Calcutta High Court
Punjab & Sind Bank & Ors vs Sri Jogeswar Mukherjee on 23 February, 2015
Author: Arijit Banerjee
Bench: Manjula Chellur, Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
A.P.O. No.101 of 2009
WITH
W.P. No.1880 of 2001
Punjab & Sind Bank & ors.
Versus
Sri Jogeswar Mukherjee.
BEFORE:
The Hon'ble CHIEF JUSTICE DR. MANJULA CHELLUR
The Hon'ble JUSTICE ARIJIT BANERJEE
Heard on: 28.10.2014, 30.10.2014, 31.10.2014, 07.11.2014 &
18.11.2014
Delivered on: February 23, 2015.
For the Appellants:- Mr. J. Kar,
Mr. S. Majumdar.
For the Respondent:- Mr. Sadhan Roy Chowdhury.
Dr. Manjula Chellur, Chief Justice :
In brief the facts of the present appeal are narrated as under:-
The respondent was Manager-in-Charge of Branch Office of Bhagalpur and Kharagpur of the appellant bank. While performing his official duties, according to appellant, he committed misconduct under the Punjab and Sind Bank Officers Employees (Conduct) Regulations of 1981 particularly under Regulation 3(1) and 3(2) read with Regulation 24 of the Regulations. The gist of the charges in the departmental enquiry initiated against the respondent is, through a middleman named Sukumar Singh, during the year 1983-84, the respondent Manager disbursed 99 loans sponsored by SC/ST Development and Finance Corporation, Midnapore in a fraudulent manner by grabbing large chunk of loan amount which is evident from numerous documents wherein interpolations are made. Even the names of the sponsored persons sent by the aforesaid Corporation were challenged.
The charges came to be denied by the respondent. By order dated 05.12.1998, the disciplinary authority rejected the report of Enquiry Officer and ordered to conduct a de novo enquiry in the above charges. This came to be challenged by the respondent Manager. This came to be confirmed by order dated 16.01.1999. The second Enquiry Officer submitted enquiry report on 28.9.1999 to the disciplinary authority. Delinquent employee was permitted to submit his representation. Ultimately, disciplinary authority imposed punishment against the writ petitioner awarding penalty of compulsory retirement from service of the bank.
The statutory appeal came to be filed questioning the order of punishment and the said appeal was dismissed by order dated 18.12.2008. Before learned Single Judge it was contended that the charge-sheet was not sustainable in view of the stale charges in respect of charge sheet dated 01.6.1994 pertaining to allegation of 1983-84 as there was no satisfactory explanation for the inordinate delay. It was also contended that de novo enquiry on the basis of selfsame charge- sheet was not permissible. It was contended by the delinquent employee before the learned Single Judge that both Enquiry Officers opined in the reports that the charges were not proved against the delinquent. Over and above this, when the bank was unable to summon any witness of their case, the charges cannot be held as proved.
In the light of above factual situation, the disciplinary authority ought not to have arrived at a decision on the basis of certain documents without giving any opportunity to the delinquent is the stand of the delinquent.
So far as statutory appellate authority order, it was contended by the writ petitioner that the same suffers from non-application of mind as no reasons whatsoever are assigned for such conclusion.
In the writ petition, the learned Judge ultimately opined that the charge-sheet dated 01.6.1994 issued by Assistant General Manager Zonal Head Office need not be interfered with, but the order dated 05.12.1998 by the disciplinary authority to conduct de novo enquiry proceedings and the impugned order of punishment dated 19.10.2000 and order of the Appellate Authority came to be quashed and set aside. Aggrieved by the same, the present appeal is preferred.
According to the appellant, learned Single Judge was not justified in opining that principles of natural justice were violated. According to appellant bank, application of principles of natural justice cannot be in the vacuum, and have to be tested on the touchstone of prejudice, if any, alleged to have suffered by the persons claiming such violation. If the provisions of Regulation 7 of the Punjab & Sind Bank Officers Employees (Discipline & Appeal) Regulations, 1981 (for short referred to as Regulations) was read in its proper perspective so far as the question of conducting a fresh enquiry, the end result of the writ petition would have been otherwise is the stand of the appellant Bank. According to appellant Bank, there is no violation of natural justice at any stage of the proceedings. According to them, Regulation of the Bank do not permit issuance of second show-cause notice proposing penalty and even otherwise the show cause notice issued to the petitioner indicated the grounds of disagreement of the disciplinary authority. The learned Judge, according to appellant, failed to take into consideration and appreciate the detailed order of the disciplinary authority why it was differing from the opinion of the Enquiry Officer. The decisions referred to ought to be appreciated in the light of specific Regulation of the Bank so far as fresh enquiry to be conducted is the stand of the appellant. When the representation of the respondent employee was taken into consideration by the disciplinary authority, there is no question of not giving any opportunity to the respondent employee. With these submissions, they sought for setting aside the judgment of learned Single Judge.
In the cross-appeal filed by the respondent employee, according to respondent employee, the learned Judge ought to have held that charge was served after a lapse of period of 10 years from the date of alleged irregularities and the management failed to explain inordinate delay in issuing the articles of change.
Reading of the charges as a whole, it never suggests commission of any irregularity by the delinquent employee as the charge contains vague and indefinite allegations without application of mind. Learned Judge failed to note that the report of SC/ST Corporation, Midnapore was never brought on record. It was further contended that as the delinquent employee was reaching the normal age of superannuation within few days, the learned Single Judge ought not to have kept the charge-sheet alive as none of the Regulations permit continuation of the departmental enquiry after the incumbent reaching the normal age of superannuation. The learned Judge ought to have passed order, directing reinstatement of the employee with all the emoluments attached to the posts as the delinquent employee has suffered serious prejudice both in terms of pecuniary benefit, social reputation and other civil consequences. With these averments, he has sought for dismissal of the main appeal and allowing the cross-appeal.
Order dated 05.12.1998 is the order of disciplinary authority directing the fresh enquiry which reads as under:-
"An enquiry was ordered in the matter of charge sheet dt. 1.6.94 issued to Sh. J. Mukherjee, Manager on account of his lapses as detailed out in the charge sheet. The Inquiring Authority has submitted his findings dt. 7.3.98 and upon its perusal and of the enquiry record placed before me. I have carefully studied the whole record viz-a-viz findings. I have also very minutely gone through the CSO's submissions. PO's submissions and have observed that though very very serious allegations were made in the charge sheet, the findings did not bring any truth but on some technical grounds have held the charges as not proved. Even the CSO is not satisfied and in has seriously doubted the enquiry process and have alleged the denial of Natural Justice, reasonable opportunity for cross examination of management witnesses which have not been provided in the enquiry. I have also observed that there is sufficient material in the shape of Branches records, as such, there is a dire need of probing the truth in the matter. I am of the considered opinion that truth requires to be traced out. As such, I have decided to case in terms of the clause 7 of the Punjab & Sind Bank Officer Employees' (Discipline & Appeal) Regulations, 1981. As such Sh. B.S. Sandhu, Chief Manager, R.O. ARR. Calcutta, is being appointed as I.A. and Sh. A.K. Sinha, Manager, Z.O. Calcutta as presenting Officer to present the case. Sh. J. Mukherjee is advised to present himself before the enquiry to present the case where he shall be provided fair opportunity in presence his case."
So far as Regulations are concerned, Regulation 7 refers to action on the inquiry report. It contains four sub-regulations which reads as under:-
7. Action on the inquiry report : The Disciplinary Authority, if it is not itself the inquiring authority, may, for reasons to be recorded by it in writing, remit the cases to the inquiring authority for fresh or further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of the Regulation 6 as far as may be.
(2) The Disciplinary Authority shall, if it disagrees with the findings of the inquiry authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.
(3) If the Disciplinary Authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in regulation 4 should be imposed on the officer employee it shall, notwithstanding anything contained in regulation 8, made an order imposing such penalty. (4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the officer employee concerned.
Regulation 7(1) indicates that if the disciplinary authority is not the inquiring authority it can remand back the proceedings to the inquiring authority for fresh or further inquiry. It further says such direction for fresh inquiry or further inquiry must be based on reasons recorded in writing. It also indicates only after such direction fresh or further inquiry shall be proceeded with in accordance with the provision of Regulations 6.
Regulation 7(2) indicate, if the disciplinary authority is not in agreement with the findings of the inquiring authority on any charges mentioned in the articles of charge, it has to record its reasons for such disagreement and further proceed to record its own findings on such charge if the evidence on record is sufficient for the purpose.
As already stated above, by order dated 05.12.1998, the disciplinary authority opined that the charges made are very serious but findings do not bring any truth and on the other hand based on technical grounds, inquiry officer opined that the charges were not proved. He further opined sufficient material in the shape of branch records is available and the need for proving truth into the matter is there. Therefore, in terms of Clause 7 of the Regulations, a de novo enquiry has to be made.
Annexure-P/4 is letter dated 07.1.1999 by the delinquent employee raising objection to the de novo enquiry. Annexure-P/5 is letter dated 15.1.1999 by the disciplinary authority which says the order at P/3 was self-explanatory and the request of withdrawal by the delinquent was rejected. Subsequently, fresh enquiry was conducted and fresh enquiry report was submitted as per Annexure-P/7 dated 28.9.1999. It is to be noted here that the delinquent employee though initially raised objection so far as de novo enquiry, later participated in the second enquiry. Therefore, by his conduct, one can clearly opine that he abandoned his challenge and participated in the second enquiry. On perusal of Regulation 7, it clearly indicates that the disciplinary authority for reasons to be recorded in writing can always direct the inquiring authority whether to hold fresh enquiry or further enquiry. Therefore, the second enquiry was to be held in terms of Regulation 7. We are of the opinion that learned Single Judge did not refer to the above Regulation before coming to conclusion under challenge.
Then coming to the second argument whether second show cause notice has to be issued to the delinquent employee proposing the punishment, according to learned Senior Counsel, Mr. Kar arguing for the appellant bank, none of the Regulations provide issuance of second show cause notice indicating proposed penalty and the appellant also relied upon Article 311 sub-article 2 of the Constitution of India.
Regulation 6 refers to procedure for imposing major penalties which reads as under:-
6. Procedure for imposing major penalties:
"1. No order imposing any of the major penalties specified in clauses (f), (g), (h), (i) and (j) of regulation 4 shall be made except after an inquiry is held in accordance with this regulation.
2. Whenever the Discipline Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against on officer employee, it may itself enquire into, or appoint any other person, who is, or has been, a public servant (hereinafter referred to as the Inquiring Authority) to inquire into the truth thereof).
Explanation: When the disciplinary Authority itself holds the enquiry and reference in sub-regulation (8) to sub-regulation (21) to the Inquiring Authority shall be construed as a reference to Disciplinary Authority.
3."Where it is proposed to hold an inquiry, the Disciplinary Authority shall, frame definite and distinct charges on the basis of the allegations against the officer employee and the articles of charge, together with a statement of the allegations, list of documents relief on along with copy of such documents and list of witnesses along with copy of statement of witnesses, if any, on which they are based, shall be communicated in writing to the officer employee, who shall be required to submit, within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), within such extended time as may be granted by the said Authority, a written statement of his defence." Provided that wherever it is not possible to furnish the copies of documents, disciplinary authority shall allow the officer employee inspection of such documents within a time specified in this behalf."
4. On receipt of the written statement of the officer employee, of if no such statement is received within the time specified, an inquiry may be held by the Disciplinary Authority itself, or if it considers it necessary so to do appoint under sub regulation (2) an Inquiring Authority for the purpose;
Provided that it may not be necessary to hold an inquiry in respect of the articles of charge admitted by the officer employee in his written statement but shall be necessary to record its findings on each such charge.
5. The Disciplinary Authority shall, where it is not the inquiring authority, forward to the inquiring authority;
i) a copy of the articles of charge and statements of imputations of misconduct of misbehavior.
ii) a copy of the written statement of defence, if any, submitted by the officer employee;
iii) a list of documents by which and list of witnesses by whom the articles of charge are proposed to be substantiated;
iv) a copy of statement of the witnesses; if any;
v) evidence proving the delivery of articles of charge
under sub-regulation (3);
vi) a copy of the order appointing the 'Presenting Officer'
in terms of sub-regulation (6).
6. Where the Disciplinary Authority itself enquires or appoints an inquiring authority for holding an inquiry, it may, by an order, appoint a public servant to be known as the "Presenting Officer"
to present on its behalf the case in support of the articles of charge.
7. The officer-employee may take the assistance of any other officer employee but may not engage a legal practitioner for the purposes, unless the presenting officer appointed by the disciplinary authority is a legal practitioner or the disciplinary authority, having regard to the circumstances of the case, so permits.
NOTE : The officer Employee shall not take the assistance of any other officer employee who has two pending cases on hand in which he has to give assistance. (Staff Circular NO. 1511 dated 19.11.85)
8. (a) The inquiring authority shall be notice in writing specify the day on which the officer employee shall appear in person before the inquiring authority.
(b) On the date fixed by inquiring authority, the officer employee shall appear before the inquiring authority at the time, place and date specified in the notice.
(c) The inquiring authority shall ask the officer employee whether he pleads guilty or has any defence to make and if he pleads guilty to any of the articles of charge the inquiring authority shall record the plea, sign the record and obtain the signature of the officer employee concerned thereon.
(d) The inquiring authority shall return a finding of guilt in respect of those articles of charge to which the officer employee concerned pleads guilty.
9. If the officer employee does not plead guilty, the inquiring authority shall adjourned the case to a later date not exceeding 30 days or within such extended time as may be granted by the inquiring authority.
10. The inquiring authority while adjourning the case as in sub-
regulation (9), shall also record by an order that the officer employee may for the purpose of preparing defence:
i) complete inspection of the documents as in the list furnished to him immediately and in any case not exceeding 5 days from the date of such order if he had not done so earlier as provided for in the provision to sub-regulation (3);
ii) submit a list of documents and witnesses, that he wants for the inquiry;
iii) give notice within ten days of the order or within such further time not exceeding ten days as the Inquiring Authority may allow for the discovery or production of the documents referred to in item (ii).
NOTE: The relevancy of the documents and the examination of the witnesses referred to in item (ii) shall be given by the officer employee concerned.
Reference staff Cir. NO. 2588 dt. 09.11.2000.
11. The inquiring authority shall, on receipt of the notice for the discovery or production of the documents; forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents on such date as may be specified.
12. On the receipt of the requisition under sub-regulation (11) the authority having the custody or possession of the requisition documents, shall arrange to produce the same before the inquiring 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.
13. On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses produced by the Presenting Officer and may be cross-examined by or on behalf of the officer employee. The Presenting Officer shall be entitled to re-examine his witnesses on any points on which they have been cross- examined, but not on a new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
14. Before the close of the case, in support of the charges the inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the charge sheet or may itself, call for new evidence or recall or re-examine any witness. In such case the officer employee shall be given opportunity to inspect the documentary evidence before it is taken on record, or to cross-examine a witness, who has been so summoned. The inquiring authority may also allow the officer employee to produce new evidence, if it is of opinion that the production such evidence is necessary in the interest of justice.
15. When the case in support of the charges is closed, the officer employee may required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the officer employee shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.
16. The evidence on behalf of the officer employee shall then be produced. The officer employee may examine himself in his own behalf, if he so prefers. The witnesses produced by the officer employee shall then be examined by the officer employee and may be cross examined by the Presenting Officer. The officer employee shall be entitled to re-examine any of his witnesses on any points on which they have been cross examined, but not on any new matter without the leave of the inquiring authority.
17. The inquiring authority may, after the officer employee closes his evidence, and shall, if the officer employee has not got himself examined, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer employee to explain any circumstances appearing in the evidence against him.
18. The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer if any appointed, and the officer employee or permit them to file written briefs of their respective cases within 15 days of completion of production of evidence, if they so desire.
(Staff Circular No. 1529 dated 21.1.86)
19. If the officer employee does not submit the written statement of defence referred to in Sub regulation (3) on or before the date specified for the purpose or does not appear in person, or through the assisting officer or otherwise fails or refused to comply with any of the provisions of these regulations, the inquiring authority may hold the inquiry ex-parte.
20. Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercise, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by its predecessor and partly recorded by itself;
Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall, examine, cross-examine and re-examine any such witnesses as herein before provided.
21.(i) On the conclusion of the inquiry the inquiring authority shall prepare a report which shall contain the following:
(a) a gist of the articles of charge and the statement of the imputations of misconduct or misbehavior;
(b) a gist of the defence of the officer employee in respect of each articles of charge;
(c) an assessment of the evidence in respect of each articles of charge;
(d) the findings on each articles of charge and the reasons therefore.
Explanation : If, in the opinion of the inquiring authority, the proceedings of the inquiry establish any article of charge different from the original article of charge, it may record its findings on such article of charges:
Provided that the findings on such article of charge shall not be recorded unless the officer employee has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charges:
(ii) The Inquiring Authority, where it is not itself the Disciplinary Authority, shall forward to the Disciplinary Authority the records of inquiry which shall include -
(a) the report of the inquiry prepared by it under clause (i);
(b) the written statement of defence, if any, submitted by the officer employee referred to in sub-regulation (15);
(c) the oral and documentary evidence produced in the course of the inquiry;
(d) written briefs referred to in sub-regulation (18), if any, and
(e) the orders, if any, made by the Disciplinary Authority and the inquiring authority in regard to the inquiry.
Regulation 6(1) clearly indicates that unless and until an opportunity of being heard is accorded in terms of Regulation 6, no major penalty specified in Clauses f, g, h, i and j could be imposed. Regulation 6(2) indicates that conducting enquiry into the misconduct or misbehavior either Disciplinary Authority can itself enquire into the truth or otherwise of the allegation or appoint any other person to conduct the enquiry. Regulation 6(3) indicates how definite and distinct charges have to be framed based on the allegations against the officer and article of charge have to be served along with the list of documents and witnesses, if any, to delinquent giving specific time to send a reply, if any. Regulation 6(4) refers to appointment of inquiring authority after receiving the statement of the employee-officer or otherwise. Under Regulation 6(5) Disciplinary Authority must refer the matter, forward the required papers to the inquiring authority. Regulation 6(6) refers to appointment of a Presenting Officer in support of article of charges. Regulation 6(7) indicates how officer-employee could take assistance of other officer-employee but not engage a legal practitioner and also indicates conditions when the assistance of legal practitioner could be taken. Regulation 6(8) indicate how notice specifying the date of appearance of the delinquent has to be issued and it contains details to be informed to the officer-employee. It also indicates how article of charges is to be put to officer-employee and the procedure to be followed in case of admission of guilt on the part of the officer- employee. Regulation 6(9) refers to the procedure how an enquiry has to be conducted within a time frame if officer-employee does not plead guilty. Regulation 6(10) refers to the procedure to be followed with regard to complete inspection of the document etc. to be relied upon in the enquiry. From Regulation 6(11) onwards, it contemplates various aspects of the enquiry to be conducted. Regulation 6(21) refers to preparation of a report and it also indicate what should be mentioned in the report.
Reading of the above Regulations clearly indicate how the enquiry has to be proceeded with and other compliances. In none of the above provisions, there is any indication that a second show cause notice indicating the proposed penalty has to be issued to the charged employee.
Article 311(2) of the Constitution which came to be introduced by 42nd Amendments came into force w.e.f. 03.1.1977. Article 311(1) & (2) read as under:-
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. - (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply -
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
Reading the above provisions it is clear, there is no issuance of second show cause notice indicating the proposed penalty. It only says that a reasonable opportunity of being heard must be given. The proviso says in clear terms that there is no necessity to give the person against whom enquiry is conducted any opportunity of making representation on the penalty proposed.
Thereafter, Regulation 7 comes into picture. Admittedly, in the case of the penalty of compulsory retirement, it is a major penalty specified in Section 4(h) of the Regulation.
According to the appellant management there is no need to issue second show-cause in the light of no such mandate in the regulations of the bank and so also in terms of Article 311(2) of the Constitution.
Learned Senior Counsel for appellant places reliance on judgment of Constitutional Bench reported in (1993) 4 SCC 727 in the case of Managing Director, ECIL, Hyderabad Vs. B. Karunakar and Ors.
The judgment was with reference to the implication of Article 311(2) of the Constitution after 42nd Amendment. Paragraphs 28, 29 and 30 are relevant which read as under:-
28. The position in law can also be looked at from a slightly different angle. Article 31(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that "where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed", it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-
second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges.
29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges leveled against him. That right is a part of the employee's right to defend himself against the charges leveled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.
30. Hence the incidental questions raised above may be answered as follows:
[i] Since the denial of the report of the enquiry officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.
[ii] The relevant portion of Article 31(2) of the Constitution is as follows:
"(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges."
Thus the article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 31(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded and when the enquiry officer is not the disciplinary authority the delinquent employee will have the right to receive the enquiry officer's report notwithstanding the nature of the punishment.
[iii] Since it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him.
[iv] In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan case should apply to employees in all establishments whether Government or non-
Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges leveled against him. Hence question (iv) is answered accordingly.
[v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.
From the above judgment it is clear that the entire disciplinary proceedings indicate two stages. If Enquiry Officer is other than the Disciplinary Authority, first stage comes to an end when the Disciplinary Authority arrives at its conclusion on the basis of evidence by Enquiry Officer's report and the delinquent employee replies to it. The second stage commences at the time when Disciplinary Authority decides to impose penalty on the basis of its conclusion. In this context, Their Lordships opined that if Disciplinary Authority decides to drop the disciplinary proceedings the second stage is not even reached. It is clear from the elaborate discussion that what happens after 42nd Amendment of the Constitution was at what point of time the representation of the employee against the Enquiry Officer's report would be considered. The Disciplinary Authority has to consider the representation of the employee against the report before it arrived at its conclusion with regard to the guilt or innocence of the employee in respect of charges. Therefore, by 42nd Amendment the dispensation was with regard to the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the part of the delinquent and such right was always in existence but only at what point of time such right could be exercised was clarified by 42nd Amendment.
Another judgment relied upon is 1991(1) SCC 588 in the case of Union of India Vs. Mohd. Ramzan Khan.
As a matter of fact, this judgment was referred to in the judgment of Managing Director, ECIL, Hyderabad Vs. B. Karunakar and Ors. of (1993) 4 SCC 727. In this judgment Their Lordships held that enquiry under Article 311(2) is of quasi judicial nature. Their Lordships held that what is dispensed by Clause 2 of Article 311 is when disciplinary proceedings are concluded by report of the Enquiry Officer, delinquent is entitled to copy of such report and non-furnishing of report would amount to violation of natural justice. By deleting second stage of enquiry which would commence with the service of notice proposing one of the three punishments was alone taken away by 42nd Amendment but right of representation or oral hearing is not taken away.
Another judgment relied upon is (2008) 3 SCC 469 in the case of Divisional Forest Officer, Kothagudem and Ors. Vs. Madhusudhan Rao. In this case, Their Lordships were considering the duty of the Appellate Authority and the revisional authority in a departmental enquiry. The Appellate Authority not only re-opened the case but also enhanced the penalty imposed by the disciplinary authority but did not consider the submission made by charged employee in his appeal. When this order came to be challenged, revisional authority though granted some relief on the quantum of penalty, but did not give reasons under what circumstances, proceedings in the departmental enquiry were held to be vitiated. If not elaborate at least in brief, the reasons must be given so that employee would know the mind of the authorities why his appeal or revision has been rejected. Placing reliance on this case, learned Senior Counsel contends that Appellate Authority while disagreeing with the disciplinary authority, it referred to the records in order to hold charged employee's guilt of the changes. Therefore, according to appellant, learned Single Judge was not justified in allowing the writ petition and setting aside the orders of the Appellate Authority.
Learned Senior Counsel also places reliance in the case of S.N. Mukherjee v. Union of India reported in (1990) 4 SCC 594 judgment by Constitutional Bench with reference to recording of reasons vis-à-vis natural justice while considering object and basic principles of natural justice in administrative law Their Lordships opined that natural justice not being embodied rules, the extent of their application would depend on the governing statutory framework. It was held that an authority exercising quasi-judicial function must record reasons for its decision irrespective of whether the decision is subject to appeal, revision or judicial review. Reasons must be clear and explicit though may not be elaborate. This is one of the rules of natural justice. Such requirement is greater at original stage than at higher stage that is appellate or revisional stage, if original decision is confirmed, there is no need to give separate reasons but if it disagrees with the reasons in the impugned order, reasons must be expressed.
Placing reliance on the above decisions, learned Counsel arguing for appellant contends that in the absence of mandate, requiring issuance of second show cause notice, indicating proposed penalty, for want of second notice, the orders of the Appellate Authority cannot be found fault with. It is further argued that disciplinary authority after placing its reasons why it is not agreeing with the opinion expressed by the inquiry authority has imposed penalty. Therefore, principles of natural justice were not at all violated.
As against this, learned Counsel arguing cross-appeal on behalf of the charged employee places reliance on the case of State of Madhya Pradesh v. Bani Singh & anr. reported in AIR 1990 SC 1308 to contend that delay to initiate disciplinary action in the present case has to be considered as unreasonable and unless satisfactory explanation for the inordinate delay in issuing the charge memo is given. The departmental enquiry cannot be permitted to be proceeded with.
He also refers to (2006) 5 SCC 88 in the case of M.V. Bijlani v. Union of India & ors. to contend that in the absence of examining any witness from SC/ST Corporation or the deprived applicants recommended by the above-said Corporation for grant of loans, on the basis of evidence of Bank Officials alone, the disciplinary authority ought not to have held the charges as proved. As disciplinary proceedings being quasi-judicial in nature, it is contended that there should be some evidence to prove the charge, though proof beyond all reasonable doubt as required in criminal trial is not necessary.
He also places reliance in the case of K.R. Deb v. The Collector of Central Excise, Shillong reported in 1971 (2) SCC 102 to contend that on both occasions enquiry reports were in favour of charged employee opining that the material lacks proof of charges against the charged employee. In such a situation, the authorities must apply their mind to the material on record while disapproving the enquiry report.
He also relies on Anand Prakash Saxena v. Union of India & ors. reported in 1998 (1) CLJ 45 to contend that in order to bring the charges against the delinquent officer without any vagueness and ambiguity, the charges are not only required to be stated specifically in a straight forward manner but also disciplinary authority has to adjudge the relevant facts and circumstances of the case from every angle without bias and closed mind.
He also places reliance on Lav Nigam v. Chairman & MD, ITI Ltd. & anr. reported in (2006) 9 SCC 440 to contend that in a disciplinary proceeding, if disciplinary authority differs with the view taken by the Enquiry Officer, he is bound to give a notice setting out his tentative conclusions to the appellant and it is only after hearing the appellant that the disciplinary authority should arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed.
With the above material before us we analyse the facts, Constitutional Bench of the Apex Court in (1993) 4 SCC 727 declares that after 42nd Amendment the charged employee must have an opportunity of seeing report of the enquiry and the representation has to be taken into consideration by the disciplinary authority while arriving at its conclusion with regard to the guilt or innocence of the employee in respect of charges. 42nd Amendment dispensed with opportunity of making representation on the proposed penalty and not the opportunity of making representation with regard to the report. Even otherwise there is no provision in the Regulations of the Bank that proposing the penalty, second show cause notice must be given. Therefore, there is no violation of principles of natural justice.
Apparently, in the first round of enquiry, Enquiry Officer opined that charges were not established. Disciplinary authority opining that there were deficits in the enquiry, ordered for de novo enquiry. In the second round of proceedings also Enquiry Officer opined that charges were not established. Disciplinary authority awarded penalty of compulsory retirement. Appeal came to be dismissed which was challenged before this Court. This Court set aside the entire proceedings. Even the order to conduct de novo enquiry was set aside. We have already opined that there is procedure for conducting de novo enquiry. When de novo enquiry was directed, the charged officer did not challenge the same and even participated in the second round of disciplinary proceedings. At this stage, said proceedings cannot be set at naught opining that de novo enquiry itself was illegal and not permissible.
Now, we are left with the question whether disciplinary authority was correct in disagreeing with the opinion of the enquiry report of the Enquiry Officer and was justified in imposing penalty of compulsory retirement. Charges relate to 1994 and incident relate to 1983-84. The disciplinary authority relied upon the investigating report of West Bengal SC/ST Development and Finance Corporation, Midnapore. In both the reports, charges were held to be not proved against the delinquent. The learned Judge was justified in opining that the delay in issuing charges in question cannot be interfered with as the entire delay was not on account of laxity on the part of the management employer as the involvement of the Officer came to be revealed only when West Bengal SC/ST Development Finance Corporation, Midnapore gave the investigation report. According to learned Single Judge, not a single witness was produced in the course of enquiry to prove the documents produced before the Enquiry Officer. This opinion was incorrect as two Cashiers who were working at the relevant point of time was examined. The disciplinary authority has looked into the documents referred to in the order. The disciplinary authority after opining that on trivial grounds Enquiry Authority has given a favourable opinion favouring the Charged Officer, proceeded to analyze every allegation in the charge-sheet. Apart from the investigation report by the above-said Corporation, the applications received by the Bank were found to be tampered with. From the documents, the following facts were revealed:-
a) There were numerous cuttings, deletions, alterations and overwritings;
b) The names of sponsored persons with addresses were changed without authentications;
c) Form No.30 was filled up with the same names that of applicants/beneficiaries, but photographs of third persons were pasted on the loan applications; and
d) Savings bank accounts in the same names and same photographs were opened in the Bank's books.
The authority after looking into the documents, found that persons whose photographs have been pasted on the loan application forms and account opening forms compared to the names of the persons mentioned on the loan application form or as referred in the investigation report were found to be different persons. All the photographs were attested by Charged Officer, Shri J. Mukherjee. In his reasoning, he was justified in opining that enquiry authority was not justified in discarding the material that out of 91 cases, allegation of overwritings, cuttings and deletions existed in six cases only. Therefore, there was no justification for the Enquiry Officer to opine that charges were not established. Disciplinary authority opined that sponsorship letters being primary document with evidence of deletions, cuttings, overwritings on the said documents. The Senior Manager has to be cautious and prudent once he sees such deletions, alterations and overwritings. Even if it were to be with regard to six cases, those six cases ought to have been seriously enquired into by Charged Officer being the authority who disbursed the loans. He has to take the responsibility of the irregularity. Definitely, it is unbecoming of a prudent officer of the Bank to disburse the loans without cross- verification of the facts to arrive at proper conclusion so that genuine persons were getting the loan. The disciplinary authority also refers to several documents MDE 13/2 and MDE 13/1 letters dated 14.02.1995 from one Yakub Ali wherein it was stated that loan disbursed to the persons in Anchal in 1983-84 by Punjab & Sind Bank, Kharagpur were unknown to him and documents prepared for these loans do not bear the signature of Yakub Ali. The documents shown to him by Manager Babu in the evidence were forged by somebody. He also refers to several documents which clearly indicated six cases were fictitious.
On perusal of the reasoning given by the disciplinary authority, it is not a case where disciplinary authority was biased or had a closed mind so far as the charged employee. On the other hand, each and every allegation with reference to enquiry report was taken into consideration and after analyzing the same with the material on record, he formed opinion with reasons. It is well-settled that in a departmental enquiry, the standard of proof need not be beyond all reasonable doubt. If the material on record points out probability of involvement of the charged employee that itself would be enough to opine the guilt of the Officer. There was investigation report made by third parties which has nothing to do with the Officers in the Bank. The disciplinary authority on the basis of materials on record has arrived at his conclusion on preponderance of probability.
On going through his reasoning, the recording of reasons explicitly exclude chances of arbitrariness and on the other hand ensures degree of fairness in the process of decision making. It would be practically impossible to secure the presence of persons said to have been sponsored by the Corporation in the year 1983-84. On the other hand, the investigation report of the Corporation and other documents available in the Bank along with the material that Yakub Ali's signatures were forged clearly indicate the Senior Manager who was disbursing the loans was callous and negligent in discharging his duties and his action in disbursing the loan was unbecoming of a prudent Officer of the Bank.
In the light of our discussion and reasoning, we are of the opinion, the learned Single Judge was not justified in allowing the writ petition. Accordingly, we set aside the judgment of the learned Single Judge dated 18.12.2008 allowing the appeal. The cross-appeal filed by the respondents/charge-sheeted employee is dismissed.
(Manjula Chellur, Chief Justice) I agree.
(Arijit Banerjee, J.)