JUDGMENT Yatindra Singh, J.
1. The main questions involved in this writ petition are :
* Whether the charged officer is entitled to get the copy of the preliminary inquiry report and the correspondence in that regard or not.
* Whether the charged officer is entitled for personal hearing before the appellate authority or not.
* Whether the disciplinary/ appointing authority and the appellate authority are required to record detailed/ separate reasons, even if they agree with the findings of the inquiry report.
THE FACTS
2. The petitioner was employed with the State Bank of India (the Bank). At the relevant time, he was posted as the Branch Manager of Raja Ka Darwaja, Varanasi branch of the Bank (the concerned Branch). He was suspended on 8.11.1982 and was given a charge-sheet on 19.5.1983 levelling three charges (the first charge-sheet) (for the details of the charges see Endnote-1).
3. The inquiry in pursuance of the first charge-sheet was conducted by Sri N, N. Srivastava. No witness was examined in this inquiry. A report dated 26.4.1984 was prepared : charge No. 1 was not proved but remaining charges were proved. However, this report was not submitted. The petitioner was given a second charge-sheet on 5.11.1985 levelling two charges (the second charge-sheet) (for details of the charges see Endnote-2) and a third charge-sheet on 14.11.1985 levelling four charges (the third charge-sheet) (for details of the charges see Endnote-3).
4. The inquiry in the second and the third charge-sheet was conducted by a different officer. It was initially entrusted to Sri R. P. Bhatnagar. In this inquiry 27.7.1987 was fixed for production of the Bank's documents and witnesses. The petitioner filed an application for adjournment. This application was rejected on 27.7.1987. The Bank produced the documents. The statement of Sri S.K. Dhusiya, who had become the Branch Manager of the concerned Branch, was recorded on 28.7.1987. He is the only witness examined on behalf of the Bank in the enquiry.
5. The petitioner filed an application in May, 1988 to change the inquiry officer. It was allowed on 14.6.1988 and Sri R. P. Srivastava was appointed as inquiry officer. According to the Bank, Sri S.K. Dhusiya was produced for cross-examination and was cross-examined by the petitioner on 29.12.1988. This is disputed by the petitioner. According to him, he was forced to sign blank papers and thereafter the proceedings for 28th and 29th of December, 1988, were filled up. The inquiry was closed on 29.12.1988 and the parties were asked to submit their briefs. The presenting officer of the Bank submitted his brief on 7.1.1989. It was sent to the petitioner, who submitted his brief on 20.3.1989. The inquiry officer found all charges in the second and third charge-sheets to be proved. This report along with the report on the first charge-sheet was submitted on 12.4.1989.
6. The disciplinary authority agreed with the findings recorded by the inquiry officer and submitted his recommendation on 5.6.1989 to the appointing authority with recommendation that the petitioner be dismissed from service. The appointing authority by his order dated 20.7.1989 agreed with the disciplinary authority and dismissed the petitioner from service. The petitioner filed an appeal which was also dismissed on 13.5.1990. Hence the present writ petition.
POINTS FOR DETERMINATION
7. We have heard Sri R. N. Singh, senior advocate assisted by Sri G. K. Singh, counsel for the petitioner and Sri A. C. Tripathi, counsel for the Bank. Following points arise for determination in this case :
(i) Whether the impugned orders are bad due to bias.
(ii) Whether the petitioner was forced to sign the blank papers that were utilised to write proceeding for 28th and 29th of December, 1988.
(iii) Whether the petitioner has been permitted to inspect the documents.
(iv) The defence representative was not present on all days in the inquiry. Was reasonable opportunity afforded to the petitioner?
(v) Whether Sri S.K. Dhusiya ought to have been examined again after the inquiry officer was changed. Was he cross-examined by the petitioner?
(vi) Whether the inquiry is vitiated as :
(a) The documents demanded by the petitioner were not supplied to him.
(b) The photostat copies of the documents submitted by the petitioner along with his letter dated 27.1.1989 were not considered.
(c) Sri R.B. Prasad was not examined to deny the signatures on the photostat copies produced by the petitioner on 27.1.1989.
(vii) Whether the petitioner was entitled to personal hearing before the appellate authority.
(viii) Whether the impugned orders are bad on the ground that detailed/separate reasons are not recorded, or there is no application of mind.
(ix) Whether the punishment is disproportionate to the misconduct.
POINT NO. (I) : NOT VITIATED DUE TO BIAS
8. The counsel for the petitioner submitted that the impugned orders should be set aside due to bias of the following officers of the Bank.
(i) Sri R.P. Bhatnagar, the first inquiry officer in the second and the third charge-sheet.
(ii) Sri S.K. Srivastava, the inquiry officer who submitted the inquiry report on the second and the third charge-sheet.
(iii) Sri B. Rai, the disciplinary authority.
(iv) Sri B. D. Dixit the appointing authority.
(v) Sri R.B. Prasad, the controlling authority.
9. The petitioner has alleged mala fides against all officers who had any thing to do with the case except the inquiry officer who had conducted the inquiry in the first charge-sheet and the appellate authority.
10. It is relevant to note down that none of the persons against whom bias has been alleged are impleaded in their personal capacity. In their absence no allegation of bias can be entertained. Apart from this, there is no merit in the allegations.
11. At the time of submitting his brief, the petitioner did not take any plea of bias against the persons mentioned at serial numbers (i) to (iv) (paragraph 8 of this judgment). It may be said that there was no necessity to take plea of mala fides against persons at serial Nos. (iii) and (iv) as they had not taken any direct action by that time but he could have taken plea of bias against (i) and (ii) if there was any. However, he did not do so. The petitioner also did not take any specific plea of bias against them (persons mentioned at serial No. (i) to (iv) in paragraph 8 of this judgment) in the appeal. He is raising the plea of bias in the writ petition. It is a factual plea. It cannot be raised for the first time in the writ petition.
12. Sri R.B. Prasad was the regional manager and the controlling authority of the petitioner. He has not directly dealt with the inquiry or the impugned orders. The petitioner initially never made any complaint against him. It was only after he was suspended and charge-sheeted that he started making complaints against him. Sri R.B. Prasad retired in the year 1985. The fact that Sri R.B. Prasad retired in 1985 is not disputed : it is clear from the letter dated 20.12.1985 written by the petitioner to the Ministry of Finance and filed by the petitioner as Annexure-20 to the first supplementary-affidavit. The inquiry report on the second and third charge-sheet is dated 12.4.1989, Thereafter the impugned orders have been passed. They are much after the retirement of Sri R.B. Prasad. It is not clear as to how a retired person could influence the inquiry. There is also nothing to show that Sri R.B. Prasad influenced the inquiry or the impugned orders.
POINT NO. (II) : DID NOT SIGN THE BLANK PAPERS
13. The counsel for the petitioner submitted that :
* No reliance can be placed on the proceedings of 28th and 29th December, 1988 as no enquiry was conducted on that date.
* The petitioner was forced to sign on the blank papers and later on they were utilised to write the proceeding.
* The petitioner also reported this fact to the Superintendent of Police as well as to the higher Bank authorities.
14. The submission in the preceding paragraph has been disputed by the counsel for the Bank. According to him :
* The enquiry was held on those dates.
* The petitioner participated in the inquiry on those dates.
* He filed documents on 28.12.1988.
* He cross-examined Sri S.K. Dhusia on 29.12.1988.
15. The proceeding came to an end on 29th December, 1988 and the parties were asked to submit their briefs. The petitioner also submitted his brief on 20.3.1989. In this brief, he did not raise aforesaid plea. The petitioner has also filed an appeal. In this appeal also, he never took this ground. It is factual one. The petitioner is not entitled to take this plea for the first time in the writ petition.
16. Apart from above, this plea is unbelievable. The petitioner did file many documents on 28.12.1988. He has not denied that the documents were not filed by him. This shows that at least some proceeding was held on these dates. There is no reason as to why the inquiry officer would do it. We have already negated the plea of mala fides against the inquiry officer. In case the petitioner was not cooperating in the inquiry then he could have proceeded ex parts ; there was no necessity to force the petitioner to sign on the blank papers, POINT NO. (III) : THE PETITIONER INSPECTED THE DOCUMENTS
17. The petitioner along with his defence representative inspected some documents on 11th March, 1988. Thereafter he was given another date for inspection of documents. This inspection was to be done on 5th and 6th April, 1988. On both dates petitioner was present but he did not inspect the document as his defence representative was not present. The petitioner again inspected the documents on 27.10.1988. He also gave a certificate that he has inspected the documents. This fact is also indicated in the proceeding dated 28.12.1988. It is not denied that inspection certificate was not given. This shows that the petitioner inspected the documents.
POINT NO. (IV) : PROPER OPPORTUNITY GIVEN
18. The counsel for the petitioner submitted that :
* The petitioner was not given reasonable opportunity as his defence representative was not present on all dates in the inquiry.
* The inquiry officer did not inform the defence representative about the dates of the inquiry.
* The defence representative was not present for the reason that he was given other duties by the Bank.
19. The aforesaid plea was neither taken in the brief submitted by the petitioner nor in the appeal filed by him. He has mentioned in the appeal that the Defence representative was influenced. However, the plea that is being raised now was not raised. It is factual and cannot be raised for the first time in the writ petition. Apart from it, this contention has no merits.
20. There were two defence representatives : one in the inquiry relating to the first charge-sheet, and the second one in the inquiry relating to the second and the third charge-sheets. The first defence representative was present on all dates. The second defence representative was not present on some dates. The defence representative was of the choice of the petitioner. The petitioner knew about the dates and it was his duty to inform the defence representatives about the dates. There is nothing on record to show that the defence representative was given any other duty on those dates. There is also nothing on record to show that the defence representative asked for leave to attend the inquiry and it was denied. There is also nothing on the record to show that the petitioner ever informed the inquiry officer that the defence representative is not being given leave to attend the inquiry. In view of this it cannot be said that the petitioner has been denied any reasonable opportunity.
21. The petitioner has cited two decisions in support of this submission :
* The first one is K. Mohan v. Distt. Controller, AIR 1970 Cal 131 (16). It has held the same thing as held by us.
* The other case is Dakshinamoorthy v. Distt. Signal Telecom. Engineer, AIR 1989 Mad 201, this case is distinguishable on facts : there was evidence to show that the Defence Representative was not spared by the head and this information was with the inquiry officer. It is not so in the present case.
POINT NO. (V) : S.K. DHUSIYA WAS CROSS EXAMINED
22. Sri S.K. Dhusiya was examined by Sri R. P. Bhatnagar on 28.7.1987. The petitioner was not present on that date. Subsequently Sri R. P. Bhatnagar was changed by order dated 14.6.1988 and a new inquiry officer was appointed. The counsel for the petitioner drew our attention to the inquiry report and submitted that :
* Sri S.K. Srivastava, the new inquiry officer, ought to have proceeded afresh from the stage of inspection of documents.
* Sri S.K. Dhusiya ought to have been examined again.
* The earlier statement of Sri S.K. Dhusiya could not be relied upon.
23. The order dated 14.6.1988 is not on the record of the writ petition. It is true that there is some reference to it in the inquiry report. However, from this reference, the contents of the order cannot be ascertained.
24. The point that is now being raised was neither taken in the brief submitted by him nor in the appeal. The petitioner himself, (in paragraph 56 of the writ petition) has mentioned that Sri S.K. Srivastava was to proceed from the stage of inquiry already done by Sri R.P. Bhatnagar, this assertion negates the plea. It cannot be raised for the first time during arguments.
25. In any case, non-examination of Sri S.K. Dhusiya again had not caused any prejudice to the petitioner. The petitioner had filed an application to cross-examine Sri S.K. Dhusiya. This was allowed and Sri S.K. Dhusiya was produced for cross-examination. Proceeding of the inquiry dated 28th and 29th December, 1988, are on the record. The inquiry officer has mentioned in the order dated 28.12.1988 that petitioner had stated that he would cross-examine the Bank witness on the next date. The case was adjourned for 29.12.1988. On that date the petitioner cross-examined Sri S.K. Dhusiya. Even if Sri S.K. Dhusiya was examined again then he would have given the same statement. At the most the petitioner had right to cross-examine him and that has been done : no prejudice has been caused to the petitioner.
POINT NO. (VI) : INQUIRY--NOT VITIATED
26. The counsel for the petitioner submitted that the documents demanded by him were not supplied. During arguments he has confined his case for the following documents only :
(i) Report of the preliminary inquiry and the correspondence in that regard.
(ii) Letters dated 18.1.1979 and 2.3.1981 alleged to have been written by him informing the controlling authority regarding the purchase of the plot by his wife and her business (relevant to the second charge-sheet). These letters are referred to as the Letters at S.N. (ii).
(iii) Letter Nos. 511 and 540 of December, 1981, alleged to have been written by Sri R.B. Prasad, the controlling authority, to the petitioner for giving accommodation to the parties and for manipulating the records (relevant to the first and the third charge-sheet) . These letters are referred to as the Letters S.N. (iii).
PRELIMINARY INQUIRY REPORT AND THE CORRESPONDENCE--NOT REQUIRED TO BE GIVEN
27. The preliminary inquiry is conducted to find out the persons responsible for the lapses or the misconduct. The final or the departmental inquiry is held subsequently if any prima facie case is found against any person. In the departmental inquiry, the employer has to prove the charges. The preliminary inquiry is relevant to find out against whom departmental inquiry should be held and has no relevance for proving the charges in the departmental inquiry. It is not taken into account at the time of departmental inquiry against the charged officer.
28. In the present case no part of the preliminary inquiry has been relied upon to prove the charges against the petitioner. As the preliminary inquiry was not relied upon to prove the charges against the petitioner, it was not necessary to supply a copy of the same. The case would have been different, had the inquiry officer relied upon the preliminary inquiry report while holding the petitioner guilty.
29. The same reasoning, as applicable to the preliminary inquiry, is also applicable to the correspondence in regard to the preliminary inquiry. It is not relevant for determining whether the charged officer is guilty or not. It has not been relied upon by the inquiry officer in this case. The petitioner is not entitled for the same.
30. The petitioner has cited following two cases in support of his submission :
(i) State of Punjab v. Bhagat Ram, 1975 AISLJ 88 (the Bhagat Ram case) ;
(ii) Sate of U. P. v. Shatrughan Lal, 1998 (3) AWC 2373 (SC) : AIR 1998 SC 3038 (the Shatrughan Lal case).
These cases are not applicable to the facts of this cases. The counsel for the Bank has also cited some cases. They are mentioned in Endnote-4.
31. The Shatrughan Lal and the Bhagat Ram cases are the decisions where the Supreme Court had dismissed the appeals filed by the employer. In these cases the Supreme Court has made some observations regarding the statements recorded in the preliminary inquiry. They are casual observations. However, even in these cases, there is no observation regarding preliminary inquiry report or the correspondence regarding it. In the present case, the petitioner is asking for the preliminary inquiry report and the correspondence regarding it : he is not asking copy of statement of any witness. There is no assertion that statement of any witness was recorded in the preliminary inquiry. The two decisions cited by the petitioner are not applicable to the facts of this case.
THE OTHER DOCUMENTS--NON EXISTENT
32. The petitioner had filed an application on 28.11.1987 detailing the documents that should be supplied to him and the name of the witnesses that he proposed to examine to prove his case. The letters at S.N. (ii) and (iii) were also mentioned there. The inquiry officer after considering the objection of the Bank passed an order on this application on 30.9.1987.
33. In the aforesaid order the letters at S.N. (ii) are dealt as item numbers 3 and 4 under the heading 'in respect of charge-sheet dated 5.11.1985'. The order states that the, 'charged officer should specify the number of the special letter file through which these letters were sent. Thereafter the presenting officer shall have these inspected'.
34. It appears that the petitioner gave special file number of one of the letters at S.N. (ii) namely the one dated 28.1.1979. The D.O. file of the concerned branch for the year 1979 containing 14 letters from 1.8.1979 to 6.12.1979 was produced. The order in respect of this letter and other documents was passed on 7.4.1988. The order in respect of this letter is under the heading '(a) Item No. 10 of the defence list'. The inquiry officer, after perusing the D.O. file of 1979, held that this letter was never sent and it was non-existent document. This finding has been accepted by all authorities. There is nothing to show that it is illegal.
35. The counsel for the petitioner submitted that there is no order regarding the letter dated 2.3.1981 of the letters at S.N. (ii) and this letter ought to have been supplied to him.
36. It is not disputed that there is no order regarding letter dated 2.3.1981, however by the order dated 30.9.1987, the petitioner was required to give special letter file through which this letter was sent. There is nothing to show that letter file number (through which this letter was sent) was ever indicated to the inquiry officer so that it could be summoned and examined. In absence of this, no benefit can be given to the petitioner.
37. The letters at S.N. (iii) are alleged to be by the controlling authority to the petitioner : one of them is regarding accommodation to different parties and the other one is regarding manipulation of the records. They are dealt in the order dated 7.4.1988 under heading '(g) Item numbers 27 (1). 27 (3) and 27 (4)'. The Bank produced branch register marked as 'OL ordinary letter receipt and sent, 1981'. These letters are not mentioned in this register. The Bank also produced all the documents sent by the petitioner to the controlling authority from the end of November, 1981 to December, 1981. The letters sent by the petitioner also do not refer to the above mentioned letters or the matter dealt by them. After considering this, the inquiry officer held that these letters could not be shown for inspection to the petitioner as they were not in existence. These findings have been accepted by the authorities. In view of this it cannot be said that proceedings are vitiated as necessary documents were not shown to the petitioner.
PHOTOSTAT COPIES--RIGHTLY NOT CONSIDERED
38. The counsel for the petitioner submitted that :
* The petitioner had submitted photostat copies of 71 documents along with letter dated 27.1.1989.
* The photostat copies of the letters at S.N. (ii) and (iii) were also among them, * They ought to have been considered.
39. The petitioner was asked to produce his evidence on 28.12.1988. He produced many documents on that date. The inquiry was taken up on 29.12.1988. The petitioner said that he had no more documents to produce. The Bank submitted its brief on 7.1.1989. It is after this that photocopies of these documents were submitted along with letter dated 27.1.1989. In case these documents were available, then there appears to be no reason as to why they were not produced earlier along with other documents on 28.12.1988 and as to why the petitioner made the statement that he has no more documents to offer. The documents were not in possession of the petitioner by 29.12.1988, otherwise he would have filed them. No reasons have been indicated as to how these documents have come in his possession after that date. This creates doubt about authenticity of these documents.
40. It seems strange that the superior officer will ask his Junior to manipulate the records. In case this was done then the petitioner ought to have refused to manipulate the records. In any case, at the most, this may make liable Sri R.B. Prasad, the then controlling authority, also to be guilty, but it does not absolve the petitioner.
41. The photostat copies of the documents were received after the inquiry was closed. They were neither produced during the inquiry, nor proved. They were also not shown to the presenting officer of the Bank. The inquiry officer had already held the letters at S.N. (ii) and (iii) to be nonexistent : there could not be photostat copies of the same. The inquiry officer-on the circumstances of the case, nature of the contents, and the way they are written--has remarked in his report that they are not genuine documents. All the authorities, have agreed with finding of the inquiry officer. There is no illegality on this account.
REGARDING EXAMINATION OF SRI R.B. PRASAD
42. The counsel for the petitioner submitted that adverse inference should be drawn against the Bank for the reasons that :
* Sri R.B. Prasad, the controlling authority, has not denied the letters at S.N. (iii).
* He was not examined by the Bank.
* He was not produced for cross-examination as requested by the petitioner.
43. For the reasons given below, no adverse inference can be drawn :
* Sri R.B. Prasad had retired in the year 1985. His statement was not relied upon : he was not produced by the Bank. Only a witness may be cross-examined. He could not be cross-examined by the petitioner.
* In case the petitioner wanted to prove his documents, he ought to have summoned Sri R.B. Prasad or got his signatures on photostat copies of the letters compared with the admitted signatures of Sri R.B. Prasad.
* The petitioner had also filed a list of witnesses to be examined by him along with his letter dated 20.9.1987. Sri R.B. Prasad is not included in this list.
* The inquiry officer had not considered the photostat copies of the documents and we have upheld the reasoning.
POINT NO. (VII) : PERSONAL HEARING NOT REQUIRED
44. The counsel for the petitioner submitted that his application dated 19,10.1989 for personal hearing was wrongly rejected on 9.11.1989 and personal hearing ought to have been afforded by the appellate authority.
45. In appeals, personal hearing is mandatory only in those cases where it is specifically provided. The appeal filed by the petitioner was a departmental appeal. There is no specific provision for personal hearing. It was not necessary to afford personal hearing. However, this does not mean that in an appropriate case, it should not be provided. In cases where there is no specific provision, the appellate authority lias discretion in the matter. It may--if the interest of Justice so requires--grant leave for personal hearing.
46. It is true that in L. S. Thakur v. P. N. B., 1998 (1) SLR 271, (cited by the petitioner) a Division Bench of the H. P. High Court had remanded the case to the appellate authority for affording personal hearing to the charged officer but this proposition is not universally applicable. It depends on the facts of each case.
47. In the present case, the appeal was being decided by the person who was expert in the banking practises. There is nothing to show that the case was such in which personal hearing was required. We have dealt with many points in the writ petition but most of them are taken in for the first time in the writ petition. There was some confusion too but it was due to the way this writ petition was conducted. We have made observations regarding the same under the heading 'some observations'. We should change the way the writ petitions are conduced however this does not mean that this was a case for personal hearing in the appeal. The appellate order cannot faulted on this ground.
POINT NO. (VIII) : ORDERS NOT ILLEGAL Punishing/Appointing Authority--Detailed Reasons Not Required
48. The appointing authority may punish an employee for misconduct after conducting an inquiry. In case inquiry is conducted by the appointing authority itself then he has to record reasons for his finding. But generally this inquiry is delegated to another person namely the inquiry officer (as in the present case). He conducts the inquiry and submits his report along with his findings and in support of the same. He is not supposed to propose punishment but in case the inquiry officer does so then his report may not be ignored on this ground alone. The punishment is in the domain of the appointing authority. Is he--even if he agrees with the finding of the inquiry report--required to record detailed/separate reasons for the order?
49. The counsel for the petitioner cited following cases for the proposition, that detailed reasons have to be recorded :
(i) Punjab National Bank and Ors. v. Kunj Behari Misra, 1998 (7) SCC 84 (The Kunj Behari case) ;
(ii) Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734 : (1999) 7 SCC 739 : 1999 (6) JT 62 ;
(iii) Bank of India v. Degala Suryanarayana, 1999 (3) AWC 2.103 (SC) (NOC) : AIR 1999 SC 2407.
50. In the above mentioned cases the appointing authority had disagreed with finding of the inquiry officer. It is in this context that the observations were made. They are not applicable in a case where the appointing authority agrees with the finding of the inquiry officer.
51. It has been held in the following cases that the appointing authority is not required to record detailed reasons on the finding of the charges in case he agrees with the finding of the inquiry officer,
(i) Tara Chand Khatri v. Municipal Corporation of Delhi, AIR 1977 SC 567 ; (the T. C. Khatri case) ;
(ii) Ram Kumar v. State of Haryana, 1987 (2) AWC 905 (SC) : AIR 1987 SC 2043 ;
(iii) Indian Institute of Technology. Bombay v. Union of India, 1991 (Supp) 2 SCC 12 ;
(iv) Jagdamba Prasad v. Commissioner, Varanasi, 1999 (4) AWC 3094.
In our opinion, these decisions lay down the correct law.
Appellate Authority--Detailed Reasons Not Required
52. The counsel for the petitioner cited following decisions and submitted that the appellate authority even in case of affirming an order should record detailed/separate reasons.
(i) Union of India v. Tulsiram Patel, 1985 (3) SCC 398 (the Tulsi Ram case).
(ii) Union of India v. R. Reddappa, 1993 (4) SCC 269 (the Reddappa case),
(iii) A. L. Kalra v. Project and Equipment Corporation of India Ltd., 1984 (3) SCC 316 (the A. L. Kalra case),
(iv) R. P. Bhatt v. Union of India. AIR 1986 SC 1040 (the R. P. Bhatt case).
(v) Ram Chander v. Union of India, AIR 1986 SC 1173 (the Ram Chander case).
(vi) Deokinandan Sharma v. Union of India. SCC 340 (the Deoki Nandan case),
(vii) Ram Dhin Gupta v. S.B.I., 1989 (2) Bank CLR 318 (the Ram Dhin case).
(viii) Bhagat Raja v. Union of India, AIR 1967 SC 1606 (the Bhagat Raja case).
53. The aforesaid cases either do not apply to the facts of this case or do not lay down the law correctly. The reasons are as follows :
(a) In the Tulsi Ram case and the Reddappa case (the first and the second case) holding of enquiry was dispensed with. Different considerations apply in such cases, as enquiry was not held. The observations made in these cases are not applicable to a case where inquiry is held.
(b) The A. L. Kalra case (the third case) is distinguishable and is not applicable here. In this case, the disciplinary authority and the appellate authority had not given any independent reasons but had merely accepted the reasons of the enquiry report. The Supreme Court rejected the inquiry report on the ground that no reasons were given in support of the conclusion and the conclusion was mere ipse dixit of the inquiry officer. Once the enquiry report was rejected, then the orders of the disciplinary and the appellate authority also fell through and could not stand unless independent reasons were recorded. This is clear from the following observations of the Supreme Court.
"In paragraph 2 (of the inquiry report), it is stated that the appellant has committed breach............. By what process this conclusion is reached or what evidence appealed to him is left to speculation. The reasons in support of the conclusion are conspicuous by their absence. The findings are the ipse dixit of the inquiry officer.
...............................................................................
The salient feature which flies into the face about the findings recorded by the inquiry officer and the order made by the disciplinary authority as well as the appellate authority is that none of them made a reasoned order or speaking order and their conclusions are mere ipse dixit unsupported by any analysis of the evidence or reasons in support of the conclusions."
This case is an authority that at least one authority should record valid reasons however this does not mean appointing/ disciplinary authority or the appellate authority is required to record reasons while accepting the inquiry report which is supported by reasons. This case is not applicable here as in the present case inquiry officer has recorded valid reasons for his conclusions.
(c) It is true that the in the R, P. Bhatt case and the Ram Chander case (the fourth and fifth case) it has been held that the appellate authority should record separate reasons before dismissing an appeal. The Deoki Nandan case (the sixth case) has not laid down any law but has referred to the Ram Chander case and the Tulsi Ram Patel case. These cases do lend support to the contention raised by the petitioner however they are two Judges' decision of the Supreme Court and-in view of the Constitution Bench decisions of the Supreme Court, do not lay down the law correctly. These Constitution Bench decisions of the Supreme Court are discussed in the succeeding paragraphs (paragraphs 57 to 60 of the judgment).
(d) The Ram Dhin Gupta case (seventh case) is a Division Bench decision of M. P. High Court. In this case, the order was quashed on the ground that there was no application of mind. This ground is separate than the recording of detailed reasons. It is being discussed in the subsequent paragraphs under the subtitle 'There should be application of Mind'. However, merely because the appointing authority or the appellate authority have not recorded detailed reason, it cannot be said that they have not applied their mind to the case. This case is not applicable so far as this proposition is concerned.
(e) The Bhagat Raja case (eighth case) does not relate to service jurisprudence and has no application here. It also goes on its facts. This has been so held in paragraphs 23 to 25 of the T.C. Khatri case mentioned in paragraph 51 of this Judgment.
54. The counsel for the Bank has cited following decisions to say that appellate authority while agreeing with reasons of original authority is not required to record detailed reasons. These cases support the submission of the counsel for the Bank and in our opinion lay down the law correctly.
(i) Haji Manzoor Ahmad v. State of U. P., 1968 AWR 524 (FB).
(ii) Ram Murti Saran v. State of U. P., 1970 AWR 789 (FB).
(iii) Nanha v. D.D.C.. 1975 AWC 1 (FB).
(iv) Tara Chand Vyas v. Chairman and Disciplinary Authority, 1997 (4) SCC 565 (the T.C. Vyas case).
(v) State of Madras v. Srinivasan, AIR 1966 SC 1827 (the Srinivasan case) (Paragraph 15).
(vi) S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 (the S. N. Mukherjee case).
55. The first three cases are the Full Bench decisions of our Court. In the third decision the order of the revising authority is also quoted. This case along with answer of the Full Bench was listed before single Judge and this order was upheld and writ petition was dismissed on 6.12.1974.
56. In the T..C. Vyas case (the fourth case) the orders of the disciplinary authority or the appellate authority are not quoted but the Supreme Court while upholding their validity said :
"They are not like a civil court."
57. The Srinivas case and the S.N. Mukherjee case (the fifth and the sixth case) are Constitution Bench decisions of the Supreme Court and both of them have held that in the order of affirmance reasons are not required. In S.N. Mukherjee case the Supreme Court after considering all previous decisions has held that :
"The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."
58. The counsel for the petitioner submitted that :
* The question involved in S.N. Mukherjee's case was whether the Chief of the Army Staff is required to record reasons while dismissing a post confirmation petition against finding of the Court Martial.
* The question 'whether the other appellate authority while dismissing appeal is required to record reasons' was not involved.
* The aforesaid observations are merely obiter dicta and may be ignored.
59. It is true that in the S. N. Mukherjee case the Supreme Court was required to decide the question whether while deciding a post confirming petition against finding of a Court Martial reasons are required to be recorded or not, but nonetheless the Supreme Court has specifically framed this question and then after considering the decisions of Courts in our country as well as from different parts of the world has laid down the law. It is well considered obiter dicta of the Supreme Court and is binding on us under Article 141 of the Constitution of India.
60. The decisions cited by the petitioners (discussed in paragraph 53 (c) of this judgment) are two Judges' decision of the Supreme Court and in view of the S. N. Mukherjee case and the Srinivasan case they can not be said to have laid down the correct law.
There should be application of mind
61. We have held that the appellate authority is not required to record detailed/separate reasons nevertheless from the order itself or from the record it should appear that there has been application of mind to the facts of the case.
62. In this case reading of dismissal as well as appellate order indicates that both the authorities had applied their mind. They are also detailed and reasoned orders. None of the orders cannot be set aside on this ground.
A Caveat
63. We have already held that it is not necessary to record detailed/ separate reasons in case the appointing/disciplinary authority or the appellate authority agrees with the findings of the inquiry officer but this does not mean that the reasons may not be recorded. It is advisable that the reasons be recorded in order to show fairness and the fact that the case has been considered.
64. Separate reasons may not be necessary for agreeing with the findings of the inquiry report however this does not mean that in case any other point, apart from the finding of the inquiry report-for example that no opportunity has been afforded or bias-is taken then it should not be dealt by a reasoned order.
65. In this case questions regarding bias and opportunity have been raised, however many of them are raised for the first time in this writ petition. We have already dealt with them while deciding the preceding points. We have negated them and see no justification to send the matter back.
POINT NO. (IX) : NOT DISPROPORTIONATE
66. The counsel for the petitioner submitted that no loss was occasioned to the Bank and the punishment of dismissal is disproportionate to the misconduct.
67. The counsel for the Bank cited decisions (see Endnote-5) and submitted that neither the punishment is disproportionate, nor can it be interfered in the writ jurisdiction.
68. The inquiry officer has recorded a finding that many of the over drafts became bad debt and the suits had to be filed for recovery of the amount. Apart from this, the charges in the third charge-sheet include the charge of manipulating the bank records. The petitioner was the Branch Manager of the Bank. It is serious charge. It has been proved. In these circumstances the punishment is not disproportionate to the misconduct committed by the petitioner.
Some Observations
69. In this writ petition, counter and rejoinder-affidavits were exchanged. The petitioner thereafter filed four supplementary-affidavits. In response to these supplementary-affidavits, four supplementary counter and four supplementary rejoinder-affidavits were filed. Cause list indicates that as many as 15 counsels put up appearance for the petitioner. It appears that with different set of counsels, a new affidavit was filed sometimes taking a point not raised before the authorities below and some times contrary to the points raised. This was done without amending the writ petition. This ought not to have been allowed. It would have been better and convenient if the writ petition was amended. Perhaps we should discontinue the practice of accepting supplementary affidavits and the only way to place additional information may be by amending the writ petition.
70. Filing of so many affidavits, taking new and contradictory pleas have caused difficulties and confusion. We would have been still in confusion, had we not the good notes prepared by Sri G.K. Singh and Sri A.C. Tripathi advocates for the parties. We take this opportunity to keep our appreciation on record.
CONCLUSION
71. Our conclusions are as follows :
(i) The copy of the preliminary inquiry report and the correspondence in that regard is neither required to be shown nor given to the charged officer. It is to be shown or given only if it is relied upon in recording finding in the departmental inquiry.
(ii) In this case neither the preliminary inquiry report nor the correspondence in that regard has been relied upon in recording the finding against the petitioner. They were neither required to be shown, nor given to the petitioner.
(iii) It is not necessary to hear the appellant in person in appeals unless it is specifically provided. However. the appellate authority has discretion in this regard. It may hear the appellant in person if interest of justice so requires.
(iv) In this case there is no provision for hearing the appellant in person. There is nothing to show that interest of Justice required that the petitioner should be heard in person.
(v) The appointing/disciplinary or the appellate authority is not required to record detailed/separate reasons in case they agree with the inquiry report containing valid reasons. However in case questions-other than finding of the inquiry officer-are involved then the appointing/disciplinary or the appellate authority is required to record its reasons on those questions. In this case some such questions were involved but most of them were raised for the first time in the writ petition. We have also rejected all of them : there is no necessity to send the case back.
(vi) Neither the inquiry nor the impugned orders are bad on any account. The punishment is proportionate to the charges proved.
In view of our conclusions, the writ petition has no merits, It is dismissed.
In this writ petition some such questions were involved.
Endnote 1 : In the first charge-sheet, following charges were levelled.
Allegation No. 1 :
A current account was opened at the Branch in the name of M/s. Nagar Industries cm 28.4.1979 with an initial deposit of Rs. 301. On 16.5.1979 and 17.5.1979, Sri Prasad paid two cheques aggregating Rs. 4,000 (Cheque Nos. 050054 and 050053 dated 15.5,1979 and 17.5.1979 respectively) from the account although sufficient balance was not available and as a result an overdraft of Rs. 3,849 was created in the account. The over draft, which Sri Prasad had no authority to grant and that too without any appraisal of the firm's credit-worthiness, was also not reported to the controlling authority.
Allegation No. 2 :
On 17.5.1979 Sri Prasad also discounted a cheque for Rs. 5,032 for the firm and till 31.5.1979, discounted further nine cheques aggregating Rs. 63,272 although neither any appraisal of the Firm's business needs and credit worthiness was made nor was any limit sanctioned for the purpose. No opinion report on the firm was complied by him, nor also the Head Cashier's opinion report obtained. Except one cheque for Rs. 6,887 all the other nine cheques aggregating Rs. 61,417 were received back unpaid for the reasons "effects not yet cleared, please present again' and 'refer to drawer' during the period 6.6.1979 to 6.7.1979. The transactions were also not reported by Sri Prasad to his controlling authority.
Allegation No. 3 :
Inspite of the fact that till 2.7.1979 as many as six out of 10 cheques discounted as above were received back unpaid, Sri Prasad allowed payment of a cheque for Rs. 10,000 in the firm's account against insufficient balance on 2.7.1979. On the 14th July, 1979 till when nine cheque aggregating Rs. 61,477 had been received back unpaid for the reasons 'Effects not yet cleared, please present again' and 'refer to drawer' Sri Prasad allowed payment of further two cheques aggregating Rs. 33,000 creating an overdraft of Rs. 35,327.80 on the account which overdraft was raised to Rs. 35,227.80 on the account of payment of further cheques aggregating Rs. 2,100 on 16.7.1979.
Endnote 2 : In the second charge-sheet, following two charges were levelled.
Allegation No. 1 :
Smt. Chinta Mani Devi wife of Sri Madhav Prasad the charged officer purchased a plot of land in the year 1979-80 for a sum of Rs. 10,000 at Brij Enclave Colony, Sunderpur, Varanasi. He did not give previous intimation to the appropriate authority regarding the acquisition of immovable property in the name of his wife.
Allegation No. 2 :
His wife was the sole proprietress of the firm M/s. Maha Mritunjay Cement Jali and Allied Products, which was engaged in manufacture of cement Jali which business activity was being carried out at the abovementioned premises. Sri Prasad did not report to his controlling authority that his wife was engaged in a business activity.
Endnote 3 : In the third charge-sheet, following four charges were levelled.
Allegation No. 1 :
He misused his official position and granted undue accommodation to a large number of firms by way of clean overdraft for huge amount much beyond the discretionary powers that were vested in him in deliberate violation of the instructions contained in para 12 Chapter XIII of the Banks Book of Instructions. A few such instances are given in statement A annexed. In many of these cases the outstanding have become doubtful of recovery and the bank has been exposed to financial loss.
Allegation No. 2 :
He did not report the sanctioning of the above overdraft to his controlling authority, nor did he seek post facto approval therefor. Not only this, he fraudulently manipulated the banks record so as to ensure that these irregular advances do not come to the notice of the controlling authority through the annual audit returns. With a view to camouflage these overdrafts, he made fictitious debit entries in various current and cash credit accounts on the 30th December, 1981 and posted the correspondent credits in these overdraft accounts. In the 1st week of January, 1982, he reversed these fictitious entries thus restoring the correct position of the overdrafts in these accounts. He prepared passed and posted the relative vouchers himself. Similar manipulations were made by him in case of irregular cash credit account also. A few such fictitious entries made on 30th December, 1981 and subsequently reversed are given in statement B.
Allegation No. 3 :
He granted loans to a number of firms without making any appraisal of their credit needs and allowed drawing much beyond the sanctioned limit and beyond his discretionary powers in violation of the laid down norms. He did not submit B.M.D.T. Statements. A few such instances are given in statement C.
Allegation No. 4 :
He granted cash credit limit of Rs. 30,000 each to M/s. Vaishali Prints and M/s. Alakhnanda on 30.12.1981 to accommodate M/s. Vaishali Sari Centre and the amount disbursed on the former accounts was credited to cash credit account of the later firm.
Endnote 4 : The counsel for the Bank cited following decisions in support of his submission that neither the copy of the preliminary inquiry report nor the correspondence relating to it is required to be given or shown in :
(i) Champak Lal Chiman Lal Shah v. Union of India, AIR 1964 SC 1854 ;
(ii) State of Assam v. Mahendra Kumar Das, AIR 1970 SC 1255 ;
(iii) Government of India v. Tarak Nath Ghosh. AIR 1971 SC 823 ;
(iv) Krishna Chandra v. Union of India, AIR 1974 SC 1589 ;
(v) Chandrama Tiwari v. Union of India, AIR 1988 SC 117 ;
(vi) Superintendent Government T. B. Sanatorium v. J. Srinivasan, 1998 (8) SCC 572.
Endnote 5 : The counsel for the Bank cited following decisions in support of his submission regarding point number (xiii).
(i) M.D., ESIL v. B. Karmakar, 1993 (4) ;
(ii) B. C. Chaturvedi v. Union of India. 1995 (8) SCC 749 ;
(iii) State Bank of Patiala v. S.K. Sharma. 1996 (3) SCC 364 ;
(iv) Disciplinary Authority-cum-General Manager v. N.B. Patnaik, 1996 (4) JT 457.