JUDGMENT A.P. Misra, J.
1. The petitioner seeks quashing of order dated July 16, 1985, passed by the disciplinary authority (Annexure 11), order of the reviewing authority dated July 5, 1985 (Annexure 10), order of the appellate authority dated September 12, 1984 (Annexure-7) and the order of the disciplinary authority dated June 6, 1985 (Annexure 5 to the writ petition) and further direct the respondents to treat the petitioner as an officer of the Allahabad Bank and to accord him all the benefits and privileges of the continuity of service.
2. The facts of the case, in short, are that the petitioner joined the Allahabad Bank as a clerk on August 6, 1957, at Allahabad. Later, he was posted as Manager at Azamgarh in April 1979. He was then promoted as Middle Management Grade Scale II from December 29, 1982. He remained at Azamgarh from April, 1979, till February 26, 1983 when he was transferred to Gola Gokaran Nath Branch in Lakhimpur Kheri as the Manager. The Petitioner was served with a charge-sheet dated June 3, 1983, which is Annexure- 1 to the writ petition, with the charge that while functioning as Manager of the Bank at Azamgarh he allowed financial facilities to certain borrowers mentioned in the charge-sheet beyond his discretionary authority and without obtaining the proper sanction and also failed to complete documentation formalities to protect bank interest and continued to make advances to borrowers even after his discretionary power was withdrawn by the Regional Officer Allahabad on July 1, 1980. Relevant charges A and B are reproduced below:
"A. You allowed advances to several parties in most reckless manner going far beyond and/or in absence of your discretionary authority and without obtaining sanction from higher authorities. While allowing the advances you have neither obtained required security nor completed any documentation formalities to safeguard the financial interest of the Bank. Those advances were also not reported to your higher authorities and thus kept concealed from their notice. Such instances are indicated in the enclosure marked Annexure-1.
B. You continued to allow the advances in spite of the fact that the Regional Manager Allahabad, vide letter No. RC/AB/34/D 43306 dated July 1, 1980 suspended your discretionary authority in the matter of advances and you were instructed vide said office letter No. RO/AE/ACD/D/2603 to stop all types of advances, yet you continued to flout the instructions of higher authorities. Your such action, therefore, is tantamount to wilful disregard to the instructions of your higher authorities."
The petitioner submitted a reply on June 23, 1983 (Annexure-2 to the writ petition), which was found unsatisfactory. Hence, departmental enquiry was ordered as aforesaid and the Inquiry Officer recorded a finding on May 22, 1984 and forwarded it to the disciplinary authority. Since only two charges in the charge- sheet, namely, charges A and B were found proved, the disciplinary authority held on June 6, 1984 (Annexure 5 to the Writ petition), for Charge A punishment under Regulation 4(g) of Allahabad Bank Officers Employees' (Discipline and Appeal) Regulations, 1976 (hereinafter referred to as the Regulation 1976) for his dismissal which was held not to be a disqualification for future employment and for Charge B a punishment by reduction in his basic pay to the initial stage of Scale II, that is to say, Rs. 1,200/- per month in terms of Regulation 4(e). The petitioner preferred an appeal, which was partly allowed by the appellate authority on September 12, 1984, by holding that imposing two major penalties on the petitioner, viz. reduction in scale and also dismissal from service introduced an element of anomaly as well as legal infirmity since two punishments cannot be imposed in respect of charge contained in one single charge-sheet. Hence, it remanded the matter to the disciplinary authority for considering the point of punishment only. The disciplinary authority, after remand on December 10, 1984 (Annexure-8 to the writ petition) waived the punishment to the charge listed as Charge B while punishment for Charge A was maintained. Thus, it upheld the order of dismissal of the petitioner and deleted the punishment of reduction in scale. The petitioner thereafter under advice then preferred a review petition before the Chairman-cum-Man-aging Director through application dated May 31, 1985 (Annexure-9 to the writ petition). This authority on July 5, 1985 (Annexure-10 to the writ petition) simply changed the dismissal order into order of removal from service. As a consequence the disciplinary authority passed another order dated July 16, 1985 (Annexure 11 to writ petition). However, the petitioner, being dissatisfied, has filed the present writ petition.
3. Learned counsel for the petitioner, though has taken a number of grounds in the petition, has confined to only one ground before us, viz. non-supply of the inquiry report to the petitioner before inflicting punishment amounts to violation of principles of natural justice, hence, the order is liable to be quashed. The petitioner clearly stated that findings recorded by the Inquiry Officer on May 22, 1984 were only given to the petitioner along with the punishment order dated June 6, 1984 itself and not before it. This fact is not in dispute. The respondents have stated that this communication was in terms of Regulation 9, which provides that the order made by the Disciplinary Authority under Regulation 7 which is a consequential action in pursuance to the inquiry report, shall be communicated to the officer "charged, who shall also be supplied with a copy of the report of the inquiry.
4. It is not in dispute that the copy of the report dated May 22, 1984 was given to the petitioner along with the order of punishment dated June 6, 1984. The question is whether non-supply of this report prior to imposing penalty amounts to violation of principles of natural justice or not.
5. The petitioner relied on Union of India and Ors. v. Mohd, Ramzan Khan (1991-I-LLJ-29)(SC), in which it was held as follows: (p. 35) "We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to be challenged hereafter."
6. Next, reliance was placed on State Bank of India and Ors. v. D.C. Aggarwal and Anr. (1993-I-LLJ-244)(SC), which held as follows: p. 246 "Law on natural justice is so well settled from series of decisions of this Court that it leaves one bewildered, at times, that such bodies like State Bank of India, who are assisted by hierarchy of law officers, commit such basic and fundamental procedural errors that courts are left with no option except to set aside such orders. Imposition of punishment to an employee, on material which is not only not supplied but not disclosed to him, has not been countenanced by this Court. Procedural fairness is as much essence of right and liberty as the substantive law itself."
7. In the case of Mohd. Ramzan Khan (supra) there was non-supply of the report of the Inquiry Officer regarding the finding of guilt and proposed punishment to the delinquent officer, and in the case of D.C. Aggarwal (supra) the penalty imposed relying on the report of the Central Vigilance Commission not supplied to the petitioner claiming it to be a privilege document was held to be unsustainable in view of the violation of principles of natural justice. The case of Mohd. Ramzan Khan (supra) in effect held where adverse report of the Inquiry Officer was kept away from the delinquent officer which holds the delinquent officer guilty with or without proposal for any particular punishment it would be a case of violation of principles of natural justice.
8. It is significant after deletion of second opportunity from the scheme of Article 311(2) of the Constitution of India by the Constitution (Forty-second Amendment) Act, 1976, several decisions came of various High Courts and the Service Tribunals that non-supply of such inquiry report while passing an order of punishment would not amount to violation of principles of natural justice. However, the matter was put at rest in the case of Mohd. Ramzan Khan (supra) that such non-supply would amount to violation of principles of natural justice. In view of the unsettled position of law preceding the decision in the case of Mohd. Ramzan Khan (supra) the proposition laid down in Mohd. Ramzan Khan case was made prospective and no punishment imposed preceding the said decision, was held, could be open to challenge on that ground. Subsequently, the case of Mohd. Ramzan Khan (supra) again came up for consideration in Managing Director, EC1L, Hyderabad v. B. Karunakar (1994-I-LLJ-162)(SC). In this case also the emphasis was laid that the law as declared in Mohd. Ramzan Khan case was prospective and any action already taken by the disciplinary authority preceding the judgment in that case was saved and was held as follows: p. 183 "The need to make the law laid down in Mohd. Ramzan Khan's case (supra) prospective in operation requires no emphasis. As pointed out above, in view of the unsettled position of the law on the subject, the authorities/management all over the country had proceeded on the basis that there was no need to furnish a copy of the report of the Inquiry Officer to the delinquent employee, and innumerable employees have been punished without giving them the copies of the reports. In some of the cases, the orders of punishment have long since become final while other cases are pending in courts at different stages. In many of the cases, the misconduct has been grave and in others the denial on the part of the management to furnish the report would ultimately prove to be no more than a technical mistake. To reopen all the disciplinary proceedings now would result in grave prejudice to administration which will far outweigh the benefit to the employees concerned. Both administrative reality and public interests do not, therefore, require that the orders of punishment passed prior to the decision in Mohd. Ramzan Khan's case (supra) without furnishing the report of the Inquiry Officer should be disturbed and the disciplinary proceedings which gave rise to the said orders should be reopened on that account. Hence we hold as above."
In this case it was further held that even in the absence of supply of such report preceding the order of punishment should not make Court or Tribunal to act mechanically to set aside an order of punishment. The Courts and the Tribunal should find in each case that the furnishing of such report if it would have made a difference in the result then only it should set aside the order of punishment and after setting aside the order of punishment it should direct reinstatement of the employee with liberty to the authority/management to proceed with Inquiry by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report and further whether such employee is entitled for the back wages and other benefits could be left to be decided by the authority concerned in accordance with law, after the culmination of proceedings and depending on the final outcome. The relevant paragraph is quoted hereunder:-
"The answer to this question has to be relevant to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether, in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretch the concept of justice to illogical and exasperating limits. It amounts to an unnatural expansion of natural justice which in itself is antithetical to justice.
Here in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short-cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, and not any internal appellate or revisional authority, there would be neither a breach of the principle of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the backwages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. p1 That will also be the correct position in law."
Thus, the law as it stands today is that the furnishing of report of the Inquiry Officer where such report finds the delinquent official guilty with proposal of punishment or not such officer is entitled for copy of such report and will also be entitled to make a representation against it if he so desires and non- furnishing of such a report amounts to violation of principles of natural justice, but the court should not mechanically set aside any order of punishment on the ground of non-supply of such report but should examine each case on its facts and circumstances and in case if the court finds that the furnishing of such a report would have made a difference to the result then only it should set aside the order of punishment and after setting aside the said order the procedure to be followed is to reinstate such employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report.
Applying the aforesaid principles to the facts of the present case we find that the impugned order of removal of the petitioner was passed in the year 1985, which is admittedly preceding the date of decision in the case of Mohd. Ramzan Khan (supra) and this principle being prospective in operation cannot be availed of by the petitioner and hence merely non-supply of the copy of such report to the petitioner would not make the order illegal as to be violating the principles of natural justice. In other words, even if it could be said to be violative of principles of natural justice, but in view of the said decision and taking into consideration the Constitution Forty-Second Amendment such an order would be saved and cannot be challenged on this ground.
After hearing learned counsel for the petitioner, a day earlier, in view of the decision in the case of Managing Director, ECIL, Hyderabad v. B. Karunakar (supra) we desired the learned counsel for the petitioner if he so desires may point out as to whether there will be any difference in the conclusion arrived at by the authority punishing the petitioner in case the inquiry report was given to the petitioner. For this the case was taken up on the next date where he made efforts to point out in the said report that had that report been given to the petitioner and had the petitioner got the opportunity the result would not have been the same. The said inquiry report since found the petitioner guilty on charges A and B only, he referred to the conclusion of the said officer on these charges. First, he attacked the findings:
"........... the charged officer has produced documentary evidence ........ in his defence and did not produce any witness in support of his defence."
This later portion, he said, if there would have been an opportunity he would have disclosed the reasons for not producing the witness. The fact that he did not produce witness is not disputed even today and the reason why he did not produce was never raised at any stage of the disciplinary proceedings or even by filing an appeal or review petition. Even though learned counsel for the petitioner made strenuous efforts to point out possible prejudice but after hearing him and perusing the said report we feel that no material prejudice was caused to the petitioner on account of non-supply of the said document. This is especially in view of findings recorded on the aforesaid two charges by the Inquiry Officer that the charged officer has not contested the evidence of witnesses nor has disputed the contents of the exhibits presented by the witnesses. Further, he recorded a finding that the charged officer has admitted of having allowed advances over and above the sanctioned limit and has also accepted the existence of incomplete and defective documents in few cases. This findings of the Inquiry Officer, viz. the charged Officer has not contested the evidence of the witnesses and further the finding that the charged officer has admitted of having allowed advances over and above the sanctioned limit and further acceptance of incomplete and defective document not being challenged either in appeal or in review, which were the proceedings subsequent to the date of furnishing copy of the inquiry report and also taking into consideration the magnitude of irregularities we find even if an opportunity would have been given to the petitioner by furnishing a copy of the said report would not have made any difference to the finding recorded by the disciplinary authority. Even according to the petitioner, the amount involved affecting the transactions alleged not being recovered was to the tune of Rs. 40 lacs, though it is contended later that Rs. 23 lacs were recovered.
Learned counsel for the petitioner also relied on the State of Mysore v. K. Manche Gowda AIR 1964 SC 506 which held:-
"We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation."
This was a case under Article 311(2) of the Constitution even prior to Forty Second Amendment of Constitution. This decision and catena of further decisions stand finally settled in the case of Mohd. Ramzan (supra) as we have pointed out above.
In view of the aforesaid findings recorded by us the present petition fails, firstly, since punishment awarded to the petitioner was prior to the decision of Mohd. Ramzan's case (supra) and that decision being prospective no benefit can accrue to the petitioner and the law declared earlier by the various courts including the Supreme Court in view of Forty-Second Amendment of Constitution would be applicable. Hence, the petitioner cannot get benefit of the principles laid down in Mohd. Ramzan's case; and, secondly, in view of the decision in the case of B. Karunakar (supra) if an opportunity is to be given to the petitioner we having examined and having come to the conclusion that no different conclusion other than taken by the impugned order could be arrived at on the facts of this case.
Accordingly, this writ petition is dismissed. Costs on parties.