(Per : HONOURABLE MR.JUSTICE MOHINDER PAL)
1. This Letters Patent Appeal is at the instance of the appellant - State Bank of Patiala against the decision of the learned Single Judge by which the appeal against the departmental inquiry and subsequent proceedings against the respondent - Rajeev Kumar ("the delinquent"
for short) has been allowed and the impugned order dated 6.8.1987 imposing penalty of dismissal against the delinquent confirmed in the appeal and revision has been quashed and set aside. The delinquent has been further held entitled to be continued in service till the age of superannuation with all consequential benefits. It has been, however, ordered that the salary and other allowances for the period during which the delinquent remained out of job, he shall be entitled to only 50% of such monetary benefits (back wages) from the date of the order of dismissal from service till the date of superannuation. The appellant bank was directed to pay arrears and consequential benefits to the delinquent within a period of three months.
2. The brief facts of this case are that the delinquent joined as Probationary Officer in State Bank of Patiala at Kanpur Branch on 24.11.1979 and confirmed on 24.11.1981 and in November 1984, the delinquent was transferred to Ahmedabad as Branch Manager. It is stated that Shah-E-Alam Roza branch of the appellant bank was started in November 1984 and the delinquent took over the charge as Branch Manager of this branch from 10.12.1984. As the premises of this branch had insufficient space, the proposals were invited by the Branch Manager, Ashram Road Branch, Ahmedabad to acquire spacious building for the bank. The applications received by the said branch were forwarded to the Regional Manager at Delhi. The Managing Director and the Zonal Manager, Delhi came to Ahmedabad on 12.2.1985 and they were accompanied by one Mr.S.K.Sharma working in the office of the Deputy Director of Intelligence, Income Tax Department, Indraprashtha Estate, New Delhi. The team from Delhi inspected two buildings which were offered by Mr.S.K.Sharma. One of the offers was in the name of the wife of Mr.Sharma and other was in the name of her brother Mr.S.B.Sharma. The delinquent had occasion to report about one offer received in the name of M/s Navyug Corporation which was owned by one Mr.K.M.Trivedi. The delinquent was not associated with the inspection of two buildings offered by Mr.S.K.Sharma. After approval of the proposal of Mr.Sharma, the letter dated 16.4.1985 came to be communicated to the delinquent on 20.4.1985. After communication of the letter, the building came to be purchased by Mr.Sharma under the deed dated 30.4.1985. Mr.S.B.Sharma - the relative of Mr.S.K.Sharma came to the branch on 20.4.1985. As the building sort listed by the officials was not fit for taking over possession and some disputes regarding this building were going on, the delinquent informed the higher officials regarding the same. In return, the delinquent was pressurized by the higher officials from Delhi as well as Mr.Sharma to take the building on rent as well as to extend the loan of Rs.1 lac on the said building. In the month of May, 1985, the delinquent approached the CBI authority at Ahmedabad and narrated his case which has arisen out of undue favour to Mr.S.B.Sharma by the higher up in the bank. In pursuance of the report made to the CBI, the delinquent received official letter dated 24.6.1985 from the CBI requesting him to hand over the concerned files available in the branch office in respect of hire of new premises at 36, Bhavna Society, Ahmedabad and it was further stated that in case the original files were not available, xerox copies of the documents be supplied. When this matter was going on, a raid by Anti Corruption Bureau was conducted at the delinquent and he was taken into custody by the police. He was taken to the police station from where he managed to give telephonic call to the CBI officials and ultimately, he was allowed to go home without registration of any criminal case. In pursuance of this development, the delinquent was placed under suspension vide communication dated 13.9.1985 on the allegation that the regular case has been registered against the delinquent under section 161 of Indian Penal Code and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947. The said order purported to have been passed under Regulation 69(1)(b) of the State Bank of Patiyala (Officers) Services Regulations, 1979. The order of suspension was not in contemplation of any disciplinary inquiry, but it was on the basis of the criminal case registered against the delinquent. It is further case of the delinquent that the criminal charges were dropped without presentation of any chalan.
3. The delinquent received communication dated 10.5.1986, containing articles of charges and imputations of misconduct against him. The disciplinary authority decided to hold inquiry and one Mr.K.P.Gupta was appointed as Inquiry Officer and Mr.Surinder Gupta was appointed as bank's Presenting Officer. The delinquent requested for some documents and copy of the regulations, but there was no response from the authority. It is stated that the Inquiry Officer and the bank's Presenting Officer both were appointed by the disciplinary authority at the instance of and in collusion with the Managing Director and other officials stationed at Delhi in connivance with the complainant Mr.Sharma. It is further his case that the inquiry has been conducted in violation of various provisions of the bank and in violation of the principles of natural justice. The delinquent also raised objection regarding appointment of the Inquiry Officer with a bias, however, the same was declined. The day prior to the day of inquiry at Ahmedabad, the delinquent was supplied with the railway ticket without reservation and in waiting list. As a result of which, he could not attend the inquiry proceedings nor his request to adjourn the inquiry proceedings was considered. The inquiry proceedings were conducted ex parte and adverse findings were recorded against the delinquent. It is further his case that copies of the documents relied upon by the Inquiry Officer were not supplied to him and out of 10 witnesses relied upon by the Inquiry Officer, no examination in chief of 7 witnesses was recorded. The star witness of the appellant i.e. a three-wheeler driver did not support their case. It is submitted that the entire inquiry was vitiated because none of the witness was examined in chief before the Inquiry Officer, but only the police papers were put on record and the said statements were taken as evidence by the Inquiry Officer. It is further case of the delinquent that under Regulation 68(3)(iii) of the appellant bank, if the disciplinary authority is of the opinion that the penalty proposed is major penalty and if the disciplinary authority is lower in rank to the appointing authority, it shall submit the entire record of the inquiry to the appointing authority together with the recommendations regarding penalty proposed to be imposed and then, it is for the appointing authority to make an order of imposing such penalty as it consider appropriate. However, in the case of the delinquent, the report of the inquiry authority was submitted to the disciplinary authority and the disciplinary authority has submitted the report with recommendations to the Managing Director - appointing authority. The appointing authority, therefore, was required to give hearing to the delinquent. However, without giving any opportunity of being heard, the order dated 6.8.1987 imposing punishment of dismissal was passed. The delinquent also agitated non-supply of copies of the inquiry report and recommendations of the disciplinary authority and as such, the order was against the principles of natural justice.
4. The petition of the delinquent was opposed by the appellant bank by filing the affidavit-in-reply. Learned Single Judge, while taking into account various aspects of the case including violation of principles of natural justice, set aside the impugned order and granted relief as stated in previous part of this judgment. Aggrieved from this decision, the appellant bank is before us in appeal.
5. We have heard learned counsel for the parties and gone through the file with their help.
6. Learned counsel for the appellant bank submitted that the learned Single Judge has committed an error by quashing the impugned order while relying upon the contention of violation of principles of natural justice. It is submitted that at all the stages of the proceedings, that is, from initiation of the disciplinary proceedings till the final order of dismissal from service, the appellant bank had duly complied with the principles of natural justice and also appropriate provisions of service rules. It has been submitted that the delinquent was apprehended red-handed while accepting bribe of Rs.5000/- and under these circumstances, his dismissal from service was valid and legal. In support of this argument, he has also pressed into service the decision of the Apex Court rendered in Oriental Bank of Commerce Vs. R.K.Uppal, 2011-TLPRE-0-802 and the decision of this Court rendered in Manibhai J.Patel Vs. State Bank of India and another, [2010] 25 GHJ (513).
7. On the other-hand, learned counsel representing the delinquent has submitted that in this case the provisions contained in service rules of the appellant bank as well as the principles of natural justice have been flagrantly violated and under these circumstances, the impugned order has been rightly quashed by the learned Single Judge.
8. The main question for consideration before this Court is whether the provisions contained in the Indian Evidence Act, Service Rules applicable to the employees of the appellant bank and the principles of natural justice have been violated in this case ?
9. One of the first judgments interpreting the provisions of Article 311(2) of the Constitution of India is Khem Chand Vs Union of India and others, AIR 1958 Supreme Court 300, wherein it was held by the Honourable Supreme Court to the effect:
"19.
To summarise :
the reasonable opportunity envisaged by the provision under consideration includes -
(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;
(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally
(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant."
10. Learned Single Judge has primarily considered the question as to whether denying an opportunity to the delinquent by proceeding against him ex parte and further terminating service while relying upon the cross examination of the material witnesses amounts to violation of the principles of natural justice. There is no straight jacket formula by which it could be concluded that there is violation of principles of natural justice. Each case has to be decided on its own facts. While saying so, we are conscious of the fact that the Court is not required to interfere with the appellant's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscious of the Court, in the sense that, it was in defiance of the logic or moral standards. The Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the appellant. The scope of judicial review is limited to the deficiency in decision making process and not to the decision.
11. It will be relevant to note that the whole inquiry conducted against the delinquent was in gross violation of the principles of natural justice. The Inquiry Officer brought on record the statement of the complainant Mr.S.B.Sharma recorded during the investigation by the police. The said witness - complainant was not permitted to be cross examined by the delinquent till all other witnesses were examined on the side of the appellant bank. These all seems to have been done in order to deprive the delinquent from cross examining Mr.Sharma and in this design, they succeeded on 27.4.1987 when the case of the appellant bank was closed and the defence assistant left due to his illness. It is further relevant that absence of the delinquent also seems to have been managed on the date of the inquiry i.e. 27.4.1987. The delinquent was informed about the said date only on 24.4.1987 along with the ticket in waiting list dated 26.4.1987 which was surely not to be confirmed as it was at serial No.17 in the waiting list and the delinquent was not permitted to travel by Air and taking the benefit of his absence, the Inquiry Officer did not grant any adjournment and continued with the inquiry till 29.4.1987 while ignoring the request of the delinquent for adjournment. It is strange that the complaint of Mr.Sharma to Anti Corruption Bureau, alleged panchnama and some other documents which were not part of the list of documents given to the delinquent were permitted to be placed on record. The defence assistant of the delinquent was refused permission to inspect those documents. The Inquiry Officer was biased in a way as he enjoyed the hospitality of the complainant to which the delinquent objected in writing, but it fell on deaf ears. It was also pointed out that the Inquiry Officer Mr.P.K.Gupta was himself involved in serious offences under the Prevention of Corruption Act, Indian Railways Act and also under the Banking Regulations and, hence required to be placed under suspension and, therefore, was required to be replaced. In fact, the case from the beginning was surrounded by suspicious circumstances. The bank officials came to Ahmedabad while in the company of Mr.Sharma who was interested party and who had purchased the building in question after the officials in principle agreed to hire that building. It is also relevant to note that out of 10 witnesses relied upon by the appellant bank, examination in chief of 7 witnesses has not been recorded in the inquiry proceedings. Their statements made to the police at the time of registration of the criminal case have been made the basis. This is particularly significant when the Anti Corruption Bureau has decided to drop the proceedings and have not presented the chalan in the court. Out of remaining three witnesses, two are the eye witnesses who are stated to be present at the time when the alleged tainted currency notes were recovered. None of these witnesses have supported the case of the appellant, rather according to them, money had been thrust upon the delinquent. It is also worth mentioning that before registration of the case by the Anti Corruption Bureau, the delinquent had complained to the CBI officials and on whose intervention, the chalan has not been presented and the delinquent has been let off without even formal arrest.
12. Regulation 69(1)(a) deals with the process of suspension of an employee in the bank. We are of the considered opinion that placing delinquent under suspension on the basis of registration of the case under the Prevention of Corruption Act without presentation of chalan was clear violation of those provisions and the principles of natural justice.
13. Learned counsel for the appellant bank has laid emphasis on the decisions in Oriental Bank of Commerce (supra) and Manibhai J.Patel (supra) and has contended that violation of the principles of natural justice cannot be made basis to set aside the order in question. The ratio of the judgment in Oriental Bank of Commerce (supra) also revolves around the point that the doctrine of natural justice cannot be imprisoned within straightjacket or a rigid formula. The application of doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances. We are of the considered opinion that the present case in which not only mandatory service regulation has been violated while conducting the inquiry against the delinquent, but the violation of doctrine of natural justice is also attracted. Similarly, the decision in the case of Manibhai J.Patel (supra) is not applicable as even that case also allows interference by the Court where there is lack of jurisdiction or jurisdiction is exceeded by the competent authority. Recording of evidence on the basis on which the delinquent has been punished is in clear violation of the principles of natural justice and the finding recorded by the enquiry officer is found to be perverse.
14. For the aforementioned reasons, we do not find any reason to interfere with the judgment and order of learned Single Judge and accordingly uphold the judgment and dismiss the appeal along with C.A.
(D.H.Waghela,J) (Mohinder Pal,J) pathan Top