Calcutta High Court (Appellete Side)
Bidyut Kumar Mitra Alias B. K. Mitra vs The State Bank Of India & Ors on 6 February, 2009
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debi Prasad Sengupta
And
The Hon'ble Justice Debasish Kar Gupta
M.A.T. No. 3613 of 2001
Bidyut Kumar Mitra alias B. K. Mitra
Vs.
The State Bank of India & Ors.
For Appellant : Mr.L. K. Gupta,
Mr. P. R. Chakraborty.
For Respondent Nos.
1, 2 & 3. : Mr. A. K. Routh,.
Mr. S. Pal Chowdhury.
Judgment On : 06-02-2009.
Debasish Kar Gupta, J. :
This appeal is directed against the Judgment and order dated April 18, 2001 passed in civil Order No.7390(W) of 1988. By virtue of the above judgment and order, the writ application under reference was dismissed.
The subject matters of challenge in the writ application under reference were the charge- sheet dated December 14, 1981, enquiry proceeding in relation thereto, the report of the enquiry officer dated September 22, 1982, the recommendation dated June 16, 1983 of the Chief Central Manager of the respondent Bank(Disciplinary authority), order of punishment dated July 4, 1983 passed by the Managing Director of the respondent Bank(appointing authority), order dated June 6, 1984 of Chairman of the respondent Bank (statutory appellate authority) as also the order dated November 12, 1987 passed by the review committee as communicated by the General Manager(operation) of the respondent Bank under his memo dated December 16, 1987.
The facts of the case in brief as placed before the learned Single Judge were as follows:-
(i) While the appellant was working for gain under the respondent Bank as special officer, Biplabi Rash Bihari Bose Road Branch Calcutta, he was served with a charge-Sheet related to granting of "Medium Term Loans" to large number of Transport operators by the appellant in his capacity of Branch Manager of Biplabi Rash Behari Bose Raod Branch, Calcutta during the period from February 29, 1978 to August 21, 1979.
(ii) The respondent Bank proceeded further in the matter appointing one Shri A. R. Banerjee, commissioner for departmental enquiries, Central Vigilance Commission, New Delhi, as enquiry officer for conducting enquiry proceeding in the matter. On March 11, 1982 in course of the above enquiry proceeding, the enquiry officer allowed the presenting officer to submit five more documents and to add name of one more witness to his list of witnesses. The presenting officer was directed to show above documents to the appellant by March 20, 1982. The appellant was also instructed by the enquiry officer to submit his list of additional defence documents, if any, and to furnish a list of additional witnesses, if any, by March 31, 1982.
On March 31, 1982, a prayer was made before the enquiry officer on behalf of the appellant to allow him to refer to a few documents/papers as also to submit a list of defence witnesses within a couple of days.
On April 3, 1982, the appellant submitted a list of witnesses and documents with particulars to the enquiry officer.
The enquiry officer submitted his report dated September 22, 1982 in the mater to the respondent no.4. It is pertinent to note here that in course of enquiry proceeding under reference the enquiry officer did not deal with the representations of the appellant dated March 31, 1982 and April 3, 1982 respectively. Nor the above aspect of the mater was dealt with by the enquiry officer in his enquiry report dated July 22, 1982.
(iii) As the appellant was a staff officer Grade-II and his appointing authority was the Managing Director of the respondent Bank, on June 11, 1983, the above enquiry report dated September 22, 1982 was submitted before the respondent No.2, namely the Managing Director of the respondent Bank, together with others records of the case including a self-contained "Noto" dated June 16, 1983 in accordance with the provisions of Rule 3(f)(ii) of the Service Rules.
(iv) The respondent No.2, by an order dated July 4, 1983, dismissed the appellant from the services of the respondent Bank in accordance with the provisions of Rule 49(h) of the State Bank of India(Supervising staff) Service Rules read with Rule 50(3) (iii) of the above Rules.
(v) The appellant preferred a statutory appeal dated August 31, 1983, before the respondent No.3, namely the Chairman of the respondent Bank, against the aforesaid order of punishment dated July 4, 1983 in accordance with the provisions of Rules 51(1) and 51(2) of the State Bank of India(Supervising staff) Services Rules.
The order dated June 4, 1984 passed by the respondent No.3 rejecting the above appeal of the appellant was served upon the appellant by the Chief Vigilance Officer of the respondent Bank under his communication dated June 7, 1984.
(vi) The appellant filed an application for review in accordance with the provisions of rule 51(3) of the State Bank of India (Supervising staff) Service Rules, before the Reviewing Committee of the respondent Bank.
A resolution adopted in the meeting of the review Committee in November 12, 1987 rejecting the review application of the appellant was served upon him by the respondent no.5 under his memo dated December 16, 1987 who had received the above order from the Chief Vigilance Officer of the respondent Bank under memo dated November 30, 1987.
(vii) The appellant filed the writ application which gave raise to the instant appeal.
The above writ application was dismissed by the impugned judgment and order dated April 18, 2001.
It is submitted on behalf of the appellant that in accordance with the provisions of Clause(b) of sub-rule(x) of Rule 49 of the State Bank of India (supervising staff) service rules (hereinafter referred to as the said rules), the enquiry authority should record an order that the delinquent employee might for the purpose of preparing his defence, inter alia, submit a list of documents and witnesses that he wanted for enquiry. It is further submitted on behalf of the appellant that in accordance with the provisions of sub-rule(xi) of Rule 49 of the said Rules the enquiry authority should, on receipt of the notice for the discovery or production of documents forward the same or copies thereof to the authority, in whose custody or possession the documents were kept, with a requisition of the documents on such date as might be specified. But in the instant case the enquiry proceeding under reference was conducted in deviation from the above procedure by non-considering the list of documents as mentioned in the communication dated April 3, 1982 which were in the custody or possession of respondent bank as also without passing the order for producing Shri A. B. Chakraborty Development Manager, State Bank of India, (Calcutta L.H.O. at the material point of time) as witness. It is further submitted on behalf of the appellant that due to above reason the enquiry proceeding under reference suffered from procedural impropriety resulting in violation of the principles of natural justice.
It is also submitted on behalf of the appellant that though the above ground was taken before the statutory appellate authority in the appeal preferred by the appellant, the appellate authority was misdirected in deciding the above issue.
According to the appellant the resolution adopted by the review committee for rejecting the review application of the appellant could not be sustained in law for the same reason.
It is, therefore, submitted on behalf of the appellant that the reasons assigned by the Learned Single Judge in rejecting the above ground cannot be sustained in law. It is submitted on behalf of the appellant that inspite of taking note the fact of filing of an application dated April 3, 1982 by the appellant and inaction on part of the enquiry authority in taking proper steps thereto, the Learned Single Judge was in error of law in deciding that the enquiry authority did not violate the principles of natural justice in conducting the proceeding against the petitioner.
The next ground for challenging the impugned judgment and order passed by the Learned Single Judge is to hold that the decision of the disciplinary authority in dismissing the appellant from the services of the bank was not bad in law even after taking into account the fact of non-supply of the recommendation of the Vigilance Commission to the appellant. Drawing our attention towards clause (2a) of the Vigilance Manual Volume II Part II, it is submitted on behalf of the appellant that in this case, the Central Vigilance Commission was entrusted with the task of conducting enquiry proceeding against the appellant by appointing the Commissioner for departmental enquiry, Central Vigilance Commission. The respondent bank consulted the Vigilance Commission in accordance with the provisions of Rule 52 of the said Rule. Therefore, the proceeding under reference suffered from procedural impropriety due to non-supply of recommendations of the Central Vigilance Commission to the appellant.
Reliance is placed on behalf of the appellant on the decision of State Bank of India & Ors., Vs D. C. Aggarwal & Anr., reported in (1993) 1 SCC 13, to submit that the Learned Single Judge did not decide the case taking into consideration the settled principles of law that the procedural error made the orders of punishment liable to be set aside. Relying upon the decision of State of Bank of Patiala Vs. S. K. Sharma reported in (1996) 3 SCC 364, it is submitted on behalf of the appellant that the Learned Single Judge was in error of law in not holding that the procedural provisions governing disciplinary enquiries under the said Rules were nothing but elaboration of principles of natural justice and their several facets and in case of violation any of such procedural provision could make the order of punishment liable for setting aside. Relying upon the decision of Narional Insurance Co. Ltd. New Delhi Vs. Jugal Kishor reported in (1988) 1 SCC 626, it is submitted on behalf of the appellant that the Learned Single Judge deviated from the settled principles of law that the party in possession of a helpful document in doing justice must produce the same before the court. Relying upon the decision of Hemendu Bikash Nag Vs. Union Of India 1973 CLJ 236, it is submitted on behalf of the appellant that the Learned Single Judge was in error of law in not arriving at a conclusion that withholding of disclosure of the list of documents and production of witness, as prayed for, vitiated the disciplinary proceeding under reference. Reliance is also placed on the decisions of Anandram Jiandrai Vaswani Vs. Union of India reported in 1983(1) CLJ, and the decision in the matter of H. K. Bose Vs. Union of India, reported in 89. C.W.N. 1167, to submit that the impugned judgment and order were liable to be set aside by the Learned Single Judge.
On the other hand, it is submitted on behalf of the respondent bank that the disciplinary authority proceeded in the matter under reference independently. Drawing our attention towards the provisions of Rule 52 of the said Rules, it is submitted on behalf of the respondent bank that consultation with the Central Vigilance Commission, whenever necessary, in respect of all disciplinary cases having vigilance angle was permissible. But due to independent action on the part of the respondent authority without the aid and advice of the Central Vigilance Commission it was not incumbent upon the enquiry officer to supply the report of the Central Vigilance Commission to the appellant. Drawing the attention to the order of punishment under reference, it is submitted that the respondent bank only considered the self- contained "noto" dated June 16, 1983 of the Chief Central Manager (disciplinary authority) in imposing the punishment. Drawing our attention to the order passed by the appellate authority it is submitted that the appellate authority took into consideration the ground of non-supply of the documents to the appellant, as prayed for. It is also submitted that neither the appellate authority nor the review committee took into consideration the report of the Central Vigilance Commission. Therefore, the Learned Single Judge was not in error in rejecting the grounds set forth in the writ application under reference.
Reliance is placed on behalf of the respondent bank on the decision of a Division Bench of Punjab & Haryana High Court in the matter of State Bank of India Vs. H. K. Dogra reported in 1995(5) SLR 358, to submit that non-furnishing of the copy of the letter of Vigilance Department to the delinquent officer does not amount to violation of any rules of natural justice especially when disciplinary authority never takes into consideration such letter for imposing punishment. Reliance is also placed on the decision of Nagaraj Shivarao Karjagi Vs. Syndicate Bank, Head Officer, Manipal & Ors. reported in (1991) 3 SCC 219, in support of above submissions. Relying upon the decision of State Bank of Patiyala (supra), Chandrama Tewari Vs. Union of India reported in 1987(supp) SCC 518 and Pandit D. Aher Vs. State of Maharashtra reported in (2007) 1 SCC 445, it is submitted that a copy of the document which had not been relied upon, were not to be supplied to the delinquent officer and the documents required to be supplied were only those whereupon reliance had been placed by the department.
Having heard the Learned Counsels appearing for the respective parties and after considering the facts and circumstances of this case, we find that the learned Single Judge, while delivering the impugned, judgment came to a conclusion that due to non-supply of the documents to the appellant, as prayed for, the principles of natural justice was not violated. The reasons which were shown by the Learned Single Judge were that the appellant did not ask for production in those documents after April 3, 1982. But from the materials available on record, we find that apart from the application dated April 3, 1982, the appellant also raised the question of non-supply of the documents as mentioned in his application dated April 3, 1982 before the appellate authority. The appellate authority also dealt with that aspect of the matter and took a decision that failure on the part of the appellant to submit the application within the time stipulated by the enquiry officer, i.e. March 31, 1982, there was no procedural impropriety. It is not in dispute that the review committee in its resolution dated November 12, 1987 observed that the appellant failed to submit the list of documents and witnesses within the stipulated time. It was also observed by the review committee that the lists were received by the presenting officer on May 28, 1982 i.e. far beyond the stipulated time. The committee further observed that the appellant failed and or neglected to press his application before the enquiry officer in course of enquiry.
In order to adjudicate the point of law involved in this issue, the provisions of Clauses
(x) and (xi) to explanation to Rule 49 of the said Rule are quoted below:-
"(x) (a) The Inquiring authority shall where the employee does not admit all or any of the articles of charge furnish to such employee a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be proved.
(b) The Inquiring Authority shall also record an order that the employee may for the purpose of preparing his defence:
I- inspect and take notes of the documents listed within five days of the order or within such further time not exceeding five days as the Inquiring Authority may allow;
II - submit a list of documents and witnesses that he wants for inquiry ; III- be supplied with copies of statements of witnesses, if any, recorded earlier and the Inquiring Authority shall furnish such copies not later than three days before the commencement of the examination of the witnesses by the Inquiring Authority;
IV- give a 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 at (II) above. Note: The relevancy of the documents and the examination of the witnesses referred to at (II) above shall be given by the employee concerned.
(xi) The Inquiry 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.".
Therefore, the procedure laid down in the said Rules prescribed in no uncertain terms that the enquiry authority should, on receipt of notice of discovery of production of the documents forwarded the same or copies thereof to the authority in whose custody or possession of the documents were kept with a requisition for production of the documents. It is evident from the materials on record that the appellant submitted an application within the stipulated period of time, i.e. March 31, 1982 for extension of a couple of days time to submit the lists of documents and witnesses. It is not in dispute that the appellant submitted the application together with lists of documents and witnesses before the enquiry authority on April 3, 1982. It is further evident from the resolution of the review committee dated November 12, 1987 that (Para 3 at page 244 of the paper book), the fact reaching those lists to the presenting officer on May 28, 1982 was taken note of. But failure to comply with the procedure prescribed in Rule 49 of the said Rule for production of those documents on a date to be specified by the enquiry authority was not adhered to. Such procedural impropriety was not dealt with either by the appellate authority or by the review committee. The learned Single Judge lost site of such procedural impropriety. At this juncture we find that the lists under reference were received by the presenting officer on May 28, 1982. Therefore, on the basis of the aforesaid facts, it may safely be presumed by us that those lists were sent to the presenting officer after relevancy of those documents was examined by the enquiry officer in terms of the provisions of Rule 49 and those lists were received by the presenting officer during the pendency of the enquiry proceeding under reference. The learned Single Judge did not take care of the above procedural impropriety in conducting the enquiry proceeding against the appellant.
The settled principles of law as decided in the matter of Dr. Rash Lal Yadav Vs. State of Bihar & Ors., reported in (1994) 5 SCC 267 are required to be taken into consideration for adjudication of question of violating the principles of natural justice. The relevant portions of the above decision are quoted below:-
"6. The concept of natural justice is not a static one but is an ever expanding concept. In the initial stages it was thought that it had only two elements, namely, (i) no one shall be a judge in his own cause and (ii) no one shall be condemned unheard. With the passage of time a third element was introduced, namely, of procedural reasonableness because the main objective of the requirement of rule of natural justice is to promote justice and prevent its miscarriage. Therefore, when the legislature confers power in the State Government to be exercised in certain circumstances or eventualities, it would be right to presume that the legislature intends that the said power be exercised in the manner envisaged by the statute. If the statute confers drastic powers it goes without saying that such powers must be exercised in a proper and fair manner. Drastic substantive laws can be suffered only if they are fairly and reasonably applied. In order to ensure fair and reasonable application of such laws courts have, over a period of time, devised rules of fair procedure to avoid arbitrary exercise of such powers. True it is, the rules of natural justice operate as checks on the freedom of administrative action and often prove time-consuming but that is the price one has to pay to ensure fairness in administrative action. And this fairness can be ensured by adherence to the expanded notion of rule of natural justice. Therefore, where a stature confers wide powers on an administrative authority coupled with wide discretion, the possibility of its arbitrary use can be controlled or checked by insisting on their being exercised in a manner which can be said to be procedurally fair. Rules of natural justice are, therefore, devised for ensuring fairness and promoting satisfactory decision-making. Where the statute is silent and a contrary intention cannot be implied the requirement of the applicability of the rule of natural justice is read into it to ensure fairness and to protect the action from the charge of arbitrariness. Natural justice has thus secured a foothold to supplement enacted law by operating as an implied mandatory requirement thereby protecting it from the vice of arbitrariness. Courts presume this requirement in all its width as implied unless the enactment supplies indications to be contrary as in the resent case. This Court in A.K. Kraipak Vs. Union of India after referring to the observations in State of Orissa V. Dr. (Miss) Binapani Dei observed as under (SCC p.272, para 20) 'The aim of the rules of natural Justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it.' These observations make it clear that if the statute, expressly or by necessary implication omits the application of the rule of natural justice, the statute will not be invalidated for this omission on the ground of arbitrariness."
(Emphasis supplied) Therefore, the decision of the Learned Single Judge on this issue cannot be sustained in law.
With regard to the second ground for challenging the impugned judgment, we find that the facts of (i) appointment of the commissioner for departmental enquiries, Central Vigilance Commission of the respondent bank (at page 123 of the paper book), (ii) sending of his enquiry report to the disciplinary authority( at pages 146 to 159 of the paper book), (iii) sending of the order of punishment dated July 4, 1983 to the vigilance department of the respondent bank (at page 171 to the paper book), (iv) sending of the order dated June 6, 1984 of the appellant authority to the above commission (at page 189 to the paper book), (v) sending of resolution dated November 12, 1987 of the review committee to the above commission are admitted facts. It is also not in dispute that the Learned Single Judge, while dismissing the writ application under reference by the impugned order dated April 18, 2001, took into consideration the above facts (at pages 336, 337and 338 to the paper book). But the Learned Single Judge decided that the disciplinary proceeding under reference was not vitiated due to non-supply of the report of the Vigilance Commission to the appellant.
We find that the settled principles of law as decided in the matter of State Bank of India Vs. D. C. Aggarwal(Supra) runs counter to the decision of the Learned Single Judge. In this regard the relevant portions of the above decision are quoted below:-
"(5) Orders made by the Disciplinary Authority or the Appointing Authority as the case may be under sub-rules (3) and (4) shall be communicated to the employee concerned, who shall also be supplied with a copy of the report of inquiry, if any."
It was urged that copy of the inquiry report having been supplied to the respondent the rule was complied with and the High Court committed an error in coming to conclusion that principle of natural justice was violated. Learned Additional Solicitor General urged that the principle of natural justice having been incorporated and the same having been observed the Court was not justified in misinterpreting the rule. The learned counsel urged that the Bank was very fair to the respondent and the disciplinary authority after application of mind and careful analysis of the material on record on its own evaluation, uninfluenced by the CVC recommendation passed the order. It was emphasised that if the exercise would have been mechanical the disciplinary authority would not have disagreed with CVC recommendations on punishment. Learned counsel submitted that, in any case, the disciplinary authority having passed detailed order discussing every material on record and the respondent having filed appeal there was no prejudice caused to him. None of these submissions are of any help. The order is vitiated not because of mechanical exercise of powers or for non-supply of the inquiry report but for relying and acting on material which was not only irrelevant but could not have been looked into. Purpose of supplying document is to contest its veracity or give explanation. Effect of non- supply of the report of Inquiry Officer before imposition of punishment need not be gone into nor it is necessary to consider validity of sub-rule (5). But non-supply of CVC recommendation which was prepared behind the back of respondent without his participation, and one does not know on what material which was not only sent to the disciplinary authority but was examined and relied on, was certainly violative of procedural safeguard and contrary to fair and just inquiry. From the letter produced by the respondent, the authenticity of which has been verified by the learned Additional Solicitor General, it appears the Bank turned down the request of the respondent for a copy of CVC recommendation as "The correspondence with the Central Vigilance Commission is a privileged communication and cannot be forwarded as the order passed by the appointing authority deals with the recommendation of the CVC which is considered sufficient". Taking action against an employee on confidential document which is the foundation of order exhibits complete misapprehension about the procedure that is required to be followed by the disciplinary authority. May be that the disciplinary authority has recorded its own findings and it may be coincidental that reasoning and basis of returning the finding of guilt are same as in the CVC report but it being a material obtained behind back of the respondent without his knowledge or supplying of any copy to him the High Court in our opinion did not commit any error in quashing the order. Non-supply of the Vigilance report was one of the grounds taken in appeal. But that was so because the respondent prior to service of the order passed by the disciplinary authority did not have any occasion to know that CVC had submitted some report against him. The submission of the learned Additional Solicitor General that CVC recommendations are confidential, copy of which, could not be supplied cannot be accepted. Recommendations of Vigilance prior to initiation of proceedings are different than CVC recommendation which was the basis of the order passed by the disciplinary authority.
(Emphasis supplied) Therefore, the impugned judgment is liable to be set aside on that ground also. We do not find much force on the submissions made on behalf of the respondent bank that the decision of State Bank of Indis Vs. H. K. Dogra(Supra) helps the respondent bank. Because in the above decision the court found substantial compliance of the principles of natural justice after being satisfied that there had been application of mind on the part of the disciplinary authority. We fail to understand as to how the decision of Nagaraj Shivarao Karjagi(supra) helps the respondent bank in any way because in that case the Hon'ble Supreme Court decided that he disciplinary authority cannot act under the dictation of the Central Vigilance Commission or the Central Government. The above facts and circumstances are not applicable in the instant case in view of the distinguished features of this case. We do not find that the decision of Chandrama Tewari (Supra) has any manner of application in this case. The fact of non-supply of documents mentioned in the charge-sheet was under consideration in that case and the above matter was decided on the basis of the facts and circumstances involved in that case. In the instant case the question of violation of the principles of natural justice due to non-supply of defence documents and non-production of defence witness is under consideration on the basis of different facts and circumstances together. With regard to the decision of State Bank of Patiala Vs. S. K. Sharma(supra), we find that the above decision is also relied upon by the appellant. In that case the Hon'ble Supreme Court laid down certain basic principles of natural justice for applying on the basis of the facts and circumstances of different cases. Since we have already decided that non-supply of the documents under reference caused prejudice to the appellant, applying the basic principles of natural justice as laid down in the above decision the order under challenge in this case is liable to be set aside. With regard to the decision of Pandit D. Aher(supra), the above matter was decided by the Hon'ble Supreme Court on the basis of the facts and circumstances involved in that case. In the instant case the functions of the disciplinary authority have been examined taking into consideration different provisions of the State Bank of India (supervising staff) Service Rules as also the provisions of Vigilance Manual for their application in the instant case.
In view of the discussions and observation made hereinabove, the judgment dated April 18, 2001 passed in C.O. 7390(w) 1988 is quashed and set aside.
The above writ application being C.O. 7390(w) of 1988 is, therefore, allowed. Consequent thereupon the enquiry proceeding held on the basis of the charge-sheet dated December 14, 1981, enquiry report dated September 22, 1982, the order of punishment dated July 4, 1983, the order dated June 6, 1984 passed by the appellate authority as also the resolution dated November 12, 1987 adopted in the meeting of the review committee of the respondent bank are also quashed and set aside.
This appeal is, thus, disposed of.
There will be, however, no order as to costs.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree.
( Debi Prasad Sengupta, J.) (Debasish Kar Gupta, J.)