MILAP CHANDRA, J. - (1.) THIS Special Appeal has been filed under Section 18, Rajasthan High Court Ordinance, 1949 against the order of the learned Single Judge dated December 7, 1985 by which he dismissed the writ petition praying for quashing the order (Annexure 12) of his dismissal dated September 12,1979 and the appellate order (Annexure 15) dated November 25, 1980 confir-ming his dismissal and for directing the respondents to take him back in service. The facts of the case giving rise to this special appeal may be summarised thus.
(2.) THE petitioner was a clerk in the Central Bank of India, Jalorigate, Jodhpur. In May 1976, a memo (Annexure 1) was served upon him calling his explanation for 'drawing Rs. 1,000/- from his account without sufficient balance, making credit entry of Rs. 1000/- in Teller card without any credit voucher, effecting inter potations in the registers of the bank subsequently to show adequate balance in his account etc. His explanation was not found satisfactory and he was placed under suspension. On November 13,1976, charge sheet (Annexure 6) containing 6 charges was served upon him. Shri S. B. Saxena, Branch Manager State Bank of India, New Delhi was appointed as the Enquiry Officer. Subsequently, Sri M. M. Lalla, Chief Officer was appointed as the Enquiry Officer-Cum-Disciplinary Authority to hold the enquiry against him and O. P. Sharma During the enquiry, the petitioner raised an objection that the provisions of para 19. 14 of the Bipartite Settlement dated 19-10-66 have not been complied with. After recording the evidence of the parties, taking their written arguments (Annexure 8 and 9) and hearing them, the Enquiry Officer held that the petitioner K. M. Gang has been frequently mis-using his position and authority as a teller, he used bank's funds by making fictitious entries in the teller card, all acts of omissions and commission have been committed in his personal account and he has committed gross misconduct. After hearing him on the quantum of punishment, the Enquiry Officer-cum-Discipli-nay Authority dismissed him by his order (Annexure 12) dated September 12,1979. Appeal (Annexure 11) was filed by him. It was heard by Sri D. K. Gagi, Appellate Authority, Central Bank of India, Lucknow and it was dismis-sed by his 'decision' dated November 25,1980 vide Annexure 15. It has been contended by the learned counsel for the petitioner-appellant that the petitioner repeatedly raised objection before the Enquiry Officer that he was not competent to hold enquiry against him due to the non-compliance of para 19. 14 of the Bipartite Settlement but he did not at all consider it while recording his findings (Annexure 10) and giving order (Annexure 12 ). He further contended that this objection was also raised before the Appellate Authority and he too did not consider it, it goes to the root of the matter and on this ground alone, his special appeal and writ petition deserve to be allowed. It. was also contended by him that the Enquiry Officer and the Appellate Authority have mis-read the evidence on record, as a result thereof, their orders stand vitiated and the orders (Annexure 12 & 15) are also not speaking orders. He lastly contended that the forwarding letter and order passed under para. 19. 14 of the Bipartite Settlement, Annexure R/l, are subsequently prepared documents otherwise they would have been filed by the respondent Bank during the enquiry and they are also not proved as is clear from the incomplete affidavit of the Officer-in-Charge Sri G. N. Tamani. In reply, it has been contended by the learned counsel for the respon-dents that the order. (Annexure R/l) passed under para 19. 14 of the Bipartite Settlement is a genuine document, it was in fact issued on the date mentioned in it, it also has reference in para 4 of the reply and as such it is duly proved; He further contended that the orders of the Disciplinary Authority and the Appellate Authority are speaking orders, the said objection regarding the non-compliance of para 19. 14 of the Bipartite Settlement was abandoned by the petitioner-appellant at the time of the final arguments before the Disciplinary Authority and also before the Appellate Authority as is clear from his written submissions (Annexure 9) and the memo of appeal (Annexure 14 ). He lastly contended that there existed sufficient material and evidence before the Disci-plinary Authority warranting the dismissal of the petitioner and the evidence has properly been considered and appreciated by the Disciplinary Authority as well as by the Appellate Authority. " It is neither a case of no evidence nor of its misreading. The first question for consideration in this appeal is whether Mr. M. M. Lalla was competent to hold the enquiry against the petitioner Para 19. 14 of the Bipartite Settlement dated 19-10-66 runs as follows : - "the Chief Executive Officer or the principal officer in India, of a bank, or an alternate officer at the Head Office or principal office appointed by him for the purpose, shall decide which officer (s) shall be empowered to hold enquiry and take disciplinary action in the case of each office or establishment. He shall also decide which officer or a body higher in status than the officer authorised to take disciplinary action shall be empowered to deal with and dispose of any appeals against orders passed in disciplinary matters. The names of such officers or the body who are empowered to pass the original orders or hear and dispose of the appeal shall, from time to time, be published on the bank's notice board. Such appellate authority shall, if the employee concerned is so desirous, in a case of dismissal, hear him or his representatives before disposing of the appeal. In cases where hearings are not required, and appeal shall be disposed of within two months from the date of receipt thereof. In cases where hearings are required to be given and are requested for, such hearings shall commence within one month from the date of receipt of the appeal and shall be disposed of within one month from the date of conclusion of such hearings. The period within which" an appeal can be preferred shall be 45 days from the date on which the original order has been communicated in writing to the employee concerned. " Photostat copies of the Order dated October 30,1976, bearing the signature of the Managing Director of the Central Bank of India, Bombay and the forwarding letter dated November 4, 1976, bearing signature of the Chief Manager, have been filed as Annexure R/1 by the respondents alongwith their reply and affidavit. Their relevant portions run as under: - "central BANK OF INDIA Head Office : Nariman point, Bombay 21. S-5 H/staff/76-762 november 4, 1976 ALL OFFICERS Reg. Enquiry Officers. We forward herewith a notice signed by the Managing Director in regard to the appointment of Enquiry Officers and Appellate Authorities in connection of our circulars in the matter. Please put up the notice on the Notice Board. Sd/- CHIEF MANAGER" CENTRAL BANK OF INDIA HEAD OFFICE CHANDER MUCKHI, 16th FLOOR NARIMAN POINT, BOBMAY 400021. NOTICE 1. The undersigned is pleased to appoint the Officers named in the attached list as Enquiry Officer for our officers all over India in addition to those who have already been appointed to hold and conduct departmental enquiries against the members of the staff governed by the provisions of the award and Bipartite Settlements, and to pass necessary orders under the provisions of chapter 19 of the Bipartite Settlement dated 19. 10. 1966. 2. In the case of Award Staff, appeals against orders passed by the Enquiry Officer, should be addressed to the undersigned. The appeals will be forwarded, for disposal, to any of the executive, not lower in rank than a Chief Managar, who are appointed Appellate Authorities in terms of para 19. 14 of the said Bipartite Settlement. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. All Officers, not lower in rank than Manager, are authorised to entrust enquiries to one of the Enquiry Officers, from the panel of Enquiry Officers in the case of Award Staff as well as Officer staff and they are also empowered to transfer any enquiry at any stage, from one Enquiry Officer to another Enquiry Officer, duly authorised, with instructions either to hold the enquiry de novo or to continue the enquiry from the stage at which the previous Enquiry Officer has left it. Sd/- MANAGING DIRECTOR 30th October, 1976. LIST OF ENQUIRY OFFICERS Sr. No. Name Designation Branch 1 to 39 . . . . . . . . . . . . . . . . . . . . . . . 40. Shri M. M. Lala Internal Auditor Lucknow" 41. . . . . . . . . . . . . . . . . . . . . . . .
(3.) THE petitioner has stated in his submissions dated 20. 11,85, in support of the writ petition, that the documents (Annexure R/l) do not appear to be genuine and seem to be a later creation as is clear from them and the memo (Annexure 17) dated November 28, 1979, appointing Shri P. K. Gegri, Chief Manager, Regional Office, Lucknow as the appellate authority for the disposal of the petitioner's appeal. THEre is no substance in this objection. THEre is nothing in the Annexure R/l which may indicate that these documents are not genuine documents and were subsequently prepared. During the enquiry, the respondent's representative stated that efforts were being made to produce the circular of the Head Office vide Annexure 5 (also quoted in para No. 1-B of the memo of special appeal ). Annexure 17 is neither inconsistent or in conflict with the Annexure R/l. THEy rather support it. It is correct that the initial reference of the Annexure R/l is made in para (c) of the reply and this para (c) has no reference in the accompanying affidavit of Sri G. N. Temani. From this fact alone, it cannot be said that the Annexure R/l is not proved. It can only be said that theaffidavit of Sri G. N. Temani was not carefully drafted. Annexure R/l has also reference in para No. 4 of the reply and it is not disputed that this para is included in the verification para of the accompanying affidavit of Shri G. N. Temani. It stood proved from this para of the affidavit. There is yet another aspect of the matter. Admittedly, the petitioner filed written arguments (Anx. 9) before the Enquiry Officer. The said objection has not been taken in them. In the memorandum of appeal (Ann. 14) too, it has not been specifically taken. It is correct that it is stated in it that the Enquiry Officer did not apply his mind to the various objections taken by the petitioner in his letters cited above, copies of which are enclosed. Admittedly, copies of these letters are not enclosed with the Annexure 14. In view of these facts and circumstances it can be said that Annexure R/l was not issued by the respondents. It is very difficult to believe that the highest authority of the Bank, namely the Managing Director would go to issue a circular with back date just to meet an objection raised in a departmental enquiry by a delinquent clerk of a branch office. The second objection raised by the learned counsel for the appellant is that Anx. R/l was not published on the notice board of the Central Bank of India, Jalorigate, Jodhpur. In para No. 4 of the reply, it has categorically been stated by the respondents that Sri M. M. Lalla was appointed as Enquiry Officer, he was competent to take disciplinary action against the petitioner, the petitioner was fully aware of this situation and had knowledge about the notice dated I4th November, 1976. These averments have not at all been denied by the petitioner in his written submissions filed on 20. 11. 85. Consequences of the non-compliance of publication of an order by affixation on the Bank's notice board have not been mentioned in the Bipartite Settlement. It cannot, therefore, be said that the provision regarding such publication is mandatory, it is simply directory. Its breach will not vitiate the enquiry and order of punishment, It is also stated in para No. (C) of the reply that Annexure R/l was affixed on November 7, 1976, on the notice board of the Jodhpur Branch of the Central Bank. This averment has also not been denied in his written submissions dated 20. 11. 85 by the petitioner. Besides it, there is a presumption that officials act is regularly and properly performed. ;