Full Judgment Text
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 26 DAY OF FEBRUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.47769/2015 (S – RES)
BETWEEN
A.K.SIDDALINGAPPA
S/O ANJANAPPA, 61 YEARS,
RESIDING AT NO.4033,
TH TH
8 MAIN, 8 CROSS,
KUMARASWAMY LAYOUT,
ND
2 STAGE, BENGALURU - 78
EARLIER WORKING AS
INCHARGE MANAGER OF
STATIONARY POOL,
SYNDICATE BANK,
REGIONAL OFFICE – II,
BENGALURU.
... PETITIONER
(BY SRI KIRAN V.RON, ADVOCATE FOR
SRI C.M.POONACHA, ADVOCATE (PHYSICAL HEARING))
AND
SYNDICATE BANK
BODY CONSTITUTED UNDER
BANKING COMPANIES ACT,
REPRESENTED BY ITS
MANAGING DIRECTOR /
EXECUTIVE DIRECTOR,
HEAD OFFICE AT MANIPAL – 576 104.
... RESPONDENT
(BY SRI SYED KASIF ALI, ADVOCATE FOR
R
2
SRI SUNDARASWAMY RAMADAS, ADVOCATE FOR
(PHYSICAL HEARING))
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO CALL FOR THE RECORDS LEADING TO THE ORDERS
PASSED BY THE DISCIPLINARY AUTHORITY, APPELLATE
AUTHORITY AND REVIEWING AUTHORITY DTD:
31.01.2014, 4.9.2014 & 19.11.2014 RESPECTIVELY ;
QUASH ORDERS PASSED BY THE DISCIPLINARY
AUTHORITY DTD: 31.01.2014 (UNDER ANNEXURE-AA TO
THE WRIT PETITION) QUASH THE ORDERS PASSED BY
THE APPELLATE AUTHORITY DTD: 4.9.2014 (UNDER
ANNEXURE-AB TO THE WRIT PETITION) AND QUASH THE
ORDERS PASSED BY THE REVIEWING AUTHORITY VIDE
DTD: 19.09.2014 (UNDER ANNEXURE-AC TO THE WRIT
PETITION) RESPECTIVELY BY ISSUE OF WRIT IN THE
NATURE OF CERTIORARI AND GRANT ALL
CONSEQUENTIAL BENEFITS FOLLOWING THEREFROM.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 01.02.2021, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
ORDER
“ My eye is my ear ; my hand is my mouth,
laments the petitioner, having disability of
hearing to the tune of 98%, challenging the
action of the Bank in imposing a penalty without
affording a reasonable opportunity of defence.”
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2. Brief facts of the case leading to the filing of
the petition as borne out from the pleadings are that:
The petitioner joined the services of the
respondent - Syndicate Bank (hereinafter referred to
as ‘the Bank’ for short), a ‘State’ under Article 12 of
the Constitution of India, as a Clerk on 25.10.1976.
At the relevant point in time, the petitioner was
working as Manager, a cadre in Middle Management
Grade Scale II.
3. When the petitioner was functioning as a
Manager In-charge of Stationery Pool of the Bank,
having taken charge of the post on 22.12.2010. The
petitioner sought approval of the competent Authority
on 01.03.2011, for issuing a notice calling for bids
from eligible agencies. Four of the agencies had
applied pursuant to the bid notice. On 10.03.2011,
the petitioner awarded contract in favour of the lowest
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bidder - L1 along with a detailed office note as to how
the said bid was executed.
4. After about a year, a show cause notice was
issued to the petitioner on 30.03.2012, seeking the
petitioner to show cause as to why the proceedings
should not be initiated against him for certain
irregularities in the process of the bid contract in
10.03.2011. The petitioner gave a detailed reply to
the show cause notice seeking time and further
demanded that he be given some documents to
prepare his defence to the show cause notice. The
Bank not acceding to the said reply, issued a charge
sheet against the petitioner on 01.06.2012 and
initiated enquiry proceedings. The petitioner then
informed the Bank that the Bank is aware of the fact
that he has disability of hearing impairment to the
tune of 98% and sought legal assistance to defend
him in the enquiry. When the Bank did not accede to
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the request of the petitioner to engage a legal
representative notwithstanding the disability of the
petitioner, the petitioner approached this Court in writ
petition No.44341/2012, which was dismissed by an
order dated 21.10.2013.
5. After the dismissal of the writ petition, the
petitioner requested the Bank to await the receipt of
the certified copy of the order in the said writ petition,
so that he could prefer an appeal. Not waiting for the
receipt of the certified copy of the order in writ
petition No.44341/2012, the matter was posted for
cross-examination and on conclusion of the enquiry,
the petitioner is found guilty of the allegations. The
Disciplinary Authority passed an order dated
31.01.2014, imposing penalty of reverting the
petitioner from the rank of MMGS- II to JMGS- I and
fixing his pay at Rs.20,100/-. The petitioner filed an
appeal before the Appellate Authority only to be
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dismissed by order dated 04.09.2014. Aggrieved by
the orders of both the Disciplinary Authority and the
Appellate Authority, preferred a review before the
Reviewing Authority which was also dismissed by
order dated 19.11.2014. It is these orders that are
called in question by the petitioner in this writ
petition.
6. Heard Sri Kiran V. Ron, learned counsel for
petitioner and Sri Syed Kasif Ali, learned counsel for
respondent.
7. Learned counsel representing the petitioner
submits that the Bank being fully aware that the
petitioner did have a disability of hearing to the tune
of 98% has treated the petitioner as a normal
employee and denied both legal assistance and
defence assistance and made the petitioner defend his
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own case, which is violation of procedure and blatantly
contrary to law.
8. He would further contend that the only
intention of the respondent - Bank was to punish the
petitioner and this plea of his can be gathered from
the proceedings of the enquiry. He would submit that
the petitioner is denied full pension notwithstanding
his retirement long ago and would place reliance upon
following judgment of the Hon’ble Division Bench of
the High Court of Kerala in the case of RAVEENDRAN
VS. SOBHANA AND ANR. reported in AIR 2008 Ker
145.
9. On the other hand, learned counsel appearing
for the Bank would submit that the regulations of the
Bank do not permit engaging a legal practitioner to be
the defence representative of the petitioner and the
petitioner was free to choose any of his Co-officers as
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defence representative. If no Officer came to defend
the enquiry, the burden of not providing a defence
representative cannot be shifted to the respondent.
The learned counsel would contend that the disability
or otherwise the petitioner ought to have adhered to
the norms of calling for tender which admittedly the
petitioner has violated to do and would place reliance
upon the following judgments:
a. BANK OF INDIA VS. APURBA KUMAR
SAHA reported in (1994) 2 SCC 615;
b. UNION OF INDIA AND OTHERS VS. P.
GUNASEKARAN reported in AIR 2015 SC
545;
c. CHANDRAMA TEWARI VS. UNION OF
INDIA reported in AIR 1988 SC 117; and
d. SYNDICATE BANK AND OTHERS VS.
VENKATESH GURURAO KURATI reported
in AIR 2006 SC 3642.
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10. I have given my anxious consideration to the
submissions made by the learned counsel for the
respective parties and have perused the material on
record and in furtherance whereof, the point that
arises for my consideration is:
Whether the petitioner had a reasonable
opportunity of defence in the disciplinary
proceedings conducted against him and whether
denial of it would result in the final order of
penalty becoming vitiated?
11. To consider the said point, the facts have to
be reiterated. The petitioner issued a notice for
bidding of various sizes of computer stationery on
01.03.2011. The regular suppliers to the Bank were
sent a copy of the bid notice pursuant to which the
matter was placed before the competent Authority and
an office note was drawn on 10.03.2011, awarding the
supply of stationery to a particular applicant. This
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became the subject matter of a show cause notice
being issued against the petitioner on 30.03.2012.
The petitioner by his reply dated 27.04.2012, in detail
that he has not committed any misconduct as is
alleged in the show cause notice.
12. Not being satisfied with the reply, a charge
sheet is issued to the petitioner. On receipt of the
charge sheet and voluminous documents, the
petitioner gave a representation on 04.06.2012,
seeking 30 days time to submit his reply, but the
proceedings were not stalled. The petitioner again
gave a representation stating that he wishes to
engage the services of an Advocate, as the presenting
Officer, who was a law graduate and had conducted
numerous enquiries. He also brought it to the notice
of the Bank that he is 98% disabled with hearing
impairment and he has been treated in unfair manner.
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13. The Enquiry Officer did not stall the
proceedings on any ground urged by the petitioner
and went on to record the plea of the petitioner. On
17.09.2012, the said proceedings are germane to be
noticed and are extracted for the purpose of quick
reference:
“Minutes of the Inquiry Proceedings
In terms of my Notice of Inquiry bearing
No.INQ.NOTICE/CGS/467 dated 30.08.2012
and subsequent letter bearing No.
INQ.NOTICE-2/CGS/467 dated 07.09.2012
the inquiry is commenced by marking the
presence of the above persons at Regional
Office, Bangalore.
At this stage, Sri R. Venkatraman, Manager
(IR), Nodal Industrial Relations Cell, Regional
Office (City), Hyderabad filed a letter dated
27.08.2012 of the Asst. General Manager (P),
HO : Manipal, i.e. Disciplinary Authority,
appointing him as Presenting Officer to
present the case on behalf of the
Management and the same is taken on
record.
At this stage Sri A K Siddalingappa
informed that he is participating in
today’s hearing without taking the
assistance of any Defence Assistant and
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he will avail the services of Defence
Assistant at appropriate time.
Before commencement of the inquiry I
explained the procedure of conducting the
Departmental Inquiry and his rights and
responsibilities to Sri Siddalingappa as under:
The Inquiry is being held as per the
provisions of SBOE (D&A) Regulations, 1976
which permits the CSOE to engage a Defence
assistant i.e., any co-officer employee
working in the bank. Initially the
Management would lead their evidence by
producing more than documentary evidence
which would be recorded on day to day basis
and after conclusion of the evidence of each
witness the CSOE can cross examine that
witness. After conclusion of the
Management’s evidence, the Chargesheeted
Officer employee would be given an
opportunity to bring on record his statement
of defence either orally or in writing taking
into account the evidence brought on record
by the Management. Thereafter he can lead
his evidence both oral and documentary and
he can also appear as a witness if he desires
to do so. In that eventuality he should
appear first as a witness and thereafter
produce his other witnesses if any. The
witnesses so examined by/on behalf of the
CSOE will be cross examined by the
Presenting Officer. In case the CSOE is not
appearing as a witness the Inquiring
Authority would put him questions in the
form of General Examination. Thereafter the
Management as well as the CSOE would be
13
given an opportunity to submit their
arguments either orally or in writing.
Thereafter, the Inquiring Authority would
submit his report to the Disciplinary Authority
and a copy of the same would be provided by
the Disciplinary Authority to him for making
his submissions, if any, on the same within
the stipulated time. After this process, the
Disciplinary Authority would award him the
punishment if charges are held as proved
taking into consideration the gravity of the
misconduct and the CSOE can prefer an
appeal against the same to the Appellate
Authority if he is aggrieved by the
punishment awarded to him.
During the preliminary Inquiry which is being
held today the CSOE would be given an
option to accept or deny the
charge/allegations levelled against him and in
case he admits the charge/allegations against
him the same would be recorded and findings
will be written by the IA. In case he denies
the charge/allegations levelled against him,
the same will be recorded and further inquiry
proceedings will be held. The CSOE can
verify the copies of the documents given to
him by the Disciplinary Authority along with
the Chargesheet with that of the
originals/certified copies of the documents
available with the PO and thereafter he can
submit the list of documents, if any, required
by him from the Management to the inquiring
Authority within the stipulated time.
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Since the Management has issued the
Chargesheet under Inquiry it would prove the
same by leading evidence.
Q. Sri A.K.Siddalingappa, have you
understood the procedures, rules and
regulations regarding holding of inquiry that
has been explained to you in detail by me
now?
Ans. I am not well versed in service
conditions of officers, IR matter and
presenting in Inquiry Forum by reliable
English language. I have already explained
you the procedure of conducting Inquiry in
detail. There is a provision for engaging a
Defence Assistant during the Inquiry to assist
you to defend your case who may be well
versed with the procedure of Inquiry
proceedings and also well versed in English
Language. Hence, you are advised to engage
any co- Officer for your assistance. In case,
you require a copy of the Syndicate Bank
Officer Employee (D & A) Regulations 1976 to
understand the procedure of conducting the
Inquiries, the same will be supplied to you in
due course.
It is true that you are providing Defence
Assistant in the matter where I am not a
member of any Union/Association in
order to get Defence Assistant from
them and I enquired with said
Association/Union representatives /
colleagues, they told me you are not a
member of their Union/Association and
thereby declined. I being a 98% loss of
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hearing impairment in both ears I am
not able to digest the contentions /
questions, answers given/produced by
the IA or PO in this forum. As per
persons with disabilities (equal
opportunities, protection of Rights in full
participation) Act 1995 where
Government given protection to the
physically handicapped. In the instant
case also. I humbly plead before this
Forum kindly provide me Defence
Assistant who knows IR matter/service
matter in the better interest of the CSOE.
CSOE (Charge sheeted Officer Employee-
petitioner)
The Inquiry commenced in terms of the
notice and letter cited above wherein it
is clearly mentioned that the CSOE can
engage any Co- Officer as his Defence
Assistant and he need not be a any
Union/Association member. Further,
there is no provision in Service
Regulations to provide a Defence
Assistant by the Management and the
CSOE is free to engage any colleague
officer for his defence. Knowing pretty
well about the same, the CSOE appeared
before this Inquiry Forum and in the
beginning that he is participating in
today’s Inquiry without taking the
assistance of any Defence Assistant.
Now the CSOE is making the above
contentions only to drag on the Inquiry
proceedings. Further, this is only a
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Preliminary Hearing which is meant for
explaining the procedures and to know
whether the CSOE admit or deny the
charge leveled against him and to verify
the documents provided to him. Further,
the Management is not leading any
evidence in today’s Inquiry. As such, I
direct the CSOE to participate in the
proceedings.”
(emphasis added)
In terms of the afore-extracted proceedings of
the day i.e., 17.09.2012, the petitioner sought taking
an assistance of any defence assistant and sought
time. When he was asked whether he has understood
the procedure of conducting the enquiry, he answered
that the enquiry is in English language and pleaded
before the Enquiry Officer that in the light of him
being hearing impaired to the tune of 98%, he be
given a defence assistant. The unjust ruling of the
Enquiry Officer is that, there is no provision for the
Management to provide defence assistant and directed
that the petitioner should continue to participate in
17
the enquiry. This is the first blow to the petitioner as
he is treated as a normal employee.
14. On the ground that he is meted out such a
treatment by not granting legal assistance, the
petitioner approached this Court in writ petition
No.44341/2012, wherein this Court had initially
granted an interim order of stay of the further
proceedings of the order dated 10.09.2012. When the
matter came up on 28.04.2011, this Court noticing
the fact that the regulations do not allow the
respondents to provide or engage the services of an
advocate in the departmental enquiry and the writ
petition was dismissed. The writ petition was
dismissed on 21.10.2013.
15. The petitioner had applied for a certified
copy which was yet to be released. As the petitioner
had lost the case, the enquiry was resumed on
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11.11.2013, on which day, the petitioner requested
the Enquiry Officer to await for a certified copy of the
order of the learned Single Judge so that he could
prefer an appeal and on that ground, he sought an
adjournment of the proceedings. The Bank refused to
adjourn the matter. The proceedings dated
11.11.2013, read as follows:
“Minutes Of The Inquiry Proceedings
In Terms of my Notice of Inquiry dated
15.01.2013, the regular Inquiry was fixed to
be held on 04.02.2013 and on subsequent
days, if necessary. In view of the Stay
granted by the Hon’ble High Court of
Karnataka in Writ Petition No.44341/2012
(S - DE) filed by the CSOE, the Inquiry fixed
to be held on 04.02.2013 has been deferred
and the same was informed to the CSOE vide
my letter dated 30.01.2013. Now, the
Hon’ble High Court of Karnataka has
dismissed the Writ Petition filed by the CSOE
on 21.10.2013. In view of the above, the
Inquiry is fixed to be held on 11.11.2013 at
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11.00 AM at Regional Office - I, Bangalore
and the same was informed to the CSOE vide
my Notice of Inquiry dated 26.10.2013 which
was delivered to the CSOE on 28.10.2013.
Accordingly the Inquiry is commenced now by
marking the presence of the above persons.
At this stage, I asked the CSOE once
again about the defence assistant for which
he informed that he is participating in today’s
Inquiry without availing the services of any
defence assistant. He further submitted that
regarding this issue, he filed the Writ Petition
before the Hon’ble High Court of Karnataka.
At this stage, the CSOE submitted
that he is participating in today’s Inquiry
in terms of my Notice of Inquiry.
Further, he submitted a letter dated
11.11.2013 wherein it is mentioned that
he had filed a Writ Petition No.44341 of
2012 which was disposed on 21.10.2013.
The contents of the judgement are not
yet released by the Hon’ble High Court of
Karnataka till date. The internet copy of
20
the case is being enclosed herewith. It is
further mentioned that
“in terms of your letter, I am
appearing before you and submitting this
letter confirming that I am in the process
of filing Writ Appeal against the Final
Order passed by the Single Judge in Writ
Petition 44341/2012 filed before the
Hon’ble High Court of Karnataka which
was disposed on 21.10.2013. I am
awaiting for the certified copy of the said
Final Order to get the full text of the
judgement contemplated / quoted in
your letter under reference.
Further, in the Writ Petition I had prayed for
directions for engaging a legal practitioner on
the following grounds.
a) That I have been suffering from
permanent hearing impairment to the
extent of 98% and I am unable to
understand the proceedings during the
intended Domestic Inquiry.
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b) That I am unable to understand the
relevancy of the documents required for
defence.
c) That I am not a member of any
Trade Union / Association including
SC/ST Union / Association and the co-
employees are hesitant to defend me
since I am reaching superannuation
shortly and without defence, I cannot
participate in the Inquiry proceedings.
d) That due to vengeance and to
victimize me, I have been issued with the
vitiated charge sheet and other grounds
and hence I am preferring Writ Appeal as
mentioned above.
Under the circumstances, I request you
to keep the Inquiry proceedings under
abeyance until the disposal of the
intended Writ Appeal.
RULING:
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Heard the submissions of the CSOE and also
taken on record the letter dated 11.11.2013
submitted by the CSOE.
It is on record that the Hon’ble High Court of
Karnataka has dismissed the Writ Petition
No.44341/2012 filed by the CSOE on
21.10.2013. In view of the dismissal of
the Writ Petition filed by the CSOE, it is
decided to proceed further in this matter.
The CSOE stated that he is in the process
of filing a Writ Appeal against the
dismissal of the Writ Petition, but did not
produce any Stay Order or connected
papers regarding filing of Writ Appeal.
As such, the request of the CSOE to
postpone the Inquiry on this ground
cannot be considered. Further, the
grounds mentioned in the Writ Petition and
the letter submitted by the CSOE today are
somewhat different. In the Writ Petition has
no where mentioned regarding the relevancy
of the documents. Further, in the Preliminary
Hearing itself, the CSOE was informed in
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detail about engaging a defence assistant.
The Hon’ble High Court of Karnataka
dismissed the CSOE’s plea to engage an
Advocate as his defence assistant. As such,
it is not possible at this juncture to
adjourn the Inquiry and the CSOE is
advised to participate in the Inquiry for
further proceedings.
Sd/-
Inquiring Authority
At this stage, the CSOE appealed that
without knowing the contents of the
judgment which was not released by the
Hon’ble High Court of Karnataka and
which was also not produced by the
Inquiring Authority in the matter, it is
not possible for him to participate in the
Inquiry and requested to postpone the
Inquiry, otherwise irreparable damage
will be occurred to me and proceeding
further with the Inquiry amounts to
violation of principles of natural justice.
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FINAL RULING:
Since the Writ Petition is dismissed as per the
information provided in the Website of
Karnataka High Court on 21.10.2013 and the
main plea in the Writ Petition is to engage the
services of Advocate to defend his case in the
Departmental Inquiry for various reasons
which was also admitted by the CSOE, there
is no point to adjourn the Inquiry. Further,
the CSOE will get sufficient opportunities
to defend his case during the course of
inquiry and cooperate for smooth
completion of the Departmental Inquiry
proceedings.”
(emphasis added)
In terms of the afore-extracted enquiry
proceedings, all that the petitioner pleaded before the
Enquiry Officer was that the order in writ petition
No.44341/2012, was yet to be released and sought
time to get a certified copy so that he will have an
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opportunity to file an appeal before this Court and
prayed that the enquiry be adjourned. For this, even
without waiting for a certified copy and an opportunity
to test it before the learned Division Bench, more so,
in the light of the fact that the proceedings were
stayed before the learned Single Judge, the Enquiry
Officer proceeded to inquire and proceedings were
conducted. This is the second blow to the petitioner.
16. The petitioner again pleaded in the enquiry
that he is 98% hearing impaired in both the ears, he
has not heard what has happened in the enquiry and
has given reply assuming questions and also
submitted that he has been pleading to give
proceedings in writing or questions in writing so that
he could answer the same in writing but again the
Bank did not agree. The specific question and answer
read as follows:
26
“DQ- 33(petitioner question): You know very
well that I am being 98% impaired in both
ears I have not heard properly what exactly
is required by you. Accordingly I asked you
to give me in writing which was not acceded
by you. Do you agree?
Ans: I do not agree.” (Reply of Bank's
representative)
The enquiry proceedings were concluded without
providing reasonable opportunity to the petitioner and
in the hottest haste. The Enquiry Officer pursuant to
the report held that the petitioner guilty of the
allegations. The report of the Enquiry Officer, a
portion of which is germane reads as follows:
“It is on record that the CSOE vide his
letter dated 06.10.2012 requested for 81
documents without mentioning the relevancy
of documents to the allegations leveled
against him and without specifying the
names of the Custodians with whom the
27
documents are available and as such I have
vide my letter dated 13.10.2012 advised the
CSOE to resubmit his requirements within 3
days of receipt of the letter specifically
stating as to how those documents would
help him/relevant to his case to enable me
to collect and provide the same. Instead of
giving the required information, the
CSOE vide his letter dated 20.10.2012
once again requested me to provide the
documents mentioned in his letter dated
06.10.2012. I informed the CSOE vide
my letter dated 31.10.2012 that IA can
procure the documents from the
Custodians after verifying the relevancy
of the documents to the
charge/allegation leveled against the
CSOE. It was further informed that I
am not in a position to procure and
handover the documents to the CSOE as
he is not giving the relevancy and
names of the custodians specifically. In
the said letter the CSOE was informed
about fixing the Regular hearing in the
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above matter to be held at Regional
Office, Bangalore on 07.11.2012 and on
subsequent days, if necessary with an
advice to participate in the same failing
which the inquiry will be held ex-
parte.”
(emphasis added)
Based upon the said report of the Enquiry
Officer, the Disciplinary Authority imposed the
following penalty:
“ ORDER
For breach of Regulation No.3(1) read
with Regulation No.24 of Syndicate Bank
Officer Employees’ (Conduct) Regulations
1976, the Grade/Scale of A K
Siddalingappa be and is hereby reduced
from MMGS II to JMGS- I by fixing his
Basic Pay at `20,100/- with immediate
effect.”
and the appeal filed challenging the order of penalty
also came to be rejected by the Appellate Authority by
29
order dated 04.09.2014, so also the review by order
dated 19.11.2014. This is the final blow to the
petitioner. It is to be noticed that the petitioner has
never complained that he should not be proceeded
against departmentally. But in the disciplinary
proceedings, his plea was that he be given a
reasonable opportunity of defence on him being 98%
hearing impaired.
17. Hearing impaired are those in whom sense
of hearing is non-functional for ordinary purposes of
life. They do not hear / understand sound at all even
with amplified speech. In medical standards, hearing
impairment between 60 and 90% is said to be a
severe impairment where it is total hearing loss in
both the ears. It is not in dispute that the petitioner is
hearing impaired to the tune of 98% beyond what
medical standards declare as severe impairment.
Therefore, any employer is morally and legally bound
30
to treat such employee who has a disability of any
kind differently with as they are differently abled
persons. This right of such hearing impaired
employees not only flows from various international
covenants but is a right recognized even on our
constitutional canvas. It is common experience that
persons with disabilities would be unable to lead life
due to societal barriers and discrimination faced by
them in employment. There are hardly meaningful
attempts to assimilate them in the main stream of an
organization. With the said principles, if the
proceedings instituted and conducted against the
petitioner is noticed qua his disability it can be
unmistakably concluded that the employer did not
provide him with reasonable opportunity of defence.
At every stage of the proceedings, the petitioner is
treated as if he is a regular employee with no
disability.
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18. Therefore, the petitioner ought to have been
given all opportunities to defend himself in the enquiry
even if it would mean providing of defence assistance.
An employee in the status of the petitioner cannot be
seen to be condemned unheard as he was suffering a
disability of hearing and in the impugned proceedings,
is without a shadow of a doubt condemned unheard.
19. It is also apposite to view the case of the
petitioner under the parameters of Order 32 Rule 15
of the Code of Civil Procedure, 1908, though the
provision deals with mental infirmity, a Division Bench
of the High Court of Kerala while elaborating this
principle has held that mental infirmity in the context
of Order 32 Rule 15, includes physical defects like
deafness or dumbness while saying so, it was also
held that the Court is bound to conduct enquiry as to
whether the deaf or dumb person is capable of
protecting own interest, in the case of Raveendran
32
Vs. Sobhana and Anr. reported in AIR 2008 Ker
145 . The relevant paragraphs are extracted for ready
reference:
“10. The decision under Order 32 Rule
15 involves very serious consequences as it
results in the rights of a party to conduct his
own litigation being taken away, and a
guardianship being thrust upon him. In such
circumstances, the Court has not only the
mandatory jurisdiction to enquire into the
need for appointment of a next friend, but
also the obligation to consider whether the
person of unsound mind or of mental
infirmity appearing before it is indeed
capable of protecting his interests. If that
person is not capable of protecting his
interests on his own, the Court has an
obligation to protect his interests by
appointing a next friend and if such person is
capable of protecting his own interests, the
Court has equally an obligation to see that a
next friend or guardian is not superimposed
on him, thereby depriving him of his right to
33
take his own decisions. In the decision
reported in S.C. Karayalar v. V. Karayalar
(1968 (2) MLJ 150): (AIR 1968 Mad 346), it
was held that holding of an enquiry under
Order 32 Rule 15….” is thus inescapable and
consent cannot vest jurisdiction in Court to
dislodge or divest the right of a litigant to
conduct his suit, by superimposing a
guardian or a next friend.”
11. Thus, the legal position is that
mental infirmity in the context of Order
32 Rule 15 is not mental disorder,
insanity or mental illness. Weakness of
mind due to any reason, making a
person incapable of protecting his
interests, is sufficient to unfold the
protective umbrella under Order 32 Rule
15. Such infirmity can also be caused by
physical defects like deafness or
dumbness, whereby a person is made
incapable of communicating his wishes,
views or thoughts to others who are not
acquainted with him. If such a person is
before the Court in a suit or proceedings
34
either as plaintiff or defendant, the
Court has a jurisdictional obligation to
conduct an enquiry as to whether the
person is capable of protecting his own
interests. If in the judicial enquiry, if
necessary and if required, conducted
with the assistance of an expert, it is
found that such person is incapable of
protecting his interests in the suit or
proceedings before the Court, the Court
has an obligation to appoint a next
friend for such person, and if the Court
on the other hand finds that the person
is otherwise capable of protecting his
interests without a next friend, the
Court shall remove the next friend if
already available and permit the person,
who is alleged to be of unsound mind or
suffering from mental infirmity, to
conduct the litigation himself. As held by
the Supreme Court in Ram Chandra v. Man
Singh (AIR 1968 SC 954), a decree passed
against a minor without appointment of
guardian is a nullity. The same principle
35
would apply as far as a person suffering from
unsoundness of mind or mental infirmity as
referred to in Order 32 Rule 15 is concerned.
12. The Family Court, in the instant
case has in fact framed an issue regarding
the maintainability of the suit for declaration
of the order in M.C. 231/99 as null and void.
Since the petitioner is admittedly a deaf and
dumb person, the Court could not have
proceeded with the case without conducting
an enquiry under order 32 Rule 15.
Depending on the outcome of the enquiry
the matter will have to be further considered
in the light of the Full Bench decision of this
Court in Pankajaksha Kurup's Case (AIR
1998 Ker 153) (supra) or in the light of the
Bench Decision in Lakshmi Pillai Parvathi
Pillai's case (supra). We set aside the order
dated 16-5-2006 in O.P. 847/2000 and remit
the matter to the Family Court, Thrissur. The
Family Court shall consider O.P. 847/2000 in
accordance with law and dispose of the same
expeditiously.”
(emphasis supplied)
36
In the light of the law laid down by the Division
Bench of the High Court of Kerala bringing in deafness
or dumbness within the sweep of mental infirmity, the
case at hand is viewed, the penalty imposed becomes
unsustainable.
20. It is also necessary to consider the fact that
an employee facing Departmental Enquiry would
become tongue-tied to defend himself in the enquiry.
Therefore, if a normal employee is facing a
Departmental Enquiry becomes tongue-tied, the
status of the petitioner being disabled to the tune of
98% would, without a shadow of a doubt, become
incapacitated even to submit any defence. Insofar as
the judgments relied on by the learned counsel
appearing for the Bank is concerned, they are all
cases rendered on the facts obtaining before the Apex
Court and on the principle of judicial review of
departmental proceedings and imposition of penalty.
37
Above all, those were all cases concerning normal
employees. Therefore, the said cases are
distinguishable on the facts of the case at hand
without much ado, as the petitioner herein cannot be
construed to be a normal employee for application of
the principles laid down by the Apex Court in the
cases relied on by the learned counsel appearing for
the Bank.
21. The submission of the learned counsel
appearing for the Bank for the matter to be remanded
back to the hands of the Disciplinary Authority is also
unacceptable, for the reason that the misconduct is of
the year 2011; ten years have passed by; the
petitioner has retired on attaining the age of
superannuation; above all, the disability of the
petitioner will have to be taken note of. For the folly
of the Bank in its actions contrary to law as indicated
38
hereinabove, the petitioner cannot be at this stage of
his life subjected to rigmarole of another set of
disciplinary proceedings albeit its continuation in
terms of the subject charge sheet.
22. For the aforesaid reasons, the action of the
respondent - Bank cannot but be said to be in
violation of principles of natural justice as in my
considered view, the Bank has imposed penalty
without permitting the petitioner to be defended in
accordance with law. It is not a violation of the Bank’s
rights, it is not a violation of a legal right, “it is
violation of the petitioner's human right” .
23. For the praefatus reasons, the following:
ORDER
a. The writ petition is allowed.
39
b. The orders dated 31.01.2014,
04.09.2014 and 19.11.2014 passed
by the Disciplinary Authority,
Appellate Authority and Reviewing
Authority are all quashed.
c. The petitioner is entitled to all
consequential benefits that would flow
from quashing of the aforesaid orders
including the difference in salary and
difference in pension.
d. The Bank shall recalculate the pension
of the petitioner and pay him the
difference in pension.
e. The petitioner shall also be entitled to
any promotion that has been denied
on account of pendency of aforesaid
proceedings albeit notionally.
40
f. The aforesaid directions shall be
complied by the Bank within two
months from the date of receipt of a
certified copy of this order.
Sd/-
J UDGE
nvj