Ghulam Mohammed, J.
1. Since these two writ appeals arise out of the order dated 02.05.2003 passed by this Court in W.P. No. 5925 of 1997, filed seeking to set aside the orders in DPD Nos. 1121, 135 and 224, dated 28.02.1996, 10.05.1995 and 13.06.1994 respectively, they are being disposed of by this common judgment.
2. W.A. No. 1663 of 2003 is filed by the respondent-State Bank of Hyderabad in the writ petition and W.A. No. 439 of 2004 is filed by the writ petitioner-Ahmed Mohinuddin.
3. For the sake of convenience, the parties hereinafter referred to as they were arrayed in the writ petition.
4. The facts stated are:
The petitioner, while working as Manager, Grade-II, in the respondent Bank, was transferred from Bidar to Kamalanagar Branch and joined duty in July, 1975 and to undergo training at Trivendrum, he was relieved from the duty on 16.09.1976. While so, based on the complaint, dated 17.09.1976, given by a customer, namely, Bandappa Kalappa Gandge, of Kamalanagar Branch, the Deputy General Manager (Operations) vide letter, dated 05.10.1976, called upon the petitioner to show cause and submit his comments on the said complaint. It is stated that thereafter, the petitioner was placed under suspension vide order dated 09.10.1976 and charge sheeted on eight counts vide memo dated 08.12.1976. He submitted his explanation vide letter dated 24.01.1977. He stated that the respondent Bank, without conducting any enquiry, issued notice dated 30.04.1977 to show cause as to why he should not be reverted. Questioning the same, he filed W.P. No. 526 of 1978 and this Court allowed the same vide order, dated 08.08.1978, directing the respondents to complete the enquiry, within a period of two months from the date of receipt of a copy of the order. Not satisfied with the said order, the petitioner filed W.A. No. 461 of 1978 and the Division Bench of this Court disposed of the same vide judgment, dated 11.07.1979 confirming the order dated 08.08.1978 and directed the respondents to complete the enquiry and pass appropriate orders after considering the reply filed by the petitioner. He further stated that the respondent Bank vide order dated 03.09.1982, imposed the punishment of discharge from the services of the Bank by treating the period he was under suspension as not on duty and without adjusting the subsistence allowance/remuneration payable to him. Challenging the same, the petitioner filed W.P. No. 6754 of 1982, wherein this Court on perusing the material available on record, allowed the same by its order, dated 14.02.1983, and quashed the suspension order dated 03.09.1982 directing the respondent Bank to conduct the enquiry on the basis of the show cause notice dated 30.04.1977. However, aggrieved by the direction given by the learned Single Judge to the respondent Bank to conduct enquiry against the petitioner, the petitioner preferred W.A. No. 331 of 1983, which was dismissed on 14.06.1984. Consequently, an enquiry was conducted and the Enquiry Officer submitted his report dated 22.06.1989, based on which, the third respondent, by order dated 13.02.1991, communicated to the petitioner the decision dated 07.12.1990 of the Board of Directors of the respondent Bank imposing the punishment of placing him at the start of the basic pay applicable to the Officers of JMGS-I Cadre i.e., at Rs. 2,100/-, thereby the basic pay of the petitioner is reduced from Rs. 3,180/- by nine stages, and debarring his promotional chances for a period of 5 years from the date of reporting back to duty and recovery of Rs. 550/- paid by the Bank to Bandappa Kalappa Gandge. Further, the period of suspension of the petitioner was confined to the subsistence allowance already received by him. Questioning the said order, the petitioner filed W.P. No. 3129 of 1991, wherein this Court by order, dated 22.03.1994, set aside the punishment imposed on him and directed the first respondent to commence the enquiry from the stage of affording an opportunity to the petitioner to submit reply to the report of the enquiry officer to the disciplinary authority and complete the same in accordance with law. This Court further directed the parties to maintain status quo as on the date of the order for a period of four months and in case, the enquiry is not completed within the said period, the petitioner should be paid the salary, which he was drawing prior to the order suspending him from service pending enquiry. The petitioner submitted his explanation to the second respondent on 16.04.1994. Thereafter, the third respondent, by its order, dated 13.06.1994, imposed on the petitioner the same penalty as was imposed by him by the decision of the Board of Directors of the Bank, dated 07.12.1990 and communicated to him by the order of the Managing Director, dated 13.02.1991. Aggrieved by the same, he preferred an appeal before the second respondent on 27.07.1994. It is further stated that the third respondent, by his communication dated 16.02.1995, informed the petitioner that the appeal preferred by him dated 27.07.1994 and the entire record of disciplinary proceedings initiated against him together with the findings of the Inquiring Authority and his submissions thereto, had been remitted back to the third respondent for furnishing the reasons to him (the petitioner) on account of his differing with the findings of the inquiring authority and therefore, the petitioner was called upon to submit his comments thereon, within fifteen days from that date. As the petitioner failed to furnish his comments, the appellate authority, by the order, dated 10.05.1995 rejected his appeal dated 27.07.1994 concurring with the findings and the punishment imposed by the disciplinary authority cum appointing authority. Dissatisfied with the same, the petitioner preferred a review petition on 03.07.1995 to the second respondent and the same was rejected vide communication dated 28.02.1996. Hence, the petitioner filed the present Writ Petition being up No. 5925 of 1997 challenging the decisions of the primary, appellate and revisional authorities.
5. This Court, after considering the entire evidence and the material on record, found that the conclusion arrived at by the enquiry authority as confirmed by the disciplinary and appointing authorities, in respect of charge No. 4, is valid and that in respect of charge Nos. 1, 2, 3 and 5 to 8 is invalid and remitted the matter for consideration of the third respondent for appropriate penalty proportionate to the misconduct validly found against the petitioner in respect of charge No. 4 and take a decision in this regard in accordance with law. Aggrieved by the same, the present writ appeals are filed by the respondent Bank and the petitioner respectively.
6. Sri S.V. Bhatt, learned Counsel for the petitioner contended that the learned Single Judge has rightly held that charge Nos. 1 to 3 and 5 to 8 are liable to be effaced on account of their invalidity, but ought not to have held that the findings insofar as charge No. 4 concerned are sustainable. He contended that the Enquiry Officer denied the petitioner an opportunity of cross-examining M.W.6, the Handwriting Expert, so as to test the veracity of the witness and therefore, the entire procedure conducted by the inquiring authority is vitiated. He contended that on the complaint given by Bandappa Kalappa, the customer of S.B.H., Kamalanagar Branch, on 16.09.1976, the petitioner submitted his explanation, but he was kept under suspension indefinitely without considering the explanation submitted by him and that after issuing the charge memo to the petitioner on 08.12.1976, the respondent bank received a second complaint on 03.09.1977 i.e. after lapse of one year from the date of the first complaint, which is impermissible under law. He contended that only preliminary enquiry was conducted against the petitioner and no regular enquiry was conducted. He further contended that the petitioner is a sincere and honest officer, but the Bank has unnecessarily implicated him in this case and litigating the matter since two decades. Learned Counsel for the petitioner vehemently contended that all the witnesses are interested witnesses and their evidence was contrary to the documents, testimony or truthfulness and so, their evidence cannot be accepted. Learned Counsel further contended that the learned Single Judge ought to have held that the petitioner has to be reinstated into service with all consequential benefits because another Enquiry Officer was appointed and he has not afforded an opportunity of being heard to the petitioner. He further contended that the disciplinary authority while disagreeing with the report of the enquiry officer in not furnishing the reasons so as to deny the opportunity to the petitioner passed the order of discharge, which is a nullity. Nonetheless, the appellate authority had suo motu remitted the matter to the third respondent and directed him to furnish reasons to the petitioner for differing with the report of the inquiring authority and also to give an opportunity to him to submit his explanation. From this, it can be inferred that the disciplinary authority has committed serious irregularities. The disciplinary Authority informed the same to the petitioner and called for his defence statement, but no enquiry was held and without considering the same, as empty formality, passed the impugned order, which vitiated the entire proceedings.
7. Learned Counsel for the petitioner further contended that the entire proceedings are vitiated as the respondent bank authorities ought to have examined the account holder and that no independent witness was examined. Learned Counsel relied on the decision reported in Ministry of Finance v. S.B. Ramesh : 1998 3 SCC 227 and contended that non-examination of the account holder or the complainant and taking the second complaint after issuance of the charge memo vitiates the whole procedure. The relevant portion of the order reads thus:
Service Law-Departmental enquiry-Standard of proof-Findings of Enquiry Officer-Government servant charged of living together and having extra-marital sexual relationship with a lady-CAT setting aside the punishment of compulsory retirement on account of want of evidence to substantiate the charge, after finding that (i) the Enquiry Officer had not attempted to question the delinquent employee under Rule 14(18) of CCS (CCA) Rules on the evidence appearing against him although such opportunity ought to have been afforded despite having set him ex parte;(ii) only one of seven documents was proved by the witness and certain documents had been marked on the side of the delinquent by the Enquiry Officer without the delinquent's consent and that therefore the inference drawn from such documents stood vitiated; (iii) the said document allegedly containing the statement of the lady in question was relied on by the Enquiry Officer and the disciplinary authority without offering her as a witness for cross-examination; (iv) the witness in whose presence the said statement was allegedly made, had not spoken to the details of the contents thereof; (v) the authenticity of the said statement had been denied by the delinquent employee; (vi) inference drawn by the authorities merely on the ground of similarity of handwriting, signature or telephone numbers that the name occurring in certain documents was that of the delinquent, was merely a guess work and could not be relied on to prove the charge- In the light of the material placed before CAT its order, held, called for no interference-More so when full materials were not placed before the Supreme court despite the opportunity given for that purpose-Departmental enquiry-summoning of witnesses-Conducting the enquiry-Departmental enquiry-Witnesses whose statements are relied on must be produced.
He also relied upon the following judgments:
In Executive Committee v. Dhaneswara Rao 1996 1 ALD 306, it was held as under:
It is well settled principle of law that this Court under Article 226 of the Constitution is not an appellate authority while reviewing a question of fact therefore, the High Court cannot review the evidence and reverse a finding of fact based on evidence. Of course, if the finding is not based on any evidence or is based on inadmissible evidence or there is an error of law apparent on the face of record, there is no bar to this Court to interfere.
In Union of India v. Prakash Kumar Tandon : (2009) 2 SCC 541, it was held as under:
15.The principles of natural justice demand that an application for summoning a witness by the delinquent officer should be considered by the enquiry officer. It was obligatory on the part of the enquiry officer to pass an order in the said application. He could not refuse to consider the same. It is not for the Railway Administration to contend that it is for them to consider as to whether any witness should be examined by it or not. It was for the enquiry officer to take a decision thereupon. A disciplinary proceeding must be fairly conducted. An enquiry officer is a quasi-judicial authority. He, therefore, must perform his functions fairly and reasonably which is even otherwise the requirement of the principles of natural justice.
17. If the disciplinary proceedings have not been fairly conducted, an inference can be drawn that the delinquent officer was prejudiced thereby.
18. In S.L. Kapoor v. Jagmohan : (1980) 4 SCC 379 this Court has held that non-compliance with the principles of natural justice itself causes prejudice. We are not oblivious of the fact that the said principle has since been watered down but in a situation of this nature, we are of the opinion that the concurrent findings of the Tribunal, as also the High Court cannot be said to be unreasonable or suffering from any legal infirmity warranting interference.
In Government of Andra Pradesh v. A. Venkata Raidu : (2007) 1 SCC 338, it was held as under:
We respectfully agree with the view taken by the High court. It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In charge 1, what is mentioned is that the respondent violated the orders issued by the government. However, no details of these orders have been mentioned in charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO, etc. but that was not done. Copies of the said GOs or directions of the Government were not even placed before the enquiry officer. Hence, charge 1 was not specific and hence, no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged.
Learned Counsel for the petitioner further contended that the learned Single Judge has committed an error in holding that charge No. 4 is proved. He further contended that the scope of this Court is very narrow and it cannot sit as an appellate authority and undertake the exercise undertaken by the disciplinary authority and that efficacy or inefficacy or deficiency or otherwise of the evidence cannot be a subject matter of judicial review under Article 226 of the Constitution of India.
He further relied upon the following judgments:
In P. Joseph John v. State of Travancore-Cochin : AIR 1955 SC 160, it was held as under:
As regards the question whether the petitioner was given reasonable opportunity of showing cause against the action proposed to be taken in regard to him, the legal position in that respect and the nature of opportunity to be granted was stated by the Privy Council in the case of High Commissioner for India v. I.M. Lal : AIR 1948 PC 121 (A), and it was held that when a stage is reached when definite conclusions have been come to as to the charges, and the actual punishment to follow is provisionally determined on, that the statute gives the civil servant an opportunity for which Sub-section (3) of Section 240 of the Government of India Act, 1935 (which corresponds to Article 311) makes provision, and that at that stage a reasonable opportunity has to be afforded to the civil servant concerned.
It was also held that there was no anomaly in the view that the statute contemplates a reasonable opportunity at more than one stage.
In our opinion, in the present case the petitioner had reasonable opportunity at both stages to enter upon his defence. He fully availed himself of the first opportunity and though a reasonable opportunity was also given to him at the second stage, he failed to avail himself of it and it is not open to him now to say that the requirements of Clause (2) of Article 311 have not been satisfied. It was not denied that the petitioner was given by the Enquiry Commissioner all facilities for entering on his defence. Before filing his written statement before the Enquiry Commissioner the petitioner and his counsel were afforded facility to inspect the various files concerning the charges which he had to meet. After inspecting those files he filed a full written statement explaining those charges.
He was defended in the enquiry by a leading lawyer and was afforded fullest opportunity to examine and cross-examine the witnesses examined by the commissioner. He was able to satisfy the Enquiry Commissioner that out of the charges leveled against him a number of them were not established; but he failed to satisfy the Commissioner as regards the rest and the Enquiry Commissioner held them proved. After the enquiry was concluded the petitioner was furnished with a copy of the report of the Commissioner and was asked to show cause against the action proposed to be taken against him. He applied for two months' time to show cause. This was granted. He made a further application for further time. This was also partially granted. He again asked for further time which was refused.
It is difficult to say that the time allowed to him was not reasonable in view of the fact that he had taken part in the enquiry before the commissioner and all the evidence had been taken in his presence and he had full opportunity to defend himself. All the material on which the commissioner had reported against him on the charges found proved, was given in the report of the Commissioner and that was supplied to him with a show cause notice. The time allowed, in our opinion, was more than sufficient for him to enter on his defence and having failed to do so, he cannot be heard to say that he was not given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
In Union of India v. Y.S. Sadhu Ex-Inspector (2008) 12 SCC 30, it was held as under:
Service law-Departmental enquiry-Natural justice-Violation of-Whether results in automatic reinstatement-Departmental enquiry conducted against respondent found defective inasmuch as witnesses examined earlier were not produced for cross-examination-Disciplinary authority dismissed him from service on the basis of enquiry report which held the charges against respondent as proved-Following the law laid down in Hiran Mayee Bhattacharyya case : (2002) 10 SCC 293 and R.S. Pandey case, : (2005) 8 SCC 264, held, reinstatement could not be ordered on account of these infirmities in disciplinary proceedings-High Court ought to have directed fresh proceedings from the stage of alleged illegality, without ordering reinstatement-Respondent, however, in the meantime reaching superannuation age and therefore not interest in pursuing further remedy, rather interested in submitting a departmental representation for change of punishment from termination to compulsory retirement-Liberty given to him to do so without expressing any opinion on this aspect.
In U.P. State Spinning Company Ltd. v. E.S. Pandey : (2005) 8 SCC 264, it was held as under:
The residual question is what would the appropriate direction in such a case be. Stand of the employer is that it would have justified the order of termination by adducing any evidence even if it was held that there was some defect in the departmental proceedings. The solution is found in what was stated by this Court in Managing Distrctor, ECIL v. B. Karunakar : (1994) 4 SCC 727 : 1993 SCC (L & S) 1184 : (1993) 25 ATC 704. In para 31, it was observed as follows:In all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the court/tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the court/tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the court/tribunal should not interfere with the order of punishment. The court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the courts/tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the court/tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Whereafter following the above procedure, the court/tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.
In Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls : (2002) 10 SCC 293, it was held as under:
Service law - Reinstatement/Back wages/Arrears-Reinstatement and back wages-Order in respect of, if could be made when due to non-furnishing of the enquiry report to the delinquent to the court directs the authority concerned to comply with the principles of natural justice-Held, no reinstatement nor back wages need be paid when the court directs that the principles of natural justice should be followed-Back wages.
In Punjab National Bank v. Junj Behari Misra : (1998) 7 SCC 84, it was held as under:
Principles of natural justice will have therefore to be read into Regulation 7(2). Whenever the disciplinary authority disagrees with the enquiring authority on any article of charge then before it records its findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.
In U. Nilan v. Kannayyan (Dead) through LRs. : AIR 1999 SC 3750, it was held as under:
In another Madras decision in S.V. Ramalingam v. K.E. Rajagopalan : (975) 2 Madras LJ 494, rendered by S. Natarajan, J. ) as his Lordship then was. This principle was reiterated and it was held that:
The confirmation of a sale subsequent to the dismissal of a petition under Order 21, Rule 90 cannot in reality, after the situation wen the mortgagor-judgment-debtor has preferred within time an appeal against the dismissal of his petition under Order 21 Rule 90. Though the confirmation of the sale does take the auction-purchaser a step further than before the confirmation of the sale, the confirmation, by itself, is in one sense, inchoate. The confirmation gives the sale only viability but does not render the sale an indefeasible one, till such time as the appeal preferred by the mortgagor against the validity of the sale remains undisposed. In that sense, the confirmation effected the executing court may become final as far as the executing court is concerned, but it certainly does not stamp the transaction with irrevocable finality when alone the rights of parties get crystallized beyond retracement. Consequently, the appeal preferred by the judgment-debtor has the effect of rendering a sale and its confirmation fluidal and nebulous It, therefore, follows that the finality of the sale is rendered at large before the appellate Court in appeal and as such, the petitioners will be entitled to exercise the right conferred on the munder Order 34, Rule 5 to redeem the mortgage.In another decision rendered by the Madras High Court in V.A. Narayana Raja v. Reganayaki Achi (died) AIR 1984 Mad 27, it was again reiterated that an application under Order 34, Rule 5 would be maintainable during the pendency of the appeal filed by the judgment-debtor against an order passed by the Execting Court refusing to set aside the sale effected in execution of the decree passed in the mortgage suit. It was further held that although as a result of the confirmation of sale and the issue of a sale certificate, the auction-purchaser got title to the property and the title of the judgment-debtor was lost but since the sale was subject to the final result of the petition, filed by the judgment-debtor under Order 21, Rule 90, CPC, the confirmation of sale and the sale certificate issued thereafter would also be subject to the result of that petition. Similarly, if an appeal was pending against an order refusing to set aside the sale, the whole situation relation to confirmation of sale and issuance of sale certificate would be in a nebulous state and consequently, it would be open to the judgment-debtor to invoke the provisions of Order 34 Rule 5, CPC and make the necessary deposits to save his property from being transferred to a third person or, may be, to the decree-holder, in execution of decree passed in the mortgage suit.
In State of Orissa v. Bidyabhushan Mohapatra : AIR 1963 SC 779, it was held as under:
The High Court has held that there was evidence to support the findings on heads (c) and (d) of charge (1) and on charge (2). In respect of charge I(b) the respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of charges 1(a) and 1(e) in the view of the High Court ' the rules of natural justice had not been observed'. The recommendation of the Tribunal was undoubtedly founded on its findings on charges 1(a), 1(e), 1(c), 1(d) and charge (2). The High Court was of the opinion that the findings on two of the heads under Charge (1) could not be sustained, because in arriving at the findings the Tribunal had violated rules of natural justice. The High court therefore directed that the Government of the State of Orissa should decide whether 'on the basis of those charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice'. It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on charges 1(a) and 1(e) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to re-consider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on charges 1(a) and 1(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal. The constitutional guarantee afforded to a public servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, and that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The reasonable opportunity contemplated has manifestly to be in accordance with the rules framed under Article 309 of the Constitution. But the court in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justifiable; nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were 'unassailable', the order of the governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. The High court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question.
In Railway Board, New Delhi v. Niranjan Singh : AIR 1969 SC 966, it was held as under:
Before we take up for consideration Point No. 2 formulated above, it would be convenient to deal with point No. 3. It was not disputed before us that the first charge leveled against the respondent is a serious charge and it would have been appropriate for the General Manager to remove the respondent from service on the basis of his finding on that charge. But we were told that we cannot assume that the General Manager would have inflicted that punishment solely on the basis of that charge and consequently we cannot sustain the punishment imposed if we hold that one of the two charges on the basis of which it was imposed is unsustainable. This contention cannot be accepted in view of the decision of this Court in State of Orissa v. Bidyabhushan Mohapatra : (1963) Suppl. (1) SCR 648 : AIR 1963 SC 779 wherein it was held that if the order in an enquiry under Article 311 can be supported on any finding as substantial misdemeanour for which the punishment imposed can lawfully be imposed it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the punishment in question.
In State of U.P. v. Nand Kishore Shukla : AIR 1996 SC 1561, it was held as under:
It is settled law that the Court is not a Court of appeal to go into the question of imposition of the punishment. It is for the disciplinary authority to consider what would be the nature of the punishment to be imposed on a Government servant based upon the proved misconduct against the Government servant. Its proportionality also cannot be gone into by the Court. The only question is : whether the disciplinary authority would have passed such an order. Ii is settled law that even one of the charges, if held proved and sufficient for imposition of penalty by the disciplinary authority or by the appellate authority, the Court would be loath to interfere with that part of the order. The order of removal does not cast stigma on the respondent to disable him to seek any appointment elsewhere. Under these circumstances, we think that the High Court was wholly wrong in setting aside the order.
In The Tata Engineering and Locomotive Company Ltd. v. S.C. Prasad : 1969(3) SCC 372, it was held as under:
Industrial tribunals, while considering the findings of domestic enquiries, must bear in mind that persons appointed to hold such enquiries are not lawyers and that such enquiries are of a simple nature where technical rules as to evidence and procedure do not prevail. Such findings are not to be lightly brushed aside merely because the enquiry officers, while writing their reports, have mentioned facts which are not strictly borne out by the evidence before them. Of course, if the enquiry officer were to transgress the rules of natural justice by relying on matters which the workman had no opportunity to meet the validity of his findings would be affected. Since the extraneous matters relied on by the Tribunal were merely incidental matters and did not affect the findings they cannot be held to have vitiated them.
In The East India Hotels v. Their Workmen : AIR 1974 SC 696, it was held as under:
This appeal is by special leave against the award of the Tribunal. It is not denied that the Tribunal was in error in applying Section 11A of the Act to this case, because the complaint, the enquiry, the report and the reference were all prior to the coming into operation of this section on December 15, 1971. This Court held in Workmen of Firestone Tyre & Rubber Company of India (Pvt.) Ltd. v. The Management : (1973) 1 Lab LJ 278 : AIR 1973 SC 1227 that Section 11A has no retrospective operation as it not only deals with procedural matters, but also has the effect of altering the law laid down by this Court in this respect by abridging the rights of the employer inasmuch as it gives power to the Tribunal for the first time to differ both on a finding of misconduct arrived at by an employer as well as with the punishment imposed by it. In the undoubted exercise of the right of the employer to take disciplinary action, and to decide upon the quantum of punishment, both of which are part of the managerial functions, what has to be seen is whether the employer before imposing the punishment had conducted a proper enquiry in accordance with the provisions of the standing Orders, if applicable and principles of natural justice. When a proper enquiry has been held by an employer and the finding of misconduct has support from the evidence adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified when the enquiry is unfair or the findings arrived at in the enquiry are perverse or have no basis in evidence or the management is guilty of victimization, unfair labour practice or mala fide or the punishment is harsh and oppressive. The Tribunal cannot, therefore, reappraise the evidence and arrive at a conclusion different from that arrived at by the domestic Tribunal. Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and it is open to the employee to adduce evidence contra. Once misconduct is proved, either in the enquiry conducted by the employer or by the evidence placed before the tribunal for the first time, the punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is harsh and oppressive. This is not a case where no enquiry has been held nor is it a case where either side had not adduced evidence before the Tribunal. What the Tribunal had to see is whether the enquiry is vitiated by any of the grounds referred to by us. Admittedly, no such grounds exist in this case. Nothing was stated as to in what respects the enquiry was defective. On the other hand, the tribunal proceeded on the basis that the enquiry was not vitiated, but it had power under Section 11A to arrive at a different conclusion and award a different punishment. That apart, even the evidence justified the conclusion arrived at by the Enquiry Officer.
8. Learned Counsel for the respondent-Bank contended that the impugned order suffers from legal infirmities as the learned Single Judge contradicted in respect of only one charge and has not taken into consideration the evidence of M.W.3, who testified that the entry in the day book for Rs. 7,000/- on 01.09.1976 was made in the name of the complainant and that though the petitioner was given sufficient opportunity to submit his objections as to the reasons given by the disciplinary authority for his disagreeing with charges 5 to 7, he had not availed the same. He relied upon the judgment reported in Nagar Palika, Nataur v. U.P. Public Services Tribunal, Lucknow : (1998) 2 SCC 400, wherein it was held as under:
Instead of remanding the matter to the Tribunal for decision on merit, the High Court, however, has relied upon observations made by the Tribunal and has come to the conclusion that the order of dismissal is illegal. It has set aside the order of dismissal. The observations on which the High Court has relied are to the effect that no enquiry at all was held in this case and no opportunity to inspect the record was given to the second respondent. The Tribunal has also observed that no copy of the Enquiry Report was sent along with the show-cause notice and hence there was no proper enquiry. These observations of the Tribunal have failed to take into account the fact that despite repeated reminders spreading over a number of years, the second respondent failed to give any reply to the charge-sheet which was served upon him. It also failed to take into account the fact that although the second respondent was asked to inspect the record, he did not inspect the record. It was because of this failure on the part of the second respondent to reply to the charge-sheet or to appear before the Enquiry Officer that the charges were held proved by the Enquiry Officer on the basis of the material which was available before him. This cannot be considered as a negation of the principles of natural justice. The fact that the copy of the Enquiry Report was not given to the second respondent will not vitiate the proceedings, in view of the decision of this Court in Managing Director, ECIL v. B. Karunakar : (1993) 4 SCC 727.
The appeal is allowed and the order of the High Court is set aside. The order of dismissal is upheld. However, pursuant to an interim order dated 23.11.1989 which was passed by this Court in the present proceedings a limited stay of the impugned order was granted, confined to the payment of back wages. The appellants were directed to reinstate the second respondent on the post which he was holding and pay him the salary due to him thereafter. The interim order now comes to an end. Since we have upheld the order of dismissal, there is no question of granting any back wages.
He relied on the judgment reported in Nellimerla Jute Mills Company Ltd., Represented by the Local Agent, Nellimerla v. Labour Court, Guntur 1981 (2) ALT 455 wherein it was held as under:
The enquiry is not vitiated. It is open to the Management to examine such witnesses as it chooses in the domestic enquiry. If it does not examine any witness, it takes the risk of the case being held to be not proved. It cannot be compelled to examine any particular witness. The mere fact that it does not examine any witness cannot vitiate the enquiry. It cannot be said that principles of natural justice are violated by the employer not examining a particular witness. If the Court feels that the finding of the domestic enquiry is not proper and is based upon an incorrect appreciation of the law, it is open to the High Court to interfere against such finding in proceeding under Article 226 of the Constitution.
He further contended that the evidence adduced on behalf of the respondent Bank is complete and therefore, non-examination of the complainant will not attain any significance in proving the case. He relied upon a decision reported in State Bank of India v. Tarun Kumar Banerjee : AIR 2000 SC 3028, wherein it was held as under:
Where the charge against cashier of Bank of receiving excess money from customer and retaining it with intent to misappropriate was held to be proved against the cashier in the domestic enquiry and on reference the Industrial Tribunal found that the domestic enquiry was just and fair and the finding of misconduct was proved by the evidence of Branch Manager and head clerk who had actually seen the incident, it was not proper for the Tribunal to have interfered with the finding of misconduct on ground of non-examination of the customer, non-production of money and non-production of confessional statement made by the cashier. A customer of the Bank need not be involved in a domestic enquiry conducted, as such a course would not be conducive to proper Banker-customer relationship and, therefore, would not be in the interest of the Bank. Further, when money was secured a prudent banker would deposit the same in the account of the customer complaining of loss of money and, therefore, non-production of money also would not be of much materiality. When in the course of the domestic enquiry no reliance was placed on the so-called confessional statement made by the cashier then non-production of the same is also of no significance. Thus, these circumstances are irrelevant and the Tribunal could not have placed reliance on them to interfere with finding of misconduct. When sufficient evidence was produced to conclude one way or the other, the evidence not produced will not be of any significance unless there was such evidence which was withheld which would have titled the evidence adduced in the course of domestic enquiry.
He also relied on the judgment reported in Workmen of Balmadies Estates v. Management, Balmadies Estates : (2008) 4 SCC 517, wherein it was held as under:
It is fairly well settled now that in view of the wide power of the Labour Court it can, in an appropriate case, consider the evidence which has been considered by the domestic tribunal and in a given case on such consideration arrive at a conclusion different from one arrived at by the domestic tribunal. The assessment of evidence in a domestic enquiry is not required to be made by applying the same yardstick as a civil court could do when a lis is brought before it. The Evidence Act, 1872 (in short 'the Evidence Act') is not applicable to the proceeding in a domestic enquiry so far as the domestic enquiries are concerned, though principles of fairness are to apply. It is also fairly well settled that in a domestic enquiry guilt may not be established beyond reasonable doubt and the proof of misconduct would be sufficient. In a domestic enquiry all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility.
He further relied on the decision reported in State Bank of India v. Ramesh Dinkar Punde : (2006) 7 SCC 212, wherein it was held as under:
It is impermissible for the High Court to re-appreciate the evidence which had been considered by the inquiry officer, a disciplinary authority and the appellate authority. The finding of the High Court, on facts, runs to the teeth of the evidence on record.
9. Now, the point that arises for consideration in these appeals is whether there is any illegality or irregularity in the order impugned warranting interference by this Court.
10. The petitioner was charge sheeted on eight counts vide memo, dated 08.12.1976. Charge No. 1 i.e., the opening of Savings Bank Account and Non-issuance of chequebook, never constitutes misconduct, as the complainant himself admitted in his complaint, dated 17.09.1976, that he opened the account with SBI. As far as charge No. 2 is concerned, at the request of the complainant-Bandappa Gandge, the single account in the name of Mallikarjun was converted into a joint account incorporating the name of Bandappa Gandge in the ledger and that a fresh account opening form was obtained and that all this was done personally by the petitioner on 02.01.1976 itself. As the conversion from a single account to a joint account is not the complaint nor is it the complaint that such conversion was without proper authorization of either of the joint customers, the said charge is a misconceived one.
11. It is neither the charge as regards the persons from whom the petitioner has borrowed the amounts and placed himself under a pecuniary obligation with the persons having dealings with the bank or that such borrowings constitute habitual indebtedness or have led to his insolvency, nor is there any evidence in respect of the allegation against the petitioner in charge No. 8. Occasional borrowings are an occurrence in the life of an individual including those in public employment. Such borrowings do not per se constitute misconduct nor has such conduct been prohibited by the conduct regulations. Hence, charge No. 8 is a misconceived one.
12. With regard to charge No. 3, the learned Counsel for the petitioner contended that non-examination of the complainant has vitiated the enquiry. The guilt of the delinquent is sought to be established in view of the alleged confession made by MWs.1 and 6, who were not cross-examined. On the settled principle of law that every opportunity has to be given to the delinquent to cross-examine the material witnesses, the findings of the disciplinary authority became invalid. The order of punishment is dated 09.06.1994. The appointing authority has passed the said order, while accepting the order of the disciplinary authority. The petitioner filed a complaint for a sum of Rs. 550/-. For this amount, the petitioner pleaded guilt and the enquiry was held only for the purpose of satisfying the requirements of law. The said charge was held proved against the delinquent based on the opinion of M.W.6, namely, Mr. A.K. Gupta, Handwriting Expert, who was examined on 13.12.1986. On 02.01.1987, the enquiry authority communicated the petitioner permitting him to engage an expert to cross-examine M.W.6, but not an Advocate. Though opportunity was given to him, the petitioner has not chosen to cross-examine M.W.6. As there was no cross-examination, his evidence cannot be accepted. Hence, the charge was not proved.
13. With regard to charges 5 to 7 are concerned, the misconduct imputed under these charges is that the petitioner withdrew a sum of Rs. 7,000/- and kept it in his personal custody till 06.09.1976 and on the said date, after obtaining the signature of Mr. Bandappa Gandge, on various forms and documents mentioned in charge No. 4 took him to the petitioner's residence and paid him Rs. 5,000/-. Thereafter, when Mr. Bandappa Gandge demanded the full amount, the petitioner paid him another sum of Rs. 1,450/-, but failed to pay Rs. 550/-. The disciplinary authority, while disagreeing with the findings of the enquiry officer, ought to have given reasons and communicated the same to the employee so as to give him an opportunity of being heard. In fact, the petitioner preferred an appeal before the appellate authority, which in turn, examined the same and directed the disciplinary authority to explain the reasons for disagreement with the findings of the inquiring authority. Instead, he ought to have directed de novo enquiry. Since the employee has given the representations, and without considering the same, the disciplinary authority has passed orders imposing punishment on him and therefore, he is entitled to be reinstated into service and the entire thing is non est in the eye of law. The disciplinary authority on 16.02.1995, invited the petitioner to submit his reply or comments on the reasons given by the disciplinary authority for disagreeing with the enquiry officer's report. Accordingly, on 07.04.1995, the delinquent officer, who is an Assistant Manager of SBI, Adilabad, stated as under:.that the Appellate Authority/Managing Director, remitted back to you the entire record of Disciplinary proceedings initiated against me together with the findings of the Inquiry Authority (I.A) my submissions thereto, and that he directed you to furnish the reasons for your holding the charges 5,6, and 7 as established as against the findings of the Inquiry Authority who had held that the charges 5,6 and 7 were not established. Obviously on the ground that the evidence was insufficient and unreasonable. In view of this observation of the Appellate Authority/Managing Director the decision against me which was taken by you and the Appointing Authority earlier became void, and as such not final, and no disciplinary action order exists against me as on date. A finality in the matter can only be arrived at after my furnishing the reasons/comments against your findings, which have been furnished to me now, and a fresh order is passed by you in the matter and the same is considered by the Appointing Authority.
As the matter is remitted back for your consideration, i.e., after my compliance as directed by you in your letter under reference, the earlier order passed by you inflicting punishment on me no more services. In other words, I must be treated as if I have been in service from the date of my original suspension i.e., dated 09.10.1976, notwithstanding the decision taken by the board of the bank in the said order, for the reason that I was directed by the bank vide LR. No. DPD/1580, dated 13.02.1991 to report to duty as such I resumed duty on 25.01.1991. Moreover, your earlier decision as Disciplinary Authority, which was confirmed and conveyed to me by the Appointing Authority vide Lr. No. DPD/224, dated 13.06.1994 and which was in consequence of the Hon'ble High Court's order, implicitly speak tat my continuance under suspension was unwarranted and justifiable. This situation which arose on account of your calling for my comments, attracts Reg. 69(8)(i) of SBH (officers) Service Regulations, 979, and as such I am entitled for the benefits envisaged in the said regulation. In the circumstances, I therefore, request you to direct the concerned authority to pay me the arrears of salary and allowance as from 09.10.1976 while considering my legitimate promotions etc., since then.
As to my submissions against the reasons given by you for holding the charges 5,6 and 7 to have been established, I shall submit my comments/representation against such of your findings as it is a legitimate opportunity available to me. I, shall, therefore, furnish the same after the matter concerning the issue raised by me is settled.
14. As regards charge No. 4, which relates to the retention of the amount, there is no evidence in the eye of law. The petitioner contends that it has not been established, as he was not given any opportunity to cross-examine the witnesses. Therefore, there was a procedural irregularity. He further contends that the disciplinary authority ought to have given reasons while disagreeing with the finding of the enquiry officer. The learned Single Judge while holding that the said charge is proved, has observed that the disciplinary authority and the appointing authority would have inflicted the petitioner with the very same penalty as has been inflicted on him by the impugned order, only on the basis of the valid conclusion regarding the petitioner's guilt in respect of the said charge and in the context of charge Nos. 1 to 3 and 5 to 8, and therefore remitted the matter to the third respondent for consideration of the appropriate penalty proportionate to the misconduct. On a careful perusal the material available on record, we are of the view that the conclusion of the learned Single Judge holding that charge No. 4 as proved is only based on the evidence of M.Ws.2 and 5, who are not cross-examined and their evidence is not put to test.
15. In addition to the above infirmities, the facts and circumstances of the case show that against the order of the appointing authority, the petitioner filed an appeal before the appellate authority and in the appeal grounds, the petitioner had raised several contentions on facts as well as on the illegality of the conclusions of the appointing authority. The appellate authority had found that there are no reasons given by the disciplinary authority in support of its finding relating to charges 5,6 and 7 and consequently, remitted the entire case to the disciplinary authority, advising it to furnish reasons. Thereafter, the disciplinary authority has furnished fresh reasons by passing a fresh order dated 16.02.1995, based on which, the appellate authority has again disposed of the appeal concurring with the findings of the disciplinary authority and holding the petitioner guilty of charges. During the hearing of these matters, we had asked the learned Counsel for the Bank as to which appeal remained with the appellate authority when it had earlier remitted the disciplinary proceedings to the disciplinary authority, albeit, for supplying reasons in support of the findings. It is not as if that the appellate authority has called for reasons from the disciplinary authority and in contrary, the order clearly shows that he had required disciplinary authority to de novo conduct enquiry and give reasons in support of its findings. The original order of the disciplinary authority, therefore, did not survive after the appellate authority remitted the matter back to the disciplinary authority. The petitioner came to know of the appellate order only through the letter dated 30.05.1995 informing that the appeal has been dismissed by the appellate authority. The aforesaid infirmity in the order of the appellate authority remain unexplained and it cannot be reconciled as once the appellate authority remitted the proceedings back to the disciplinary authority, no further appeal remained before it for passing the said appellate order dated 29.04.1995, communicated through the letter, dated 30.05.1995. On account of the said fundamental and vital defect in the impugned disciplinary proceedings of the Bank, the said disciplinary proceedings cannot be sustained and are liable to be set aside.
16. The case of the petitioner is that though he submitted his comments on 07.04.1995 to the disciplinary authority, the appellate authority affirmed the order of the appointing authority without considering his comments and also the required procedure. From this, it is clear that there is a procedural irregularity committed by the higher authorities and that the material witnesses were not cross-examined, which is crucial in deciding the veracity or otherwise of the evidence of the witnesses. It is also to be noted that the complainant, who is the material witness to the instant case, has not been examined by the inquiring authority. We are aware of our limitations for judicial review in respect of disciplinary matters. Normally, in all these cases, the matter will be remitted to the disciplinary authority for appropriate remedy. But, in the instant case, the petitioner was not afforded an opportunity to cross-examine the witnesses so as to discredit their testimonies and there are several procedural irregularities committed by the authorities concerned. The petitioner is also stated to have been retired from service. The litigation is dated back to the year 1976 and to put quietus to the same, we are inclined to allow the writ appeal filed by the petitioner by taking a lenient view and consequently, set aside the impugned order.
17. For all the aforesaid reasons, W.A. No. 439 of 2004 filed by the petitioner is allowed, W.A. No. 1663 of 2003 filed by the respondent-Bank is dismissed and the impugned order is hereby set aside. No costs.