J.M. Panchal, J.
1. By means of filing this petition under Art. 226 of the Constitution of India, the petitioner, i.e., Mr. Hasmukhlal Vadilal Shah, ex-Manager, Krishi Bazar Branch of Bank of India, Rajkot, has challenged legality and validity of order dated March 20, 1990 passed by the Zonal Manager and disciplinary authority dismissing the petitioner from service and the appellate order dated November 1, 1990 passed by the Deputy General Manager and Appellate Authority confirming the order dismissing the petitioner from service.
2. The petitioner was appointed as a Clerk in Bank of India in the year 1964. The petitioner was promoted as an Officer in the year 1971. Thereafter the petitioner was promoted to the post of Officer Grade II in the year 1981. During the relevant period, i.e., 1985-86 the petitioner was working as Manager at Krishi Bazar Branch, Rajkot.
3. Serious irregularities and misconducts were reported to have been committed by the petitioner while working as Manager, Krishi Bazar Branch from December 13, 1985 to September 20, 1986. Appropriate disciplinary proceedings were contemplated to be initiated against the petitioner for those irregularities and misconducts. Under the circumstances, Zonal Manager, Gujarat Zone and competent authority in exercise of powers conferred on him by Regulation 12(1)(a) of the Bank of India Officer Employees' (Conduct) Regulations, 1976 ('Regulations' for short) placed the petitioner under suspension from service vide order dated December 29, 1986. As it was decided to hold departmental enquiry against the petitioner, the Zonal Manager, Gujarat Zone and Disciplinary Authority served the petitioner with Articles of Charge and Statement of Allegations in support of Articles of Charge together with a forwarding letter dated June 22, 1987. The charges levelled against the petitioner in brief were as under :-
(1) The petitioner engineered truck loans in collusion with middlemen and sanctioned truck loans to borrowers who were not residents of Rajkot.
(2) The petitioner abused official position to accommodate one Mr. M. K. Rajani, a borrower of the Branch, to the detriment of Bank's interest and wilfully caused wrongful gain to him.
(3) The petitioner engineered misutilisation of Bank's funds in collusion with one Mr. Rameshchandra Dhirajlal Shah thereby exposing the Bank to serious financial loss.
(4) The petitioner wilfully misutilised and/or defrauded Bank's funds and Government subsidy in collusion with the dealer by sanctioning and disbursing loans.
(5) The petitioner defrauded Government subsidy and misutilised Bank's funds in collusion with the borrower/supplier in 8 District Industries Centre cases.
(6) The petitioner engineered a loan in the name of one Mr. M. T. Ghavri, a fictitious person with fictitious guarantor of Mr. M. A. Jagwani by disbursing it to one M/s. Melashi Agencies.
(7) The petitioner allowed misutilisation of Bank's funds and derived wrongful pecuniary advantage in the matter of loan sanctioned to one Mr. J. N. Malia for a fictitious purpose; and
(8) The petitioner abused official position to show undue favour to M/s. Donald Machines Pvt. Ltd. to the detriment of Bank's interest.
4. The petitioner was called upon to offer explanation regarding the irregularities/misconducts allegedly committed by him. The petitioner denied the allegations by filing Written Statement. The explanation offered by the petitioner was not found to be satisfactory and acceptable. Under the circumstances, the Zonal Manager, Gujarat Zone and Disciplinary Authority vide his orders dated February 10, 1988 and February 15, 1988 appointed Mr. S. R. Tendulkar as inquiring authority to enquire into the charges framed against the petitioner. The petitioner was given opportunity to inspect the original documents, which opportunity was availed of by the petitioner. At the departmental inquiry, 43 witnesses were examined to substantiate the charges levelled against the petitioner and 111 documents were tendered in evidence. The petitioner participated in the enquiry along with his Advocate. The petitioner in all produced 38 documents in his defence, but no witness was examined by him.
5. After considering the written brief submitted by the parties, various documents and deposition of the witnesses, the inquiring authority came to the conclusion that the charges levelled against the petitioner were proved. The inquiring authority submitted its report to the disciplinary authority on January 30, 1990. A copy of the report of the inquiring authority was also made available to the petitioner along with a forwarding letter dated February 8, 1990.
6. The petitioner submitted written representation on February 22, 1990 to the disciplinary authority. The disciplinary authority, after taking into consideration the written representation submitted by the petitioner and the evidence led during the inquiry proceedings, agreed with the findings recorded by the inquiring authority and ultimately dismissed the petitioner from service vide order dated March 20, 1990, which is produced by the petitioner at Annexure-K to the petition.
7. Feeling aggrieved by the order passed by the disciplinary authority, the petitioner preferred an appeal before the Deputy General Manager and Appellate Authority under the provisions of the Regulations. The Appellate Authority dismissed the appeal vide order dated November 1, 1990, which is produced by the petitioner at Annexure-L to the petition, giving rise to the present petition.
8. Mr. A. H. Mehta, learned Counsel for the petitioner submitted that previous statements of six persons were treated as substantive evidence though they were not examined at the inquiry proceedings and as the petitioner had no opportunity to cross-examine those witnesses, the impugned orders are liable to be set aside and quashed. It was contended that the inquiry was conducted in complete breach of the principle of natural justice and fairplay and therefore, the petition should be allowed. In support of his submissions, learned Counsel placed reliance on the decisions rendered in the cases of (1) State of Bombay v. Rajivbhai Motibhai Patel, AIR 1961 Guj. 130, (2) State of Mysore & Ors. v. S. S. Makapur, AIR 1963 SC 375, (3) Central Bank of India Ltd. v. K. Banerjee, 1967 (2) LLJ 739 : AIR 1968 SC 266 and (4) Chandrama Tewari v. Union of India AIR 1988 SC 117.
9. Mr. K. J. Thaker, learned Counsel for the respondents submitted that there is no legal bar on the disciplinary authority in placing reliance on the statements of persons not examined at the enquiry because strict and technical rules of evidence and procedure do not apply to departmental inquiries. It was submitted that even hearsay evidence can be received at the departmental inquiries provided it has reasonable nexus and credibility and as the petitioner had never expressed any desire to cross-examine the persons whose statements were relied on by the disciplinary authority, principles of natural justice cannot be said to have been violated and the petition should be dismissed. In the alternative, it was submitted by the learned Counsel for the respondents that the order dismissing the petitioner from service is based on four charges and, therefore, even if one of the charges is found to be unsustainable on account of exclusion of statements considered improperly, the order dismissing the petitioner from service should be upheld by the Court, inasmuch as the order of dismissal from service can lawfully be passed on sustainable charges. In support of his submission, learned Counsel placed reliance on the decisions rendered in the case of (1) Railway Board, New Delhi & Anr. v. Niranjan Singh, AIR 1969 SC 966 (2) State of Haryana & Anr. v. Rattan Singh, AIR 1977 SC 1512, (3) Pyare Lal Sharma v. Managing Director, Jammu & Kashmir Industries Ltd. & Ors., 1989 II CLR 293 (SC) and (4) Gujarat State Road Transport Corporation v. Karsandas Narsi Trambadia, 1992 (2) GLR 1393.
10. In the light of rival submission advanced at the Bar, the question which arises for consideration of the Court is whether use of previously recorded statements of witnesses, who were not examined during the departmental inquiry has vitiated the findings recorded by the inquiring authority. It is not in dispute that the copies of previously recorded statements of witnesses not examined at the inquiry were supplied to the petitioner. It is also not in dispute that at no point of time the petitioner had expressed desire to cross-examine those witnesses whose previously, recorded statements were supplied to him. In the case of State of Bombay (supra), a civil servant covered by the provisions of Art. 311 of the Constitution was dismissed from service relying on certain statements of witnesses who were not examined at the inquiry. The Division Bench relying upon the decisions of the Supreme Court in the case of Parshottam Lal Dhingra v. Union of India. AIR 1958 SC 36 and Khem Chand v. Union of India, AIR 1958 SC 300 held that even though strict rules of Evidence Act were not applicable to departmental inquiry, right to cross-examine witnesses at the inquiry was an important safeguard and if the witnesses were not examined at the inquiry and that their statements were relied upon by the Inquiry Officer, it was vital flaw and proceedings were vitiated.
In my opinion, the ratio laid down by the Division Bench in the above quoted case is not applicable to the facts of the present case in view of the fact that is was a case of Civil servant governed by Art. 311(2) of the Constitution. The Division Bench was also conscious of that position and decided the case on that basis which becomes clear from the following observations :
'It is not possible for us to accept the suggestion that the Inquiry Officer was entitled to use the statement of a witness, which witness has not been examined before him and in regard to whom an opportunity of cross-examining is not given to the delinquent. This is one of the essential requirements of the provisions of Art. 311(2) of the Constitution, as has been referred to by us in a previous part of this judgment. It is an important right guaranteed by the Constitution to a Civil servant against whom disciplinary action is taken and against whom evidence is recorded that he should be given an opportunity of cross-examining the witnesses, who have given evidence against him'.
It is true that if the principles of natural justice require that a person whose statement is recorded must be examined at the inquiry, the contentions should be upheld. However, in my opinion, this is not a requirement of law. Neither in England nor in India, it is considered a concomitant of natural justice that a person whose statement is recorded prior to holding of enquiry should also be examined at departmental enquiry. I am of the view, therefore, that the ratio laid down in the case of State of Bombay (supra) will have to be restricted to the facts of that case.
In the case of State of Mysore & Ors. (supra) the respondent was serving in the Police Department as a Sub-Inspector of Police. On a complaint being preferred, C.I.D. Inspector made a preliminary investigation, examined a number of witnesses and recorded their statements and submitted his report recommending further action. The Deputy Superintendent of Police started proceedings against the Respondent, framed charges and called for his explanation. The respondent denied the charges and then a regular inquiry was held. The Deputy Superintendent of Police recalled the witnesses who had been examined by C.I.D. Inspector during the preliminary investigation, brought on record previous statements given by them and after putting a few questions to them tendered them for cross-examination by the respondent. The witnesses were cross-examined by the respondent in detail. The Deputy Superintendent of Police held that all the charges framed against the respondent had been proved. Accordingly, he issued a notice to the respondent to show cause why punishment of reduction of pay should not be imposed on him. The respondent submitted his explanation and thereafter the Deputy Superintendent of Police passed order reducing his pay. The respondent preferred an appeal against that order. The Deputy Inspector General of Police not only dismissed the appeal, but in exercise of his revisional powers issued a notice to the respondent to show cause why he should not be removed from service. After taking into consideration the explanation offered by the respondent, the Dy. Inspector General of Police dismissed the respondent from service. The respondent filed a revision against the order to the State Government of Bombay without any success. The respondent thereupon filed in the High Court of Mysore a writ petition questioning validity of order of dismissal on a number of grounds. The High Court allowed the petition and set aside the order of dismissal. Thereupon the State of Mysore preferred an appeal before the Supreme Court. The Supreme Court considered the question whether the procedure adopted by the Deputy Superintendent of Police in admitting the statements of witnesses examined before the C.I.D. Inspector who had conducted preliminary investigation in evidence was opposed to the rules of natural justice. The Supreme Court has held that the Tribunal exercising quasi-judicial functions, are not Courts and that therefore, they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. It is held therein that they can, unlike Courts, obtain all information material for the points under enquiry from all sources and through all channels, without being fettered by rules and procedure which govern proceedings in Court and the only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. In para 6 of the decision, it is held as under -
'When the evidence is oral, normally the examination of the witness will in its entirety, take place before the party charged, who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party, and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. In our opinion, they are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged, and he is given an opportunity to cross-examine them'.
The Supreme Court on the facts of the said case found that the procedure followed at the enquiry by the Deputy Superintendent of Police was not in violation of the principles of natural justice.
In the above cited decision, the Supreme Court has not considered the question whether the principles of natural justice require that a person whose statement is recorded should be examined at the inquiry or not. The Supreme Court, found that the Deputy Superintendent of Police who conducted the departmental inquiry, had recalled the witnesses who had been examined at the preliminary investigation, brought on record the previous statements given by them and after putting a few questions to them, tendered them for cross-examination by the respondent. While deciding legality of procedure adopted at the departmental enquiry, the Supreme Court had held that rules of natural justice are sufficiently complied with when previous statements given by the witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them. In my opinion, this judgment is of no help to the petitioner.
In the case between Central Bank of India Ltd. v. K. Banerjee (supra), the Supreme Court has held as under :
'There can be no controversy that the principles of natural justice must be observed in the conduct of domestic enquiry, and the workman concerned must be allowed reasonable opportunity to defend himself. The rules of natural justice require that the workman proceeded against, should be informed clearly of the charge levelled against him; witnesses should be normally examined in the presence of the employee, in respect of the charges; if statements taken previously and given by witnesses, are relied on, they should be made available to the workman concerned; the workman should be given a fair opportunity to cross-examine witnesses including himself. In support of his defence; and the enquiry officer should record his findings, based upon the evidence so adduced'.
The Apex Court has held that rules of natural justice require that the workman proceeded against, should be informed clearly of the charges levelled against him; witnesses should be normally examined in the presence of the employee, in respect of the charges; if statements taken previously and given by the witnesses, are relied on, they should be made available to the workman concerned; the workman should be given a fair opportunity to cross-examine witnesses including himself, in support of his defence; and the enquiry officer should record his findings, based upon the evidence so adduced. In the facts of the present case, it is found that the petitioner was informed clearly of the charges levelled against him. 43 witnesses have been examined in presence of the petitioner in respect of the charges. The statements taken previously have been made available to the petitioner and the petitioner was given a fair opportunity to cross-examine witnesses examined at the departmental inquiry. In my view, therefore, the said decision is also of no assistance to the petitioner.
In the case of Chandrama Tewari (supra), the Supreme Court has observed as under :
'It is now well settled that if copies of relevant and material documents including the statements of witnesses recorded in the preliminary enquiry or during investigation are not supplied to the delinquent officer facing the enquiry and if such documents are relied in holding the charges framed against the officer, the enquiry would be violated for violation of principles of natural justice. Similarly, if the statement of witnesses recorded during the investigation of a criminal case or in the preliminary enquiry is not supplied to the delinquent officer that would amount to denial of opportunity of effective cross-examination. It is difficult to comprehend exhaustively the facts and circumstances which may lead to violation of principles of natural justice or denial of reasonable opportunity of defence. This question must be determined on the facts and circumstances of each case. While considering this question it has to be borne in mind that a delinquent officer is entitled to have copies of material and relevant documents only which may include the copy of statement of witnesses recorded during the investigation to preliminary enquiry or the copy of any other document which may have been relied in support of the charges.'
On the facts of that case, it was found that the copy of report submitted by the police in criminal case relating to the alleged theft by the delinquent was not supplied to him, but the documents were not relied on by the Inquiry Officer. Under the circumstances, the Supreme Court has held that the document not being relevant or material, non-supply of its copy did not amount to violation of the principles of natural justice and no prejudice was caused to the delinquent. In cross-examining the concerned Police Officer.
The Supreme Court has held that if the statement of witnesses recorded during investigation of a Criminal case or in the preliminary enquiry, is not supplied to the delinquent officer that would amount to denial of opportunity of effective cross-examination. Here in the facts of the present case, it is not in dispute that the statements of the witnesses recorded at the preliminary stage were supplied to the petitioner and it cannot be said that the petitioner was denied opportunity of effective cross-examination because the petitioner had never expressed his desire to cross-examine the witnesses whose previously recorded statements were relied on at the departmental enquiry.
11. In my view. The point is no longer res-integra and a person whose statement is recorded previously need not be examined at the enquiry and his previous statement can be relied upon at the enquiry. In the case of State of Haryana (supra) when the Flying Squad undertook inspection of a bus, certain passengers were found without tickets. The proceedings were initiated against the Conductor. Inspite of departmental instructions to the checking Inspectors to record statements of passengers, the statements could not be reduced into writing by the Flying Squad. in view of the facts that though all of them had stated orally that they had paid the amount of fare, but were not issued tickets, they refused to give statements in writing. None of them was examined at the inquiry. Yet an order of termination from service was passed against the delinquent which was challenged by him by filing a suit. Dealing with the contention of admissibility of oral statements of the passengers, the Supreme Court has observed as under :
'It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition, it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by Counsels on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiates the conclusion reached, such finding, even though of a domestic Tribunal cannot be held good. However, the Courts below misdirected themselves perhaps in insisting that passengers who had come in and gone out should be chased and brought before the Tribunal before a valid finding could be recorded. The 'residuum' rule to which Counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to the extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular Court proceedings but in a fair common sense way as man of understanding and wordly wisdom will accept. Viewed in this way. sufficiency of evidence in proof of the finding by a domestic Tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the record. We find in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground'.
After considering almost all decisions on the point. It is held in the case of Gujarat State Road Transport Corporation, 1992 (2) GLR 1393, that a disciplinary authority can place reliance on the statements of passengers recorded at the time when the bus is checked by the checking staff, even if they are not examined at the enquiry.
This question has also been considered by the Supreme Court in New Prakash Transport Company Ltd. v. New Suwarna Transport Co. Ltd. AIR 1957 SC 232. There the facts were that a Tribunal constituted under the Motor Vehicles Act had refused to grant a permit to a company to run a bus on a certain route. Then the company filed a writ application in the High Court of Nagpur attacking the order refusing the permit on the ground inter alia that the Tribunal had acted on a police report which was produced at the time of hearing without giving the petitioner sufficient opportunity to meet it and had thereby violated the rules of natural justice. Agreeing with this contention, the learned Judges of High Court had set aside the order. In reversing the order of High Court, the Supreme Court held that the police report was information on which the Tribunal was entitled to act and as it was read at the enquiry in the presence of the parties and they had been heard on it, there had been sufficient compliance with the rules of natural justice.
In view of the unequivocal and clear proposition of law, it becomes evident that there is no legal bar on the disciplinary authority in placing reliance on the statements of witnesses recorded previously without examining the said witnesses at the enquiry. It is well settled that strict and technical rules of evidence and procedure do not apply to departmental enquiries and the connotation 'evidence' cannot be understood in a narrow technical sense so as to include only that evidence which is admissible in a proceeding before the Court of law where a person is examined as a witness by administering oath. There is no bar to receive hearsay evidence provided it has reasonable nexus and credibility. It is open to the disciplinary authority to accept, rely and evaluate any evidence having probative value and come to its own conclusion, keeping in mind judicial approach and objectivity, exclusion of extraneous material and observance of the rule of natural justice as well as fair play. The essence of the principle is that fair opportunity should be afforded to the delinquent at the enquiry. Having regard to the totality of circumstances and the facts of the case, I am of the opinion that consideration of previously recorded statements of witnesses who were not examined at the enquiry has not vitiated the findings recorded by the competent authority.
12. Even if one were to agree with the submission of Mr. Mehta, learned counsel for the petitioner that previously recorded statements of the witnesses who were not examined at the enquiry could not have been relied upon for the purpose of coming to the conclusion that charges of misconducts levelled against the petitioner are proved, the question still arises as to whether consideration of those statements would vitiate the findings recorded by the inquiring authority and approved by the disciplinary authority.
In the case of Railway Board, New Delhi & Anr. (supra), the Supreme Court considered the question whether the view that if an order of removal is based on number of grounds and one or more of those grounds are found to be unsustainable, the order is liable to be struck down, is right. Before the Supreme Court, it was not in dispute that the first charge levelled against the respondent was a serious charge and it would have been appropriate for the authority to remove the Respondent from service on the basis of finding on that charge. It was argued before the Supreme Court that the Court should not assume that the appropriate authority would have inflicted that punishment solely on the basis of that charge and consequently the Court should not sustain the punishment imposed if it was held that one of the two charges on the basis of which it was imposed was unsustainable. While negativing that contention, the Supreme Court has held that if the order in an enquiry under Art. 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. Similar is the view expressed by the Supreme Court in the case of Pyare Lal Sharma (supra).
This question is dealt with by Apex Court in detail in the case of State of Orissa & Ors. v. Bidyabhushan Moohpatra, AIR 1963 SC 779. Therein the Administrative Tribunal constituted under Rule 4(1) of the Disciplinary Procedure (Administrative Tribunal) Rules, 1951 recommended that the respondent be dismissed from service. The respondent was dismissed from service after following the procedure. In a petition under Arts. 226 and 227 of the Constitution. The High Court held that there was evidence to support the findings on heads (c) and (d) of Charge (1) and on Charge 2. The High Court directed that the State Government should decide whether on the basis of those charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice. While allowing the State appeal, the Supreme Court has made the following pertinent observations in para 9 of the judgment :
'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 Government 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 Art. 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 justifiable. Therefore, if the order may be supported on any findings 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'.
Again in the case of the State of Maharashtra v. B. K. Thakkmore, AIR 1967 SC 1353, the State Government had passed an order superseding Nagpur Municipal Corporation. The order was based on two grounds, one of which was relevant and the other irrelevant. After relying on the ratio laid down in case of State of Orissa & Ors., AIR 1963 SC 779, it has been held that where an order is based on several grounds, some of which are irrelevant then if there is nothing to show that the authority would have passed the order on the basis of relevant and existing grounds that order cannot be sustained, where, however, the Court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds and the exclusion of irrelevant or non-existing ground could not have affected the ultimate opinion or decision of the authority, order has to be sustained.
The law on the subject is well settled. The principle that if some of the reasons relied on by a domestic Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated applies to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to the irrelevant or invalid, it would be impossible for a superior Court to find out which of the reasons relevant or irrelevant, valid or invalid had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the domestic Tribunal even if some of its was irrelevant, a superior Court would not interfere if the finding can be sustained on the rest of evidence. The reason is that in a writ of certiorari, the Superior Court does not sit in appeal but exercises only supervisory jurisdiction and therefore, does not enter into question of sufficiency of evidence. There is, in my view, legal evidence before the Disciplinary Authority upon which it was entitled to rest its finding that the misconducts alleged against the petitioner were proved.
13. In the facts of the present case, it is found that in Article of Charges, several charges of irregularities and misconducts were levelled against the petitioner. It is not the case of the petitioner that the previously recorded statements of witnesses who were not examined at the departmental enquiry, have connection or relevance to all the charges of irregularities and misconducts mentioned in the Article of Charges. Therefore, even if the previously recorded statements of witnesses not examined at the enquiry are excluded from consideration, the impugned orders will have to be sustained. Even otherwise also, the assessment of evidence made by the inquiring authority indicates that the previously recorded statements were used as corroborating the evidence tendered by the witnesses examined at the enquiry proceedings. Under the circumstances, I am of the opinion that use of previously recorded statements of witnesses examined at preliminary enquiry has not vitiated in any manner the findings recorded by the inquiring authority as approved by the disciplinary authority. Therefore, the first contention raised on behalf of the petitioner has no substance.
14. It was next submitted by the learned Counsel for the petitioner that a copy of the report of the inquiring authority was not supplied to the petitioner and, therefore, the impugned orders are liable to be set aside. In my opinion, this contention has no factual basis. From the record of the petition, it is evident that the inquiring authority submitted the report on January 13, 1990 to the disciplinary authority. The disciplinary authority i.e., Zonal Manager supplied copy of the report of inquiring authority to the petitioner along with a forwarding letter dated February 8, 1990. The letter dated February 8, 1990 is on the record of the petition and it indicates beyond doubt that the copy of report dated January 13, 1990 submitted by the inquiring authority was made available to the petitioner for his perusal and record. By letter dated February 8, 1990, the petitioner was also called upon to submit his written representation within 15 days on receipt of the report of the inquiring authority. The order of dismissal clearly indicates that the petitioner had submitted written representation on February 22, 1990 and the disciplinary authority after going through the said representation carefully, had passed the order dismissing the petitioner from service. Having regard to the facts of the case, it is not correct to say that the copy of the report of the inquiring authority was not supplied to the petitioner. In view of this state of affairs, there is no substance in the second submission advanced on behalf of the petitioner.
15. Lastly, it was contended that copies of (1) Joint Inspection Report of Internal Auditor Shri G. M. Shah and the C.S.O. and (2) report of investigating officers M/s. Mavani, Chellappa, Vashi, G. M. Shah and R. L. Parekh though demanded by the petitioner vide letter dated August 24, 1988, were not supplied to the petitioner and thus, the principles of natural justice having been violated, the petition deserves to be allowed. It is an admitted position that Joint Inspection Report of Internal Auditor Mr. G. M. Shah as well as the report of investigating officers have not been relied upon either by the inquiring authority or by the disciplinary authority for the purpose of coming to the conclusion that the charges of irregularities and misconducts levelled against the petitioner are proved. As those two reports have not been relied on, it was not necessary for the inquiring authority or for the disciplinary authority to supply copies of those two reports to the petitioner. In my view, non-supply of copies of two reports has not resulted into violation of the principles of natural justice. The impugned orders are not liable to be set aside on the ground that the petitioner was not furnished copies of the reports as demanded by him by his letter dated August 24, 1988.
Except the above referred to contentions, no other contention has been raised on behalf of the petitioner in support of the petition.
In view of the above discussion, the petition fails. Rule is discharged with no order as to costs.
16. Rule discharged.