Awadhesh Kumar Gupta vs The Board Of Directors,Tulsi ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 2
 
 Reserved on 08.05.2012
 
Delivered on 21.05.2012
 
Case :- WRIT - A No. - 19251 of 2003
 
Petitioner :- Awadhesh Kumar Gupta
 
Respondent :- Board Of Directors,Tulsi Gramin Bank through its Chairman and others
 
Petitioner Counsel :- W.H. Khan, Jamal Ali, N.C. Gupta
 
Respondent Counsel :- S.K. Kakkar, S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri W.H. Khan, learned Senior Advocate, assisted by Sri Jamal Ali, learned counsel for petitioner, Sri S.K. Kakkar for respondents, and perused the record.

2. This writ petition under Article 226 of the Constitution has been filed by Sri Awadhesh Kumar Gupta, an Officer working in the erstwhile Tulsi Gramin Bank which has now become Allahabad U.P. Gramin Bank, Banda (hereinafter referred to as "Bank") being aggrieved by order dated 10.12.1997 (Annexure 11 to writ petition) whereby he has been removed from service by Chairman of the Bank/disciplinary authority and the order dated 25.11.2002 passed by Board of Directors dismissing appeal of petitioner. Petitioner has sought a writ of certiorari quashing the aforesaid two orders and further a writ of mandamus commanding respondents to reinstate him with full back wages and other consequential benefits.

3. The facts in brief, giving rise to present dispute, are as under.

4. The Bank was established under Sub-section 1 of Section 3 of Regional Rural Bank Act, 1976 (hereinafter referred to as "Act, 1976") having its Head Office at Chilla Road, Banda and is sponsored by Allahabad Bank.

5. Petitioner was appointed as an Officer on 7.1.1985 and confirmed on the said post after completion of period of probation. Petitioner was an active member of Officers' Association of Bank and at the relevant time was holding Office of General Secretary.

6. One Sri V.N. Mishra was appointed as Chairman of the Bank when petitioner was posted as Officer in the Bank's Branch at Banda. Petitioner had occasion to make complaints against the then Chairman in furtherance of his duties as an Office Bearer of Association. The complaints made by petitioner were found correct and Sri V.N. Mishra was transferred to Patna before completion of his tenure, but the act of petitioner caused and resulted a sustained ill will and animosity with Sri V.N. Mishra.

7. The Petitioner was placed under suspension on 28.4.1995 in purported exercise of power under Regulation 30 (4) of Staff Service Regulations Tulsi Gramin Bank, 1981 (hereinafter referred to as "Regulations, 1981"). The allegation against petitioner was that he used unparliamentary language during conversation with Chairman on telephone. A charge-sheet dated 28.4.1995 (Annexure 3 to writ petition) was served upon petitioner containing a single charge of abusive language. It was alleged that the aforesaid act of petitioner constitute serious misconduct under Regulation 30 (1) of Regulations, 1981. Thereafter another charge sheet was served upon petitioner on 29.4.1995 containing five charges relating to irregularities in distribution of loan between the period from the year 1988 to 1991. Since the impugned proceedings are founded on the first charge sheet only hence the subsequent one is not relevant for the present case. In fact it has not been shown whether any inquiry was actually conducted and concluded on the charges vide charge sheet dated 29.4.1995.

8. Sri Kaushlendra Shukla was appointed Inquiry Officer. It appears that petitioner had some grievance against aforesaid Inquiry Officer and made a request for change of Inquiry Officer. Consequently Sri R.P. Tiwari replaced the earlier Inquiry Officer. Petitioner again requested for change of Inquiry Officer vide letter dated 21.4.1997 but the same was rejected by Chairman vide order dated 29.4.1997. Petitioner, thereafter, came to this Court in Writ Petition No. 15157 of 1997 which was dismissed on 2.5.1997 with the observation that enquiry be proceeded expeditiously and should be completed within a period of four months. The Inquiry Officer ultimately completed enquiry and submitted report dated 17.11.1997, a copy whereof was furnished to petitioner giving opportunity to submit his representation. Thereafter the Disciplinary Authority passed order of punishment dated 10.12.1997 (Annexure 11 to writ petition) imposing punishment of removal. Petitioner preferred appeal under Regulation 33 of Regulations, 1981 vide memo of appeal dated 3.1.1998 and the same has been dismissed by order dated 8.2.1999. Petitioner then came to this Court in Writ Petition No. 16332 of 1999. Vide judgment dated 29.7.2002 an Hon'ble Single Judge allowed the Writ Petition on the short question that impugned appellate order did not contain reasons and thus is non speaking. The matter was remanded to appellate authority with liberty to petitioner to supplement appeal by adding grounds. The appellate authority was directed to decide appeal afresh after giving opportunity to petitioner within three months. Petitioner submitted a supplementary memo of appeal dated 11.9.2002. The appellate authority now has considered the appeal and dismissed the same by order date 25.11.2002 which has been assailed in this writ petition.

9. On behalf of Bank, a detailed counter affidavit has been filed sworn by Sri A.C. Dhawan, the then Chairman, Tulsi Gramin Bank. It is admitted that petitioner was suspended on 9.8.1994 by the then Chairman/ Disciplinary Authority for using filthy and unparliamentary language as well as indecent words resulting breach of peace in the Bank and occurrence of untoward happening/incidents. Suspension of petitioner was revoked on 19.8.1994 pursuant to a meeting between Bank's Employees' Association and the then Chairman (Sri Mishra). Sri Mishra was transferred from post of Chairman by sponsored Bank on administrative reasons and has nothing to do with the alleged complaints made by petitioner. The allegations of ill will and animosity on the part of Sri Mishra have been denied. The charge sheet was issued on a complaint made by Sri P.K. Singh, Branch Manager in whose presence the then Chairman was abused by petitioner and served upon petitioner on 28.4.1995. Another charge sheet was issued on 29.4.1995 containing five charges relating to irregularities already committed by petitioner in respect to advancement of loan to borrowers/loanee when he was serving in different Branches of the Bank. The revocation of order of suspension did not result in dropping of departmental enquiry against the petitioner. The allegations of annoyance on the part of Sri S.K. Katiyar who replaced Sri V.N. Mishra are also unfounded and baseless. The Inquiry Officer Sri Kaushlendra Shukla was changed by Sri S.K. Katiyar, the then Chairman, on the request of petitioner himself. Sri Rajendra Prasad Tiwari was appointed as new Inquiry Officer. Petitioner's application for change of new Inquiry Officer was found baseless hence rejected by Chairman/Disciplinary Authority. The writ petition challenging order of rejection of application for change of Inquiry Officer was dismissed by this Court on 2.5.1997. The oral enquiry commenced on 10.7.1997 but petitioner took all steps to prolong the same seeking adjournments on one or the other pretext and frivolous grounds. Since he failed to cooperate with disciplinary proceedings, the same proceeded ex parte on 8th and 9th May, 1997. Petitioner's request for Defence Assistant was considered and due to administrative reasons, Sri Saud Ali, an Officer of the Bank, could not be accepted as Defence Assistant. However, another person Sri Sanjay Kumar Bajpai was permitted to appear as Defence Assistant on behalf of petitioner. This was ordered on petitioner's application dated 30.10.1997 (Annexure 13 to counter affidavit). The petitioner was allowed full opportunity of inspection of all relevant documents. The witnesses examined by Bank were cross-examined by petitioner. Hence there is no defect in decision making process or oral enquiry. The inquiry report sent to petitioner along with notice/ letter dated 1.12.1997 but he refused to receive the same. This endorsement was made by the Postman concerned on registered envelope on 3.12.1997. It is in these circumstances the Disciplinary Authority passed order of removal on 10.12.1997. The proceedings conducted by Board of Directors are also correct, just and in accordance with law. There is no legal or otherwise error warranting interference. Since there was a difference of opinion between the Directors, veto power was exercised by Chairman (respondent no. 2) and as a result thereof, petitioner's appeal was decided in negative.

10. The impugned orders have been challenged inter alia on various grounds but Sri W.H. Khan, learned Senior Advocate, stressed mainly on the following:

(1) Respondent no. 3, who passed the impugned order of punishment has presided over the meeting of Board of Directors though he was disqualified and, therefore, proceedings of appellate authority are vitiated in law.

(2) There were eight persons participating in meeting of Board of Directors including the Chairman. Four Directors voted in favour of petitioner and three against him. These three Directors were supported by Chairman also i.e. respondent no. 3 and, therefore there was a tie amongst the members of Board of Directors. The final decision of rejection of appeal has been taken by Chairman exercising his power under Section 14 of the Act, 1976 which means that virtually the appellate decision is also by Chairman of the Board of Directors who happens to be the authority imposing punishment of removal upon petitioner. This vitiates the entire proceedings.

(3) No opportunity was given to petitioner though it was specifically directed by this Court and therefore impugned appellate order is in utter violation of directions contained in judgment dated 29.7.2002.

(4) Proceedings are consequence of mala fide of the then Chairmen Sri V.N. Mishra and Sri S.K. Katiyar, therefore are vitiated in law.

(5) Request for change of Inquiry Officer was rejected arbitrarily.

(6) Defence Assistance of choice of petitioner was rejected and this vitiates the entire proceedings.

(7) The main complainant Sri V.N. Mishra, allegedly abused by petitioner, did not appear in the witness box and therefore, there was no witness at all to support the charge. Hence, findings on the the charge of abuse to Sri V.N. Mishra is based on no evidence at all.

(8) Proceedings are in utter violation of principle of natural justice.

(9) The punishment imposed is much in excess and does not commensurate the gravity of charge.

11. To buttress the above submissions, reliance is placed on Ministry of Finance and another Vs. S.B. Ramesh (1998) 3 SCC 227, Hardwari Lal Vs. State of U.P. & others (1999) 8 SCC 582, Sahngoo Ram Arya Vs. Chief Secretary, State of U.P. & others 2002 (1) ESC 479, Latoori Singh Vs. Chairman, Aligarh Gramin Bank, Aligarh 2003 ILR Allahabad Series 100 = 2003 (1) AWC 7 and Bhaskar Parashari Vs. Board of Directors 2005 (2) ESC 1501.

12. On the contrary, on behalf of the Bank it is contended that petitioner throughout has been labouring to delay disciplinary proceedings, not cooperating, and, taking frivolous pleas so that the proceedings may not complete. It is said that ample opportunity was given to petitioner and impugned orders have been passed strictly in accordance with law. The punishment imposed upon petitioner cannot be said arbitrary considering the nature of charges, hence no interference is called for. Reliance has been placed on Umesh Chand Bhilwar Vs. State of U.P. & others (1999) 1 UPLBEC 27, Dr. Bhishambhar Dayal Gupta Vs. Visitor/ President of India 2005 (4) ESC 2284, State Bank of India Vs. Ramesh Dinkar Punde (2006) 7 SCC 212, M.P. Electricity Board Vs. Jagdish Chandra Sharma (2005) 3 SCC 401, State of U.P. Vs. Sheo Shanker Lal Srivastava (2006) 3 SCC 276, S.R. Kashyap Vs. Canara Bank and others (2004) 1 UPLBEC 581, Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varashney and others (2009) 4 SCC 240, P.D. Agarwal Vs. State Bank of India (2006) 8 SCC 776 and Ram Kishan Vs. Union of India & others JT 1995 (7) SC 43.

13. Before examining the rival submissions, this Court may remind itself that scope of judicial review in the matter arising out of disciplinary proceedings conducted by employer in exercise of statutory power is very limited. The Court does not sit in appeal but examines the defect, if any, in decision making process having the effect of denial of adequate opportunity of defence to the delinquent employee or that the view taken by departmental authorities for punishing the employee concerned is perverse, patently arbitrary and contrary to Statute. A Division Bench of this Court in Sarvesh Kumar Sharma Vs. Nuclear Power Corporation of India Ltd. & Another 2006 (2) ESC 1153 having considered a catena of authorities of Apex court has crystallized certain aspects when a judicial review in such matters would be justified and for gravity it would be suffice only to place those aspects 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 hearsey 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.

14. It is in the light of above and various authorities cited at the bar and law applicable on various aspects raised in the matter, I proceed to consider various arguments advanced to assail the impugned orders.

Change of Inquiry Officer:

15. Earlier Sri Kaushlendra Shukla was appointed as Inquiry Officer. It is admitted by petitioner that it is he (petitioner) who raised a grievance against Sri Shukla, the Inquiry Officer, and requested the Disciplinary Authority to change him. Consequently Sri Shukla was replaced by a new Inquiry Officer i.e. Sri R.P. Tiwari by order dated 12.2.1997. Upto this date the previous Inquiry Officer Sri Kaushlendra Shukla had fixed three dates for oral enquiry i.e. 10.1.1997, 28.1.1997 and 10.2.1997. On the previous two dates, petitioner did not appear before Inquiry Officer and on the third date i.e. 10.2.1997 he appeared but contended that he has requested for change of Inquiry Officer by representation dated 29.1.1997 and till a decision is taken thereon by Disciplinary Authority, oral enquiry should be deferred. It is in these circumstances, Sri Kaushlendra Shukla, the then Inquiry Officer, even on third date deferred oral enquiry proceedings and fixed 19.2.1997. Since in the meantime on 12.2.1997 petitioner's request was accepted by Disciplinary Authority and Sri Rajendra Prasad Tiwari was appointed Inquiry Officer, on 19.2.1997 no hearing could take place and the next proceeding took place on 1.5.1997. It is just before the next date of oral hearing fixed by new Inquiry Officer, petitioner again sent an application on 21.4.1997 to the Chairman/ Disciplinary Authority requesting for change of Inquiry Officer. More than two months the matter remained pending since Sri Tiwari was appointed Inquiry Officer on 12.2.1997 but petitioner did not respond immediately. If he had any grievance against Sri Rajendra Prasad Tiwari he could have complained immediately but he moved application only on 21.4.1997 when the newly appointed Inquiry Officer decided to proceed with the oral inquiry on 1.5.1997. The information of date of oral hearing was communicated to petitioner by the Bank's letter dated 21.4.1997 itself. Petitioner's request was considered by Chairman/ Disciplinary Authority and was rejected vide order dated 29.4.1997 (Annexure CA-5 to counter affidavit). Petitioner tried to assail the aforesaid order earlier before this Court in Writ Petition No. 15157 of 1997 decided on 2.5.1997 but this Court declined to interfere. In the above facts and circumstances and discussions, I find no substance in the submission of petitioner that disciplinary proceedings are vitiated by not accepting his request for change of Inquiry Officer second time. Even otherwise, the allegations of bias though levelled against Sri R.P. Tiwari, the Inquiry Officer who submitted inquiry report but he has not been impleaded eo nomine. The allegations are extremely vague. Moreover the allegation of bias in absence of person against whom the same are levelled made can not be entertained by this Court.

16. In State of Bihar Vs. P.P. Sharma, 1992 Supp (1) SCC 222 in para 55 of the judgment, the Apex Court held: -

"It is a settled law that the person against whom mala fides or bias was imputed should be impleaded eo nominee as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegations would be made. Otherwise it itself is violative of the principles of natural justice as it amounts to condemning a person without an opportunity. Admittedly, both R.K. Singh and G.N. Sharma were not impleaded. On this ground alone the High Court should have stopped enquiry into the allegation of mala fides or bias alleged against them."

17. In J.N. Banavalikar Vs. Municipal Corporation of Delhi AIR 1996 Supreme Court 326, in para 21 of the judgment, it has been held as under: -

"Further in the absence of impleadment of the..........the person who had allegedly passed mala fide order in order to favour such junior doctor, any contention of mala fide action in fact i.e. malice in fact should not be countenanced by the Court."

18. In A.I.S.B. Officers Federation and others Vs. Union of India and others JT 1996 (8) S.C. 550, in para 23, the Hon'ble Apex Court has said where a person, who has passed the order and against whom the plea of mala fide has been taken has not been impleaded, the petitioner cannot be allowed to raise the allegations of mala fide. The relevant observation of the Apex Court relevant are reproduced as under: -

"The person against whom mala fides are alleged must be made a party to the proceeding. Board of Directors of the Bank sought to favour respondents 4 and 5 and, therefore, agreed to the proposal put before it. Neither the Chairman nor the Directors, who were present in the said meeting, have been impleaded as respondents. This being so the petitioners cannot be allowed to raise the allegations of mala fide, which allegations, in fact, are without merit."

19. In Federation of Railway Officers Association Vs. Union of India AIR 2003 Supreme Court 1344, it has been held as under:

"That allegations regarding mala fides cannot be vaguely made and it must be specified and clear. In this context, the concerned Minister who is stated to be involved in the formation of new Zone at Hazipur is not made a party who can meet the allegations."

20. In view of above, I find no substance in the submission that impugned orders are vitiated on account of refusal to change the Inquiry Officer i.e. Sri R.P. Tiwari. The contention of Sri Khan on this issue is rejected.

Defence Assistant of choice:

21. It is no doubt true that petitioner initially requested for Sri Saud Ali, Defence Assistant but for administrative reasons petitioner's request made by letter dated 10.2.1997 could not be accepted by Disciplinary Authority and the same was rejected on 14.2.1997. Petitioner was permitted to nominate two other Officers out of which one may be accepted as Defence Assistant. Petitioner accordingly sent letter dated 30.4.1997 in which he again reiterated Sri Saud Ali as the best person to appear as his Defence Assistant but in the alternative also gave his choice for Sri Sanjay Kumar Bajpai, Clerk, Branch Bhawani Purva to be permitted to function as Defence Assistant. He also said that since Sri Sanjay Kumar Bajpai was out of Head Quarter, hence his consent letter could not be obtained but may be submitted later on. This request of petitioner was accepted by Disciplinary Authority by order dated 5.5.1997 (Annexure CA 14 to counter affidavit). Petitioner then submitted consent letter of Sri Bajpai. It is in these circumstances, the Defence Assistant, Sri Sanjay Kumar Bajpai was permitted to represent the petitioner. He was the person nominated by petitioner himself as his Defence Assistant. He was a man of his choice. I, therefore, find no force in the submission that petitioner was not permitted to engage a Defence Assistant of his choice. Once the petitioner intentionally and voluntarily nominated a person as his Defence Assistant and his nomination is accepted by Disciplinary Authority, and such person actually represented the charged official as his Defence Assistant, it cannot be said that since another person or petitioner's first choice was not accepted/permitted to work as Defence Assistant, there is any defect in disciplinary proceeding. The judgement of this Court in Latoori Singh (supra) therefore has no application at all in the facts and circumstances of the case. The contention of petitioner's counsel thus has no substance, hence rejected.

Mala fide:

22. One of the plea stressed too much by Sri Khan is that the entire disciplinary proceedings are the result of mala fide of the then Chairmen Sri V.N. Mishra and Sri S.K. Katiyar and petitioner has throughout made this complaint but ignored though it is evident from the allegations made by petitioner that these are the two Officers on account of whose mala fide action. He has ultimately suffered in the above proceedings. Any malicious act vitiates the entire proceedings. Hence, the impugned orders are liable to be set aside.

23. It is no doubt true that from the start of pleadings i.e. para 8 of writ petition and onwards at several occasions petitioner has allege that he incurred displeasure of the then Chairmen of Bank namely Sri V.N. Mishra and Sri S.K. Katiyar and these two Officers were responsible for getting the entire proceedings initiated and concluded against him. However, the strange fact is that petitioner has impleaded eight Officers of Bank out of total ten respondents by name but neither Sri V.N. Mishra nor Sri S.K. Katiyar have been impleaded eo-nomine. It is well settled that the plea of mala fide shall not be entertained by the Court unless the person against whom the mala fide is alleged is impleaded eo-nomine. On this aspect the binding authorities of Apex Court are already discussed above, namely, State of Bihar Vs. P.P. Sharma (surpa) etc.

24. Since petitioner himself has chosen not to implead these two Officers against whom mala fide is alleged, this Court is bound to non suit the petitioner on this issue and shall refrain itself from entertaining the plea of mala fide against these two Officers namely Sri V.N. Mishra and S.K. Katiyar in absence of their impleadment eo-nomine. Had they been impleaded they would have been able to reply the allegations made against them and only then question of mala fide against these two Officers could have been examined. Since petitioner has chosen not to implead them, that is how the plea of mala fide against these two Officers is bound to be declined.

Non examination of victim, whether vitiates the proceedings:

25. Sri Khan contended that charge found proved against petitioner is that he abused Sri V.N. Mishra, the then Chairman of Bank. Sri Mishra neither appeared as witness nor was examined during the course of disciplinary proceedings and, therefore, the entire charge is bound to fail for non examination of main witness.

26. This issue requires serious consideration to find out whether in disciplinary proceedings against the petitioner, up for judicial review before this Court, Sri V.N. Mishra ever got the status of a witness at any stage or petitioner is trying to treat him as witness thought it is not so. The charge levelled against petitioner, evident from charge sheet dated 28.4.1995, is that on 28.4.1995 at 11.30 AM petitioner on telephonic talk with Sri V.N. Mishra, the then Chairman used filthy and abusive language. The charge-sheet did not disclose any witness but the conservation allegedly being on telephone directly, the persons who were involved in the process of conversation could have been the direct witness to what actually happened and transpired. However, before Inquiry Officer, on behalf of Bank, Sri P.K. Singh, Manager, Banda Branch appeared as department's witness to prove the aforesaid charge. He said that he was present when petitioner telephoned the Chairman in the context of deduction of salary of members of Bank Officers' Association. He thus claimed his presence at site wherefrom petitioner talked with Chairman on telephone. He confirmed the use of words contained in charge sheet which alleged to have been uttered by petitioner to the then Chairman. He also confirmed that after the telephone was disconnected by petitioner, Sri P.K. Singh received telephone of Chairman who complained about the abusive language used by petitioner and enquired whether petitioner has used official telephone of Bank's branch which he confirmed. Sri Singh, therefore in the above circumstances was a direct witness to the incident. Though Sri V.N. Mishra has not deposed his statement to confirm the charge, Sri P.K. Singh, who was also a direct witness to the incident at another end i.e. being present at the place wherefrom petitioner was talking with Chairman, having heard the words uttered by petitioner, it cannot be said that there is no witness against the petitioner merely because Sri V.N. Mishra, the then Chairman has not been examined. In fact Sri V.N. Mishra stood in dual status of victim as well as witness to the incident he suffered. In absence of any other witness, if he would not been examined at all, the department may have faced some difficulty but when there was a witness having seen the incident directly at one end and has also deposed his statement to prove the charge, the mere non examination of Sri V.N. Mishra as a witness in my view shall not weaken the case of department in any manner. Sri P.K. Singh has been cross examined also by petitioner but nothing substantive has come to discredit the above witness. It is true that other witnesses have not proved the charge as a direct witness. Sri J.P. Gupta, the then Manager, Loan, Head Office, Banda who claim to be present in the Chambers of the then Chairman Sri V.N. Mishra and said that Sri V.N. Mishra talked on telephone with petitioner and after disconnecting the phone he told him about abusive and filthy language used by petitioner on telephone, is not a direct witness but in the presence of the evidence of Sri P.K. Singh, his evidence is corroborating the charge and validly could have been considered. The other witnesses have not said anything directly but these two Officers, who could not have been discredited by petitioner in any manner in cross examination, are sufficient to record a finding against petitioner and in these circumstances, it cannot be said that finding recorded in respect to the aforesaid charge is based on no evidence.

27. The Apex Court's decision in Hardwari Lal (supra) cited by petitioner in support of contention that in absence of examination of Sri V.N. Mishra, charge levelled vide charge sheet dated 28.4.1995 cannot be held proved has no application to the facts of this case. The reliance is misplaced. The judgment shows that there also a allegation was made that the employee has abused colleague under the influence of liquor. Neither the complainant nor any other employee who accompanied the delinquent employee to Hospital for medical examination, was examined as witness. The Apex Court found that none of persons who could have said anything with authority in respect to charge levelled against the delinquent employee was examined as witness in absence whereof the findings recorded against delinquent employee holding the charge proved was not sustainable since it was founded on no evidence at all. That is not the case here. A direct witness, Sri P.K. Singh, has been examined and his deposition supporting the charge could not have been discredited by petitioner in any manner during the course of cross examination. It has been corroborated by another witness namely Sri J.P. Gupta who claimed to be present in the Chamber of the then Chairman at the relevant time. Hence here is not a case where it can be said that the aforesaid charge has been found proved without there being any evidence whatsoever.

28. Similar is the case of Ministry of Finance and another Vs. S.B. Ramesh (supra). Therein it was a case where the statement of a witness was relied without his cross-examination. The Court found that the evidence relied was an ex parte one since the delinquent employee had no occasion to cross check the veracity of statement of witnesses by cross examination. The Court virtually held that the documents said to be proved by witnesses without any opportunity of cross examination to the delinquent employee cannot be said to have been proved in accordance with law and therefore even those documents could not have been relied. Again here is a case entirely different as discussed above and, therefore, the aforesaid judgment also lends no support to petitioner.

29. It is well established that Evidence Act as such has no application to departmental proceedings. The Court in judicial review is confined only to see whether there is a case of miscarriage of justice or violation of principles of natural justice but shall not re-appreciate the evidence or act as an appellate authority. The power of judicial review in such matters is not akin to adjudicate the merit by re-appreciating the evidence as an appellate authority. The Court can interfere only when an employee has been penalized on a charge of misconduct without there being any evidence i.e. evidence in law. In the case of departmental enquiry, the matter is not to be examined like a criminal trial. The charge is not to be proved beyond doubt. The standard of proof required is that of preponderance of probability and not the principle of "proving beyond reasonable doubt". If a person of ordinary prudence could have formed an opinion on the basis of material available, the Court shall not interfere merely on the ground that there could have been another opinion and that opinion is better or more probable or palatable. The provisions of Evidence Act, thus, have been held inapplicable in domestic inquiry and out of catena of decisions reference may be made to a recent authority in Cholen Roadways Ltd. Vs. G. Thirugnanasambandam (2005) 3 SCC 241 and Ministry of Finance and another Vs. S.B. Ramesh (supra).

30. The above discussion lead to inevitable conclusion that the charge of abusing has been found proved against petitioner and mere non examination of Sri V.N. Mishra as witness would not vitiate the finding or the impugned orders since there was enough evidence to support the charge which has been considered and relied by authorities below.

The disciplinary authority himself being complainant, whether it is a case of Judge in his own cause:

31. One of the argument seriously advanced is that disciplinary authority, i.e. Chairman himself was complainant. The charge sheet was issued by Sri V.N. Mishra, said to have been abused by petitioner. He therefore violated one of the principles of administrative law that nobody can be a Judge in his own cause.

32. Having given my anxious consideration to the issue, however, even this objection, in my view, is bound to fail. In the present case though domestic inquiry was initiated by Sri V.N. Mishra, the then Chairman but ultimately the order of punishment has been passed by another Chairman namely Sri S.K. Katiyar who replaced Sri V.N. Mishra as Chairman of the Bank. Strictly speaking therefore the above doctrine does not apply. However, even for the sake of argument, if this doctrine is sought to be applied to the initial stage i.e. issuance of charge sheet, in my view it is protected by another principle of natural justice recognizing an exception to the doctrine of "none shall be judge in his own cause" and that exception is "doctrine of necessity".

33. The twin principles considered to be the pillars of principles natural justice are, (1) nobody shall be condemned unheard i.e. without hearing and (2) none shall be Judge in his own cause. The above twin pillars, however, admits certain exceptions to their application for the reason that these are principles of administrative law and one of the exception which is well recognized is exclusion by a Statute. If a Statute provides otherwise, the above principle may/can not be applied strictly.

34. Similarly, there are some other exceptions also like doctrine of "Useless formality'. One of them is the "doctrine of necessity". Then there may be certain cases where no substitution is possible. None other may have been empowered to act since the power is conferred upon the person who is the complainant himself. In such circumstances, the principle of necessity has been applied and it has been said that the natural justice will have to make way to necessity otherwise there would not be anyone to take a decision and such a situation cannot be conceived and also cannot be countenanced in any system of justice or administration.

35. There are ample authorities on the subject which are well recognized in administrative law. One of the earliest case of Apex Court is A.K. Kraipak Vs. Union of India AIR 1970 SC 150 where this doctrine was considered vis-à-vis the plea of bias of a Selection Committee. It was alleged that one of the Member of Selection Committee was closely related to a candidate appearing for selection and, therefore, his mere withdrawal when the candidate concerned came to be interviewed by the Selection Committee would make no difference since very factum of his being Member of Selection Committee is bound to affect selection and non selection of a candidates when it is a competitive test. The Apex Court did not agree with the widest proposition but held that where selection is to be made by a constitutional authority like Public Service Commission, if substitution of the Members is not possible, the selection in such circumstances by itself would not be vitiated. However, when a close relative of a Member of Public Service Commission appears for interview such Member must withdraw from participating in interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks and credits given to that candidate should not be disclosed to such Member.

36. The doctrine of necessity has been discussed by various Jurists and Prof. H.W.R. Wade in Administrative Law (5th Edn.) at page 426 and 427 in para 14 has said:

"In all the cases so far mentioned the disqualified adjudicator could be dispensed with or replaced by someone to whom the objection did not apply. But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity, for otherwise there is no means of deciding and the machinery of justice or administration will break down."

37. It has further said:

"In administrative cases the same exigency may easily arise. Where statute empowers a particular minister or official to act, he will usually be the one and only person who can do so. There is then no way of escaping the responsibility, even if he is personally interested. Transfer of responsibility is, indeed, a recognized type of ultra vires. In one case it was unsuccessfully argued that the only minister competent to confirm a compulsory purchase order for land for an airport had disqualified himself by showing bias and that the local authority could only apply for a local Act of Parliament. The court will naturally not allow statutory machinery to be frustrated in this way. For similar reasons a governor of a colony may validly assent to an Act of indemnity for his own actions, since otherwise the Act could not be passed at all. It is generally supposed, likewise, that a minister must act as best he can even in a case where he, for instance, himself owns property which will be benefited if he approves a development plan. Such cases of private and personal interest are conspicuous by their absence in the law reports. But there have been cases involving public funds. The Local Government Superannuation Act 1937 gave employees of local authorities statutory rights to pensions under certain conditions, but provided that any question concerning these rights should be decided first by the local authority, and then in case of dispute by the minister, whose decision on questions of fact was to be final. The Court of Appeal held that there was no escape from these clear provisions."

38. In Election Commission of India and another Vs. Dr. Subramaniam Swamy and another (1996) 4 SCC 104, the Court applying the doctrine of necessity in para 16 of the judgment observed:

"16. We must have a clear conception of the doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the dormer as it is the only way to promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief Election Commissioner to participate, if not the doctrine of necessity may have to be invoked."

39. In Badrinath Vs. Government of Tamil Nadu & others J.T. 2000 (Suppl. 1) SC 346, the Court said that unless there is a statute or statutory rule compelling the person to take a decision and there is no legally permissible alternative to substitute the adjudicator by another adjudicator, the doctrine of necessity cannot be pressed in the service.

40. In Amar Nath Chowdhury Vs. Braithwaite & Co. Ltd. and others AIR 2002 SC 678, the Court discussing the doctrine of necessity said:

"One of the principles of natural justice is that no person shall be a judge in his own cause or the adjudicating authority must be impartial and must act without any kind of bias. The said rule against bias has its origin from the maxim known as ''Debet Esse Judex in Propria Causa', which is based on the principle that justice not only be done but should manifestly be seen to be done. This could be possible only when a Judge or an adjudicating authority decides the matter impartially and without carrying any kind of bias. Bias may be of different kind and form. It may be pecuniary, personal or there may be bias as to the subject matter etc. In the present case, we are not concerned with any of the aforesaid form of bias. What we are concerned with in the present case is whether an authority can sit in appeal against its own order passed in the capacity of Disciplinary Authority."

41. In Financial Commissioner (Taxation), Punjab and others Vs. Harbhajan Singh (1996) 9 SCC 281, the Court said:

"Settlement Officer has no jurisdiction to sit over the order passed by him as an Appellate Authority. In the present case, the subject-matter of appeal before the Board was whether the order of removal passed by the Disciplinary Authority was in conformity with law. It is not disputed that Shri S. Krishnaswami, the then Chairman-cum-Managing Director of the Company acted as a Disciplinary Authority as well as an Appellate Authority when he presided over and participated in the deliberations of the meeting of the Board while deciding the appeal of the appellant. Such a dual function is not permissible on account of established rule against bias. In a situation where such a dual function is discharged by one and the same authority, unless permitted by an act of legislation or statutory provision, the same would be contrary to rule against bias. Where an authority earlier had taken a decision, he is disqualified to sit in appeal against his own decision, as he already prejudged the matter otherwise such an appeal would be termed an appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility. In that view of the matter, in the present case, fair play demanded that Shri Krishnaswami, the then Chairman-cum-Managing Director of the Company ought not to have participated in the deliberations of the meeting of the Board when the Board heard and decided the appeal of the appellant."

42. Dealing with this principle, a Division Bench of this Court in Dr. Virendra Kumar Sharma Vs. State of U.P. 2006 (6) AWC 6263 has crystallized certain aspects on the doctrine of necessity and in para 21 it says:

"21. In view of foregoing discussions following legal propositions emerge in respect of administrative or quasi-judicial decisions tainted with bias:

(1) If a selection committee constituted for the purpose of selecting candidates on merits and one of the member of the selection committee is closely related to a candidate appearing for selection it would not be enough for such member merely to withdraw from participation in the interview of the candidate related to him but must withdraw altogether from entire process of selection and ask the authorities to nominate another person in his place on the selection committee, otherwise selection would be vitiated.

(2) The above principle as it stands cannot be applied in respect of selection made by Central or State Public Service Commissions, where member of the commission whose close relative is appearing for selection, consisting of interview or promotions etc. without interview, he need not to withdraw from selection altogether rather he should abstain in interview of his close relative and further deliberations in allocation of marks, but in multimember commissions where other alternatives are available, it would be most appropriate to leave the matter of interview and deliberations of allocations of marks to another member comprising Board of selection.

(3) Where the selection committee is constituted under statutory rules or Government orders, a member is disqualified in a given situation vis-à-vis a particular candidate whose promotion or selection is in question there can be no difficulty in his reclusing himself and requesting another officer to be substituted in his place in committee. Alternatively, when there are three or more members in such committee, the disqualified member could leave it to the other remaining members to take decision. In case however they differ then authority which constituted the committee, could be requested to nominate a third member in case of committee having three members.

(4) The aforesaid rule shall also be applied with necessary modification in the matter pertaining to disciplinary action where the commission is to be consulted and in cases where the Inquiry Officer or Disciplinary or Appellate Authority is disqualified to take decision on account of bias, affecting such decision.

(5) There can be no difficulty in applying the rule in connection of members of screening committee constituted for the purpose of compulsory retirement with necessary modification, if any member of screening committee is disqualified on account of bias in taking even advisory decision.

(6) However before setting-aside such decisions tainted with bias, it is necessary for the courts or tribunals to examine that as to whether the decision can be saved by applying the doctrine of necessity in the manner indicated herein before as exception to the rule against bias affecting the decision but where there is no such statutory compulsion, the doctrine of necessity cannot be pressed into service."

43. In the present case, Sri V.N. Mishra was the Chairman appointed by the Bank. It is nobody's case that there was any other Chairman or any other authority empowered to take decision in place of Chairman at the relevant time. In that view of the matter the plea of bias and the further plea that Chairman being himself the complainant could not have initiated proceedings against petitioner is bound to fail by looking to application of doctrine of necessity in the facts and circumstances of this case.

Consideration by Appellate Authority i.e. Board of Directors

44. Learned counsel for petitioner has argued that there was nothing to prove the charge and findings are perverse and also that procedure followed by appellate authority was not consistent with the principles of natural justice and lastly that the punishment is excessive. But, in my view these questions should be considered only after dealing with another crucial issue raised on behalf of petitioner that the decision taken by appellate authority i.e. Board of Directors presided by Sri S.K. Katiyar vitiates the decision of appellate authority inasmuch in the review of Disciplinary Authority's order, which was passed by Sri Katiyar, he himself could not sit in appeal to decide validity of his own order. Hence the decision of appellate authority is vitiated having been passed by an authority disqualified to pass such order. It is also contended that out of seven Directors who participated in the meeting, four took a decision in favour of petitioner and in these circumstances, the Chairman, who happens to be the disciplinary authority also of the petitioner, was not justified in casting his vote twice so as to overturn the majority decision and this procedure followed by respondents is wholly illegal and inconsistent to the principles of equity, justice and good conscience. It is lastly contended that under the statute also, in a meeting of Board of Directors it is the decision of majority of the Directors which will prevail and Statute also deals the 'Chairman' and 'Directors' separately, therefore, to construe a decision of the majority of the Directors, the Chairman's vote would not be taken into consideration. Respondents having failed to consider this aspect of the matter and having acted otherwise have committed a patent error of law which vitiates the impugned appellate order.

45. In my view, the later question about the procedure etc. in which petitioner's appeal has been decided by the appellate authority deserves to be considered first before considering the question whether the findings are perverse or that punishment is excessive or that the procedure followed by the appellate authority contemplated necessarily oral hearing to the petitioner also to make it consistent with the principles of natural justice or not.

46. From the record, it appears that following participated in the meeting of Board of Directors held on 25.11.2002:

1. Sri L.P. Lal, Chairman

2. Sri R.K. Singh, Regional Manager, Hamirpur - Director

3. Sri A.C. Dhawan, Chief Manger, Kanpur - Director

4. Sri H.K. Srivastava, Parent Bank Representative - Director

5. Sri S.U. Ansari, Chief Development Officer, Banda-Director

6. Sri Bhupendra Tripahti, Chief Development Officer, Chitrakoot - Director

7. Sri M.L. Kureel, Non Government Director - Director

8. Sri Vishvambhar Singh, Non Government Director-Director

47. There is a fallacy in the argument of Sri Khan that the same person acted as Disciplinary Authority as also the Chairman of the Board of Directors, hence, the decision is vitiated on the principle that "no one can be Judge in his own case" inasmuch Sri S.K. Katiyar holding the Office of Chairman at the relevant time passed the order of punishment but at the time when the appeal was heard, he was not holding the Office of Chairman but it is Sri L.P. Lal, who participated in the meeting of Board of Directors to consider petitioner's appeal holding the Office of Chairman. Therefore, this aspect as such does not cause any defect in the decision of the appellate authority.

48. Out of the eight Members who considered petitioner's appeal, four Members held the Office in one or other capacity in the Bank (hereinafter referred to as "Bank Directors") and rest four Members are either Officer of State Government or independent Directors (hereinafter referred to as "Non Bank Directors"). The Non Bank Directors unanimously took a decision that the charges are not proved and punishment imposed upon petitioner is excessive, therefore, petitioner should be exonerated and reinstated.

49. Remaining four, which included the Chairman also, took another view and held that petitioner is guilty of grave misconduct and hence his appeal is liable to be rejected.

50. Neither Sri Katiyar nor Sri V.N. Mishra in any capacity were Members of appellate authority when petitioner's appeal against impugned order of punishment was considered. Mere fact that the order appealed against was passed by erstwhile Chairman who constitute the Presiding Officer of the Board of Directors would not attract the doctrine of bias as argued since the persons who held the Office at two different times were different. Though the position they held is of coordinative status but that would make no difference on its own.

51. However, the Court also would not shut its eyes to the fact that four independent Officers in their capacity as Directors who themselves have no otherwise link with the Bank unanimously took the view that neither the charges are proved nor the petitioner deserves such a serious punishment. The decision has been carried out by the Board by virtue of Chairman's exercise of power of taking a final decision in the contingency of a tie between the Directors of the Board though no clear decision could be taken by the Directors.

52. In the impugned order, the Chairman has referred to Section 14 Sub-section 3 of Act, 1976 which reads as under:

"(3) All questions at a meeting of the Board shall be decided by a majority of the votes of the directors present and voting; and, in case of equality of votes, the person presiding shall have a second or casting vote."

53. The definition of "Director" and "Chairman" in Section 2 shows that the above two Officers are different. The Act does not contemplate a Chairman to be known as Director also. The terms "Chairman" and "Director" are defined in Section 2(b) and (c) and read as under:

"2 (b) "Chairman", in relation to a Regional Rural Bank, means the individual appointed or re-appointed under sub- section (1) of section 11 as the Chairman of that bank;

(c) "Director", in relation to a Regional Rural Bank, means a member of the Board of that bank"

54. Section 11 deals with Chairman and reads as under:

"11. Chairman.- (1) The Sponsor Bank shall appoint an individual to be the Chairman of a Regional Rural Bank and specify the period, not exceeding five years, for which such individual shall, subject to the provisions of sub-section (4) hold office as the Chairman:

Provided that no appointment of such an individual shall be made,-

(a) if such individual is an officer of the Sponsor Bank, except after consultation with the National Bank;

(b) in any other case, except with the prior approval of the Central Government.

(1A) Notwithstanding anything contained in sub-section (1),-

(a) the Sponsor Bank shall have the right to terminate the term of office of the Chairman at any time before the expiry of the period specified in sub-section (1):

Provided that no such termination shall be made,-

(a) if the Chairman is an officer of the Sponsor Bank, except after consultation with the National Bank; and

(b) in any other case, except with the prior approval of the Central Government:

Provided further that where the Chairman is not an officer of the Central Government, State Government, Reserve Bank, National Bank, Sponsor Bank or any other bank, he shall be given notice of not less than three months in writing or three months salary and allowances in lieu of such notice; and

(b) the Chairman shall have the right to resign his office at any time before the expiry of the period specified in sub-section (1) by giving to the Sponsor Bank, notice of not less than three months in writing.

(2) The individual, appointed as a Chairman under sub-section (1), shall, on the expiry of the period specified under that sub- section, be eligible for re-appointment.

(3) The Chairman shall devote his whole time to the affairs of the Regional Rural Bank and shall have, subject to the superintendence, control and direction of the Board, the management of the whole of the affairs of the Regional Rural Bank.

(4) The Sponsor Bank may, at any time, remove the Chairman from office: Provided that no such removal shall be made,-

(a) if the Chairman is an officer of the Sponsor Bank, except after consultation with the National Bank; and

(b) in any other case, except with the prior approval of the Central Government: Provided further that no person shall be removed from his office, under this sub-section, unless he has been given an opportunity of showing cause against his removal.

(5) The Chairman shall receive such salary and allowances and be governed by such terms and conditions of service as may be determined by the the Sponsor Bank in consultation with the National Bank.

(6) If the Chairman is, by infirmity or otherwise, rendered incapable of carrying out his duties or is absent, on leave or otherwise, in circumstances not involving the vacation of office, the Central Government may appoint another individual to act as the Chairman during the absence of the first-mentioned Chairman."

55. The Board of Directors is also dealt with in Section 9 and it reads as under:

"9. Board of directors.- (1) The Board of directors shall consist of the Chairman appointed under sub-section (1) of section 11, and the following other members, namely:-

(a) two directors, who are not officers of the Central Government, State Government, Reserve Bank, National Bank, Sponsor Bank or any other bank, to be nominated by the Central Government;

(b) one director, who is an officer of the Reserve Bank, to be nominated by that Bank;

(c) one director, who is an officer of the National Bank, to be nominated by that Bank;

(d) two directors, who are officers of the Sponsor Bank, to be nominated by that Bank; and

(e) two directors, who are officers of the concerned State Government, to be nominated by that Government.

(2) The Central Government may increase the number of members of the Board; so, however, that the number of directors does not exceed fifteen in the aggregate and also prescribe the manner in which the additional number may be filled in."

56. Section 9 shows that the Board of Directors shall consist of Chairman and such number of Directors as prescribed therein. Section 10 provides their tenure being not exceeding two years. Therefore by virtue of Section 9, it is clear that Board of Directors as such consist of Chairman and Directors appointed therein but by itself it does not talk of the Chairman appointed under Section 11. It is by virtue of Section 14 (2) of Act, 1976 the Chairman of the Bank gets the authority to preside over every meeting of the Board. The legislature knew that Board of Directors consisted of two types of Officers; one is 'Chairman' and another is 'Director(s)'. However, being well conscious of the above fact, yet in Section 14 Sub-section 3, it says that all questions in a meeting of Board shall be decided by a majority of Board of Directors presented and voted. It does not mention the word 'Chairman'. There is no provision in the statute and at least none has been shown to exist expressly or by necessary implication that in the meeting of Board of Directors, the Chairman shall also be considered to be a Director for the purpose of voting and also for Section 14 (3). The normal principles of meeting of an Association or incorporated body or Company would not apply here when the matter is governed by a special Statute applicable to the Bank in question. When specific provisions have been made, it has to be followed as it is. There is no scope of reading any casus omissus therein. The Court shall not presume any gap or mistake in the Statute so as to provide casus omissus. When Statute is otherwise clear, unambiguous, it has to be interpreted and read as it is. There is no scope of adding certain words therein or to try to reconstruct the sentences or the words used therein. With respect to principles of interpretation of statutes in such matters, a Division Bench of this Court (in which I was also a member) in Surendra Vs. State of U.P. and others 2007 (6) AWC 6229 observed as under:

"Where the language of statute is clear and unambiguous there is no room for reading or interpreting statute in a manner, which may add a few words therein on the assumption that the legislature has left a vacuum need to be bridged by judicial interpretation. It is not the function of the Court to read something in the provision of law, which is not there, or find out a way of obviating the difficulties in enforcing the law howsoever meritorious the intention of the legislature might be."

57. A Constitution Bench of Apex Court in Behram Khurshed Pesikaka Vs. State of Bombay AIR 1955 SC 123 rejecting to interpret a law on the supposed difficulty of prosecution in improving the case, observed as under:

"The difficulty in the way of the prosecution proving its case need not deflect the Court from arriving at a correct conclusion. If these difficulties are genuinely felt it would be for the legislature to step in and amend the law. It would not be the function of the Court to read something in the provisions of the law, which is not there, or to find out a way of obviating the difficulties in enforcing the law howsoever meritorious the intentions of the Legislature might be. (Para-17)

58. It is settled principle of interpretation, where the words used are clear and unambiguous, the Court is bound to construe them in their ordinary sense and it is not the function of the Court to add words or expression for supposed assumption of what would have been the intention of the legislature. The Court is not entitled to go beyond so as to supply an omission as if to play the role of a political reformer or counsel to the legislature. A Constitution Bench of Apex Court in Dadi Jagannadham Vs. Jammulu Ramulu and others AIR 2001 SC 2699 in para 13 observed as under:

"The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there."

59. The Cardinal rule of construction is to find out the intention of the legislature in the words used by the legislature itself. The Court, in order to find out the intention of the statute framing authority must look into the statute itself without any assistance from any other external factor unless there is some doubt or ambiguity in the construction of the statute itself. It would be appropriate to remind in the words of Lord Brougham in Robert Wigram Crawford Vs. Richard Spooner, 4 MIA 179 (187) (PC):

"..if the legislature did intend that which it has not expressed clearly; much more, if the Legislature intended some thing very different; if the Legislature intended pretty nearly the opposite of what is said, it is not for judges to invent something, which they do not meet within the words of the text (aiding their construction of the text always, of course, by the context).

60. The Apex Court in S. Gurmej Singh Vs. sardar Pratap Singh Kairon AIR 1960 SC 122 also held that the Courts are not to busy themselves with ''supposed intention' or with ''the policy underlying the statue but must construe the statute from plain meaning of the words used therein. In Aron Soloman Vs. A. Soloman & Co. Ltd. (1897) AC 22 (38) (HL) 5 Lord Watson observed- " In a court of law or equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication." The aforesaid passage has been quoted with approval by the Apex Court in R.L.Arora Vs. State of Uttar Pradesh, AIR 1964 SC 1230 (1244), Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. Vs. Workers Union AIR 1969 SC 513 (759), Hansraj Gordhandas Vs. H.H.Dave AIR 1970 SC 755 (759), Sri Umed Vs. Raj Singh AIR 1975 SC 43 (63/64), Commissioner of Sales Tax, U.P. Vs. Super Cotton Bowl Refilling Works AIR 1989 SC 922 (930), State of Madhya Pradesh Vs. G.S.Ball and Flour Mills AIR 1991 SC 772 (785) and Harbhajan Singh Vs. Press Council of India AIR 2002 SC 1351 (1356).

61. I am aware that the rules of the interpretation are not rules of laws and are not to be followed like rules enacted by legislature in Interpretation Act as observed by the Hon'ble Apex Court in Superintendent and Remembrance of Legal Affairs, West Bengal Vs. Corporation of Calcutta AIR 1967 SC 997. The principles of interpretation serve only as a guide. A casus omissus cannot be supplied by the Court. There is no presumption that a casus omissus exists and language permitting the Court should avoid creating a casus omissus where there is none. It would be appropriate to recollect the observations of Devlin, L.J. in Gladstone Vs. Bower (1960) 3 All ER 353 (CA), " The Court will always allow the intention of a statute to override the defects of working but the Court's ability to do so is limited by recognized canons of interpretation. The Court may, for example, prefer an alternative construction, which is less well fitted to the words but better fitted to the intention of the Act. But here, there is no alternative construction; it is simply a case of something being overlooked. We cannot legislate for casus omissus."

62. The Apex Court in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and others, AIR 1978 SC 548 (561) quoted with approval the following observation of Lord Simonds in the case of Magor & St. Mellons R.D.C. Vs. Newport Corporation, (1951) 2 All ER 839 (841):

"The duty of the Court is to interpret the words that the Legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited."

63. It would be appropriate at this stage to remind another principle that though a Court cannot supply a real casus omissus, it is equally evident that it should not interpret a statute so as to create casus omissus when there is really none. Recently in Vemareddy Kumaraswamy Reddy and another Vs. State of Andhra Pradesh 2006(2) SCC 670 the Court reiterated that while interpreting a provision the Court only interprets the law and cannot legislate. If a provision of law is misused and subject to the abuse of process of law, it is for the legislature to amend, modify or repeal it if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretative process.

64.Therefore in the present case the procedure to be observed by Board of Directors in the meeting of Bank will have to be read strictly in accordance with Statute applicable to the Bank in question and for that purpose this Court will not look into any external aid or the principles of interpretations applicable in extraordinary circumstances, when there is some doubt or lack of clarity or ambiguity in the provisions of Statute under consideration. A decision has to be taken by the majority of Board of Directors presented and voted and it is only when the Directors present and voted divide in equal number, the person presiding the meeting has been given power of casting vote or second vote. If various Sub-sections of Section 14 are read together, it shows that meeting of Board of Directors shall be presided by Chairman and after discussion the power to vote has been conferred upon the Directors. If the Directors divide equally, then the Chairman may cast his vote and in case Chairman is a person selected by Board of Directors amongst themselves, the Chairman appointed under Section 11 withdrawing from meeting or otherwise absent, such Director who is elected as Chairman is empowered to vote for second time. Once the Statute has treated the Directors and Chairman of the Bank differently, there is no reason for the Court to identify them as interchangeable so as to equate the Chairman in all capacity as Director. The legislature being well aware of the two terms, it has used in the Statute, has clearly said that it should be the majority of the votes of the Directors present and voting and does not include itself the Chairman. There is no provision which says that for the purpose of participation in meeting of Board of Directors and voting, the term "Director" will include the "Chairman". The Board of Directors in the case in hand had seven Directors out of which four voted in favour of petitioner to exonerate him and three against him. It appears that the Chairman also voted first against petitioner so as to bring the stage of equal division between the Directors and thereafter decided the matter again taking power in his own hands of deciding the entire issue on merits so as to constitute a majority against petitioner. To my mind, considering specific provision of Act, 1976 the procedure adopted by appellate authority in the case in hand is not just and strictly in accordance with Statute. The appellate order, therefore cannot sustain.

65. In the law of meetings, as commonly known, every person participating in a meeting including the person presiding over it whether termed as "Chairman", "President" or by any other name, has equal right of discussion, debate as also of voting. I am quite conscious of general principles. But when a matter is governed by specific provisions of Statute wherein the legislature has consciously drawn distinction between the "Chairman" and "Director(s)", providing certain duties, responsibilities and powers upon the Chairman and similarly upon the Directors separately, and has not made any provision stating that in a meeting, Chairman for the purpose of voting would be considered at par with the Directors, such a consequence cannot be read by application of general principles particularly when there is a specific provision that decision in meeting shall be taken by the majority of the Directors. It is nowhere provided that the Directors will include Chairman also. This Court also finds that in the meeting a Presiding Officer may in a given circumstance, can be a Director also where the Chairman is otherwise disqualified or recuse himself from participating in the meeting or is otherwise not available, and in such circumstances, one of the Directors is chosen to preside over meeting. In such a case though the person presiding is Director but since he is Director, the result can be influenced by his vote but where the Chairman himself is presiding, the specific provision in my view is difficult to read in a manner so as to include "Chairman" as "Director". After careful consideration, I find that scheme of Statute in the present case is slightly different but that is for the legislature and not for the Court to consider over its wisdom. The Court has to interpret and implement the Statute as it is unless it admits of serious ambiguity or doubt which in the present case, fortunately, does not exist. Hence, in my view the decision of the appellate authority is not in accordance with the Statute and is unsustainable.

66. Considering the peculiar facts and circumstances of the case, in my view let the appeal be considered again by the appellate authority i.e. Board of Directors and that being so, I leave the issues raised by petitioner, as pointed out above, open to be decided by appellate authority which shall consider the same and the matter will be decided in accordance with law.

67. In the result, writ petition is allowed. The appellate order dated 25.11.2002 (Annexure 16 to writ petition) is hereby set aside. Board of Directors of the Bank is directed to consider the appeal/supplementary memo of appeal of petitioner in accordance with law and in view of the observations made above and take a decision thereon expeditiously preferably within three months from the date of production of certified copy of this order after giving due opportunity of hearing to all concerned parties in accordance with rules.

Dt. 21.05.2012

PS