ORDER
The Court
1. Petitioner, an employee of the first respondent-Cauvery Grameena Bank ('Bank' for short), a body constituted under Regional Rural Banks Act, 1976, is before this Court, inter alia questioning the legality or otherwise of the orders dated 30-7-1993 passed by the Board of Directors of the Bank in confirming the orders dated 26-3-1993 made by the disciplinary authority of the Bank, in imposing a penalty of dismissal from the services of the Bank.
2. The facts in extenso requires to be noticed. They are as follows:
The petitioner joined the services of the first respondent-Bank as a Probationary Officer on .11-7-1977 and his services were confirmed in that post with effect from 11-1-1979.
3. At this stage, I should refer to the service profile of one Sri K. Vijayappa, who was appointed as an enquiry officer by the disciplinary authority to inquire into the allegations made against the petitioner. Petitioner and Sri K. Vijayappa, joined the services of the Bank on the same day as officers in the Bank. Both of them are of the same rank and same grade and the scale of pay fixed by the Bank is also the same. The Bank has prepared and published the seniority list of officers working in the Bank by following the guidelines fixed by Government of India and norms fixed by NABARD by its Circular No. 7 (Personnel Department) for the information of branches of the Bank and the officers working therein. As could be seen from the final gradation list, the petitioner and Sri K. Vijayappa, are borne on the same scale of pay and the same grade. The seniority list also provides, the date of entry of the officers in the services of the respondent-Bank. In that column, it is shown that petitioner and Sri K. Vijayappa had joined the services of the Bank on the same day. However, in view of the ranking obtained in the recruitment test, Sri K. Vijayappa is assigned higher ranking than that of the petitioner in the seniority list.
4. The first respondent-Bank, by its official memorandum dated 31-7-1986, had promoted Sri K Vijayappa to the next promotional post ofArea/Senior Manager overlooking the claims of persons, who are seniors to him in the final gradation list. One Sri B.S. Lokesh and others, aggrieved by the promotion granted to Sri K. Vijayappa by the first respondent-Bank had questioned the official memorandum dated 31-7-1986 issued by the Bank. This Court by its order dated 10-4-1991 (B.S. Lokesh v. Chairman, Cauvery Grameena Bank and Ors.), was pleased to allow the petitions and was further pleased to quash the promotions effected by the first respondent-Bank, promoting Sri K. Vijayappa and others. By virtue of the orders made by this Court, petitioner and Sri K Vijayappa came to be borne on the same scale of pay and rank. In the writ petition, it is asserted that the petitioner and Sri K. Vijayappa were competitors to the same promotional post. The said Sri K. Vijayappa, when he was appointed as an enquiry officer, by an order made by the disciplinary authority to enquire into the allegations made against the petitioner, he was only an officer of the same rank as that of the petitioner and he was not Senior Manager as stated in the communication dated 9-5-1991, while appointing the enquiry officer by the disciplinary authority.
5. The enquiry officer after his appointment as such, in the right earnest, had commenced enquiry proceedings against the petitioner into the charges alleged in the charge memo. During the period when enquiry proceedings were in progress, the consideration of officers for promotion to the next promotional post of Area Managers/Senior Managers was also being taken up by the first respondent-Bank. To the said promotional post, petitioner and the enquiry officer were competitors in the sense, by virtue of their seniority in the gradation list, both of them were in the zone of consideration for promotional post. The first respondent-Bank, on the recommendation made by the Departmental Promotion Committee by its order dated 1-8-1992, promoted Sri K. Vijayappa, the enquiry officer to the post of Senior Manager. After such promotion, Sri K. Vijayappa, apprehending that the petitioner herein may question order of his promotion, by way of a writ petition, was before this Court by filing a caveat petition under Section 148-A of the Code of Civil Procedure read with Article 226 of the Constitution, inter alia requesting this Court to issue notices to the caveators before considering the request that may be made by the petitioner for grant of interim prayer. Curiously, Sri K Vijayappa, when he files the caveat petition, does not make any other officers, who are not promoted to the next promotional post as parties, though they were qualified and eligible for promotion in view of their seniority in the final gradation list prepared and published by the first respondent-Bank. I will refer to the possible inference that could be drawn in this regard a little later.
6. Now the other details of the case.-
When the petitioner was working as a Branch Manager, at Thumbasoge Branch of the first respondent-Bank, he was kept under suspension by an order dated 21-5-1990, by the disciplinary authority of the Bank.Even at this stage, the Bank observes in its order of suspension, that the petitioner has committed serious irregularities as Manager of Thumbasoge Branch and that pending detailed investigation into the whole matter, the Bank has taken a serious view of the irregularities reported against the petitioner and as such, he is placed under suspension with immediate effect.
7. While petitioner was under suspension, he was served with a charge memo dated 26-2-1991, alleging nearly 14 lapses said to have been committed by him while he was working as a Manager at Thumbasoge Branch of the first respondent-Bank. In the charge memo, it was stated that the petitioner had committed serious irregularities, which would come within the meaning of the expression 'misconduct' and also would be in violation of the provisions of Regulations 17 and 19 of the Regulations. The charge memo did not contain the statement of imputation, the list of witnesses and the documents on which the disciplinary authority had prepared the charge memo and also the materials and documents on which they would be relying on in support of the charges during enquiry proceedings. After receipt of the charge memo, petitioner had made a request to the disciplinary authority by his letter dated 1-4-1991, to furnish him the statement of witnesses recorded during preliminary investigation and also the documents on which they would be relying on in the enquiry proceedings or in the alternative to facilitate him to look into the records containing the statement of witnesses recorded during preliminary investigation and the documents in support of the accusations made against him. It is stated in the petition that the request so made did not yield any results.
8. The disciplinary authority of the first respondent-Bank, even before petitioner could file his defence statement and his explanation to the allegations made in the charge memo, by his order dated 9-5-1991 appointed Sri K. Vijayappa as the enquiry officer to enquire into the allegations contained in the charge memo.
9. Pursuant to the appointment so made, the enquiry officer commenced the enquiry proceedings on 1-7-1991. During the preliminaries, the delinquent officer, had denied the allegations contained in the charge memo and further had made a request to the enquiry officer to permit him to have the assistance of a legal practitioner, in view of serious charges and voluminous evidence that is likely to be led in during the enquiry proceedings and the punishment that may be imposed would affect his right to life. The delinquent officer also had brought to the notice of the enquiry officer that under similar circumstances, in the case of one Sri Janardana Naidu, the Bank had permitted the aforesaid officer to have the assistance of a legal practitioner to defend him on the enquiry proceedings. This request of the petitioner came to be rejected by the enquiry officer without assigning any reasons whatsoever, but he was careful enough to accept nearly 345 exhibits produced by the presenting officer knowing fully well that the copies of those exhibits had not been furnished to the delinquent officer before the commencement of the enquiry proceedings.
10. The second sitting of the enquiry officer was on 19-7-1991. Even on that day, the request of the petitioner to have the assistance of legal practitioner came to be rejected by the enquiry officer by his most laconic order, but did not forget to take copies of 47 ledger sheets produced by the presenting officer in support of the allegations contained in the charge memo as management exhibits. The presenting officer, knowing the mind of the enquiry officer, introduces nearly 39 documents through one witness Sri I. Janardhana Prabhu, Assistant Divisional Manager, United Insurance Company, who was not even cited as a witness in the list of witnesses filed on the previous date of enquiry proceedings. Though a request was made by the delinquent officer to permit him to cross-examine the witness, the same was refused and rejected merely because, the presenting officer objected to the request made by the delinquent officer.
11. In the enquiry proceedings, management examined one Sri S.R. Ranganath, as its third witness. Sri Ranganath, is senior to the enquiry officer, since his name finds a place at Sl. No. 1 in the seniority list. The said witness had conducted the preliminary investigation in the matter and had submitted a report adverse to the interest of the petitioner.
12. The delinquent officer on the next date of sitting namely, on 18-11-1991, had made representation before the enquiry officer making allegations of bias in the enquiry proceedings. In that, it was stated that as an enquiry officer, he is acting adverse to his interest with a view to eliminate him from considering his case for promotion to the next promotional post to which both of them are eligible, in view of the orders made by the High Court in the petition filed by one Sri B.S. Lokesh, a Senior Officer working in the Bank. Filing of this representation is denied by respondents and I will refer to this disputed question, while considering the legal issues canvassed by the learned Counsels for the parties to the lis.
13. Petitioner asserts that the enquiry officer without affording a reasonable opportunity to file his defence statement and without affording a reasonable opportunity to cross-examine the management witnesses and without furnishing the copies of the documents marked during the course of enquiry proceedings, has come to the conclusion that the petitioner is guilty of all the charges alleged in the charge memo by the disciplinary authority, except charge No. 10, which the management did not press during the proceedings.
14. After completion of the enquiry proceedings, the enquiry officer submits his report and the findings along with the records of the proceedings to the disciplinary authority. The disciplinary authority after concurring with the findings of the enquiry officer, proceeds to pass an order dated 26-3-1993, imposing a punishment of dismissal from service, from the services of the first respondent-Bank, after issuing a show-cause notice dated 27-10-1992.
15. Petitioner, dissatisfied with the orders made by the disciplinary authority, as provided under the Service Regulations of the Bank, had submitted an appeal before the Board of Directors of the Bank. In theappeal memorandum so filed, petitioner had raised various contentions, including the irregularities committed by the enquiry officer during the enquiry proceedings and the total non-application of mind by the disciplinary authority while imposing a major penalty. The Appellate Authority, as usual, mechanically rejects the appeal and confirms the orders made by the disciplinary authority by its order dated 30-7-1993. It is the correctness or otherwise of these two orders which are the subject-matters of this writ petition, by an aggrieved employee/officer of the first respondent-Bank.
16. The service conditions of the petitioner in the first respondent-Cauvery Grameena Bank is governed by the provisions of Cauvery Grameena Bank Staff (Service) Regulations, 1980 (hereinafter for the sake of brevity referred to as 'Regulations'), which are statutory regulations made by the Board of Directors of the first respondent-Bank, after consultation with the State Bank of Mysore, which is the sponsored Bank, Reserve Bank of India, and with the previous sanction of the Central Government in exercise of its powers conferred by Section 30 of the Regional Rural Banks Act, 1976.
17. The Staff Service Regulations of the first respondent-Bank, apart from others, provides for the penalties that could be imposed on an officer, who commits breach of the regulations or who is guilty of any act of misconduct. Regulation 30(2) of the Regulations provides that, no officer shall be subjected to any penalty, other than reprimand, except by an order in writing signed by the Chairman and no such order shall be passed without the charge being formulated in writing and given to the said officer, so that he shall have reasonable opportunity to answer them in writing or in person as he prefers. Regulation 30(3) of the Regulations provides that the enquiry under the regulation and the procedure, with the exception of the final order may be delegated in case the person against whom the proceedings are taken is an officer to any officer who is senior to such officer and in the case of an employee to any officer. The Sub-regulation also provides that for the purpose of an enquiry under Regulation 30 of the Regulations, the officer/employee may not engage the services of the legal practitioner.
18. Sub-regulation (3) of Regulation 30 of the Regulations had come up for interpretation before this Court at the instance of an aggrieved employee/officer. This Court while construing those provisions was pleased to notice that the expression used in the Sub-regulation is only 'may' and therefore, the disciplinary authority depending on the facts and circumstances of each case may exercise his discretion and permit the delinquent employee/officer to have the assistance of the legal practitioner.
19. The observations made by a learned Single Judge of this Court was affirmed by a Division Bench of this Court in W.A. No. 1616 of 1996, dated 7-8-1996. The order made by this Court has become final and binding on the officers/employees and the respondent-Bank.
20. The learned Counsel, Sri P.S. Rajagopal contends that the disciplinary authority having observed, even while keeping the petitionerunder suspension that the delinquent officer had committed serious irregularities as Manager of Thumbasoge Branch and the Bank having taken a very serious view of the same, and since very serious accusations were made alleging fraud, cheating, misrepresentation, falsification of accounts, etc., and since the charges were too many and records were voluminous, the enquiry officer/disciplinary authority should have acceded to the request made by the delinquent officer to have the assistance of legal practitioner to defend him in the enquiry proceedings. Since the request made by the delinquent officer is rejected by the enquiry officer by his laconic order without assigning any reason whatsoever, the entire enquiry proceedings are vitiated and based on the findings of such irregular and illegal proceedings, the disciplinary authority could not have imposed any punishment much less a major punishment of dismissal from service. In aid of his submission, the learned Counsel relies on the observations made by Apex Court in the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghaven-dranath Nadkarni and Ors., in the case of C.L. Subramaniam v. The Collector of Customs, Cochin, and the observations made by this Court in the case of G.V. Aswathanarayana v. Central Bank of India, Bombay and Ors., and in the case of G.R. Venkateshwara Reddy v. Karnataka State Road Transport Corporation, Bangalore and Ors.
21. The legal issues canvassed by the learned Counsel for petitioner requires to be answered on the touchstone of prejudice as observed by the Apex Court in the case of State Bank of Patiala and Ors. v. S.K. Sharma. The Apex Court in the said decision summarised the principles, apart from others as under:
'In the case of violation of a procedural provision, the 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. The complaint of violation of procedural provision should be examined from the point of prejudice, namely, 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, the appropriate order has to be made to repair and remedy the prejudice including setting aside the enquiry or the order of punishment'.
22. In the present case, the enquiry officer is only an officer working in the first respondent-Bank. He is not a legally trained person nor washe a legal practitioner at any point of time. Then we come to the presenting officer. It is not the case of the petitioner that the presenting officer is a legally trained person and that he was pitted against him to defend himself in the enquiry proceedings. In the enquiry proceedings, the delinquent officer had the assistance of able defence representative, who has not just cross-examined the witnesses of the management, but I may use the expression he has 'grilled' them for days together. Apart from this, the charges are too many but at the same time, they are more or less similar. In the sense, what the disciplinary authority alleges against the petitioner is that there was no borrower, no live stock and in spite of it, the delinquent officer with the help of fabricated documents had claimed insurance amount and the same has been honoured by the insurance company and the amounts so realised had been paid to a fictitious borrower. The allegations in my opinion, are not that complicated which the petitioner cannot defend himself as an officer of a Bank with the assistance of defence representative. Even otherwise, the voluminous evidence that has come on record would clearly demonstrate that the petitioner was in no way prejudiced in the enquiry proceedings without the assistance of a legal practitioner. In view of this, in my opinion, the first legal issue canvassed by learned Counsel for petitioner, has no merit and accordingly, it is rejected.
23. That apart, the Sub-regulation (3) of Regulation 30 of Staff Service Regulations of the Bank, only says that for the purpose of enquiry under Regulation 30, the officer/employee for the purpose of the enquiry may not engage the services of legal practitioner to defend him in the domestic enquiry proceedings. The Regulation uses the expression 'may' and not 'shall'. The context in which expression 'may' is used cannot be read as 'shall' and therefore, the regulation making authority gives certain discretion to the enquiring authority and the disciplinary authority, either to permit or reject the request of the delinquent officer to engage the services of the legal practitioner to defend him in the enquiry proceedings. The discretion so vested requires to be exercised reasonably and with due care. In the present case, the enquiry officer without straining himself much, proceeds to reject the request made by the delinquent officer for permission to engage the services of legal practitioner. He could have done it better by assigning appropriate reasons, even while rejecting the request of the petitioner. Since that has not been done, that by itself would not vitiate the enquiry proceedings. As I have already stated, the rejection of the request made by the delinquent officer has not caused any prejudice to him whatsoever.
24. The learned Counsel for petitioner nextly contends that the enquiry officer appointed in the instant case is of the same rank, grade and drawing the same scale of pay and therefore, the appointment so made is illegal and in contravention of staff regulations. In support of his contention, the learned Counsel invites my attention to the language employed in Sub-regulation (3) of Regulation 30 of the Regulations.
25. The regulation provides that the disciplinary authority may itself inquire into the truth of any imputation of misconduct or it may appointany officer, who is senior to such officer against whom the imputation of misconduct is alleged. But the final decision on the evidence collected by the officer appointed to hold enquiry is exclusively entrusted in the disciplinary authority in the case of the officers of the Bank.
26. This legal issue raised by learned Counsel for petitioner should not detain me for long. In Service Law, it is said, it is desirable that in domestic enquiry proceedings, a senior officer, who is senior to such officer against whom proceedings are taken is appointed as an enquiry officer, and at the same time, it is also settled principle of law, the fact that the enquiry officer was not of a higher grade would not be material and would not vitiate the entire enquiry proceedings, if there was no injustice caused to the delinquent officer. Whether any injustice was caused to the delinquent officer is a question of fact, which requires to be determined and decided on the facts and circumstances of each case and therefore, there cannot be any universal principle that the enquiry officer appointed must always be of a higher grade to such officer against whom the domestic enquiry proceedings are taken up.
27. The learned Counsel for petitioner nextly contends that even before the delinquent officer could file his defence statement, the disciplinary authority of the respondent-Bank had appointed an enquiry officer to enquire into the allegations contained in the charge memo. This submission of the learned Counsel requires to be answered on the touchstone, whether any prejudice is caused to the delinquent officer by such appointment. If the answer is in the negative, then the legal issue requires to be rejected on the ground, it has no merit.
28. Petitioner in the writ petition, except asserting that the respondent-Bank has rushed through the enquiry by appointing an enquiry officer, without providing him an opportunity to submit his defence statement, does not allege any prejudice that is caused to him by such appointment of the enquiry officer by the disciplinary authority. In the absence of assertion and proof of prejudice, the contention canvassed by learned Counsel for petitioner cannot be accepted. Even otherwise also, in the present case, the charge-sheet was issued and served on the delinquent officer was dated 26-2-1991. In that, delinquent officer was directed to file his defence statement, if any. within 15 days from the date of the receipt of the charge memo. Petitioner for reasons best known to him did not choose to file his defence statement or the explanation. The disciplinary authority, after waiting for three months, it is only by an order dated 9-5-1991, appointed the enquiry officer to enquire into the allegations contained in the charge memo. Therefore, in my view, petitioner's learned Counsel is not justified in suggesting that the respondent-Bank, without providing an opportunity to the petitioner to submit his defence statement, had appointed an enquiry officer to rush through the enquiry proceedings.
29. The enquiry proceedings nextly sought to be challenged on the ground that the enquiry officer was biased and therefore, the entire decision making process is vitiated. While elaborating the contention that the enquiring authority failed to act impartially, the learned Coun-sel with reference to the pleadings, oral and documentary evidence that are available on record, cites the following instances:
Firstly, the learned Counsel states the frictional relationship of the enquiry officer with the charge-sheeted officer.
30. The admitted facts in this regard are, petitioner and the enquiry officer, Sri K. Vijayappa were appointed on the same day as officers in the respondent-Bank. Their grade and the pay scale was also the same. Sri K. Vijayappa was ranked senior to the petitioner only on the basis of ranking obtained in the recruitment test, and this is also the basis for assigning him an higher ranking in the seniority list of officers prepared and circulated by the Bank on 31-1-1986.
31. Promotions in the respondent-Bank for promotional posts of Area Managers/Senior Managers is on the basis of seniority-cum-merit. Petitioner, Sri K. Vijayappa and few other officers were placed within the zone of consideration. The respondent-Bank overlooking the claims of some of the senior officers, had promoted Sri K. Vijayappa to the next promotional post of Area Manager with effect from 31-7-1986. His promotion was questioned by one Sri B.S. Lokesh and others before this Court. This Court by its order dated 10-4-1991 (B.S. Lokesh's case, supra) had quashed the promotions given to Sri K. Vijayappa.
32. It is further not in dispute nor it can be disputed, that petitioner was kept under suspension in contemplation of domestic enquiry proceedings against him by an order dated 21-5-1990 made by the first respondent-Bank. The disciplinary authority of the Bank by an order made on 9-5-1991, appointed Sri K. Vijayappa, as an enquiry officer. During the pendency of the enquiry proceedings, Sri K. Vyayappa was promoted as Senior Manager, by an order made by the first respondent-Bank dated 1-8-1992. Immediately, i.e., on 4-8-1992, Sri K. Vijayappa, the enquiry officer files a Caveat petition before this Court, making the delinquent officer herein as the only party to the Caveat proceedings. In the said Caveat petition, Caveator specifically urges that the respondent therein, who is not promoted may file a writ petition challenging the validity of promotion made by the first respondent-Bank and he may also seek stay of the promotion so made.
33. Keeping in view this undisputed factual background, the learned Counsel for petitioner asserts that the enquiry officer was very much interested in establishing the charge against the petitioner and the proceedings was unlikely to be impartial.
34. From the aforesaid factual matrix, one thing is clear that the enquiry officer, Sri K. Vijayappa was under a bona fide impression that his career interest was in conflict with that of the petitioner. He was also of the impression that, if anybody questioned the legality or otherwise of his promotion to the next promotional post of Senior Manager effected by the Bank, it could only be the petitioner whose case is being tried by him. This would clearly demonstrate that he was interested in the outcome of the enquiry proceedings. The bias may arise by reason of predetermined or committed mind or where the decision maker is predetermined to give a finding of guilt, which may directly or indirectly help him in his career interest. Bias need not be or for that matter cannot always be proved, it shall be inferred, if from the circumstances it is found that the enquiry officer cannot or is not likely to maintain impartiality. The test of likelihood of bias which has been applied in a number of cases is based on reasonable apprehension of a reasonable man fully cognizant of the facts. The Courts have quashed the proceedings on the strength of reasonable suspicion of the party aggrieved, without any finding that a real likelihood of bias in fact existed, for the reason that the test of real likelihood and reasonable suspicion are really inconsistent with each other.
35. In re S. Partkasarathi v. State of Andhra Pradesh, while considering the concept of bias of the enquiry officer, the Supreme Court was pleased to observe:
'If a right minded person would think that there is real likelihood of bias on the part of the inquiry officer, he must not conduct the enquiry. Nevertheless, there must be a real likelihood of bias. Surmises and conjectures would not be enough. There must exist circumstances from which a reasonable man would think it probable or likely that the inquiry officer will be prejudiced against the delinquent. The Court will not enquire, whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision'.
36. In re Manak Lal v. Dr. Prem Chand Singhvi and Ors., the Apex Court was pleased to state that it is the essence of judicial decisions and judicial administration that Judges should be able to act impartially, objectively and without any bias. In such cases, the test is not whether in fact bias has affected the judgment, but the test is and must be whether a litigant could reasonably apprehend that bias attributable to a member if the Tribunal might have operated against him in the final decision of the Tribunal.
37. The Supreme Court in the case of Andhra Pradesh State Road Transport Corporation, Hyderabad and Another v. Sri Satyanarayana Transports (Private) Limited, Guntur and Ors., was pleased to observe:
'It is an elementary rule of natural justice that a person, who tries a cause should be able to deal with the matter before him objectively, fairly and impartially. As has been observed in the Jewitt's Dictionary of English Law, 'anything which tends or may be regarded as tending to cause such a person to decide a case otherwise than evidence must be held to be biased'. If a person has a pecuniary interest in the case brought before him, that is an obvi-ous case of bias which disqualifies him to try the case. If a person is hostile to a party whose cause he is called upon to try, that again would introduce the infirmity of bias and would disqualify him from trying the cause. In dealing with the cases of bias, it is necessary to remember that no one can act in a judicial capacity, if his previous conduct gives ground for believing that he cannot act with an open mind. The broad principles which is universally accepted is that a person trying a cause even in a quasi-judicial proceedings, must not only act fairly, but must be able to act above suspicion of unfairness'.
(emphasis supplied)
38. The rule that bias vitiates the findings of enquiry proceedings is a rule of natural justice. An enquiry officer if he is biased in any manner should not be entrusted with the enquiry. It is time and again repeatedly said that justice should not only be done but it should appear to have been done. But this proposition cannot be so broadly put, so as to give an opportunity to the litigants to fancy for themselves a supposed reason that they will not have a fair justice before the enquiry officer and then to make a ground for setting aside the enquiry proceedings. There must be a reasonable basis for apprehending that justice will not be done by the enquiry officer. In the present case, bias and malice in law would arise for the reason, the enquiry officer during the pendency of the enquiry proceedings is promoted to the next promotional post of Senior Manager. Apprehending the delinquent officer may come in the way of his promotion, immediately rushes to this Court with a specific plea that the petitioner may question his promotion by filing a writ petition, and it is that enquiry officer who conducts the enquiry proceedings and finds petitioner guilty of the charges alleged in the charge memo. This action of the enquiry officer is sufficient to prove bias and malice in-law and therefore, the proceedings are vitiated.
39. The learned Counsel for the petitioner nextly contends that one of witnesses examined by the respondent-Bank in support of the allegations made in the charge memo is one Sri S.R. Ranganath, who is senior to the enquiry officer and therefore, the enquiry officer was bound to believe the version of his senior and therefore, the enquiry proceedings are vitiated. The assertion so made is denied by respondents and their learned Counsel Sri Ashok B. Patil.
40. In the enquiry proceedings, the management had examined Sri Ranganath as its main witness. It is not in dispute that the respondent-Bank in the seniority list prepared and circulated by it has placed him at Sl. No. 1 in the seniority list. By virtue of the seniority list, he is also senior to the enquiry officer. He had conducted preliminary investigation into the matter and had submitted a report that petitioner is guilty of several misconduct and that report is the basis of issuing the charge memo.
41. Sri S.R. Ranganath, who is examined as P.W. 3 in the enquiry proceedings is higher in rank than the enquiry officer. In a situation of this nature, it is reasonable to think that the mind of the enquiry officer,who is lower in the seniority list is prone to be influenced, when his senior gives evidence against the delinquent officer. Therefore, the enquiry officer cannot be said to have acted independently, however clean his conscience may be and the conclusion is inescapable that there is always likelihood of bias. Though there is no evidence on record that the enquiry officer was influenced by the evidence of his senior in the enquiry proceedings, to come to a positive conclusion that he was biased, yet the apprehension cannot be ruled out as observed by the Apex Court that 'justice should not only be done but it must also be seen to have been done'. Therefore, the likelihood of bias cannot be ruled out and the enquiry is vitiated by probable bias.
42. The learned Counsel for the petitioner further contends that in spite of representation filed by the delinquent officer alleging bias, the enquiry officer continued with the enquiry proceedings to reach premeditated conclusion. Therefore, the enquiry proceedings are vitiated.
43. Petitioner claims that during enquiry proceedings, he had made a representation dated 18-11-1991 before the enquiry officer, alleging that he is causing grave prejudice to his interest by conducting the enquiry in a biased manner. The respondents in their statement of objections filed on this aspect of the matter only contend that in the enquiry proceedings, there is nothing to support the allegation of bias against the enquiry officer and in fact petitioner not even raised such objection as evident from the proceedings dated 18-11-1991 referred to by the petitioner.
44. In the enquiry proceedings dated 18-11-1991, there is a note made by the enquiry officer with regard to filing of a representation by the defence representative. The note reads as under:
'D.R.: I have to make a representation to your good office'.
45. The enquiry officer strangely does not elaborate the contents of the representation. According to petitioner and his learned Counsel, the representation that was made on 18-11-1991 was with regard to the allegation of bias against the enquiry officer. Petitioner has produced a copy of the representation said to have been made by him as one of the annexures along with the writ petition papers. Per contra, Sri Ashok B. Patil, learned Counsel for respondent-Bank produces before me a copy of the letter dated 18-11-1991 said to have been sent by the petitioner and his defence representative, addressed to the Chairman of the Bank and received by the Bank on 23-11-1991. In the said communication, they only complain that they have not received permission from him to avail the services of Sri K. Krishnappa, and Sri Nagaraju as their defence witnesses and therefore they had to plead before the enquiry officer to defer the enquiry proceedings for a few days. In the letter, they further state that they have pleaded with the enquiry officer to permit them to produce 'their witnesses after completion of the presentation of all the charges'. In support of their request they enclose 'one sheet' of the proceedings of the enquiry officer, namely, page No. 606. Obviously, this letter must have been written after completion of the day's proceedings on 18-11-1991, the reason being they enclose 'one sheet' of the enquiry proceedings along with their letter dated 18-11-1991. That means, what the defence representative filed on 18-11-1991 before the inquiry officer is not the one which the respondents have produced before the Court at the time of hearing of the petition. The only inference that could be drawn is that the respondents are trying to hide the document which the defence representative had produced before the enquiry officer during the enquiry proceedings on 18-11-1991. In view of that, necessarily, I have to accept the document which the petitioner has produced before this Court. The request made in the said document is as under:
'Date: 18-11-1991
Thumbasoge
From
V.B. Dhanaraju,
Officer,
Cauvery Grameena Bank,
Thumbasoge Branch,
H.D. Kote Taluk.
To
Sri K. Vijayappa,
Enquiry Officer,
Cauvery Grameena Bank,
Thumbasoge Branch,
H.D. Kote Taluk.
Through Sri Mahadevu, Defence Representative.
Dear Sir,
Subject: Representation -- Enquiry proceedings.
I regret to inform you that you are conducting the enquiry in a biased manner, favouring the P.O. with a view to cause injury to myself, since yourself and myself have joined the Bank together on 11-7-1977. You are suppressing my interest with a view to eliminate me from the promotion to the post of senior manager/area manager to which both of us are eligible in view of your promotion stand quashed by the Hon'ble High Court of Kar-nataka. So only you are giving biased rulings against me. You have gone to the extent of disallowing the cross-examination of P.W. 1, contrary to the letter of our Hon'ble Chairman. You are strangely allowing the Defence Representative to cross-examine the management witnesses. Despite my objection you have allowed Sri S.R. Ranganath who is facing criminal trial to depose in this enquiry as P.W. 3 without verifying his credentials. Hence, I request you not to abuse your position as E.O. Please do the needful.
Yours faithfully
sd/-
(V.B. Dhanaraju)'
46. In the representation dated 18-11-1991, petitioner alleges that the enquiry officer is causing grave prejudice to the interest of the petitioner by conducting the enquiry proceedings in a biased manner. In my view, when a representation is given alleging bias against the inquiry officer, he ought to have stayed the proceedings and awaited the decision of the disciplinary authority before continuing with the enquiry. The enquiry officer without bothering about the fairness and justice, proceeds with the enquiry proceedings to reach premeditated conclusion of guilt of the petitioner of the allegations made in the charge memo. This is another example of bias of the inquiry officer.
47. The learned Counsel for the petitioner nextly contends that in spite of repeated request, the delinquent officer was not afforded a reasonable opportunity to cross-examine one of the management witnesses and therefore, proceedings are vitiated. In support of this contention, the learned Counsel invites my attention to the evidence recorded by the enquiry officer of Sri Janardhana Prabhu, Assistant Divisional Manager, United Insurance Company Limited.
48. Firstly, Sri Janardhana Prabhu was not listed as one of the witnesses in the enquiry proceedings and secondly, none of the documents which were marked through him were listed as documents, which the management would be relying on in support of accusations made in the charge memo. The marking of any documents through this witness was firstly objected to by the delinquent officer and secondly, a request was made to permit them to cross-examine the witness. However, on the command of the presenting officer, the enquiry officer holds that the petitioner is not entitled to cross-examine the witness, and thereafter proceeded to mark those documents in support of the charge. In my view, this procedure adopted by the enquiry officer is in violation of principles of natural justice. In a departmental enquiry proceedings, what is required is fair play all around. It is true that strict observance of rules of evidence as prescribed in the Evidence Act, is not required, but finding a person guilty on the basis of evidence behind his back is flagrant violation of principles of natural justice. In such a case, the accused is denied the right of proving the falsity of such evidence by cross-examination of the persons, who have given the evidence against him. The facts and circumstances narrated by me would give a clear impression to any reasonable person that all was not well with the enquiry officer when he conducted the present enquiry proceedings. This incident is another instance of bias. In my opinion, it is not necessary that bias must be actually present in the enquiring authority. What is necessary to be seen in such cases is from the angle of an employee/officer as to whether on the facts and circumstances of the case, it could be said that it was possible for him to have developed a reasonable apprehension of bias in the enquiring authority on him. The test is whether a man of reasonable prudence, if placed in simitar circumstances would have though the inquiring authority be biased against him. However, Sri Ashok B. Patil, learned Counsel for the first respondent-Bank contends that assuming that delinquent officer had filed such representation, expressing his fear of bias against the inquiry officer and if hehad real apprehension in that regard, he should have moved the superior authority, if not at least this Court requesting to change the inquiry officer. The learned Counsel further states that the voluminous evidence that has been led in during the enquiry proceedings would clearly demonstrate that the delinquent officer had participated in the enquiry proceedings and cross-examined the witnesses to his utmost ability and therefore, considering these and other facts, it cannot be said that the inquiry officer had any bias and in any event, there is no reason to assume that the petitioner was prejudiced in any manner whatsoever.
49. The submission of the learned Counsel, though looks attractive, on a deeper consideration of the matter, to me it appears, has no merit whatsoever. Firstly, petitioner had approached this Court earlier aggrieved by an order of suspension passed by the first respondent-Bank, but was not successful in getting any positive results. That might have prevented the petitioner to come before this Court, questioning the attitude of the inquiry officer. Secondly, if he had refused to participate in the enquiry proceedings, he would have suffered ex parte enquiry proceedings and lastly, the test of bias cannot be measured and fathomed depending on the voluminous evidence on record. The test is as observed by Apex Court in S. Parthasarathi's case, supra, that 'the test of bias is its real likelihood and not that bias needs to be proved. The standard is that of a reasonable person and, wherever a reasonable man could apprehend or suspect that the enquiry officer was proceeding with bias, the enquiry would be vitiated'.
50. The learned Counsel for petitioner then strongly contends that the entire enquiry proceedings in the present case should be characterised as one of lacking of fairness. In support of this contention, the learned Counsel has brought to my notice several infirmities in the enquiry proceedings such as non-supply of the copies of the documents marked in the enquiry proceedings before commencement of recording of the evidence of management witnesses, not affording a reasonable opportunity to cross-examine one of the management witnesses, the inquiry officer being tutored and commanded by the presenting officer at all stages of enquiry proceedings, not giving sufficient opportunity to introduce defence witnesses, the presenting officer deciding the relevancy of the documents sought for by the petitioner instead of enquiry officer, the enquiry officer permitting the presenting officer to introduce the documents of their choice without following any norms and permitting the withdrawal of the documents from the enquiry proceedings at their own whims and fancies, etc. These issues, in my view, pales into insignificance, since I have come to the conclusion that the enquiry officer was biased and therefore, decision making process is vitiated. The disciplinary authority, in my view, should have noticed all these aspects of the matter before concurring with the findings of the enquiry officer and before imposing the major punishment of dismissal from service.
51. Petitioner in the memorandum of appeal filed by him before the Board of Directors of the Bank takes up all the contentions, which I have referred to in my order. But the Board, as usual, without adverting tothe important issues raised in the memorandum of appeal, rejects the appeal and confirms the orders made by the disciplinary authority. Therefore, the order made by the Appellate Authority also cannot be sustained.
52. In the result, writ petition is allowed. Rule made absolute . The impugned orders made by the disciplinary authority dated 26-3-1993 and the Appellate Authority dated 30-7-1993 are set aside. A direction is issued to the first respondent-Bank to reinstate the petitioner into service. Insofar as the monetary and service benefits payable to the petitioner is concerned, the first respondent-Bank is directed to consider the same keeping in view the observations made by the Apex Court in the case of Managing Director, E.C.I. Limited, Hyderabad and Others v. B. Karunakar and Ors.. Liberty is also reserved to the first respondent-Bank to proceed with the enquiry proceedings, if they so desire, from the stage the defects are noticed by this Court. Ordered accordingly.