.” 11. The reasoning assigned by the Single Bench in our considered view would not take away the right of the opposite side ie., appellants herein regarding the objection of delay and laches. The explanation given in the writ petition that the respondent/petitioner acquired the knowledge dismissal of the review petition only on receipt of the rejection order dated 08.06.2012 is neither here and there, for, the decision communicated to the respondent/petitioner was through a registered post and the report thereon was 'unclaimed'. A registered cover remains unclaimed is a deemed service. No explanation has comeforth for not availing the remedy for five years. Thus, we are of the view that the findings of the Single Bench by overruling the objection of the delay and laches is not sustainable and hereby set aside. ``` WA NO. 1136 OF 2017 ``` ``` 11 ``` ## 12. Coming to the merits of the matter, we deem it appropriate to extract the findings rendered in the judgment. Paragraph 11 reads as under: “11. On considering the precedents relied on by the learned counsel appearing on either side, I am in complete agreement with the learned counsel appearing for the Bank that there was no automatic right bestowed on the petitioner for a reinstatement in service on the strength of Exhibit P9 judgment of acquittal. While acceding this point to the employer Bank, I am, however, of the view that the contention raised by the learned counsel appearing for the respondents that the acquittal in criminal proceedings would have no bearing whatsoever on the concluded disciplinary proceedings cannot be accepted in toto. It is admitted that the disciplinary proceedings as well as the criminal prosecution was launched on the same set of facts. The allegations were substantially the same. As is wont in our country, the criminal judicial system took much longer to return a verdict than the employer, who proceeded to dispose of the disciplinary proceedings at the original, appellate and review levels. In any view of the matter, Exhibit P9 judgment acquitting the petitioner of all charges levelled against him has been issued in November, 2011. The petitioner has produced the said judgment before the respondents and sought reinstatement on the strength of the said acquittal. While it may be true that an order of automatic reinstatement would be impossible in view of the directions contained in the rules governing the matter, I am ``` WA NO. 1136 OF 2017 ``` ``` 12 ``` of the opinion that Exhibit P9 should have been considered by the respondents at least to see as to what would be its impact on the confirmed order of dismissal issued in disciplinary proceedings. The refusal on the part of the respondents to take note of Exhibit P9 in its entirety would, according to me, not be in consonance with the law as laid down by the Apex Court on the subject. While confirming the finding that the petitioner cannot seek reinstatement in service and the wiping of the entire disciplinary proceedings conducted against him on the strength of Exhibit P9, I am of the opinion that the impact of the judgment on the order imposing penalty as upheld in appeal and review should have been considered by the respondents.” 13. Representation Ext.P11 was dismissed vide order impugned before the Single Bench Ext.P12 dated 08.06.2012, extracted above, whereas respondent/petitioner did not stop there and made another representation Ext.P13 dated 10.11.2012 after almost five moths of Ext.P12. On perusal of the contents of the representation Ext.P11 which entailed in to dismissal vide Ext.P12 as well as Ext.P13, the contents are verbatim except some jumbling of the facts. We are of the view that no useful purpose would be served in case the appellant/bank is directed to reconsider the same grievance as raised in Ext.P13 which was ``` WA NO. 1136 OF 2017 ``` ``` 13 ``` already rejected vide Ext.P12. ## 14. The explanatory note to the Rule 18 of the Regulation reads as under: “Reviewing Authority may review the punishment imposed on an officer employee either on the basis of a representation preferred by the officer employee or on its own. The powers of the Reviewing Authority are to pass such orders as it may deem fit, even wider than the Appellate Authority; The review can be done within six months of the date of final order; The reviewing Authority can review a case after an Appellate Authority has passed its orders. It can also review a case when no appeal is filed and the review in that case would be of the orders passed by the Disciplinary Authority.” 15. The aforementioned power can be only exercised in case the review authority wants to give a different opinion than the one arrived at by the Appellate Authority and the Disciplinary authority. Once the review petition has been dismissed no circumstances arose in favour of the respondent-petitioner to seek review of the order as per the explanatory note. ``` WA NO. 1136 OF 2017 ``` ``` 14 ``` For the reason aforementioned, the judgment of the Single Bench is set aside. Writ Petition stands dismissed. Consequently intra court appeal stands allowed. Sd/- **AMIT RAWAL JUDGE** Sd/- **C.S. SUDHA JUDGE** nak