Irshad Ali, J
1. Heard Shri Prashant Chandra, learned Senior Advocate assisted by Ms. Radhika Singh, learned counsel for the petitioner and Shri Gopal K Srivastava, learned counsel for the respondent-Bank.
2. By means of the present writ petition, the petitioner has prayed for the following reliefs:
(a) issue a writ of certiorari or a writ, order or direction in the nature of certiorari quashing the orders dated 26.5.1997 and 23.12.1997 passed by the opposite parties nos.2 and 1 contained as Annexure nos.1 and 2 respectively to the writ petition.
(b) issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the respondents not to give effect to the orders dated 26.5.1997 and 23.12.1997 passed by the opposite party nos.2 and 1 contained in Annexure nos.1 and 2 respectively to the writ petition.
(c) issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the respondents to allow the petitioner to resume his duties forthwith with full back wages/ salary, and to continue to pay salary to the petitioner regularly each month as and when its falls due.
(d) issue an appropriate writ, order or direction requiring the opposite parties to pay heavy cost to the petitioner for subjecting him to unwarranted harassment and mental anguish.
(e) issue any other appropriate writ, order or direction which this Hon’ble Court may deem just and necessary in the circumstances of the case may also be passed; and
(f) to allow the writ petition with costs."
3. Facts of the case are that the petitioner was employed as a Clerk with the Central Bank of India and terms and conditions of service of the petitioner were governed by bipartite settlement as amended from time to time. While posted at Vivekanand Polyclinic Branch, Lucknow the petitioner was placed under suspension vide an order dated 2.3.1995 on the complaint of a customer that he had prepared a forged Khazana deposit pass book to defraud the bank.On 18.5.1995 the opposite party no.2 issued a memo to the petitioner in respect of 7 lapses allegedly committed by the petitioner. The petitioner submitted his reply to the said memo on 8.6.1995 denying the alleged lapses. On 3.7.1995, the petitioner was served with a charge-sheet for having committed certain alleged acts of misconduct as detailed therein. It is pertinent to point out that a bare reading of the charge-sheet would indicate that it already recorded findings of guilt and was not a memo of charge. The said charge-sheet did not contain list of documents/ witnesses and copies of prior statements which is also in violation of circular dated 23.8.1984 issued by the Central Office of the Bank to all its Chief Managers, which is based on directions issued by the Government of India through the Central Vigilance Commission vide letter dated 3.7.1984. The enquiry commenced on 18.7.1995 and concluded on 18.9.1996. The said enquiry is vitiated as the statements of witnesses recorded exparte were taken into account by the Enquiry Officer, though despite specific demand by the petitioner, he was refused cross examination of the said witnesses. Significantly, the so called complainants informed the enquiry officer that they had no complaint against the petitioner, but instead of dropping the charges be proceeded with the enquiry. The factum of bank having suffered no losses has been completely ignored while recording the findings of the enquiry. Although the report of the vigilance implicated the petitioner along with other officers as well but no proceedings have been initiated against the other officers and the petitioner has been singled out and subjected to hostile discrimination in contravention of Article 14 of the Constitution. The said officers are Mrs R. Natrajan, Branch Manager, K.C. Jain, Assistant Branch Manager, Prabhat Kapoor, Sub-Accountant, Prabhakar Chaturvedi, Sub Accountant, Navin Chaturvedi, Cash Officer and Gulab T. Bhatia, Teller. The petitioner had requested the Enquiry Officer to send for certain documents having material bearing on the charges levelled against the petitioner but the Enquiry Officer refused to call for those documents and proceeded with the enquiry in breach of principles of natural justice. The petitioner was suspended on 2.3.1995. He was paid subsistence allowance at the rate of 50% of the salary. In accordance with the provisions of bipartitle settlement the petitioner was entitled to subsistence allowance after a lapse of one year at the rate of full pay. The petitioner was not given the mandatory subsistence allowance w.e.f. 2.3.1996 although the petitioner consistently demanded the same and even apprised the enquiry officer that failure to pay the same would vitiate the entire enquiry proceedings. Non-payment of full subsistence allowance has handicapped the petitioner to effectively defend the enquiry rendering the entire enquiry proceedings null and void. On 18.9.1996, at the time of conclusion of the enquiry the Enquiry Officer granted 10 days time to the bank’s representative to file arguments with an advance copy to the petitioner and 10 days to the petitioner to file counter arguments. However, the arguments on behalf of the bank were filed after a lapse of 55 days. The petitioner’s representative had requested for time upto 20.12.1996 for filing of counter arguments and the same were actually filed on 20.12.1996 i.e. within 37 days. The Enquiry Officer, however, without awaiting the petitioner’s counter reply and even without considering his request for extension of time, recorded his finding on 17.12.1996. On 20.12.1996, when the petitioner filed his counter arguments beyond the Enquiry Officer, he himself acknowledged receipt of the same, but mischievously did not disclosed that he had already given his finding without awaiting the petitioner’s reply. On 30.12.1996, the petitioner received a memo dated 28.12.1996 issued by the opposite party no.2 stating therein that the Enquiry Officer had givenan exparte report dated 17.12.1996 as the petitioner failed to submit his written arguments upto 17.12.1996. There was absolutely no mention of the fact that the petitioner’s representative had prayed time upto 20.12.1996 before which he had received the arguments dated 20.12.1996 but did not deal with the same. The disciplinary authority vide the said memo dated 28.12.1996 expressed argument with the findings of the Eqnuiry Officer and directed to the petitioner to submit his explanation to the findings dated 17.12.1996 and 21.12.1996. Vide letters dated 6.1.1997 and 13.1.1997 the petitioner submitted his explanations specifically complaining that the Enquiry Officer had submitted his report without considering the written arguments of the petitioner, to which the disciplinary authority had mechanically nodded, reflecting of prejudice and bias. On 24/25.2.1997 the opposite party no.2 issued proposed consolidated punishment of removal from service under paragraph 19.6(b) of the bipartite settlement and explanation was called from the petitioner requiring of him to show cause why the proposed punishment be not made final. On 27.3.1997 and 21.4.1997, the petitioner replied to the proposed punishment inter alia pointing out that the punishment of removal from service could not be awarded to the petitioner under Paragraph 19.6(b) as it was not applicable at the time of alleged commission of the charges and the removal from service was introduced by the Vith bipartite settlement which came into effect from 14.2.1995. The petitioner had also prayed that in view of the various irregularities pointed by him the enquiry was apparently vitiated and at best a fresh enquiry be conducted, adhering to the official circulars and the principles of natural justice. Nothing was heard by the petitioner from the opposite party no.2 in response to the above and no opportunity was given to the petitioner to explain his case. Vide an order dated 26.5.1997, the punishment of removal from service was confirmed by the opposite party no.2. The petitioner thereafter preferred an appeal dated 26.6.1997 before the opposite party no.1 against the order dated 26.5.1997 passed by opposite party no.2. The order dated 23.12.1997 is illegal, arbitrary and breft of any reasoning and is vitiated for want of application of mind as none of the grounds urged in appeal having been dealt with. The order of removal from service is violative of the provisions contained in Article 20(1) of the Constitution.
4. Learned counsel for the petitioner submitted that the petitioner was employed as a Clerk in Central Bank of India and the terms and conditions of his services were/ are governed by Bipartite Settlement (BPS) as amended from time to time. He next submitted that while posted at Vivekanand Polyclinic Branch, Lucknow the petitioner was placed under suspension vide order dated 2.3.1995 on an apprehension that some complaint would be lodged against him for preparing a forged Khajana deposit pass book with an intention to defraud the bank.
5. Learned counsel for the petitioner next submitted that disciplinary proceedings were initiated on the basis of a complaint dated 7.3.1995 written by the Branch Manager (MW1) and said to have been signed by the joint account holders namely Mr. B.K. Upadhyay and Mr. P.K. Upadhyay. Even before the complaint came into existence, the suspension order was passed on 2.3.1995.
6. Learned counsel for the petitioner next submitted that the said complaint dated 7.3.1995 was refuted by the complainants as having been lodged by them. He next submitted that a charge-sheet dated 3.7.1995 was issued to the petitioner levelling 7 charges/ acts that the petitioner allegedly received certain sums from the joint account holders namely Mr. B.K. Upadhyay and Mr. P.K. Upadhyay but he did not deposit the same in the bank, made fake withdrawals from their account, made fake entries in the pass books etc. On the top of the last page of the charge-sheet it is sum-upped that the aforesaid acts of the petitioner are prejudicial to the interest of the bank and constitute misconduct within the meaning of Para-19.5(j) of the Bipartite Settlement.
7. Learned counsel for the petitioner next submitted that it was neither spelt out in the charge sheet nor brought out in the enquiry or in the order of punishment that what type of prejudice to the interest of the bank or what loss, if any, was caused to the Bank. The account holder denied any such irregularity in the account. Significantly no motive on the part of the petitioner was established for being involved in the said transaction which is a sine qua non for invoking Para 19.5 (j) of the Bipartite Settlement.
8. Learned counsel for the petitioner next submitted that all the charges levelled in the chargesheet dated 3.7.1995 are in respect of only one account holder (joint account holders and real brothers Mr. B.K. Upadhyay and Mr. P.K. Upadhyay), and relate to the period 4.10.1994 to 2.2.1995 when Vth Bipartite Settlement was in force. It is reemphasized that the joint account holders namely Mr. B.K. Upadhyay and Mr. P.K. Upadhyay had denied making of any complaint dated 7.3.1995. The alleged complaint dated 7.3.1995 is in the handwriting of the then Branch Manager of the Bank (M.W.1) and on a copy of the complaint dated 7.3.1995, Mr. B.K. Upadhyay and Mr. P.K. Upadhyay both have made an endorsement that they have no concern with the complaint and they are also not well versed with the language (English) in which the complaint/ letter dated 7.3.1995 had been made.
9. Learned counsel for the petitioner submits that the charge-sheet dated 3.7.1995 did not contain list of documents and witnesses in utter violation of circular dated 23.8.1984 issued by the central office of the bank to all its Chief Managers. He next submits that the Government of India had issued directions through Central Vigilance Commission vide letter dated 3.7.1984 to all the nationalized banks and in turn the Deputy General Manager of the Central Bank of India had also issued a circular dated 23.8.1984.
10. Learned counsel for the petitioner next submitted that the order of suspension was passed on 2.3.1995 not on the basis of the alleged confessional statement but on the basis of an anticipated complaint which may be filed and the chargesheet was also fomulated not on the basis of the so-called confessional statement but on the basis of a complaint filed on 7.3.1995 subsequent to the order of suspension.
11. Learned counsel for the petitioner next submitted that filing of the complaint was thus preempted and in anticipation the order of suspension was passed but the alleged confessional statement was not taken into consideration either while formulating an opinion to suspend the petitioner or while holding the enquiry against him. The list of documents and witnesses were supplied subsequent to commencement of the enquiry and the so-called confessional statement has not been referred to in the list of documents on which reliance was proposed to be placed in the enquiry.
12. Learned counsel for the petitioner next submitted that the petitioner was required to answer the charges formulated against him in the charge-sheet and was also encountered with the documents mentioned in the list which as submitted above did not include the alleged confessional statement. Primarily, three witnesses on behalf of the management, being the Branch Manager and two other employees ( also to be involved along with the petitioner) were examined. The complainant on whose complaints the enquiry had been set up, were not produced despite repeated requests made by the petitioner to produce them for verification of the complaint s aid to have been made by them and forming the basis of the enquiry against the petitioner.
13. Learned counsel for the petitioner next submitted that the Government of India had issued directions through Central Vigilance Commission vide letter dated 3.7.1984 to all the nationalized banks and in turn the Deputy General Manager of the Central Bank of India had also issued a circular dated 23.8.1984 directing all disciplinary Authorities to supply a list of documents and witnesses along with the chargesheet. The said circular also indicates that failure to provide list of documents and the witnesses on the basis of which the charges are proposed to be sustained amounts to failure to give a reasonable opportunity to a charged officer to defend himself.
14. Learned counsel for the petitioner next submitted that the vigilance officer’s report was prepared on the basis of previous statements of various persons which were recorded behind the back of the petitioner but none of the persons having made the statements before the vigilance officer have been summoned/ examined. He next submitted that an alleged confessional statement recorded by the vigilance officer was made voluntarily which was witnessed by Mr. S.J. Mehrotra (an officer of the bank). The petitioner had requested for production of Mr. S.J. Mehrotra but he was not produced.
15. Learned counsel for the petitioner next submitted that noticeably, the Vigilance Officer had held that 7 persons including the Branch Manager, Shri R. Natrajan (MW1), petitioner and five other employees of the bank were guilty. While no action was taken against others, only the petitioner was singled out and made a scape goat.
16. Learned counsel for the petitioner next submits that there is no whisper about any confession having been made before the Vigilance Officer in the charge-sheet dated 3.7.1995. Even the list of documents and witnesses which were supplied during the enquiry on 18.7.1995 do not contains the Vigilance Officer’s report and/or confession or the name of vigilance officer as witness.
17. Learned counsel for the petitioner next submitted that admittedly the Bank has suffered no loss. This is so because the complaint itself was fabricated by the Branch Manager. While passing the order of punishment dated 26.5.1997, the opposite party no.2 with meticulous predetermination and bias to punish the petitioner, has concluded that the petitioner has tarnished the image of the bank in the eyes of the customers. The said finding recorded by the opposite parties is based on no evidence and unsustainable. Punishment of removal from service could not have been awarded to the petitioner under Para 19.6(b) of the Bipartite Settlement applicable at the relevant point of time.
18. Learned counsel for the petitioner next submitted that the petitioner was placed under suspension on 2.3.1995. As per the Bipartite Settlement, the petitioner was entitled to the subsistance allowance @ full pay w.e.f. 2.3.1996. Since the petitioner was not paid the full subsistence allowance as per the Bipartite Settlement, therefore the enquiry held against him was vitiated.
19. In support of his submissions, learned counsel for the respondent has placed reliance upon the following judgments:
(i) A.K. Saxena v. State Bank of Patiala and others reported in (2016) SCC Online SC 187
(ii) Pawan Kumar Agarwala v. General Manager-II & Appointing Authority, State bank of Indian and others reported in 2015 SCC Online SC 1260
(iii) Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and others reported in (2001)1 SCC 182
(iv) State bank of India and others v. T.J. Paul reported in (1999)4 SCC 759
(v) Capt M. Paul Anthony v. Bharat Gold Mines Ltd and another reported in (1999)3 SCC 679
(vi) Kuldeep Singh v. Commissioner of Police and others reported in (1999)2 SCC 10
(vii) P.C. Kacker v. Chairman and managing Director, United Commercial bank and others reported in 1999(4) AWC 3263
(viii) R.C. Sood v. High Court of judicature at Rajasthan and others reported in (1998) 5 SCC 493
(ix) State Bank of India and others v. D.C. Aggarwal and another reported in AIR 1993 SC 1197
(x) Fakirbhai Fulabhai Solanki v. Presiding Officer and another reported in (1986) 3 SCC 131
(xi) Anil Kumar v. Presiding Officer and others reported in (1984)3 SCC 378
(xii) Pradeep v. Manganese Ore (India) Ltd. reported in (2002)3 SCC 683: 2021 SCC OnLine 1292 at page 683
(xiii) State of U.P. v. Saroj Kumar sinha reported in (2010)2 SCC 772: (2010)1SCC (L&S) 673: 2010 SCC OnLine SC 248 at page 782
(xiv) Roop singh Negi v. Punjab National Bank reported in (2009)2 SCC 570: (2009)1 SCC (L&S) 398: 2008 SCC OnLine SC 1947 at page 577
20. On the other hand, learned counsel for the respondent-Bank submitted that all the charges against petitioner were found to be proved in departmental enquiry on consideration of overwhelming documentary and other evidence which clearly proved against petitioner. He next submitted that during the course of departmental proceeding/ enquiry, the petitioner was granted fair and reasonable opportunity to defend himself throughout.
21. Learned counsel for the respondent-Bank next submitted that on 21.04.1997, the petitioner appeared for personal hearing though the representative of his choice and there upon the arguments on behalf of petitioner as well as the written submission of petitioner, which were earlier enclosed along with the representation dated 27.03.1997, were considered in order to appreciate the report of the Enquiry Officer.
22. Learned counsel for the respondent-Bank next submitted that the enquiry Officer during the course of Enquiry has repeatedly advised the petitioner to cross examine three Management witnesses but the the petitioner did not cross examine the said witnesses on his own and therefore it follows that the petitioner never addressed himself to the merits of the case but continued to raise frivolous and untenable objections which were seemingly procedural.
23. Learned counsel for the respondent-Bank next submitted that a bare perusal of the Appellate authority's order dated 23.12.1997 shows that unassailable findings have been recorded therein on the basis of the entire record of the case and after providing opportunity to the petitioner to make his submissions of his case before the appellate authority.
24. Learned counsel for the respondent-Bank next submitted that removal of service of the petitioner is further justified on the ground of complete loss of confidence which is an integral part of any service. He next submitted that the petitioner was paid prescribed subsistence allowance which is payable to a workman employee of the bank in terms of Bipartite settlement. In the settlement it was provided that if after one year the Enquiry is not delayed for the reasons attributable to the workman or employee full pay and allowances shall be paid. It is said that the delay in departmental enquiry was on the part of the petitioner and his representative, therefore, the petitioner was not eligible for full subsistence allowance.
25. In support of his submissions, learned counsel for the respondent-Bank placed reliance upon the following judgments:
(i) Tara Chand Vyas v. Chairman & Disciplinary Authority reported (1997)4 SCC 565: 1997 SCC (L&S) 1241 at page 567
(ii) L.K. Verma v. H.M.T. Ltd & Anr decided on 31.1.2006 in Appeal (civil) No.881 of 2006
(iii) Vice-Chairman , Kendriya Vidyalaya Sangathan and another reported in (2004)6 Supreme Court Cases 325
(iv) State Bank of India and others v. Narendra Kumar Pandey reported in (2013) 2 Supreme Court Cases 745: (2013) 1 SCC (L&S) 459: 2013 SCC OnLine SC 54 at page 748
(v) State Bank of India v. Bela Baghi reported in 2005(7)SCC 435
(vi) Disciplinary Authority-cum-Regional manager v. Nikunj Bihari reported in 1996(9) SCC 69
(vii) A.P.S.R.T.C. v. Raghuda Siva Sankar Prasad reported in (2007)1 SCC 22: (2007)1 SCC (L& S) 151: 2006 SCC OnLine SC 1170 at page 226
(viii) T.N.C.S. Corporation v. K. Meera Bai reported in (2006) 2 SCC 255: 2006 (SCC) (L&S) 265: 2006 SCC OnLine SC 109 at Page 267.
(ix) A. Sudhakar v. Postmaster General reported in (2006)4 SCC 348: 2006 SCC (L&S) 817: 2006 SCC OnLine 335 at page 358.
(xi) Dy. Registrar, Cooperative Societies v. Bunni Lal Chaurasia reported in (2005) 11 SCC 570: 2006 SCC (L&S)399: 2005 SCC OnLine SC 687 at Page 570.
(x) State of U.P. v. Raj Kishore Yadav reported in (2006) 5 SCC 673: 2006 SCC (L&S) 1185: 2006 SCC OnLine SC 648 at page 674.
(xi) V. Ramana v. A.P.S.R.T.C. reported in (2005)7 SCC 338: 2006 SCC (L&S)69: 2005 SCC OnLine SC 1288 at page 341.
(xii) Ganesh Santa Ram Sirur v. State Bank of India reported in (2005)1 SCC 13: 2006 SC (L&S) 537: 2004 SCC OnLine SC 1437 at page 20.
(xiii) Government of A.P. v. Mohd. Nasrullah Khan reported in (2006)2 SCC 373: 2006 SCC (L&S) 316: 2006 SCC OnLine SC 135 at page 378.
26. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as law-report cited by learned counsel for the parties.
27. To resolve the controversy involved in the present writ petition, the operative portions of the judgment relied upon by learned counsel for the parties are extracted herein below Judgements relied upon by learned counsel for the petitioner:
(i) A.K. Saxena (supra):-
2. On the basis of the report of the enquiry the appellant was dismissed from service on 2-7-1993. The appellant preferred a departmental appeal which was rejected. Since the Labour Court was of the view that enquiry conducted by the Management was not fair and proper, by final award dated 17-12-1997 it was held that the termination of the appellant was illegal and there was direction for his reinstatement with back wages. The award was challenged by the respondent Bank before the High Court. The High Court allowed [State Bank of Patiala v. Union of India, 2011 SCC OnLine All 380 : (2011) 129 FLR 594] the petition and thus, the appellant is before this Court. When the matter was pending before the High Court pursuant to interim order passed by the Court, we are informed that it is not disputed that the appellant has been paid an amount of Rs 14,05,417 towards back wages and an amount of Rs 9,34,573 towards Section 17-B of the Industrial Disputes Act, 1947.
5. In the above factual matrix, we put query to the learned counsel for the Bank as to how the appellant alone is discriminated and dismissed from service. The learned counsel has invited our attention extensively to the evidence that the appellant was the kingpin of the whole transaction, being a Head Cashier, the other three have only obeyed his request for consequential steps. We find it difficult to appreciate the submission in view of the factual position as noted above.
6. In the above circumstances, we are of the view that the interest of justice would be advanced in case the punishment imposed on the appellant is suitably altered. The appellant has attained the age of superannuation and that he has received hefty amounts from the Bank while remaining out of service after 1993. Hence, it is ordered that the appellant shall be treated to have been retired from service on completion of 15 years of service and accordingly, his retiral benefits shall be settled for the purpose of future pension from the month of February 2016. Since he has already received wages in between, there shall be no arrears of pension.
(ii) Pawan Kumar Agarwala (supra):_
18. Further, it is brought to our notice by Mr Vijay Hansaria, learned Senior Counsel for the appellant that the loan amount lent by Mr Pradeep Kumar Das, the Manager of Hallydayganj Branch, the same has been cleared by Mr Tapan Kumar Sangma with interest by paying Rs 1,61,000. The overdraft is beyond the permissible limit is held to be not proved. The finding of the learned Single Judge while examining the entire enquiry report, on which strong reliance is placed by the respondent Bank, the learned Single Judge in exercise of his extraordinary and original jurisdiction examined the case on merits and referred to Rule 68(1)(IX)(a) of the State Bank of India Service Rules, wherein it mandates the disciplinary authority to furnish the delinquent the list of documents through which the charges are proposed to be proved. It is the case of the appellant that such a list of witnesses and copies of documents were not furnished either by the disciplinary authority or the enquiry officer which are vital aspects of the case, based on which the finding is recorded on the charges by the enquiry officer, referred to supra, holding that the same are proved against the appellant.
(iii) Kumaon Mandal Vikas Nigam (supra):-
22. The sixty-five page report has been sent to the Managing Director of the Nigam against the petitioner recording therein that the charges against him stand proved — what is the basis? Was the enquiry officer justified in coming to such a conclusion on the basis of the charge-sheet only? The answer cannot possibly be in the affirmative; if the records have been considered, the immediate necessity would be to consider as to who is the person who has produced the same and the next issue could be as regards the nature of the records — unfortunately there is not a whisper in the rather longish report in that regard. Where is the presenting officer? Where is the notice fixing the date of hearing? Where is the list of witnesses? What has happened to the defence witnesses? All these questions arise but unfortunately no answer is to be found in the rather longish report. But if one does not have it — can it be termed to be in consonance with the concept of justice or the same tantamounts to a total miscarriage of justice. The High Court answers it as miscarriage of justice and we do lend our concurrence therewith. The whole issue has been dealt with in such a way that it cannot but be termed to be totally devoid of any justifiable reason and in this context a decision of the King's Bench Division in the case of Denby (William) and Sons Ltd. v. Minister of Health [(1936) 1 KB 337 : 105 LJKB 134 : 154 LT 180] may be considered. Swift, J. while dealing with the administrative duties of the Minister has the following to state:
“I do not think that it is right to say that the Minister of Health or any other officer of the State who has to administer an Act of Parliament is a judicial officer. He is an administrative officer, carrying out the duties of an administrative office, and administering the provisions of particular Acts of Parliament. From time to time, in the course of administrative duties, he has to perform acts which require him to interfere with the rights and property of individuals, and in doing that the courts have said that he must act fairly and reasonably; not capriciously, but in accordance with the ordinary dictates of justice. The performance of those duties entails the exercise of the Minister's discretion, and I think what was said by Lord Halsbury in Sharp v. Wakefield [1891 AC 173 : 60 LJ MC 73 : 64 LT 180 (HL)] (AC at p. 179) is important to consider with reference to the exercise of such discretion. He there said:
‘ “Discretion” means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke case [(1598) 5 Co Rep 99b, 100a] ; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.’ ”
26. “Bias” in common English parlance means and implies — predisposition or prejudice. The Managing Director admittedly, was not well disposed of towards the respondent herein by reason wherefor, the respondent was denuded of the financial power as also the administrative management of the department. It is the selfsame Managing Director who levels thirteen charges against the respondent and is the person who appoints the enquiry officer, but affords a pretended hearing himself late in the afternoon on 26-11-1993 and communicates the order of termination consisting of eighteen pages by early evening, the chain is complete: prejudice apparent: bias as stated stands proved.
(iv) State Bank of India (supra):-
18. But this does not conclude the matter. The learned Senior Counsel for the respondent, Shri P.P. Rao is right in contending that the appellate authority, once it came to the conclusion that the punishment of dismissal was not warranted in the facts of the case, it could not have awarded the punishment of “removal” which was not one of the enumerated penalties under para 22(v) of the rules. In fact, the learned Single Judge also adverted to this aspect. If one reads the order of the appellate authority, it is clear that the said authority went by Rule 49(g) of the State Bank of India (Supervising Staff) Service Rules which admittedly, is not applicable to charges pertaining to the period 1977-81 when the rules of Cochin Bank applied. The amalgamation of Bank of Cochin with State Bank of India took place only on 27-4-1985. It may be that the rules of the State Bank of India provided for a punishment of removal, but in the rules relating to penalties for “major misconduct” in para 22(v) of the rules applicable to the employees of Bank of Cochin, removal is not one of the enumerated punishments which could be imposed. The said punishment is not the same thing as “condoning misconduct and merely discharging from service” as provided in para 22(v)(e) of the said rules.
19. Learned Senior Counsel for the appellants, Shri T.R. Andhyarujina tried to submit that if the appellate authority decided not to dismiss the respondent, it still had inherent power to award a punishment of “removal”, which was lesser in severity. Learned Senior Counsel contended that the discretion of the authorities to award such an appropriate punishment could not be interfered with in view of the decision of this Court in Union of India v. G. Ganayutham [(1997) 7 SCC 463 : 1997 SCC (L&S) 1806] . In our view, this decision is not applicable to the facts of the case. Here the Court is not interfering with the punishment awarded by the employer on the ground that in the opinion of the Court the punishment awarded is disproportionate to the gravity of the misconduct. Here, the gradation of the punishments has been fixed by the rules themselves, namely, the rules of Bank of Cochin and the Court is merely insisting that the authority is confined to the limits of its discretion as restricted by the rules. Inasmuch as the rules of Bank of Cochin have enumerated and listed out the punishments for “major misconduct”, we are of the view that the punishment of “removal” could not have been imposed by the appellate authority and all that was permissible for the Bank was to confine itself to one or the other punishment for major misconduct enumerated in para 22(v) of the rules, other than dismissal without notice. This conclusion of ours also requires the setting aside of the punishment of “removal” that was awarded by the appellate authority. Now the other punishments enumerated under para 22(v) are “warning or censure or adverse remark being entered, or fine, or stoppage of increments/reduction of basic pay or to condone the misconduct and merely discharge from service”. The setting aside of the removal by the High Court and the relief of consequential benefits is thus sustained. The matter has, therefore, to go back to the appellate authority for considering imposition of one or the other punishment in para 22(v) other than dismissal without notice.
(v) M. Paul Anthony:-
23. In the instant case, the Superintendent of Police had raided the residential premises of the appellant and had recovered a mining sponge gold ball weighing 4.5 grams and 1276 grams of “gold-bearing sand”. It was on this basis that a criminal case was launched against him. On the same set of facts, constituting the raid and recovery, departmental proceedings were initiated against the appellant as the “recovery” was treated to be a “misconduct”. On the service of the charge-sheet, the appellant raised an objection that the departmental proceedings may be stayed as the basis of these proceedings was the raid conducted at his residence on which basis a criminal case had already been launched against him. He requested that the decision of the criminal case may be awaited, but his request was turned down. The request made a second time for that purpose also met the same fate. When the appellant approached the High Court, liberty was given to the respondents to stay the departmental proceedings if they considered it appropriate but they were directed to dispose of the appellant's appeal against the order by which he was placed under suspension. The order of the High Court had no effect on the respondents and they decided to continue with the departmental proceedings which could not be attended by the appellant as he informed the enquiry officer that he was ill. His request for adjournment of the departmental proceedings on that ground was not acceded to and the proceedings continued ex parte against him. He was ultimately found guilty of the charges and was dismissed from service.
(vi) Kuldeep Singh :-
32. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means “hearing” in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent who should thereafter be given an opportunity to cross-examine that witness.
41. Smt Meena Mishra, appearing as a witness for the Department, denied having made any payment to the appellant on that day. The labourers to whom the payment is said to have been made have not been produced at the domestic enquiry. Their so-called previous statement could not have been brought on record under Rule 16(3). As such, there was absolutely no evidence in support of the charge framed against the appellant and the entire findings recorded by the enquiry officer are vitiated by reason of the fact that they are not supported by any evidence on record and are wholly perverse.
(vii) P.C. Kacker (supra):-
4. We would have ordinarily not in terfered with the impugned order but for the fact that one M. L. Keshwani the Branch Manager was also charge-sheeted on similar charge as the petitioner. On 7.9.95. this Court directed learned counsel for the Bank to file a supplementary affidavit stating about the action taken by the Bank against M. L. Keshwani who was also charge-sheeted for the overdraft. Thereafter the Bank filed an affidavit stating that Sri Keshwani was also charge-sheeted for similar misconduct as the petitioner. Sri Keshwani granted overdrafts of several lacs of rupees whereas according to the finding of the enquiry officer, the overdrafts granted by the petitioner, was less than Rs. 20,000. However Sri Keshwani was given the punishment of withholding one increment only. Hence it is urged that there is discrimination against the petitioner.
(viii) R.C. Sood (supra):-
22. Based on such type of evidence, the Committee submitted its report on 4-1-1995 signed by all the three Judges. It is but natural that highest standard of integrity is expected of and is required to be maintained by every judicial officer. It is with this in view that even though the impugned initiation of proceedings is being alleged to be for mala fide reasons that it is proper to see whether the allegations against the petitioner were such which in any way warranted the holding of a disciplinary proceeding. We have, therefore, carefully seen the report of the Committee and the complaints against the petitioner in order to satisfy ourselves whether there was any cogent material which warranted initiation of disciplinary proceedings. We do not find, after such examination, that any material existed which could justify the initiation of the impugned action. The allegations against the petitioner were generally vague or were such which stood explained from the record itself or were such which did not show that the petitioner had committed any irregularity, leave alone illegality. For example one of the main allegations against the petitioner was of his having committed irregularity in obtaining loan for constructing a house. Apart from the fact that this loan was sanctioned by the then Chief Justice, the petitioner has with the assistance of the loan constructed the house and is living there and the loan amount already stands returned. In such circumstances for the Committee to come to a conclusion that the disciplinary proceedings should be initiated was clearly unwarranted.
25. Normally, enquiry committees are set up in order to ascertain correct facts. Here, however, we have a situation where a Committee consisting of a local Judge and two transferred Judges was set up with the local Judge sitting alone and collecting a menagerie of witnesses who had a grudge against the petitioner and were thus sure to depose against him. Some of these witnesses were those who had not sent any complaint against the petitioner prior to 30-11-1994 and it is only the local Judge who, wanting to gather statements against the petitioner, could have known whom to approach and call for evidence. Of the two transferred Judges who were members of the Committee, one never took part in any proceeding when evidence was recorded between 20-2-1995 (sic 20-11-1994) and 2-1-1995. Yet he signs the report dated 4-1-1995. The other transferee Judge is the person who set the ball rolling with his conjuring up Vijay Singh's complaint which had originally been circulated long before the Judge's transfer to Rajasthan. The respondent's counsel was unable to explain as to how this complaint was conveniently placed in this Judge's hand. It is evident that there was a deliberate design to bring to a premature end the judicial career of the petitioner, whose name, at that time, was being actively considered for elevation as High Court Judge. This is apparent from the fact that in the resolutions dated 30-11-1994 and 5-1-1995 it was resolved by the Full Court that the President of India and the Chief Justice of India should be informed about the holding of the departmental enquiry against the petitioner. Acting on the basis of the Committee's biased report, the Full Court, we are sad to note, continued in a similar vein and proceeded to nail the petitioner by taking a decision which lacked objectivity. Apparently stung by the judgment dated 22-11-1994 [1994 Supp (3) SCC 711 : 1995 SCC (L&S) 231] of this Court, it retaliated by launching a fresh set of charges against the petitioner clearly with a view to ruin his judicial career. We have no doubt that the action taken by the Court was not bona fide and amounts to victimisation. This is certainly not expected from a judicial forum, least of all the High Court, which is expected to discharge its administrative duties as fairly and objectively as it is required to discharge its judicial functions.
26. The proceedings of the meeting of the Full Court are normally supposed to be confidential. How is it then that a number of complaints were received against the petitioner at about that time, i.e., 30-11-1994. Some of the complaints on the file of the three-Judge Committee are undated and it is not known when they were received. On two complaints, the date is 26-11-1994, but they do not have supporting affidavits. It is, therefore, possible that these complaints may have been antedated specially when none of these complaints bear an endorsement signifying the date of their receipt. The complaint of Mitruka is dated 30-11-1994 but the affidavit supporting is dated 1-12-1994. The fact that an enquiry was going to be conducted against the petitioner was not publicly advertised which could have resulted in complaints being filed, how is it then that after the judgment of this Court on 22-11-1994 [1994 Supp (3) SCC 711 : 1995 SCC (L&S) 231] and about the time the resolution dated 30-11-1994 was passed, unsolicited complaints started coming in. We have no doubt that all these complaints were procured solely with a view to show that apart from the original complaint of Vijay Singh there were other complaints against the petitioner which represented new material justifying a fresh enquiry. These complaints, some of them being made by discredited persons containing vague and general allegations could not, in our view, be regarded as fresh material which required disciplinary proceedings being initiated. The said complaints did not merit any serious considerations and reference to them by the High Court was uncalled for. In this connection, we reiterate the sentiments expressed by this Court while allowing the petitioner's writ petition on the earlier occasion when at p. 716 of the Report it was observed as follows: (SCC p. 716, para 14)
“14. This case leaves us very sad. Entrustment of the ‘control’ of the subordinate judiciary to the High Courts by enactment of the relevant provisions in the Constitution of India, particularly Article 235 therein is for the purpose of ensuring their independence and protection from executive interference. At a time when fairness and non-arbitrariness are the essential requirements of every administrative State action, it is more so for any administrative act of the Judges. It is necessary that members of the subordinate judiciary get no occasion to think otherwise. We are afraid, this incident appears to shake this faith. We do hope it is an inadvertent exception.”
We are sorry to note that the said hope stands belied and notwithstanding the aforesaid observations, the High Court acted in a manner which can only be termed as arbitrary and unwarranted, to say the least.
(ix) State Bank of India (supra):-
6. Even the submission of no prejudice is not well founded. The respondent was a very senior officer of the bank. He was promoted to the top executive grade in August 1980. We have refrained from entering into merits but once the disciplinary authority found that the action of the respondent did not cause any harm to the bank nor the respondent gained out of it the High Court cannot be said to have misdirected itself in quashing the order for procedural error.
(x)Fakirbhai Fulabhai Solanki :-
11. It is likely that in some cases filed under Section 33(1) or Section 33(3) of the Act (which are “permission” clauses and not “approval” clauses) pending before any authority, the management may not be paying any subsistence allowance to the workman concerned. We, therefore, clarify that in such cases it shall be open to the management to pay within a reasonable time to be fixed by the authority, the subsistence allowance for the period during which the workman is kept under suspension without wages and to continue the proceedings. Such subsistence allowance shall be the amount fixed under the standing orders, if any, which the management is liable to pay to the workman if he is kept under suspension during the pendency of such application or in the absence of any such standing order by the authority before which such application is pending. In a case where the proceedings are completed and the order of dismissal is successfully challenged on the ground of non-payment of subsistence allowance for the period of suspension during the pendency of the application under Section 33(1) or Section 33(3) of the Act it shall be open to the management to ask for the permission of the authority again under Section 33(1) or Section 33(3) of the Act after paying or offering to pay to the workman concerned within a reasonable time to be fixed by the authority concerned the arrears of subsistence allowance at the rate stated above. But in the instant case however having regard to the circumstances of this case we do not wish to grant any such opportunity to the management to apply for permission again under Section 33(3) of the Act. On facts we are of the view that the punishment of dismissal imposed in this case on the appellant appears to be excessive but our decision however is not based on this ground.
12. We, therefore, set aside the order/award of the Tribunal and dismiss the application made by the management under Section 33(3) of the Act. We accept the complaint filed by the appellant under Section 33-A of the Act. The management is directed to reinstate the appellant in its service and to pay him all the wages and allowances due to him from August 13, 1979 as if there was no break in the continuity of his service. The appeals are accordingly allowed with costs.
(xi) Anil Kumar:-
5. We have extracted the charges framed against the appellant. We have also pointed out in clear terms the report of the enquiry officer. It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the enquiry officer has a duty to act judicially. The enquiry officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not creditworthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the enquiry officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India [AIR 1966 SC 671 : (1966) 1 SCR 466 : (1966) 1 SCJ 204] this Court observed that a speaking order will at best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard. Similarly in Mahabir Prasad Santosh Kumar v. Slate of U.P. [AIR 1966 SC 671 : (1971) 1 SCR 201] this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the enquiry report is an order sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a more gross case of non-application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court.
6. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no corelation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable.
(xii) Pradeep (supra):-
6. The Bench of two the learned Judges in the said case has, after reviewing of case law which included survey of two earlier three Judges Benches [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] , [Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443 : 1981 SCC (L&S) 16] of this Court, concluded as follows : (Deepali Gundu Surwase case [Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 : (2014) 2 SCC (L&S) 184] , SCC pp. 356-59, paras 38 & 42)
38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
(xiii) State of U.P.:-
28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.
30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
31. In Shaughnessy v. United States [97 L Ed 956 : 345 US 206 (1952)] (Jackson, J.), a Judge of the United States Supreme Court has said: (L Ed p. 969)
“… Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied.”
32. The affect of non-disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, 5th Edn., p. 442 as follows:
“If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked.”
In our opinion the aforesaid maxim is fully applicable in the facts and circumstances of this case.
33. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the inquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of the principles of natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge-sheet.
34. This Court in Kashinath Dikshita v. Union of India [(1986) 3 SCC 229 : 1986 SCC (L&S) 502 : (1986) 1 ATC 176] , had clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a government servant. In that case the enquiry proceedings had been challenged on the ground that non-supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at the preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority.
35. In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows: (Kashinath Dikshita case [(1986) 3 SCC 229 : 1986 SCC (L&S) 502 : (1986) 1 ATC 176] , SCC pp. 234-35, para 10)
“10. … When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: ‘What is the harm in making available the material?’ and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it.”
36. On an examination of the facts in that case, the submission on behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations: (Kashinath Dikshita case [(1986) 3 SCC 229 : 1986 SCC (L&S) 502 : (1986) 1 ATC 176] , SCC p. 236, para 12)
“12. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself.”
37. We are of the considered opinion that the aforesaid observations are fully applicable in the facts and circumstances of this case. Non-disclosure of documents having a potential to cause prejudice to a government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant.
38. The aforesaid proposition of law has been reiterated in Tirlok Nath v. Union of India [1967 SLR 759 (SC)] wherein it was held that non-supply of the documents amounted to denial of reasonable opportunity. It was held as follows: (SLR pp. 764-65)
“… Had he decided to do so, the documents would have been useful to the appellant for cross-examining the witnesses who deposed against him. Again had the copies of the documents been furnished to the appellant he might, after perusing them, would have exercised his right under the rule and asked for an oral inquiry to be held. Therefore, in our view the failure of the inquiry officer to furnish the appellant with copies of the documents such as the first information report and the statements recorded at the Shidipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the inquiry.”
39. The proposition of law that a government employee facing a departmental enquiry is entitled to all the relevant statements, documents and other materials to enable him to have a reasonable opportunity to defend himself in the departmental enquiry against the charges is too well established to need any further reiteration. Nevertheless given the facts of this case we may re-emphasise the law as stated by this Court in State of Punjab v. Bhagat Ram [(1975) 1 SCC 155 : 1975 SCC (L&S) 18] : (SCC p. 156, paras 6-8)
“6. The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.
7. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the government servant. Unless the statements are given to the government servant he will not be able to have an effective and useful cross-examination.
8. It is unjust and unfair to deny the government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the government servant. A synopsis does not satisfy the requirements of giving the government servant a reasonable opportunity of showing cause against the action proposed to be taken.”
40. We may also notice here that the counsel for the appellant sought to argue that the respondent had even failed to give a reply to the show-cause notice issued under Rule 9. The removal order, according to him, was therefore justified. We are unable to accept the aforesaid submission. The first enquiry report dated 3-8-2001, is clearly vitiated, for the reasons stated earlier. The second enquiry report cannot legally be termed as an enquiry report as it is a reiteration of the earlier enquiry report. Asking the respondent to give reply to the enquiry report without supply of the documents is to add insult to injury.
41. In our opinion the appellants have deliberately misconstrued the directions issued by the High Court in Writ Petition No. 937 of 2003. In terms of the aforesaid order the respondent was required to submit a reply to the charge-sheet upon supply of the necessary document by the appellant. It is for this reason that the High Court subsequently while passing an interim order on 7-6-2004 in Writ Petition No. 793 of 2004 directed the appellant to ensure compliance of the order passed by the Division Bench on 23-7-2003. In our opinion the actions of the inquiry officers in preparing the reports ex parte without supplying the relevant documents has resulted in miscarriage of justice to the respondent. The conclusion is irresistible that the respondent has been denied a reasonable opportunity to defend himself in the enquiry proceedings.
42. In our opinion, the appellants have miserably failed to give any reasonable explanation as to why the documents have not been supplied to the respondent. The Division Bench of the High Court, therefore, very appropriately set aside the order of removal.
43. Taking into consideration the facts and circumstances of this case we have no hesitation in coming to the conclusion that the respondent had been denied a reasonable opportunity to defend himself in the inquiry. We, therefore, have no reason to interfere with the judgment of the High Court.
(xiv) Roop Singh Negi:-
14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
Judgements relied upon by learned counsel for the respondent-Bank:
(i) Tara Chand Vyas :-
3. Shri B.D. Sharma, learned counsel for the petitioner, contends that for proof of the charges none of the witnesses was examined nor any opportunity was given to cross-examine them and the petitioner has disputed his liability. As a consequence, the entire enquiry was vitiated by manifest error apparent on the face of the record. We find no force in the contention. The thrust of the imputation of charges was that he had not discharged his duty as a responsible officer to safeguard the interest of the Bank by securing adequate security before the grant of the loans to the dealers, and had not ensured supply of goods to the loanees. It is based upon the documentary evidence which has already been part of the record and copies thereof had been supplied to the petitioner. Under those circumstances, we do not think that there is any manifest error apparent on the face of the record warranting interference. It is then contended that no reasons have been given in support of the conclusions to substantiate the charges. The enquiry officer had elaborately discussed each charge and given reasons which were considered by the disciplinary authority and reached the conclusion that the charges were proved. So had the appellate authority. They are not like a civil court.
(ii) L.K. Verma (supra):-
The Labour Commissioner, in our considered opinion, misdirected himself in passing the said order. Whereas, on the one hand, he noticed that the Appellant, herein had stated that during the preliminary enquiry he made those utterances owing to tension in his mind, he opined that no evidence had been produced against him for which he has been dismissed from service. It is now well-settled that things admitted need not be proved. [See Vice-Chairman, Kendriya Vidyalaya Sangathan and Another v. Girdharilal Yadav, (2004) 6 SCC 325] Once the Appellant accepted that he made utterances which admittedly lack civility and he also threatened a superior officer, it was for him to show that he later on felt remorse therefor. If he was under tension, he, at a later stage, could have at least tendered an apology. He did not do so. Furthermore, before the Enquiry Officer, the witnesses were examined for proving the said charges. The officer concerned, namely, Shri Sinha had also submitted a report mentioning the incident of misbehaviour of the Appellant on 18.5.1996. The Enquiry Officer came to the conclusion that both the Management and the witnesses corroborated each other's statements and although they had been cross-examined thoroughly, no contradiction was found in their statements in regard to the said charge.
(iii) Vice-Chairman, Kendriya Vidyalaya Sangathan:-
11. The admitted facts ................. appointing authority but also by the Appellate Authority. In terms of Section 58 of the Evidence Act, 1872 facts admitted need not be proved. It is also a well-settled principle of law that the principles of natural justice should not be stretched too far and the same cannot be put in a straitjacket formula. In Bar Council of India v. High Court of Kerala [(2004) 6 SCC 311] this Court has noticed that: (SCC p. 324, paras 49-50)
“ ‘24. The principles of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the facts and circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in Sohan Lal Gupta v. Asha Devi Gupta [(2003) 7 SCC 492] of which two of us (V.N. Khare, C.J. and Sinha, J.) are parties wherein upon noticing a large number of decisions it was held: (SCC p. 506, para 29)
“29. The principles of natural justice, it is trite, cannot be put in a straitjacket formula. In a given case the party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby.”
25. The principles of natural justice, it is well settled, must not be stretched too far.’
(See also Mardia Chemicals Ltd. v. Union of India [(2004) 4 SCC 311 : (2004) 4 Scale 338] and Canara Bank v. Debasis Das [(2003) 4 SCC 557 : 2003 SCC (L&S) 507] .)
In Union of India v. Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672] whereupon reliance has been placed by Mr Reddy, this Court held: (SCC p. 477, para 97)
‘97. Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible. These rules can be adapted and modified by statutes and statutory rules and also by the constitution of the Tribunal which has to decide a particular matter and the rules by which such Tribunal is governed.’ ”
(iv) SBI v. Narendra Kumar Pandey:-
20. We are of the view that the High Court has committed an error in holding that the charge-sheet should have mentioned about the details of the documents and the names of the witnesses which the Bank proposed to examine and a list to that effect should have been appended to the charge-sheet. We may point out that the charge-sheet need not contain the details of the documents or the names of the witnesses proposed to be examined to prove the charges or a list to that effect unless there is a specific provision to that effect. Charge-sheet, in other words, is not expected to be a record of evidence. Fair procedure does not mean giving of copies of the documents or list of witnesses along with the charge-sheet. Of course, statement of allegations has to accompany the charge-sheet, when required by the Service Rules.
22. We are of the view that the High Court also committed an error in holding that since no witness was examined in support of the charges, it was a case of no evidence. In an ex parte inquiry, in our view, if the charges are borne out from the documents kept in the normal course of business, no oral evidence is necessary to prove those charges. When the charged officer does not attend the inquiry, then he cannot contend that the inquiring authority should not have relied upon the documents which were not made available or disclosed to him. Of course, even in an ex parte inquiry, some evidence is necessary to establish the charges, especially when the charged officer denies the charges, uncontroverted documentary evidence in such situation is sufficient to prove the charges.
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-accepted 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 SBI v. Ramesh Dinkar Punde [(2006) 7 SCC 212 : 2006 SCC (L&S) 1573] this Court held that the High Court cannot reappreciate 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.
27. This Court in Lakshmi Devi Sugar Mills Ltd. v. Ram Sarup [AIR 1957 SC 82] held that where a workman intentionally refuses to participate in the inquiry, he cannot complain that the dismissal is against the principles of natural justice. Once the inquiry proceeds ex parte, it is not necessary for the inquiring authority to again ask the charged officer to state his defence orally or in writing. We cannot appreciate the conduct of the charged officer in the instant case, who did not appear before the inquiring authority and offered any explanation to the charges levelled against him but approached the High Court stating that the principles of natural justice had been violated.
(v) State Bank of India:-
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 : 1996 SCC (L&S) 1194] , it is no defence available to say that there was no loss or profit which resulted in the case, when the officer/employee acted without authority. The very discipline of an organisation 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.
(vi) Disciplinary Authority-cum-Regional Manager:-
7. It may be mentioned that in the memorandum of charges, the aforesaid two regulations are said to have been violated by the respondent. Regulation 3 requires every officer/employee of the bank 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. It requires the officer/employee to maintain good conduct and discipline and to act to the best of his judgment in performance of his official duties or in exercise of the powers conferred upon him. Breach of Regulation 3 is ‘misconduct’ within the meaning of Regulation 24. The findings of the Inquiry Officer which have been accepted by the disciplinary authority, and which have not been disturbed by the High Court, clearly show that in a number of instances the respondent allowed overdrafts or passed cheques involving substantial amounts beyond his authority. True, it is that in some cases, no loss has resulted from such acts. It is also true that in some other instances such acts have yielded profit to the Bank but it is equally true that in some other instances, the funds of the Bank have been placed in jeopardy; the advances have become sticky and irrecoverable. It is not a single act; it is a course of action spreading over a sufficiently long period and involving a large number of transactions. In the case of a bank — for that matter, in the case of any other organisation — every officer/employee is supposed to act within the limits of his authority. If each officer/employee is allowed to act beyond his authority, the discipline of the organisation/bank will disappear; the functioning of the bank would become chaotic and unmanageable. Each officer of the bank cannot be allowed to carve out his own little empire wherein he dispenses favours and largesse. No organisation, more particularly, a bank can function properly and effectively if its officers and employees do not observe the prescribed norms and discipline. Such indiscipline cannot be condoned on the specious ground that it was not actuated by ulterior motives or by extraneous considerations. The very act of acting beyond authority — that too a course of conduct spread over a sufficiently long period and involving innumerable instances — is by itself a misconduct. Such acts, if permitted, may bring in profit in some cases but they may also lead to huge losses. Such adventures are not given to the employees of banks which deal with public funds. If what we hear about the reasons for the collapse of Barings Bank is true, it is attributable to the acts of one of its employees, Nick Leeson, a minor officer stationed at Singapore, who was allowed by his superiors to act far beyond his authority. As mentioned hereinbefore, the very discipline of an organisation and more particularly, a bank is dependent upon each of its employees and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and a breach of Regulation 3. It constitutes misconduct within the meaning of Regulation 24. No further proof of loss is really necessary though as a matter of fact, in this case there are findings that several advances and overdrawals allowed by the respondent beyond his authority have become sticky and irrecoverable. Just because, similar acts have fetched some profit — huge profit, as the High Court characterises it — they are no less blameworthy. It is wrong to characterise them as errors of judgment. It is not suggested that the respondent being a Class I Officer was not aware of the limits of his authority or of his powers. Indeed, Charge 9, which has been held established in full is to the effect that in spite of instructions by the Regional Office to stop such practice, the respondent continued to indulge in such acts. The Inquiry Officer has recorded a clear finding that the respondent did flout the said instructions and has thereby committed an act of disobedience of lawful orders. Similarly, Charge 8, which has also been established in full is to the effect that in spite of reminders, the respondent did not submit “Control Returns” to the Regional Office. We fail to understand how could all this be characterised as errors of judgment and not as misconduct as defined by the Regulations. We are of the opinion that the High Court has committed a clear error in holding that the aforesaid conduct of the respondent does not amount to misconduct or that it does not constitute violation of Regulations 3 and 24.
8. We must mention that Shri V.A. Mohta, the learned counsel for the respondent, stated fairly before us that it is not possible for him to sustain the reasoning and approach of the High Court in this case. His only submission was that having regard to the age of the respondent (37 years) and the facts and circumstances of the case, this Court may substitute the punishment awarded to the respondent by a lesser punishment. The learned counsel suggested that any punishment other than dismissal may be imposed by this Court. We considered this request with the care it deserves, but we regret that we are unable to accede to it. The learned counsel for the Bank, Shri V.R. Reddy, Additional Solicitor General, also stated, on instructions of the Bank, that it is not possible for the Bank to accommodate the respondent in its service in view of his conduct.
(vii) A.P.S.R.T.C. (supra):-
15. We have carefully considered the rival submissions and perused the orders passed by the Labour Court and of the High Court and other annexures. In our opinion, the High Court has failed to appreciate that the delinquent employee categorically admitted that he had stolen the property of the Corporation. The Labour Court, on a careful perusal of the evidence, rightly ordered removal of the respondent from service. When the delinquent employee admitted his guilt before the enquiry officer that he had handed over the alternator from pan shop to the police authorities and further deposed that he had handed over the stolen property and requested the Labour Court to excuse him since it was his first offence, the Tribunal rightly set aside the request by taking into consideration the entire factual circumstances on record and after careful examination of the same and held that the delinquent employee does not deserve any sympathy and therefore he ordered removal from service.
17. Likewise, the learned Judges of the Division Bench also failed to appreciate that once the Labour Court in its award held removal from service by taking into consideration the entire facts and circumstances of the case, it does not deserve interference and that the High Court in its extraordinary jurisdiction under Article 226 of the Constitution could not have interfered with the said orders of the removal.
18. The enquiry reports also clearly reveal that the departmental enquiry was conducted after giving fair and reasonable opportunity to the delinquent official, after following the procedure and as per the Regulations.
19. The learned Single Judge considered the past conduct of the delinquent employee as one of the grounds in taking a lenient view. In our view, past conduct of workman is not relevant in departmental proceedings. Likewise, the learned Single Judge has erred in holding that the workman did not involve in any misconduct of theft during his past services and on that ground, granted reinstatement with continuity of service.
20. The learned Judges of the High Court have also failed to appreciate that once an employee has lost the confidence of the employer, it would not be safe and in the interest of the Corporation to continue the employee in the service. The punishment, imposed by the management in the facts and circumstances of the case, is not disproportionate and that the punishment of removal from service is just and reasonable and proportionate to the proved misconduct.
21. In our view, the theft committed by the respondent amounts to misconduct and, therefore, we have no hesitation to set aside the orders passed by the learned Single Judge and also of the Division Bench and restore the order of removal of the respondent from service. When the Labour Court has proved the charges, no interference by the learned Single Judge or by the Division Bench of the High Court was called for. In the instant case, the jurisdiction vested with the Labour Court has been exercised judiciously and fairly. In our opinion, the conclusion arrived at by the High Court in ordering reinstatement, continuity of service was shockingly disproportionate to the nature of charges already proved which is in the nature of theft.
22. It is also not open to the tribunal and courts to substitute their subjective opinion in place of the one arrived at the domestic tribunal. In the instant case, the opinion arrived at by the Corporation was rightly accepted by the Tribunal but not by the Court. We, therefore, hold that the order of reinstatement passed by the Single Judge and the Division Bench of the High Court is contrary to the law on the basis of a catena of decisions of this Court. In such cases, there is no place for generosity or sympathy on the part of the judicial forums for interfering with the quantum of punishment of removal which cannot be justified. Similarly, the High Court can modify the punishment in exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved.
23. Interfering therefore with the quantum of punishment of the respondent herein, is not called for. In our opinion, the respondent has no legal right to continue in the Corporation. As held by this Court, in a catena of judgments that the loss of confidence occupies the primary factor and not the amount of money and that sympathy and generosity cannot be a factor which is permissible in law in such matters. When the employee is found guilty of theft, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of removal. In such cases, there is no place of generosity or place of sympathy on the part of the judicial forums and interfering with the quantum of the punishment.
(viii)T.N.C.S. Corpn. Ltd. (supra):-
28. The other contentions made by Mr Francis are in respect of procedural irregularity which, according to him, cannot be termed to be negligence on the part of the respondent. We have already held that both the disciplinary authority and the Appellate Authority have given ample reasons for arriving at their conclusions. This Court has held in a catena of decisions that interference is not permissible unless the orders passed by the quasi-judicial authorities are clearly unreasonable or perverse or manifestly illegal or grossly unjust.
29. Mr Francis also submitted that a sum of Rs 34,436.85 being 5% of the total loss of Rs 6,88,737.12 is sought to be recovered from the respondent and that the present departmental proceedings is the only known allegation against the respondent and there was no such allegation earlier and, therefore, a lenient view should be taken by this Court and relief prayed for by both the parties can be suitably moulded by this Court. We are unable to agree with the above submission which, in our opinion, has no force. The scope of judicial review is very limited. Sympathy or generosity as a factor is impermissible. In our view, loss of confidence is the primary factor and not the amount of money misappropriated. In the instant case, the respondent employee is found guilty of misappropriating the Corporation funds. There is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefor with the quantum of punishment awarded by the disciplinary and Appellate Authority.
35. In the instant case, the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning and, therefore, in our opinion, the matter should be dealt with firmly with firm hands and not leniently. In the instant case, the respondent deals with public money and is engaged in financial transactions or acts in a fiduciary capacity and, therefore, highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, the conclusion of the learned Single Judge as affirmed by the Division Bench of the High Court do not appear to be proper. We have no hesitation to set aside the same and restore the order passed by the disciplinary authorities upholding the order of dismissal.
(ix) A. Sudhakar:-
27. Contention of Dr. Pillai relating to the quantum of punishment cannot be accepted, having regard to the fact that temporary defalcation of any amount itself was sufficient for the disciplinary authority to impose the punishment of compulsory retirement upon the appellant and in that view of the matter, the question that the third charge had been partially proved takes a back seat.
28. In Hombe Gowda Educational Trust v. State of Karnataka [(2006) 1 SCC 430 : 2006 SCC (L&S) 133] this Bench opined: (SCC pp. 436-37, paras 17-20)
“17. The Tribunal's jurisdiction is akin to one under Section 11-A of the Industrial Disputes Act. While exercising such discretionary jurisdiction, no doubt it is open to the Tribunal to substitute one punishment by another; but it is also trite that the Tribunal exercises a limited jurisdiction in this behalf. The jurisdiction to interfere with the quantum of punishment could be exercised only when, inter alia, it is found to be grossly disproportionate.
18. This Court repeatedly has laid down the law that such interference at the hands of the Tribunal should be inter alia on arriving at a finding that no reasonable person could inflict such punishment. The Tribunal may furthermore exercise its jurisdiction when relevant facts are not taken into consideration by the management which would have direct bearing on the question of quantum of punishment.
19. Assaulting a superior at a workplace amounts to an act of gross indiscipline. The respondent is a teacher. Even under grave provocation a teacher is not expected to abuse the head of the institution in a filthy language and assault him with a chappal. Punishment of dismissal from services, therefore, cannot be said to be wholly disproportionate so as to shock one's conscience.
20. A person, when dismissed from service, is put to a great hardship but that would not mean that a grave misconduct should go unpunished. Although the doctrine of proportionality may be applicable in such matters, but a punishment of dismissal from service for such a misconduct cannot be said to be unheard of. Maintenance of discipline of an institution is equally important. Keeping the aforementioned principles in view, we may hereinafter notice a few recent decisions of this Court.”
(See also State of U.P. v. Sheo Shanker Lal Srivastava [(2006) 3 SCC 276 : JT (2006) 3 SC 48] , Workmen v. Bhurkunda Colliery of Central Coalfields Ltd. [(2006) 3 SCC 297 : JT (2006) 2 SC 1] , Syndicate Bank v. Venkatesh Gururao Kurati [(2006) 3 SCC 150 : JT (2006) 2 SC 73] , L.K. Verma v. H.M.T. Ltd. [(2006) 2 SCC 269 : 2006 SCC (L&S) 278 : JT (2006) 2 SC 99] and Commr. of Police v. Syed Hussain [(2006) 3 SCC 173 : JT (2006) 2 SC 332] .)
(x) Dy. Registrar, Coop. Societies :-
2. Briefly stated, the facts of the case are as follows:
The respondent was appointed as a Cooperative Supervisor in the Uttar Pradesh Cooperative Federal Authority. He was placed under suspension in contemplation of departmental proceedings initiated against him under Section 68 of the Uttar Pradesh Cooperative Societies Act (hereinafter referred to as “the Act”). After the inquiry officer submitted his report, a resolution was passed on 21-12-1993, to dispense with the services of the respondent and to recover the amount from him under Section 68 of the Act. Thereafter, by the impugned order dated 20-1-1994, his services were terminated, preceded by a notice on the proposed punishment. Aggrieved thereby, the respondent filed a writ petition in the High Court of Judicature at Allahabad. The learned Single Judge, after threadbare consideration of the submissions made by the respondent, dismissed the writ petition. We may mention here that the only contention raised in the writ petition was the violation of principles of natural justice inasmuch as no notice was purported to have been given to him affording an opportunity to explain his case. This contention was repelled by the learned Single Judge that sufficient notices were sent to him by registered post by the appellant but he failed to appear before the disciplinary authority. The learned Single Judge also noticed that on 10-7-1993 the respondent did not appear. Notices were also published in Dainik Jagran newspaper on 2-10-1993, 9-10-1993 and 28-11-1993. The respondent also moved as many as three applications on 13-7-1993, 2-10-1993 and 28-11-1993. From the finding recorded by the learned Single Judge, it appears that sufficient opportunity has been afforded to the respondent. Having failed to avail the opportunity, the respondent now is not permitted to turn back to say that no opportunity has been afforded to him.
3. The Division Bench of the High Court upset the order passed by the learned Single Judge mainly on two grounds. Firstly, no notice of proposed punishment has been given to the respondent. This finding is demolished by notice dated 13-7-1993. From the aforesaid notice, it is clear that the respondent was put to notice as to why he should not be dismissed from service. It appears that the respondent did not give a reply to the aforesaid notice. Therefore, the first ground on which the Division Bench upset the order of the learned Single Judge is erroneous. The second ground on which the Division Bench upset the order of the learned Single Judge is that, under Section 68 of the Act, there is no provision to order dismissal or removal of the respondent. While it is true that under Section 68 of the Act, there is no such provision but the learned counsel appearing for the appellant contended that, in fact, the order of dismissal was passed under Regulation 68 and not under Section 68 of the Act. The learned counsel has also taken us to the provisions of Regulation 68 of the Cooperative Federal Authority (Business) Regulations, 1976. A reading of Regulation 68, which is annexed to the additional affidavit filed by the appellant, would clearly show that it empowers the authority to impose major punishment like dismissal, removal or reduction in rank. It appears from the facts and circumstances of this case that the authority was confused between Section 68 of the Act and Regulation 68. Be that as it may, a reading of the notice on proposed punishment dated 13-7-1993 clearly shows that the proposed punishment on the respondent appears to have been passed under Regulation 68 and not under Section 68 of the Act, although the impugned order mentions Section 68 of the Act.
(xi) State of U.P:-
4. On a consideration of the entire materials placed before the authorities, they came to the conclusion that the order of dismissal would meet the ends of justice. When a writ petition was filed challenging the correctness of the order of dismissal, the High Court interfered with the order of dismissal on the ground that the acts complained of were sheer mistakes or errors on the part of the respondent herein and for that no punishment could be attributed to the respondent. In our opinion, the order passed by the High Court quashing the order of dismissal is nothing but an error of judgment. In our opinion, the High Court was not justified in allowing the writ petition and quashing the order of dismissal and granting continuity of service with all pecuniary and consequential service benefits. It is a settled law that the High Court has limited scope of interference in the administrative action of the State in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India and, therefore, the findings recorded by the enquiry officer and the consequent order of punishment of dismissal from service should not be disturbed. As already noticed, the charges are very serious in nature and the same have been proved beyond any doubt. We have also carefully gone through the enquiry report and the order of the disciplinary authority and of the Tribunal and we are unable to agree with the reasons given by the High Court in modifying the punishment imposed by the disciplinary authority. In short, the judgment of the High Court is nothing but perverse. We, therefore, have no other option except to set aside the order passed by the High Court and restore the order passed by the disciplinary authority ordering dismissal of the respondent herein from service. It is ordered accordingly. The civil appeal stands allowed.
(xii) V. Ramana (supra):-
4. In support of the appeal learned counsel for the appellant submitted that the High Court should have considered the question of quantum of punishment by applying the principles of Section 11-A of the Industrial Disputes Act, 1947 (in short “the Act”). It was further submitted there were minor lapses and smallness of the amount has not been considered in the proper perspective and order of termination of service should not have been passed. Learned counsel for the respondent Corporation supported the order of the Tribunal and judgment of the High Court. In Karnataka SRTC v. B.S. Hullikatti [(2001) 2 SCC 574 : 2001 SCC (L&S) 469 : JT (2001) 2 SC 72] , it was held that misconduct in such cases where the bus conductor either had not issued tickets to a large number of passengers or had issued tickets of lower denomination, punishment of removal is proper. It is the responsibility of the conductors to collect correct fare charges from the passengers and deposit the same with the Corporation. They act in fiduciary capacity and it would be a case of gross misconduct if they do not collect any fare or the correct amount of fare. A conductor holds a post of trust. A person guilty of breach of trust should be imposed punishment of removal from service. The factual position shows that the appellant's conduct in collecting fare at the designated place and not collecting fare from persons who had already travelled were in violation of various regulations contained in the Andhra Pradesh State Road Transport Corporation Employees (Conduct) Regulations, 1963 (in short “the Regulations”). In Karnataka State Road Transport case [(2001) 2 SCC 574 : 2001 SCC (L&S) 469 : JT (2001) 2 SC 72] it was held that it is misplaced sympathy by courts in awarding lesser punishments where on checking it is found that the bus conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It was finally held that the order of dismissal should not have been set aside. The view was reiterated by a three-Judge Bench in Regional Manager, RSRTC v. Ghanshyam Sharma [(2002) 10 SCC 330 : 2003 SCC (L&S) 714 : (2002) 1 LLJ 234] , where it was additionally observed that the proved acts amount either to a case of dishonesty or of gross negligence, and bus conductors who by their actions or inactions cause financial loss to the Corporation are not fit to be retained in service.
6. The scope of interference with quantum of punishment has been the subject-matter of various decisions of this Court. Such interference cannot be a routine matter.
11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
12. To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.
(xiii) Ganesh Santa Ram Sirur:-
14. In regard to the second contention that the consideration of the charge which had not been proved by the appellate authority, Mr Ramamoorthy submitted that the appellate authority had considered the charges which were not proved while enhancing the punishment. According to Mr Ramamoorthy, the appellate authority was merely concerned with Charge 5 regarding disbursement of loan to the wife of the appellant in violation of Rule 34(3)(1) of the Service Rules and that the order of the appellate authority does not in any manner disclose that the same was passed by considering the circumstances germane to the charge against the appellant which had been proved. Even accepting the contention of Mr Ramamoorthy on Charge 1, the appellant cannot come out of Charge 5, which is more serious and grave in nature. However, we observe that the observations made by the appellate authority on Charge 1 while considering Charge 5, should be treated only as a passing observation and at the same time we cannot ignore or close our eyes in regard to the finding of the appellate authority on Charge 5 which is more serious and grave in nature. The appellate authority had enhanced the punishment imposed by following the procedure laid down in the Service Rules and we see no reason to interfere with the same. As already noticed, the appellant had himself admitted his misconduct and therefore, there is no reason why the appellate authority's finding on Charge 5 should not be accepted.
16. It is true that the appellate authority has proposed to enhance the punishment and imposed the penalty of dismissal on the appellant. However, the appellate authority was convinced with regard to the explanation submitted by the appellant and reduced the penalty further considering the adverse family circumstances, which could be seen from the following observation in the appellate order:
“I, therefore, direct that the earlier penalty of reduction in basic pay by one stage imposed on him by the appointing authority be enhanced to removal from service in terms of Rule 67(g) of the State Bank of India Officers Service Rules. The tentative decision taken while serving the show-cause notice was to dismiss Shri Sirur from service. Although, considering the acts of misdemeanour of the appellant, this was the appropriate penalty, I have taken a lenient view of the matter because of his adverse family circumstances. Removal from service would enable him to draw higher terminal benefits as compared to dismissal. The removal will take effect from the date of communication of this order and the intervening period will be treated as under suspension. I order accordingly.”
31. Mr Salve invited our attention to para 17 of the judgment in State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364 : 1996 SCC (L&S) 717] which deals with the opinion of the House of Lords in the United Kingdom. He also drew our attention to S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] and Managing Director, ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] in SCC paras 25, 26 and 28. The decisions relied on and cited above make one thing clear, namely, principles of natural justice cannot be reduced to any hard-and-fast formulae and as said in Russell v. Duke of Norfolk [(1949) 1 All ER 109 (CA)] , these principles cannot be put in a straitjacket. Their applicability depends upon the context and the facts and circumstances of each case. The objective is to ensure a fair hearing, a fair deal to a person whose rights are going to be affected. In our opinion, the approach and test adopted in Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] should govern all cases where the complaint is not that there was no hearing, no notice, no opportunity and no hearing but one of not affording a proper hearing that is adequate or a full hearing or violation of a procedural rule or requirement governing the enquiry.
34. The bank manager/officer and employees of 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 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 did not appear to have kept this aspect in mind and acted illegally and sanctioned the loan. He realised 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 decision. 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 v. Hoti Lal [(2003) 3 SCC 605 : 2003 SCC (L&S) 363] wherein this Court has held as under: (SCC p. 614, para 10)
“If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper 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.”
36. We have, therefore, no hesitation in dismissing the appeal filed by the appellant and confirming the order passed by the Division Bench of the High Court. However, we make it clear that in the peculiar facts and circumstances of the case the appellant will be entitled to full pension and gratuity irrespective of his total period of service. No costs.
(xiv) Government of A.P. (supra):-
8. At this stage, we may point out that there is no allegation of violation of principles of natural justice, or that the inquiry was conducted without following the procedures or rules and regulations. The only case put up before us by the respondent is that the theft or removal of lens by the respondent was not proved in the course of inquiry. This contention need not detain us any longer because going through the report of the inquiry, the inquiry officer, after examining PWs 1, 2, 3 and 4 and after affording adequate opportunity to the respondent, has come to the conclusion that the charge levelled against the respondent stands proved.
11. By now it is a well-established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an appellate authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an appellate authority.
15. This takes us to the last submission of the counsel for the respondent. Learned counsel for the respondent contended that the offence, said to have been committed, being minor in nature and no loss being caused to the owner of the property, inasmuch as the same had been recovered on the spot, lenient punishment may be awarded in place of dismissal from service. We are unable to countenance this submission. The gravity of the offence must necessarily be measured with the nature of the offence. The respondent was a member of a disciplined force holding the rank of Head Constable. The duty assigned to him was a “bandobast” duty during the visit of the then President Bill Clinton, who ran a security risk of the highest grade. His misconduct could have led to serious security lapse resulting in fatal consequences. But, because of timely detection by the electrician, PW 4, the lens was recovered and immediately restored. We entirely agree with the inquiry officer that the charges are serious in nature, being committed by a member of a disciplined force, who deserved stringent punishment. To instil the confidence of the public in the establishment, the only appropriate punishment in such cases is dismissal from service, which has been correctly awarded.
16. It is stated that the respondent was reinstated on 19-6-2004, pursuant to the order passed by the High Court and has been working since then and pay and allowances have been paid from 19-6-2004. Since he has been paid for the period he has worked, the salary and allowances already paid to him shall not be disturbed. The respondent, however, shall not get his back wages.
17. In the premises aforestated, we are clearly of the view that the High Court has committed patent error of law which has resulted in miscarriage of justice. The order of the High Court is, accordingly, quashed. The appeal is allowed. Consequently, the writ petition filed by the respondent stands dismissed. Parties are asked to bear their own costs.”
28. Perusal of the above-extracted judgments relied upon by learned counsel for the petitioner indicates that reasonable opportunity contemplated by Article 311(2) means “hearing” in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent who should thereafter be given an opportunity to cross examine the witneses. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. When a departmental enquiry is conducted against the delinquent it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rule of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a delinquent is treated fairly in proceeding which may culminate in imposition of punishment including dismissal/ removal from service.
In a case where the proceedings are completed and the order of dismissal is successfully challenged on the ground of non-payment of subsistence allowance for the period of suspension during the pendency of the application it shall be open to the Management to ask for the permission of the authority again after paying or offering to pay to the workman concerned within a reasonable time to be fixed by the authority concerned the arrears of substance allowance.
29. It also indicates from bare perusal of the judgment relied upon by learned counsel for the petitioner that when a delinquent is facing a disciplinary proceeding, he is entitled to be afforded a resaonble opportunity to meet the charges against him in an effective manner. And no one facing departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In absence of such copies, how can the employee concerned prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegation are incredible?
30. Perusal of the above-extracted judgments relied upon by learned counsel for the respondent-Bank indicates that principle of natural justice should not be stretched too far and the same cannot be put in a straitjacket formula. If a party having proper notice chose not to appear, he at later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. In an ex parte inquiry, if the charges are borne out from the documents kept in normal course of business, no oral evidence is necessary to prove those charges. When the charged officer does not attend the inquiry, then he cannot contend that the inquiry authority should not have relied upon the doucments which were not made available or disclosed to him.
It also reveals that every officer/ employee of the bank to take all possible steps to protect the interest of the bank and to discharge his duties with utmost integrity, honesty, devotion and deligence and to do nothing which is unbecoming of a bank officer. It requires the officer/ employee to maintain good conduct and discipline and to act to the best of his judgment in performance of his official duties or in exercise of the power conferred upon him. If each officer/ employee is allowed to act beyond his authority, the discipline of the organization/ bank will disappear, the function of the bank would become chaotic and unmanageable. Eacher officer of the bank cannot would be allowed to carve out his own little empire wherein he dispense favours and largesse.
31. It also reveals from perusal of the judgment relied upon bylearned counsel for the respondent-Bank that if the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper 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 unexceptional.
32. Perusal of the material on record shows that the petitioner was employed as a Clerk. Vide order dated 2.3.1995, the petitioner was put under suspension. On 18.5.1995, the opposite party no.2 issued a memo to the petitioner in respect of seven lapses allegedly committed by the petitioner, to which the petitioner submitted his reply on 8.6.1995. On 3.7.1995, the petiitoner was served with a charge-sheet for having committed certain alleged acts of misconduct. The enquiry commenced on 18.7.1995 and concluded on 18.9.1996.
On 30.12.1996, the petitioner received a memo dated 28.12.1996 issued by the opposite party no.2 stating that the enquiry officer had given an ex parte report dated 17.12.1996 as the petitioner failed to submit his written arguments upto 17.12.1996. The Disciplinary authority vide the memo dated 28.12.1996 directed the petitioner to submit his exaplanation to the findings dated 17.12.1996 and 21.12.1996, to which vide letters dated 6.1.1997 and 13.1.1997 the petitioner submitted his explanations specifically complaining that the enquiry officer had submitted his report without considering the written argument of the petitioner. On 24/25.2.1997, the opposite party no.2 issued proposed consolidated punishment of removal from services under paragraph 19.6(b) of the bipartite settlement and explanation was recalled from the petitioner requiring him to show cause why the proposed punishment be not made final, to which on 27.3.1997 and 21.4.1997. Vide order dated 26.5.1997, the punishment of removal from services was confirmed by the opposite party no.2. Thereafter, the petitioner preferred an apapeal on 26.6.1997 which was dismissed vide order dated 23.12.1997.
33. I have carefully examined the material on record in the light of the law-reports cited by learned counsel for the parties.
34. On examination, it is found that the petitioner was served with a chargesheet for having committed certain acts of misconduct on 3.7.1995 and the same did not contain list of documents/witnesses and copies which itself is also in violation of Circular dated 23.8.1984 issued by the Central Office of the Bank to all its Chief Managers, which is based on directions issued by the Government of India through the Central Vigilance Commission vide letter dated 3.7.1984. Primarily, three witnesses on behalf of the Management being the Branch Manager and two other employees (co-accused) were examined. The complainants on whose complaints the enquiry had been set up were not produced despite repeated requests made by the petitioner to produce them for verification of the complaint said to have been made by them and forming the basis of the enquiry against the petitioner. The said circular also indicates that failure to provide list of documents and the witnesses on the basis of which the charges are proposed to be sustained amounts to failure to give a reasonable opportunity to a charged officer to defend himself.
35. It is also found that the complainants denied making of any complaint dated 7.3.1995 whereon they have made an endorsement that they have no concern with the complaint and they are also not well versed with the language (English) in which the complaint/ letter dated 7.3.1995 had been made. The complaint has not been proved as the complaint was not examined and consequently the entire proceedings are vitiated on the basic premise that the foundation having been removed, the entire structure falls.
The Vigilance Officer submitted a report in which seven officers of the Bank had been implicated. The report had contained as an annexure a confessional statement of the petitioner given on 24.2.1995 more than two weeks before the alleged complaint had been made by complainants. Significantly, even the order of suspension had been passed on 2.3.1995 whereas the complaint on which the suspension is based was given on 7.3.1995. Neither the complaint nor the complainants were produced and while enquiry officer had placed reliance on the so-called confessional statement which was an annexure to the report submitted by the Vigilance Officer, the petitioner was not put to notice and the enquiry officer placed ex-parte reliance on the same even without proving the said statement.
In the written brief submitted on behalf of the petitioner, it has specifically been stated that no confessional statement had been given by the petitioner and that the said statement had been procured by the Vigilance Officer under threat and coercion. Neither the alleged confessional statement had been made part of show cause memo dated 18.5.1995 nor was it a part of the charge-sheet and was consequently beyond the domain of the enquiry. One Sri S.J. Mehrotra is alleged to have signed the said statement as a witness, but he was not produced in evidence, although categorically requested by the petitioner before the enquiry officer, recording that it was prerogative of the Management to produce any witness or not.
On 21.12.1996, the second enquiry report was submitted in which the enquiry officer has only relied upon the deposition of the Branch Manager who was a co-accused and the vigilance officer’s report and the alleged confession which were not enlisted in the list of documents. In the explanation before Disciplinary Authority, it has specifically been complained by the petitioner that the enquiry officer had submitted his report without considering the written arguments, to which the Disciplinary Authority had mechanically nodded.
36. It is also found that the petitioner was placed under suspension on 2.3.1995. As per the Bipartite settlement, the petitioner was entitled to the subsistence allowance @ full pay w.e.f. 2.3.1996. Since the petitioner was not paid the full subsistence allowance as per the Bipartite Settlement, therefore the enquiry held against him was vitiated.
37. It is well settled principle of law that a statement made outside the departmental enquiry cannot be placed reliance and any document relied upon has necessarily to be proved by the Enquiry Officer in accordance with law. In the present case, neither a copy of the alleged statement provided to the petitioner nor was it referred to in the charges or in the list of documents and was merely handed over to the enquiry officer by the Vigilance Officer. The denial by the petitioner specially pleaded in the written brief was not considered and the charge of confessional statement was dropped at the appellate and 2nd appellate stage concurrently.
38. Considering in totalities of facts and circumstances of the case, this Court is of the considered opinion that when an employee is facing disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner and no one facing a departmental enquiry can effectively meet the charges made available to him. In the absence of such copies, how can the employee concerned prepare his defence, cross-examination the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. It is also of view that failure of the inquiry officer to furnish the petitioner with list of documents must be held to have caused prejudiced to the petitioner in making his defence at the inquiry. The enquiry held against the petitioner was a mere eye wash and violative of principles of natural justice.
39. It is also of the opinion that when a departmental enquiry is conducted against the employee, it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natrual justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that the employee is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/ removal from service.
In a case where the proceedings are completed and the order of dismissal successfully challenged, it shall be open to the Management to ask for the permission of the authority again after paying or offering to pay to the worman concerned within a resaonable tim to be fixed by the authority concerned the arrears of subsistence allowance, but in the instant case nothing has been done for payment of subsistence allowance after expiry of one years. The judgments relied upon by learned counsel for the respondent-Bank are not squarely covered to the facts and circumstances of the case as the departmental enquiry has been conducted not in accordance Circular dated 23.8.1984 issued by the Central Office of the Bank to all its Chief Managers, which is based on directions issued by the Government of India through the Central Vigilance Commission vide letter dated 3.7.1984 and in violation of principles of natural justice.
40. In view of the above, this writ petition is allowed. Orders dated 26.5.1997 and 23.12.1997 passed by opposite party nos.2 and 1 respectively are quashed. The respondents are directed to reinstate the petitioner in service and pay him all the wages and allowance due to him.
