Judgment:
J.R. Chopra, J.
1. This writ petition has been filed by the petitioner challenging the order of General Manager, the Bank of Rajasthan Limited, dated 22nd of July, 1988, marked as Anx. 2, whereby the General Manager of the aforesaid Bank has ordered for the dismissal of the petitioner from services of the Respondent Bank with immediate effect as also the appellate order of the Chairman and the appellate authority of the Bank dated 6th of December, 1988, marked as Anx. 5, whereby the order of dismissal has been converted into one of compulsory retirement of the petitioner from the Bank's services and the petitioner was made entitled to the payment of pension and gratuity payable to the Officers of the Bank and the order of the Board marked as Anx. 7, dated 17.7.89 where by the mercy petition of the petitioner was dismissed and the Board deprived the petitioner from the Provident Fund Contribution made by the Bank to his P.F. Account and further deprived him of the payment of gratuity. They were forfeited. The initial resolution in that respect was passed by the Board of Directors on 1.2.89 and the same was conformed at the time of the rejection of his mercy petition dated 26.3.89.
2. The facts necessary to be noticed for the disposal of this writ petition briefly stated are that the petitioner was initially appointed on the post of officer in the Bank of Rajasthan on 18.5.1957. Later he was promoted as Assistant Manager, Manager and Manager A Grade, with effect from 8.3.58, 22.6.60 and 1.1.76 respectively and continued to discharge duties as such Manager Grade A till 22.6.88 when he was ordered to be dismissed from service vide Anx. 2. It was claimed that the Bank of Rajasthan is a registered body under the Banking Act of 1949. It is discharging different functions, i.e. to promote the economic interest of the public and is actively participating in the draught relief programme within the guidelines issued by the Reserve Bank of India and caters to all types of credit needs of all the persons belonging to economically weaker-sections of the society. It is managed by 11 Directors, out of which four are nominated by the Reserve Bank of India under Section 37A and B of the Banking Regulation Act of 1949. It is a scheduled and a licenced Bank and has to keep its reserves with the Reserve Bank of India. Thus, it discharges public nature of functions and, therefore, it is an instrumentality of the State and, therefore, a State under Article 12 of the Constitution. It was claimed that the petitioner, was issued with a chargesheet by the 2nd Respondent, i.e. the Chairman and the Chief Executive Officer of the Bank vide his letter No. 33/PER/413/81 dated 10.1.81. Briefly stated, the charges are as under:
1. 'That he made advances beyond his powers, without obtaining the sanction from the competent authority;
2. That he was grossly negligent in conducting the advances portfolio at the BIO Kanpur in respect of various parties;
3. That he accommodated various parties by granting O.D. limits despite suspension of his sanctioning and discretionary powers;
4. That he concealed the relevant Information from the Central Office;
5. That he authorised the payment of a cheque for Rs. 6000/- in the a/c of M/s Idsun Industries when sufficient D.P. was not available.
3. The copy of the chargesheet is Anx. 1. The inquiry was conducted by four officers; Last being Shri S.N. Gupta who was promoted as Manager Grade A on 173.83 whereas the petitioner was promoted as Manager Grade A on 1.1.76. Thus, he was definitely junior to the petitioner and could not have conducted disciplinary enquiry against him. It is alleged that only four witnesses were examined from the side of the prosecution. Shri F.L. Lodha, Chief Officer, Inspection, who inspected the work of the petitioner was not examined inspite of request. Shri N.K. Bhootani who was officer at Kanpur was also not examined. The copy of Reserve Bank of India Inspection Report was also not produced in the enquiry. All these facts were brought to the notice of the authorities but they were of no avail and it is alleged that they have prejudiced the defence of the petitioner. The copy of the Inquiry Officer's report was served on the petitioner with his dismissal order. Earlier to it, the copy of the enquiry report was not supplied to the petitioner. The enquiry report is dated 16.2.87, which was Supplied to he petitioner with the dismissal order on 22.7.88. The order was passed by the 3rd respondent, i.e. the General Manager of the Bank of Rajasthan who is not his appointing authority. He was appointed Manager Grade A by the Chairman of the Bank and. therefore, the dismissal order could not have been passed by the General Manager. The enquiry report discloses that charge Nos. 1, 4 and 5 were not proved. As per the Inquiry Officer, the charges Nos. 2 and 3 were only partly proved. There is no provision for a charge to be partly proved. Be that as it may, the disciplinary authority disagreed with the findings of the Enquiry Officer on charges Nos. 1, 4 and 5 and held them proved without giving any opportunity to the petitioner of making his submissions. Even the Enquiry Officer did not take into considerationthe written arguments submitted on behalf of the defence. It is alleged that the enquiry report is fabricated and the signatures of Shri S.N. Gupta on it are forged. They donot tally with the admitted signatures as they exist on Anx. 3. A detailed appeal was submitted by the petitioner on 8.8.88 against the order of respondent No, 3 dated22.7.88, the copy of which has been filed on record as Annx. 4 but respondent No. 2 did not consider the contentions raised in the memo of appeal and disposed of theappeal vide his order dated 6.12.88 by a cryptic order modifying the order of the petitioner's dismissal to that of a compulsory retirement with effect from 22.7.88.When the original order was issued by the officer who was not authorised to issue such an order, the appellate order does not cure that order. The second appeal ormercy petition before the Board of Directors also met the aforesaid fate and inspiteof the fact that the order of compulsory retirement has been maintained but the orderof the Board forfeiting his gratuity amount P.F. contribution made by the Bank almost converted the order of compulsory retirement into that of removal. Even the defencewitnesses were not examined and, therefore, the petitioner has claimed that all theseorders being illegal and against the principles of natural justice and fair play deserve to be quashed.
4. A reply to the writ petition was filed on behalf of the respondents in which a preliminary objection was raised that this Bank is a public limited company which was initially established under the Mewar Companies Act of 1942, which Act was subsequently repealed by the Companies Act of 1956 and now the Companies are governed by the Indian Companies Act, 1956. The Management and affairs of the Bank of Rajasthan are not controlled by any agency or instrumentality of the State. It is not a Government company but it is private body and, therefore, it cannot be treated to be a State under Article 12 of the Constitution because neither the entire share capital is held by the Government nor the Company enjoys the monopoly status conferred by the State nor the functions which are performed by the bank are governmental functions or functions closely related thereto. No department of the Government has been transferred to the Corporation. There is no State control. The colume of financial assistance is...negligible and no statutory duties are performed by it and thus this being neither a state nor an instrumentality of the state, the writ petition does not lie against it. Rather it has been stated that neither this company is financed by the Government nor the Government has any share holding in the respondent company. It is not statutory body exercising or performing statutory functions or powers and is not supported by the State Act and, therefore, the writ a petition deserves to be dismissed.
5. No reply has been filed to the Governments made in the writ petition. The petitioner has filed certain documents Anx. 11, 12, 13 and 14 to show that the petitioner has been appointed by the chairman. The respondents have chosen to file written statements only with respect to their contention that the respondent Bank is not a State or an instrumentality of the State. No reply has been filed to any other contentions raised by the petitioner in his writ petition and thus they go uncontinuted. From the side of the petitioner, additional submissions were made on 18.7.1983, and in which it was pointed out that officers in grade A are appointed by the Chairman and the petitioner was so appointed vide Anx. 16 dated 17th March, 1976 and was confirmed vide Anx. 5 on that post. It is dated 7.9.76. The petitioner has also filed Anx. 16 which is the seniority-list of the officers as on 31st May, 1985 and it is disclosed in that list that officers in scale No. II Shri K.M. Mohnot's name is at serial No. 4 whereas Shri S.N. Gupta finds mention at serial No. 7. Thus, it was claimed that he was definitely senior to the Enquiry Officer. This Court on 23.7.93 asked the counsel of the respondent to clarify whether Shri S.N. Gupta who has held inquiry against Shri Mohnot, is junior to Shri K.M. Mohnot. That fact has been admitted in the additional affidavit filed by Shri Deepak Kiran. The respondents were also asked to clarify whether the alleged signatures of Shri S.N. Gupta on the enquiry report, are forged or not, about which it is claimed that Shri S.N. Gupta suffered from the disease of paralysis some time in the month of March, 1986 which will be clear, from the certificates submitted by him on 9.2.86 marked as Anx. R/1 and R./2 filed with the additional affidavit. It is claimed that the signatures of Shri S.N. Gupta are similar to the signatures made by him on his representation dated 31.7.87 and, therefore, they are not forged. The Court further directed the respondents to clarify whether the General Manager who passed the dismissal order against the petitioner could function as a disciplinary authority and whether he is the Appointing Authority of the petitioner or not to which a clarification was given that the petitioner has been appointed by the order of the Chairman of the Bank but it was claimed that the powers of the disciplinary authority have been delegated to the General Manager of the Bank by the Board of Directors of the respondent Bank which fact was duly notified through a circular and it was claimed that in view of the specific delegation of powers made in favour of the General Manager, the power of the disciplinary authority had been rightly exercised by the General Manager of the Bank in case of the petitioner. Neither the date of the resolution of the Board has been disclosed nor the copy of the resolution by which such powers of the disciplinary authority were conferred on the General Manager has been filed. Even the copy of the Circular authorising the General Manager of the Bank to act as a disciplinary authority has been filed.
6. I have heard Shri J.K. Kaushik appearing for the petitioner and Shri J.P. Joshi appearing for the respondents.
7. The entire thrust of Shri J.P. Joshi's submission is that the respondent bank not being a state, as defined in Article 12 of the Constitution and it not being an instrumentality of the State or any department of the State, no writ petition is maintainable against it. In this respect Mr. Joshi has taken a preliminary objection that no writ of mandamus lies against the Bank and, therefore, the writ should be dismissed. In support of his arguments he has drawn my attention to the decision of the learned single Judge of this Court rendered in Hirlal v. Railway Shramik Sahakari Bank Limited reported in 1983 RLW 29, in which it was held that the writ lies against the State or other authorities. Non-petitioner Railway Shramik Sahakari Bank Ltd. is not a State or other authority. It has been registered as a society under the Societies Registration Act and does not become State or other authority ipso facto. The petitioner has to show that it is an instrumentality or agency of the State. It was pointed out by the learned single Judge that no Government control has been pointed out. In fact, the society is run by the members. Main financial source of the society is the share capital and the deposits made by the members of the society. The society accepts the deposit only from the members and advances the loan for carrying on bank business only amongst its members and thus it is not an instrumentality of the State.
8. My attention was next-drawn to a decision of J & K High Court in the case of Jagdeesh Chandra Gupta v. J. & K. Bank Ltd. reported in . The learned Judges of the Division Bench observed that the entire share capital of J. & K. Bank was not owned by the State Government. It only owned major portion and the rest of it was owned by private persons. The entire expenditure of the bank was not met with the financial assistance of the State Government. It did not enjoy monopoly status. It is not state controlled or state protected. It may have monopoly qua State Government but did not have monopoly status in the State which was protected by law. The State did not exercise deep and pervasive control. The administrative control vests in the Board of Directors, the majority of them being from the general public. Seven out of the ten Directors are not connected with the State Government. Its functions were not of public importance and closely related to the Government. It has been established as business concern in the year 1938 and started transacting the bank business with 8 individuals under the Company Law then applicable to the State and thus its officials were not other authorities for the purposes of Article 12 of the Constitution and, hence, it is not amenable to the writ jurisdiction. The financial control of the bank did not fulfil any of the tests laid down in AIR 1981 SC 287, so as to make it an instrumentality or agency of the State Government or an authority within the meaning of Article 12 of the Constitution.
9. My attention was next drawn to the decision of the Supreme Court rendered in Tek Raj Vasananda v. U.O.I. reported in : (1988)ILLJ341SC . The Institution of Constitutional and Parliamentary-status was registered under the Societies Registration Act of 1960 and, therefore, it is not the State within the meaning of Article 12 of the Constitution. Their lordships observed that there are certain decisions which have been formulated by several cases of the Supreme Court to find out whether any institution is a State. However, their Lordships felt that there cannot indeed be a straight-jacket formula. It is not necessary that all the decisions should be specified for reaching the conclusion either what was against...holding an institution to be a State. In a given case some of the features may emerge so patently that second view may not be possible and there may yet be other cases where matter would be on the border line and it will be difficult to take one view or the other outright. Their Lordships in that case felt that the objects of the society were not governmental-business. The objects certainly were to equip members of Parliament and State Legislatures with requisite knowledge and experience for better functioning. The memorandum of society permits acceptance of gifts donations and subscriptions. No doubt the annual contribution from the government has been substantial yet some money has been coming from other sources also. Their Lordships taking into consideration the broad picture of the matter held that ICPS cannot be held to be either a State or an agency or instrumentality of the State so as to come within the meaning of other authority under Article 12 of the Constitution. Their Lordships, in para 21 observed that although the employees of the institution may not be state employees or holders of civil posts and hence they may not be entitled to be covered by Article 311 of the Constitution, but benefits of Part III i.e. fundamental rights will be available to them in that context the dismissal of the employee of the Institution of Constitutional or Parliamentary Statutes was set aside and the proceedings were restored to the stage of the enquiry. Thus, it has been held that although ICPS may not be an instrumentality of the State or a State or an Agency of the State still its employees can claim benefit of part III of the Constitution.
10. My attention was next drawn to a single Bench decision of Andhra Pradesh High Court in Navbharat Corporation v. Nagarj Una Fertilizers and Chemicals Ltd. Kakinada and Anr., respondents reported in AIR 1990 NOC 106 AP, in which the learned Judge observed that a mere financial assistance given to a corporation by financial Corporation or other Financial Agencies, does not constitute financial assistance by Government. The fest of deep and pervasive supervisory control has to be established and if it is not there, it is not a State under Article 12 of the Constitution.
11. Lastly my attention was drawn to a recent decision of their Lordships of the Supreme Court rendered in Chandra Mohan Khanna v. National Council of Educational Research and Training and Ors. reported in : (1992)ILLJ331SC . The Institute undertakes activities comprising of documents and activities connected with coordination and research services and training. It is not wholly related to Governmental functions. Government control is confined only to proper utilization of Government grant which is only one source of its income and, therefore, the institute was not held to be a State. Their Lordships observed that Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the speciality of expression State. The State control does not render such bodies as State under Article 12. However, it was observed that if the State control is not deep and pervasive then it is not determinatable. Even the financial contribution is also not conclusive. The combination of State aided capital that is owed, degree of control over the management and policies of the body and running of important public service being the obligatory function of the State may point out that the body is a State, If the Government operates behind a corporate, veil, carrying out governmental activity and governmental functions of vital public importance there may be little difficulty in identifying the body as State within the meaning of Article 12 of the Constitution. Mr. Joshi has submitted that neither there is any share holding in this Bank of the State Government nor there is a State control. Only four out of ten directors are appointed by the Reserve Bank of India. The control is neither deep nor pervasive and financial assistance is negligible. No monopolistic status is available and, therefore, the respondent Bank cannot be treated as a State or an instrumentality of the State.
12. As against this, Shri J.K. Kaushik submitted that a Division Bench of this Court had an occasion to examine this matter in the case of Ishaq Mohd. and Ors. v. Jaipur Metal and Electricals Ltd. reported in 1988(1) RLR 157 wherein their Lordships of the Division Bench held that M/s Jaipur Metal and Electrical Co. registered under the Companies Act is an authority falling within the definition of the State under Article 12 of the Constitution. It was a relief undertaking and has been held to be instrumentality or agency of the Government and thus an Authority which is covered by the term State within the enlarged meaning of this expression in Article 12 of the. Constitution and as such amenable to writ jurisdiction. The learned Judges after critical review of the various authorities decocted fourteen test and/or circumstances to establish whether a corporation/society/company is a State or not. I need not mention all these fourteen tests here and make the judgment unnecessarily lengthy, but the learned Judge keeping in view those tests treated the company to be an instrumentality of a State and the termination of the services of the employee in violation of principles of natural justice was held to be a termination order which was void and it was held that the High Court under Article 226 of the Constitution can interfere.
13. My attention was next drawn to the decision of the Division Bench of this Court rendered in Phool Chand v. State of Rajasthan reported in 1985 RLR page 365 wherein a Division Bench of this Court held that the Central Cooperative Bank Bharatpur is an authority or instrumentality of the State and as such it was amenable to the writ jurisdiction. The Bank was registered under the Cooperative Societies Act 1965. Certain authorities were relied upon and the decision of the learned single Judge that the Central Cooperative Bank Bharatpur is an instrumentality or the agency of the State for the purpose of Article 12 of the Constitution was upheld.
14. Mr. Kaushik next drew my attention to the decision of their Lordships of the Supreme Court rendered in Central; Inland Water Transport Corporation Limited and Ors. v. Bajonath Gangooli and Ors. reported in : (1986)IILLJ171SC . Their Lordships observed that where an interpretation clause defiances a word to mean a particular...thing and the definition is explanatory then prima facie it is restrictive but whenever an interpretation clause defines a term to include something the definition is extensive. Article 12 of the Constitution uses the word `includes'. It has thus extended the purpose of expression the 'State' so as to include within it also what otherwise may not even have been apprehended by that expression when used in its ordinary legal sense. The definition of expression State in Article 12 is for the purpose of part III and IV of the Constitution. The contention of these two parts clearly show that the expression 'the State' in Article 12 as also in Article 36 is not confined to its ordinary and constitutional sense as extended by inclusive portion of Article 12 but is used in the concept of the State in relation to the fundamental rights guaranteed by part III of the Constitution and the directive Principles of State policy contained in part IV of the Constitution which principles are declaratory by Article 37 to be fundamental to the governance of the country and enjoins upon the State to apply then in making laws. For purpose of Article 12 one must necessarily see through the corporate veil for the purpose of Article 12 one must necessarily see to ascertain whether behind the veil is the face of an instrumentality of agency of the State. Their Lordships held that the Central Inland Water Transport Corporation carries out governmental activity or governmental functions of vital importance and thus it is a State within the meaning of Article 12 of the Constitution.
15. Mr. Kaushik lastly relied on the decision of their Lordships of the Supreme Court rendered in Anandi Mukta Sad-Guru Sri Munktajeevan Das Swami Svaran Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani reported in : (1989)IILLJ324SC . This is a land mark judgment in which their Lordships observed that under Article 226 expression 'any person or authority' has been used and, therefore, it need not be confined only to the statutory authority or instrumentalities of the State. A mandamus under Article 226 cannot be denied on the ground that duty to be enforced is not imposed by the Statute. In that case the appellants were a public trust and the other appellants were its trustees and they were running a Science College at Ahmedabad. The dispute between the teachers of the University and also the teachers of the University Area Association and the University was referred for arbitration to the Chancellor. The award given by the Chancellor was accepted by the State Government as well as the University and a letter was issued giving direction to all affiliated colleges to pay their teachers in terms of the award. The appellants instead of implementing the award served notices of termination upon its 11 teachers on the ground that they were surplus and approached the University for permission to remove them. The Chancellor refused that permission whereupon they closed the college. The retrenched staff claimed arrears of salary and allowances along with their termination order but the Management refused to oblige and did not pay them the retired benefits and, therefore, they moved the High Court to issue a writ of mandamus. The High Court accepted the writ. The Trust and the Trustees went in appeal before their Lordships of the Supreme Court. Their Lordships felt that Article 226 of the Constitution confers wide powers to issue writs in the nature of prerogative writs. In addition to that their Lordships felt that under Article 226 writs can be issued to any person or authority.' It can be issued for the enforcement of any of the fundamental rights or for any other purpose. There is a striking departure from the English Law. Under the English Law the prerogative writs of mandamus is confined only to public authorities to compel performance of public duty. The public authority' means every 'body' which is created by statute and whose powers and duties are defined by the statute. But the words 'any person or authority' used in Article 226 have not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body is not very much relevant. What is relevant is the nature' of the duty imposed upon the body. The duty imposed has been judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. Their Lordships further observed that the mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water tight compartments. It should remain flexible to meet the requirement of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach the injustice wherever it is found (emphasis supplied). Technicalities should not come in the way of granting that relief under Article 226 of the Constitution. In this judgment their Lordships observed that
Article 226 confers wide powers on the High Courts to issue writ in the nature of prerogative writs. This is a striking departure from the English Law. Under Article 226, writs can be issued to 'any person or authority.' It can be issued' for the enforcement of any of the fundamental rights or for any other purpose.''
Article 226 reads:
'226 Power of High Courts to issue certain writs(1) notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including In appropriate cases, any Government within those territories directions, orders of writs, including (Writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.'
xxx xxx xxxThe scope of this Article has been explained by Subba 'Rao J., in Dwarkanath v. Income-tax Officer : [1965]57ITR349(SC) .
This article couched In comprehensive phraseology and it ex-facie confers a wide powers on the High Court to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom It can be exercised. It can issue writs In the nature of prerogative writs as understood in England; but the use of the expression 'nature', for the said expression does not equate the writs that can be issued in India with those in Enland, but only draws an analogy from them. That apart, High Courts can also issue directions orders or writs other than the prerogative writs. It enables the High Court to mould the relief to meet the peculiar and complicate requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.
The term 'authority' used in Article 226, in the context, must receive a liberal meaning unlike the term In Article 12. Article 12 Is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Court to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'Any person or authority' used in Article 226 are, therefore not to be confined only to statutory authorities and Instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person of authority to the affected party. No matter by what means the duty is imposed. If a. positive obligation exists mandamus cannot be denied.
In Praga Tools Corporation v. Shri C.A. Imanual and Ors. (1991) 3 SCR 773, this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body. It was observed at page 778:
It is however not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official or a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also He against a company constituted by a statute for the purpose of fulfilling public responsibilities (See Halsbury's Laws of England (3rd ed. vol. II Pp. 512 and downwards).
Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced Is not imposed by the statute. Commenting on the development of this law, Professor e Smith states: 'To be enforced by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. '(Judicial Review of Administrative Act 4th Ed. pd. 540). We share this view. The Judicial control over the fast expanding maze of bodies effecting the rights of the people should not be put into water-light compartments. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found.' Technicalities should not come in the way of granting that relief under Articles 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.
It is clear from this judgment that writs in the nature of mandamus.can be issued in cases where fundamental rights of the persons are involved. In this respect I further place reliance on the decision of the Division Bench of the Gujarat High Court rendered in T.S. Rabari v. Government of Gujarat reported in 1992(1) All India Service Law Journal page 113 wherein the learned Judges have held that right to livelihood is included in a right to live as enshrined in Article 21 of the Constitution and it cannot be denied except as per law. Article 21 confers upon the citizen a right to live and, therefore, when one is deprived of his right to live which includes right of livelihood fundamental right is violated and he can certainly approach the appropriate court against the authority which deprives him of that right for issuance of the writ of mandamus and, therefore, even if strictly speaking, the Bank of Rajasthan is neither held to be a state nor an instrumentality of the State but still a writ of mandamus can be issued against it by the High Court in exercise of its powers under Article 226 of the Constitution, if it has wrongly deprived its employee his right of livelihood, keeping in view the aforesaid authority of their Lordships of the Supreme Court in Anand Mukta Sadguri's case quoted in extenso supra.
16. Here the inquiry has been conducted against the petitioner by an officer who is junior to him. He can certainly mar the future chances of promotion or can spoil the career of his own senior if he is given right to conduct an inquiry against his own senior. It will certainly causes prejudice to the senior because it is not unlikely that the junior may take to his head to remove his senior from his way in order to bolster up his own career and, therefore, it has never been appreciated by the courts and other authorities that against a senior person an inquiry should be conducted by a junior person. Such an Act is not only inappropriate but at the same time unjust. Moreover in this case the Inquiry Officer has only held charges No. 2 and 3 as partly proved against the petitioner. Rest of the charges have been held by the Inquiry Officer as not proved against him. The report of the Inquiry Officer was not supplied to the petitioner before punishment order of his dismissal from service was passed against him, and still disagreeing with the Enquiry Officer's report the alleged Disciplinary Authority has held all the charges as proved. The Appellate Authority has categorically recorded a finding that the confirmations of most of the actions of Shri Mohnot were made by his superiors and no waning was given to him so as to act in that way and no action was taken against him when advances were made. Thus this clearly shows that the Inquiry Officer was correct in holding that charges Nos. 1, 4 and 5 have not been proved and 2 and 3 have only been partly proved. However, the Disciplinary Authority held all those charges as proved without supplying the delinquent officer with a copy of the Inquiry Report and has held those charges as proved without affording him an opportunity of hearing. It is against the principles of natural justice. In this respect Mr. Kaushik has placed reliance on a Division Bench decision of the Bombay High Court rendered in Seshrao Daulat Rao Raut v. State of Maharashtra and Ors. reported in 1989 LLJ 340 wherein it was noticed as a fact that the disciplinary authority ordered inquiry on 15 charges. The Inquiry officer held only one out of these charges as proved. The disciplinary authority, however, did not agree with the Inquiry Officer and held all the 15 charges as proved. The question arose whether the disciplinary authority should have heard the employee before reversing the findings of the Inquiry Officer. It was held by the learned Judges of the Division Bench of that Court that the Inquiry Authority has held that only one out of 15 charges has been proved; while the Disciplinary Authority held that all the charges have been proved without giving the employee the opportunity of being heard and hence the Disciplinary Authority has committed a clear breach of its duty envisaged under Article 311(2) of the Constitution. The primary duty of the Disciplinary Authority to give an opportunity to the delinquent employee exists not only throughout the inquiry proceedings before the Enquiry Officer but that duty continues until the Disciplinary Authority arrives at its own conclusion. It is not abridged by the 42nd amendment of the Constitution. The order of the disciplinary authority in such a case imposing the major penalty is void.
17. In this case also the Disciplinary Authority disagreed with the findings of the Inquiry Officer and has recorded his own findings disagreeing with the findings of the Enquiry Officer without supplying the copy of the inquiry report to the petitioner; and without affording him an opportunity of hearing and, therefore, the order passed by the Disciplinary Authority is void even for that reasons. Non-supply of the inquiry report in a quasi judicial proceedings entailing the penalty of dismissal attracts principles of natural justice and, therefore, the copy of the inquiry report has to be supplied to the delinquent officer and he is entitled to know about the contents of the inquiry report. In this respect Mr. Kaushik has placed reliance on the decision of their Lordships of the Supreme Court rendered in Union of India and Ors. v. Mohd. Ramjan Khan reported in AIR 1991 SC 47.
18. It may be stated here that the person who has acted as a Disciplinary Authority is not his appointing authority. Admittedly, the Appointing Authority is the Chairman of the Board who has passed the Appellate order. The General Manager who has passed the order of the dismissal of the petitioner is not the appointing authority of the petitioner. It has been claimed on behalf of the respondents that.the Board of Directors have delegated the powers of the Disciplinary Authority as regards Managers Grade A to the General Manager. Neither the date of the resolution has been disclosed nor a copy of that resolution has been filed nor the copy of the circular which has been issued in pursuance of that resolution of the Board of Directors has been filed and, therefore, a bald allegation that General Manager has been delegated the powers cannot be sustained. Thus the order Anx. 2 dismissing the petitioner from service is bad in law because it has net been passed by the Appointing Authority and, therefore, it deserves to be quashed. When that initial order is bad and honest all orders passed by the Appellate Authority or the Hoard also cannot be sustained because the initial order of the Disciplinary Authority has been passed in violation of the principles of natural justice i.e. without giving the petitioner a copy of the inquiry report and without giving him an opportunity of hearing specially when an order has been passed by the Disciplinary Authority disagreeing with certain findings recorded by the Enquiry Officer and secondly it has been passed by an incompetent person who lacks inherent jurisdiction to pass such an order as he did not happen to be the Appointing Authority of the delinquent officer. Such a patent defect cannot be cured by an Appellate order. Even the Appellate order does not make any mention of the contentions which have been raised in the memo of appeal Anx. 4 and, therefore, that order too is laconic and for the aforesaid reasons nonest. The Board's order forfeiting the P.F. contribution of the Bank and forfeiting the gratuity benefits of the petitioner is also non-speaking. No reasons have been assigned why such an order has been passed by the Board. Even the enquiry that has been conducted against Shri Mohnot by his junior in service also cannot be justified and that is a further ground to quash these proceedings.
19. A contention has been raised that signatures on the Enquiry Report are forged. That is a disputed question of fact. Of course these signatures do not tally with Anx. 3 or even with Anx. 8 dated 1st of April, 1985, Anx. 9 dated 4.9.1985 and Anx. 10 dated 22.7.1988. The Inquiry report is dated 16.2.87. I may be that during the intervening period Shri S.N. Gupta who has suffered from parylsis might have put such signatures and these signatures of course tally with his signatures on Anx. R/3 dated 1.8.86 filed by the respondents and, therefore, so far as this part of the argument of Mr. Kaushik is concerned it cannot be sustained.
20. It was also claimed that certain witnesses were not examined in the enquiry. The petitioner cannot force the Department to examine a particular witness or witnesses from their said. It is their sweet will whom to examine or not to examine to prove the charges against the petitioner or to produce copy of a particular document or report to prove the charges. The petitioner can certainly take advantage out of it and say that adverse inference be drawn for their non-examination or non-production. It has not been disclosed as to what prejudice has been caused to the petitioner or how his defence has been prejudice by non-supply of certain Inspection-Reports. In absence of such a proof this contention becomes avoid of any force.
21. However, this is clear that in this case an incompetent authority has passed the order of the dismissal of the petitioner and, therefore, order Anx. 2 which is based on an enquiry which has been held by a person junior to the petitioner and hence it has to be quashed for the reasons mentioned hereinabove. The Appellate order Anx. 5 and the Board's order Anx. 7 are consequential orders. They also cannot be sustained, firstly, of the reasons mentioned hereinabove and secondly because of the fact that when the initial order itself is nonest unsustainable and has been made by an authority who is not competent to pass such an order then the Appellate order based on the original order cannot be sustained. The Board's order has also to meet the same fate for the aforesaid reasons.
22. This writ petition, therefore, deserves to be allowed and the order Anx. 2 dated 22.7.1988 Anx. 5 dated 6.12.1988 and Anx. 7 dated 17.7.89 are hereby quashed and the respondents are directed to reinstate the petitioner back in service from the date he was dismissed from service i.e. 22.7.88 and he be given all consequential benefits flowing therefrom. As the petitioner's date of superannuation is dated 31.7.90 and as such taking him back in service is almost a formality and he will be treated to be on duty till the date of his superannuation for the purpose of paying him his arrears of salary and other dues as per Rules taking him to be in service till the date of his superannuation and paying him other retiral benefits as per Rules. However, if the Rules of the Rajasthan Bank permit them to take disciplinary action against a retired employee, the respondents will be free to take any action against the petitioner for these alleged acts of omission and commission even after retirement as per law.
23. The writ petition, therefore, succeeds and is decided accordingly with no order as to costs.