(Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records in RO/CHEN/HRD/DAD/2018-19/895 and quash the order passed in proceeding RO/CHEN/HRD/2020-2021/625 dated 09.02.2021 by the respondent and further direct the respondent to condone the delay of 510 days in filing the appeal and to decide the appeal on merits and pass orders)

1. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents and perused the records.

2. The petitioner, by the writ petition, has assailed the proceedings bearing No. RO/CHEN/HRD/2020-2021/625 dated 09.02.2021 whereby and where under, petitioner has been informed that the petition filed seeking condonation of delay of 510 days in filing the appeal on 03.11.2020, against the order of disciplinary authority vide RO/CHEN/HRD/DAD/2018-19/896 dated 21.01.2019 has been rejected on the ground that the “undue delay cannot be condoned”.

3. Crux of the petitioner’s case is that the impugned order has been passed by the Senior Manager of the respondent, who is not a competent person in terms of the Regulation 17 of the Central Bank of India Officers/Employees (Discipline and Appeal) Regulation, 1976 (in short “Regulation 1976”).

4. It is also contended that as per the aforementioned Regulation 17 of the Central Bank of India Officers/Employees (Discipline and Appeal) Regulation, 1976 (in short “Regulation 1976”). r/w. Clause 2 of the Schedule appended thereto, the appellate authority should be an officer not lower in rank and status than Assistant General Manager; that the petitioner had submitted his appeal to the Appellate Authority/Assistant General Manager through the disciplinary authority as provided under the Regulation 1976 that instead of the Appellate Authority/Assistant General Manager deciding the condone delay petition filed along with the appeal, as specified in Regulation 21 of the Regulation, 1976, the impugned order is passed by an officer i.e., Senior Manager, who is lower in rank to that of Assistant General Manager; and thus, the impugned order is contrary to the Regulations and the Schedule of Regulations, 1976.

5. It is the further case of the petitioner that the impugned order is not only passed by authority who is not competent or authorized to dispose of the appeal as per the Regulations, but also does not record reasons for not considering the explanation submitted by the petitioner seeking condonation of delay in filing/preferring the appeal with delay and thus, the impugned order is liable to be set aside.

6. Counter affidavit on behalf of the respondent is filed.

7. The respondent by the counter affidavit while denying the writ averments in particular claim of the petitioner of approaching the authority and seeking for being provided with the copy of the Regulations, contended that as per the Regulations 17, appeal against the disciplinary authority order is required to be filed within 45 days from the date of receipt of the order; that the petitioner had filed the aforesaid appeal on 03.11.2020 with a delay of 510 days; that the Appellate Authority did not find the reasons/explanation stated in the condone delay petition to be satisfactory for the said authority to exercise discretionary power conferred on him under Regulation 21 of Regulation, 1976; and thus appellate authority accordingly, rejected/dismissed the condone delay petition.

8. The respondent by the counter affidavit further contended that on the Appellate Authority rejecting/dismissing the condone delay petition on the aforesaid ground, the said decision of the appellate authority was communicated to the petitioner by the impugned proceedings under the signature of Senior Manager and thus, the contention of the petitioner that the impugned proceedings as having passed by an authority who lacks authority, is without any merit and substance andis liable to be rejected.

9. The respondent by the counter affidavit further contended that in the impugned proceedings, it has been categorically stated that it is an Appellate Authority’s decision that has been communicated to the petitioner under the signature of the Senior Manager and it is not the Senior Manager who has adjudicated and passed order on the condone delay petition filed along with the appeal. Contending as above, the respondent seeks for dismissal of the writ petition.

10. Having regard to the respective contentions urged the following questions arise for consideration by this Court :-

                     (i)Whether the petitioner had explained the delay in filing the appeal satisfactorily for this Court to condone the delay and direct the Appellate Authority to decide the appeal on merits;

                     (ii)Whether the impugned order rejecting the petition filed for condonation of delay in filing the appeal can be said as having passed by the Appellate authority wholacked authority as per the Regulations 1976; and

                     (iii)Whether the Rejection of condonation delay can be said as by recording reasons.

11. The petitioner in the affidavit filed in support of the present writ petition had claimed of having approached the respondent for furnishing a copy of the Regulations, as the impugned order did not specify as to who is appellate authority, before whom the appeal should be filed against the order of the disciplinary authority as one of the ground for delay. However, the letter under which the petitioner claims to have made the aforesaid request does not show that the petitioner having asked the respondent to furnish the copy of the Regulations or the details of the Appellate Authority with whom he could prefer an appeal.

12. On the other hand, a reading of the letter dated 29.01.2019 addressed by the petitioner to the disciplinary authority shows that the petitioner was agitating about the manner in which enquiry proceeding was conducted and also the pending criminal proceeding. There is no whisper in the said letter with regard to the petitioner asking for being furnished with the copy of the Regulations or the W.P.No.9399 of 2021 Authority before whom appeal is to be filed.

13. Further, the respondent by the counter affidavit having categorically denied of not being in receipt of any representation from the petitioner as claimed in the affidavit filed in support of the writ petition requesting for being furnished with a copy of the Regulation and the petitioner not having filed any rejoinder to the said counter and also not placing on record any evidence to the above effect, the statement made in the affidavit cannot be accepted as true and correct version.

14. Further, the petitioner in the affidavit filed in support of the writ petition, had claimed of he having been advised by some of the officials of the respondent to wait for the outcome of criminal case, in order to prefer an appeal against the order of disciplinary authority; that the criminal case was disposed on 25.09.2019; that the petitioner had obtained certified copy of the order in the month of December, 2019 and waited for the appeal period of 90 days to expire; that thereafter, approached his counsel to prepare and file appeal against the order of disciplinary authority; that in the mean time, Covid-19 pandemic having intervened, delay had occurred; and thus, the reasons for the delay has beenproperly and sufficiently explained which the appellate authority failed to consider.

15. However, it is to be noted that in the condone delay petition along with the appeal filed on 03.11.2020, the petitioner had stated that he is in receipt of the copy of the order in criminal case on 01.10.2019. Thus, there is a variance between the date mentioned in the condone delay petition filed before the Appellate Authority and the affidavit filed in support of the present writ petition.

16. Further, the pleas taken in the affidavit, with regard to the petitioner approaching the officials of the respondent and they advising him to wait for the outcome of the criminal case, in order to file appeal against the order of disciplinary authority do not find mention in the condone delay petition affidavit filed along with the appeal before the Appellate Authority. Thus, the petitioner by the affidavit filed along with the writ petition has not only sought to improvise his case, but also has resorted to alteration of dates to suit to his convenience. Thus, this Court refrains itself from considering as to whether the petitioner had explained the delay satisfactorily, for this Court to condone the delay in exercising extraordinary jurisdiction Under Article 226 of the Constitution of India and todirect the Appellate Authority to decide the appeal on merits. Thus, the first question is answered in negative.

17. Insofar as, the claim of the petitioner of the impugned order has having passed by the incompetent authority contrary to Regulation 17 r/w. Clause 2 of Schedule to the Regulations, 1976, it is to be noted that a reading of the impugned proceedings would show that by the impugned proceedings, signatory of the said proceeding only sought to communicate to the petitioner, the decision of the appellate authority in refusing to condone the delay of filing of the appeal and he himself not acting as the appellate authority and deciding the said application. This would be evident from the following paragraph:-

                     “The appeal preferred by you along with condone delay petition was placed before the appellate authority and has been declined by him for the reason “In the interest of justice, the undue delay cannot be condoned. Further the reason stated does not warrant any condone. Hence declined.”

                     (underlining supplied by Court)

18. Thus, the reading and understanding of the petitioner of the condonation delay petition being decided by incompetent authority and not by the appellate authority/Assistant General Manager, in the considered view of this Court, it is without any substance or merit. Thus, the second question is also answered against the petitioner.

19. Turning to the last question, since, the respondents by the counter affidavit had denied the claim of the petitioner of condoning delay petition having been decided by an incompetent authority and on the other hand had claimed of the said petition having been considered by the appellate authority by recording reasons, having regard to the nature of the writ petition filed and the relief sought for therein being a writ of certiorarified mandamus, this Court had called upon the learned standing counsel appearing for the respondents to place before this Court, the record relating to passing of the order by the Appellate Authority in the condone delay petition, whereby, it is stated that the said authority having recorded reasons for his decision.

20. Pursuant to the aforesaid directions, the learned standing counsel appearing on behalf of the respondents has placed before this Court, the original ofthe Office Memorandum and also filed a copy thereof. The Original of the Office Memorandum is perused and copy thereof as filed is taken on file and made part of the record.

21. A perusal of the original Office Memorandum as placed before this Court firstly shows that it is a Office Memorandum forwarding the appeal filed by the petitioner along with the remarks of the concerned officials of the Bank, whose signatures are affixed at the bottom of the Office Memorandum. The said Office Memorandum is stated to have been forwarded to the Appellate Authority, who in the present case is said to be Field General Manager, being an officer, above the rank of Assistant General Manager, as prescribed in Clause 2 of Schedule to the Regulations 1976.

22. A further perusal of the Office Memorandum shows that it is the Field General Manager, acting as Appellate Authority having considered the condone delay petition filed by the petitioner. The Appellate Authority by considering the condone delay petition filed alongwith the appeal had made endorsement / noting in his handwriting. The endorsement / noting made in handwriting is in two parts, and reads as under :-

                     Part (i) : “Delivered. In the interest of justice, the undue delay cannot be condoned. Any such exception will become an example and will defeat the provisions of law. Further the reasons stated does not warrant any condone. Hence declined.”

By stating as above, the Filed General Manager had affixed his signature with date by the side of the last word on “declined” 20.01.2021.

23. Below the aforesaid endorsement, further endorsement has been made which reads as under :-

                     Part (ii) : “Also confidence and trust between employee and employer has been breached / shaken due to the theft. Further Bank being a custodian of the public / public money, cannot afford to have such staff, who perpetrates such theft.”

24. However, the above Part (ii) endorsement is made after the signature affixed by the Field General Manager at the end of the first part endorsement. Further, at the end of the second endorsement there is no signature of the Field General Manager for this Court to accept that the said endorsement as having been made by the same said authority.

25. That apart, from a bare perusal of the original of the Office Memorandum as placed before this Court, shows that the handwriting of the Part (ii) endorsement differs from the handwriting of the Part (i) endorsement, apart from the thickness of the pen used, ink and the style of writing. Thus, the contention of the respondent of the Appellate Authority having recorded his reasons as noted in the Part (ii) endorsement for not condoning the delay, cannot be accepted as having been made by the original Appellate Authority and causes a doubt as to the genuineness of the claim of the respondents.

26. The aforesaid view of this Court is further fortified on account of the fact that by the letter dated 20.01.2021 addressed by the Chief Manager, HRD to the Regional Manager, Regional Office, Chennai, by which the Regional Manager was directed to inform the petitioner, being the appellant in the appeal, of the reasons of rejection of his condone delay petition, only records the Part (i) ofendorsement and there is no whisper as noted in the Part (ii) endorsement. This only goes to show that the Part (ii) endorsement has been inserted by the respondent/Bank, after the petitioner approaching this Court by the present writ petition assailing the action of the Appellate Authority in not recording the reasons while rejecting the condone delay petition.

27. Though, on behalf of the respondents, it is contended that notwithstanding the Part (ii) of the endorsement, the Part (i) of the endorsement itself is sufficient reason, as the Appellate Authority had recorded his reason in rejecting the condone delay petition is on account of “undue delay and that such exception will become an example and will defeat the provisions of law”; it is to be noted that the said recording cannot be considered as the reasoning of the Appellate Authority with regard to the explanation offered by the petitioner seeking to condone the delay in preferring the appeal.

28. It is trite law that reasons are the heart beat of any decision making process. (See – 2003 (11) SCC 519) – Raj Kishore Jha V. State of Bihar and others.

29. Since, the aforesaid recording made by the Appellate Authoritycannot be considered as recording of reasons for rejecting the condone delay petition filed by the petitioner along with the appeal, this Court is of the view that the Part (i) of the endorsement of the Appellate Authority falls short of reason of the said authority in rejecting the condonation of delay petition filed by the petitioner along with the appeal presented by him, by considering the explanation offered for delay as not being satisfactorily explained.

30. Insofar as the Part (ii) of the endorsement is concerned, as noted herein above, since the same clearly appears to be a insertion subsequently, the same cannot be looked into, more particularly, having regard to the fact that the same not being mentioned in the communication dated 20.01.2021 addressed by the Chief Manager, HRD to the Regional Manager, Regional Office, Chennai by which the said authority was directed to inform the petitioner of the outcome of the condonation delay petition.

31. Thus, this Court holds that the Part (ii) of the endorsement on the Official Memorandum is not made by the Appellate Authority, but is an insertion by some one else as an after thought to justify its action. This action of therespondent/Bank being a Public Sector Bank in resorting to tampering of record particularly in a matter pending before the Court is highly despicable and thus needs to be deprecated, and I do so.

32. Further, the said reasons noted in the endorsement also cannot be considered as reasons dealing with the explanation offered by the petitioner in the condone delay petition, as the same are in relation to merits of the matter.

33. As the Part (i) endorsement by which the Appellate Authority had rejected the condonation of delay petition filed by the petitioner along with the appeal is without reasons, this Court is of the view that the impugned rejection of the delay petition cannot be sustained. Thus, the last question is answered in favour of the petitioner.

34. Thus, the Part (i) endorsement of the Appellate Authority dated 20.01.2021 on the Office Memorandum, with regard to the rejection of condone delay petition, and the impugned proceedings dated 09.02.2021 by which the aforesaid decision of the Appellate Authority is communicated to the petitionerare liable to be set aside.

35. Accordingly, the writ petition is allowed and Part (i) endorsement dated 20.01.2021 and the impugned proceedings dated 09.02.2021 is set aside and the matter is remitted back to the Appellate Authority to decide the condonation of delay petition filed by the petitioner along with his appeal dated 03.11.2020, afresh, in accordance with law, after affording an opportunity of hearing the petitioner and to communicate its decision taken thereon to the petitioner within a period of one week from the date of passing of the order. No costs. Consequently, connected miscellaneous petition is closed.