SUPREME COURT OF INDIA
P.D. Agrawal
Vs
State Bank of India and Others
Civil Appeal No. 7686 of 2004
(S. B. Sinha and P. P. Naolekar, JJ)
28.04.2006
S. B. SINHA, J.
The Appellant herein was working as a Junior Manager, Grade-I in a Branch
office of the 1st Respondent-Bank, herein. On or about 29.9.1984 he is said to
have misbehaved with the Regional Manager of the Bank. He was placed under
suspension. Disciplinary proceedings were also initiated against him on
26.11.1984. He was found guilty of the misconduct alleged against him. On
earlier occasion also, he was found guilty for misbehaviour wherefor, he had
been censured. He was thereafter allowed to join his duties. The Appellant,
however, despite imposition of the said penalties on him, started misbehaving
with the senior officers again as also with the customers by using abusive
language and passing derogatory remarks during the period 8.9.1986 to
27.9.1986. During the said period, it may be mentioned, he was posted in
different branches. A disciplinary proceeding was started against him. The
charges levelled against him were as under:
"Katni Market Branch
1. You created an unpleasant scene and atmosphere by using unparliamentary
language against the local authorities of the Branch in a calculated attempt to
denigrate the said authority, which act of yours damaged/tarnished the image of
the Bank.
Churcha Branch
2. You disobeyed the lawful and reasonable orders of the superiors. You also
crossed the boundaries of decorum and decency. You have thus acted in a manner
unbecoming of an official of the Bank.
3. You disregarded the lawful instructions of the superiors.
Shahdol Branch
4. (a) By your acts you have disobeyed the lawful instructions of the
superiors. You also displayed gross negligence in performance of your duties.
(b) By your acts you disobeyed the lawful and reasonable orders of the Bank.
You also showed insubordination to the superior authorities. Your acts are
unbecoming of officer of the Bank.
(c) By your acts you intentionally showed insubordination to the superior
authorities of the Bank. You thus acted in a manner unbecoming of an official
of the Bank.
(d) You created a feeling of insecurity amongst the staff members. You have
acted in a manner unbecoming of an official of the Bank. Jabalpur Regional
Office
5. You failed to obey the reasonable and lawful orders of the Bank and behaved
in a manner unbecoming of an official of the Bank.
The above charges, if proved, are tantamount to misconduct in contravention of
Rules 32(1) and 32(4) and (5) of the State Bank of India (Supervising Staff)
Service Rules governing our services."
2. One Shri R.K. Sharma, Branch Manager, having been abused and threatened to
be hit by shoes by the Appellant, lodged two First Information Reports (FIR)
against the Appellant pursuant whereto two cases under Sec. 353 of the Indian
Penal Code were initiated in respect of the incidents which took place on
16.10.1986 and 23.10.1986. He was placed under suspension by an order dated
11.11.1986 by the Disciplinary Authority stating:
"It has been reported that soon after your reinstatement on 16th August,
1986 on conclusion of major penalty proceedings against you, you again misbehaved
with your colleagues, senior officer and also some of the outsiders and used
abusive language passing derogatory remarks during your recent stay at
different branches viz. Katni Market, Churcha and Shahdol branches. This has
tarnished the image of the bank and resulted in your arrest by the local police
on 16th October, 1986 and thereafter on 23rd October, 1986 under Sections 353,
448 and 506 of Indian Penal Code.
The nature and extent of the misbehaviour indicates that the established
authorities of the Bank and certain other functionaries in the Regional Office
and engendering indiscipline amongst the staff."
3. He was, however, acquitted of the charges levelled against him in the
criminal proceedings by a learned Judicial Magistrate by a judgment dated
7.5.1988, inter alia, on the ground that the same could not be proved beyond
reasonable doubt.
4. The Disciplinary Authority thereafter issued a charge sheet against him for
his purported misbehaviour during the period 8.9.1986 to 27.9.1986 to which we
have referred to hereinbefore. An Inquiry Officer was appointed to enquire into
the said charges. Before the said Inquiry Officer several witnesses were
examined. In relation to each of the charges, the witnesses, indisputably, were
cross- examined. The Appellant also entered into defence and several documents
on his behalf were exhibited.
5. The Inquiry Officer considered all the materials brought on record,
including the judgment passed in his favour in the criminal case. The Appellant
was found guilty of all the charges except the charge No.2.
6. The Disciplinary Authority, however, differed with the findings of the
Inquiry Officer as regards the said charge No.2 and recommended for his
dismissal from services to the Appointing Authority stating:
"2. I am in agreement with the findings of the Inquiring Authority in
respect of all the allegation/charges except allegations/charge No.2. In
respect of allegation No.2, on perusal of deposition of Shri K.C. Tiwari (the
maker of PEX-3) I find that DEX-1 was written by him under pressure of the
charge sheeted official. Further PEX-4 was written by Shri Tiwari on receipt of
the letter of Regional Office (DEX-3). However, nothing has been established
during the course of the enquiry that the letter PEX-3 was written under
pressure. Therefore, I am not in agreement with the Inquiring Authority that
the letter (PEX-3) was not written of his own volition, and placing reliance on
PEX- 3, 1 hold the allegation and the charge as fully proved.
3. In this connection, I have also perused/examined and considered the past
record of the official. I find that earlier also the official was placed under
suspension for similar type of acts of misconduct and was proceeded against for
major penalty. On conclusion of the enquiry he was inflicted upon the penalty
of "Censure" by the Disciplinary Authority considering that he
suffered mental agony and that the act was the first riotous act during his
service and with a view to give him an opportunity to reform himself. Despite this,
I find that the official has repeated such type of misconduct proving that the
earlier decision of the Disciplinary Authority did not have any reformative
impact upon the official.
4. The ingredients of the proved/partly proved allegations/charges in the
instant case are so grave that the official does not deserve to be continued in
the Bank's service. therefore, recommend that the penalty of "Removal from
Bank's service" as provided for in Rule No.49(g) of the State Bank of
India (Supervising Staff) Service Rules may be inflicted upon the official
treating his period of suspension as such. Accordingly, he will not be eligible
for any back wages for the period of his suspension. The order shall be
effective from the date of its receipt by the official."
7. It is not disputed that the Disciplinary Authority, prior to making the said
recommendations, did not assign any reason for expressing his difference of
opinion with the Inquiry Officer as regard the said charge No.2, nor served the
delinquent officer with a show cause nor he was served with a copy of the
enquiry report. The Appointing Authority, however, relying on or on the basis
of the said recommendations of the Disciplinary Authority, as also upon
consideration of the materials on record, while forwarding a copy of the report
of the Inquiry Officer, imposed upon the Appellant a punishment of removal from
service stating:
"I have perused the records of the enquiry in its entirety and concur with
the reasonings/findings recorded in the "Note" of the Disciplinary
Authority. Accordingly, I am in agreement with the recommendations of the
Disciplinary Authority that you do not deserve to be continued in the Bank's
service. I have, therefore, decided to inflict upon you the penalty of
"Removal from service" in terms of Rule No.49(g) of the State Bank of
India (Supervising Staff Service Rules governing your services in the Bank read
with Rule No.50(3)(iii) ibid., which I hereby do. Further, you will also not be
paid the salary and allowances for the period of your suspension except the
subsistence allowance already paid to you, as the period of suspension has been
treated as such by me. The order shall be effective from the date of receipt of
this letter by you. Please note that a copy of this order is being placed in
your service file."
8. The Appellant herein, thereafter, preferred an appeal before the Appellate
Authority. As regards the opinion of the Disciplinary Authority, so far as
charge No.2 is concerned, he stated:
"The enquiring authority held this charge disproved but the disciplinary
authority reversed the findings of E/ A and deemed the charge as proved. The
act of disciplinary authority having given weightage to the CSO pressure on BM
Churcha requires to be reviewed in the light of the fact that the Regional
Manager's say in the matter was not considered the pressure to whom BM is
subordinate but an OJM on deputation to the branch could pressurise the BM
Churcha. The perusal of relative portion of enquiry proceedings will reveal
that the entire issue was framed by BM Churcha on instance of the respective
Regional Manager. It is, therefore, requested to your honour to take an
independent view in the matter."
9. No plea was raised by the Appellant that he was prejudiced in any manner
either by reason of any delay, which might have taken place in holding the
disciplinary proceeding, or by reason of the Disciplinary Authority's
dissatisfaction as regards thereto and/or non-grant of an opportunity of
hearing to him. The said appeal, upon consideration of the contentions raised
by the Appellant herein, was dismissed by the Appellate Authority by an order
dated 16.6.1992 stating:
"Discipline and decency will have to be maintained at all costs and breach
thereof will have to be severely dealt with. Further, the official was given an
opportunity to reform himself on an earlier occasion but he failed to eschew
his defiant attitude. I am, therefore, in full agreement with the appointing
Authority's decision to impose the exemplary punishment of removal from service
on Shri Agarwal. However, to reduce the financial hardships faced by the
appellant, I am inclined to consider the period of suspension from 11.11.1986
to 22.7.1990 on duty."
10. He filed a writ petition questioning the legality of the said order, which
was dismissed. A Letters Patent Appeal preferred by the Appellant thereagainst
was also dismissed by a reasoned order.
11. Mr. P.P. Rao, learned Senior counsel appearing on behalf of the Appellant
has raised the following contentions in support of this appeal:
(i) The penalty of removal from service, imposed upon the Appellant by the
Disciplinary Authority, was illegal as prior thereto a copy of the enquiry
report was not furnished to him and thus: (a) the Appellant was denied an
opportunity to present his case against the findings of the Inquiry Officer;
(b) a similar opportunity was denied to him by the Disciplinary Authority when
he differed with the finding of the Inquiry Officer as regard
Charge No.2;
(ii) As violation of the principle of natural justice itself causes prejudice,
it was not necessary for the Appellant to raise the said contention expressly,
as also for the violation of Article 14 of the Constitution of India;
(iii) The High Court committed a manifest error in passing the impugned
judgment in so far as it held that the principles of natural justice had been
complied with as the Appellant herein got an opportunity of hearing before the
Appellate Authority;
(iv) The disciplinary proceedings were initiated after delay of about three
years from the alleged incidents, on the basis whereof the charges had been
framed against him and as such the entire disciplinary proceeding was vitiated;
(v) In any event such inaction on the part of the Disciplinary Authority for a
long time would amount to condonation of the acts of alleged misconduct;
(vi) The disciplinary proceeding, being mala fide, is violated in law;
(vii) The punishment imposed upon the Appellant was disproportionate to the
gravity of the misconduct, for which the Appellant was charged, and, thus,
deserve to be set aside by this Court.
12. Mr. V.A. Bobde, learned Senior counsel appearing on behalf of the
Respondents, on the other hand, would contend:
(i) The Appellant did not plead or prove any prejudice having been caused to
him before the Appellate Authority in view of the fact that he himself invited
it to deal with the matter on merit;
(ii) It is not a case where delay in initiating the Disciplinary Authority
caused any prejudice to the Appellant as: (a) all witnesses were available to
prove the charges against him; (b) the witnesses were fully cross-examined; and
(c) the Appellant fully defended himself before the Disciplinary Authority.
(iii) In respect of findings of the Inquiry Officer vis-a-vis the other charges
being severable, even if the Appellant was held to be not guilty of commission
thereof, the impugned order of punishment would be sustainable.
(iv) So far as non-furnishing of copy of the enquiry report is concerned,
having regard to the fact that the decision of this Court in Union of India and
others v. Mohd. Ramzan Khan was rendered on 20"" November,
1990, and it having only a prospective application and the impugned order of
punishment having been passed on 20lh July, 1990, in law the Disciplinary Authority
was not required to furnish a copy of the enquiry report to the Appellant;
(v) Compliance of principles of natural justice not only varies from case to
case, in a situation of the present nature, the same would be deemed to have
been waived as by reason of non-issuance of a shew cause notice upon the
Appellant by the Disciplinary Authority, while differing with the findings of
the Inquiry Officer on charge No.2, he was not at all prejudiced as he himself
.had called upon the Appellate Authority to decide the matter on its own. merit
and the impugned order may no, t be interfered with.
(vi) No case has been made out for interference with the quantum of punishment
by this Court having regard to the fact that despite opportunities having been
granted to the Appellant to reform himself, he continued to commit similar
nature of misconduct, namely, using abusive and unparliamentary language and
threatenings to assault the senior officers and others.
13. The Respondent No.l is a statutory authority, having been created under the
State Bank of India Act, 1955.
14. The terms and conditions of the employees of the Is1 Respondent herein,
thus, are governed by the statutory Rules framed in this behalf including the
State Bank of India (Supervisory Staff) Service Rules (the 'Rules', for short).
Rule 49 of the said Rules provides for the mode and manner in which the
disciplinary proceedings are required to be initiated. The said Rules also
provide for imposition of minor and major penalties. In terms of the proviso
appended to Rule 50(l)(i), where the Disciplinary Authority is lower in rank
than the Appointing Authority in respect of the category of the employees to
which he belongs to, no order imposing any of the major penalties can be
passed, except by the Appointing Authority or an authority higher than it on
the recommendations of the Disciplinary Authority.
15. The pattern of charges against the Appellant, categorically point out to
the fact that the Appellant had been misbehaving with the Regional Managers and
other officers, as well as the customers not only while he was posted in
different branches.
16. Charge No.2 refers to an incident, which took place on 26.9.1986. The said
charge, admittedly, was not proved. However, it is not disputed that in respect
of charge No.l witnesses were examined on behalf of the 1st Respondent. They
were thoroughly cross-examined by the Appellant. Documentary evidences were
also adduced by the parties. So far charge No.3 is concerned, only one witness
was examined on behalf of the Is1 Respondent. The Appellant therein exhibited
four documents in support of his case. The 1st Respondent also exhibited some
documents. Similarly, in relation to each other charge witnesses were examined
on behalf of the Is1 Respondent; they were cross-examined and documents were
exhibited.
17. The validity of the disciplinary proceeding and/or justifiability thereof
on the ground of delay or otherwise had never been raised by the Appellant
before any forum. It was not his case either before the Appellate Authority or
before the High Court that by reason of any delay in initiating the
disciplinary proceeding he had been prejudiced in any manner whatsoever. It may
be true that delay itself may be a ground for arriving at a finding that
enquiry proceeding was vitiated in the event it is shown that by reason thereof
the delinquent officer has been prejudiced, but no such case was made out.
18. Mr. Rao urged that the Respondents must have condoned the misconduct on the
part of the Appellant herein as they have not taken any action and initiated
disciplinary proceeding after he was placed under suspension. Reliance in this
behalf has been placed on State of M.P. and others v. R.N. Mishra and another.
19. The order of suspension was passed as far back in 1986, inter alia, in
contemplation of initiation of a disciplinary proceeding. It may be true that
no disciplinary proceeding was initiated against the Appellant, as a criminal
proceeding was pending against him. But, only because the criminal proceeding was
pending, the same itself may not be a ground to hold that there had been a
conscious act on the part of the Respondents herein to condone the misconduct
on the part of the Appellant herein.
20. The terms and conditions of the employees of the Respondent-Bank are
governed by a statute. The Disciplinary Authority, by reason of the Rules
framed, was delegated with the power of the Bank to initiate departmental
proceeding against the delinquent officer and impose suitable punishment upon
him, if the misconduct is proved. In this case concept of contract of personal
service as is understood in common parlance is not applicable. The doctrine of
condonation of misconduct so evolved by ordinary law of 'master and servant' is
thus, not attracted in this case. Under the common law, as also the provisions
contained in Section 14(l)(b) of the Specific Relief Act, a master was entitled
to terminate the services of an erring employee at his sweet will. The
dismissed employee could have sued his master only for damages and not for his
reinstatement in service. It is only for the purpose of grant of damages, a
declaration was required to be made that the termination of the service was
illegal. Having regard to the said legal position, the doctrine of condonation
of misconduct evolved, in terms whereof, it was impermissible for the master to
allow an employee to continue in service for a long time despite his knowledge
that he had committed a misconduct and then to turn round and contend that his
services should have been terminated on the ground that he was guilty of
misconduct.
21. We may notice some decisions cited at the Bar.
22. In L.W. Middleton v. Harry Playfair, the Calcutta High Court was concerned
with the terms and conditions of service governed by contract and not by a
statute. The suit was filed by the manager of a Tea Estate for recovery of
arrears of salary and damages for beach of contract of employment.
23. In District Council, Amraoti through Secretary v. Vithal Vinayak Bapat,
Vivian Bose, J., following L. W. Middleton (supra), the Nagpur High Court held:
"Once a master has condoned any misconduct which would have justified
dismissal or a fine, he cannot after such condonation go back upon his election
to condone and claim a right to dismiss him (servant) or impose a fine or any
other punishment in respect of the offence which has been condoned. This rule
is to be found in 1925 AIR(Cal) 87 and in many other cases."
24. In R.N. Mishra (supra), this Court, in view of the fact situation obtaining
therein opined that the employer had condoned the misconduct stating:
"In the present case, misconduct attributed to the respondent came to
light in the year 1976 when a preliminary inquiry was ordered and while the
inquiry was continuing, the State Government was required to consider the case
of the respondent for promotion to the post of Assistant Conservator of Forest.
Under law, the State Government had no option but to consider the case of the
respondent for promotion. The State Government could not have excluded the
respondent from the zone of consideration merely on the ground that a
preliminary inquiry to enquire into the allegations of misconduct attributed to
him was pending. In such a situation, the doctrine of condonation of misconduct
cannot be applied as to wash off his acts of misconduct which was the
subject-matter of preliminary enquiry. We are, therefore, of the opinion that
the promotion of the respondent to the post of Assistant Conservator of Forest
would not amount to condonation of misconduct alleged against him which was the
subject-matter of preliminary inquiry. Consequently, the punishment imposed on
the respondent by the State Government was valid and legal. The decision relied
upon by the Tribunal as well as by the learned counsel for the respondent in
the case of Lai Audhraj Singh v. State ofM.P. is not applicable to the facts of
the present case, as in that case, the employer had a choice to inflict
punishment on the employee but the employer did not choose to punish the
employee and in that context, it was held by the High Court that the misconduct
attributable to the employee was condoned."
25. However, for the purpose of holding that misconduct was condoned by the
employer the Court must come to a definite finding as regard the conduct of the
employer. It must be held that either expressly or by necessary implication
that the employer had knowledge of the misconduct of the employee. It is one
thing that despite such knowledge, the delinquent officer is promoted to which
he would not have been otherwise entitled to or if the disciplinary proceeding
had been initiated as if the misconduct was not committed for and it is another
thing to say that such a misconduct was not required to be taken into
consideration as by reason of the service Rule, promotion was to be granted on
the basis of seniority alone, and, thus, the question of condonation of
misconduct on the part of the employer would not arise.
26. In State ofM.P. v. Bani Singh and another whereupon Mr. Rao placed
strong reliance, this Court opined that by reason of delay of 12 years in
initiating the disciplinary proceeding, the delinquent officer could not defend
himself properly. In that case there was no satisfactory explanation such a
long delay. There was also doubt as regards the involvement of the delinquent
officer.
27. In State of Punjab and others v. Chaman Lai Goyal , however, this
Court refused to set aside those disciplinary proceeding which had been
initiated after a delay of 5V2 years. Distinguishing the decision of this Court
in Bani Singh and another (supra), it was stated:
"Now remains the question of delay. There is undoubtedly a delay of five
and a half years in serving the charges. The question is whether the said delay
warranted the quashing of charges in this case. It is trite to say that such
disciplinary proceeding must be conducted soon after the irregularities are
committed or soon after discovering the irregularities. They cannot be
initiated after lapse of considerable time. It would not be fair to the delinquent
officer. Such delay also makes the task of proving the charges difficult and is
thus not also in the interest of administration. Delayed initiation of
proceedings is bound to give room for allegations of bias, mala fides and
misuse of power. If the delay is too long and is unexplained, the court may
well interfere and quash the charges. But how long a delay is too long always
depends upon the facts of the given case. Moreover, if such delay is likely to
cause prejudice to the delinquent officer in defending himself, the enquiry has
to be interdicted. Wherever such a plea is raised, the court has to weigh the
factors appearing for and against the said plea and take a decision on the
totality of circumstances. In other words, the court has to indulge in a process
of balancing"
28. In Additional Supdt. of Police v. T. Natarajan[1999 SCC (L&S) 646],
this Court held:
"In regard to the allegation that the initiation of the disciplinary
proceedings was belated, we may state that it is settled law that mere delay in
initiating proceedings would not vitiate the enquiry unless the delay results
in prejudice to the delinquent officer. In this case, such a stage as to
examine that aspect has not arisen."
29. In this case, as noticed hereinbefore, the Appellant did not raise the
question of delay before any forum whatsoever. He did not raise such a question
even before the Disciplinary Authority. He not only took part therein without
any demur whatsoever, but, as noticed hereinbefore, cross- examined the
witnesses and entered into the defence.
30. The Principles of natural justice cannot be put in a straight jacket
formula. It must be seen in circumstantial flexibility. It has separate facets.
It has in recent time also undergone a sea change.
31. In Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia
and others = 2005 (7) SCJ 307, a Three Judge Bench of this Court
opined:
"We are aware of the normal rule that a person must have a fair trial and
a fair appeal and he cannot be asked to be satisfied with an unfair trial and a
fair appeal. We are also conscious of the general principle that pre-decisional
hearing is better and should always be preferred to post-decisional hearing. We
are further aware that it has been stated that apart from Laws of Men, Laws of
God also observe the rule of audi alteram partem. It has been stated that the
first hearing in human history was given in the Garden of Eden. God did not
pass sentence upon Adam and Eve before giving an opportunity to show cause as
to why they had eaten the forbidden fruit. (See R. v. University of Cambridge).
But we are also aware that the principles of natural justice are not rigid or
immutable and hence they cannot be imprisoned in a straitjacket. They must
yield to and change with exigencies of situations. They must be confined within
their limits and cannot be allowed to run wild. It has been stated: " 'To
do a great right' after all, it is permissible sometimes 'to do a little
wrong'." [Per Mukharji, CJ. in Charan Lai Sahu v. Union of India (Bhopal
Gas Disaster), SCC p. 705, para 124.] While interpreting legal provisions, a
court of law cannot be unmindful of the hard realities of life. In our opinion,
the approach of the Court in dealing with such cases should be pragmatic rather
than pedantic, realistic rather than doctrinaire, functional rather than formal
and practical rather than "precedential".
32. In Canara Bank and others v. Debasis Das and others , this Court
referred to the prejudice doctrine stating:
"Additionally, there was no material placed by the employee to show as to
how he has been prejudiced. Though in all cases the post-decisional hearing
cannot be a substitute for pre-decisional hearing, in the case at hand the
position is different."
33. The question as to whether in this case there has been a gross violation of
principles of natural justice will have to be considered from two different
angles.
34. Firstly, the effect of the Disciplinary Authority having not given him an
opportunity of hearing while differing with the findings of the Inquiry Officer
as has been laid down in Punjab National Bank and others v. Kunj Behari
Mishra 9 may be noticed.
35. In Ranjit Singh v. Union of India and other 2006 (4) SCALE 154 =
, following Punjab National Bank 9, it
was held:
"In view of the aforementioned decisions of this Court, it is now well
settled that the principles of natural justice were required to be complied
with by the Disciplinary Authority. He was also required to apply his mind to
the materials on record. The Enquiry Officer arrived at findings which were in
favour of the Appellant. Such findings were required to be over turned by the
Disciplinary Authority. It is in that view of the matter, the power sought to
be exercised by the Disciplinary Authority, although not as that of an
appellate authority, but akin thereto. The inquiry report was in favour of the
Appellant but the Disciplinary Authority proposed to differ with such
conclusions and, thus, apart from complying with the principles of natural
justice it was obligatory on his part, in absence of any show cause filed by
the Appellant, to analyse the materials on records afresh. It was all the more
necessary because even the CBI, after a thorough investigation in the matter,
did not find any case against the Appellant and thus, filed a closure report.
It is, therefore, not a case where the Appellant was exonerated by a criminal
court after a full fledged trial by giving benefit of doubt. It was also not a
case where the Appellant could be held guilty in the disciplinary proceedings
applying the standard of proof as preponderance of the probability as
contrasted with the standard of proof in a criminal trial, i.e., proof beyond
all reasonable doubt. When a final form was filed in favour of the Appellant,
the CBI even did not find a prima facie case against him. The Disciplinary
Authority in the aforementioned peculiar situation was obligated to apply his
mind on the materials brought on record by the parties in the light of the
findings arrived at by the Inquiry Officer. He should not have relied only on
the reasons disclosed by him in his show cause notice which, it will bear
repetition to state, was only tentative in nature. As the Appellate Authority
in arriving at his finding, laid emphasis on the fact that the Appellant has
not filed any objection to the show cause notice; ordinarily, this Court would
not have exercised its power of judicial review in such a matter, but the case
in hands appears to be an exceptional one as the Appellant was exonerated by
the Inquiry Officer. He filed a show cause but, albeit after some time the said
cause was available with the Disciplinary Authority before he issued the order
of dismissal. Even if he had prepared the order of dismissal, he could have
considered the show cause as it did not leave his office by then. The
expression "communication" in respect of an order of dismissal or
removal from service would mean that the same is served upon the delinquent
officer. [See State of Punjab v. Amar Singh Harika,
36. Contention of Mr. Bobde in this behalf that he was not prejudiced thereby
cannot be accepted. There has been a flagrant violation of principles of
natural justice in so far as no show cause notice was issued to the Appellant
by the Disciplinary Authority while differing with the findings of the Inquiry
Officer as regard charge No.2. We would deal with this aspect of the matter a
little later.
37. However, the contention of Mr. Rao that only because a copy of the enquiry
report was not furnished to the Appellant by the Disciplinary Authority, there
has been a violation of the mandatory provisions of the regulations, cannot
also be accepted for the reasons stated hereinafter.
38. The order of punishment of removal against the Appellant was passed against
the Appellant on 22nd July, 1990. The decision of this Court in Mohd. Ramzan
Khan (supra), as noticed hereinbefore, was decided on 20lh November, 1990
wherein the law laid down by this Court, while holding that a delinquent
officer cannot be called upon to make a representation on the quantum of
punishment without furnishing a copy of the enquiry report, was expressly given
a prospective effect. It was, therefore, not at all necessary for the
Disciplinary Authority, keeping in view the law as it then stood, to furnish a
copy of the enquiry report to the Appellant.
39. Decision of this Court in S.L. Kapoor v. Jagmohan and others
whereupon Mr. Rao placed strong reliance to contend that non- observance of
principle of natural justice itself causes prejudice or the same should not be
read "as it causes difficulty of prejudice", cannot be said to be
applicable in the instant case. The principles of natural justice, as noticed
hereinbefore, has undergone a sea change. In view of the decision of this Court
in State Bank ofPatiala and others v. S.K. Sharma and Rajendra Singh v.
State ofM.P.[ 1996 (55) SCC 460, the principle of law is that some real
prejudice must have been caused to the complainant. The Court has shifted from
its earlier concept that even a small violation shall result in the order being
rendered a nullity. To the principal doctrine of audi alterem partem, a clear
distinction has been laid down between the cases where there was no hearing at
all and the cases where there was mere technical infringement of the principal.
The Court applies the principles of natural justice having regard to the fact
situation obtaining in each case. It is not applied in a vacuum without
reference to the relevant facts and circumstances of the case. It is no unruly
horse. It cannot be put in a straightjacket formula. [See Viveka Nand Sethi v.
Chairman, J. & K. Bank Ltd. and others = 2005 (4) SCJ 585 and
State of U.P. v. Neeraj Awasthi and others 2006 (1) JT 19 = 7. See also Mohd. Sartaj v. State of U.P.[ 2006 (1)
SCALE 265 = 2006 (2) SCJ 49
40. In Union of India and another v. Tulsi Ram Patel = 1985 (3) SCC
3988, whereupon again Mr. Rao placed strong reliance, this Court did not lay
down a law in absolute terms that violation of principle of natural justice
would be read into the equality clause contained in Article 14 of the
Constitution of India. The said decision was rendered having regard to the fact
that by taking recourse to the second proviso appended to Article 311 of
Constitution of India, no disciplinary "proceeding was to be initiated at
all and an order of dismissal could be passed only on the basis of subjective
satisfaction of the authority empowered to dismiss or remove a person or to
reduce him in rank wherefor reason was to be recorded by it in writing that it
was not reasonably practicable to hold a disciplinary proceeding. The facets of
the principle of natural justice was considered in some details in State Bank
ofPatiala and others v. S.K. Sharma [(supra)], wherein this Court categorically
held:
"Now, coming back to the illustration given by us in the preceding para,
would setting aside the punishment and the entire enquiry on the ground of
aforesaid violation of sub-clause (iii) be in the interests of justice or would
it be its negation? In our respectful opinion, it would be the latter. Justice
means justice between both the parties. The interests of justice equally demand
that the guilty should be punished and that technicalities and irregularities
which do not occasion failure of justice are not allowed to defeat the ends of
justice. Principles of natural justice are but the means to achieve the ends of
justice. They cannot be perverted to achieve the very opposite end. That would
be a counter-productive exercise."
41. It was opined that in an appropriate case, the said right could also be
waived, stating:
"If it is found that he has been so prejudiced, appropriate orders have to
be made to repair and remedy the prejudice including setting aside the enquiry
and/or the order of punishment. If no prejudice is established to have resulted
therefrom, it is obvious, no interference is called for. In this connection, it
may be remembered that there may be certain procedural provisions which are of
a fundamental character, whose violation is by itself proof of prejudice. The
Court may not insist on proof of prejudice in such cases."
It was further held:
"Where the enquiry is not governed by any rules/regulations/statutory
provisions and the only obligation is to observe the principles of natural
justice or, for that matter, wherever such principles are held to be implied by
the very nature and impact of the order/action the Court or the Tribunal should
make a distinction between a total violation of natural justice (rule of audi
alter am partem) and violation of a facet of the said rule, as explained in the
body of the judgment. In other words, a distinction must be made between
"no opportunity" and no adequate opportunity, i.e., between "no
notice'Vno hearing" and "no fair hearing", (a) In the case of
former, the order passed would undoubtedly be invalid (one may call it 'void'
or a nullity if one chooses to). In such cases, normally, liberty will be
reserved for the Authority to take proceedings afresh according to law, i.e.,
in accordance with the said rule (audi alteram partem). (b) But, in the latter
case, the effect of violation (of a facet of the rule of audi alterant partem)
has to be examined from the standpoint of prejudice; in other words, what the
Court or Tribunal has to see is whether in the totality of the circumstances,
the delinquent officer/ employee did or did not have a fair hearing and the
orders to be made shall depend upon the answer to the said query."
42. It is not a case where there had been a gross violation of principles of
natural justice in the sense no disciplinary proceeding was initiated at all or
no hearing was given.
43. In Canara Bank and others (supra), a Division Bench of this Court held:
"It is to be noted that at no stage the employee pleaded prejudice. Both
learned Single Judge and the Division Bench proceeded on the basis that there
was no compliance with the requirement of Regulation 6(18) and, therefore,
prejudice was caused. In view of the finding recorded supra that Regulation
6(18) has not been correctly interpreted, the conclusions regarding prejudice
are indefensible."
44. Even in Managing Director, ECIL, Hyderabad and others v. B. Karunakarand
other .], this Court clearly held:
"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 stretching 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."
It was further opined:
"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 principles of natural justice nor a
denial of the reasonable tarnished. In any event, neither the learned Single
Judge nor the Division Bench came to any finding that none of the charges had
been proved.
16. The power of judicial review in such matters is limited. This Court times
without number had laid down that interference with the quantum of punishment
should not be one in a 56. [See also A Sudhakarv. Post Master General,
Hyderabad and another reasons afore.mentioned, we are of the opinion matter is
not a fit case where this Court should exercise its discretionary jurisdiction
under Article 136 of the Constitution of India. This appeal is, therefore,
dismissed. However, in the facts and circumstances of this case, there shall be
no order as to costs
J