1. The petitioner Shant Dev Tripathi has assailed the order dated 4th December, 2000 passed by Assistant General Manager, Region I, State Bank of India, Zonal Office, Kanpur (hereinafter referred to as "disciplinary authority") dismissing him from the post of Clerk, confining salary (for the period of suspension) to the subsistence allowance already paid to him; denying increment for the period of suspension; and the appellate order dated 4th September, 2001 passed by the Deputy General Manager rejecting appeal.
2. The facts in brief giving rise to the present dispute may be stated as under:
3. The petitioner while working as a Clerk in State Bank of India (hereinafter referred to as "Bank") (Kaimganj Branch) District Farrukhabad was served with a memo dated 20th September, 1994 making several allegations constituting irregularities etc. in discharge of his duties, requiring him to submit explanation within seven days failing which disciplinary proceedings are to be initiated against him under the Rules. He was also placed under suspension vide order dated 27th September, 1994. A supplementary memo was issued to petitioner on 26th October, 1994 containing three more allegations/charges.
4. The petitioner submitted a letter dated 30th January, 1995 stating that Branch Manager, State Bank of India, Bidhuna Branch is not cooperating with petitioner to allow him to peruse certain documents enabling him to submit reply to memos dated 20.9.1994 and 26.10.1994 and sought instructions from the officer concerned facilitating inspection of documents.
5. It is worthy to mention that both the memos relate to acts or omission alleged to have been committed by petitioner while posted as Clerk at Bidhuna Branch. The Branch Manager, Kaimganj Branch vide letter dated 14th March, 1995 informed the petitioner that he is neither entitled to peruse nor to obtain photocopies of documents relied on by the Bank to substantiate charges before enquiry is initiated.
6. The petitioner, in the circumstances, submitted a short reply dated 24th March, 1995 denying all the charges contained in memos of 20.9.1994 and 26.10.1994. The disciplinary authority in the meantime issued another memo dated 13th March, 1995 in addition to the earlier memos dated 26th October, 1994 containing 11 more charges. The said memo was served upon the petitioner on 10th April, 1995.
7. The petitioner submitted letter dated 30th May, 1995 informing disciplinary authority that he relinquished charge at Bidhuna Branch on 26th August, 1994 and therefore without perusing document, it is not possible to submit any effective reply. He therefore, sought permission for inspection of relevant documents. This request was again turned down by Branch Manager vide letter dated 30th June, 1995. The petitioner thereafter submitted reply dated 3rd July, 1995 denied allegations contained in memo dated 13th March, 1995. He also sent another letter dated 4th July, 1995 to the Branch Manager Kaimganj Branch requesting him to forward his reply dated 3rd July, 1995 to the disciplinary authority.
8. In the meantime, Bank also lodged a first information report against petitioner pursuant whereto a charge sheet was submitted by Police and a criminal case No.592 of 1995 was registered against petitioner in the Court of 2nd Additional Chief Judicial Magistrate, Etawah. A copy of the charges framed on 22.01.1997 against the petitioner by the Court of Additional Chief Judicial Magistrate, Etawah has been filed as Annexure 11.
9. The Bank thereafter commenced disciplinary inquiry and issued a charge sheet to the petitioner on 20th October, 1995 (Annexure 12 to the writ petition) which contained 24 charges. The petitioner was charged in general under para 521(4) (j) of Sastry Award as retained by Desai Tribunal. It also mentioned that petitioner had not submitted explanation for memos dated 20.9.1994, 26.10.1994 and 13.3.1995 received by him on 27.9.1994, 12.12.1994 and 10.4.1995. The petitioner was required to submit reply within one week from the date of receipt of charge sheet, failing which it shall be presumed that he had not to say anything and the bank shall proceed accordingly.
10. The petitioner requested the Bank again vide letter dated 2.12.1995 for permission of inspection of documents since the matter relates to Bidhuna Branch from where he was relieved on 26.8.1994. The Branch Manager Kaimganj Branch sent letter dated 1.1.1996 stating that when he was served with the memos dated 20.9.1994, 26.10.1994 and 13.3.1995, he submitted reply denying allegations but did not seek permission for perusal of documents meaning thereby he was quite conversant with the facts/allegations, hence, no such permission now can be granted. The petitioner was advised to submit reply otherwise the Bank would proceed as per the rules.
11. The petitioner in the meantime had submitted another letter dated 22.12.1995 addressed to the disciplinary authority stating that for the same charges, report was also lodged by the Bank on 24th November, 1994 under Section 420, 406, 467, 468 and 471 IPC wherein charge sheet was submitted on 20.10.1995 and therefore so long as criminal proceedings is continuing, departmental proceedings be stopped. Another letter dated 3.1.1996 was submitted by petitioner to the disciplinary authority after receiving Branch Manager's letter dated 01.01.1996 stating that since beginning he was requesting for inspection of document but the same was not allowed and therefore permission for inspection be granted.
12. The Bank vide letter dated 19th February, 1996 informed the petitioner, besides other, that inspection of documents cannot be allowed. The Bank referred Branch Manager's letter dated 1.1.1996. The request for deferring departmental proceedings was rejected since charges levelled in disciplinary proceedings are different than the criminal charges. He was again advised to submit reply to the charge sheet dated 20.10.1995. The petitioner however insisted upon the disciplinary authority to allow him to inspect documents vide letter dated 22.02.1996/1.03.1996.
13. The disciplinary authority thus proceeded further and by order dated 27.3.1996 appointed one Sri R.S.Singh Sengar as Enquiry Officer. The Enquiry Officer sent letter dated 2.4.1996 and informed petitioner that oral enquiry would commence on 29.4.1996 at 11 A.M. in the Chamber of Branch Manager, Bidhuna Branch of the Bank. The proceeding however was adjourned to 30th April, 1996.
14. On 30th April, 1996, petitioner participated in oral enquiry. One Sri Shiv Sewak, was appointed as Presenting Officer. The petitioner nominated Sri L.N.Tewari his defence assistant and also sought adjournment since his defence assistant could not come from Kanpur. The Presenting Officer also was not prepared to present bank's case since relevant documents were to be collected from police/other branches. The Presenting Officer of the Bank stated before Enquiry Officer that he could not prepare the case due to late receipt of charge sheet. It is in these circumstances oral enquiry was adjourned to 6.06.1996. The minutes of the enquiry proceedings dated 30.4.1996 are on record as Annexure 21 to the writ petition.
15. While the said proceedings was pending, petitioner again requested by letter dated 01.05.1996 disciplinary authority to defer disciplinary proceedings so long was criminal proceedings are going on.
16. On 06.6.1996, again Presenting Officer expressed his difficulties of having not obtained documents from police custody as also from the concerned branch of the bank. The Enquiry Officer adjourned proceedings to 8th July, 1996. It is stated that for the similar reason i.e. difficulty expressed by Presenting Officer, proceedings were adjourned on 8th July, 1996 and 6th August, 1996 also. The next date was 16th September, 1996 when some documents were filed on behalf of the Bank but Presenting Officer sought further time to produce remaining documents. The proceedings were adjourned to 8th October, 1996. In next two instalments, some documents were filed by the Bank on 8th October, 1996 and 14th November, 1996. The next date fixed was 10.3.1997.
17. On 10.3.1997 the petitioner sought adjournment on the ground of illness of his Defence Assistant. On 11.07.1997 the defence of the petitioner commenced. The proceedings of 11.07.1997 and 12.09.1997 are on record as Annexure 25 and 26. The petitioner thereafter sent a letter dated 15.09.1997 to the disciplinary authority making complaint against Inquiry Officer about the manner in which he was conducting enquiry.
18. The oral enquiry, it appears, was concluded by Enquiry Officer on 12th September, 1997. He directed Presenting Officer to submit his written brief by 22nd September, 1997 and by the petitioner till 30th September, 1997. The briefs were submitted by both the parties on 26.10.1997 and 26.11.1997 respectively. Thereafter Enquiry Officer submitted his report holding all the charges proved except charge No.2, 3 and 6. In respect to charge No.2, it was partly proved and charge No.3 and 6 were not.
19. The disciplinary authority issued a show cause notice dated 5th January, 2000 (Annexure C.A.2 to the counter affidavit of the Bank) proposing punishment of dismissal whereagainst petitioner submitted his representation on 23rd February, 2000. The disciplinary authority thereafter passed impugned order dated 4th November, 2000 imposing punishment of dismissal upon the petitioner. The petitioner filed an appeal vide memo of appeal dated 30th January, 2001, which has been rejected by the appellate authority by order dated 4th September, 2001.
20. The Bank has filed a counter affidavit wherein denial of inspection/supply of documents demanded by the petitioner at the time of filing reply to the show cause notice issued before initiating departmental proceedings and before commencement of oral enquiry is not disputed. It is evident from the averments contained in paras 9, 11 and 14.
21. It is also stated in para 13 that only charge No. 7 to 22 based on the same facts as was involved in criminal proceedings but rest of the charges were different. It is however stated that there is no bar for holding departmental enquiry simultaneously to the criminal trial. Some of the charges based on the same set of facts by itself would not be a reason for staying departmental proceedings pending criminal proceedings. The Bank says that enquiry proceedings on 30.4.1996, 6.6.1996 and 11.7.1997 were adjourned at the request of petitioner. It is denied that the petitioner did not make any statement on 12th September, 1997 that he does not propose to examine any witness and sought to file any application before the Enquiry Officer. It is said that enquiry report would itself reveal that full opportunity was afforded to petitioner and all required documents were shown during the course of enquiry.
22. Minutes of oral enquiry of certain dates have been filed which would show that on 16th September, 1996 petitioner was required to tell whether he admit charges or not, which he denied, whereafter Presenting Officer was required to open his case and produce relevant evidence. Consequently, Presenting Officer submitted 35 documents wherein 5 relates to charge No.1, 11 to charge No.2, 7 to charge No.3, 3 to charge No.5 and 9 to charge No.6. For rest of the documents, Presenting Officer said that the same could not be collected from the Court/Police and sought further time whereupon the enquiry was adjourned to 8.10.1996.
23. On 8.10.1996 Presenting Officer produced 71 documents out of which six relates to charge No.7, 3 to charge No.8, 3 to charge No.9, 7 to charge No.10, 1 to charge No.11, 3 to charge No.12, 4 to charge No.13, 5 to charge No.14, 3 to charge No.15, 4 to charge No.16, 3 to charge No.17, 8 to charge No.18, 4 to charge No.19, 4 to charge No.20, 2 to charge No.21, and 10 to charge No.22 (a to d).
24. These documents were marked as Exhibit P. Ex. 1 to 106. In respect to charge No.4, Presenting Officer required further time. The Enquiry Officer mentioned that the adjournment is being made on the request of Presenting Officer as well as the delinquent employee both. On 14.11.1996 only one document was produced in support of Charge 4 which was marked as Exhibit P. Ex.107. On the said date petitioner was absent.
25. Thereafter on certain dates proceedings were adjourned since petitioner was not able to get presence of his defence representative. Ultimately on 11.07.1997 he informed the Enquiry Officer that he himself shall place his defence. On that date itself Enquiry Officer started recording of defence statement of petitioner chargewise. The petitioner was put to examination by Presenting Officer and petitioner's reply was recorded. These proceedings are on record with the counter affidavit from page 42 to 46. On 17th July, 1997, the next date fixed, the petitioner sought adjournment on the ground of medical reasons. He was also absent on next two dates namely 9th August, 1997 and 21st August, 1997. Thereafter the proceedings came to start on 12th September, 1997. With respect to the documents submitted for charges No.7 to 22 the petitioner requested for original documents for which Presenting Officer expressed inability since the same were in possession of the Court in criminal case. Minutes of proceedings dated 12.9.1997 are reproduced as under:
"Departmental enquiry proceedings against Sri S.D.Tripathi, Clerk (Under suspension) held on 12.9.97 in the chamber of the Branch Manager, S.B.I. Bidhuna Br. in connection with the charge sheet dated 20.10.95 served on him.
Present - Sri R.S. Singh Sengar - E.O.
Starting defence. The E.P.A. has requested the P.O. to produce the original documents for his perusal in respect of Charge No. (vii) to (xxii) to which P.O. told that it is not possible to produce the original documents as the same are in the possession of the court. The photo copies thereof which are duly attested by the court have already been given to E.P.A. P.O. further told that in case EPA want any clarification, in respect of photo copies of the documents, he will clarify them. However, no clarification sought by the E.P.A. The E.P.A. asked whether prosecution will produce any witness or not to which P.O. told in negative. At this stage when the enquiry is about to conclude and E.P.A. himself defending the case, requested to engage a lawyer for defence. E.O. has examined his request and declined his request because as per paragraph 521 of Sastri Award provides in sub para 10(a) that an employee against whom disciplinary action is started may be permitted to defend his case by a lawyer with the Bank's permission. Here EPA did not obtain any permission from the Bank for engaging a lawyer, hence his request can not be accepted to at this stage the enquiry has been concluded with the consent of all the parties. The 22nd September 1997 has been fixed for submission of the brief by the P.O. to the E.O. one copy of his brief will be given to E.P.A. also. E.P.A. will submit his brief on receipt of the brief of the P.O. or on 30th September 1997 whichever is earlier. One copy of this proceedings has been given to P.O. and E.P.A. In this connection, E.P.A. has been told that he did not bring any defence during enquiry in respect of the charge No. (vii) to (xxii)."
26. In the rejoinder affidavit, generally the averments of writ petition have been reiterated except of two differences that a copy of judgment of the Court of Addl. Chief Judicial Magistrate, Court No.11, Etawah in Criminal Case No.592 of 1995 under Sections 406, 420, 467, 468, 471 I.P.C. has been filed. The petitioner has been acquitted from all the charges. It has also observed that none of the charges proved against him. A copy of certain part of Sastry Award containing relevant provision in respect to oral enquiry has also been filed.
27. Sri M.K.Gupta, learned counsel for the petitioner has advanced following submissions challenging the entire enquiry proceedings as well as impugned orders:
A. The enquiry is in violation of principles of natural justice since the documents relied upon were not allowed to be inspected before requiring the petitioner to submit his reply to the charge. Reliance is placed on State Vs. Shatrughan Lal 1998 (6) SCC 651.
B. The procedure in para 521 of Sastry Award by initiating simultaneous proceedings, departmental and criminal, was violated. Reliance is placed on Apex Court decision in AIR 1999 SC 1416.
C. The enquiry was abruptly closed on 12th September, 2001 in undue haste without giving any opportunity to the petitioner to adduce his witness. Thus violated to para 521 (10) of Sastry Award.
D. The petitioner's request for engaging lawyer for providing his defence in respect to charge No.7 to 22 was illegally rejected ignoring the fact that the same were identical to the matter under consideration in the criminal trial.
E. Punishment is excessive without considering the past record.
F. Acquittal in criminal case would vitiate the entire proceedings since charge being identical the departmental proceedings holding the similar charges proved is wholly illegal.
28. It is the common case of the parties that for procedure to be followed in departmental enquiry, the Bank had to comply in words and spirit what has been laid down in para 521 of Sastry Award, which reads as under:
521. A person against whom disciplinary action is proposed or likely to be taken should, in the first instance, be informed of the particulars of the charge against him; he should have a proper opportunity to give his explanation as to such particulars. Final orders should be passed after due consideration of all the relevant facts and circumstances. With this object in view we give the following directions. :-
(1) By the expression "offence" shall be meant any offence involving moral turpitude for which an employee is liable to conviction and sentence under any provision of law.
(2)(a) When in the opinion of the management an employee has committed an offence, unless he be otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted; and in such case he may also be suspended .
(b) If he be convicted he may be dismissed with effect from the date of his conviction or be given any lesser form of punishment as mentioned in sub-paragraph (5) below.
(c) If he be acquitted, it shall be open to the management to proceed against him under the provisions set out below in the sub paragraphs (9) and (10) infra relating to discharges. However in the event of the management deciding after enquiry not to continue him in service, he shall be liable only for termination of service with three months pay and allowances in lieu of notice. And he shall be deemed to have been on duty during period of suspension, if any and shall be entitled to the full pay and allowances minus such subsistence allowances as he has drawn and to all other privileges for the period of suspension;provided that if he be acquitted by being given the benefit of doubt he may be paid such portion of such pay and allowances as the management may deem proper, and the period of his absence shall not be treated as a period spent on duty unless the management so direct.
(d) If he prefers an appeal or revision application against his conviction and is acquitted , in case he had already been dealt with as above and he applies to management for reconsideration of his case, the management shall review his case and may either reinstate him or proceed against him under the provisions set out below in sub-paragraphs 9 and 10 infra relating to discharge, and the provisions set out above as to pay, allowances and the period of suspension will apply, the period to up-to-date for which full pay and allowances have not been drawn being treated as one of suspension. In the event of the management deciding, after enquiry, not to continue him in service, the employee shall be liable only for termination with three month's pay and allowances in lieu of notice, as directed above.
(3) If after steps have been taken to prosecute an employee, or to get him prosecuted, for an offence , the management may then deal with him as if he had committed an act of "gross misconduct" or of "minor misconduct" as defined below;provided that if the authority which was to start the prosecution proceedings refuses to do so or comes to the conclusion that there is no case for prosecution. It shall be open to the management to proceed against the employee under the provisions set out below in sub paragraphs 9 and 10 infra relating to discharge, but he shall be deemed to have been on duty during the period of suspension if any and shall be entitled to the full wages and allowances and to all other privileges for such period. In the event of the management deciding, after enquiry, not to continue him in service, he shall be liable only for termination with three months' pay and allowances in lieu of notice as directed in sub-paragraph (2) supra. If within the pendency of the proceedings thus instituted he is put on trial such proceedings shall be stayed pending the completion of the trial, after which the provisions mentioned in sub-paragraphs(2) above shall apply.
(4) By the expression "gross misconduct" shall be meant any of the following acts and omission on the part of an employee;
(a) engaging in any trade or business outside the scope of his duties except with the permissions of the bank;
(b) unauthorised disclosure of the information regarding the affairs of the bank or any of its customers or any other person connected with the business of the bank which is confidential or the disclosure of which is likely to be prejudicial to the interest of the bank.
(c) drunkenness or riotous or disorderly or indecent behaviour on the premises of the bank;
(d) wilful damage or attempt to cause damage to the property of the bank or any of its customers.
(e) wilful insubordination or disobedience of any lawful and reasonable order of the management or of a superior.
(f) habitual doing of any act which amounts to "minor misconduct" as defined below. "habitual" meaning a course of action taken or persisted in not withstanding that at least on three previous occasions censure or warnings have been administered or an adverse remark has been entered against him.
(g) wilful slowing down in performing of work;
(h) gambling or betting on the premises of the bank;
(i) speculation in stocks, shares, securities, or any commodity, whether on his account or that of any other persons;
(j) doing any act prejudicial to the interests of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss;
(k) giving or taking a bribe or illegal gratification from a customer or an employee of the bank;
(l) abetment or instigation of any of the acts or omissions above mentioned;
(5) An employee found guilty of gross misconduct may ;
(a) be dismissed without notice, or
(b) be warned or censured, or have an adverse remark entered against him, or
(c) be fined, or
(d) have his increment stopped, or
(e) have his misconduct condoned and be merely discharged.
(6) By the expression "minor misconduct" shall be meant any of the following acts and omissions on the part of an employee
(a) absence without leave or overstaying sanctioned leave without sufficient grounds.
(b) unpunctual or irregular attendance;
(c) neglect of work, negligence in performing duties;
(d) breach of any rule of business of the bank or instruction for the running of any department.
(e) committing nuisance on the premises of the bank;
(f) entering or leaving the premises of the bank except by an entrance provided for the purpose.
(g) attempt to collect or collecting monies within the premises of the bank without the previous permission of the management or except as allowed by any rule or law for the time being in force.
(h) holding or attempting to hold or attending any meeting on the premises of the bank without the previous permission of the management or except in accordance with the provisions of any rule or law for the time being in force.
(i) canvassing for union membership or collection of union dues or subscriptions within the premises of the bank without the previous permission of the management or except in accordance with the provisions of any rule or law for the time being in force;
(j) failing to show proper consideration courtesy or attention towards officers, customers, or other employees of the bank; unseemly or unsatisfactory behaviour while on duty;
(k) marked disregard of ordinary requirements of decency and cleanliness in person or dress.
(l) incurring debts to an extent considered by the management as excessive.
(7) An employee found guilty of minor misconduct may:
(a) be warned or censured; or
(b) have an adverse remark entered against him, or
(c) have his increment stopped for a period not longer than six months.
(8) In all cases in which action under paragraphs(3), (5) or (7) may be taken, the proceedings held shall be entered in a book kept specially for the purpose, in which the date on which the proceedings are held, the name of the employee proceeded against, the charge or charges ,the evidence on which they are based,the explanation and the evidence if any tendered by the said employee the finding or findings with the grounds on which they are based and the order passed shall be recorded with sufficient fullness, as clearly as possible; and such record of proceedings shall be signed by the Officer who holds them.
(9) When it is decided to take any disciplinary action against an employee such decision shall be communicated to him within three days thereof.
(10) The procedure in such cases shall be as follows.:-
(a) An employee against whom disciplinary action is proposed or likely to be taken shall be given a charge sheet clearly setting forth the circumstances appearing against him and a date shall be fixed for enquiry, sufficient time being given to him to enable him to prepare and give his explanation as also to produce any evidence that he may wish to tender in his defence. He shall be permitted to appear before the officer conducting the enquiry, to cross-examine any witness on whose evidence the charge rests and to examine witnesses and produce other evidence in his defence. He shall also be permitted to be defended by a representative of a registered union of bank employees or with the banks permission, by a lawyer . He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him.
(b) Pending such enquiry he may be suspended,but if on the conclusion of the enquiry it is decided to take no action against him he shall be deemed to have been on duty and shall be entitled to the full wages and allowances and to all other privileges for the period of suspension ;and if some punishment other than dismissal is inflicted the whole or the part of the period of suspension , may at the discretion of the management, be treated as on duty with the right to a corresponding portion of the wages, allowances etc.
(c) In awarding punishment by way of disciplinary action the authority concerned shall take into account the gravity of the misconduct,the previous record, if any, of the employee and any other aggravating or extenuating circumstances that may exist. Where sufficiently extenuating circumstances exist the misconduct may be condoned and in case such misconduct is of "gross" type he may be merely discharged,with or without notice or on payment of a month's pay and allowances,in lieu of notice. Such discharge may also be given where the evidence is found to be insufficient to sustain the charge and where the bank does not, for some reason or other, think it expedient to retain the employee in question any longer in service. Discharge in such cases shall not be deemed to amount to disciplinary action.
(11) Where the directions given above conflict with the procedure or rules in force in any bank regarding disciplinary action they shall prevail over the latter. There may , in such procedure or rules, exist certain provisions outside the scope of the directions given by us above enabling the bank to dismiss, warn, censure, fine an employee or have his increment stopped or have an adverse remark entered against him. In all such cases also we think that the provisions set out in clauses(8) and (9) should apply and we direct accordingly.
(12) It also seems to us necessary that a bank should decide which officer shall be empowered to take disciplinary action in the case of each office or establishment and that it should also make the provisions for the appeals against the orders passed in disciplinary matters to an officer or a body not lower in status than the manager, who shall if the employee concerned so desirous in a case of dismissal hear him or his representative before disposing of the appeal. We direct accordingly and further direct that the names of the officers or the body who are empowered to pass the original orders or hear the appeal shall from time to time be published on the bank's notice boards that an appeal shall be disposed of as early as possible, and that the period within which an appeal can be preferred shall be forty five days from the date on which the original order has been communicated in writing to the to the employee concerned.
29. A question may incidentally arise, what is Shastry award. It may be clarified at this stage. A very large number of matters caused industrial disputes in several banks including nationalized as well as private. The Government of India by notification dated 5th January, 1952 under Section 7 of Industrial Disputes Act, 1947 constituted a Tribunal headed by Sri S. Panchapagesa Sastry, a retired Judge of Madras High Court and two Members namely Sri M.L. Tannan and Sri V.L. D' Souza, Professor of Economics, University of Mysore to adjudicate upon those matters, which included method of recruitment, terms and conditions of service and procedure for termination of employment or for taking other disciplinary action. The award of this Tribunal was published on 26th March, 1953 and it is commonly known as "Sastry Award"
30. Broadly, the procedure laid down in para 521 of Sastry Award is common to the general principles applicable in the matter of disciplinary proceedings. However, there is a little bit distinction I find from a careful reading of the said paragraph. In a matter where employee is found to have committed an offence triable in a Court of law and for the same purposes a departmental enquiry is also to be conducted, where the act or omission on the part of the employee constitute an offence, para 521 (2) contemplates that Bank would take steps to prosecute him or get him prosecuted and if the employee is convicted, he may be dismissed with effect from the date of his conviction or may be given any lesser punishment as mentioned in sub para (5). Sub para (3) further contemplates, where trial is not commenced within a year of commission of offence, management may deal with the employee as if he has committed an act of "gross misconduct" or of "minor misconduct" as defined in sub para (4) and (6) and may proceed with the departmental enquiry, if it takes a decision to do so. However, if during pendency of disciplinary proceedings, the employee is put on trial, departmental proceedings shall be stayed pending completion of trial.
31. In the present matter, 22 charges were levelled against petitioner. It is an admission on the part of respondents that some of the charges were based on the same set of facts (para 26 of the counter affidavit). In para 13 of the counter affidavit, respondents in more categorical and specific manner have said, "it is clear that only charge from serial No.7 to 22 were based on same facts. Rest of the charges were new and different."
32. Having said so, the Bank proceeded to plead that there is no bar in simultaneous proceedings of departmental as well as criminal trial.
33. Ordinarily, what is pleaded by Bank is correct. In law, there is no bar for proceeding simultaneously for departmental as well as criminal matter but where a different and specific provision is made, binding on the employer and employee, laying down a particular procedure, the situation would be different.
34. Sub para (3) of Para 521 clearly contemplates that in respect to a matter constituting an offence, if the employee is not put on trial within a year of commission of the offence, management may then deal with as if the employee had committed an act of "gross misconduct" or "minor misconduct" and proceed accordingly but if during pendency of departmental proceedings the trial commences, the departmental proceeding shall be stayed. The discretion to proceed for disciplinary inquiry has been given to the employer but for the purpose of stay of departmental enquiry, the language is in mandatory form using the word "shall" leaving no discretion on the management of the Bank in such matter.
35. The fact, as discussed above, would show that initially a memo was issued to the petitioner on 20th September, 1994 seeking his explanation as to why departmental proceedings be not initiated against him. The petitioner was also placed under suspension on 27th September, 1994. A supplementary memo was issued on 26th October, 1994. Thereafter Bank lodged an FIR against petitioner under various provisions of IPC on 24th November, 1994. When matter was pending criminal investigation, Bank issued 3rd memo on 13th March, 1995. The police filed charge sheet in 1995 and a criminal case No.592 of 1995 was registered against petitioner in the Court of 2nd Addl. Chief Judicial Magistrate, Etawah. Thus when charge sheet initiating disciplinary proceedings was issued to petitioner on 20th October, 1995, criminal trial had not only commenced but matter of framing of charge by Magistrate was under consideration. That be so, as contemplated under para 521(3) of Sastry Award, departmental proceedings to the extent it relates to charges based on the same set of facts, which were subject matter of criminal trial, ought to have been stayed. But to this effect the Bank did not apply its mind and considered the relevant provision. This in my view is a serious flaw in the impugned proceedings.
36. Learned counsel for the Bank did not place any other provision applicable to the Bank in question which contemplate a procedure different than para 521 of Sastry Award. The Court is conscious of the fact that para 521(11) of Sastry Award itself contemplate that if a different procedure is specified by Bank, vide directions or rules applicable to the Bank, they shall prevail over the provisions contained in para 521 of the Award but no such different provision in respect to the Bank in question was placed before this Court by Sri Chatruvedi, learned counsel for the respondent- Bank. Hence, I have to strictly go by the provision contained in para 521 of Sastry Award.
37. Then sub para (9) further contemplates, when a decision is taken to initiate disciplinary action, such decision shall be communicated to the employee concerned within three days thereof. There is nothing on record to show that the said provision was complied with.
38. I am conscious of the exposition of law in general that departmental and criminal proceedings may go on together. It is now well settled that departmental proceedings can proceed simultaneously with criminal proceedings and there is no bar as such therein as held in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Another 1999 (3) SCC 679. It has been held that departmental as well as criminal, both the proceedings, can go on simultaneously as there is no bar in their being conducted simultaneously. The question as to whether during the pendency of criminal proceeding, the departmental proceeding should be stayed depends upon the facts and circumstances of individual case. In Ajit Kumar Nag Vs. General Manager I.O.C. JT 2005 (8) SC 425, the Apex Court said that the procedure followed in both the cases as well as the subject matter of the departmental enquiry and criminal proceeding has different scope and it cannot not be said that when a criminal proceeding is going on a particular criminal charge, in that regard, the departmental proceeding cannot be allowed to proceed. The same view has been reiterated subsequently, in Chairman/ Managing Director TNCS Corporation Ltd. & others Vs. K. Meerabai JT 2006 (1) SC 444, Suresh Pathrella Vs. Oriental Bank of Commerce AIR 2007 SC 199 and Union of India & others Vs. Naman Singh Shekhawat 2008 (4) SCC 1.
39. Referring to Capt. M. Paul Anthony (supra), recently the Apex Court in Managing Director, State Bank of Hyderabad & another Vs. P. Kata Rao JT 2008 (4) SC 577 observed that legal principle enunciated to the effect that on the same set of facts, the delinquent shall not be proceeded in a departmental proceeding and in a criminal proceeding simultaneously has been deviated from. It it also said that the dicta laid down by the Apex Court in Capt. M. Paul Anthony (supra), though has remained unshaken but its applicability has been found to be dependent on the facts and situations obtained in each case.
40. Similarly, in the case of Noida Entrepreneurs Assn. Vs. NOIDS & others JT 2007 (2) SC 620, the Court has reproduced the following conclusion deducible from various judgments as noticed in para-22 of the judgment in Capt. M. Paul Anthony (supra), namely :
"(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature, which involved complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
41. When an employee comes before a Court of law praying for stay of departmental proceedings since criminal proceedings are going on and the facts in both the matters being common, his defence in criminal matter is likely to be prejudiced if the departmental enquiry continue, the Court has to examine whether non grant of stay on departmental proceeding would not only prejudice the delinquent officer, but the matter also involve a complicated question of law and thereafter should pass appropriate order. This is what was observed in Indian Overseas Bank Vs. P. Ganesan & others AIR 2008 SC 553.
42. When I consider the present case in the light of above exposition of law and relevant provision in the present case, though the petitioner did not approach any Court of law making request for stay but admittedly he approached departmental authority repeatedly with the same request. It does not appear that request of petitioner in correct perspective was ever considered by Bank at any point of time. Without looking to the provision contained in para 521 of Shastry Award, it appears that Bank proceeded only with an impression that there being no bar for the two proceedings going on simultaneously, they can go ahead with departmental enquiry in respect to same charges but the relevant issues and para 521 were not adverted to by them at any point of time. It has been observed in Noida Entrepreneurs Assn. (supra) that if departmental and criminal proceedings are based on identical and similar set of facts, and the charge in the criminal case is of a grave nature involving complicated questions of law and fact, the departmental enquiry is desirable to be deferred till the conclusion of criminal case. This to my mind apply squarely to this case.
43. The technical difference in charge was not relevant but what was relevant is that the charges are based on the same set of facts. It has been admitted by respondents that charges no.7 to 22 are based on the same facts as were involved in criminal case pending against petitioner. In this case, besides the general principles of law, as discussed above, statutory provision binding upon both the parties also contemplate that departmental enquiry shall stand deferred when criminal proceedings commenced but the said provision has been given a complete go by. I am therefore constrained to hold that continuance to proceed with the departmental enquiry in respect to charges no.7 to 22 in this matter was not legal and valid and besides the exposition of law, as laid down in Noida Entrepreneurs Assn (supra), the same was in the teeth of para 521 of Shastry Award and to this extent, it is vitiated in law.
44. Now, the manner in which departmental enquiry has been conducted is also interesting. Para 521, in the opening sentence provide that after informing the employee of the particulars of charge against him, he shall be given a proper opportunity to give his explanation to such particulars. The petitioner repeatedly informed the bank that he should be allowed to inspect documents for giving effective reply to the charge sheet, but, repeatedly it was denied to him by various letters, which I have already discussed above. Admittedly, till oral enquiry commenced, petitioner was not permitted either inspection of relied on documents or furnished copies thereof. In fact the Bank did not inform the petitioner about evidence it proposes to rely either in the charge sheet dated 20th October, 1995 or by issuing any other letter subsequent thereto.
45. The petitioner was accused of "gross misconduct" under para 521(4)(e) and (j) which constitute a "gross misconduct", as defined in sub para (4) of para 521. The "particulars of charges", in my view, should have included relevant evidence relied on by the department. This also resulted in a serious procedural injustice to the petitioner.
46. In State of U.P. Vs. Shatrughan Lal & Anr. (1998) 6 SCC 651, the Court said that when charge sheet is issued and documents are proposed to be utilized against the employee concerned, if he is required to submit reply without furnishing documents relied by the Department it would amount to denial of effective opportunity of defence. The Apex Court relied on its earlier decisions in Chandrama Tewari Vs. Union of India, 1987 Supp SCC 518; Kashinath Dikshita Vs. Union of India, (1986) 3 SCC 229; State of U.P. Vs. Mohd. Sharif, (1982) 2 SCC 376. The court also said that the documents if are voluminous and copies cannot be supplied then such an officer must be given an opportunity to inspect the same else principles of natural justice would be violated. In taking this view, the Court relied on its earlier decision in High Court of Punjab & Haryana Vs. Amrik Singh, 1995 Supp (1) SCC 321.
47. Before the Enquiry Officer, initially Presenting Officer himself admitted that he did not possess relied on documents and for this reason oral enquiry was adjourned on 30.4.1996, 6.6.1996, 8.7.1996 and 6.8.1996. For the first time, on 16th September, 1996 Presenting Officer submitted 35 documents in respect to charges No.1, 2, 3, 5 and 6. In respect to other charges, he sought time and the matter was adjourned to 8th October, 1996. On the next date, 71 documents in respect to charges No.7 to 22 were placed before Enquiry Officer and Presenting Officer sought further time to present evidence in respect to charge no.4. Then come to 14.11.1996, when one document was adduced in evidence in support of charge no.4. By submitting the documents, the Presenting Officer closed this matter.
48. Thereafter, on next two dates i.e. 10.3.1997 and 15.4.1997, the case was adjourned at the instance of the delinquent employee. On 13.6.1997 when Enquiry Officer required the delinquent employee i.e. the petitioner to place his defence, firstly he (Enquiry Officer) himself asked some questions from him by way of clarification. These questions relate only to the order of this Court dated 22nd April, 1997 whereby the bank was required to complete proceedings within three months. He also enquired the time petitioner would require for placing his defence to which he replied that he would take 10 days.
49. On 11th July, 1997, defence of petitioner was recorded by Enquiry Officer in an interesting manner. Chargewise the petitioner's statement was recorded and thereafter Presenting Officer was allowed to cross-examine petitioner. This procedure was followed upto charge no.6. Thereafter from charge No.7 to 22, petitioner required the respondents to produce original documents to which they expressed inability since the documents were lying in the Court where the criminal proceedings were pending. Thereon the inquiry was closed.
50. Something could have been said for this kind of proceedings but then the facts remain that the petitioner raised objection about the said proceedings. In para 2 of enquiry report, Enquiry Officer has prepared a chart of various dates to highlight that delay in proceedings was attributable to petitioner only but the fact remains that on the first four dates of oral enquiry, Presenting Officer himself was not prepared with the matter. This aspect however has not been highlighted in the same spirit. On the next three dates, Presenting Officer produced documents and therefore also delay cannot be attributed to petitioner. The Presenting Officer by mere submission of documents closed his case and on the next three dates, the petitioner could not place his defence due to non-availability of defence representative. On 11th July, 1997 he commenced his defence but there also he was put to cross examination by Presenting Officer as if he was to be utilized as a witness against him. The defence in respect to charges 1 to 6 was recorded on 11th July, 1997 accordingly. On 17th July, 1997, the petitioner's absence was for medical reasons which has not been found false or incorrect. 9th August, 1997 was the only date when it is said that petitioner was absent without assigning any reason. On 21st August, 1997 the petitioner could not attend enquiry and the reason he informed to the Enquiry Officer was non-clearance of his T.A. Bills in respect to the enquiry he had already attended .
51. It is admitted that during the course of oral enquiry, petitioner was under suspension and was not receiving full salary. In these circumstances, it was incumbent upon the Bank to take care of reimbursement of expenses borne by petitioner in attending oral enquiry well in time so that he may not face financial crunch in attending departmental enquiry. The Enquiry Officer unfortunately did not react to situation as it was demanded at the relevant time and held employee himself guilty for non attending enquiry on 21st August, 1997. This show lack of objectivity and impartiality on the part of Enquiry Officer.
52. Then comes the last date i.e. 12th September, 1997 when enquiry was concluded. The proceedings of 12th September, 1997 have been placed on record along with the counter affidavit at pages 50 and 51. On that date, petitioner requested for original documents relating to charge No.7 to 22 relied on by the Bank but the Presenting Officer expressed his inability to do so. The petitioner also requested at this stage to permit him to engage a lawyer but this was declined and the oral enquiry was concluded. Can it be said that in these circumstances here is a case where petitioner was given adequate opportunity to defend his case.
53. The procedure prescribed in para 521 contemplates an adequate opportunity of defence. Here is not a case where the petitioner had accepted his guilt, therefore it was incumbent upon department to prove charges against the petitioner and only thereafter he could have been required to place his defence to disprove the charges. Except of filing documents before Enquiry Officer, the Presenting Officer did not take any further step for proving charges. If the charges are such which stood proved from bare perusal of documents, in such a case no formal proof or overt act on the part of the department is necessary since Enquiry Officer can peruse the documents and find out whether charges stood proved or not. In such a case onus would shift upon delinquent employee to disprove the charges. It is quite plausible and permissible but the question would be whether it is so in the case in hand. Let us examine the manner in which the Enquiry Officer had discussed the documents.
54. In para 4 of enquiry report he has simply reproduced charges and in para 5 he has simply given list of documents and exhibit numbers. What for particular documents were filed and what it intended to prove is not clear from the mere list of documents. Nothing was clarified by Presenting Officer before Enquiry Officer. Thereafter in para 6, Enquiry Officer has referred to defence statement of petitioner as if the mere list of the documents had resulted in proving charges and now the petitioner had to disprove the charge.
55. In respect to charge No.1, Enquiry Officer has observed:
"Presenting Officer did not produce any evidence to contradict the version of the EPA."
56. He also observed that overdraft was allowed by Branch Manager since the employee himself could not have availed this facility. But then he has proceeded assuming a kind of moral objection that the petitioner being a senior employee of the Bank ought to have completed all the formalities though he has held simultaneously that this was the jurisdiction of Branch Manager, who himself had allowed it. In the circumstances to hold charge No.1 proved is clearly perverse and based on no evidence at all. The Enquiry Officer has proceeded as if it was the duty of delinquent employee to disprove charges and not the responsibility of department to prove the charge at the first instance.
57. Similarly in respect to charge no. 2, Enquiry Officer has declined to accept petitioner's defence on the ground that he did not get the vehicle transferred in his name and therefore, his statement that receipt was given to the then Branch Manager is not acceptable. Two things are totally different, have no inter-connection. Moreover, when a loan is sanctioned to an employee and he fails to utilise amount for the purpose, loan was sanctioned, the course open to the Bank would be to cancel the loan and require employee to repay in its entirety but by itself it is difficult to hold a case of "misconduct" under the Rules.
58. In respect to charge no. 4 again Enquiry Officer held that to petitioner's defence "Presenting Officer did not offer any comment." "The petitioner alone cannot be held responsible for such act." Yet he has held the entire charge proved which is beyond comprehension. Once no evidence is found that there was no other officer available in the Branch to sign the draft and therefore under instructions of Branch Manager, petitioner signed the draft, unless the Bank could have shown that Bank Manager himself acted illegally, compliance of his direction by petitioner cannot constitute a misconduct on his part. Therefore, it is also difficult to hold charge no. 4 proved.
59. Similarly, in respect to charge no. 5 the Enquiry Officer on one hand said "both the parties did not produce any evidence in support of their statement", yet has held the said charge proved against petitioner without recording a finding that defence of petitioner that he made signatures on the instructions of concerned authority is incorrect. The manner in which Enquiry Officer has proceeded itself show that since no attempt was made by Presenting Enquiry Officer to prove the charges, Enquiry Officer proceeded in the matter in a haste on his own, simply from the language of the charges, held the charges proved against petitioner and thereafter by referring to petitioner's defence has held that he could not disprove the same. The approach is clearly illegal and impermissible.
60. In Sawai Singh Vs. State of Rajasthan AIR 1986 SC 995, Apex Court has held that the responsibility lie upon the department first to prove the charges and once initial burden is discharged by the department only then delinquent employee would be required to show that charge is incorrect and not proved and not otherwise. The Court while noticing contention of the counsel for the State of Rajasthan that the allegations regarding vagueness of the charge, perfunctory evidence etc. was not raised before the Enquiry Officer or the High Court, observed that:
"That does not by itself exonerate the department to bring home the charges."
61. The Court further held:
"But a departmental enquiry entailing consequences like loss of job which now-a-days means loss of livelihood, there must be fair play in action, in respect of an order involving adverse or penal consequences against an employee, there must be investigations to the charges consistent with the requirement of the situation in accordance with the principles of natural justice in so far as these are applicable in a particular situation."
62. The Apex Court also said that the principles of natural justice must always be observed in conformity with the scheme of the Act and the subject matter of the case. There is no such thing like technical natural justice. The concept of fair play in action, which is the basis of natural justice, must depend upon the particular lis between the parties.
63. To my mind it would be difficult to hold that here is a case where adequate opportunity of defence was afforded to the petitioner.
64. In respect to charges no.3, 4 and 6 the Enquiry Officer, on page 148 and 149 of the writ petition, has observed that Presenting Officer did not make any comment on the defence of employee concerned but without anything further he has held charge no.4 proved while holing simultaneously that Presenting Officer could not make any comment on the defence of petitioner, who examined the case, and Presenting Officer also has said "although EPA alone cannot be held responsible for such act."
65. No person from the Bank appeared and could show that signatures of petitioner on various documents were unauthorised since he was not permitted to do so. With respect to charges no. 7 to 22, on the basis of mere language of the charges contained in the charge sheet, Enquiry Officer held the same proved, since petitioner did not/could not adduce any defence for the reason that the same may cause prejudice to him in criminal proceedings pending against the charges involving same set of facts at that time.
66. In totality of the circumstances, I am clearly of the opinion that departmental enquiry, in the case in hand, has not been conducted fairly, impartially and in a manner consistent with the Principles of natural justice and also the procedure prescribed in para 521 of Shastry Award.
67. Learned counsel for the respondent Bank submitted that the charges are of serious nature and petitioner being an employee of the Bank is not a person who should be extended any compassion or sympathy in the hands of the Court. The Court under Article 226 of the constitution may not interfere in a case where the employee like the petitioner is allegedly guilty of charges involving financial matters.
68. It is not a matter of doubt that under Article 226, this Court does not help a person who has not approached with clean hands. One who seeks equity must do equity. The Court will not sit in appeal over departmental proceedings and the conclusions drawn by disciplinary authority, provided the delinquent employee has been given fair and impartial hearing. If something has been done in utter violation of principles of natural justice, in service matters, the Court cannot allow the employer to make an employee to starve in utter violation of principles of natural justice. A person cannot be denied his right to earn livelihood enshrined under Article 226 of the Constitution of India unless he has been given appropriate opportunity of hearing, defence and the conclusion drawn by the authorities is one which is probable and permissible from bare perusal of the documents and not otherwise. The scope of judicial review in such matters is well settled. It travels in a narrow sphere and is confined to the extent of decision making process. It would not allow the Court to appreciate decision itself unless the decision is vitiated in law on account of mala fide, bias or based on no evidence at all. The authorities exercising quasi judicial functions are not courts. They are not bound by principles of evidence yet certain basic principles will have to be observed which may dispel a complaint against fairness, impartiality and pre determination of mind on the part of the employer.
69. A Constitution Bench in the case of State of Mysore Vs. Shivabasappa AIR 1963 SC 375, in para 3 of the judgment held as under:
"Tribunals exercising quasi judicial functions are not Courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it."
70. In the matter of departmental enquiry, what is the scope of judicial review, has been considered by the Apex Court in the case of State of Andhra Pradesh Vs. Sree Rama Rao AIR 1963 SC 1723, and in para 7 it has held as under:
"There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very fact of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds, But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."(para 7)
71. In Bareilly Electricity Supply Company Ltd. Vs. Workmen and Ors. 1971 (2) SCC 617, the Apex Court held that the procedure prescribed in the Evidence Act is not applicable in the departmental proceedings and the only requirement is that the evidence should be collected by giving due opportunity to the delinquent employee as well. Something, which is not a legal evidence may not be acted upon unless it is admitted in the departmental proceedings by the person competent to spoke about them and are subjected to cross-examination. The relevant observations are as under:
"But the application of principal of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no material can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used." (para 14)
72. In the case of State of Haryana Vs. Rattan Singh AIR 1977 SC 1512, certain passengers were found to have travelled alighted the bus without tickets as a result whereof the employee, who was the Conductor of the bus, was charge sheeted. The employer on the basis of the statements of the Flying Squat held the charge proved. The employee challenged the order of punishment on the ground that the passengers are said to have travelled without ticket were not examined and in the absence thereof the entire evidence is hear-se. The Apex Court rejecting such contention held as under:
"It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind and are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The ''residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halbsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence-not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record."(para 4)
73. In B.C. Chaturvedi Vs. Union of India-1995(6) SCC 749, reiterating the principles of judicial review in disciplinary proceedings, the Apex Court held in para 12 as under:
"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."(para 12)
74. In R.S. Saini Vs. State of Punjab, 1999 (8) SCC 90 the Apex Court held that the standard of proof required in disciplinary proceedings is that of preponderance of probability where there are some relevant material which the authority has accepted and which material may reasonably support the conclusion that the officer is guilty. It is not the function of the High Court to review the material and to arrive at its own independent finding. It also held if the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the Court. This is followed in Lalit Popli Vs. Canera Bank and others 2003(3) SCC 583 (Para 16-19)
75. The same view has been followed by the Apex Court in the case of High Court of Judicature at Bombay Vs. Shashikant S. Patil AIR 2000 SC 22, wherein it has been held as under:
"Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority, (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed before Article 226 of the Constitution."(para 16)
76. The Apex Court in the above case also held that the disciplinary authority while considering the report of the Enquiry Officer is neither an appellate nor a revisional body and, therefore, its order cannot be drafted like a judgment. Even where it differs from the finding of the Enquiry Officer, it need not to discuss and contest in detail the conclusions of the Enquiry Officer but it is sufficient if it refers to its disagreement with some reason. The relevant observations are reproduced as under:
"The findings of the Inquiry Officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision making authority is the punishing authority and, therefore, that authority can come to its own conclusion, of course bearing in mind the views expressed by the Inquiry Officer. But it is not necessary that the disciplinary authority should "discuss materials in detail and contest the conclusions of the Inquiry Officer".(para 19)
77. In Syed Rahimuddin Vs. Director General, CSIR 2001 (9) SCC 575, the Apex Court observed as under:
"It is well settled that a conclusion or a finding of fact arrived at in a disciplinary enquiry can be interfered with by the court only when there are no materials for the said conclusion, or that on the materials, the conclusion cannot be that of a reasonable man."(para 5)
78. In Sher Bahadur Vs. Union of India 2002 (7) SCC 142, the orders of punishment were challenging on the ground of lack of sufficiency of the evidence. The Apex Court explained that the expression sufficiency of evidence postulates existence of some evidence which links the charged officer with the misconduct alleged against him and it is not the adequacy of the evidence.
79. Recently, in the case of Government of Andhra Pradesh Vs. Mohd. Nasrullah Khan, Judgment Today 2006 (2) SC 82, the Apex Court has reiterated the scope of judicial review as confined to correct the errors of law or procedural error if resulting in manifest miscarriage and justice or violation of principles of natural justice. In para 7, the Hon'ble Court held as under:
"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 appreciating the evidence as an Appellate Authority." (Para 7)
80. A Division Bench of this Court consisting of myself and Hon'ble S.R.Alam, as His Lordship then was, in Sarvesh Kumar Sharma Vs. Nuclear Power Corporation of India Ltd. & Anr. 2006(2) ESC 1153 has considered various authorities on the subject and summarized certain general principles emerging from various authorities as under:
(1) The Tribunal exercising quasi judicial functions neither bound to follow the procedure prescribed for trial of actions in Courts nor bound by the strict rules of evidence.
(2) They may obtain all information material for the points under enquiry and act upon the same provided it is brought to the notice of the party and fair opportunity is afforded to explain.
(3) The judicial enquiry is to determine whether the authority holding enquiry is competent, and whether the procedure prescribed is in accordance with the principle of natural justice (4) There should exist some evidence accepted by the competent authority which may reasonably support the contention about the guilt of the officer. Adequacy or reliability of the evidence can not be looked into by the Court.
(5) The departmental authorities are the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the Court.
(6) There is no allergy to hear-se evidence provided it has reasonable nexus and credibility. All materials which are logically probative for a prudent mind are permissible.
(7) The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice.
(8) It is not necessary that the Disciplinary authority should discuss material in detail and contest the conclusions of the Inquiry Office.
(9) The judicial review is extended only when there is no evidence or the conclusion or finding be such as no reasonable person would have ever reached on the basis of the material available.
81. Considering the manner in which departmental enquiry has been conducted in the present case, in the light of the aforesaid discussion, I find it difficult to uphold the impugned order of punishment. I have not given any undue preference to any single violation but it is totality of the circumstances in this particular case which, in my view, leaves no option but to hold that entire proceedings are vitiated in law has resulted in denial of adequate opportunity of defence to the petitioner and impugned order of dismissal, therefore, is unsustainable.
82. Though technically Appellate Authority has considered the matter in detail but what I find is that it has simply reiterated whatever has been said by Enquiry Officer and holding it correct. Virtually there is no discussion showing an independent application of mind on the part of appellate authority except of simply reiteration of language of Enquiry Officer as also the disciplinary authority. For the reason, dismissal order is vitiated in law as I said above, the appellate order also cannot sustain.
83. In view of the above discussion, it is evident that writ petition has to be allowed and the two orders have to be set aside. The question in that case would be, what should be the justified relief in such a case. I find that on this aspect also there is one set of the authorities which says that punishment order must be set aside and the employee should be granted relief of reinstatement with full wages etc. and all other consequential benefits. There is second view which though in favour of reinstatement and other benefits except full backwages and confined the same normally to 50%. There is a third view also where enquiry proceedings are vitiated on the ground of adequate opportunity to delinquent employee. There the Courts have adopted a third line by permitting the employer to proceed against the employee afresh treating the employee under suspension, paying subsistence allowance and in respect to arrears of salary etc., decision would be taken in the light of the final decision in the fresh proceedings.
84. In Managing Director, ECIL Vs. B. Karunakaran, JT 1993(6) SC 1: (1993) 4 SCC 727 it was held that the question whether an employee would be entitled for back wages and other benefits from the date of his dismissal to the date of his reinstatement should be left to be decided by the departmental authorities in accordance with Rules and in the light of the culmination of the proceedings and their outcome.
85. In V.J. Alexander (supra) while setting aside the order of dismissal on the ground of denial of adequate opportunity, the Court in para 16 held as under:
"On a conspectus of the decisions afore stated, we were around the view that in cases where order of dismissal or removal of a delinquent employee is interfered with on the ground of some procedural lacuna or defect in the domestic enquiry and it is not examined independently by the Court whether the charges against the delinquent employee are established on the material on record which exercise is impermissible in Court's certiorari jurisdiction under Article 226 of the Constitution except, perhaps, where such exercise is considered by the Court convenient and feasible on admitted facts brought before it, the Court should demolish the order of removal or dismissal passed by the departmental authority and remit the matter to the disciplinary authority to follow the procedure from the stage at which fault was committed and take action according to law. Pending such enquiry delinquent employee must be deemed to be under suspension entitled to such subsistence allowance as may be admissible subject, of course, to the fulfilment of the pre-requisite conditions, if any, laid down in the relevant Service Rules/Regulations/Executive Orders. In cases where the Court finds on consideration of the material on record, that the charges levelled against the delinquent employee are not sustainable and he is entitled to be exonerated then in that event, notwithstanding the delay that may have taken place, it may direct reinstatement of the employee with consequential benefits unless the case falls within any exceptional category and the Court finds that the reinstatement of delinquent employee would be prejudicial to the larger interest of the establishment."
86. In Banaras Hindu University, Varanasi and others Vs. J.N. Tripathi (supra) it was held that "an order for payment of full back wages is not to be passed as a matter of course in every case in which the order of dismissal is set aside or quashed by the High Court."
87. Same is the view taken in writ petition No. 44002 of 2005, Shiv Shanker Saxena vs. State of U.P. and others decided on 3.3.2006.
88. Following the above decisions, a Division Bench of this Court consisting of myself and Hon'ble S.R.Alam, as His Lordship then was, in General Manager, National Thermal Power Corporation Ltd. Vs. Gurucharan Singh 2007(3)ESC 1533 held:
"Thus, we are also of the view that the Hon'ble Single Judge instead of directing for reinstatement of the petitioner with entitlement of entire arrears of salary, ought to have directed that during the course of disciplinary inquiry the petitioner/employee shall be treated under suspension and paid his subsistence allowance. Further for the period, he had been wrongly dismissed and remained out of job for that period also, he should be paid subsistence allowance. The entitlement of the petitioner for full wages shall depend on the outcome of the inquiry whereafter disciplinary authority shall pass appropriate orders in terms of the relevant Standing Orders and law.
In the result, both the appeals succeed in part. The judgment of the Hon'ble Single Judge is modified as under:
"The writ petition is allowed in part. The order dated 28.1.2004 impugned therein is set aside. The management employer, however, is at liberty to hold disciplinary inquiry against the petitioner/employee afresh from the stage of chargesheet after affording adequate opportunity of defence to the petitioner and in accordance with law. For the entire period, the petitioner/employee remained out of service pursuant to the dismissal order impugned in the writ petition, he shall be deemed under suspension, entitled for payment of subsistence allowance. In case the management decides to hold the disciplinary inquiry as permitted above, during that period also the petitioner shall remain under suspension and shall be paid subsistence allowance in accordance with law. Payment of arrears of subsistence allowance under this order shall be made to the petitioner within two months. The decision with respect to entitlement of the petitioner for full back wages shall be taken by the management as a result of culmination of inquiry proceedings and its final outcome. Since this matter has already remained pending for almost nine years, we direct that in case, the management holds fresh inquiry, the same shall be concluded within six months from the date of production of a certified copy of this order."
89. In my view, while allowing the writ petition and quashing the two impugned orders, this Court should follow the third view, as discussed above.
90. In the result the writ petition is allowed. The impugned orders dated 04.12.2000 and 04.09.2001 are hereby quashed. The respondents Bank, however, is at liberty to hold the disciplinary enquiry against the petitioner afresh from the stage of oral enquiry i.e. after filing of the documents by the employer. The enquiry shall be conducted in the light of the discussion made above and in accordance with law and due opportunity of defence shall be afforded to the petitioner. For the period the petitioner remained out of service pursuant to dismissal order, impugned in the writ petition, he shall be deemed under suspension, entitled for payment of subsistence allowance.
91. Since I have granted liberty to the employer, in case the Bank decides to hold disciplinary enquiry afresh, as permitted above, the petitioner, during the period the enquiry would continue, shall remain under suspension. He shall be paid subsistence allowance in accordance with law and rules.
92. The arrears of subsistence allowance under this order shall be paid to the petitioner within two months. The decision with respect to entitlement of petitioner for full back wages shall be taken by the employer in the light and the result of fresh enquiry proceedings and its final outcome.
93. In case the management decide to hold fresh enquiry, it shall complete the same within six months from the date of production of a certified copy of this order.
94. No order as to costs.
Order Date:-16.09.2011 KA