Gujarat High Court
S.G.Desai Deceased Through The Legal ... vs G.S.Dhotre & 2 on 7 November, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/6022/1991 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6022 of 1991
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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S.G.DESAI DECEASED THROUGH THE LEGAL HEIRS....Petitioner(s)
Versus
G.S.DHOTRE & 2....Respondent(s)
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Appearance:
MR BP TANNA, SR.ADVOCATE for TANNA ASSOCIATES, ADVOCATE for
the Petitioner(s) No. 1 - 1.2
MR PRANAV G DESAI, ADVOCATE for the Respondent(s) No. 1
MR PRASHANT G DESAI, ADVOCATE for the Respondent(s) No. 3
RULE NOT RECD BACK for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 07/11/2016
CAV JUDGMENT
By this writ-application under Article 226 of the Page 1 of 38 HC-NIC Page 1 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT Constitution of India, the writ-applicant, a dismissed Branch Manager of the Dena Bank (since deceased, now through his legal heirs on record), has prayed for the following reliefs :
"...Your Lordships may be pleased to issue a writ of certiorari, mandamus or any other appropriate writ, direction or order :
(a) quashing and setting aside the impugned order of the Disciplinary Authority at Annexure B collectively and declaring the same to be vitiated by non-application of mind and in contravention of Articles 14 and 16 of the Constitution of India.
(b) directing the respondent-authorities to treat the petitioner as continuing in service as if the order at Annexure B collectively was never passed and further directing the respondent-authorities to confer upon the petitioner all consequential benefits i.e. salary, difference of salary, seniority, promotion, increments, etc. as if the impugned order was not made at all against the petitioner;
(c) granting such other and further reliefs and passing such other and further orders as the circumstances of the case may require;
(d) awarding the costs of the petition.
...During the pendency and final disposal of this Special Civil Application, Your Lordships may be pleased to make an order :
(a) staying the implementation and operation of the order at Annexure B collectively and further directing the respondent- authorities to permit the petitioner to maintain status quo position as existed before 16.8.91."
The writ-applicant, while serving as the Branch Manager at the Kholwad Branch of the Bank, was served with a departmental charge-sheet.
Page 2 of 38HC-NIC Page 2 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT The gist of the articles of charges are as under :
(a) Sanction and disbursement of loans @ Rs.30,000/-
each to 13 borrowers with unestablished identity by CSO.
(b) Supply of buffaloes through 5 fictitious suppliers namely in the charge-sheet without establishing their address and without establishing their capacity to supply required number of buffaloes to said 13 borrowers.
(c) Failure in assessing the real beneficiary of the entire loan amount of Rs.3.90 lacs to be one Shri Jayantilal S.Barot of Navsari who also stood as one of the guarantors.
(d) Complete non-availability of assets created out of loan amount for spot verification.
(e)Violation and disregard of Bank's Norms while sanctioning and disbursing the loans and not following the procedures normally ought to have been followed in similar circumstances, viz :
(i) Non-verification of addresses/residential status of said 13 borrowers during spot verification/visit before entertaining all the loan applications for sanction and disbursement by CSO.
(ii) Non-attestation of thumb impression of all the 13 loan applications of illiterate borrowers.
(iii) Not certifying the photographs of illiterate borrowers by CSO on the body of the individual applications entertained.
(iv) Removal of photographs of borrowers by CSO at Sr.No.11 & 12 of the Annexure to the charge-
sheet.
(v) Non recording of formal recommendations/ report of the concerned Agri. Officer/s by way of taking the signatures of the Agri. Officer/s in the said applications/proposals though applications and other documents were filled Page 3 of 38 HC-NIC Page 3 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT up by Agri. Officer/s concerned.
(vi) Non obtaining the Cattle Health Certificate for all the animals financed by the Bank.
(vii)Unauthorised use of Cattle Health Certificates meant for use of Bank of Baroda for sanctioning the loans at Dena Bank.
(viii) Non recovery of required margin money from loanees listed at Sr.No.1 & 2 of the list attached with charge-sheet namely from Shri Pancha Raha Bharwad and Mera Sajan Bharwad.
(ix) Issue of DD of Rs.80,000/- to Shri Gandabhai Revabhai Rabari, the supplier as against his receipts of Rs.83,000/-.
(x) All the so-called guarantors except Shri Jayantilal S.Barot are non-existing persons.
(f) Opening of a fictitious SB Account No.2442 on 14.5.87 in name of Ahmed Akbar Shaikh to facilitate withdrawal of amount which was credited in this account though Pay Order in consideration of supplying buffaloes to the so- called borrowers.
(g) Payment of Rs.3.90 lacs to 5 fictitious sellers without authority letter of all the 13 loanees to the effect that they have received the delivery of buffaloes. The sellers being namely Gandabhai Revabhai Rabari, Maganbhai Mashrubhai Rabari, Dahyabhai Amratbhai Patel, Ahmed Akbar Shaikh, Gandabhai Maganbhai Rabari.
(h) In case, the above said acts are proved, they will constitute the following acts of misconduct;
(i) Lack of honesty/integrity/devotion/diligence and discharge of duties, and/or
(ii) Committing fraud on the Bank, and/or
(iii) Doing acts prejudicial to the interest of the Bank, and/or
(iv) Act(s) involving or likely to involve the Bank Page 4 of 38 HC-NIC Page 4 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT into risk of heavy loss, and/or
(v) Acts unbecoming of a Bank Officer.
(i) Contravention of Regulations 3(1), 3(3), 3(4) read with Regulation 24 of Dena Bank Officer Employee's (Conduct) Regulations 1976.
The writ-applicant filed his detailed statement of defence denying the allegations.
An Inquiry Officer was appointed to conduct the inquiry. On conclusion of the inquiry, the Inquiry Officer held the charges to have been proved except one, i.e. the charge with regard to the opening of a fictitious SB Account No.2442 in the name of one Ahmed Akbar Shaikh. The disciplinary authority accepted the report of the Inquiry Officer, and relying on the same, passed an order dated 16th August 1991 imposing a penalty of dismissal from service. The order passed by the disciplinary authority reads as under :
"1. Shri S.G.Desai, Officer, Dena Bank, Surat Region is held guilty by the Inquiring Authority, inter alia of the following charges levelled against him vide charge-sheet No.SGZ:DAP:PER:8/4: 1863:89 dated 16th May 1989 after conducting an inquiry into the said charges vide regulation 6 of Dena Bank Officer Employees' (Discipline & Appeal) Regulation, 1976.
(a) Lack of honesty/integrity/devotion/diligence in discharge of your duties; and/or
(b) Committing fraud on the Bank; and/or
(c) Doing act(s) prejudicial to the interest of the bank;
and/or
(d) Act(s) involving or likely to involve the Bank into risk of heavy loss; and/or Page 5 of 38 HC-NIC Page 5 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT
(e) Act(s) unbecoming of a Bank Officer.
2. A copy of findings of Inquiring Authority dated 8th March 1991 alongwith the former Zonal Manager's observation is enclosed herewith.
3. Now, having regard to the findings of the Inquiring Authority on the charges framed and proved and with which I fully concur, I, in exercise of powers conferred on me by Regulation 7(3) read with Regulation 4 of Dena Bank Officer Employees' (Discipline and Appeal) Regulation 1976 hereby pass the following order - imposing the penalty on Shri S.G.Desai.
ORDER "DISMISSAL WITHOUT NOTICE FROM THE SERVICE OF THE BANK WITH IMMEDIATE EFFECT""
Although the writ-applicant could have challenged the order passed by the disciplinary authority by filing an appeal before the appellate authority, yet, without availing of the alternative efficacious remedy, challenged the order of dismissal from service directly by filing the present writ- application.
It appears that before the impugned order came to be passed by the disciplinary authority, the writ-applicant had come before this Court by filing the Special Civil Application No.4043 of 1991. The said writ-application was disposed of vide order dated 25th June 1991 in the following terms :
"In this petition grievance made is regarding non-supply of certain documents, the correspondence referred to in the petition. If the said documents are material or they are relevant for the purpose of establishing any of the charges levelled against the petitioner if the respondents relies on the said documents for establishing charges against the petitioner, respondents are bound to supply the copies of the said documents to the petitioner in Page 6 of 38 HC-NIC Page 6 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT absence of which ultimate decision is bound to be affected on the ground of not complying with the principles of natural justice. If, however, the respondents think that the said douments are not material documents and they are not required for proving the charges levelled against the petitioner they may not supply the same.
If any final order imposing punishment is passed, the respondents are directed not to implement the same for a period of one week from the date of communication of the order.
In view of the above direction Mr.B.P.Tanna, ld. Adv. for petitioner seeks permission to withdraw this petition. Permission granted. Petition stands dismissed as withdrawn."
Mr.Tanna, the learned senior counsel appearing for the writ-applicant, submitted that his client was not supplied with the necessary and relevant documents though demanded on various occasions. According to him, the inquiry could be said to have stood vitiated on account of the non-supply of the relevant documents. The learned counsel would submit, relying on the decision of the Supreme Court in the case of Kashinath Dixita v. Union of India and others, AIR 1986 SC 2118 that any material, which is required to be supplied and which is not likely to cause any prejudice to the Bank, if not supplied, will vitiate the inquiry and thereby the consequential order of dismissal from service. The learned counsel submitted that his client was entitled even to the copies of the internal communication of the Bank as regards the imposition of a particular penalty. It is submitted that the findings recorded by the Inquiry Officer are based on no evidence and the disciplinary authority, without any application of mind, accepted the report of the Inquiry Officer.
Page 7 of 38HC-NIC Page 7 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT Mr.Tanna, in support of his submissions, has placed reliance on the following decisions :
(1) D.S.Jariwala (since deceased, through heirs) v.
G.S.Dahotre (Special Civil Application No.10561 of 1993 decided on 9th July 2014);
(2) The judgment rendered in the Letters Patent Appeal No.1022 of 2014 decided on 9th January 2015.
In such circumstances referred to above, the learned counsel appearing for the writ-applicant would submit that there being merit in this writ-application, the same be allowed and the impugned order be quashed.
On the other hand, this writ-application has been vehemently opposed by Mr.P.G.Desai, the learned counsel appearing for the Bank. Mr.Desai would submit that no error, not to speak of any error of law, could be said to have been committed by the disciplinary authority in passing the impugned order. Mr.Desai submitted that after due consideration of the report of the Inquiry Officer, the disciplinary authority thought fit to order dismissal of the writ- applicant from service. He submitted that the writ-applicant, in his capacity as the Bank Officer, was required to exercise higher standard of honesty and integrity. The writ-applicant was obliged to take all the possible steps to protect the interest of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence. His acts of misconduct could be said to be unbecoming of a Bank Officer.
Mr.Desai submitted that this Court, in exercise of its writ jurisdiction under Article 226 of the Constitution of India, may Page 8 of 38 HC-NIC Page 8 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT not interfere with the impugned order as the same cannot be termed as illogical or suffering from any procedural impropriety or is shocking to the conscience of the Court.
Mr.Desai submitted that the contention canvassed on behalf of the writ-applicant as regards the non-supply of the documents is without any merit and deserves to be rejected outright. All the documents relied upon by the Inquiry Officer were supplied to the writ-applicant. According to Mr.Desai, such contention has been raised only for the sake of raising as the same is a patent argument in all these type of cases arising from the departmental inquiries.
Mr.Desai, in support of his submissions, placed reliance on the following decisions of the Supreme Court :
(1) State Bank of India and others v. Bidyut Kumar Mitra and others, AIR 2011 SC (Supp) 798;
(2) Ganesh Santa Ram Sirur v. State Bank of India and another, AIR 2005 SC 314;
(3) State Bank of India and others v. Narendra Kumar Pandey, (2013)2 SCC 740;
(4) State Bank of India and another v. Bela Bagchi and others, AIR 2005 SC 3272;
(5) Chairman and Managing Director, United Commercial Bank and others v. P.C.Kakkar, AIR 2003 SC 1571.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the disciplinary authority committed any error in passing the impugned order.
Page 9 of 38HC-NIC Page 9 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT It is now well-settled by a plethora of judgments of the Supreme Court that in exercise of its powers under Articles 226 and 227 of the Constitution of India, the High Courts should not venture into the re-appreciation of evidence or interfere with the conclusion arrived at by the disciplinary authority in the inquiry proceedings, if the same are conducted in accordance with law, or go into the reliability/adequacy of evidence, or interfere, if there is some legal evidence on which the findings are based, or correct error of fact, however, grave it may be, or go into the proportionality of punishment unless it shocks the conscience.
It is equally well-settled that the High Courts, in exercise of its powers under Articles 226 and 227 of the Constitution of India, can only consider, whether the inquiry held by the competent authority was in accordance with the procedure established by law, and the principles of natural justice, whether irrelevant or on extraneous consideration and/or exclusion of admissible or material evidence or admission of inadmissible evidence being influenced the decision rendering it vulnerable.
This Court may interfere if the finding is wholly arbitrary and capricious based on no evidence which no reasonable person could have ever arrived at.
The inquiring authority vide its report concluded that all the charges except one were held to be established reflecting upon the writ-applicant's devotion and diligence towards the work. The disciplinary authority later considered the relevant records of the case including the findings of the inquiring authority and the submissions made by the writ-applicant and Page 10 of 38 HC-NIC Page 10 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT thought fit to pass the order of dismissal from service.
I take notice of the fact that the inquiring authority has examined each and every charge levelled against the writ- applicant including the documents produced by the presenting officer and came to the conclusion that all the charges except one were fully proved. In a departmental inquiry, the disciplinary authority is expected to prove the charges on preponderance of probability and not on proof beyond the reasonable doubt.
The documents on record support all the allegations levelled against the writ-applicant.
In Narendra Kumar Pandey (supra), the Supreme Court, in paras 25 and 26, observed as under:
"25. The High Court, in our view, under Article 226 of the Constitution of India was not justified in interfering with the order of dismissal passed by the appointing authority after a full-fledged inquiry, especially when the Service Rules provide for an alternative remedy of appeal. It is a well acceptable principle of law that the High Court while exercising powers under Article 226 of the Constitution does not act as an appellate authority. Of course, its jurisdiction is circumscribed and confined to correct an error of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of the principles of natural justice. In State Bank of India and others v. Ramesh Dinkar Punde (2006) 7 SCC 212 : (2006 AIR SCW 5457), this Court held that the High Court cannot re-appreciate the evidence acting as a court of Appeal. We have, on facts, found that no procedural irregularity has been committed either by the Bank, presenting officer or the Inquiring Authority. Disciplinary proceedings were conducted strictly in accordance with the Service Rules.Page 11 of 38
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26. This court in State of Andhra Pradesh v. Sree Rama Rao, AIR 1963 SC 1723 held:
"7...Where there is some evidence, which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence especially when the charged officer had not participated in the inquiry and had not raised the grounds urged by him before the High Court by the Inquiring Authority.""
In a very recent pronouncement in the case of Union of India and others v. P.Gunasekaran, [2015(2) SCC 610], the Supreme Court in details has explained the position of law so far as the scope of interference in the matter relating to the disciplinary proceedings is concerned. I may quote the observations made by the Supreme Court from paras 12 to 20 as under:
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;Page 12 of 38
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(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(I) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
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(vii) go into the proportionality of punishment unless it shocks its conscience.
14. In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao1, many of the above principles have been discussed and it has been concluded thus:
"7. .....The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."Page 14 of 38
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15. In State of Andhra Pradesh and others v. Chitra Venkata Rao [(1975) 2 SCC 557], the principles have been further discussed at paragraphs-21 to 24, which read as follows:
"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao (AIR 1963 SC 1723). First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person Page 15 of 38 HC-NIC Page 15 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.
22. Again, this Court in Railway Board, representing the Union of India, New Delhi v. Niranjan Singh (AIR 1969 SC 966) said that the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. In Niranjan Singh case this Court held that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shut-down of an air compressor at about 8.15 a.m. on May 31, 1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the committee. This Court held that the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.
23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a Page 16 of 38 HC-NIC Page 16 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan (AIR 1964 SC 477).
24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."
16. These principles have been succinctly summed-up by the living legend and centenarian Justice V. R. Krishna Iyer in State of Haryana and another v. Rattan Singh [(1977) 2 SCC 491]. To quote the unparalled and inimitable expressions:
"4. ...... in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Page 17 of 38 HC-NIC Page 17 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. ....."
17. In all the subsequent decisions of this Court up to the latest in Chennai Water Supply and Sewarage Board v. T. T. Murali Babu (2014) 4 SCC 108 : (AIR 2014 SC 1141), these principles have been consistently followed adding practically nothing more or altering anything.
18. On Article I, the disciplinary authority, while imposing the punishment of compulsory retirement in the impugned order dated 28.02.2000, had arrived at the following findings:
"Article-I was held as proved by the Inquiry authority after evaluating the evidence adduced in the case. Under the circumstances of the case, the evidence relied on viz., letter dated 11.12.92 written by Shri P. Gunasekaran, provides a reasonable nexus to the charge framed against him and he did not controvert the contents of the said letter dated 11.12.92 during the time of inquiry. Nor did he produce any defence witness during the inquiry to support his claims including that on 23.11.92 he left the office on permission. There is nothing to indicate that he was handicapped in producing his defence witness. ...."Page 18 of 38
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19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re-appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.
20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
In Chairman and Managing Director, United Commercial Bank (supra), the Supreme Court in paras 14 and 15 held as under:
"14. A Bank Officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer, Good conduct and discipline are inseparable from the functioning of every Page 19 of 38 HC-NIC Page 19 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT officer/employee of the Bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik, 1996 (9) SCC 69, it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court.
15. It needs no emphasis that when a Court feels that the punishment is shockingly disproportionate, it must record reasons for coming to such a conclusion. Mere expression that the punishment is shockingly disproportionate would not meet the requirement of law. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All ER 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dedley) Ltd. v. Crabtres (1974 LCR 120), it was observed : "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance. But as noted above, the proceedings commenced in 1981. The employee was placed under suspension from 1983 to 1988 and has superannuated in 2002. Acquittal in the criminal case is not determinative of the commission of misconduct or otherwise, and it is open to Page 20 of 38 HC-NIC Page 20 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT the authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in criminal case. It per se would not entitle the employee to claim immunity from the proceedings. At the most the factum of acquittal may be a circumstance to be considered while awarding punishment. It would depend upon facts of each case and even that cannot have universal application."
In Bela Bagchi (supra), the Supreme Court observed the following in para 15:
"15. A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer / employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik (1996) (9) SCC 69), it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. That being so, the plea about absence of loss is also sans substance."
In Ganesh Santa Ram (supra), the Supreme Court observed in paras 32 and 33 as under:
"32. The learned senior counsel also relied on para 14 of the above judgment. Replying on the above passage, Mr. Salve submitted that the appellant, the Branch Manager of a Bank is required to exercise higher standards of Page 21 of 38 HC-NIC Page 21 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT honesty and integrity when he deals with the money of the depositors and the customers and, therefore, he is required to take all possible steps to protect the interest of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of the Bank Officer. According to Mr. Salve, good conduct and discipline are inseparable for the functioning of every officer, Manager or employee of the Bank, who deals with public money and there is no defence available to say that there was no loss or profit resulted in the case, when the Manager acted without authority and contrary to the rules and the scheme which is formulated to help the Educated Unemployed Youth. Mr. Salve's above submissions is well merited acceptance and we see much force in the said submission.
33. The Bank Manager/Officer and employees and any Bank nationalised/or non-nationalised are expected to act and discharge their functions in accordance with the rules and regulations of the Bank. Acting beyond one's authority is by itself a breach of discipline and Trust and a misconduct. In the instant case Charge No.5 framed against the appellant is very serious and grave in nature. We have already extracted the relevant rule which prohibits the Bank Manager to sanction a loan to his wife or his relative or to any partner. While sanctioning the loan the appellant does not appear to have kept this aspect in mind and acted illegally and sanctioned the loan. He realized the mistake later and tried to salvage the same by not encashing the draft issued in the maiden name of his wife though the draft was issued but not encashed. The decision to sanction a loan is not an honest decisions. The Rule 34(3)(1) is a rule of integrity and therefore as rightly pointed out by Mr. Salve, the respondent Bank cannot afford to have the appellant as Bank Manager. The punishment of removal awarded by the Appellate Authority is just and proper in the facts and circumstances of the case. Before concluding, we may usefully rely on the judgment Regional Manager, U.P. SRTC, Etawah and Ors. v. Hoti Lal and Anr. reported in 2003(3) SCC 605. Wherein this Court has held as under :-
"If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper Page 22 of 38 HC-NIC Page 22 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned single Judge upholding the order of dismissal.""
Applying the principles discernible from the afore-noted decisions of the Supreme Court to the case in hand, I hold that the disciplinary authority committed no error in arriving at the conclusion that the writ-applicant was guilty of the acts of misconduct as alleged.
The above takes me to deal with the principal and the only argument as such canvassed on behalf of the writ- applicant as regards the non-supply of the documents.
On behalf of the Bank, an affidavit-in-reply has been filed, inter alia, stating as under :
"17. With reference to paragraph 15 of the petition, I deny that the disciplinary authority has taken a decision to inflict the punishment of stoppage of 3/4 increments, as alleged. I further deny that the superior authority at Head Office has officially or otherwise dictated over the disciplinary authority to pass the order of termination against the petitioner, as alleged. I further deny that the disciplinary authority has passed the order of termination against the petitioner as alleged. I submit that the petitioner is making vague and baseless allegations against the independent authority and only because the charges are proved against the petitioner, the respondent Bank had terminated the services of the petitioner and now at this stage, the petitioner is making baseless submissions against the departmental authority. I however, submit that during the departmental enquiry Page 23 of 38 HC-NIC Page 23 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT proceedings he has never made any allegation against the authority.
I deny that the disciplinary authority on going through all the documents has reached to the conclusion to inflict the punishment of stoppage of 3/4 increments, as alleged. I further deny that the authority over the disciplinary authority had decided to terminate the services of the petitioner, as alleged. I submit that the petitioner is in habit of making repeated allegations which are baseless and vague in nature against the independent authority of the respondent Bank. I submit that the petitioner has no cause of action to approach this Hon'ble High Court by way of filing of present petition under Article 226 of the Constitution of India for appropriate prayers made by him, as alleged.
19. With reference to paragraph 17 of the petition, I submit that petitioner has been repeating various submissions and contentions which are already dealt with by me hereinabove. However, I deny that the the petitioner has reliably learnt that the disciplinary authority had suggested for stoppage of few increments whereas the higher authority at Head Office directed that the petitioner's services should be terminated, as alleged. I further submit that the documents and material which are relied upon and necessary for the purpose of enquiry have been supplied to the petitioner. I however deny that there is a case of official dictation on the part of the higher authorities over the disciplinary authority as alleged. I submit that in any case, the higher authority has not influenced the disciplinary authority to pressurize the disciplinary authority. I further deny that action of termination of the services on the part of the respondent authorities is illegal and deserves to be set aside, as alleged. I further submit that the petitioner is knowing each and every document which is necessary for the enquiry and therefore, there is no question of any other documents which have gone into the mind of the authority, as alleged. I further submit that each and every document is supplied which is necessary and relied upon by the respondent Bank, at the time of departmental enquiry and as per the orders passed by this Hon'ble Court in Special Civil Application No.4043 of 1991 also, each and every document which is relied upon and necessary to be supplied, has been supplied to Page 24 of 38 HC-NIC Page 24 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT the petitioner. I further submit that there is no question of violation of provisions of Articles 14 and 16 of the Constitution of India, as alleged."
In the additional affidavit-in-reply filed on behalf of the Bank, it has been stated as under :
"5. I say that after hearing the delinquent and the Bank at full length, the Inquiry Officer had given his Report of the Inquiry to the Disciplinary Authority. I say that on the basis of the Report of the Inquiry Authority, the then Disciplinary Authority who was my predecessor had given tentative findings. I say that before he arrived at tentative findings, he also issued a letter to the petitioner, forwarding to him a copy of the findings reported by the Inquiry Authority by a letter dated 23.3.1991.
6. I say that petitioner filed his reply to the findings reported by the Inquiry Authority by a reply dated 15.4.1991. I say that when I took charge of this Zone, a copy of findings of the Inquiry Report, copy of the reply to the findings of the Inquiry Authority by the petitioner and a copy of the tentative decision arrived at by the Disciplinary Authority were there on the file.
7. I say that in the meanwhile, the petitioner preferred a petition being Special Civil Application No.4043 of 1991 in the month of June, 1991 and the order was passed by this Hon'ble Court and the said order was served on the Bank.
8. I say that before 16.8.1991, I have gone through the findings arrived at by Inquiry Authority, reply to the findings of the Inquiry Authority given by petitioner dated 15.4.1991 and considering both and looking into inquiry proceedings, I decided to come to the same conclusion which was tentatively arrived at by my predecessor as per his observations. I say that thereafter, I had also gone through the observations made by my predecessor and I find that it is a perfece order and therefore, ultimately, after looking into and considering the entire enquiry proceedings, findings of the Inquiry Authority, reply given by the petitioner to the findings dated Page 25 of 38 HC-NIC Page 25 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT 15.4.1991 and observations made by my predecessor, I passed a final order on 16.8.1991."
It appears that much emphasis is sought to be laid by the learned counsel appearing for the writ-applicant on the original investigating report/preliminary inquiry report of one Shri R.R.Mankame, officer of the Vigilance Cell of the Bank.
I fail to understand what is the legal basis for the demand of the copy of such report. Even if, Shri Mankame was examined as one of the witnesses in the inquiry, it is difficult for me to accept the argument that in the absence of such report prepared by Shri Mankame, the writ-applicant was unable to effectively cross-examine him. It is settled law that a delinquent is not entitled to a preliminary inquiry report.
In the case of Krishna Chandra Tandon v. The Union of India, (1974)4 SCC 374, the Supreme Court held in para 16 as under :
"Mr.Hardy next contended that the appellant had really no reasonable opportunity to defend himself and in this connection he invited our attention to some of the points connected with the enquiry with which we have now to deal. It was first contended that inspection of relevant records and copies of documents were not granted to him. The High Court has dealt with the matter and found that there was no substance in the complaint. All that Mr. Hardy was able to point out to us was that the reports received by the Commission of Income- tax from his departmental subordinates before the charge-sheet was served on the appellant had not been made available to the appellant. It appears that on complaints being received about his work the Commission of Income-tax had asked the Inspecting Assistant Commissioner Shri R.N.Srivastava to make a report. He made a report. It is obvious that the appellant was not entitled to a copy of Page 26 of 38 HC-NIC Page 26 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT the report made by Mr.Srivastava or any other officer unless the enquiry officer relied on these reports. It is very necessary for an authority which orders an enquiry to be satisfied that there are prima facie grounds for holding a disciplinary enquiry and, therefore, before he makes up his mind he will either himself investigate or direct his subordinates to investigate in the matter and it is only after he receives the result of these investigations that he can decide as to whether disciplinary action is called for or not. Therefore, these documents of the nature of inter-departmental communications between officers preliminary to the holding of enquiry have really no importance unless the Enquiry Officer wants to rely on them for his conclusions. In that case it would only be right that copes of the same should be given to the delinquent. It is not the case here that either the Enquiry Officer or the Commissioner of Income-tax relied on the report of Shri R.N.Srivastava or any other officer for his finding against the appellant. Therefore, there is no substance in this submission."
In the case of Chandrama Tewari v. Union of India, (1987)4 JT 98 (SC), the Supreme Court held as under :
"However, it is not necessary that each and every document must be supplied to the delinquent government servant facing the charges, instead only material and relevant documents are necessary to be supplied to him. If a document even though mentioned in the memo of charges is not relevant to the charges or if it is not referred to or relied up by the enquiry officer or the punishing authority in holding the charges proved against the government servant, no exception can be taken to the validity of the proceedings or the order. If the document is not used against the party charged the ground of violation of principles of natural justice cannot successfully be raised. The violation of principles of natural justice arises only when a document, copy of which may not have been supplied to the party charged when demanded is used in recoding finding of guilt against him. On a careful consideration of the authorities cited on behalf of the appellant we find that the obligation to supply copies of a document is confined only to material and relevant documents and the enquiry Page 27 of 38 HC-NIC Page 27 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT would be vitiated only if the non- supply of material and relevant documents when demanded may have caused prejudice to the delinquent officer."
Thus, the non-supply of the document on which the Inquiry Officer does not rely during the course of the inquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the Inquiry Officer to arrive at his conclusion, the non-supply of which would cause prejudice being violative of the principles of natural justice. Even then, the non-supply of those documents prejudiced the case of the delinquent officer must be established by the delinquent. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of the principles of natural justice. (see Syndicate Bank v. Venkatesh Gururao Kurati, AIR 2006 SC 3542) In the case of Union Bank of India v. Vishwa Mohan, AIR 1998 SC 2311, the Supreme Court observed as under :
"9. We are totally in disagreement with the above quoted reasoning of the High Court. The distinction sought to be drawn by the High Court that the first charge sheet served on the respondent related to the period when he was a clerk whereas other three charge sheets related to the period when he was promoted as a bank officer. In the present case, we are required to see the findings of the Inquiry Authority, the order of the Disciplinary Authority as well as the order of the Appellate Authority since the High Court felt that the charges levelled against the respondent after he was promoted as an officer were not of serious nature. A bare look at these charges would unmistakably indicate that they relate to the misconduct Page 28 of 38 HC-NIC Page 28 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT of a serious nature. The High court also committed an error when it assumed that when the respondent was promoted as a bank officer, he must be having a good report otherwise he would not have been promoted. This finding is totally unsustainable because the various acts of misconduct came to the knowledge of the bank in the year 1989 and thereafter the first charge sheet was issued on 17th February, 1989. The respondent was promoted as a bank officer some time in the year 1988. At that time, no such adverse material relating to the misconduct of the respondent was noticed by the bank on which his promotion could have been withheld. We are again unable to accept the reasoning of the High Court that in the facts and circumstances of the case "it is difficult to apply the principle of severability as the charges are so inextricably mixed up." If one reads the four charge sheets, they all relate to the serious misconduct which include taking bribe, failure to protect interest of banks, failure to perform duties with utmost devotion, diligence, integrity and honesty, acting in a manner unbecoming of a bank officer etc. in our considered view, on the facts of this case, this principle has no application but assuming that it applies yet the High Court has erred in holding that the principle of severability cannot be applied in the present case. The finding in this behalf is unsustainable. As stated earlier, the appellant had in his possession the inquiry report/findings when he filed the statutory appeal as well as the writ petition in the High Court. The High Court was required to apply its judicial mind to all the circumstances and then form its opinion whether non- furnishing of the report would have made any difference to the result in the case and thereupon pass an appropriate order. In paragraph 13, this Court in Managing Director, ECIL, Hyderabad, (1994 AIR SCW 1050) (supra) has very rightly cautioned :
"The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts."
"In our considered view, the High Court has failed to apply its judicial mind to the facts and circumstances of the present case and erroneously Page 29 of 38 HC-NIC Page 29 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT concluded that non-supply of the inquiry report/findings has caused prejudice to the respondent."
"11. After hearing the rival contentions, we are of the firm view that all the four charge sheets which were inquired into relate to serious misconduct. The respondent was unable to demonstrate before us how prejudice was caused to him due to non-supply of the Inquiry Authority's report/findings in the present case. It needs to be emphasised that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this is not observed, the confidence of the public/ depositors would be impaired. It is for this reason, we are of the opinion that the High Court had committed an error while setting aside the order of dismissal of the respondent on the ground of prejudice on account of non-furnishing of the inquiry report/findings to him."
In the case of Burdwan Central Cooperative Bank Ltd. v. Asim Chatterjee, (2012)2 SCC 641, the Supreme Court considered the issue as regards the non-supply of the report of the Inquiry Officer and the absence of a second show-cause notice. The Supreme Court, in para 17, held as under :
"17. However, there is one aspect of the matter which cannot be ignored. In B. Karunakar's case, (AIR 1994 SC 1074 : 1994 AIR SCW 1050) (supra), despite holding that non-supply of a copy of the report of the Inquiry Officer to the employee facing a disciplinary proceeding, amounts to denial of natural justice, in the later part of the judgment it was observed that whether in fact, prejudice has been caused to the employee on account of non-furnishing of a copy of the inquiry report has to be considered in the facts of each case. It was observed that where the furnishing of the inquiry report would not make any difference to the ultimate outcome of the matter, it would be a perversion of justice to allow the concerned employee to resume his duties and to get all consequential benefits. It was also observed that in the Page 30 of 38 HC-NIC Page 30 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT event the Inquiry Officer's Report had not been furnished to the employee in the disciplinary proceedings, a copy of the same should be made available to him to enable him to explain as to what prejudice had been caused to him on account of non-supply of the report. It was held that the order of punishment should not be set aside mechanically on the ground that the copy of the inquiry report had not been supplied to the employee. This is, in fact, a case where the order of punishment had been passed against the Respondent No.1 on allegations of financial irregularity. Such an allegation would require serious consideration as to whether the services of an employee against whom such allegations have been raised should be retained in the service of the Bank. Since a Bank acts in a fiduciary capacity in regard to people's investments, the very legitimacy of the banking system depends on the complete integrity of its employees. As indicated hereinbefore, there is a live-link between the Respondent No.1's performance as an employee of the Samity, which was affiliated to the Bank, and if the Bank was of the view that his services could not be retained on account of his previous misdemeanour, it is then that the second part of B. Karunakar's case (supra) becomes attracted and it becomes necessary for the court to examine whether any prejudice has been caused to the employee or not before punishment is awarded to him. It is not as if the Bank with an ulterior motive or a hidden agenda dismissed the Respondent No.1 from service, in fact, he was selected and appointed in the Appellant-Bank on account of his merit and performance at the time of interview. It cannot be said that the Bank harboured any ill-feeling towards the Respondent No.1 which ultimately resulted in the order of dismissal passed on 8th May, 2010. We, therefore, repeat that since no prejudice has been caused to the Respondent No.1 by the non-supply of the Inquiry Officer's Report, the said Respondent had little scope to contend that the disciplinary proceedings had been vitiated on account of such non-supply."
In Sarv U.P.Gramin Bank v. Manoj Kumar Sinha, (2010)3 SCC 556, the Supreme Court held in para 27, 28 and 30 as under :
Page 31 of 38HC-NIC Page 31 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT "27. At the time when the plea was raised before the High Court that the impugned orders are vitiated on account of the non-supply of enquiry report, it would have been appropriate for the High Court to examine the averments made in the writ petition. A perusal of the writ petition would show that the petitioner has failed to lay any foundation to establish that any prejudice has been caused by the non-supply of the enquiry report. In the case of ECIL (AIR 1994 SC 1074 : 1994 AIR SCW 1050) (supra) a constitution Bench of this Court reiterated the ratio of law in Mohd. Ramzan Khan case (AIR 1991 SC
471) (supra) as follows :
"As held by this Court in Union of India v. Mohd. Ramzan Khan, when the inquiring authority and the disciplinary authority are not one and the same and the disciplinary authority appoints an inquiring authority to inquire into charges levelled against a delinquent officer who holds inquiry, finds him guilty and submits a report to that effect to the disciplinary authority, a copy of such report is required to be supplied by the disciplinary authority to the delinquent employee before an order of punishment is imposed on him. It was also held that non-supply of report of the inquiry officer to a delinquent employee would be violative of principles of natural justice. The Court observed that after the Constitution (Forty-second Amendment) Act, 1976, second opportunity contemplated by Article 311(2) of the Constitution had been abolished, but principles of natural justice and fair play required supply of adverse material to the delinquent who was likely to be affected by such material. Non-supply of report of the inquiry officer to the delinquent would constitute infringement of the doctrine of natural justice."
28. The ECIL (AIR 1994 SC 1074 : 1994 AIR SCW 1050, Paras 5 to 7) matter was placed before the Constitution Bench as the attention of the Court was invited to a three-Judge Bench decision of this Court in Kailash Chandra Asthana v. State of U.P., 1988 (3) SCC 600 : (AIR 1988 SC 1338) wherein it was held that non-supply of the report would not ipso facto vitiate the order of punishment in the absence of prejudice to the delinquent. Upon a detailed consideration of the entire Page 32 of 38 HC-NIC Page 32 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT cash law this court laid down certain principles which are as follows :
"18. In this view of the matter, the Court dismissed the writ petition. It would thus be clear that the contention before this Court in that case was that the copy of the report of the inquiring authority was necessary to show cause at the second stage, i.e., against the penalty proposed. That was also how the contention was understood by this Court. The contention was not and at least it was not understood to mean by this Court, that a copy of the report was necessary to prove the innocence of the employee before the disciplinary authority arrived at its conclusion with regard to the guilt or otherwise on the basis of the said report. Hence, we read nothing in this decision which has taken a view contrary to the view expressed in E. Bashyan case (AIR 1988 SC 1000) by a Bench of two learned Judges or to the view taken by three learned Judges in Union of India v. Mohd. Ramzan Khan (AIR 1991 SC 471).
19. In Mohd. Ramzan Khan case the question squarely fell for consideration before a Bench of three learned Judges of this Court, viz., that although on account of the Forty-second Amendment of the Constitution, it was no longer necessary to issue a notice to the delinquent employee to show cause against the punishment proposed and, therefore, to furnish a copy of the enquiry officer's report along with the notice to make representation against the penalty, whether it was still necessary to furnish a copy of the report to him to enable him to make representation against the findings recorded against him in the report before the disciplinary authority took its own decision with regard to the guilt or otherwise of the employee by taking into consideration the said report. The Court held that whenever the enquiry officer is other than the disciplinary authority and the report of the enquiry officer holds the employee guilty of all or any of the charges with proposal for any punishment or not, the delinquent employee is entitled to a copy of the report to enable him to make a representation to the disciplinary authority Page 33 of 38 HC-NIC Page 33 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT against it and the non-furnishing of the report amounts to a violation of the rules of natural justice. However, after taking this view, the Court directed that the law laid down there shall have prospective application and the punishment which is already imposed shall not be open to challenge on that ground. Unfortunately, the Court by mistake allowed all the appeals which were before it and thus set aside the disciplinary action in every case, by failing to notice that the actions in those cases were prior to the said decision. This anomaly was noticed at a later stage but before the final order could be reviewed and rectified, the present reference was already made, as stated above, by a Bench of three learned Judges. The anomaly has thus lent another dimension to the question to be resolved in the present case.
20. The origins of the law can also be traced to the principles of natural justice, as developed in the following cases: In A.K. Kraipak v. Union of India (AIR 1970 SC 150) it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-
judicial ones. An unjust decision in an administrative inquiry may have a more far- reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the Tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was Page 34 of 38 HC-NIC Page 34 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice.
21. In Chairman, Board of Mining Examination v. Ramjee (AIR 1977 SC 965) the Court has observed that natural justice is not an unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
23. What emerges from the above survey of the law on the subject is as follows.
24. Since the Government of India Act, 1935 till the Forty-second Amendment of the Constitution, the Government servant had always the right to receive the report of the enquiry officer/authority and to represent against the findings recorded in it when the enquiry officer/authority was not the disciplinary authority. This right was, however, exercisable by him at the second stage of the disciplinary proceedings viz., when he was served with a notice to show cause against the proposed penalty. The issuance of the notice to show cause against the penalty necessarily required the furnishing of a copy of the enquiry officer's report since, as held by the Courts, the right to show cause against the penalty also implied the right to Page 35 of 38 HC-NIC Page 35 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT represent against the findings on the charges. This was considered to be an essential part of the 'reasonable opportunity' incorporated earlier in Section 240(3) of the GOI Act and later in Article 311(2) of the Constitution as originally enacted. The right to receive the enquiry officer's report and to show cause against the findings in the report was independent of the right to show cause against the penalty proposed. The two rights came to be confused with each other because as the law stood prior to the Forty-second Amendment of the Constitution, the two rights arose simultaneously only at the stage when a notice to show cause against the proposed penalty was issued. If the disciplinary authority after considering the enquiry officer's report had dropped the proceedings or had decided to impose a penalty other than that of dismissal, removal or reduction in rank, there was no occasion for issuance of the notice to show cause against the proposed penalty. In that case, the employee had neither the right to receive the report and represent against the finding of guilt nor the right to show cause against the proposed penalty. The right to receive the report and to represent against the findings recorded in it was thus inextricably connected with the acceptance of the report by the disciplinary authority and the nature of the penalty proposed. Since the Forty- second Amendment of the Constitution dispensed with the issuance of the notice to show cause against the penalty proposed even if it was dismissal, removal or reduction in rank, some courts took the view that the Government servant was deprived of his right to represent against the findings of guilt as well. The error occurred on account of the failure to distinguish the two rights which were independent of each other."
30. Thereafter, this Court notices the development of the principle that prejudice must be proved and not presumed even in cases where procedural requirements have not been complied with. The Court notices a number of judgments in which the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant. Ultimately, it is concluded as follows :
Page 36 of 38HC-NIC Page 36 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT "44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show "prejudice". Unless he is able to show that non-
supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.""
In view of the above, there is no room for the writ- applicant to contend that the order of dismissal deserves to be quashed on the ground that the investigation report of the Vigilance Officer was not supplied to the writ-applicant. It is also very difficult for me to accept the contention that since the preliminary inquiry report was a part of the record, the disciplinary authority might have got influenced by the contents of such report and, therefore, the copy of the report should have been supplied to the writ-applicant.
The reliance placed by Mr.Tanna in the aforesaid context on the judgment of this Court in the case of D.S.Jariwala, in my view, is of no avail to the writ-applicant including the judgment of the Division Bench of this Court rendered in the Letters Patent Appeal No.1022 of 2014.
In the overall view of the matter, I hold that no case is made out to disturb the impugned order of dismissal passed by the Bank.Page 37 of 38
HC-NIC Page 37 of 38 Created On Tue Nov 08 00:41:24 IST 2016 C/SCA/6022/1991 CAV JUDGMENT This writ-application, therefore, fails and is hereby rejected. Rule discharged.
(J.B.PARDIWALA, J.) MOIN Page 38 of 38 HC-NIC Page 38 of 38 Created On Tue Nov 08 00:41:24 IST 2016