Narendra Kumar Pandey vs State Bank Of India Through Its ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved on 24.03.2011
 
Delivered on 22.09.2011
 

 

 
Case :- SERVICE BENCH No. - 757 of 1999
 

 
Petitioner :- Narendra Kumar Pandey
 
Respondent :- State Bank Of India Through Its Chief G.M.
 
Petitioner Counsel :- Narendra Kr.Pandey, Amit Bose, Anand Kumar Tewari, N.U.Siddiqui
 
Respondent Counsel :- N.K.Seth, D.R.Sinha, Kiran Sinha, N.N. Seth
 

 
Hon'ble Devi Prasad Singh,J.

Hon'ble Sudhir Agarwal,J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Sri Narendra Kumar Pandey, working as MMS-2 Level Officer in State Bank of India has assailed the order dated 11th March, 1999 (Annexure No.1 to the writ petition) passed by General Manager (Development and Personal Banking), the Appointing Authority imposing punishment of dismissal from Bank's service in terms of Rule 66(j) of the State Bank of India Officers Service Rules (hereinafter referred to as "Service Rules, 1992") framed in exercise of power under Section 43(1) of the State Bank of India Act, 1955.

2. This writ petition was filed on 18th May, 1999 after serving notice upon Sri N.K.Seth, Advocate (now Senior Advocate) representing the Bank. It came up before the Court on 20th May, 1999 when the counsel for petitioner sought time to file supplementary affidavit and the case was directed to be listed on 26th May, 1999. Thereafter the matter appears to have been adjourned from time to time permitting the respondents to file counter affidavit. A last opportunity for counter was granted on 12th November, 1999. Instead of filing counter, respondents then filed an application raising plea of alternative remedy. This was heard and by order dated 24th July, 2002, the application as well as preliminary objection, both were rejected. The Court directed for listing of writ petition for final hearing on 1st August, 2002. Thereafter the matter remain pending and on 21st October, 2010, it came up before Division Bench presided by one of us (Hon'ble D.P. Singh) when it was adjourned to 11th November, 2010 with the consent and assurance of the parties that they shall argue the matter finally. Ultimately it was heard on 24.03.2011.

3. Lots of issues have been raised, mostly, relating to alleged irregularities committed during disciplines enquiry. According to the learned counsel for the petitioner it has resulted in denial of adequate opportunity of defence to the petitioner.

4. Before averting to the rival submissions the factual matrix in brief giving rise to the present dispute may be stated as under.

5. The petitioner while posted as Officer Junior Management Scale Grade-I at Bilhaur branch of State Bank of India was placed under suspension on 13.03.1992. It was alleged that the petitioner misused officials position in allowing to open Savings bank and Current account in the name(s) of fictitious/non existing persons; provided undue benefits to customers by withholding DD purchase documents. A letter dated 04.04.1992 was issued to the petitioner requiring him to show cause in respect of certain transactions when he was posted at Kalpi Road branch of the Bank at Kanpur. He was also placed under suspension.

6. The petitioner challenged order of suspension in writ petition 1914 of 1992 (S/S). The order of suspension was stayed on 06.04.1992. The respondents were directed to conclude disciplinary proceedings within a period of three months. Nothing happened thereafter. In the meantime, petitioner was promoted on 28.7.1993 w.e.f. 1.1.1992 in Middle Management Grade Scale II. It is pleaded that an inference could have been drawn from the above promotion that lapses, if any, alleged against the petitioner, stood condoned by disciplinary authority. A chargesheet was issued to the petitioner on 8.8.1993 (Annexure 10) which culminated in an order of punishment after holding departmental inquiry. The disciplinary authority imposed penalty of reduction of two stages in pay scale applicable to petitioner in terms of Rule 49(e) of Service Rules, 1992.

7. The petitioner was served with another chargesheet dated 15.2.1995 by General Manager, (respondent no.2) (hereinafter referred to as "disciplinary authority"). It contained 12 charges out of which 9 pertained to the period 21.10.1987 to 22.5.1991 when petitioner was posted at Kalpi Road Branch, Kanpur and three pertained to the period 21,5,1985 to 20.10.1987 when he was posted in Government Business Branch, Kanpur.

8. Besides the above, the Chief General Manager accorded sanction for prosecution of petitioner on 2.2.1995 on the basis whereof C.B.I. prosecuted petitioner in the Court of Special Judge, Anti Corruption (Central) Lucknow. The Bank also filed Original Suit No. 1030 of 1995 in the Court of Civil Judge (Senior Division) for recovering a sum of Rs. 19 Lacs from petitioner.

9. The petitioner submitted a reply dated 29.3.1995 denying all the charges contained in chargesheet dated 15.2.1995. By another letter dated 24.3.1995 (Annexure 12), the petitioner sought permission for inspection of relevant documents. The Bank permitted the said inspection vide order dated 29.4.1995 (Anenxure 13). The Bank appointed an Inquiry Officer, namely, Sri A.S. Dixit and one Sri R.G. Banerji was appointed as Presenting Officer for holding departmental and oral inquiry against the petitioner.

10. 10.2.1996 was the first date for oral hearing when the Inquiry Officer required the petitioner to tell whether he admit charges or not. The petitioner declined to reply either way on the ground that unless documents are shown to him he would not be able to reply. Accordingly, the petitioner was directed to submit a list of documents which he intended to inspect. The Presenting Officer was directed to make available such documents for inspection. Such list was submitted by the petitioner on 16.2.1996 acknowledged by the Inquiry Officer on the same date. The next date was 12.3.1996 by which time the Presenting Officer failed to comply with the order dated 10.2.1996 and the documents were not procured to be inspected by the petitioner.

11. The petitioner thereafter received a letter from one Mr. A.K. Sheopuri, designating himself as Inquiry Officer directing the petitioner to attend oral inquiry on 11.6.1996 before him without informing the petitioner as to whether he is holding another inquiry or has replaced Mr. A.S. Dixit, previously appointed Inquiry Officer.

12. The new Inquiry Officer in the oral hearing held on 11.6.1996 again required petitioner whether he admit the charges or not. Minutes of the proceedings do not show any specific reply given by petitioner but this much is clear that he did not admit the charges. The documents required for inspection by the petitioner were not made available on the next dates of oral hearing, namely, 24.7.1996, 6.8.1996, 11.9.1996, 8.10.1996, 16.11.1996, 9.12.1996, 30.1.1997, 22.3.1997 and 25.4.1997. On 29.5.1997 the petitioner was served with a letter by the Bank stating of enclosing therewith list of Bank's documents. However no such enclosure was appended.

13. In the meantime, on the next date i.e. 23.5.1997 fixed for oral inquiry, the petitioner was absent due to illness. The Presenting Officer, it appears, taking advantage of petitioner's absence, made a statement before Inquiry Officer that list of Bank's documents has been given to the charged officer. The Inquiry Officer accordingly directed for inspection of documents by 10.6.1997 and the petitioner was required to furnish his list of defence documents as also the list of witnesses by 19.6.1997.

14. The petitioner immediately sent a letter dated 30.5.1997 disputing the statement of the Presenting Officer that the list of documents allegedly made available to him by 23.5.1997. On the contrary, he received that letter under registered post dated 26.5.1997 received on 29.5.1997. Another letter dated 30.5.1997 was received by petitioner on 7.6.1997. None of these contained any list of documents. The petitioner was also not allowed inspection of the documents to which he made complaint to the Inquiry Officer by letter dated 17.6.1997. In the meantime, the Presenting Officer informed Inquiry Officer vide letter dated 24.6.1997 that the petitioner has declined to receive list of documents as also the information regarding inspection of Bank's documents.

15. The Inquiry Officer thereupon held inquiry on three dates consecutively, i.e. 5th, 6th and 7th November 1997 and concluded the same. He permitted Presenting Officer to file written brief by 17.11.1997. The petitioner was required to file written brief within 15 days from the date of receipt of brief of Presenting Officer. It is said that the Presenting Officer failed to submit written brief. However, the petitioner submitted written brief on 28.11.1997. It is only thereafter, the petitioner received copy of written brief of Presenting Officer dated 8.12.1997 served on petitioner on 18.12.1997.

16. In the meantime, the petitioner also filed a writ petition no. 39316 of 1997 in this Court at Allahabad seeking a writ of mandamus commanding Bank not to proceed with departmental inquiry till criminal trial is decided. The said writ petition was dismissed by a Division Bench vide judgment dated 25.11.1997 holding that departmental inquiry and criminal trial can go simultaneously and there is no justification for staying disciplinary proceedings. However, it directed the Inquiry Officer to make earnest endeavour to conclude inquiry expeditiously.

17. The Inquiry Officer submitted report on 15.1.1998 holding charges no. 1, 2, 3,5, 7, 8, 9, 10 and 12 proved and remaining three charges, namely, 4, 6 and 12 partly proved. The inquiry report along with show cause notice forwarded to the petitioner vide Bank's letter dated 18.5.1998. It was replied by petitioner on 6.6.1998. He pointed out that despite repeated efforts he was not allowed to inspect documents and the Presenting Officer misled the Inquiry Officer in various manner to which Inquiry Officer succumbed and in these circumstances, the petitioner had to walk out from the inquiry proceedings on 6.11.1997 as a result whereof on 7.11.1997 the inquiry proceeded ex parte.

18. Thereafter the disciplinary authority passed impugned order of punishment dated 11.3.1999.

19. This writ petition has been filed directly challenging the order of punishment without availing remedy of appeal under Rule 69 of Service Rules 1992.

20. On behalf of the Bank a short counter affidavit was filed raising a preliminary objection about alternative remedy of appeal. The matter remained pending hereat and in the meantime, petitioner was acquitted in criminal trial by the Court of Special Judge, Anti Corruption (Central), U.P. Lucknow vide judgment dated 6.7.2002 and the same was brought on record vide supplementary affidavit dated 10.7.2002.

21. On preliminary objection the matter was heard by this Court on 24.7.2002. The Division Bench rejected the request of Bank for dismissal of writ petition on the ground of alternative remedy holding writ petition maintainable without relegating petitioner to avail the remedy of appeal and directed writ petition to be listed for hearing on merits. We find no reason to reconsider this issue at this stage when this matter has remained pending before this Court for the last almost 12 years.

22. A supplementary counter affidavit has been filed by the Bank clarifying as to who is the officer competent to sign relevant documents but did not give any detailed parawise reply to averments made in the writ petition. Later on counter affidavit along with an application seeking condonation of delay has been filed.

23. Learned counsel for the petitioner while assailing the impugned order of punishment has contended:

A. The entire proceedings are in utter violation of principles of natural justice for the reason:

(a) Inspection of relied upon documents was not allowed to petitioner;

(b) No oral evidence was recorded though documents which could not have been relied unless proved by author of those documents have been made basis of holding certain charged proved against petitioner without making those persons available for cross-examination;

(c) No opportunity was given to petitioner to place his defence.

B. The petitioner was tried for identical charges in criminal matter and has been acquitted. The decision vitiates the various charges which are identical but have been held proved in the departmental inquiry.

C. The impugned order is non speaking and unreasoned, having been passed mechanically.

D. The petitioner has been dismissed by an authority lower in rank to appointing authority.

E. Inquiry has not been held in accordance with Rule 68 of Service Rules, 1992 which lays down procedure for holding inquiry. The petitioner has been punished on the basis of certain forged and tampered documents. The relevant documents in fact were withheld by Bank and not placed before Inquiry Officer upto the date i.e. 07.11.1997 when oral inquiry concluded.

F. Respondent-Bank adopted dilatory tactics and petitioner has been levelled with this charge showing bias on the part of respondents.

24. In support of above contentions learned counsel for petitioner placed reliance on State of U.P. and others vs. Saroj Kumar Sinha, (2010) 2 SCC 772 (Para 28); Roop Singh Negi vs. Punjab National Bank and others, (2009) 2 SCC 570 (Para 40); The State of Uttar Pradesh vs. Jothan Ram Patel and another, (2008) (26)LCD 471 (Para 8); Suresh Chandra Srivastav vs. State of U.P. and others (2008) (26)LCD 461 (Para 10); P.N. Srivastava vs. State of U.P. and others (1999) (17)LCD 24 (Para 10).

25. On behalf of the Bank it was contended that full opportunity was given to petitioner to defend him but he himself failed to avail the same and, therefore, it is not a fit case where this Court may interfere. Judicial review is not permissible with the finding of facts since the Court shall not sit in appeal and the petitioner is guilty of misuse of process of law. On behalf of the Bank in support of the above submissions, reliance is placed on Union of India vs. Panma Nanda (1989) 2 SCC 177 (para 27); Union of India vs. G. Ganayutham (1997) 7 SCC 463 (Paras 2, 3, 4, 27, 31, 34, 35); Dalip Singh vs. State of U.P. and others (2010) 2 SCC 114 (Paras 1, 2, 6, 7, 10, 20, 24, 25); State Bank of India and another vs. Bela Bagchi and others (2005) 7 SCC 435 (Para 15); Disciplinary Authority-cum-Regional Manager and others vs. Nikunja Bihari Patnaik (1996) 9 SCC 69 (Paras 7 and 8); A.P. SRTC vs. Raghuda Siva Sankar Prasad (2007) 1 SCC 222 (Paras 15, 17, 18, 19, 20, 21, 22, 23); T.N.C.S. Corporation Ltd. and others vs. K. Meerabai (2006) 2 SCC 255 (Paras 28, 29, 35); A. Sudhakar vs. Postmaster General, Hyderabad and another (2006) 4 SCC 348 (Paras 27to 30); Dy Registrar, Coop. Societies and others vs. Bunni Lal Chaurasia (2005) 11 SCC 570 (Paras 2 and 3); State of U.P. and others vs. Raj Kishore Yadav and another (2006) 5 SCC 673 (Para 4); V. Ramana vs. A.P. SRTC and others (2005) 7 SCC 338 (Paras 4, 6, 11, 12); Ganesh Santa Ram Sirur vs. State Bank of India and another (2005) 1 SCC 13 (Paras 14, 16, 31, 34, 36); Govt. of A.P. And others vs. Mohd. Nasrullah Khan (2006) 2 SCC 373 (Paras 8, 11, 15, 16, 17); Railway Board Representing the Union of India vs. Niranjan Singh 1969 (I) SCC 502 (Paras 5 to 8); Maharashtra State Board of S& H S education vs. K.S. Gandhi (1991) 2 SCC 716 (Para 10); State of Madras vs. G. Sundaram AIR 1965 SC 1103 (Paras 2, 7, 8, 9); State of Andra Pradesh and others vs. S. Sree Rama Rao AIR 1963 SC 1723 (Para 7); State of Haryana and another vs. Rattan Singh AIR 1977 SC 1512 (Paras 4, 5, 6); Regional Manager U.P. SRTC, Etawah vs. Hoti Lal and another (2003) 3 SCC 605 (Para 10); Divisional Controller, KSRTC (NWKRTC) vs. A.T. Mane (2005) 3 SCC 254; State Bank of India and others vs. Bidyut Kumar Mitra and others JT2011 (1)SC 46=2011 (1) SCALE 390.

26. Sri Seth Counsel for Bank contended that statutory remedy of appeal under Rule 69 having not been availed, the writ petition be dismissed on this ground alone. The question, whether the writ petition ought to be dismissed on the ground of alternative remedy as the petitioner has not availed the remedy of appeal under Rule 69 raised by the counsel for the Bank cannot be allowed to be raised at this stage since by a well reasoned order, this Court has already considered and rejected the preliminary objection and entertained the writ petition despite availability of alternative remedy. As already said, we do not find it expedient to permit the Bank to re-agitate the same issue after more than ten years, during the time the writ petition has remained pending before this Court; particularly considering the fact that order sheet of this case is evident to show that delay in disposal of this matter is solely attributable to the respondent Bank.

27. We now proceed to adjudicate the matter on merits.

28. It is no doubt true that in cases arising out of disciplinary proceedings culminating in punishment of an employee, scope of judicial review is somewhat restricted in the sense that it is a decision making process which is up for judicial review and not the decision itself. The Court does not sit in appeal. If the procedure prescribed is followed strictly in accordance with rules and the delinquent employee has been given adequate opportunity of defence, the disciplinary authority by assessing record has reached a conclusion which a person of ordinary prudence in a given set of circumstances may arrive, this Court shall not interfere with the order of punishment, if any, unless it is shown that the same is without jurisdiction or is otherwise bad on account of mala fide etc.

29. A person cannot be denied his right to earn livelihood enshrined under Article 226 of the Constitution of India unless he has been given adequate opportunity of hearing and the conclusion drawn by authorities is one which is probable and permissible from bare perusal of documents and not otherwise.

30. The scope of judicial review in such matters is well settled. It travels in a narrow sphere. It 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.

31. In the last more than five decades the precedents on these aspects are available in plenty. I need not make this judgment a directory of all such cases but to recapitulate various principles laid down in the binding precedents, I may refer a few of such authorities as under:

32. A Constitution Bench in State of Mysore Vs. Shivabasappa AIR 1963 SC 375, in para 3 of the judgment held :

"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."

33. In the matter of departmental enquiry, what is the scope of judicial review, has been considered by Apex Court in State of Andhra Pradesh Vs. Sree Rama Rao (supra), and in para 7 it has said:

"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)

34. In State of Orissa Vs. Murlidhar, AIR 1963 SC 404, the Court said:

"Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. . . . . ."

35. In State of Madras Vs. G. Sundaram (supra), the Court relying on its earlier decision in Union of India Vs. H.C. Goel, AIR 1964 SC 364 said:

"It is therefore clear that the High Court was not competent to consider the question whether the evidence before the Tribunal and the government was insufficient or unreliable to establish the charge against the respondent. It could have considered only the fact whether there was any evidence at all which, if believed by the Tribunal, would establish the charge against the respondent. Adequacy of that evidence to sustain the charge is not a question before the High Court when exercising its jurisdiction under Article 226 of the Constitution. . . . . ." (Para 9)

36. 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 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 departmental proceedings by the person competent to spoke about them and is 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)

37. In Union of India Vs. Sardar Bahadur, 1972 (4) SCC 618, the Court in para 15 of the judgment said:

"A disciplinary proceeding is not a criminal trial. The standard proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the interference that lender was a person likely to have official dealings with the respondent was one which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. . . . . . If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. A finding cannot be characterised as perverse or unsupported by any relevant materials, if it was a reasonable inference from proved facts."

38. In the case of State of Haryana Vs. Rattan Singh (supra), certain passengers were found to have travelled 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 statements of the Flying Squad held the charge proved. Employee challenged order of punishment on the ground that 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 :

"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)

39. In Union of India Vs. Parma Nanda (supra), in para 27 the Court said:

"The Tribunal cannot interfere with the findings of the inquiry officer or competent authority where they are not arbitrary or utterly perverse. . . . . ."

40. 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) (emphasis added)

41. In R.S. Saini Vs. State of Punjab, 1999 (8) SCC 90 the Apex Court held that 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)

42. The same view has been followed by the Apex Court in High Court of Judicature at Bombay Vs. Shashikant S. Patil AIR 2000 SC 22, wherein it has been held :

"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)

43. 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)

44. In Syed Rahimuddin Vs. Director General, CSIR 2001 (9) SCC 575, the Apex Court observed :

"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)

45. In Sher Bahadur Vs. Union of India 2002 (7) SCC 142, the order of punishment was challenged on the ground of lack of sufficiency of 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.

46. Recently, in Mohd. Nasrullah Khan (supra), 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)

47. In State Bank of India and others Vs. Ramesh Dinkar Punde, 2006(7) SCC 212 the decision in Mohd. Nasrullah Khan (supra) was followed and the Court said that the High Court cannot reappreciate the evidence by acting as a Court of appeal.

48. 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.

49. The above exposition of law will have to be considered in the light of specific statutory provisions applicable in this case laying down the procedure for disciplinary proceedings.

50. Rule 68 (1) to (7) lays down the said procedure but we may refer to the relevant provisions only in order to avoid bulkness:

"68. Decision to Initiate and Procedure for Disciplinary Action: . . . . . . .

68.(2)(i) No order imposing any of the major penalties specified in clauses (e), (f), (g) and (h) of rule 67 shall be made except after an inquiry is held in accordance with this sub-rule.

(ii) Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct against an officer, it may itself inquire into, or appoint any other officer or a public servant (hereinafter referred to as the Inquiring Authority) to inquire into the truth thereof.

Explanation: When the Disciplinary Authority itself holds the enquiry, any reference in clauses (viii) to (xxi) to the Inquiring Authority shall be construed as a reference to Disciplinary Authority.

(iii) Where it is proposed to hold an inquiry, the Disciplinary Authority shall frame definite and distinct charges on the basis of the allegations against the officer. The articles of charge, together with a statement of the allegations on which they are based, shall be communicated in writing to the officer, who shall be required to submit within such time as may be specified by the Disciplinary Authority not exceeding 15 days or within such extended time as may be granted by the said Authority, a written statement of his defence.

. . . . . . . . .

(v) The Disciplinary Authority shall, where it is not the Inquiring Authority, forward to the Inquiring Authority:-

. . . . . .

(c) a list of documents by which and list of witnesses by whom the articles of charge are proposed to be substantiated;

. . . . . .

(viii) (a) . . . . . . .

(c) The Inquiring Authority shall ask the officer whether he pleads guilty or has any defence to make and if he pleads guilty to all or any of the articles of charge, the Inquiring Authority shall record the plea, sign the record and obtain the signature of the officer thereof.

. . . . . . . . .

(ix) If the officer does not plead guilty, the Inquiring Authority may, if considered necessary, adjourn the case to a later date not exceeding 30 days or within such extended time as may be granted by it.

(a) The Inquiring Authority shall where the officer does not admit all or any of the articles of charge furnish to such officer a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be proved.

(b) The Inquiring Authority shall also record an order that the officer may for the purpose of preparing his defence:

I- inspect and take notes of the documents listed within five days of the order or within such further time not exceeding five days as the Inquiring Authority may allow;

II- submit a list of documents and witnesses that he wants for inquiry;

III- be supplied with copies of statements of witnesses, if any, recorded earlier and the Inquiring Authority shall furnish such copies not later than three days before the commencement of the examination of the witnesses by the Inquiring Authority;

IV- give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiring Authority may allow for the discovery or production of the documents referred to at (II) above.

Note: The relevancy of the documents and the examination of the witnesses referred to at (II) above shall be given by the officer concerned.

68.(2)(xi) The Inquiring Authority shall, on receipt of the notice for the discovery or production of the documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents on such date as may be specified.

(xii) On receipt of the requisition under clause (xi), the authority having custody or possession of the requisitioned documents shall arrange to produce the same before the Inquiring Authority on the date, place and time specified in the requisition.

Provided that the authority having custody or possession of the requisitioned documents may claim privilege if the production of such documents will be against the public interest or the interest of the Bank. In that event, it shall inform the Inquiring Authority accordingly.

(xiii) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the Bank. The witnesses produced by the Presenting officer shall be examined by the Presenting Officer and may be cross-examined by or on behalf of the officer. The Presenting Officer shall be entitled to re-examine his witnesses on any points on which they have been cross-examined, but not on a new matter without the leave of the Inquiring Authority. The Inquiring Authority may also put such questions to be witnesses as it thinks fit.

(xiv) Before the close of the case in support of the charges, the Inquiring Authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the charge-sheet or may itself call for new evidence or recall or re-examine any witness. In such case the officer shall be given opportunity to inspect the documentary evidence before it is taken on record, or to cross-examine a witness who has been so summoned. The Inquiring Authority may also allow the officer to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interest of justice.

(xv) When the case in support of the charges is closed, the officer may be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the officer shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer.

. . . . . . .

(xviii) The Inquiring Authority may after the completion of the production of the evidence, hear the Presenting Officer, if any, appointed and the officer or his representative, if any or permit them to file written briefs of their respective cases within 15 days of the completion of the production of evidence, if they so desire.

(xix) If the officer does not submit the written statement of defence referred to in clause (iii) on or before the date specified for the purpose or does not appear in person, or through the officer's representative or otherwise fails or refuse to comply with any of the provisions of these rules which require the presence of the officer or his representative, the Inquiring Authority may hold the enquiry exparte.

. . . . . . .

(xxi) (a) On the conclusion of the inquiry, the Inquiring Authority shall preprare a report which shall contain the following:-

(1) a gist of the articles of charge and the statement of the imputations of misconduct;

(2) a gist of the defence of the officer in respect of each articles of charge;

(3) an assessment of the evidence in respect of each article of charge;

(4) the findings on each article of charge and the reasons therefor.

Explanation: If, in the opinion of the Inquiring Authority, the proceedings of the inquiry establish any article of charge different from the original article or charge, it may record its findings on such article of charge.

Provided that the findings on such article of charge shall not be recorded unless the officer has either admitted specifically and not by inference the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.

(b) The Inquiring Authority, where it is not itself the Disciplinary Authority, shall forward to the Disciplinary Authority the records of inquiry which shall include:-

(1) the report of the inquiry prepared by it under (a) above;

(2) the written statement of defence, if any, submitted by the officer referred to in clause (xv);

(3) the oral and documentary evidence produced in the course of the inquiry;

(4) written briefs referred to in clause (xviii), if any; and

(5) the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry."

51. Now we proceed to consider whether there is any irregularity in the procedure observed by Bank culminating in the punishment of dismissal which is in the teeth of statutory rules or suffers vice as laid down by Apex Court in the above mentioned authorities so as to warrant interference by this Court.

52. Whenever an in quiry Officer is appointed the disciplinary authority shall supply record which would include a list of documents as well as list of witnesses by whom the articles of charges are proposed to be substantiated. This is so provided in Rule 68(2)(v)(c). The note appended thereto says that documents may not be forwarded simultaneously but that does not mean that the documents shall not be forwarded in a reasonable manner and time so as to provide adequate opportunity of defence to the delinquent employee for inspection and reliance thereon. This is something to be done by disciplinary authority vis a vis inquiry authority and is mandatory.

53. Then Rule 68(2)(ix)(a) provides that the delinquent employee when does not admits charges, shall be furnished list of documents and list of witnesses whereby the department proposed to prove the charges.

54. A very strange thing has happend in this case. The charge sheet itself does not mention anything about the documents or the witnesses which/whom it proposed to rely to prove the charges. The copy of charge sheet is Annexure-2 to the writ petition and it is not the case of Bank that the said document is incomplete. The petitioner made this complaint in his letter dated 24.03.1995 (Annexure-12 to the writ petition). The disciplinary authority told petitioner vide his letter dated 29.04.1995 that the list of Bank's documents shall be provided/allowed to him during the course of inquiry, if any, if held. It, however, permitted the petitioner to inspect documents by submitting a list thereof in the Bank. This letter of disciplinary authority prove that the list of documents or witnesses relied by Bank to prove the charges was not appended with the charge sheet. The Inquiry Officer thereafter was appointed on 06.01.1996. The first date for oral hearing was 10.02.1996. After change the new Inquiry Officer, Sri A.K. Shivpuri commenced oral inquiry on 11.06.1996. He enquired from petitioner whether he admits the charges or not. It is true that petitioner did not give any categorical reply whether he admits the charges or deny the same but the minutes of inquiry held on 11.06.1996 (Annexure-19 to the writ petition) show that petitioner did not admit the charge at all. The Inquiry Officer categorically asked a question from Presenting Officer whether he possessed the list of documents and witnesses proposed to be relied by Bank for proving the charges to which the Presenting Officer replied that it shall be made available to Inquiry Officer on 18.06.1996 and a copy thereof shall also be given to charged officer. The Inquiry Officer thereafter fixed a schedule for giving the list, inspection, reply etc. and adjourned the proceedings for 24.07.1996.

55. The Presenting Officer failed to provide the list of documents and witnesses sought to be relied by Bank for proving the charges. More than half a dozen dates were fixed thereafter but failure on the part of Presenting Officer continued. The petitioner has mentioned various dates in para 35 of the writ petition which have been replied in para 49 of the counter affidavit in extremely vague manner. The petitioner has said in para 35 of the writ petition as under:

"35. That the presenting officer failed to furnish the list of the bank documents in further proceedings which were held on 24.7.96, 6.8.96, 11.9.96, 8.10.96, 16.11.96, 9.12.96, 30.1.97, 22.3.97, and on 25.4.97. On 25.4.97 the charged officer protested strongly. The Inquiring Authority gave last opportunity to the presenting officer for furnishing the list of the documents by 10.5.97 and ordered to get the inspection of documents by 21.5.97. The next date fixed was 23.5.97. It needs mention that the list of documents should have been given to the petitioner by Inquiring Authority on the day of preliminary hearing on 11.6.96. The enquiry proceedings of 25.4.97 is annexed as Annexure no. 20 to this writ petition."

56. The respondents have replied in para 49 of the counter as under:

"49. That in reply to the contents of para 35 of the Writ Petition it is submitted that it is evident from that the various attempts to serve the list of documents to the petitioner were made as shall be borne from the letter of Presenting Officer sent to the Branch that petitioner is deliberately trying to take advantage of his own lacks."

57. The fallacy on the part of Bank to put blame on petitioner is writ large from the minutes of oral inquiry held on 25.04.1997. This complaint was made by petitioner before the Inquiry Officer on 25.04.1997. On pages 157-158 of the paper book, the statement of Presenting Officer has been noticed by Inquiry Officer as under:

^^izLrksrk vf/kdkjh us dgk fd ^^Jh ,u-ds-ik.Ms ds fo:) py jgh foHkkxh; tkap esa cSad ds execution documents dh lwph tks vHkh rd tkap dk;Zokgh esa izLrqr ugha dh tk ldh gS 10.05.97 ls iwoZ gh izsf"kr dj nh tk;sxh vkSj rRi'pkr tkap izkf/kdkjh ds funsZ'kkuqlkj vkjksfir vf/kdkjh o muds cpko izfrfuf/k ;fn dksbZ gksa dks izys[kksa dk fujh{k.k djok fn;k tk;sxkA cSad ds leLr ewy izys[k lEcfU/kr 'kk[kkvksa esa miyC/k gSA**

58. When the Presenting Officer admits that the list of documents shall be made available to charged officer by 10.05.1997 the question of any defiance on the part of petitioner in receiving the said document prior thereto does not arise. It shows that the Bank in this particular case was/is not responding as an honest model employer. There appears to be a kind of lis where some how or the other attempt is to justify order impugned in the writ petition even if by going to the extent of making a false statement in the counter affidavit. This is really unfortunate and cannot be approved.

59. The Inquiry Officer after recording statement of Presenting Officer in the oral hearing on 25.04.1997, recorded his directions as under:

^^tkap vf/kdkjh us vkns'k fn;k fd tkap dk;Zokgh dkQh le; ls py jgh gS] vc blesa fdlh Hkh izdkj dh fdlh Hkh i{k ls foyEc ugha gksuk pkfg,A izLrksrk vf/kdkjh vknsf'kr dk;ksZ dks le;c) rjhds ls nzqrxfr ls djsxsa rFkk vius dk;Z dks mPp izkFkfedrk nsxsaA

tkap izkf/kdkjh us vkns'k fQj ls fn;k&

¼1½ izLrksrk vf/kdkjh cSad nLrkostksa o xokgh dh lwph tkWap izkf/kdkjh dks 10-5-97 rd vo'; ns nsxsaA bldh ,d izfr og vkjksfir vf/kdkjh dks izsf"kr djsxsaA izLrksrk vf/kdkjh uksV djsa] muds bl mijksDr dk;Z ds fy, vfUre volj fn;k tk jgk gSA blesa vc vkSj fcydqy Hkh nsjh u gksA

¼2½ izLrksrk vf/kdkjh cSad nLrkokstksa dk fujh{k.k cpko i{k dks 21-5-97 rd djokdj fujh{k.k izek.k i= izkIr djsxsaA

nksuksa i{k bls vPNh rjg uksV djsaA**

60. The next date was fixed by Inquiry Officer as 23.05.1997. On this date admittedly the petitioner was absent on account of his illness. This information he conveyed to Inquiry Officer on telephone as is evident from proceedings recorded on the said date, filed as Annexure-21 to the writ petition. The Presenting Officer told the Inquiry Officer that list of documents has been sent to charged officer. The Inquiry Officer believed the same and understood in the manner as if the said list was already received by charged officer. Hence he directed the Presenting Officer to permit inspection of documents to charged officer by 10.06.1997. He also permitted charged officer to submit his list of defence documents and witnesses by 19.06.1997 and the next date fixed was 20.06.1997.

61. After receiving minutes dated 23.05.1997, the charge officer informed the Inquiry Officer vide his letter dated 30.05.1997 that Presenting Officer had made a false statement. By 23.05.1997 the list of Bank's documents was not even put in for communication by post to petitioner. The letter dated 21.05.1997 containing list of documents itself was sent by registered post receipt No. 3747 dated 26.05.1997 which was received at Bilhaur Branch of the Bank on 29.05.1997 for onward delivery to charged officer. Annexure-24 to the writ petition shows that from Bilhaur branch the said letter was served upon petitioner on 07.06.1997. To this effect averments have also been made in para 41 of the writ petition and in para 55 of the counter affidavit there is a bare denial without anything further. Further more Annexure-24 contains an endorsement that petitioner received only the copy of letter dated 21.05.1997 without its enclosure and made an endorsement that list of documents and witnesses be supplied to him. The Presenting Officer in the meantime acting in a contumacious manner, sent a letter dated 30.05.1997 directly to petitioner that he may inspect documents on 13th and 14th June 1997 at Government Business Branch and Kalpi Road Branch. However in the later part of said letter it is said that at both the branches documents shall be inspected by petitioner on 13.06.1997, i.e., the same date. This letter was also served upon petitioner on 07.06.1997.

62. The petitioner in these circumstances made a complaint to Inquiry Officer on 17.06.1997 that the list of documents relied by Bank to support the charges has not been made available and, even inspection has not been permitted. 20.06.1997 which was a date fixed for oral hearing was declared a holiday, hence no proceedings could take place on that date. The Inquiry Officer in his letter dated 25.06.1997 mentioned that Presenting Officer is again directed to forward the list of Bank's documents and witnesses by 30.06.1997 and to allow inspection by 12.07.1997. The next date of inquiry was fixed on 21.07.1997. Oral hearing however continued to be adjourned thereafter till 05.11.1997.

63. The Presenting Officer on 05.11.1997 informed the Inquiry Officer that the list of documents has been supplied to petitioner as also inspection has been allowed. The Inquiry Officer asked whether acknowledgement has been received by Bank to which the Presenting Officer replied as under:

^^cSad nLrkostksa dh lwph] i=kad VIG/PVC/G/dated 23/ 27-6-97 ds ek/;e ls vkjksfir vf/kdkjh dks Hksth xbZ FkhA ftls vkjksfir vf/kdkjh }kjk fcYgkSj 'kk[kk esa lkaB&xkaB dj u rks vHkh rd mldh izkfIr eq>s lwfpr dh xbZ vkSj u gh og lwph eq>s okfil dh xbZ gSA blds lkFk lkFk i=kad VIG/PVC/G/10 dated 30-5-97 fnukad 13-6-97 o 14-6-97 rFkk i=kad VIG/PVC/G/23 dated 27-6-97 }kjk 9-7-97 o 10-7-97 dks cSad nLrkostksa ds fujh{k.k gsrq O;oLFkk dh xbZ Fkh vkSj bl dk;Z esa lg;ksx nsus gsrq tkap izkf/kdkjh ds vuqlkj eSa dkuiqj esa lEcfU/kr 'kk[kkvksa esa mifLFkr Hkh Fkk fdUrq vkjksfir vf/kdjh bl dk;Z esa mifLFkr ugha gq,A**

64. The Presenting Officer admittedly on 05.11.1997 also could not demonstrate that list of documents relied by Bank was served upon petitioner. The Inquiry Officer impressed by Presenting Officer's suggestion that petitioner is adopting dilatory tactics and delaying the proceeding, felt satisfied and proceeded further. The Presenting Officer was directed to place relied on documents. Pursuant whereto two documents were produced and marked exhibits. The Inquiry Officer directed copies of two documents to be supplied to charged officer and fixed next date for further hearing. The inquiry then proceeded on 06.11.1997 where, in the afternoon, petitioner absented.

65. The minutes of proceeding shows that 48 more documents were produced before Inquiry Officer and rest documents were permitted to be produced on 07.11.1997. The Inquiry Officer also directed Presenting Officer to furnish a copy of all the exhibited documents to charged officer. On 07.11.1997, 34 more documents were produced and marked as exhibits from 51 to 84. The Presenting Officer told that documents relating to Government Business Branch Kanpur are not available and he also submitted a non-availability certificate dated 25.06.1997 to Inquiry Officer. The Presenting Officer closed his case whereafter the Inquiry Officer observed that since the petitioner has not participated with inquiry, hence it shall proceed ex parte. Simultaneously he closed oral hearing and Presenting Officer was permitted to submit written briefs by 17.11.1997 whereafter the charged officer was permitted to submit his written brief within 15 days. This is how inquiry has been conducted in this matter. Interestingly, though Inquiry Officer directed the Presiding Officer to provide copies of documents exhibited to the petitioner but without ensuring their supply to the petitioner, closed oral inquiry.

66. As already observed, Rule 68(2)(ix) contemplate that Inquiry Officer must ensure supply of list of documents and witnesses relied by Bank to support the charges. The Presenting Officer did not place anything on record as to when the said list was made available to petitioner. He alleges that the Bank's Bilhaur Branch in collusion with petitioner returned the letter and list but the fact remains that document was not served upon petitioner. It is not the case of Bank that for such alleged collusion on the part of officials of Bilhaur Branch of Bank any action was taken by Bank. Further when inquiry was held on 5th, 6th and 7th November 1997, documents of Bank were exhibited and a direction was issued to Presenting Officer to supply copy thereof to charged officer. There is nothing in the proceedings to show that Presenting Officer made any attempt in this regard and Inquiry Officer failed to ensure its compliance.

67. Rule 68(2)(xii) also shows that inspection of documents has to be allowed by Inquiry Officer by getting documents produced before him. It is not the case of Bank that documents for inspection were ever made available before him on any date prior to 05.11.1997.

68. For almost a dozen times the Presenting Officer continued to defy even supply of list of relied on documents to charged officer and Inquiry Officer found nothing wrong therein. He did not find any occasion of complaint against Bank to prolong the proceedings. But thereafter on 5th, 6th and 7th November 1997 the matter became so urgent for him that without looking into the grievance of petitioner, he simply proceeded as if it is the petitioner who is guilty of so much delay in oral inquiry. Though as a matter of fact more than eight dates were fixed taking more than a year's time simply for furnishing a list of relied on documents in support of charges and it did not impress upon Inquiry Officer to make any comment or take stern action against Bank or its Presenting Officer. In these circumstances, if petitioner apprehended on 06.11.1997 that approach of Inquiry Officer is not impartial but partisan, this Court finds nothing wrong therein.

69. The most interesting thing in this case is that Presenting Officer submitted a non-availability certificate in respect to documents relating to charges pertaining to Government Business Branch, Kanpur, i.e., the charges No. 10, 11 and 12. These documents were not placed before Inquiry Officer and no material was placed to support these charges, yet out of all these three, two charges have been held proved and one partly proved. On what basis the said charges have been held proved is beyond comprehension when the Bank did not submit any document to prove those charges.

70. Admittedly, no witness was examined by Bank in support of charges, hence to hold the charges relating to Government Business Branch proved, is in fact a finding recorded with no evidence whatsoever at all.

71. We need not go into the questions whether punishment imposed is excessive or not, since in our view, the departmental proceedings conducted against petitioner are not in accordance with procedure prescribed under Rules and have resulted in denial of opportunity of defence to petitioner and vitiate for this reason alone. The various authorities cited on this issue, therefore, are not necessary to be discussed.

72. In view of the above discussion, it is evident that writ petition has to be allowed and the impugned order has to be set aside. The question in that case would be, what should be the justified relief. We 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 back wages 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.

73. 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.

74. 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."

75. 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."

76. 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.

77. 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."

78. In my view, while allowing the writ petition and quashing the impugned order, this Court should follow the third view, as discussed above.

79. In the result the writ petition is allowed. The impugned order dated 11.03.1999 is hereby quashed. The respondents Bank, however, is at liberty to hold disciplinary enquiry against the petitioner afresh from the stage of oral enquiry i.e. after filing of the documents by the employer. Such decision shall be taken and communicated to the petitioner within two months from the date of communication of this judgment failing which the petitioner shall be entitled to all consequential benefits including arrears. The enquiry, if so decided, 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.

80. Since we 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.

81. 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.

82. 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.

83. No order as to costs.

Dt/-22.09.2011

AKN/AK