Sri Krishna Yadav vs Union Of India And Others
2018 Latest Caselaw 2426 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											    AFR
 

 
Court No. - 28
 

 
Case :- WRIT - A No. - 54141 of 2007
 
Petitioner :- Sri Krishna Yadav
 
Respondent :- Union Of India And Others
 
Counsel for Petitioner :- Ram Kesh Yadav,A.K.Yadav,P. Padia, R.K.Pandey, Rakesh Pande
 
Counsel for Respondent :- A.S.G.I., A.C.Tripathi, S.C., V. Pratap
 

 
Hon'ble Ajay Bhanot,J.

1. The petitioner was working as Head Cashier in the respondent Bank. A chargesheet was drawn up against him on 03.09.1999. The charges laid out in the chargesheet disclosed acts of misconduct including misappropriation of sums of money from the bank account belonging to one Usha Yadav. A regular departmental enquiry was caused to be conducted into the charges.

2. The Enquiry Officer submitted an enquiry report on 24.10.1991. The enquiry report indicted the petitioner of the charges laid down against him. The services of the petitioner were terminated by order dated 14.10.2006. The petitioner took the order of dismissal in appeal before the competent authority.

3. The appellate authority rejected the appeal of the petitioner by order dated 10.04.2007.

4. The petitioner is aggrieved by the action of the departmental authority as well as the appellate authority.

5. The petitioner has assailed the same in the instant writ petition. The petitioner prayed for the relief of quashment of the order of termination dated 14.10.2006 passed by the disciplinary authority and the order dated 10.04.2007 passed by the appellate authority and the enquiry report dated 21.09.1991.

6. Sri Rakesh Pande, learned counsel assisted by Sri Ram Kesh Yadav, learned counsel for the petitioner, submits that the appellate authority has failed to consider the grounds raised in the appeal. The order reflects non application of mind. He relied upon a judgment of Hon'ble Supreme Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs Jagdish Sharan Varshney and others, reported at AIR 2009 SC 3276.

7. Sri Abhishek Tandon, learned counsel for the respondent Bank resists the contention made by learned counsel for the petitioner. He submits that the grounds raised in the memo of appeal are misconceived. He also contends that the appellate authority was not required to give a detailed finding on the grounds raised in the appeal.

8. Heard learned counsel for the parties.

9. The controversy shorn of unnecessary detail is a short one. Whether the appellate authority has discharged its obligations to law while deciding the appeal of the petitioner?

10. Some facts have been established beyond the pale of dispute which are relevant for a judgement in the matter. The memo of appeal contains a detailed challenge to the enquiry proceedings as well as the order of punishment. Various factual and legal issues have been raised in the memo of appeal. Some of these issues go to the root the matter and if found true would vitiate the enquiry proceedings.

11. Some of the grounds raised in the memo of appeal included the fact that the petitioner was not afforded an opportunity to tender an explanation to the chargesheet. It was also asserted that the enquiry proceedings were ex-parte to the petitioner. The grounds of appeal also averred that the documents in support of the charges laid out against him and mentioned in the chargesheet were not supplied to the petitioner.

12. A perusal of the order dated 10.04.2007 passed by the appellate authority discloses that the order has been passed in a cursory manner. Specific grounds raised in the appeal which are germane to the controversy have not been adverted to in the said order.

13. Learned counsel for the respondent Bank fairly submitted that from a perusal of the order passed by the appellate authority dated 10.04.2007 he cannot demonstrate an independent findings on the aforesaid grounds raised in the memo of appeal.

14. The scope and the power of the appellate authority as claimed the attention of the courts. The courts have consistently held that the appellate authority is the last trier of facts and the final departmental authority on law. The appellate authority is required to pass a reasoned and speaking order addressing the grounds raised in the memo of appeal. The statutory obligation on the appellate authority is cast by Regulation 14 of Memorandum of Settlement on Disciplinary Action Procedure for Workman dated 10.04.2002. The relevant provision is extracted here under for ease of reference-

"14. The Chief Executive Officer or the Principal Officer in India of a bank or an Alternate Officer at the Head Officeor Principal Office nominated by him for the purpose shall bdecide which officer (i.e. the disciplinary authority shall be empowered to take disciplinary action in the case of each office or establishment. He shall also decide which officer or body higher in status than the officer authorized to take disciplinary action shall act as the appellate authority to deal with or hear and dispose of any appeal against orders passed in disciplinary matter. These authorities shall be nominated by designated to pass original orders or hear and dispose of appeals from time to time nd a notice specifying the authorities so nominated shall be published from time to time on the bank's notice board. It is clarified that the disciplinary authority may conduct the enquiry himself on appoint another officer as the Enquiry Officer for the purpose of conducting an enquiry.

The appellate authority shall, if the employee concerned is so desirous, in a case of dismissal, hear him or his representatives before disposing of the appeal. In cases where hearings are not required, an appeal shall be disposed of within two months from the date of receipt thereof. In cases where hearings are required to be given and requested for, such hearings shall commence within one month from the date of receipt of the appeal and shall be disposed of within one month from the date of conclusion of such hearings. The period within which an appeal can be preferred shall be 45 days from the date on which the original order has been communicated in writing to the employee concerned."

15. The provision of departmental appeal quoted above is self speaking and is a reliable guide to determine the purpose sought to be achieved by creating a forum of appeal.

16. A society can be governed by the rule of law only when all individuals have respect for law and all institutions are committed to dispense justice. The constitutional vision enshrined in the preamble of providing justice for all, is possible only if all institutions of governance, the judicial and the executive alike inform their actions with the command of law and a sense of justice. This tenet is true of public authorities acting in the capacity of employers. Only a just employer can ensure an efficient employee. If the courts were to be the sole instrument for administering justice the process of courts will be over burdened. The circuits will be overloaded. The courts will not be able to cope with the rising numbers of claims and explosion of the docket. In such situations the citizens will not get justice on demand.

17. The constitutional objective of justice for all can be realised if all institutions of governance and not just the courts are structured to dispense justice. All institutions of administration including public authorities acting in their capacities as employers need to possess autonomous justice delivery systems.

18. In our constitutional scheme, the courts have the final word but not the sole monopoly in dispensing justice. Finality of judicial pronouncement does not mean monopoly of courts in dispensing justice to the exclusion of other institutions. All institutions of governance have to play their part in dispensation of justice to uphold the rule of law.

19. In this backdrop, the credibility of the justice delivery system in any institution will depend upon the fairness of its process and the autonomy of its functioning while dispensing justice. The departmental appellate authority is one such instrumentality within an institution which is charged with the duty to administer justice. The process of administration of justice will not serve any purpose if it does not inspire faith. Faith among the people will be generated by the credibility of the appellate authority. The credibility of the departmental appellate authority would depend on the procedural fairness which informs the decision making and functional autonomy which defines its existence. Demands of procedural propriety or fairness require that the decision making process of an appellate authority should be consistent with principles of natural justice. The concept of quasi judicial authorities evolved by the courts is quite close or near analogous to the functioning of a departmental appellate authority.

20. In the light of above discussion, the functions and the obligations of a departmental appellate authority can be distilled. The appellate authority is under an obligation to strictly conform to the principles of natural justice and procedural propriety. The appellate authority is under an obligation of law to consider a return findings on the grounds raised in the memo of appeal. The appellate authority has to address all germane issues raised before it. The appellate authority after due application of mind should return findings which are supported by reasons. In case the appellate authority does not discharge this obligation, the decision rendered by it will be vitiated in law. Such decision cannot stand.

21. Failure of the appellate authority on any of the aforesaid count would render the right of appeal an illusion. The credibility of the departmental appeal remedy would be dented and the faith in the justice delivery system created in the institution shall be eroded. These consequences will weaken the rule of law and diminish the resolve and the capacity of the institution to uphold the rule of law.

22. The need for all institutions of governance to be alert to their obligation to law was emphasized by the Division Bench of this court in Dr. Muktakar Singh Vs. State of U.P. and others reported at 2018 (2) ADJ 699 (DB). The Honb'le Court held thus :-

"35. When fundamental rights are in issue, arbitrary action and callous inaction stand on the same footing. Both will invite judicial censure and interdict in equal measure.

36. While the Courts have the final word, it is not the duty of the Courts alone, but an obligation of all institutions of governance to cherish and to protect, to exalt and to uphold the fundamental rights of citizens."

23. The first principles of good administration require that the employer should have the will to check indiscipline, but also the power to redress grievances and the sense to dispense justice. Law has to empower the employer to accomplish these tasks. Take one away and you shake the foundations of good administration. The denial of justice is a failure of the rule of law.

24. The obligation of an appellate authority to apply its mind to the issues raised in the appeal and support its decision by reasons was an issue before the Hon'ble Supreme Court. The Hon'ble Supreme Court defined the role of an appellate authority created under the Service Regulations/Service Rules in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and others (supra)by holding thus :-

"8. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover's case (supra) has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority. The view we are taking was also taken by this Court in Divisional Forest Officer Vs Madhusudan Rao (2008) IILLJ 671 SC, and in Madhya Pradesh Industries Ltd. Vs Union of India [1966] 1SCR 466 siemens Engineering & Manufacturing Co. Ltd Vs Union of India AIR 1976 SC 1785, etc.

9. In the present case, since the appellate authority's order does not contain any reasons, it does not show any application of mind.

10. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N. Mukherjee Vs Union of India reported in 1990 Cri LJ 2148 is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.

11.No doubt, in S.N. Mukherjee's case (supra), it has been observed (vide para 36) that:

...The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.

12. The above observation, in our opinion, really means that the order of affirmance need not contain an elaborate reasoning as contained in the order of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affirmance. To take a contrary view would mean that appellate authorities can simply dismiss appeals by one line orders stating that they agree with the view of the lower authority."

25. In the instant case, even brief reasons in regard to the issues germane to the controversy and duly raised in the memo of appeal have not been provided by the appellate authority while passing the order impugned. The appellate authority has failed to discharge its statutory obligations and has acted in the teeth of law laid down by Hon'ble Supreme Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank (supra). Proceedings before the appellate authority are not a matter of formality. The appellate authority is a part of a larger edifice of alternative dispute resolution mechanism and also an instrument for dispensing justice. The appellate authority in the instant case has failed to discharge the aforesaid role.

26. In such view of the matter the order dated 10.04.2007 (Annexure 16 to the writ petition) passed by the appellate authority cannot stand. The order dated 10.04.2007 is quashed. The matter is remanded back to appellate authority (respondent no. 3) for fresh consideration. A mandamus is issued to respondent no. 3 to execute the following directions;

(i) The respondent no. 3 shall decide the controversy afresh after giving an opportunity of hearing to the petitioner.

(ii) The petitioner shall be at liberty to press the grounds raised in the appeal and any other ground which is relevant to his defence.

(iii) The appellate authority shall pass a reasoned and speaking order which reflects due and independent application of mind on the grounds raised in the memo of appeal.

27. The exercise shall be completed within a period of four months from the date of receipt of a certified copy of this order.

28. The petitioner is at liberty to seek any other relief from the appellate authority which according to him is admissible in law.

29. The writ petition is allowed.

Order Date :- 10.9.2018

Pravin