Delhi High Court
K.M. Tomar vs State Bank Of India & Ors. on 6 November, 2015
Author: S.Ravindra Bhat
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 15.10.2015
PRONOUNCED ON: 06.11.2015
W.P. (C) 791/2000
K.M. TOMAR .....Petitioner
Through: Mr. R.K. Saini with Mr. Atul Guglani,
Advocates.
versus
STATE BANK OF INDIA & ORS. .....Respondents
Through: Mr. Rajiv Kapur with Mr. Karan Kakkar,
Advocates for SBI.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
S. RAVINDRA BHAT, J
% This writ petition was referred to the Division Bench by an order of
the single judge dated 18.07.2013. The single judge noticed that writ
petitioner had challenged the vires of Rule 50 of the State Bank of India
(Supervising Staff) Service Rules, 1975 (hereafter "the Rules"). The other
reliefs claimed are for quashing the order of dismissal issued against the writ
petitioner.
2. The Petitioner was at the relevant time working as Branch Manager
of the respondent State Bank of India (SBI), Karawal Nagar Branch, New
Delhi. By an order dated 31.08.1984 he was placed under suspension, in
terms of Rule 50A (1) of the State Bank of India (Supervising Staff) Service
Rules, 1975 (hereafter "the Rules") on allegations of irregularity. A charge
sheet was later issued, on 31.10.1989. This was followed by a detailed
inquiry. The Enquiry Officer furnished his report (dated 29.05.1991) to the
W.P.(C)791/2000 Page 1
SBI and the Disciplinary Authority after considering the report imposed the
penalty of dismissal, by order dated 30.12.1991. The petitioner appealed
against his dismissal, without avail. The appellate authority rejected his plea
by order dated 16.10.1993. The petitioner sought review of the said order;
the review was declined by the SBI's order dated 10.04.1996.
3. As the petition concerns the vires of the Rule, for which a direction
to quash Rule 50 is sought, as the third relief, the discussion in this
judgment would be confined to that issue only i.e. its validity.
4. Mr. R.K. Saini, learned counsel appearing for the writ petitioner,
urged that Rule 50 is arbitrary inasmuch as it permits SBI to conduct an
inquiry without affording full and adequate opportunity to a charged
employee. It was submitted that the said rule does not mandate that the
employer should furnish copies of documents sought to be relied upon, at
the stage when the Articles of Charge and imputations are served. Counsel
urged that given the fact that a charged officer has to deal with the charge
sheet within a time frame, indicated under the Rules, the omission to
mandate that copies of documents should be furnished to the delinquent
employee occasions failure of justice and amounts to violation of principles
of natural justice.
5. Mr. Saini points out that Rule 14 (3) of the Central Civil Services
(Classification, Control and Appeal) Rules, 1965 clearly envision
opportunity to a charged employee. Rule 14 (3), it is submitted mandates the
furnishing of copy of all the documents relied on by the employee.
"(3) Where it is proposed to hold an inquiry against a
Government servant under this rule and rule 15, the
disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or
misbehaviour into definite and distinct articles of charge;
W.P.(C)791/2000 Page 2
(ii) a statement of the imputations of misconduct or misbehaviour
in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or
confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by whom,
the articles of charge are proposed to be sustained."
The lack of a similar mandate to the establishment or management of the State
Bank of India, submitted counsel, results in denial of a fundamental principle of
natural justice, i.e. that one charged for an offence or misconduct, should be made
fully aware of all the material sought to be used against him by the employer, at
the stage she or he is asked to answer to the charges. Denial of this opportunity
vitiates the entire enquiry. Therefore, urged counsel, Rule 50 violates Article 14 of
the Constitution of India.
6. Mr. Kapoor, learned counsel appearing for the respondent, SBI urges that
the petitioners' contentions are unfounded and the charge of the rule being
arbitrary, devoid of merit. SBI urges that the delinquent or charged employee is
entitled to seek inspection - and in this case, was granted inspection, before he
filed his formal reply or denial of the charges. He refers to the Articles of charges
issued in the present case, on 31.10.1989, which contained a note that
"Should you need to refer to any records for preparing your defence
you may do so by visiting Karawal Nagar, (Delhi branch) for a day or
so and submit your reply within the stipulated time."
At the stage of the enquiry, full opportunity was granted to the Petitioner, who
uncomplainingly availed it. Counsel further highlighted that Under Rule 50 (x) (a)
the Inquiry Officer has to - in the case of employees not admitting to guilt in his
written statement of defence - furnish to the employee "a list of documents by
which, and a list of witnesses by whom, the articles of charges are proposed to be
proved". Under Rule 50 (x) (b) the Inquiry Officer is under an obligation to
W.P.(C)791/2000 Page 3
record in his order that the charged officer is permitted to inspect and take notes of
the documents within five days of so ordering.
7. The SBI argues that in this case, the petitioner was afforded fullest
opportunity to defend himself; he not only sought and was provided the requisite
information, but appeared to have effectively defended himself. He therefore,
submitted that in the present case, the court should not intervene.
8. In the present case, the relevant provisions of the Rules are as follows:
Rule 50
(i) The Disciplinary Authority may itself, or shall when so directed by its
superior authority, institute disciplinary proceedings against an employee.
(ii) The Disciplinary Authority or any authority higher than it may impose
any of the penalties in rule 49 on an employee.
Provided that where the Disciplinary Authority is lower in rank than the
Appointing Authority in respect of the category of employees to which the
employee belongs no order imposing any of the major penalties specified in
clauses (e), (f), (g) and (h) of rule 49 shall be made except by the
Appointing Authority or any authority higher than it on the
recommendations of the Disciplinary Authority.
(i) No order imposing any of the major penalties specified in clauses (e),
(f), (g) and (h) of rule 49 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 employee, it may itself enquiry into, or appoint any other
employee or a public servant (hereinafter referred to as the Inquiring
Authority) to inquire into the truth thereof.
W.P.(C)791/2000 Page 4
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 employee. The articles of charge, together with a statement of
the allegations on which they are based, shall be communicated in writing
to the employee, 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 on his defence.
(x)
(a) The Inquiring Authority shall where the employee does not
admit all or any of the articles of charge furnish to such employee a
list of documents by which, and a list of witness by whom, the
articles of charge are proposed to be proved.
(b) The Inquiring Authority shall also record an order that the
employee 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;
W.P.(C)791/2000 Page 5
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 employee
concerned.
9. In this case, there is no doubt that Rule 50 (2) (iii) varies in structure from
Rule 14 (3) of the CCS (CCA) Rules. The latter, especially Rule 14 (3) (ii) (b)
requires that the charged employee or officer should be furnished "a list of
documents by which, and a list of witnesses by whom, the articles of charge are
proposed to be sustained." In the case of the SBI, however, inspection of the said
documents are to be furnished, on demand by the Inquiry Officer, who has
custody of these, having received them, under rule 50 (2) (v). This difference in
approach is highlighted as arbitrary and violative of Article 14 of the Constitution
of India.
10. Does Article 14 dictate uniformity in all matters similar, regardless of
situation, circumstance and time? We think not. Nor are we novel in our approach.
The Supreme Court held this to be so, in T. Devadasan v Union of India AIR 1964
SC 179 when it observed that:
"It seems to us that the argument based upon Art. 14 of the
Constitution in fact turns on the same considerations as the
argument that Art. 16(l) is infringed by the aforesaid rule. What Art.
14 provides is that the state shall not deny to any person equality
before the law or the equal protection of the laws within the territory
of India. What is meant by equality in this Article is, equality
amongst equals. It does not provide for an absolute equality of
treatment to all persons in utter disregard in every conceivable
circumstance of the differences such as age, sex, education and so
on and so forth as may be found amongst people in general. Indeed,
W.P.(C)791/2000 Page 6
while the aim of this Article is to ensure that invidious distinction or
arbitrary discrimination shall not be made by the State between a
citizen and a citizen who answer the same description and the
differences which may obtain between them are of no relevance for
the purpose of applying a particular law reasonable classification is
permissible. It does not mean anything more."
In Ashutosh Gupta v State of Rajasthan 2002 (4) SCC 34, it was similarly
observed that:
"The protection of equal laws does not mean that all laws must be
uniform. Equality before the law means that among equals the law
should be equal and should be equally administered and that the
likes should be treat alike."
In All India Station Masters and Assistant Station Masters v General Manager
Central Railways AIR 1960 SC 384, the Supreme Court held as follows:
"The concept of equality can have no existence except with
reference to matters which are common as between individuals,
between whom equality is predicated. Equality of opportunity in
matters of employment can be predicated only as between persons,
who are either seeking the same employment, or have obtained the
same employment. It will, for example, plainly make no sense to say
that because for employment as professors of colleges, a higher
University degree is required than for employment as teachers of
schools, equality of opportunity is being denied. Similarly it is
meaningless to say that unless persons who have obtained
employment as school teachers, have the same chances of promotion
as persons who have obtained employment as teachers in colleges,
equality of opportunity is denied."
11. If the principles underlying the observations of the Supreme Court in the
judgments referred to are to be kept in mind, mere differences in approach, given
existing disparities, cannot lead to a conclusion of discrimination or arbitrariness.
If we keep this in mind, that the Central Government in its wisdom directed that in
inquiries into the conduct of its officers, requires that copies of documents should
be furnished to them at the threshold, whereas the State Bank of India permits
W.P.(C)791/2000 Page 7
inspection of those documents (albeit after the charged official has denied the
charge), per se cannot lead one to conclude that the allegation of arbitrariness has
been established. There has to be something more fundamental, leading the court
to infer that there is inherent unfairness in the procedure, as it would always or
inevitably lead to failure of justice or that the procedure is inherently unfair.
12. This court notices that the petitioner was in fact given opportunity to
inspect the documents before he furnished his reply, when the SBI told him that he
could go to the concerned branch for the purpose (as can be noticed from the order
issuing the Articles of Charge). Rule 50 (2) (x) too enabled him to say what
documents were to be allowed for inspection, after the commencement of inquiry.
If some were not, the inquiry officer was obliged to direct for further inspection.
In light of the practice of giving opportunity to inspect prior to filing reply, and the
rules that enable inspection once the charges have been denied, we are of the
opinion that Rule 50 is not arbitrary as alleged.
13. In view of the above conclusions, we are of opinion that the submissions
with respect to violation of Article 14 are meritless. Since the parties, with respect
to the merits of the case, did not argue anything else, the registry is directed to list
the matter before the roster Bench for decision on the other issues, for directions,
on 18.11.2015. The parties are directed to be present on that date.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
NOVEMBER 06, 2015 (JUDGE)
W.P.(C)791/2000 Page 8
