Delhi High Court
Vijay Malhan vs Uoi & Ors. on 13 October, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 25th July, 2022
Pronounced on: 13th October , 2022
+ W.P.(C) 2903/2003
VIJAY MALHAN ..... Petitioner
Through: Ms. Srishti Agnihotri and Ms.
Sanjana Grace Thomas, Advocates
versus
UOI & ORS ..... Respondents
Through: Ms. Saroj Bidawat, Senior
Standing Counsel with Ms. Priti
and Ms. Anupriya, Advocates
Ms. Kittu Bajaj, Advocate for
OBC
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
JUDGMENT
CHANDRA DHARI SINGH, J.
1. The instant civil writ petition under Article 226 of the Constitution
of India has been filed by the Petitioner who was earlier posted as the
Assistant General Manager, Regional Inspectorate at Chandigarh,
challenging the order dated 23rd January 2003 directing the removal of
Petitioner from services of Oriental Bank of Commerce (hereinafter
referred to as "Respondent Bank") passed by the Disciplinary Authority
and upheld by the Appellate Authority vide order dated 28th February
2003.
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FACTUAL MATRIX
2. The brief facts for the disposal of the instant writ petition are that
the Petitioner was appointed as a Branch Manager in the Respondent
Bank in the year 1975. On the pretext of an anonymous complaint, the
Petitioner was initially issued a show cause letter dated 15th March 1996
by the Respondent Bank on four charges and was asked for his
explanation. The Petitioner sent his comments on the charges levelled
against him, pointing out the baselessness thereof vide communication
dated 25th March 1996 and 8th April 1996.
3. Upon receipt of explanation from the Petitioner, the Chief
Vigilance Officer of the Respondent Bank addressed a letter dated 22 nd
June 1996, to the DGM, Reserve Bank of India, Mumbai saying that:
"We have examined the reply given by Sh. Malhan and are of
the view that on the basis of the evidence furnished, we have
no reason to disbelieve the statement of Sh. Malhan"
4. The Disciplinary Authority issued another memo dated 14 th July
1998, to the Petitioner containing seven charges altogether, including the
aforesaid four charges. The Petitioner submitted his reply to the said
memo and on 23rd October 1999 a charge sheet was issued to the
Petitioner on the said seven charges. A regular inquiry was set up to
enquire into the aforesaid seven charges against the Petitioner and
Commissioner of Departmental Inquiries was deputed as the Inquiry
Authority.
5. The Inquiry Authority vide report dated 27th June 2002 exonerated
the Petitioner of all the charges as nothing could be brought against the
Petitioner by the bank during the inquiry. The Disciplinary Authority sent
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a disagreement note dated 13th August 2002 and thus invited
representation from the Petitioner. In response to the aforesaid
disagreement as communicated by the Disciplinary Authority, the
Petitioner sent his representation dated 28th September 2002 to the
Disciplinary Authority. Receiving no response to the communication
from the Disciplinary Authority, Petitioner filed a writ petition in the
High Court of Delhi bearing number C.W.P. 1033 of 2003 on 5 th
February 2003 praying for directions to the Respondent Bank to
communicate the decision on the representation of the Petitioner dated
28th September 2002. At the time of the hearing of that writ petition, on
7th February 2003 the counsel for the Respondent Bank informed a
Coordinate Bench of this Court that the Disciplinary Authority has
already disposed of the representation of the Petitioner and has removed
him from the service vide its order dated 23rd January 2003. The relevant
portion of the judgment of the Coordinate Bench of this Court has been
reproduced herein below:
"Counsel appearing for the Oriental Bank of Commerce,
respondents 2 and 3 has placed a copy of the order passed
by the Disciplinary Authority, removing the petitioner from
service but without any disqualification would not be a
disqualification for future employment. Documents placed
on record indicate that the Disciplinary Authority passed the
said order on-23:1.03 in exercise of powers under
Regulation 4(1) of Oriental Bank of Commerce, Officer
Employees (Discipline & Appeal) Regulations, 1982. Since
an effective order is passed by respondents 2 and 3 against
the petitioner removing him from service on 23.10.99 i.e.,
prior to the presentation of this writ petition, the petitioner is
to seek remedy in accordance with the provisions of the said
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regulations which provides that an appeal is maintainable as
against such an order passed by the Disciplinary Authority.
It is needless to point out that all the pleas that are raised in
this writ petition would also be open to be raised and for
consideration before the Appellate Authority and such pleas,
if and when raised before the Appellant Authority could also
be considered by him and disposed off by passing a reasoned
order. In that view of the matter, I am not inclined to
entertain the petition as at this stage the petitioner has an
efficacious alternative remedy open to him. The petition
stands disposed of with the aforesaid observations giving
Opportunity to the petitioner to approach the Appellate
Authority as against the impugned order of removal in
accordance with the provisions of the regulations. In case
the petitioner invokes the jurisdiction of the Appellate
Authority in terms of the observations made herein, the
Appellate Authority shall consider the appeal and dispose of
the same as expeditiously as possible, preferably within a
period of four weeks from the date of receipt of the aforesaid
appeal. In case the petitioner is still aggrieved, it shall be
open to the petitioner to approach this Court with afresh
writ petition."
6. The order dated 23rd January 2003 was served on the Petitioner and
he challenged the order passed by the Disciplinary Authority vide
statutory appeal dated 14th February 2003. The Appellate Authority
dismissed the said Appeal vide order dated 28th February 2003.
7. Thus, aggrieved by the findings arrived at by the Disciplinary
Authority as well as the Appellate Authority in spite of the exoneration
given by the Inquiry Authority, the Petitioner has filed the instant writ
petition.
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SUBMISSIONS
8. Learned counsel appearing on behalf of the Petitioner has
contended that the findings arrived at by the Disciplinary Authority as
well as the Appellate Authority are vitiated by the vice of malafide as the
Inquiry Authority as appointed by the Chief Vigilance Commissioner had
already exonerated the Petitioner of all the charges after a detailed and
thorough examination of all the evidence on record.
9. It is also contended that the inquiry by the Disciplinary Authority is
vitiated by the efflux of mandatory period of time provided for such
inquiries in the vigilance manual, which governs the procedure for such
inquiries. Relevant portion of the rule is reproduced below for reference:
"12.3.1 APPOINTMENT OF INQUIRING
AUTHORITY/OFFICER
(i)... The inquiring Authority should also be directed to
ensure submission of the report mandatorily within a period
of six months of his appointment. This time limit should be
invariably adhered to at all costs."
10. Therefore, it was submitted that in the case of Petitioner as the
inquiry has continued for more than three years in complete violation of
and derogation of the aforesaid rule, the inquiry and all subsequent
proceedings are hit by such illegality.
11. As in the case of the Petitioner the inquiry has continued for more
than three years in complete violation and derogation of the aforesaid
rule, the inquiry as well as all the subsequent proceedings emanating
there from is patently illegal.
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12. It has also been submitted that the Respondent No. 3 while
recording its disagreement against the report of the Inquiry Authority,
instead of recording its reasons for such disagreement, has wrongly and
illegally recorded the conclusions, holding the charges as „proved' against
the Petitioner. It is submitted that the law as laid down in catena of
Judgements is clear on the subject that such recording of conclusion
vitiates the proceedings. After the disciplinary authority records its
conclusions, the representation of the charged officer remains a mere
formality and the entire purpose of the proceedings before the
Disciplinary Authority including the show cause stands defeated.
13. Learned counsel appearing on behalf of petitioner also submitted
that the note of disagreement dated 13th August 2002with the report of
Inquiry authority, has been passed by Sh. A.K. Gupta, the then
Disciplinary Authority, while the order of removal dated 23rd January
2003 has been passed by Sh. S.C. Gupta, the officer in succession to Sh.
A.K. Gupta, as disciplinary authority, who stood transferred by then.
While passing the order, instead of applying its mind afresh to the
findings of the Inquiry Authority, for the purpose of arriving at
agreement/disagreement and that too for its own reasons to be recorded
and communicated afresh to the petitioner, the authority in succession
unmindfully and illogically followed the disagreement note
communicated by his predecessor Sh. A.K. Gupta and mechanically
passed the order of removal in line with the disagreement note. It is
submitted that the officer in succession could not have proceeded further
upon the basis of the disagreement arrived at by his predecessor officer,
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which is purely subjective in nature, as the new officer may agree or
disagree and for its own reasons.
14. Further, it has been argued that the Appellate Authority as well as
Disciplinary Authority have not only repelled the well-founded defence
evidence, but challenged the evidence given by the sole Management
witness also, substituting the same with their personal knowledge, and
proceeded on the basis of pure conjectures with malicious intention to
implicate the petitioner herein, deliberately ignoring all evidence in
favour of the Petitioner.
15. It has also been argued that a total of six amendments have been
carried out to the chargesheet during the course of inquiry, but neither a
show cause nor an opportunity was ever given to the Petitioner to
represent against such amendments to the chargesheet. No amended
chargesheet was ever supplied to the Petitioner by the Disciplinary
Authority. It is added that the amendments made are vague that no person
of ordinary prudence can gather anything concrete from them. It has also
been added that none of the authority has made any reference nor has
taken into consideration these amendments, rather have proceeded on the
basis of initial chargesheet, which shows mechanical and superficial
application of mind by both the authorities even to facts of the matter.
16. Learned counsel appearing on behalf of petitioner also argued that
the illegal and unwarranted delay caused in the matter, initially in setting
up the inquiry then during the inquiry and then even thereafter keeping
the case pending without any reason has already resulted in grave
prejudice and injustice to the Petitioner, whose all service, prospects like
promotion etc. have been held up only on account of pendency of such
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proceedings. It is submitted that the ease, was being kept pending by the
Respondent no.3, who is batch mate of the Petitioner, with malafide
intention of keeping the Petitioner in a state of stagnation.
17. It has also been argued that the charges which have been made
subject matter of the chargesheet subsequently, were already investigated
into by the Chief Vigilance Officer of the Bank and the case was closed
after the Chief Vigilance Officer arrived at the finding that no such
charge was made out against the Petitioner and submitted his report dated
22nd June 1996 to the Reserve Bank of India. It has been submitted that
the Petitioner could not have been once again issued a charge sheet in
relation to the same charges. This constitutes an illegality patent on the
face of the record itself and banks upon double jeopardy.
18. Learned counsel appearing on behalf of petitioner submitted that
neither in the chargesheet nor in the finding of any authority, there is any
allegation or finding as to any material loss to the Bank from
commissions / omissions of the alleged acts of the Petitioner. The Bank is
thus not aggrieved by any of the acts of the Petitioner.
19. It has also been contended that the presenting officer of the
Respondent Bank failed to produce the documents as summoned by the
Petitioner in his defence and has rather given certificate of „not available'
without any explanation thereof. It is submitted that the Bank Officials
have deliberately suppressed the relevant documents from the inquiry and
have adopted a policy of pick and choose so as to fabricate story against
the petitioner and implicate him.
20. Learned counsel appearing on behalf of petitioner has attempted to
impute malafide on the Disciplinary Authority by contending that both
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Sh. A.K. Gupta & S.C. Gupta, successive Disciplinary Authorities, are
batch mates of the Petitioner herein, whom the Petitioner had taken over
in the interview for promotion to the post of AGM and as such are highly
interested in seeing the petitioner grounded down. The professional
jealousy and rivalry in the mind of these authorities is the probable cause
of the bias which is clearly reflected in the actions and omissions of these
authorities. The Officials in the Respondent Bank had been bent upon to
harm the Petitioner herein by hook or by crook at the crucial juncture of
his career as well as his life. The promotion of the Petitioner to the
highest post in the Bank i.e., General Manager, was kept on hold because
of undue pendency of the disciplinary proceedings against him in
complete derogation of the rules etc.
21. Lastly, learned counsel appearing on behalf of petitioner has
extensively relied upon the report of the Inquiry Authority to submit that
the said report is well reasoned and well founded and is constructed by a
person who is an expert in this field of departmental inquiries, so as to
plead his innocence.
22. Per Contra, learned counsel appearing on behalf of the
Respondents No. 2 to 4 has taken a preliminary objection that this Court
cannot sit as an appellate authority over the findings of the Disciplinary
Authority and the Appellate Authority. The order of removal dated 23rd
January 2003 was passed by the Disciplinary Authority on the proved
charges in an inquiry conducted as per the service regulations and in
consonance with the principles of natural justice. The proved charges are
regarding embezzlement of funds by a senior executive of the Bank. It is
submitted that the Respondent No.2 is a nationalized financial institution
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who cannot afford to keep a senior executive like the Petitioner who was
Assistant General Manager and against whom serious charges of
siphoning of funds has been established.
23. Further, it has been contended that the Petitioner was charge
sheeted under Regulation 6 of the Oriental Bank of Commerce Officers
Employees (Discipline and Appeal) Regulations, 1982, vide
memorandum dated 23rd October 1999, that while posted as Incumbent In
charge at Branch Office Fort, Mumbai, he unauthorisedly allowed loans
to 88 borrowers, in contravention of Para 13(B)(10) of the Exchange
Control Manual. He indulged in trading of securities of third party N.R.E.
deposits without any written mandate from the N.R.E. depositor. He
allowed the opening of account in the name of M/s Asian Consolidated
Industries Ltd. on 10th October 1995, without introduction, in violation of
the laid down procedure and extended credit facility of large magnitudes
without observing norms, on the same day; he further allowed loan of Rs.
1.00 crores against the deposits of Shri Prem Khanna which is showing a
debit balance of Rs. 136.25lacs as on 16th December 1997 against the
value of deposit of Rs. 135.05 lacs, he unauthorisedly allowed overdraft
of Rs. 50.00 lacs each in current account No.4205. On 4 th March 1993, he
got issued four NRNR CDRs of Rs. 1.00 Lac each in the joint name of his
minor daughters and SM Prem Khanna as NRI and did not disclose the
source and details of such CDR's in his annual statement of Assets and
Liabilities submitted to the Bank for the year ending 31st March 1993.
24. Further, it has been contended that the Disciplinary Authority
exercising his jurisdiction under Regulation 7(2) of the Oriental Bank of
Commerce Officers Employees (Discipline & Appeal) Regulations, 1982,
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considering the evidence and the record of the inquiry, disagreed with the
findings of Inquiring Authority and tentatively came to the conclusion of
establishing of five charges in the departmental inquiry. Vide show cause
dated 13th August 2002, the tentative conclusions of the Disciplinary
Authority were forwarded to the delinquent employee for making a
representation thereon, in consonance with the spirit of the law laid down
in Punjab National Bank and Ors. v. Kunj Behari Mishra, AIR 1998
SC 2713. The Petitioner submitted a detailed representation thereon
which was duly considered by the Disciplinary Authority, and vide the
final order dated 23rd January 2003, the Disciplinary Authority concluded
that only three charges out of the five charges are to be proved.
Admittedly, no prejudice has been occasioned to the Petitioner whilst
passing the final order dated 23rd January 2003 by the Disciplinary
Authority. The action of the Respondent Bank is in consonance with the
principles of natural justice and statutory regulations and hence the writ
petition is therefore liable to be dismissed.
25. Further, learned counsel for the Respondents no. 2 to 4 has
contended that it has been consistently held by the Hon‟ble Supreme
Court that in cases where serious financial irregularities like siphoning of
funds are established against executives of the Bank, the Bank is fully
justified in taking disciplinary action and dismissing them from the
services of the Bank.
26. Learned counsel for the Respondents no. 2 to 4 has denied that the
Petitioner was appointed as the youngest A.G.M. in the Respondent
Bank. He has further submitted that the matter was not closed by the
Chief Vigilance Officer. The observations of Chief Vigilance Officer are
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merely recommendatory in nature and not binding on the Disciplinary
Authority. He has further submitted that the provisions of the vigilance
manual are merely recommendatory in nature.
27. It has been argued that though every endeavour is made to
complete the departmental enquiries within six months period, the
proceedings are sometimes delayed owing to the acts of the delinquent
employee and sometimes owing to unforeseen circumstances beyond the
control of the Presenting Officer. The delay was occasioned owing to the
conduct of delinquent employee himself. However no inordinate delay
was there and the same would not vitiate the inquiry proceedings.
28. Learned counsel for the Respondents no. 2 to 4 has denied all the
allegations of bias and non-application of mind by the Disciplinary
Authority and has submitted that a speaking order dated 23 rd January
2003 was passed by the Disciplinary Authority after concurring with the
disagreement note communicated by his predecessor and after
considering the entire inquiry record, the evidence adduced therein, the
representations made by the delinquent employee and his past service
record. No personal knowledge or conjectures and surmises were indicted
by the Disciplinary Authority, as alleged. No prejudice has occasioned to
the petitioner by the said order of the Disciplinary Authority.
29. Learned counsel for the Respondents no. 2 to 4 has denied that six
amendments were made to the chargesheet and has submitted that only
two amendments were made in the charge sheet which are self-exhaustive
and the Respondent was within its jurisdiction to amend the charges. The
Petitioner was given due opportunity to reply and contest the same, and
therefore, no prejudice was occasioned to him by the said amendments.
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Moreover, the amendments so made were mere rectification of the
typographical errors which crept in the charge sheet dated 23 rd October
1999 and were duly taken into consideration both by the Disciplinary
Authority as well as the Appellate Authority.
30. Learned counsel lastly submitted that case of the Petitioner was
again referred to the Chief Vigilance Commissioner for 2nd stage advice.
Seeing the gravity of the charges, even the Chief Vigilance
Commissioner suggested stiff major penalty to the Petitioner. Further, it
has been denied that the Petitioner was not submitted with the requisite
documents as the documents not available with the Bank were certified
"Not available". The non-availability of the said documents was genuine
and not a policy of pick and choose to implicate him, as alleged. The
documents available with the Bank were supplied to him, during the
inquiry proceedings, on his request.
31. In Rejoinder, learned counsel appearing on behalf of the Petitioner
has submitted that this Court is not invited to sit over as an Appellate
Authority over the findings of the Disciplinary Authority but as the
findings are vitiated on the grounds of being in violation of the principles
of natural justice, being perverse in nature to the records of the case,
vitiated by self-abrogating findings of the authority etc. and as such the
impugned orders are liable to be struck down in the exercise of the
powers of this Court under Article 226 of the Constitution of India.
32. It has been further contended that the Respondents have never
communicated the advice received from the Chief Vigilance
Commissioner to the Petitioner at any stage despite being aware that the
advice was to be obtained at two stages as per the circular of Chief
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Vigilance Commissioner. Moreover, the arrival of the Authority
beforehand upon certain conclusions shows the bias and prejudice in the
mind of Authority and makes the representation and subsequent
proceedings meaningless and a mere formality and hence, before
recording the conclusions the Disciplinary Authority necessarily had to
communicate the disagreement note to the Petitioner for his
representation against the same.
33. Learned counsel appearing on behalf of the Petitioner has taken a
vehement plea that six amendments were made to the chargesheet vide
two letters and neither the amended chargesheet was ever supplied to the
Petitioner nor the Petitioner was given opportunity to represent against
the amended chargesheet.
34. Learned counsel appearing on behalf of the Petitioner has also
posited that the provisions of the vigilance manual are binding and
mandatory in nature as these are the provisions which govern the
procedure of departmental inquiries falling in their purview. Completion
of inquiry was mandatory within a maximum period of 3 months and
under any circumstance within 6 months. It is vehemently denied that the
inquiry was delayed by the petitioner. The Petitioner did not seek even a
single adjournment during the entire inquiry; rather the presenting officer
of the Respondent bank has deliberately delayed the inquiry.
35. Lastly, it is submitted that out of the 42 documents demanded by
the petitioner and allowed by the inquiry officer, only 13 were supplied
by the Bank, that too in illegible copies, for some others „certificate of not
available‟ was given without any further explanation and for rest of the
documents neither certificate nor any explanation was given. Even after
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indictment from the inquiry officer, the documents were not produced.
The petitioner was preceded against this way by depriving him
deliberately of all defence in the inquiry.
FINDINGS AND ANALYSIS
36. Heard learned counsel for the parties and perused the record. I have
given my thoughtful consideration to the submission made by the parties.
At the outset, it becomes necessary to delineate the following issues on
the basis of which the final outcome of the instant writ petition would
depend.
ISSUE I-Whether the Petitioner was supplied with the amended
chargesheet? If not, then whether any prejudice can be said to have
been caused to the Petitioner and the disciplinary proceedings
impugned herein can be sustained in the eyes of law?
ISSUE II-Whether the procedure adopted by the Disciplinary
Authority vis-à-vis communicating a disagreement note to the
Petitioner is in consonance with the settled norms of providing a
fair opportunity of hearing?
ISSUE III-Whether the Disciplinary Authority is bound by the
advice of the Chief Vigilance Officer? OR, whether the advice of
exoneration by the Chief Vigilance Officer amounts to closing the
case against the delinquent employee?
ISSUE IV-Whether non-communication of Central Vigilance
Commissioner‟s advice to the Petitioner is violative of procedural
fairness and amounts to „acting at the back of the Petitioner'?
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ISSUE V-Whether there is any delay in the initiation of the
Disciplinary proceedings against the Petitioner? If yes, whether
such delay has prejudiced the case of Petitioner?
ISSUE I-
37. Before delving into this issue, it is pertinent to highlight the
importance of principles of natural justice in a disciplinary proceeding as
compliance with the principles of natural justice is not an empty formality
but a mandatory requirement.
38. In Chamoli District Co-operative Bank Ltd. &Anr. vs. Raghunath
Singh Rana &Ors., Civil Appeal No. 2265 of 2011, the Hon‟ble
Supreme Court held that:
"19. The compliance of natural justice in
domestic/disciplinary inquiry is necessary has long been
established. This Court has held that even there are no
specific statutory rule requiring observance of natural
justice, the compliance of natural justice is necessary.
Certain ingredients have been held to be constituting
integral part of holding of an inquiry....."
39. The Apex Court in Sur Enamel and Stamping Works Pvt. Ltd. v.
Their Workmen, (1964) 3 SCR 616, has laid down following:-
"4. .....An enquiry cannot be said to have been properly held
unless,
(i) the employee proceeded against has been informed
clearly of the charges levelled against him,
(ii) the witnesses are examined - ordinarily in the presence
of the employee - in respect of the charges,
(iii) the employee is given a fair opportunity to cross-
examine witnesses,
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(iv) he is given a fair opportunity to examine witnesses
including himself in his defence if he so wishes on any
relevant matter, and
(v)the inquiry officer records his findings with reasons for
the same in his report...."
40. The Apex Court again in State Bank of India Vs. R.K. Jain and
Ors., reported in (1972) 4 SCC 304 held that if an inquiry is vitiated by
violation of principles of natural justice or if no reasonable opportunity
was provided to the delinquent to place his defence, it cannot be
characterized as a proper domestic inquiry held in accordance with the
rules of natural justice. In paragraph 23, the following was laid down:-
"23. ....As emphasised by this Court in Ananda Bazar
Patrika (P) Ltd. v. Its Workmen, (1964) 3 SCR 601, the
termination of an employee's service must be preceded by a
proper domestic inquiry held in accordance with the rules of
natural justice. Therefore, it is evident that if the inquiry is
vitiated by violation of the principles of natural justice or if
no reasonable opportunity was provided to a delinquent to
place his defence, it cannot be characterized as a proper
domestic inquiry held in accordance with the rules of natural
justice..."
41. The Hon‟ble Supreme Court in State of Uttaranchal &Ors. Vs.
Kharak Singh, (2008) 8 SCC 236 had occasion to examine various
contours of natural justice which need to be specified in a departmental
inquiry. It is useful to refer to paragraph 15:-
"15. From the above decisions, the following principles
would emerge:
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i) The enquiries must be conducted bona fide and care must
be taken to see that the enquiries do not become empty
formalities.
XXX.
(iii) In an enquiry, the employer/department should take
steps first to lead evidence against the workman/delinquent
charged and give an opportunity to him to cross-examine the
witnesses of the employer. Only thereafter, the
workman/delinquent be asked whether he wants to lead any
evidence and asked to give any explanation about the
evidence led against him.
(iv) On receipt of the enquiry report, before proceeding
further, it is incumbent on the part of the
disciplinary/punishing authority to supply a copy of the
enquiry report and all connected materials relied on by the
enquiry officer to enable him to offer his views, if any."
42. Therefore, what becomes necessary is that the employee against
whom the inquiry has been initiated must be clearly informed as to what
are the charges against him/her. As a necessary corollary, it becomes
quintessential to inform the employee as to whether any amendments
have been made in the charges framed against him and if any, then what
are the amendments which have been made. It cannot be more
emphasised that this stage in any disciplinary inquiry is pivotal as
otherwise the alleged delinquent employee would be met by surprise
while leading his defence and meeting the case as set up by his/her
employer.
43. Be that as it may, in the present case it has been alleged by the
Petitioner that six amendments have been made by the Respondent Bank
in the charges against him without giving him an opportunity to meet the
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said amendments. It is pertinent to reproduce the contention of the
Petitioner in the present writ petition:-
"....The frivolous nature of these charges is clear from the
fact that several of them pertain to alleged irregularities
committed even beyond the tenure of the Petitioner, which
fact has been pointed out and accepted even by the Inquiry
Authority. Each time the Petitioner asked for supply of the
documents pertaining to these charges, the charges were
amended in all their details, by the authority. At least 6 such
amendments have been carried out by the respondent bank
to the charges, making virtual mockery of the charges and
the chargesheet.
XXX
Because total of six amendments have been carried out to
the chargesheet, that too during the course of inquiry,
substantially and in all details, but neither a show cause nor
an opportunity was ever given to the Petitioner to represent
against such amendment of chargesheet. The amendments as
made are so vague that no person of normal prudence can
gather anything concrete from them.
Because no amended chargesheet was ever issued by the
disciplinary authority after the amendments. It is why even
both the authorities have failed to take notice of the
amendments incorporated in the chargesheet two times by
the disciplinary authority itself. It is submitted that none of
the authority has made any reference nor has taken into
consideration these amendments, rather have proceeded on
the basis of initial chargesheet. This shows mechanical and
superficial application of mind by both the authorities even
to facts of the matter."
44. It becomes important to reproduce the relevant portion of the
counter affidavit of the Respondent Bank to understand as to how these
allegations have been countered by them:-
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"The issuance of charge sheet dated 23.10.1999 to the
petitioner is admitted. The irregularities were proved to be
during the tenure of the petitioner at Branch Fort, Mumbai.
The petitioner was charge sheeted for serious charges of
siphoning of Bank's funds, which was proved in a
departmental enquiry held in consonance with the
respondents Regulations and principles of natural justice.
The respondent was within its jurisdiction to amend the
charges. Only two amendments were made in the charge
sheet dated 23.10.1999. The petitioner was given due
opportunity to reply and contest the same, and therefore no
prejudice was occasioned to him by the said amendments.
The petitioner participated in the enquiry proceedings and
contested the charges, and thus no prejudice has been
occasioned to him during the enquiry proceedings.
XXX
The contents of Ground G. are wrong and hence denied. The
two amendments made in the charge sheet are self
exhaustive. The respondent was within its jurisdiction to
amend the charges. The petitioner was given due
opportunity to reply and contest the same, and therefore no
prejudice was occasioned to him by the said amendments.
The contents of Ground H are wrong and hence denied. The
two amendments made in the charge sheet were duly taken
into consideration by the Disciplinary Authority and the
Appellate Authority. The amendments were mere
rectification of the typographical errors which crept in the
chargesheet dated 23.10.1999. The petitioner has admitted
that two amendments were made in the charge sheet and in
the preceding paras had been misleading the court by giving
false statements on oath that the charge sheet dated
23.10.1999 was amended six times by the respondents."
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45. In the rejoinder affidavit, the Petitioner has re-iterated his stand
qua amendments made in the chargesheet. The relevant portion has been
reproduced below:-
"It is submitted that the 6 amendments made to the
chargesheet vide two letters, have been made at the time
when inquiry proceedings were going on. Neither amended
chargesheet was ever issued nor the petitioner was given
opportunity to represent against the amended chargesheet. It
is note worthy that the disciplinary authority itself has failed
to take note of such amendments and has made references to
the contents of original charges. Thus, a state of total
misconception and chaos has erupted due to illegal action of
the respondents in amending the chargesheet in improper
way and not affording the opportunity to the petitioner to
represent against the amended, chargesheet. It is
emphasised that no amended chargesheet was issued by the
disciplinary authority, though 6 amendments were
incorporated into the same."
46. So, what appears is that by way of two different letters six
amendments were made by the Respondent Bank. Before proceeding to
determine as to whether the Petitioner was given any notice or
opportunity qua the amended chargesheet it becomes more essential to
determine as to whether any prejudice can be said to have been caused to
the Petitioner in leading his defence by way of the amendments so made
in the charge sheet. For determining the same, it is quintessential to refer
to the written submissions of the Petitioner before the Disciplinary
Authority. The relevant portion of the same has been reproduced below:
"Neither the Disciplinary authority, nor the PO are sure of
the allegations/charges and in fact the entire case is based
on mere presumptions, wild and imaginary charges where
none exist. It is on record that the DA has been repeatedly
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changing the charges and in fact whenever the documents,
demanded by the defense reflected the hollowness of the
allegations. The specific instances are summarised below for
a ready preview:
S. Date of Date of Reason Existing uncertainity Article of
N Memorandum Altercation/Amen charges/allegations Charges
o. -dment Memorandum
1. Mem. dt. 23-10-99 06-04-2000 On LD-5 allegedly The article
under article of amendment of demanding pertaining to the of charge is
charge security form defence period of CO's tenure ill founded
2 (b)_ as well as from LD-1 to LD- docu-ment did not come into and thrust
statement of 5 vide letter existence at that time. on the CO
Imputation at dt. 31-03- though the
Annex.11 00 as D- CO was not
depict letter of 122 posted in
application and the branch
security form as at that
L/D-l time.
Unspecific
regarding
accounts in
which
manipulati
on are
alleged.
2. Annex.11 of Mem. 22-04-00 amend- --do-- Amendment to Mem. PO in his
Alleges oustanding ment modifies Does not depict even brief is still
loans to 34 out-standing loan a single borrower contending
borrowers to, 16 borrowers outstanding
instead of 34 loans to 34
borrowers borrowers
without
naming
any.
3. Article Chg. No.2 Amendment --do-- Dates of over-draft to Dates of
(d) depict dates of Nitin Chhatwal as over draft
depict the dates of over-draft and 4- 14-10-95 and 16-10- as 6-10-95
over-draft to 10-95 & 06-10-95 95. and 14-10-
Mr.Nitin. instead 6-10-95 & 95.
Chhatwal as 14- 14-10-95.
10-95
and 16-10-95
4. Pg. No.3 of memo. Pg. 2 of Annex-II --do-- No document has The
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In under, charge been cited to support reasons for
Annex-1 as well in 2(d)amended the allegation. the
page No.2 of from authorized amendment
Annexure-11 overdrafts against are still a
allege 3rd party deposits mystery.
loan to Sh.Nitin to Unauthorised
Chhatwal against clean overdrafts.
security of NRNR
Deposits
5 No reference of Addition of clean --do-- Loaning documents PO as a
clean O/D to Nitin have been ignored spokesman
O/D of Chhatwal in CC which are of prime of the Mgt.
Rs. 1,00,36,322/45 A/c. No.2732 of significance. Still
Rs. religiously
1,00,36,322/45 maintains
his stand.
6. Pg. 2 of Annex. II Amendment from No ref. of Two CDRs NRNR
of Article of two NRNR CDRs number of
charge allegedly to four CDRs CDRs.
states 2 NRNR
CDRs of Rs. 1 lac
each.
It is also on record that the PO is even to date not sure of the
real charges/allegations and as such the corrigendum issued
to alter the charges do not find any mention in the written
brief/arguments presented by the PO. Thus, it is apparent
that the PO is himself not sure of what are the allegations
and as such it is ironical on his part to assert that the
defense has not disproved the same. Such kind of fishing and
roving exercise has not only wasted the time, money and
energy of the Government agency but has also spoiled and
ruined the career of the CO."
47. At this stage, it becomes pertinent to refer to certain judicial dicta
as laid by the Hon‟ble Supreme Court of India with reference to the
present discussion. In State Bank of Patiala vs. S.K. Sharma, AIR 1996
SC 1669, their lordships of the Supreme Court while considering an
appeal against the quashing of a Disciplinary Authority held that:
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"It is not brought to our notice that the State Bank of Patiala
(Officers') Service Regulation contains provision
corresponding to Section 99 C.P.C. or Section 465 Cr. P.C.
Does it mean that any and every violation of the regulations
renders the enquiry and the punishment void or whether the
principle underlying Section 99 C.P.C. and Section 465 Cr.
P.C. is applicable in the case of disciplinary proceedings as
well. In our opinion, the test in such cases should be one of
prejudice, as would be later explained in this judgment. But
this statement is subject to a rider. The regulations may
contain certain substantive provisions, e.g., who is the
authority competent to impose a particular punishment on a
particular employee/officer. Such provisions must be strictly
complied with. But there may be any number of procedural
provisions which stand on a different footing. We must
hasten to add that even among procedural provisions, there
may be some provisions which are of a fundamental nature
in the case of which the theory of substantial compliance
may not be applicable. For example, take a case where a
rule expressly provides that the delinquent officer/employee
shall be given an opportunity to produce evidence/material
in support of his case after the close of evidence of the other
side. If no such opportunity is given at all in spite of a
request therefore, it will be difficult to say that the enquiry is
not vitiated. But in respect of many procedural provisions, it
would be possible to apply the theory of substantial
compliance or the test of prejudice, as the case may be. The
position can be stated in the following words: (1)
Regulations which are of a substantive nature have to be
complied with and in case of such provisions, the theory of
substantial compliance would not be available. (2) Even
among procedural provisions, there may be some provisions
of a fundamental nature which have to be complied with and
in whose case, the theory of substantial compliance may not
be available. (3) In respect of procedural provisions other
than of a fundamental nature, the theory of substantial
compliance would be available. In such cases,
complaint/objection on this scope have to be judged on the
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touch-stone of prejudice, as explained later in this judgment.
In other words, the test is: all things taken together whether
the delinquent officer/employee had or did not have a fair
hearing. We may clarify that which provision falls in which
of the aforesaid categories is a matter to be decided in each
case having regard to the nature and character of the
relevant provision.
XXX
21. Pausing here, we may notice two decisions of this Court
where the test of prejudice was rejected, viz., Chintapalii
Agency T.A.S.C.S. Limited v. Secretary (F&A) Government
of Andhra Pradesh and S.L. Kapoor v. Jagmohan both
rendered by three-Judge Benches. But if one notices the
"facts of those cases, it would be evident that they were cases
of total absence of notice as in the case of Ridge v. Baldwin.
XXX
33. We may summarise the principles emerging from the
above discussion. (These are by no means intended to be
exhaustive and are evolved keeping in view the context of
disciplinary enquiries and orders of punishment imposed by
an employer upon the employee):
(1) An order passed imposing a punishment on an employee
consequent upon a disciplinary/departmental enquiry in
violation of the rules/regulations/statutory provisions
governing such enquiries should not be set aside
automatically. The Court or the Tribunal should enquire
whether (a) the provision violated is of a substantive nature
of (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with
as explained hereinbefore and the theory of substantial
compliance or the test of prejudice would not be applicable
in such a case.
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(3) In the case of violation of a procedural provision, the
position is this: Procedural provisions are generally meant
for affording a reasonable and adequate opportunity to the
delinquent officer/employee. They are, generally speaking,
conceived in his interest. Violation of any and every
procedural provision cannot be said to automatically vitiate
the enquiry held or order passed.-Except cases falling under
'no notice', 'no opportunity' and 'no hearing' categories, the
complaint of violation of procedural provision should be
examined from the point of view of prejudice, viz., whether
such violation has prejudiced the delinquent
officer/employee in defending himself properly and
effectively. If it is found that he has been so prejudiced,
appropriate orders have to be made to repair and remedy
the prejudice including setting aside the enquiry and/or the
order of punishment. If no prejudice in established to have
resulted therefrom, it is obvious, no interference is called
for. In this connection, it may be remembered that there may
be certain procedural provisions which are of a fundamental
character, whose violation is by itself proof of prejudice. The
Court may not insist on proof of prejudice in such cases. As
explained in the body of the judgment, take a case where
there is a provision expressly providing that after the
evidence of the employer/government is over, the employee
shall be given an opportunity to lead defence in his evidence
and in a given case, the enquiry officer does not give that
opportunity in spite of the delinquent officer/employee
asking for it. The prejudice is sell- evident. No proof of
prejudice as such need be called for in such a case. To
report, the test is one of prejudice, i.e., whether the person
has received a fair hearing considering all things. Now, this
very aspect can also be looked at from the point of view of
directory and mandatory provisions, if one is so inclined.
The principle slated under (4) herein below is only another
way of looking at the same aspect as is dealt with herein and
not a different or distinct principle.
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(4)(a) In the case of a procedural provision which is not of a
mandatory character, the complaint of violation has to be
examined from the standpoint of substantial compliance. Be
that as it may, the order passed in violation of such a
provision can be set aside only where such violation has
occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which
is of a mandatory character, it has to be ascertained whether
the provision is conceived in the interest of the person
proceeded against or in public interest. If it is found to be
the former, then it must be seen whether the delinquent
officer has waived the said requirement, either expressly or
by his conduct. If he is found to have waived it, then the
order of punishment cannot be set aside on the ground of
said violation. If, on the other hand, it is found that the
delinquent officer/employee has not it or that the provision
could not be waived by him, then the Court on Tribunal
should make appropriate directions (include the setting
aside of the order of punishment) keeping in mind the
approach adopted by the Constitution Bench in B.
Kaninakar. The ultimate test is always the same, viz., test of
prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any
rules/regulations/statutory provisions and the only
obligation is to observe the principles of natural justice or,
for that matter, wherever such principles are held to be
implied by the very nature and impact of the order/action-
the Court or the Tribunal should make a distinction between
a total violation of natural justice (rule of audi alteram
partem) and violation of a facet of the said rule, as explained
in the body of the judgment. In other words, a distinction
must be made between "no opportunity" and no adequate
opportunity, i.e., between "no notice"/no hearing" and "no
fair hearing", (a) In the case of former, the order passed
would undoubtedly be invalid (one may call it "void" or a
nullity if one chooses to). In such cases, normally, liberty
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will be reserved for the Authority to take proceedings afresh
according to law, i.e., in accordance with the said rule (audi
alteram partem). (b) But in the latter case, the effect of
violation (of a facet of the rule audi alteram partem) has to
be examined from the standpoint of prejudice; in other
words, what the Court or Tribunal has to see is whether in
the totality of the circumstances, the delinquent
officer/employee did or did not have a fair hearing and the
orders to be made shall depend upon the answer to the said
query. (It is made clear that this principle (No. 5) does not
apply in the case of rule against bias, the test in which behalf
are laid down elsewhere.
(6) While applying the rule of audi alteram partem (the
primary principle of natural justice) the
Court/Tribunal/Authority must always bear in mind the
ultimate and over-riding objective underlying the said rule,
viz., to ensure a fair hearing and to ensure that there is no
failure of justice. It is this objective which should guide them
in applying the rule to varying situations that arises before
them.
(7) There may be situations where the interests of state or
public interest may call for a curtailing of the rule of audi
alteram partem. In such situations, the Court may have to
balance public/State interest with the requirement of natural
justice and arrive at an appropriate decision."
48. In Janakinath Sarangi v. State of Orissa, (1969) 3 SCC,
Hidayatullah, CJ. (speaking for the Bench comprising himself and G.K.
Mitter, J.) made the following pertinent observations :
"5. From this material it is argued that the principles of
natural justice were violated because the right of the
appellant to have his own evidence recorded was denied to
him and further that the material which was gathered behind
his back was used in determining his guilt. In support of
these contentions a number of rulings are cited chief among
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which are State of Bombay v. Narul Latif Khan; State of
Uttar Pradesh and Anr. v. Sri C.S. Shanna and Union of
India v. T.R. Varma. There is no doubt that if the principles
of natural justice are violated and there is a gross case this
Court would interfere by striking down the order of
dismissal; but there are cases and cases. We have to look to
what actual prejudice has been caused to a person by the
supposed denial to him of a particular right.... Anyway the
questions which were put to the witnesses were recorded and
sent to the Chief Engineer and his replies were received. No
doubt the replies were not put in the hands of the appellant
but he saw them at the time when he was making the
representation and curiously enough, he used those replies
in his defence. In other words, they were not collected
behind his back and could be used to his advantage and he
had an opportunity of so using them in his defence. We do
not think that any prejudice was caused to the appellant in
his case by not examining the two retired Superintending
Engineers whom he had cited or any one of them."
49. In K.L. Tripathi v. State Bank of India and Ors., (1984) 1 SCC
43, Sabyasachi Mukharji, J., speaking for a three-Judge Bench,
considered the question whether violation of each and every facet of
principles of natural justice has the effect of vitiating the inquiry. The
learned Judge observed:
"32. The basic concept is fair play in action administrative,
judicial or quasi-judicial. The concept of fair play in action
must depend upon the particular lis, if there be any, between
the parties. If the credibility of a person who has testified or
given some information is in doubt, or if the version or the
statement of the person who has testified, is, in dispute, right
of cross-examination must inevitable form part of fair play in
action but where there is no lis regarding the facts but
certain explanation of the circumstances there is no
requirement of cross-examination to be fulfilled to justify
fair play in action. When on the question of facts there was
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no dispute, no real prejudice has been caused to a party
aggrieved by an order, by absence of any formal opportunity
of cross-examination per se does not invalidate or vitiate the
decision arrived at fairly. This is more so when the party
against whom an order has been passed does not dispute the
facts and does not demand to test the veracity of the version
of the credibility of the statement.
The party who does not want to controvert the veracity of the
evidence from or testimony gathered behind his back cannot
expect to succeed in any subsequent demand that there was
no opportunity of cross-examination specially when it was
not asked for and there was no dispute about the veracity of
the statements. Where there is no dispute as to the facts, or
the weight to be attached on disputed facts but only an
explanation to the acts, absence of opportunity to cross-
examination does not create any prejudice in such cases.
The principles of natural justice will, therefore, depend upon
the facts and circumstances of each particular case. We have
set out hereinbefore the actual facts and circumstances of
the case. The appellant was associated with the preliminary
investigation that was conducted against him. He does not
deny or dispute that. Information and materials undoubtedly
were gathered not in his presence but whatever information
was there and gathered namely, the versions of the persons,
the particular entries which required examination were
shown to him. He was conveyed the information given and
his explanation was asked for. He participated in that
investigation. He gave his explanation but he did not dispute
any of the facts nor did he ask for any opportunity to call any
evidence to rebut these facts."
50. Therefore, it is crystal clear from the aforesaid discussion that the
Petitioner was well aware of the amendments which were made by the
Respondent Bank in the charges against him and hence it cannot be said
that the Petitioner had no notice of the amendments or was not given an
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opportunity to lead his defence in consonance with the principles of
natural justice. Therefore, it is clearly established that no prejudice was
caused to the Petitioner qua the amendments so made by the Respondent
Bank and in the consonance with the prejudice test as has been laid down
by the Hon‟ble Supreme Court in the cases referred to above, I am
inclined to answer this issue in favour of the Respondent Bank and
against the Petitioner.
ISSUE II-
51. It is pertinent to refer to the Regulation 7 of the Oriental Bank of
Commerce Officer Employees (Discipline and Appeal) Regulations, 1982
(hereinafter referred to as "Bank Regulations"). Regulation 7(2) of the
Bank Regulations reads as follows:
"7. Action on the inquiry report:
(2) The Disciplinary Authority shall, if it disagrees with the
findings of the inquiring authority on any article of charge,
record its reasons for such disagreement and record its own
findings on such charge, if the evidence or record is
sufficient for the purpose."
52. Therefore, on a preliminary view of the Bank Regulations it cannot
be gainsaid that the Disciplinary Authority was within its powers to
disagree with the findings of the Inquiry Officer and record its own
independent reasons for disagreement supported by evidence taken on
record. But what is pivotal is to the manner in which the disagreement has
to be registered and an opportunity has to be given to the alleged
delinquent employee to meet the charges so framed against him.
53. In this context it becomes necessary to a landmark decision of the
Hon‟ble Supreme Court of India in Yoginath D Bagde v. State of
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Maharashtra, AIR 1999 SC 3734, wherein their lordships of the
Supreme Court were confronted with a similar situation, i.e., the
Disciplinary Authority had disagreed with the findings of the Inquiry
Authority. It is relevant to cite certain paragraphs from this judgment:-
"28.... If it does not agree with the findings of the Inquiring
Authority, it may record its own findings. Where the
Inquiring Authority has found the delinquent officer guilty of
the charges framed against him and the Disciplinary
Authority agrees with those findings, there would arise no
difficulty. So also, if the Inquiring Authority has held the
charges proved, but the Disciplinary Authority disagrees
and records a finding that the charges were not established,
there would arise no difficulty. Difficulties have arisen in all
those cases in which the Inquiring Authority has recorded a
positive finding that the charges were not established and
the delinquent officer was recommended to be exonerated,
but the Disciplinary Authority disagreed with those findings
and recorded its own findings that the charges were
established and the delinquent officer was liable to be
punished. This difficulty relates to the question of giving an
opportunity of hearing to the delinquent officer at that stage.
Such an opportunity may either be provided specifically by
the Rules made under Article 309 of the Constitution or the
Disciplinary Authority may, of its own, provide such an
opportunity. Where the Rules are in this regard silent and
the Disciplinary Authority also does not give an opportunity
of hearing to the delinquent officer and records findings,
different from those of the Inquiring Authority that the
charges were established, "an opportunity of hearing" may
have to be read into the Rule by which the procedure for
dealing with the Inquiring Authority's report is provided
principally because it would be contrary to the principles of
natural justice if a delinquent officer, who has already been
held to be 'not guilty' by the Inquiring Authority, is found
'guilty' without being afforded an opportunity of hearing on
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the basis of the same evidence and material on which a
finding of "not guilty" has already been recorded.
29. We have already extracted Rule 9(2) of the Maharashtra
Civil Services (Discipline & Appeal) Rules, 1979 which
enables the Disciplinary Authority to disagree with the
findings of the Inquiring Authority on any article of charge.
The only requirement is that it shall record its reasoning for
such disagreement. The Rule does not specifically provide
that before recording its own findings, the Disciplinary
Authority will give an opportunity of hearing to a delinquent
officer.
But the requirement of "hearing" in consonance with the
principles of natural justice even at that stage has to be read
into Rule 9(2) and it has to be held that before Disciplinary
Authority finally disagrees with the findings of the Inquiring
Authority, it would give an opportunity of hearing to the
delinquent officer so that he may have the opportunity to -
indicate that the findings recorded by the Inquiring
Authority do not suffer from any error and that there was no
occasion to take a different view. The Disciplinary Authority,
at the same time, has to communicate to the delinquent
officer the "Tentative" reasons for disagreeing with the
findings of the Inquiring Authority so that the delinquent
officer may further indicate that the reasons on the basis of
which the Disciplinary Authority proposes to disagree with
the findings recorded by the Inquiring Authority are not
germane and the finding of "not guilty" already recorded by
the Inquiring Authority was not liable to be interfered with.
33. In view of the above, a delinquent employee has the right
of hearing not only during the enquiry proceedings
conducted by the Enquiry Officer into the charges levelled
against him but also at the stage at which those findings are
considered by the Disciplinary Authority and the latter,
namely, the Disciplinary Authority forms a tentative opinion
that it does not agree with the findings recorded by the
Enquiry Officer. If the findings recorded by the Enquiry
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Officer are in favour of the delinquent and it has been held
that the charges are not proved, it is all the more necessary
to give an opportunity of hearing to the delinquent employee
before reversing those findings. The formation of opinion
should be tentative and not final. It is at this stage that the
delinquent employee should be given an opportunity of
hearing after he is informed of the reasons on the basis of
which the Disciplinary Authority has proposed to disagree
with the findings of the Enquiry Officer. This is in
consonance with the requirement of Article 311(2) of the
Constitution as it provides that a person shall not be
dismissed or removed or reduced in rank except after an
enquiry in which he has been informed of the charges
against him and given a reasonable opportunity of being
heard in respect of those charges. So long as a final decision
is not taken in the matter, the enquiry shall be deemed to be
pending. Mere submission of findings to the Disciplinary
Authority does not bring about the closure of the enquiry
proceedings. The enquiry proceedings would come to an end
only when the findings have been considered by the
Disciplinary Authority and the charges are either held to be
not proved or found to be proved and in that event,
punishment is inflicted upon the delinquent. That being so,
the "right to be heard" would be available to the delinquent
up to the final stage. This right being a constitutional right
of the employee cannot be taken away by any legislative
enactment or Service Rule including Rules made under
Article 309 of the Constitution."
54. In Punjab National Bank and Ors. v. Kunj Behari Mishra, AIR
1998 SC 2713, the Hon‟ble Supreme Court propounded the law on the
subject as follows:
"20. ....It will not stand to reason that when the finding in
favour of the delinquent officers is proposed to be over-
turned by the disciplinary authority then no opportunity
should be granted. The first stage of the inquiry is not
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completed till the disciplinary authority has recorded its
findings. The principles of natural justice would demand that
the authority which proposes to decide against the
delinquent officer must give him a hearing. When the
inquiring officer holds the charges to be proved then that
report has to be given to the delinquent officer who can
make a representation before the disciplinary authority takes
further action which may be prejudicial to the delinquent
officer. When, like in the present case, the inquiry report is
in favour of the delinquent officer, but the disciplinary
authority proposes to differ with such conclusions, then that
authority which is deciding against the delinquent officer
must give him an opportunity of being heard for otherwise
he would be condemned unheard. In departmental
proceedings what is of ultimate importance is the finding of
the disciplinary authority.
21.........When the inquiry is conducted by the inquiry officer
his report is not final or conclusive and the disciplinary
proceedings do not stand concluded. The disciplinary
proceedings stand concluded with decision of the
disciplinary authority. It is the disciplinary authority which
can impose the penalty and not the inquiry officer. Where the
disciplinary authority itself holds an inquiry, an opportunity
of hearing has to be granted by him. When the disciplinary
authority differs with the view of the inquiry officer and
proposes to come to a different conclusion, there is no
reason as to why an opportunity of hearing should not be
granted. It will be most unfair and iniquitous that where the
charged officers succeed before the inquiry officer, they are
deprived of representing to the disciplinary authority before
that authority differs with the inquiry officer's report and,
while recording a finding of guilt, imposes punishment on
the officer. In our opinion, in any such situation the charged
officer must have an opportunity to represent before the
Disciplinary Authority before final findings on the charges
are recorded and punishment imposed."
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55. The application of these principles to the facts of the present case,
it becomes pertinent to cite the relevant portion of the disagreement note
dated 13th August 2002:-
"Please refer to our letter dated 6.12.1999 vide which
departmental enquiry was instituted against you. Shri AK
Aggarwal, Commissioner of Departmental Enquiries,
Central Vigilance Commission, Inquiring Authority had
submitted his findings. The undersigned has examined the
findings of I.A. and come to the conclusion that evidence
have not been properly scrutinised by the Inquiring
Authority regarding some of the charges. The undersigned
has recorded its own findings where he disagreed with the
findings of I.A. under Regulation 7(2) of Oriental Bank of
Commerce Officer Employees (Discipline & Appeal)
Regulations, 1982.
We are forwarding a copy of the note along with the findings
of Inquiring Authority for your representation in the matter.
If you desire to make any representation or submission in
regard to the findings of the Inquiring Authority you may
do so within 15 days. The undersigned will take the suitable
decision after examining the same."
56. Though at the first glare it might appear that the disagreement so
reached by the Disciplinary Authority is conclusive and not tentative as is
required in terms of the law laid down by the Hon‟ble Supreme Court, but
emphasising on the wordings of the disagreement note predominantly on
the phrase bold-marked, it will direct to the irresistible conclusion that the
conclusion so reached by the Disciplinary Authority was not conclusive
and only tentative. This is further fortified by the fact that in the
disagreement note dated 13th August 2002, the Disciplinary Authority
was of the tentative opinion that all the charges namely, Charge No. 1,
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Charge No. 2(a), Charge No. 2(b), Charge No. 2(c) and Charge No. 3
stands proved but in the final order dated 23rd January 2003, only Charge
No. 2(a), Charge No 2(c) and Charge No. 3 stood proved against the
Petitioner. Therefore, this issue is also answered in favour of the
Respondent Bank and against the Petitioner.
ISSUE III-
57. The Petitioner has taken a contention that after exoneration by the
Chief Vigilance Officer the proceedings against him came to an end and
the Disciplinary Authority ought not to have issued a chargesheet against
the Petitioner. The contention of the Petitioner in the writ petition is
reproduced herein below:
"Because the charges which have been made subject matter
of the chargesheet subsequently, were already investigated
into by the Chief Vigilance Officer of the Bank and the case
was closed after the CVO arrived at finding that no such
charge was made out and submitted his report dated
22.6.1996 to the Reserve Bank of India. The Petitioner could
not have been once again issued a charge sheet in relation to
the same charges. This constitutes an illegality patent on
the face of the record itself and banks upon double
jeopardy."
58. The Respondents have denied the application of Double Jeopardy
in the facts and circumstances of the present case in their counter affidavit
in the following words:-
"The contents of Ground K are wrong and hence denied.
The Chief Vigilance Officer was not the Disciplinary
Authority of the petitioner and thus his report was not
conclusive about the establishment of charges against the
petitioner. The case was never closed by the CVO, as
alleged, but was merely referred to the Disciplinary
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Authority. Moreover, the CVO has no jurisdiction to close
the case. The Disciplinary Authority was within his
jurisdiction to initiate disciplinary proceedings against the
petitioner. The initiation of departmental proceedings
against the petitioner is legal and justified and doesn't
constitute double jeopardy, as alleged."
59. It is settled by a catena of judgments by the Hon‟ble Supreme
Court that the Disciplinary Authority is not bound by the advice of the
Chief Vigilance Commissioner and the same is merely recommendatory
in nature. It is pertinent to cite relevant paras of Nagraj Shivarao Karjagi
v. Syndicate Bank, AIR 1991 SC 1507:-
"17. We are indeed surprised to see the impugned directive
issued by the Ministry of Finance, Department of Economic
Affairs (Banking Division). Firstly, under the Regulation, the
Bank's consultation with Central Vigilance Commission in
every case is not mandatory. Regulation 20 provides that the
Bank shall consult the Central Vigilance Commission
wherever necessary, in respect of all disciplinary cases
having a vigilance angle. Even if the Bank has made a self
imposed rule to consult the Central Vigilance Commission in
every disciplinary matter, it does not make the Commission's
advice binding on the punishing authority. In this context,
reference may be made to Article 320(3) of the Constitution.
The Article 320(3) like Regulation 20 with which we are
concerned provides that the Union Public Service
Commission or the State Public Service Commission, as the
case may be, shall be consulted-on all disciplinary matters
affecting a civil servant including memorials or petitions
relating to such matters. This Court in A.N. D'Silva v. Union
of India has expressed the view that the Commission's
function is purely advisory. It is not an appellate authority
over the inquiry officer or the disciplinary authority. The
advice tendered by the Commission is not binding on the
Government. Similarly, in the present case, the advice
tendered by the Central Vigilance Commission is not
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binding on the Bank or the punishing authority. It is not
obligatory upon the punishing authority to accept the
advice of the Central Vigilance Commission.
XXX
19. The corresponding new bank referred to in Section 8 has
been defined under Section 2(f) of the Act to mean a banking
company specified in column 1 of the First Schedule of the
Act and includes the Syndicate Bank. Section 8 empowers
the Government to issue directions in regard to matters of
policy but there cannot be any uniform policy with regard to
different disciplinary matters and much less there could be
any policy in awarding punishment to the delinquent officers
in different cases. The punishment to be imposed whether
minor or major depends upon the nature of every case and
the gravity of the misconduct proved. The authorities have
to exercise their judicial discretion having regard to the
facts and circumstances of each case. They cannot act
under the dictation of the Central Vigilance Commission or
of the Central Government. No third party like the Central
Vigilance Commission or the Central Government could
dictate the disciplinary authority or the appellate authority
as to how they should exercise their power and what
punishment they should impose on the delinquent officer.
(See: De Smith's Judicial Review of Administrative Action,
Fourth Edition, p. 309). The impugned directive of the
Ministry of Finance, is therefore, wholly without
jurisdiction, and plainly contrary to the statutory
Regulations governing disciplinary matters."
60. Therefore, the allegation by the Petitioner of application of Double
Jeopardy in the present facts and circumstances of the case cannot be
accepted and hence falls to the ground. This issue is accordingly decided
against the Petitioner.
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ISSUE IV-
61. At the outset, it is necessary to reproduce the circular of the Central
Vigilance Commission dated 28th September 2000:
"Subject:- Consultation with the CVC- Making available a
copy of the CVC's advice to the concerned employee.
Sir,
Para 3.6 (iii), chapter XI and para 8.6, Chapter XII of the
Vigilance Manual, Vol. I, provide that the advice tendered
by the Central Vigilance Commission is of a confidential
nature meant to assist the disciplinary authority and should
not be shown to the concerned employee. It also mentions
that the Central Vigilance Commission tenders its advice in
confidence and its advice is a privileged communication and,
therefore, no reference to the advice tendered by the
Commission should be made in any formal order.
2. The Commission has reviewed the above instructions in
view of its policy that there should be transparency in all
matters, as far as possible. The Commission has observed
that the Hon'ble Supreme Court had held a view in the case -
State Bank of India Vs. D.C. Aggarwal and another [Date of
Judgement: 13.10.1992] - that non-supply of CVC's
instructions, which was prepared behind the back of
respondent without his participation, and one does not know
on what material, which was not only sent to the disciplinary
authority but was examined and relied, was certainly
violative of procedural safeguard and contrary to fair and
just inquiry. Further, the Hon'ble High Court of Karnataka
at Bangalore, in writ Petition No. 6558/93, has also
observed that if a copy of the report (CVC's advice) was
furnished to the delinquent officer, he would have been in a
position to demonstrate before the disciplinary authority
either to drop the proceedings or to impose lesser
punishment instead of following blindly the directions in the
CVC's report.
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3. The Commission, at present, is being consulted at two
stages in disciplinary proceedings, i.e. first stage advice is
obtained on the investigation report before issue of the
charge sheet, and second stage advice is obtained either on
receipt of reply to the charge sheet or on receipt of inquiry
report. It, however, does not seem necessary to call for the
representation of the concerned employee on the first stage
advice as the concerned employee, in any case, gets an
opportunity to represent against the proposal for initiation
of departmental proceedings against him. Therefore, a copy
of the Commission's first stage advice may be made
available to the concerned employee along with a copy of
the chargesheet served upon him, for his information.
However, when the CVC's second stage advice is obtained, a
copy thereof may be made available to the concerned
employee, along with the IO's report, to give him an
opportunity to make representation against IO's findings and
the CVC's advice, if he desires to do so.
4. In view of the position stated above, para 3.6 (iii),
Chapter XI and para 8.6, Chapter XII of the Vigilance
manual, Vol. I, and also para 2 of the Commission's letter
No. 6/3/73-R dated 20.08.1973 may be treated as deleted.
5. Para 12.4.4 of Special Chapter on Vigilance
Management in Public Sector Banks and para 22.6.4 of the
Special Chapter on Vigilance Management in Public Sector
Enterprises envisage that the inquiring authorities, including
the CDIs borne on the strength of the Commission, would
submit their reports to the disciplinary authority who would
then forward the IO's reports, along with its own tentative
views to the Commission for its second stage advice. The
existing procedure in this regard may broadly continue. The
disciplinary authority may, after examination of the inquiry
report, communicate its tentative views to the Commission.
The Commission would thereafter communicate its advice.
This, along with the disciplinary authority's views, may be
made available to the concerned employee. On receiving his
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representation, if any, the disciplinary authority may impose
a penalty in accordance with the Commission's advice or if it
feels that the employee's representation warrants
consideration, forward the same, along with the records of
the case, to the Commission for its reconsideration.
6. Thus, if on the receipt of the employee's representation,
the concerned administrative authority proposes to accept
the CVC's advice, it may issue the orders accordingly. But if
the administrative authority comes to the conclusion that the
representation of the concerned employee necessitates
reconsideration of the Commission's advice, the matter
would be referred to the Commission."
62. In the counter affidavit of the Respondent Bank in the context of
seeking advice from the Chief Vigilance Commissioner, it has been stated
that:
"As per the respondents [Discipline and
Appeal]Regulations, the case was referred to the Chief
Vigilance Commissioner for IInd stage advice. Seeing the
gravity of the charges, even the CVC suggested stiff major
penalty to the petitioner. The representation made by the
petitioner was duly considered by the Disciplinary Authority,
and vide the final order dated 23.1.2003, the Disciplinary
Authority struck down two charges and concluded that only
three charges out of the five charges were proved. However,
it is submitted that it was within the specific knowledge of
the petitioner that he had been awarded the penalty of
removal from service vide order dated 23.1.2003 of the
Disciplinary Authority, still concealed the said material fact
from the Hon'ble High Court and chose to file civil writ
bearing No. 1033/2003."
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63. In the rejoinder affidavit, the Petitioner has taken a stance that the
advice was never communicated to him. The relevant portion has been
reproduced below:
"That the contents of para (ix) of the counter reveal that the
case was sent to CVC for advice, but the respondents have
never sent the copy of such advice to the petitioner herein at
any stage. In fact the advice was to be obtained at two stages
as per the circular of CVC but none of the advice has been
communicated to the petitioner herein, which is in utter
violation of the circular.... It is clear from perusal of the
circular that the sending of the advice of CVC to the
petitioner was mandatory. As no such advice has ever been
sent to the petitioner, the petitioner was deprived of the
opportunity to represent against the same. On this count also
the impugned orders stand vitiated."
64. In State Bank of India v. D.C. Aggarwal, AIR 1993 SC 1197, the
question which was posed before the Hon‟ble Supreme Court was
whether a Disciplinary Authority while imposing punishment, major or
minor, act on material which is neither supplied nor shown to the
delinquent employee? The Hon‟ble Supreme Court held that:
"4. Although correctness of the order passed by the High
Court was assailed from various aspects, including the
power of the High Court to interfere on quantum of
punishment, in writ jurisdiction, but we propose to confine
only to the question of effect of non-supply of CVC
recommendations as if the order was invalid and void on this
score only it is not necessary to decide any other issue. Law
on natural justice is so well settle for series of decisions of
this Court that it leaves one bewildered, at times, that such
bodies like State Bank of India, who are assisted by
hierarchy of law officers, commit such basic and
fundamental procedural errors that courts are left with no
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option except to set aside such orders. Imposition of
punishment to an employee, on material which is not only
not supplied but not disclosed to him, has not been
countenanced by this Court. Procedural fairness is as much
essence of right and liberty as the substantive law itself.
5.......The learned Counsel urged that the Bank was very
fair to the respondent and the Disciplinary Authority after
application of mind and careful analysis of the material on
record on its own evaluation, uninfluenced by the CVC
recommendation passed the order. It was emphasised that if
the exercise would have been mechanical the Disciplinary
Authority would not have disagreed with CVC
recommendations on punishment. Learned Counsel
submitted that, in any case, the Disciplinary Authority
having passed detailed order discussing every material on
record and the respondent having filed appeal there was no
prejudice caused to him. None of these submissions are of
any help. The order is vitiated not because of mechanical
exercise of power or for non-supply of the inquiry report but
for relying and acting on material which was not only
irrelevant but could not have been looked into. Purpose of
supplying document is to contest its veracity or give
explanation. Effect of non-supply of the report of Inquiry
Officer before imposition of punishment need not be gone
into nor it is necessary to consider validity of Rule 5. But
non-supply of CVC recommendation which was prepared
behind the back of respondent without his participation,
and one does not know on what material which was not
only sent to the Disciplinary Authority but was examined
and relied, was certainly violative of procedural safeguard
and contrary to fair and just inquiry. From letter produced
by the respondent, the authenticity of which has been
verified by the learned Additional Solicitor General, it
appears the Bank turned down the request of the respondent
for a copy of CVC recommendation as, 'The correspondence
with the Central Vigilance Commission is a privileged
communication and cannot be forwarded as the order
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passed by the Appointing Authority deals with the
recommendation to the CVC which is considered sufficient'.
Taking action against as employee on confidential document
which is the foundation of order exhibits complete
misapprehension about the procedure that is required to be
followed by the Disciplinary Authority. May be that the
Disciplinary Authority has recorded its own findings and it
may be coincidental that the reasoning and basis of
returning the finding of guilt are same as in the CVC report
but it being a material obtained behind back of the
respondent without his knowledge or supplying of any copy
to him the High Court in our opinion did not commit any
error in quashing the order. No supply of the Vigilance
report was one of the ground taken in appeal. But that was
so because the respondent prior to service of the order
passed by the Disciplinary Authority did not have any
occasion to know that CVC had submitted some report
against him. The submission of the learned Addl. Solicitor
General that CVC recommendations are confidential copy,
of which, could not be supplied cannot be accepted.
Recommendations of Vigilance prior to initiation of
proceedings are different that CVC recommendation which
was the basis of the order passed by the Disciplinary
Authority.
6. Even the submission of non-prejudice is not well founded.
The respondent was a very senior officer of the bank. He was
promoted to the top executive grade in August 1980. We
have refrained from entering into merits but once the
Disciplinary Authority found that the action of the
respondent did not cause any harm to the bank nor the
respondent gained out of it the High Court cannot be said to
have misdirected itself in quashing the order for procedural
error."
65. In the written submissions filed by the Respondents, countering the
submission of the Petitioner, the Respondents have taken the following
stand:
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"The judgment of State Bank of India vs. D.C. Aggarwal is
not applicable to the facts of the present case. It is nowhere
the contention of the respondent that DA acted upon the two
stage advice of CVC. The petitioner has himself admitted
receipt in para 2 of his written arguments that CVO had
exonerated him (Page 47-48) in first stage. In the instant
case, the Bank had only referred the matter to the Chief
Vigilance Officer for 2nd stage advice after sending of
disagreement note to CSE and the Vigilance Officer, as
noticed above, had not directed that a particular punishment
should be imposed. Therefore, on the ground urged by the
petitioner, the order of the disciplinary authority cannot be
faulted"
66. In view of the above-said, I find force in the arguments of the
Respondents that non-supply of the advice of the Chief Vigilance
Commissioner to the Petitioner cannot lead to the disciplinary
proceedings being vitiated as the Disciplinary Authority had already
submitted a disagreement note giving its tentative conclusions to the
Petitioner and hence, the ratio of D.C. Aggarwal (supra) cannot be
attracted to the present case. Therefore, the argument of the Respondent
Bank that the Disciplinary Authority acted independently and not merely
on the advice of the Chief Vigilance Commissioner cannot be rejected.
Moreover, no prejudice can be said to have been caused to the Petitioner
as during the disciplinary proceedings, the Petitioner never made an
application before the Disciplinary Authority to seek a copy of the advice
of the Chief Vigilance Commission as well. Hence, this issue is decided
in favour of the Respondent Bank and against the Petitioner.
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ISSUE V-
67. The Petitioner was issued a show cause notice by the Respondent
Bank on 15th March 1996 seeking his explanation qua the charges to be
formulated against him. On 25th March 1996, the Petitioner sent his
comments on the charges to be levelled against him and upon receipt of
the explanation from the Petitioner, the Chief Vigilance Officer of the
Respondent Bank on 22nd June 1996 addressed a letter to the then DGM,
RBI Mumbai, saying that-
"We have examined the reply given by Sh. Malhan and are
of the view that on the basis of the evidence furnished, we
have no reason to disbelieve the statement of Sh. Malhan."
68. Further, the Petitioner alleges that on 23rd June 1997, the
Disciplinary Authority picked up a part of one of the aforesaid charges
and even without conducting any inquiry imposed punishment of
stopping two increments of the Petitioner for four years. Be that as it
may, as the aforesaid allegation is not a subject matter of the present writ
petition, I am not entering into the merits of the same.
69. On 14th July 1998, the Disciplinary Authority issued another memo
to the Petitioner containing seven charges altogether. The Petitioner then
submitted his reply to above-said memo and on 23rd October 1999, a
charge-sheet was issued to the Petitioner containing seven charges and a
regular inquiry was set up against him. The relevant portion of the
submission of the Petitioner in the writ petition is being reproduced
below:
"It is submitted that though as per the Punishment and
Appeal Rules, the said Inquiry was to be completed within 6
months period, but the same could be finished only after
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three years, because of deliberate dilly dallying tactics of
the presenting officer appointed by the respondent bank. The
mandatory provision fixing the time limit of such inquiry as
contained in the Vigilance Manual of the Bank is being
reproduced below for convenience of reading:
12.3.1 APPOINTMENT OF INQUIRING
AUTHORITY/OFFICER
(i) ...The inquiring Authority should also be directed to
ensure submission of the report mandatorily within a period
of six months of his appointment. This time limit should be
invariably adhered at all costs."
70. The inquiry officer submitted his report exonerating the Petitioner
on 27th June 2002. The Petitioner has taken a stance that the report of the
inquiry officer was submitted after more than 30 months and hence, well
beyond the time-limit of six months as is specified in the vigilance
manual. It is in the above background that the inquiry so set up against
him and the charge-sheet so issued is sought by the Petitioner to be
quashed being vitiated by the vice of delay and consequently, the
Petitioner being prejudiced in his defence.
71. In State of Madhya Pradesh & Anr. vs. Akhilesh Jha &Anr.,
Civil Appeal No. 5153 of 2021 decided on 6th September 2021, their
lordships of the Supreme Court while considering the effect of delay in
the conclusion of a disciplinary proceeding has held that:
"13.....Every delay in conducting a disciplinary enquiry
does not, ipso facto, lead to the enquiry being vitiated.
Whether prejudice is caused to the officer who is being
enquired into is a matter which has to be decided on the
basis of the circumstances of each case. Prejudice must be
demonstrated to have been caused and cannot be a matter of
surmise. Apart from submitting that the first respondent was
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unable to proceed on deputation or to seek promotion, there
is no basis on which it could be concluded that his right to
defend himself stands prejudicially affected by a delay of
two years in concluding the enquiry. The High Court,
therefore, in our view, has clearly failed to properly exercise
the jurisdiction vested in it by simply affirming the judgment
of the Tribunal. The judgment of the Tribunal suffered from
basic errors which go to the root of the matter and which
have been ignored both by the Tribunal as well as by the
High Court."
72. In State of Andhra Pradesh v. N. Radhakishan, (1998) 4 SCC
154, their lordships of the Supreme Court while considering delay in the
conclusion of the disciplinary proceedings have held as under:
"19. It is not possible to lay down any pre-determined
principles applicable to all cases and in all situations where
there is delay in concluding the disciplinary proceedings.
Whether on that ground the disciplinary proceedings are to
be terminated each case has to be examined on the facts and
circumstances in that case. the essence of the matter is that
the court has to take into consideration all relevant factors
and to balance and weight them to determine if it is in the
interest of clean and honest administration that the
disciplinary proceedings should be allowed to terminate
after delay particularly when delay is abnormal and there is
no explanation for the delay. The delinquent employee has a
right that disciplinary proceedings against him are
concluded expeditiously and he is not made to undergo
mental agony and also monetary loss when these are
unnecessarily prolonged without any fault on his part in
delaying the proceedings. In considering whether delay has
vitiated the disciplinary proceedings the Court has to
consider the nature of charge, its complexity and on what
account the delay has occurred. If the delay is unexplained
prejudice to the delinquent employee is writ large on the
face of it. It could also be seen as to how much disciplinary
authority is serious in pursuing the charges against its
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employee. It is the basic principle of administrative justice
that an officer entrusted with a particular job has to perform
his duties honestly, efficiently and in accordance with the
rules. If he deviates from this path he is to suffer a penalty
prescribed. Normally, disciplinary proceedings should be
allowed to take its course as per relevant rules but then
delay defeats justice. Delay causes prejudice to the charged
officer unless it can be shown that he is to or when there is
proper explanation for the delay in conducting the
disciplinary proceedings. Ultimately, the court is to balance
these two diverse considerations."
73. In Government of Andhra Pradesh &Ors. v. V Appala Swamy,
(2007) 14 SCC 49, the Hon‟ble Supreme Court held as under:
"12. So far as the question of delay in concluding the
departmental proceedings as against a delinquent officer is
concerned, in our opinion, no hard and fast rule can be laid
down therefore. Each case must be determined on its on
facts. The principles upon which a proceeding can be
directed to be quashed on the ground of delay are:
(1) Where by reason of the delay, the employer condoned the
lapses on the part of the employee;
(2) where the delay caused prejudice to the employee.
Such a case of prejudice, however, is to be made out by the
employee before the Inquiry officer."
74. In Anant R. Kulkarni v. Y.P. Education Society, (2013) 6 SCC
515, the Hon‟ble Supreme Court held as under:
"14. The court/tribunal should not generally set aside the
departmental enquiry, and quash the charges on the ground
of delay in initiation of disciplinary proceedings; as such a
power is de hors the limitation of judicial review. In the
event that the court/tribunal exercises such power, it exceeds
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its power of judicial review at the very threshold. Therefore,
a charge-sheet or show cause notice, issued in the course of
disciplinary proceedings, cannot ordinarily be quashed by
court. The same principle is applicable in relation to there
being a delay in conclusion of disciplinary proceedings.
The facts and circumstances of the case in question, must be
carefully examined, taking into consideration the
gravity/magnitude of charges involved therein. The Court
has to consider the seriousness and magnitude of the
charges and while doing so the Court must weigh all the
facts, both for and against the delinquent officers and come
to the conclusion, which is just and proper considering the
circumstances involved. The essence of the matter is that the
court must take into consideration all relevant facts, and
balance and weigh the same, so as to determine, if it is in
fact in the interest of clean and honest administration, that
the said proceedings are allowed to be terminated, only on
the ground of a delay in their conclusion."
75. Therefore, what necessarily follows from the above-mentioned
judicial dicta is that there cannot be exact measurement of the length of
delay by reference to years to fall into the category of „inordinate delay‟
and what would amount to the same has to be decided depending on the
facts of a given case. If the delay is found to be too long and unexplained,
that would definitely have a bearing on the seriousness of the disciplinary
authority to pursue the proceedings against the delinquent employee.
76. In the instant case, the Petitioner has not shown as to how the delay
in conclusion of the disciplinary proceedings has prejudiced the Petitioner
in his defence before the Disciplinary Authority as well as the Appellate
Authority. The isolated submission of the Petitioner has been that the
time duration of six months as has been mentioned in the Vigilance
Manual has not been adhered and hence the disciplinary proceedings gets
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vitiated. No ground whatsoever as to the prejudice caused to the
Petitioner has been demonstrated by the Petitioner even in his written
submission before the Disciplinary Authority. It is pertinent to reproduce
the relevant portion of the written statements filed by the Petitioner
before the Disciplinary Authority:
"Thus in light of the above facts and also the mandatory
provisions of article 12.3.1 (i) of the CVC manual read with
article 18 of the manual, the present Inquiry has been
rendered void for the deliberate and unwarranted delays at
all stages including at the stage of change of IA because the
relevant rule envisages that the time limit of six months for
submission of the report by the IA. The mandate reads that
the time limit of six months should invariably be adhered to
at all costs. If need arises, the CO reserves his right to
challenge the Inquiry on this ground before the appropriate
authority including the court of competent jurisdiction"
77. Therefore, this Court reaches an irresistible conclusion that no
prejudice has been caused to the Petitioner because of the delay in the
conclusion of the disciplinary proceedings and as such this issue is also
decided against the Petitioner.
APPROACH IN CASE OF A BANK EMPLOYEES ACCUSED OF
SERIOUS CHARGES:
78. In respect of delinquent bank employees a distinct jurisprudence
has developed. In Chairman and Managing Director, United
Commercial Bank &Ors. v. P.C. Kakkar, (2003) 4 SCC 364, the
Hon‟ble Supreme Court has held that:
"14. A Bank officer is required to exercise higher standards
of honesty and integrity. He deals with money of the
depositors and the customers. Every officer/employee of the
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Bank is required to take all possible steps to protect the
interests of the Bank and to discharge his duties with utmost
integrity, honesty, devotion and diligence and to do nothing
which is unbecoming of a Bank officer. Good conduct and
discipline are inseparable from the functioning of every
officer/employee of the Bank. As was observed by this Court
in Disciplinary Authority-cum-Regional Manager v. Nikunja
Bihari Patnaik (1996 (9) SCC 69), it is no defence available
to say that there was no loss or profit resulted in case, when
the officer/employee acted without authority. The very
discipline of an organization more particularly a Bank is
dependent upon each of its officers and officers acting and
operating within their allotted sphere. Acting beyond one's
authority is by itself a breach of discipline and is a
misconduct....."
79. In Regional Manager, U.P. SRTC, Etawah & Ors. v. Hoti Lal and
Anr,. (2003) 3 SCC 605, the Hon‟ble Supreme Court held as under:
"10. ......If the charged employee holds a position of trust
where honesty and integrity are inbuilt requirements of
functioning, it would not be proper to deal with the matter
leniently. Misconduct in such cases has to be dealt with iron
hands. Where the person deals with public money or is
engaged in financial transactions or acts in a fiduciary
capacity, highest degree of integrity and trustworthiness is a
must and unexceptionable....."
80. In State Bank of India &Ors. v. Ramesh Dinkar Punde, (2006) 7
SCC 212, it was held by the Hon‟ble Supreme Court that:
"21. Confronted with the facts and the position of law,
learned counsel for the respondent submitted that leniency
may be shown to the respondent having regard to long years
of service rendered by the respondent to the Bank. We are
unable to countenance with such submission. As already
said, the respondent being a bank officer holds a position of
trust where honesty and integrity are inbuilt requirements of
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functioning and it would not be proper to deal with the
matter leniently. The respondent was a Manager of the Bank
and it needs to be emphasised that in the banking business
absolute devotion, diligence, integrity and honesty needs to
be preserved by every bank employee and in particular the
bank officer so that the confidence of the public/depositors is
not impaired. It is for this reason that when a bank officer
commits misconduct, as in the present case, for his personal
ends and against the interest of the bank and the depositors,
he must be dealt with iron hands and he does not deserve to
be dealt with leniently."
81. Therefore, the approach of the Court towards a bank employee
against whom charges of serious financial misconduct has been proved by
the Disciplinary Authority as well as the Appellate Authority, after a
reasoned order based on material evidence, should not be lenient and
must be dealt in a strict manner. Unless violation of principles of natural
justice, inter alia, is said to have been proved by the Petitioner causing
prejudice to the Petitioner in his defence, the Court should not interfere in
the concurrent findings by the authorities below.
SCOPE UNDER ARTICLE 226 OF THE CONSTITUTION OF
INDIA TO INTERFERE IN THE FINDINGS OF A
DISCIPLINARY PROCEEDINGS:
82. It is very much essential to look at the powers of this Court under
Article 226 of the Constitution of India to interfere in the findings of a
Disciplinary Authority which on appeal have been upheld by the
Appellate Authority. Recently, the Hon‟ble Supreme Court in State Bank
of India & Anr. v. K.S. Vishwanath, (2022) SCC OnLine SC 667, had
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an opportunity to re-iterate the literature on the subject and it was held as
follows:
"27. Recently in the case of Nand Kishore Prasad (Supra)
after considering other decisions of this Court on judicial
review and the power of the High Court in a departmental
enquiry and interference with the findings recorded in the
departmental enquiry, it is observed and held that the High
Court is not a court of appeal over the decision of the
authorities holding a departmental enquiry against a public
servant. It is further observed and held that the High Court
is concerned to determine whether the enquiry is held by an
authority competent in that behalf, and according to the
procedure prescribed in that behalf, and whether the rules
of natural justice are not violated. It is further observed that
if there is some evidence, that the authority entrusted with
the duty to hold the enquiry has accepted and which
evidence may reasonably support the conclusion that the
delinquent officer is guilty of the charge, it is not the
function of the High Court in a petition under Article 226 of
the Constitution of India to review/reappreciate the evidence
and to arrive at an independent finding on the evidence....."
83. In State of A.P. v. S Sree Rama Rao, AIR 1963 SC 1723, a three
judge bench of the Hon‟ble Supreme Court observed as follows:
"7. ... The High Court is not constituted in a proceeding
under Article 226 of the Constitution a court of appeal over
the decision of the authorities holding a departmental
enquiry against a public servant : it is concerned to
determine whether the enquiry is held by an authority
competent in that behalf, and according to the procedure
prescribed in that behalf, and whether the rules of natural
justice are not violated. Where there is some evidence,
which the authority entrusted with the duty to hold the
enquiry has accepted and which evidence may reasonably
support the conclusion that the delinquent officer is guilty of
the charge, it is not the function of the High Court in a
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petition for a writ under Article 226 to review the evidence
and to arrive at an independent finding on the evidence......"
84. In B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749, again a
three judge bench of the Hon‟ble Supreme Court held as under:
"12. Judicial review is not an appeal from a decision but a
review of the manner in which the decision is made. Power
of judicial review is meant to ensure that the individual
receives fair treatment and not to ensure that the conclusion
which the authority reaches is necessarily correct in the eye
of the court. When an inquiry is conducted on charges of
misconduct by a public servant, the Court/Tribunal is
concerned to determine whether the inquiry was held by a
competent officer or whether rules of natural justice are
complied with. Whether the findings or conclusions are
based on some evidence, the authority entrusted with the
power to hold inquiry has jurisdiction, power and authority
to reach a finding of fact or conclusion. But that finding
must be based on some evidence. Neither the technical rules
of the Evidence Act nor of proof of fact or evidence as
defined therein, apply to disciplinary proceeding. When the
authority accepts that evidence and conclusion receives
support there from, the disciplinary authority is entitled to
hold that the delinquent officer is guilty of the charge. The
Court/Tribunal in its power of judicial review does not act
as appellate authority to re-appreciate the evidence and to
arrive at its own independent findings on the evidence. The
Court/Tribunal may interfere where the authority held the
proceedings against the delinquent officer in a manner
inconsistent with the rules of natural justice or in violation
of statutory rules prescribing the mode of inquiry or where
the conclusion or finding reached by the disciplinary
authority is based on no evidence. If the conclusion or
finding be such as no reasonable person would have ever
reached, the Court/Tribunal may interfere with the
conclusion or the finding, and mould the relief so as to make
it appropriate to the facts of each case.
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13. The disciplinary authority is the sole judge of facts.
Where appeal is presented, the appellate authority has co-
extensive power to re-appreciate the evidence or the nature
of punishment. In a disciplinary inquiry, the strict proof of
legal evidence and findings on that evidence are not
relevant. Adequacy of evidence or reliability of evidence
cannot be permitted to be canvassed before the
Court/Tribunal. In Union of India v. HC Goel this Court
held at p. 728 that if the conclusion, upon consideration of
the evidence reached by the disciplinary authority, is
perverse or suffers from patent error on the face of the
record or based on no evidence at all, a writ of certiorari
could be issued."
85. In High Court of Bombay v. Shashikant S. Patil, (2000) 1 SCC
416, the Hon‟ble Supreme Court again held that:
"16. The Division Bench of the High Court seems to have
approached the case as though it was an appeal against the
order of the administrative/disciplinary authority of the
High Court. Interference with the decision of departmental
authorities can be permitted, while exercising jurisdiction
under Article 226 of the Constitution if such authority had
held proceedings in violation of the principles of natural
justice or in violation of statutory regulations prescribing
the mode of such enquiry or if the decision of the authority is
vitiated by considerations extraneous to the evidence and
merits of the case, or if the conclusion made by the
authority, on the very face of it, is wholly arbitrary or
capricious that no reasonable person could have arrived at
such a conclusion, or grounds very similar to the above. But
we cannot overlook that the departmental authority (in this
case the Disciplinary Committee of the High Court) is the
sole judge of the facts, if the enquiry has been properly
conducted. The settled legal position is that if there is some
legal evidence on which the findings can be based, then
adequacy or even reliability of that evidence is not a matter
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for canvassing before the High Court in a writ petition filed
under Article 226 of the Constitution."
86. In State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya,
(2011) 4 SCC 584, the Hon‟ble Supreme Court held as under:
"7. It is now well settled that the courts will not act as an
appellate court and reassess the evidence led in the domestic
enquiry, nor interfere on the ground that another view is
possible on the material on record. If the enquiry has been
fairly and properly held and the findings are based on
evidence, the question of adequacy of the evidence or the
reliable nature of the evidence will not be grounds for
interfering with the findings in departmental enquiries.
Therefore, courts will not interfere with findings of fact
recorded in departmental enquiries, except where such
findings are based on no evidence or where they are clearly
perverse. The test to find out perversity is to see whether a
tribunal acting reasonably could have arrived at such
conclusion or finding, on the material on record. The courts
will however interfere with the findings in disciplinary
matters, if principles of natural justice or statutory
regulations have been violated or if the order is found to be
arbitrary, capricious, mala fide or based on extraneous
considerations...."
87. In Union of India v. P Gunasekaran, (2015) 2 SCC 610, the
Hon‟ble Supreme Court delineated the parameters as to when the High
Court shall not interfere in the disciplinary proceedings:
"13. Under Articles 226/227 of the Constitution of India, the
High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the
same has been conducted in accordance with law;
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(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which
findings can be based.
(vi) correct the error of fact however grave it may appear to
be;
(vii) go into the proportionality of punishment unless it
shocks its conscience."
88. Therefore, this Court cannot act as an appellate authority over the
findings as recorded by the Disciplinary Authority and as confirmed by
the Appellate Authority. This Court cannot re-appreciate the evidence on
the basis of which the authorities below have come to a conclusion and
interfere in the findings so recorded by the authorities below unless they
are perverse or suffers from gross illegality.
CONCLUSION
89. In view of the above said discussion on facts as well as law, I do
not find any perversity or gross illegality in the orders passed by the
Disciplinary Authority as well as the Appellate Authority. Both the
authorities below have acted on the basis of material evidence on record
and have come to a reasoned reasonable conclusion after giving the
Petitioner a detailed opportunity of hearing in accordance with the
principles of natural justice. No infraction of principles of natural justice
can be said to have been proved by the Petitioner to call for the
interference by this Court.
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90. Accordingly, the instant writ petition being devoid of merits is
dismissed.
91. Pending applications, if any, also stand dismissed of.
92. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
OCTOBER 13, 2022
Dy/mg
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