1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 28TH DAY OF FEBRUARY 2013
BEFORE
THE HON’BLE MR.JUSTICE RAVI MALIMATH
WRIT PETITION NO.4924 OF 2009(S-DIS)
BETWEEN:
Tharian Chacko
S/o late P.C.Chacko
Aged about 59 years, earlier
Working as officer in Middle
Management Grade Scale-III
In Andhra Bank since illegally
Dismissed from service and
Residing at A-5, Gagan Manor,
Dinnur R.T.Nagar,
Bangalore – 560 032.
…
PETITIONER
(By M.N.Prasanna & Sri K.Puttegowda, Advocates)
AND:
1. Andhra Bank
A body constituted under the
Banking Companies (Acquisition
And Transfer of Undertaking) Act,
1980 having its Head Office at
2
Dr.Pattabhi Bhavan, 5-9-11, Saifabad,
Hyderabad – 500 004 represented
By its General Manager(HR),
Personnel Department.
2. A.V.Suryanarayana Rao
Deputy General Manager (HRD)
And Disciplinary Authority,
Andhra Bank, Personnel Department,
Head office, Dr.Pattabhi Bhavan,
5-9-11, Saifabad,
Hyderabad – 500 004.
…RESPONDENTS
(By Smt.K.Subha Ananthi , Advocate for M/s.Kasturi
Associates, Advocates
R2-Served)
*****
This Writ Petition filed under Articles 226 of the
Constitution of India praying to quash the order dated
21.10.2000 passed by the Disciplinary Authority
(Annexure-TT to the WP) & Order dated 25.10.2008,
passed by the Appellate Authority (Under Annexure-AAA to
the WP) by issue of Writ in the nature of certriorari & grant
all consequential benefits including reinstatement of the
petitioner into the services of the respondent/Bank with
continuity of Service and all Service benefits including the
monetary benefits etc.,
This Writ Petition coming on for hearing
the Court made the following:-
this day,
3
ORDER
The case of the petitioner is that he joined the first
respondent Andhra Bank as Officer Grade-II in 1978. He
was thereafter placed in Middle Management Grade II. He
was later promoted to the Middle Management Grade
Scale-III in November, 1988. He worked as Sub-Manager,
Calcutta Main Branch, as Branch Manager, Chowringhee,
Calcutta Branch, as Manager(credit) at Madras Main
branch. When he was working as Branch Manager at the
Trivandrum Branch, he was deputed to Andhra Bank
Financial
Services
‘ABFSL’)
which
is
Limited(hereinafter
wholly
a
referred
subsidiary
of
to
the
as
first
respondent Andhra Pradesh Bank, as its Senior VicePresident.
While he was working in the said capacity, a
criminal case was lodged against M/s.Fairgrowth Financial
Services Limited., Bangalore, (hereinafter referred to as
‘FFSL’) on 25-7-1992. The Directors of FFSL were named
as accused. The petitioner was being examined before the
4
CBI from time to time as their witness. It is the case of
the petitioner that the CBI intended to misuse him by
directing him to make statements against the officers of
the Bank.
That he refused.
He was threatened and put
under illegal confinement by the CBI threatening his life.
He was therefore forced to file a complaint before the
officials of CBI in criminal case No.361/1992 before the
R.T.Nagar Police Station, Bangalore. It is for this reason
that the CBI intended to settle scores with him and he was
arrayed as an accused.
That the criminal case was
transferred to the Special Court at Bombay. The petitioner
was taken into custody by the CBI. By the order dated
4-12-1992, he was placed under suspension.
Aggrieved
by the order of suspension, he filed an appeal before the
appellate authority. The appeal was dismissed. Thereafter
the Bank initiated disciplinary proceedings against the
petitioner by issuing the articles of charge dated 14-51994. It is the case of the petitioner that the same was
issued
as
directed
by
the
Central
Vigilance
5
Commission(CVC). That it also directed the respondent to
appoint
a
particular
Commissioner
of
Departmental
Enquiries as an Enquiring Officer. In the interregnum, the
CBI filed a charge sheet on 12-10-1993 before the Special
Court at Bombay. The petitioner was named as one of the
several accused. That the charges levelled against him in
the departmental enquiry as well as the criminal case are
identical.
2.
In the reply to the article of charges, the
petitioner contended that the first charge be deferred until
the conclusion of the trial before the Special Court and the
second charge to be dropped in the light of the finding of
the CBI that it is baseless. That the charge sheet does not
disclose the material the basis on which the disciplinary
authority had satisfied itself with regard to the charge
sought
to
be
made
against
the
petitioner.
One
Sri P.M.Rangaswamy, the Commissioner for departmental
enquiries, Central Vigilance Commissioner was appointed
6
as the Enquiring Officer. Later on he was replaced by one
Sri K.K.Mathews. Before the Enquiring Officer a plea was
made for appointment of a legal practitioner to defend his
case. The same came to be rejected by the Enquiring
Officer.
Aggrieved by the same, the petitioner filed writ
petition No.3388/1994 wherein by the order 9-7-1997 the
impugned order was set aside and a direction was issued
to the disciplinary authority to reconsider the matter after
hearing
defended
the
by
petitioner.
the
Thereafter
petitioner
permission was granted.
the
himself.
enquiry
was
Subsequently
The permission was granted
belatedly. Hence it has prejudiced his case. By the letter
dated
5-11-1994 he requested for production of 9
documents and 5 witnesses for defence. The enquiring
officer by his order dated 31-3-1998 passed an order to
the effect that so far as the documents at Serial Number 9
is concerned, the same would not fall within the scope of
the enquiry and hence the same was disallowed. The copy
of other documents at Serial Numbers 1 to 8 in the
7
application was allowed.
It directed that the said
documents should be provided to the petitioner. However,
it was not completely complied. The documents at Serial
Numbers 1,2,5 and part of Serial Number 7 were given.
The documents mentioned at Serial Numbers 3,4,6 and 8
were denied.
During the course of the enquiry the
petitioner sought for payment of TA and DA in respect of
the witnesses in his defence. The same was denied to him
on the ground that the payment of TA & DA to the
witnesses for the defence were not permitted by the rule.
Hence, the Bank refused the payment of TA & DA.
The
management examined three witnesses. They were crossexamined by the petitioner.
The petitioner produced 14
documents in defence and examined two witnesses, all of
whom were working at ABFSL at the relevant the point of
time. The Enquiry Officer held that both the charges were
not proved. Since the respondent Bank did not act on the
report of the Enquiring Officer the petitioner submitted a
representation in support of the same. The Chairman and
8
the Managing Director heard the Petition.
Even then no
action was taken. Another representation was made. By
the
communication
dated
13-6-2000
the
disciplinary
authority disagreed with the findings recorded by the
Enquiring Officer. The petitioner was therefore called upon
to make his submissions.
He submitted a detailed
representation. He also appeared before the disciplinary
authority.
By the impugned order, the disciplinary
authority imposed the penalty of dismissal from service on
the petitioner.
Aggrieved by the same, he filed a writ
petition No.5887/2006.
By the order dated 20-11-2000
the writ petition was dismissed on the ground that the
petitioner has not exhausted his alternative and efficacious
remedy of filing a statutory appeal.
The petitioner was
granted 5 days to file the appeal.
Consequently, the
appeal was filed.
appeal.
The appellate authority rejected the
The petitioner thereafter filed writ petition
No.2614/2001 questioning the order of the disciplinary
authority as well as the appellate authority. By the order
9
dated
21-7-2008
the
matter
was
remanded
to
the
appellate authority on the ground that it was not a
speaking order. Thereafter the appellate authority by the
impugned order dated
25-10-2008 rejected the
appeal. Hence, the present Petition questioning the order
of the disciplinary authority dated 21-10-2000 and the
order passed by the appellate authority dated 25-10-2008.
3.
Sri Prasanna, the learned counsel appearing
for the petitioner contends that the impugned orders are
erroneous and liable to be set aside. That the disciplinary
authority
committed
interference.
a
grave
error
which
calls
for
That neither an adequate nor a reasonable
opportunity has been given to the petitioner to defend his
case. He was not even accorded the benefit of engaging
any counsel in order to defend his case.
Inspite of the
orders directing furnishing of the documents, the Bank
failed to furnish the same.
Failure to provide the said
documents has led to prejudice against the petitioner. That
10
such a failure has necessarily led to miscarriage of justice.
He therefore pleads that non-furnishing of the documents,
would entail the writ petition to be allowed and the
impugned orders be set aside. In support of his case he
relies
on
the
Judgment
in
the
case
of
G.V.ASWATHANARAYANA v. CENTRAL BANK OF INDIA,
BOMBAY AND OTHERS reported in 2004(1) Kar.L.J 363 in
particular reference to para-20, to contend that if the
Court was of the view that the disciplinary authority has
failed to furnish the documents and the documents are
prejudicial to his interest, it would be the duty of the Court
to interfere with the action taken by the disciplinary
authority. He therefore pleads that on this ground itself,
the Petition requires to be allowed.
4.
On the other hand, Smt.Subha Ananthi,the
learned counsel appearing for respondent No.1, defends
the impugned orders. She contends that there is no error
committed
by
both
the
authorities
that
calls
for
11
interference. Even if it is assumed that certain documents
were not furnished to the petitioner, that by itself cannot
be a ground to set aside the impugned order.
It is
necessary for the petitioner to show, that on refusal of
such documents, the same has resulted in prejudice and
therefore such a prejudice would entail the orders to be set
aside. The petitioner has failed to show that any prejudice
is caused to him. Merely asserting that the documents
have not been produced, is not sufficient to set aside the
detailed orders passed by both the authorities.
It is
further contended that such a ground of prejudice should
be pleaded and proved. That the petition averments as
well as that documentation would show that there is no
sufficient pleading in support of prejudice. Merely stating
that the document has not been furnished is not sufficient.
Prejudice has to be pleaded and established. Under these
circumstances, it is pleaded that the Petition be dismissed.
12
5.
Heard learned counsels and examined the
records.
6.
The primary contention of the petitioner is
based on non-furnishing of the documents. A request was
made by the petitioner in terms of his letter dated
5-12-1994 wherein he gave a list of 9 documents that are
required in defence of his case. It also narrates as to with
whom the said documents are available and the relevancy
of the documents to the case. In terms whereof, by the
order dated 31-3-1998 the enquiring officer was of the
view that so far as documents at Serial No.9 is concerned
namely, the same is not relevant to the defence of the
petitioner.
The case of the petitioner was that it was
intended to prove the nexus between the top management
of the Bank and FFSL. However, the documents as
mentioned at Serial Numbers 1 to 8 were allowed.
It is
the further case of the petitioner, that even though such
an order was passed, the documents that were handed
13
over to him were those documents that were mentioned at
Serial Nos.1,2,5
and part of serial No.7 were given. The
documents at Sl.Nos.3, 4, 6, part of Serial No.7 and 8
were not given. He therefore pleads that by the absence
of these documents, prejudice has been caused. However,
the learned counsel for the respondent disputes the same.
She contends that so far as Item No.3 is concerned they
were not applicable to the petitioner. Hence, it need not
have been given to him.
concerned
the
Bank,
Regulation
12
of
the
That so far as Item No.4 is
pleaded
privilege
in
terms
Andhra
Pradesh
Bank
of
Officer
Employees’ (Discipline and Appeal) Regulations, 1981.
That the documents at Serial No.6 was not given to the
petitioner.
granted.
Part of the document at Serial No.7 was
However, so far as Serial No.8 is concerned,
even though the same was not given to the petitioner, the
same
has
been
consideration
consideration.
of
produced
Item
by
No.8
him.
would
Therefore
not
arise
the
for
14
7.
It
is
apparent
that
the
ground
of
non-
furnishing of the documents would not by itself vitiate the
entire enquiry.
It is imminent that the petitioner would
have to show that due to the failure to furnish the
documents, prejudice has been caused to him. Therefore
each one of these documents which were not furnished to
the petitioner would have to be considered in order to
ascertain as to whether prejudice was caused to the
petitioner or not.
8.
The first document which was not given to the
petitioner at Serial No.3, is the report of Sri A.R.Rao which
reads as follows:-
Sl.No.
3.
List of Documents
Report of Sri A.R.Rao,
the Special Officer
appointed by the
Government to fix the
accountability in the
bank and mentioned
in the J.P.C. report
and the ATR of the
Government. I
With whom
available
Disciplinary
Authority of
Andhra
Bank,
Hyderabad.
Relevance to the
case
To prove the
nexus of FFSL
and the top
management of
Andhra Bank and
to prove the
innocence of the
C.O.
15
The first charge levelled against the petitioner reads as
follows:“1. On 31.10.91, you have deployed an
amount of Rs.7.10 crores for an interest @
22% per annum for 6 months with Fair Growth
Financial
Services
Ltd
(FGFSL),
Bangalore
against Memorandum of sale Dt. 31.10.91
issued by FGFSL, Bangalore for sale of 9%
IRFC Bonds of face value of Rs.7.10 crores.
The memorandum of sale for this transaction
indicated the delivery of the security through a
Banker’s Receipt of American Express Bank.
But you have released the funds of Rs.7.10
crores
to
FGFSL,
Bangalore
on
31.10.91
without taking delivery of any security either in
the form of physical securities or Banker’s
Receipt.
Thus, you have made available
Rs.7.10 crores to FGFSL for a period of 6
months as a clean advance thereby exposing
ABFSL to financial risk for the like amount.
“By the above act, you have displayed lack of
devotion and diligence is discharge of your
duties and you have failed to take all possible
steps to ensure and protect the interests of
16
ABFSL
and
thereby
acted
in
a
manner
unbecoming of bank officer.
The case sought to be made out by the petitioner in brief is
that he was not the only authority who could have
deployed the amount of Rs.7.10 Crores. That the top
management of FFSL as well as the concerned Officers of
his Bank are responsible for such a deployment as well as
non-taking of delivery of any security towards the said
amount.
It is pleaded that all these top officers in the
Bank are responsible.
improper.
That the charge on him alone is
He therefore contends that the report of
Sri A.R.Rao, the Special Officer would indicate the nexus
between FFSL and the top management of Andhra Bank to
prove his innocence. Therefore if such a report was made
available to the petitioner, necessarily he would have been
in a position to show that it was not he alone, but the
other officers who were also responsible.
It is therefore
pleaded that in the absence of such a report he was not in
17
a position to defend himself so far as charge No.1 is
concerned.
9.
By the reply dated 28-5-1994 the petitioner
has stated his defence. The details of the various amounts
have been narrated therein.
His specific plea is that he
does not have absolute power to deploy such amounts.
That the Board of Directors of ABFSL had given full powers
for deployment to the Managing Director who did not
delegate this power to any other officer in the organization
including him. That a sum of 7.10 Crores was picked up
from PSU in New Delhi which were known to the officers of
ABFSL etc. In the course of his detailed reply at para-6 it
is narrated as follows:-
“1.xxxxx
2.xxxxx
3.xxxxx
4.xxxxx
5.xxxxxx
18
6.
…….. Your attention is drawn to the various
Janakiraman Committee reports, RBI and Joint
Parliamentary Report in this matter to refresh
your memory.”
A reading of this part of the reply would show that the
petitioner was aware of the existence and the contents of
various reports namely the Janakiraman Committee report,
the RBI report and the Joint Parliamentary report. Based
on the contents of these reports, what is sought to be
pleaded is that the bank should refresh its memory so far
as these various reports are concerned.
Therefore
knowing these reports, such a reply was furnished by him
to the first article of charge. The document sought for is
the report of Sri A.R.Rao, who was the Special Officer
appointed by the Government, whose report is mentioned
in the JPC report and the ATR of the Government. It has
been referred to by the petitioner in his reply. Therefore
the JPC report and the ATR of the Government would
necessarily contain the report of Sri A.R.Rao. The report of
19
Sri A.R.Rao is part of the JPC report and the ATR of the
Government. The petitioner is aware of the complete
reports of the JPC and the ATR.
Therefore it cannot be
said that he is unaware of the report of Sri A.R.Rao. Even
though the report of Sri A.R.Rao is distinct, it forms part
and parcel of the report of JPC. It is such a report of the
JPC which has been adverted to by the petitioner, in para6 of his reply to charge No.1. Therefore it is imminent to
hold that such a document was well within the knowledge
of the petitioner.
He cannot therefore plead that such a
document has not been furnished to him by the Bank. In
view of the statement made by the petitioner himself, the
question of prejudice in non-furnishing the report of
Sri A.R.Rao would not arise for consideration, since the
petitioner was well aware of such a report.
10.
The second document that was denied to him
is as follows:-
20
SL.No.
4
List of Documents
Report
of
the
investigating officer of
CBI
Sri
D.B.Desai,
Dy.SP, CBI. 1.Y.Sunder
Babu,DGM
2.Sri B.Srinivas Rao, GM
3. Sri R.Kalyana RamanOfficer
4.Sri Anand Madhabhusiofficer
5. Sri Eswar Prasad,
Officer
With
whom
available
Disciplinary
Authority,
Andhra Bank,
Hyderabad
Relevance
to
the case
In
order
to
cross-examine
the
witness
Mr.D.B.Desai.
It is contended that based on the report of Sri D.B.Desai,
Dy.SP., CBI, the Investigator of the CBI, the charge sheet
was filed.
It is undisputed that at the time when the
report was procured from Sri D.B.Desai, he was a Police
Officer working under the CBI. He was not in employment
of the respondent bank or with any other bank. It is the
case of the petitioner that on the basis of this report of
Sri D.B.Desai, that the charge is based on.
I have
examined the article of charges produced vide Annexure-E.
It does not refer to the fact that the charge is based on the
basis of the report of Sri D.B.Desai.
Therefore the first
contention that so far as the charge is concerned, that it is
21
purely based on the information available to the Bank
which is purely based on the report of Sri D.B.Desai is
unacceptable. In terms of the pleadings of the petitioner
himself, the CBI submitted its FIR on 27-5-1992.
The
charge sheet at Annexure-BB was filed by Sri D.B.Desai
dated 12-10-1993 wherein the petitioner is shown as
accused No.5. The list of witnesses has also been annexed
to the writ petition vide Annexure-GG which shows the
name of
Sri D.B.Desai, as a last witness, namely witness
No. 313.
The CBI filed its charge sheet on 12-10-1993.
The article of charges were issued on 14th May 1994. It is
apparent that so far as the report of Sri D.B.Desai is
concerned the same would necessarily be part and parcel
of the CBI records. The charge sheet was filed before the
Special Court on 12-10-1993. Therefore it cannot be said
that the document is in exclusive jurisdiction of the bank
alone. Such a document was well within the knowledge of
the petitioner. Not only the FIR but even the charge sheet
was filed prior to issuance of the article of charges to the
22
petitioner.
Even assuming that such a document is
required, it would not be prejudicial to the interest of the
petitioner. He being arrayed as an accused, would be
served with a copy of the charge sheet. It would contain
all the relevant information, including the report of
Sri D.B.Desai.
Hence he is aware of such a report.
Therefore the non furnishing of this document, has not
caused any prejudice to the petitioner.
11.
What is sought to be contended by the
petitioner is that the denial of the document is not on the
basis that it was not available, but that the Bank had a
privilege in terms of Regulation 12 of the Andhra Pradesh
Bank
Officer
Employees’
(Discipline
and
Appeal)
Regulations, 1981. Regulation 12 reads as follows:
“(12) On the receipt of the requisition under subregulation(11), the authority having the custody or
possession of the requisitioned documents shall
arrange to produce the same before the inquiring
23
authority on the date, place and time specified in
the requisition;
Provided that the authority having the custody or
possession of the requisitioned documents may
claim privilege if the production of such documents
will be against the public interest or the interest of
the Bank. In that event, it shall inform the inquiring
authority accordingly.”
Therefore, the petitioner’s counsel pleads that it cannot be
a case of privilege. There is no interest of the public nor
the interest of the bank that is affected by the disclosure of
the report of Sri D.B.Desai. In view of the factual position
that it is not a document that was in the exclusive
possession of the Bank, for which the Bank alone was
liable to furnish the same, I’am of the considered view
that the failure to furnish this document has not led to any
prejudice to the petitioner.
It was a document that was
well within the knowledge of the petitioners, since it was a
part and parcel of the charge sheet, which he was entitled
to. Under these circumstances, in my considered view, the
24
Bank exercising a privilege under Regulation 12, becomes
inconsequential.
12.
The third document that was denied to him is
as follows:
SL.No.
612
List of Documents
Auditors Certificate for
having verified physically
the securities held at the
head office or it branches
as at 31.3.92
13.
With
whom
available
MD, ABFSL
Relevance
to
the case
Non availability
will prove the
practice of noncompliance
of
this
requirement by
the auditor.
The learned counsel for the petitioner relies on
the various evidence and the documents on record in order
to show that the said document is required to defend the
charges levelled against him. It is his specific case that he
has furnished various securities.
Therefore, the charge
against him, that the physical securities were not verified
or
they
were
not
physically
with
him
is
incorrect.
Therefore to establish this fact, it is the auditor’s certificate
25
alone that would state as to whether the securities have
been furnished or not.
14.
On the other hand, the learned counsel
appearing
for
the
respondent
submissions are incorrect.
contends
that
these
That the so-called Bank
receipts furnished by the petitioner are concerned, are out
dated.
She relies on the evidence of Sri R.Ganesh,
Chartered Accountant, wherein he has stated as follows:-
“Since
no
physical
securities
or
bankers
receipts were available with FGFSL and since
Sri Lakshminarayanan did not want to turn
down the request of Sri Sundarbabu he told
me to forge three bankers’ receipts on the
forged letterheads of ANZ Grindlays Bank,
Bank of America and PNB Capital Services Ltd.
The contents of these forged Bankers receipts
were
entered
on
the
Sri Ranganath on 8.4.92.
computer
by
While entering the
particulars on the computer Sri Ranganath
erroneously entered the date of the BR’s
26
as
31.3.91
instead
of
31.3.92.
Sri
Lakshminarayanan and myself did not notice
this factual error.
7.4.92
told
to
Sri Lakshminarayanan on
send
the
three
B.R’s
to
Sri Tharian Chacko and inform him that the
banks on whose name the B.R.’s were given to
him, owed the delivery of the respective
securities mentioned on those B.R’s to FGFSL.
Sri Lakshminarayanan further asked me to tell
Tharian Chacko that he has to return the B.R.’s
to us the day after retaining a xerox copy of
his reference since the Bank Receipts have to
be discharged to the respective banks the next
day of reversal of forward deals.
I did as
directed by Sri Lakshminarayanan. On 7.4.92
Sri Tharian Chacko accepted the three B.R.’s
and returned the same to us on 8.4.92.”
She therefore contends that these documents are
forged documents. That none of them can be relied upon.
Hence the auditor’s certificate is of no help to the
petitioner.
27
15.
It is the petitioner’s case that it is the auditor’s
certificate or the auditor’s report as the case may be, that
would disclose as to whether the securities as furnished by
him are appropriate or whether there was an absence of
such a security or that such of the securities were
outdated, concocted or forged. It is the auditor who would
have to narrate with regard to the same.
Therefore the
auditor’s certificate was required in order to defend the
case of the petitioner.
16.
As it could be seen from the request made by
the petitioner, apparently that is not the reason why he
requires the said certificate. The relevancy as sought for,
as stated by him is “Non- availability will prove the practice
of non-compliance of this requirement by the auditor.”
Therefore the auditor’s certificate as sought for by the
petitioner is for the specific purpose that he has narrated.
It is to prove the practice of non-compliance by the
auditor. Even though such a document was to be given to
28
him, the only extent to which the petitioners case would be
advanced, is to prove the practice of the auditor with
regard to non-compliance of the requirement of physically
verifying the securities. Even if this issue were to be held
in favour of the petitioner, it does not advance his case in
any manner. It does not add to his defence. Even if this
document is given to him, the only issue that he can prove
is the practice of the auditor and nothing else.
The
practice as adopted by the auditor is of no consequence to
the defence of the petitioner.
The charge against him is
one of non-furnishing of the securities or the non-obtaining
of the securities.
This document does not advance his
case, nor does he want it to defend himself.
Therefore,
the non-furnishing of this document even though if it is to
be held against the respondent would not cause prejudice
to
the
petitioner
in any manner
whatsoever,
The
relevancy of the document is totally alien to his defence.
29
17.
It is further contended by the learned counsel
for the petitioner that this Court should restrain itself from
reading the relevancy as pleaded by him in a strict sense.
He seeks to rely on the grounds of appeal raised before the
appellate authority to contend that the reason why he
requires this document is to establish the fact that the
securities have been furnished by him. He has taken the
court through the relevant pleas set up by him before the
appellate Forum. The learned counsel for the respondent
does
not
dispute
the
same.
However,
even
if
the
contention of the petitioner is to be accepted, the same
would run contrary or in parallel with the relevancy of the
document as made out by him.
prove the practice of the auditor.
The relevancy was to
The subsequent plea
before the appellate Forum is that it is required to show
that the securities have been furnished by him.
I’am of
the considered view that the subsequent plea as set up,
would not save the petitioner from the statement that he
made earlier. It is on the basis of such a statement that
30
the petitioner would have to stand by. The requirement of
the petitioner as stated at the inception, is in contrast to
what has been pleaded by him before the appellate Forum.
The pleadings would have to be understood in the manner
they
have
been
stated.
The
Court
cannot
draw
a
presumption or an assumption as to what the petitioner
intended to plead. An intention, however noble or strong,
would be still an inference. Such an inference to be drawn
in the facts of this case, would be inappropriate. The plea
as set up by the petitioner would have to be accepted in
the same meaning that he intended the authorities to so
understand. Therefore the submission that the subsequent
pleadings as set out before the appellate Forum, requires
to be considered in preference to the relevancy sought for
at the inception, therefore cannot be accepted.
Under
these circumstances, I’am of the considered view that the
non-furnishing of this particular document has not caused
any prejudice to the petitioner.
31
18.
The document at Sl.No.7 have been partly
furnished. There does not appear to be any grave error or
prejudice that has occurred. Hence there is no necessity
to consider it.
19.
The last document at Sl.No.8 that was denied
to the petitioner is the details of the promoters share held
in FFSL or the disciplinary authority/appellate authority of
Andhra Bank.
That it was required to prove the nexus
between the top management of FFSL.
The learned
counsel for the respondent submits that in terms of the
documentation produced, the said list of the promoter
shares was marked for consideration by the petitioner
himself. Therefore the question of not granting this
document does not arise for consideration.
20.
I have considered each one of the documents
that were not furnished to the petitioner.
The detailed
examination of each one of the documents or their veracity
and their applicability to the prejudicial interest of the
32
petitioner have been considered. In view of the aforesaid
reasoning I’am of the considered view that the nonfurnishing of the documents has not prejudiced the case of
the petitioner in any manner whatsoever.
21.
The next contention is that no assistance was
offered to the petitioner to defend his case. The learned
counsel for the petitioner contends that he sought the
assistance of a co-worker in order to defend his case. The
permission was granted belatedly.
By that time the
enquiry proceedings had commenced. It is thereafter that
the permission was granted. The major part of the enquiry
was completed.
Therefore it is contended that it has
prejudiced the interest of the petitioner. That if he had the
assistance of the co-worker, he could have placed his case
on a better footing.
I have considered the contentions
advanced. Admittedly there has been a delay in granting
permission in engaging the services of a co-worker. That
would not by itself establish, that the entire defence of the
petitioner has stood diluted or that the petitioner was
33
unable to place his case in a proper manner.
The delayed
granting of the permission to engage the services of a coworker would not entail vitiation of the entire proceedings.
22.
The further contention is that a number of
witnesses were sought to be examined on behalf of the
petitioner.
However when the Travelling allowance and
Daily Allowance to the said witnesses were claimed, the
bank refused to pay.
The learned counsel for the
petitioner relies on the TA & DA that was granted to
another delinquent. By relying on the same, he
pleads
that the same was denied to the witnesses of the
petitioner. Therefore it has resulted in prejudice. That he
was not in a position to incur the expenses and that there
has been discrimination to the petitioner on this front.
23.
The
learned
counsel
appearing
respondent defends the impugned action.
for
the
She contends
that no prejudice has been caused. That the Regulations
34
of the Bank did not permit the grant of TA & DA to any
one. That the grant of TA & DA in the case referred to was
an error committed by them. It is the first and the last
error committed by them.
Therefore the petitioner’s
witnesses were not entitled for TA & DA.
24.
I
have
considered
the
contention
of
the
petitioner wherein TA & DA were granted in another case.
However, on examining the Regulations pertaining to the
Bank, I’am of the considered view that grant of TA & DA to
any witness would not arise for consideration.
Therefore
the contention on this front cannot be accepted. It is not
the case of the petitioner that the witnesses were not
allowed to support his case. It is not his case that leave or
otherwise was not granted or that it was turned down by
the Bank. The restricted plea is that the TA & DA was not
granted. The said action of the bank cannot be said to be
unreasonable especially in view of the absence of the
35
power to grant such TA & DA. Hence, the contention on
his ground does not deserve any further attention.
25.
I have considered in detail the material on
record. There is no error that calls for any interference.
That the impugned order is in terms of the facts &
circumstances
of the
case.
The contention of the
petitioner on prejudice is negated in view of the detailed
aforesaid reasoning.
I’am of the considered view that
there are no grounds to interfere. Consequently, the writ
petition being devoid of merits, is dismissed.
Rule discharged.
Sd/JUDGE
Rsk/-