Punjab-Haryana High Court
The State Bank Of India And Anr. vs H.K. Dogra And Anr. on 24 April, 1995
Equivalent citations: (1995)110PLR698
Author: Swatantar Kumar
Bench: S.P. Kurdukar, Swatantar Kumar
JUDGMENT Swatantar Kumar, J.
1. The thrust of the submission of the learned counsel for the appellants before us is that the findings of the learned Single Judge on the following two main submissions of the petitioner in the writ petition are not in consonance with the facts pleaded by parties on record, and also not in accordance with the settled principles of law:-
i) Whether the Vigilance Department of the appellant bank had recorded any opinion and whether it was taken into consideration by the disciplinary/punishing authority while passing the impugned order of dismissal from service. Its effect ?
ii) Whether the order passed by the punishing authority, in the facts and circumstances of this case, can be termed as a 'non-speaking order"?.
Deciding both these questions in favour of the respondent before us, the writ petitioner, hereinafter called respondent, the learned Single Judge had allowed the writ petition vide judgment and order dated 9th January, 1989.
2. The learned counsel for the respondent Mr. P.S. Patwalia has strongly opposed the contentions of the counsel for the appellants on the plea that there is violation of principles of natural justice and also that the order is non-speaking order.
3. Before we direct ourselves for discussion on these two submissions of the counsel for the appellants, we consider it appropriate to spell out the necessary facts which are recapitulated hereinafter.
4. The respondent herein joined the service of the State Bank of India, established under the State Bank of India Act, 1955. While the respondent was posted as Officer Grade II in Patiala Branch of the State Bank of India, he was served with a charge sheet dated 12/22.5.1976. The charges related to unauthorised debit to constituents' accounts either personally or by issuing instructions to juniors. The charges also related to fraudulent transfer by the respondent from Saving Bank Accounts of one party to another. The charges also related to opening of two accounts while the depositors were not present in the Bank and the formalities were completed by completing the account opening forms himself, and, also depositing the initial amounts under his signatures. The accounts were opened in an irregular manner with a view to facilitate fraudulent transactions with an ulterior motive and utilising constituents' funds either for his own benefit or for the benefit of his relations. The Bank on the basis of some specific instances had framed 8 charges against the respondent while there were 8 sub-charges under the first charge, that is charge No. (1). The charges were framed by the Bank on the basis of the fact finding report submitted by Mr. S.R.N. Gosain dated 19th January, 1976. To this charge-sheet, the respondent had filed a detailed reply on 28.7.1977, and, after conducting an inquiry in accordance with instructions/rules and principles of natural justice, the Inquiry Officer, Mr. G.S Aggarwal, submitted his report dated 28th August, 1979. The In- quiry Officer absolved the respondent of Charges (i)(a), (b), II, V, VI and VIII, and found the respondent guilty of Charges (i) (c), (i)(d), (i)(e), (i)(f), (i)(g), (i)(h), VII and held that Charges (i) (i) was not specific and did not give any finding on the same.
5. On the basis of this report, the Chief General Manager scrutinised the entire evidence and relevant material placed before the inquiry officer, which was subject matter of the inquiry proceedings, came to the conclusion that all the charges except Charges Nos. (i)(i), VI and VIII stood proved against the officer, and consequently recommended deterrent punishment of dismissal from the Bank's service. A copy of this report along with the copy of the inquiry officer's report was served by the Bank upon the respondent/delinquent officer along with a show cause notice dated 2nd May, 1980. The notice to show cause which is annexed to the petition as Annexure P/4 after referring to the reports and considering the entire record, had called upon the delinquent officer to show cause as to why the proposed penalty should not be imposed upon the respondent. At this stage, it will be appropriate to reproduce the relevant clauses of this show cause notice, which read as under: -
"1. You, while posted at Patiala Branch from the 24th January to 10th December 1974 committed serious acts of malpractices of fraudulent nature. The lapses/acts of malpractices on your part were conveyed to you vide New Delhi IHO letter No. 20/POF/636 dated the 12th May 1976. The reply to the statement of charges submitted by you vide your letter dated the 27th August, 1977 was not satisfactory and hence it was not acceptable to the Bank. The charges against you being of serious nature and in the interest of natural justice, you were provided with another opportunity by way of departmental enquiry to submit your defence. You have been held guilty of all the charges except No. 1910, VI, VIII levelled against you.
2. In accordance with the provisions of the erstwhile Rule 50(3) of the State Bank of India (Supervising Staff) Service Rules, the matter was placed before the Local Board at its meeting held on 29th April, 1980 when after having fully considered the facts of the case, the Board resolved that it was a fit case for dismissing you from the Bank's service in terms of old Rule 49(f) of the State Bank of India (Supervising Staff) Service Rules. The Board further resolved that you be not paid back wages for the suspension period except what you have already received by way of subsistence allowance. You will also not be eligible for payment of increments and other benefits of pension etc. for the suspension period as the period of suspension has not been treated as duty. Accordingly, in terms of erstwhile Rule 50(4) ibid, you are hereby given a further opportunity to state in writing and/or ask for personal hearing if you desire, by the 25th May, 1980 as to why the aforesaid penalty should not be imposed upon you.
3. In this connection, as required in erstwhile Rule 50(4) of the State Bank of India (supervising Staff) Service Rules, while the letter No. 20/PCE/636 dated the 12the May, 1976 containing the statements of Charges against you is already with you, the copies of report dated the 14th September, 1974 and 19th January, 1976 submitted by Sarv Shri P.K. Bahl and S.R.N. Gosain, now Staff Officers Grade-I, the Investigating Officers appointed to investigate, the cases against you, a copy each of the findings of the Inquiring Authority, report of the Chief General Manager and Memorandum placed before the Local Board at its meeting held on the 29th April, 1980 are enclosed. A copy of the proceedings of the departmental enquiry is also with you.
4. Your reply to the above should reach us within the stipulated period failing which it will be assumed that you have no reply to submit and we shall proceed accordingly, "To this show cause notice, the respondent submitted his reply on 27th June, 1980.
6. In ground (e) of paragraph 9 of the writ petition, the respondent had raised a specific plea that the Vigilance Officer at Bombay had recommended withholding of three increments of the petitioner, and the Vigilance Officer's report was used against the petitioner. A copy thereof was not provided to him at the relevant stage. This averment of the petitioner in the writ petition had been specifically denied by the appellant Bank and the reply to the said paragraph reads as under:-
" (e) Sub Para (e) of the petition is denied. It is wholly incorrect to suggest that the deponent recorded his decision for imposing the penalty of withholding three increments. In facts, keeping in view the gravity of the charges, the question of imposing a minor penalty could not arise. It is wholly incorrect to suggest that the deponent has proposed to the Chief Vigilance Officer that a penalty of with-holding of three increments be imposed. The Chief Vigilance Officer never submitted any report. According to the procedure followed by the Bank, every case of disciplinary proceedings involving fraud etc. is put to the Vigilance Department for advice for the purpose of equity and uniformity which is the part of internal system. The show-cause notice was issued to the petitioner thereafter and he was given full opportunity."
The denial was specific and the stand of the Bank was clear. This stand of the Bank has been reiterated more specifically in the memorandum of appeal. The stand of the Bank is that in routine, the cases are sent to the Vigilance Department for maintaining the uniformity in departmental actions. However, in the present case, there was no report of the Vigilance Officer except to the extent that the Bank had written a letter on 1st August 1990, that is, prior to the date when the show-cause notice was issued, and the disciplinary authority/the Board had decided to issue the show cause notice to the respondent for imposition of penalty of dismissal from service and the reply thereof was also submitted by the respondent. The letter was written on 1.8.1990 and the reply was given by the Vigilance Department on 11th August, 1990. It is also appropriate to refer to the reply received from the Vigilance Department of the Bank, which has been reproduced before us in the memorandum of appeal, and it reads as under:-
"DearSir, Staff: Supervising Shri H.R. Dogra, Officer Grade II (Under Suspension).
With reference to your letter No. C/DAC/2477 dated the 1st August, 1980 we approve of your proposal to dismiss Shri Dogra.
2. Please note to send us a copy of the final order you passed against the official.
Yours faithfully, Sd/-
Chief Vigilance Officer."
The meeting of the Board was held on 1st September 1980 and the decision was (sic) resolved that the respondent herein was not to be considered eligible for payment of increments and other benefits of pension etc. for the suspension period as the period of suspension was not treated as on duty. This decision of the Board was communicated to the respondent on 15th September, 1980 which resulted in filing of the writ petition directly before this Court. The writ petition, as indicated above, was decided on 9th January, 1989, and the present appeal was preferred by the Bank. The learned single Judge, as indicated by us above, quashed the order of dismissal dated 1st September, 1980 for both the above-mentioned reasons and gave the respondent all consequential benefits.
7. Reverting back to the first submission made by Shri R.K. Chhibbar, Senior Advocate appearing for the appellant, in which we find merit, that in fact there is no report of the Vigilance Department which can be termed as a 'report'. It is merely a consent given by the said Department, vide its letter dated 11th August, 1980, that the proposed punishment of dismissal from service is in order. No merits of the case were discussed in this report. Nor were any recommendations made by the Vigilance Department of the Bank. The stand of the respondent before us in the writ petition is actually incorrect that the Vigilance Department had recommended stoppage of three increments. This letter of the Vigilance Department cannot be termed as a 'report' or even a recommendation which could effect the rights of the petitioner in any manner whatsoever. The Board had passed the resolution for issuing the show-cause notice for major penalty of dismissal from service as far back as on 2nd May, 1980, and there was no question of this report/letter in any way influencing the mind of the Board except that it was a procedural consent/approval offered by the Vigilance Department. The learned Single Judge while dealing with this submission has laid great emphasis on the report of the Vigilance Department being not furnished to the respondent before imposing the punishment. We are unable to accept the view expressed by the learned Single Judge that serious prejudice was caused to the respondent by non-supply of the material which has a reference to this Vigilance report. We also find no material on record to concur to the finding of the learned Single Judge that the report has been relied upon by the disciplinary authority while imposing the punishment of dismissal from service. As already expressed by us, the letter cannot be termed as a 'vigilance report', and, in any case, the said report does not seem to have been placed before the Board, as is clear from the agenda dated 30th August, 1980 on the basis of which the decision dated 1st September, 1980 was taken by the Board. While referring to the memorandum dated 28th April, 1980 which was placed before the Board in its meeting of 29th April, 1980 when the Board passed the resolution for issuing the show-cause notice, it was stated in the agenda note as under:-
"xx xx xx We place below the letter received from Shri Dogra and a report of the Chief General Manager in terms of Rule 50(5) of the erstwhile State Bank of India (Supervising Staff) Service Rules."
and the decision dated 1st September, 1980 was taken by the Board.
8. It is a well settled position of law that the Vigilance Commission's function is purely advisory, and it is not an appellate authority over the inquiry officer or the disciplinary authority and its view are not mandatory, but are merely advisory in nature (Nagaraj Shivarao Karjagi v. Syndicate Bank Head Office Manipal and Anr., J.T. 1991 (2) S.C. 529). The letter of The Vigilance Department has not been even taken into consideration for any effective purpose by the Board. The Board has not relied upon any document which was not furnished to the respondent. The simpliciter one line of approval does not to our mind amount to violation of principles of natural justice or denying the respondent right of fair defence before a disciplinary authority. Fair and just inquiry is a safeguard provided to a delinquent official in a department proceeding but its extent has to be examined on the basic principles of 'prejudice caused'.
9. In the case of Sunil Kumar Banerjee v. State of West Bengal A.I.R. 1980 Supreme Court 1170, the officer was not given a copy of the Vigilance Commission's report, and the inquiry officer had not questioned the delinquent official in accordance with the rules in that case. Rejecting both the contentions, the Supreme Court had laid the law that prejudice is the basis of these principles and as no prejudice is caused to the appellant the inquiry could not be vitiated.
10. In the present case, there was no report of the Vigilance Department, as alleged by the respondent in his writ petition before the learned Single Judge. The letter of approval is totally inconsequential with regard to the final order passed by the Board. The one line letter could neither influence any person, much less, a collective body, that is, the Board of the Bank, and, in any case, there is no material before us which shows that the said report was considered by the Board.
11. We now come to the second submission raised before us that the impugned order dated 1st September, 1980 conveyed to the petitioner on 15th September, 1980 is a non-speaking order, and, as such, is liable to be set aside. The order by an administrative authority, especially while functioning as a quasi-judicial body or authority, should normally be a speaking order. The purpose of passing a speaking order is two-fold (a) the order would show that the authorities have applied their mind before passing the order, and (b) It provides adequate material for a delinquent official to challenge the order so passed.
12. In the present case, the material was placed before the Board twice, once on 28th April, 1980 when the Board, after the consideration of the entire material before it including the report of the Chief General Manager, decided to issue a notice to show cause as per the terms reproduced supra; and the second time, when the report of the Chief General Manager and a detailed reply of the delinquent official was placed along with the agenda note. Thus, the Board applied its mind twice, once at the time of issuing the notice to show-cause, and, secondly, at the time of passing the impugned order. The impugned order although is not a very detailed order, but it definitely makes reference that after having fully considered the facts of the case, the decision was taken to dismiss the delinquent official from service. The report submitted by the Chief General Manager, which was a very detailed report, and the copy of which was admittedly furnished to the delinquent official, was accepted by the Board for the reasons recorded therein. Thus, the basic two ingredients for passing of a speaking order, to our mind, stood fully satisfied.
13. The basic principle is that the punishing authority, while agreeing with the findings of a Tribunal, does not have to pass necessarily a detailed speaking order. It is only in the case of dissent that passing of a reasoned order can be stated to be mandatory. The Supreme Court in State of Madras v. A.R. Srinivasan,' A.I.R. 1966 Supreme Court 1827, held as under:-
"Having regard to the material which is thus made available to the Government and which is made available to the delinquent officer also, it is unreasonable to suggest that the State Government must record its reasons as to why it accepts the findings of the Tribunal."
In the present case, the inquiry officer found the petitioner guilty of a number of charges, the Chief General Manager also found him guilty of the same charges with addition of some and the Board, after applying its mind, and obviously for the reasons recorded in the report of the Chief General Manager and accepting the report of the inquiry officer, took the decision and passed the impugned order.
14. It has to be kept in mind that the recording of reasons should not be over emphasised so as to require the administrative authorities to pass lengthy reasoned orders, like the judicial orders. Once the Court is satisfied that there is application of mind and the material which would help a delinquent official to challenge the impugned order passed against him are satisfied, it will be appropriate to construe it to be substantial compliance of the principles of natural justice. In another matter, Nand Kishore Prasad v. The State of Bihar and Ors., 1978(2) S.L.R. 46, speaking for the Bench, Hon'ble Mr. Justice R.S. Sarkaria held:-
While it is true that the impugned orders are unjustifiably brief, it is not correct that they are totally bereft of all reference to or discussion of evidence.
The desirability of writing a self-contained speaking order in disciplinary proceeding culminating in an order of removal of the delinquent from service, cannot be over-emphasised. It is true that the impugned orders do not fully measure upto this devoutly desired standard. Nevertheless, they do contain a bald and general allusion to the primary facts, and a cryptic inference therefrom."
The Supreme Court dismissed the appeal before it.
15. Similar views were expressed by the Supreme Court in the case of Ram Kumar v. State of Haryana, A.I.R. 1987 S.C. 2043, and Tara Chand Khatri v. Municipal Corporation of Delhi, 1977(1) S.L.R. 752. Even in the recent pronouncement, the Apex Court in the case of Union of India and Ors., v. E.G. Nambudiri, J.T. 1991 (2) S.C. 285 held as under:-
"In the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reason. But the competent authority has no licence to act arbitrarily, he must act in a fair and just manner."
In the present case, the disciplinary authority having tentatively decided to impose major penalty of dismissal from service, had issued the show-cause notice and all the material had been provided to the delinquent official. The Board has acted bona fide, and has substantially complied with the requirements of fair play, of course, has passed the order.
16. The learned counsel appearing for the respondent has not been able to bring to our notice anything from the record as to how the letter written by the Vigilance Department had caused any prejudice to the respondent. The learned counsel heavily relied upon the judgment of the Supreme Court in Managing Director, ECIL, Hyderabad v. B. Karunakar, J.T. 1993(6) S.C. 1. In fact, the Constitution Bench of the Supreme Court in this landmark judgment primarily explained and clarified the law laid down by the Court in Union of India and Ors. v. Mohd. Ramzan Khan, J.T. 1990(4) S.C. 456. This judgment laid the law that the Courts and Tribunals should not mechanically set-aside the order of punishment even on the ground that the enquiry officer's report was not furnished. The Hon'ble Supreme Court has laid down guidelines which should weigh with the Courts in deciding whether an order of punishment should be set aside and enquiry vitiated. The un- derlying principles of these guidelines are based on fair enquiry, compliance of principles of natural justice and in the event of failure the consequential prejudice caused to the delinquent employee/officer. Thus the Court held as under:-
"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. Since it is the Courts/Tribunal which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment."
17. The respondent was admittedly given an opportunity of personal hearing by the disciplinary authority which was not availed by the respondent. This goes to show that the disciplinary authority had acted in all fairness and after applying its mind prudently.
18. It remains an undisputed position in this case that all concerned authorities had found the respondent/delinquent officer guilty of serious misconduct of financial bungling in the accounts of the constituents of the Bank. Therefore, if the order can be supported on any finding as to substantial misconduct for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone should have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the inquiry officer or Tribunal prima-facie make out a case of misdemeanor to direct the authority to reconsider that order in respect of some of the findings but not all. In our opinion there had been no violation of rules of natural justice. This principle was enunciated by the Supreme Court in State of Orissa and Ors. v. Bidyabhushan Mohapatra' A.I.R. 1963 S.C. 779 and was reiterated in Railway Board, New Delhi and Anr. v. Niranjan Singh, A.I.R. 1969 Supreme Court 966. In this view of the matter, large number of charges having been proved against the delinquent officer, it will not be appropriate for this Court to go into the correctness of findings of facts on various charges on merits and set aside the order of punishment on the ground that some charges were not proved and copy of the letter of the Vigilance Department was not furnished to the delinquent officer, and there was violation of principles of natural justice. We have already discussed in detail that no prejudice of any kind was caused to the respondent, re: State Bank of India and Ors. v. Samarendra Kishore Endow and Anr. J.T. 1994(1) S.C. 217.
19. Before concluding, we would also like to make a reference to the three charges levelled by the Bank against the delinquent official. They are of very serious nature relating to misappropriation of the amounts of the constituents of the Bank. The delinquent officer has been found guilty by all authorities, may be on one and/or more charges. The learned counsel for the appellant pleaded before us, that it was a case of loss of confidence. In this view of the matter, and as per the principles settled by the Supreme Court in M.L. Kumar v. The Chairman-cum-Managing Director, New India Assurance Co. Ltd. and Anr., , J.T. 1992(1) S.C. 188, where the Supreme Court after holding that the impugned order of terminating the services of the appellant in that case was illegal, directed that the compensation of Rs. One lakh be paid. This was also followed in another case reported in J.T. 1992 (1) S.C. 279 (P.C. Bumotra v. The Chairman-cum-Managing Director, New India Assurance Co. Limited and Anr., .
20. We called upon the respondent to accept compensation which was declined by the respondent.
21. For the afore-mentioned reasons and our conclusions on the two submissions afore-stated, we set aside the judgment in appeal passed by the learned Single Judge and dismiss Civil Writ Petition No. 474 of 1981 filed by the respondent. There shall be no order as to costs.