Judgment:
ORDER
V.K. Gupta, J.
1. This appeal under Clause 15 of the Letters Patent is filed by the appellant State Bank of India and other appellants against the judgment dated 17.11.95 by a learned single Judge of this court whereby the disciplinary proceedings including the charge-sheet, the enquiry report and the order dated 21.1.92 dismissing the respondent R.N. Banerjee from the service of the appellant bank have all been quashed and set aside with directions to the appellants to treat the respondent/writ-petitioner as having been retired from service of the bank on 28.2.91 and to give him all consequential retirement benefits as are admissible under law. Brief facts leading to the filing of the appeal are that the writ-petitioner (Respondent in this appeal) was working in the State Bank of India where he had joined as a Probationary Officer on 1st March, 1961. In October, 1986 he was posted as the Chief Manager of the bank at its Antwerp (Belgium) branch. He served in that branch uptill April, 1990, thereafter he returned to India on posting. On 17th April, 1990 a show-cause notice was issued to the respondent wherein certain allegations were levelled against him with regard to his allegedly having committed some irregularities and acts of misconduct. We are not concerned with the facts relating to the show-cause notice because ultimately, as initially observed, a formal and regular charge-sheet regarding the same subject matter was also served upon the respondent. However sometime after the issuance of the aforesaid showcause notice the respondent was placed under suspension by an order dated4.9.90 passed in terms of Rule 50A(1)(a) of the State Bank of India (Supervising Staff) Service Rules. This suspension order was challenged by the petitioner in a writ application filed by him in this court which was disposed of on 14th September, 1990 whereby the learned single Judge issued certain directions regarding the nomenclature to be used instead of the suspension order and the payment of subslstance allowance to the respondent. We are not concerned with these directions as such in the present appeal, except to the extent that the learned single Judge also directed that the appellants would be at liberty to initiate disciplinary proceedings against the respondent in accordance with law and to conclude the same within six months from the date of such initiation. Charge-sheet accordingly was issued to the petitioner on 26th March, 1991. The petitioner submitted his reply to his charge-sheet on 12th April, 1991. He simultaneously filed another writ-application under Article 226 of the Constitution of India in this court wherein the legality and validity of the aforesaid charge-sheet was challenged. The writ application however was disposed of on 28.5.91 by Kalyanmoy Ganguli, J. (as he then was). The operative and relevant part of this judgment dated 28-5-91 reads as under:
'The enquiry proceeding is to commence within a fortnight from the date of communication of this order. The enquiry is to be conducted continuously without allowing any adjournment except under compelling circumstances. The enquiry is to be concluded within six months from the date of commencement thereof as indicated hereinbefore. The petitioner is directed to co-operate in the matter of the enquiry. If the petitioner does not so co-operate, the authority concerned will be entitled to proceed ex parte. The report of the enquiry is to be submitted to the appropriate authority within a fortnight from the date of completion of the enquiry. The copy of the enquiry is to be supplied to the petitioner within a week from the date of receipt thereof. The petitioner will be at liberty to make any comments on the report of the enquiry, if any, within a week from the date of receipt thereof. The final order is to be passed within 10 days from the date of receipt of the representation. If any, regarding the enquiry report. The respondents will not give effect to the final order passed in the enquiry for a period of a forthnight from the date of the communication thereof. In default of compliance of any of the directions given herelnabove and on the expiry of the period mentioned above, the enquiry proceeding shall be deemed to have been abandoned by the employer. As the respondents could not file any affidavit-in-opposition, the statement and the allegations made in the writ petition are not admitted. I have not decided the points taken in the writ petition merits. Liberty to mention.'
2. It appears that consequent upon the aforesaid directions of the learned single Judge while disposing of the aforesaid writ application, the first preliminary hearing in the departmental proceedings was fixed on 8.6.91. One Mrs. Vijai Laxml Sharma, who at the relevant time was Commissioner for Departmental Enquiries, Central Vigilance Organisation, Government of India, was appointed as the Enquiry Officer in this case. From 8.6.91 when the first preliminary hearing in the enquiry was conducted by the said Enquiry Officer, the Enquiry proceedings continued and ultimately the Enquiry Officer submitted her report dated 16.12.91wherein she held the respondent guilty of chargesheet 1 to 7 by returning her finding as 'proved' in respect of these charges. However regarding charge No. 8 and 9 she held these charges as 'not proved' and 'established' respectively. By a communication dated 23rd December, 1991 addressed by the Managing Director of the appellant bank to the respondent a copy of the aforesaid enquiry report was forwarded and the respondent was asked to submit his reply/explanation to the said report. The respondent submitted his explanation on 6lh January. 1992. On 16th January, 1992 the Managing Director of the bank as the disciplinary authority submitted a Memorandum to the Executive Council of the Bank recommending dismissal of the respondent from the service of the bank in view of the fact that the charges against him were found proved by the Enquiry Officer. A supplementary memorandum dated 28th January. 1992 was also sent by the Managing Director to the Executive Council. The executive council agreeing with the recommendation of the disciplinary authority passed order on 21.1.92 dismissing the respondent from the service of the bank. It is against the said order of dismissal, connected disciplinary proceedings and the charge-sheet arising therefrom as also the enquiry report that the petitioner filed writ-application under Article 226 of the Constitution of India which, as observed earlier was allowed by the learned single Judge in terms indicated herein above. It is against this judgment that the present appeal has been preferred by the appellant Bank.
3. The learned single Judge, broadly speaking allowed the writ application on two counts. First of all, the learned single Judge found that the enquiry/disciplinary proceedings were not conducted in accordance with law in the principles of natural Justice and rules and regulations on the subject were not properly followed and observed by the Enquiry Officer and others concerned and that the respondent did not get full opportunity of either defending himself effectively or preparing his defence appropriately. According to the learned single Judge all these anomalies and infirmities vitiated the enquiry and prejudiced the respondent. Having thus observed and found that the enquiry and the disciplinary proceedings suffered from glaring illegalities and infirmities, the learned single Judge went on to observe that he still could have asked the Enquiry Officer to carry on the enquiry and complete the same in accordance with law but, as found by him on the second count, the learned single Judge further held that the petitioner from the very thereshold was not at all liable to be proceeded against in the departmental proceedings since as on the date of issuance of the charge-sheet, the respondent was not in the service of the bank. In this regard reliance was placed by the learned single Judge on para 19 of the State Bank of India Officers (Determination of Terms and Conditions of Service) Order 1979 (hereinafter to be referred as 1979 order for short). Para 19 of 1979 Order reads thus:
'19.(1) An officer shall retire from the service of the Bank on attaining the age of fifty-eight years or upon the completion of thirty years' service or thirty years' pensionable service if he is a member of the Pension Fund, whichever occurs first.
Provided that the competent authority may, at its discretion, extend the period of service of an officer who has attained the age of fifty-eight years or has completed thirty years' service or thirty years' pensionable service as the case may be, should such extension be deemed desirable in theinterest of the Bank, so however, that the service rendered by the concerned officer beyond 58 years of age except to the extent of the period of leave due at that time will not count for purpose of pension.
Provided further an officer may; at the discretion of the Executive Committee, be retired from the Bank's service after he has attained 50 years of age or has completed 25 years' service or 25 years pensionable service as the case may be, by giving him three months' notice in writing or pay in lieu thereof.
Provided further that an officer who has completed 25 years' service or 25 year's pensionable service as the case may be, may be permitted by the Executive Committee to retire from the Bank's service, subject to his giving three months' notice in writing or pay in lieu thereof unless this requirement is wholly or partly waived.
(2) Notwithstanding anything to the contrary in this order no officer who has ceased to be in the Bank's service by the operation of, or by virtue of, any provision shall be deemed to have retired from the Bank's service for the purpose of the imperial Bank of India Employees' Pension Fund Rules unless such cessation of service has been sanctioned as retirement for the purpose of either of the said pension fund rules as may be applicable to him.
(3) In case disciplinary proceedings under the relevant rules of service have been initiated against an officer before he ceases to be in the Bank's service by the operation of, or by virtue of, any of the said rules or the provisions of this order, the disciplinary proceedings may, at the discretion of the Managing Director, be continued and concluded by the authority by which the proceedings were initiated in the manner provided for in the said rules as if the officer continues to be in service, so however, that he shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings. Explanation: An officer will retire on the last day of the month in which he completes the stipulated service or age retirement.'
4. After having very elaborately discussed various clauses of the aforesaid para 19 of 1979 Order the learned single Judge came to the conclusion that the respondent having completed 30 years of service in the bank as on 28.2.91 (he having joined the bank service on 1.3.1961), the grant of extension to the respondent by order dated 6th March, 1987 was inappropriate, irregular. Illegal and being contrary to the provlsons contained in para 19 (supra) was not legally enforceable. The extension order dated 6th March, 1987 may also be reproduced as under :
'ID/P&S;/6503 March 06. 1987
Dear Sir,
STAFF SUPERVISING
EXTENSION IN SERVICE
We have pleasure in advising you that you have been granted subject to satisfactory service and continued physical fitness, extension in service upto to January 31, 1992 when you will attain 55 years of age.
Yours faithfully,
Sd/- illigible
for General Manager (Ov. Ops.)'
5. Having thus found on both counts against the appellants, firstly that the enquiry and disciplinary proceedings were vitiated and secondly that in any event the respondent could not have been proceeded against in terms of clause (3) of para 19 of 1979 Order as in March, 1991. the learned single Judge allowed the writ application.
6. The learned Advocate appearing for the appellants has assailed the findings of the learned single Judge on both the counts. The learned Advocate appearing for the respondent on the other hand has urged that under para 19 of 1979 Order, the learned single Judge has rightly held that the petitioner could not be deemed to be in the service of the bank as on the date of issuance of charge-sheet i.e. 26th March, 1991. It is also submitted that even otherwise the enquiry proceedings suffered from grave infirmities, vitiating the proceedings from the beginning and that the dismissal order passed on such proceedings cannot be upheld by this court.
7. Let us take up the first question for our consideration. The examination of this question revolves around the interpretation that we may put upon para 19 of 1979 order. In the light of the extension granted to the respondent vide Order dated 6th March, 1987. Clause(l) of para 19 of 1979 order does clearly stipulate that an officer shall retire from the service of the bank on attaining the age of 58 years or upon the completion of 30 years service, whichever occurs first. The proviso to this cluase authorises the bank at its discretion to extend the period of service beyond 58 years' age or 30 years' service, as the case may be if, in the opinion of the bank such extension is desirable in the interest of the bank. The proviso clearly uses the expression 'extend the period of service of an officer who has attained the age of 58 years or has completed 30 years' service.' The stress undoubtedly in the proviso is found 'attained the age of 58 years' or 'has completed 30 years service'. Mr. Sengupta therefore argued that the question of extension in service beyond the aforesaid stipulated period, either in respect of 30 years' service or with regard to 58 years' age would arise for consideration of the bank only if, as in the case of the respondent, he had completed 30 years of service in the bank. According to Mr. Sengupta on 6th March, 1987 when the Bank decided to grant extension to the respondent in service upto 31.1.1992, neither of the aforesaid two eventualities had happened and, the extension order thus being premature in so far as the applicability of para 19 is concerned, it being de hors 1979 order, was not enforceable and therefore could not be acted upon. According to Mr. Sengupta the respondent therefore was entitled to ignore the extension order dated 6th March, 1987 and deem himself to have retired from the service of the bank on 28.2.91. If his retirement accordingly is considered to have been effective from 28.2.91, in terms of para 19(3) of 1979 order he could not have been issued the charge-sheet on 26.3.91, argued Mr. Sen Gupta. At first glance the argument does appear to be attractive but if one goes deeper into the merits of the submission, one discovers that it is not properly founded. Whether para 19 of 1979 order permitted or enabled the bank to grant extension at a premature stage, or whether despite para 19 the bank was entitled to consider the case for grant of extension four years prior to the completion of 30 years of Service or, even if one may consider, whether para 19 prohibited or prevented the bankfrom granting any such extension except by strictly following the mandate contained in clause (1) of Para 19 are all such questions which strictly do not arise for consideration in the present case. We are saying so on two counts. Firstly because extension order dated 6th March, 1987 did not cause any prejudice to the respondent. The extension order. If at all was to the benefit of the respondent as at the particular point of time when it was issued. The extension, as granted in 1987 and to operate till 31.1.92 was to operate to the advantage of the respondent. Secondly at no point of time right from the date the extension order was issued, did the respondent ever protest against the same. It is not the case of the respondent that he raised any objection about the issuance of the order dated 6th March, 1987 or represent to any one against the grant of extension to him beyond 28.2.91. In fact the enure contemporaneous record and the pleadings of the respondent clearly indicate that he accepted the order without any reservation or demur, presumably with happiness and delight since he was being retained in service even beyond the period after he had completed 30 years of service in the bank. Not only that, at a few stages the respondent even desired that he should be treated in service much beyond 31.1.92 to which of course we are not concerned in this appeal. The fact therefore remains that the respondent accepted the extension order which was to operate till 31.1.1992. This, coupled with all the facts that even as on 26.3.1991 the respondent considered himself to be in the service of the bank and acted accordingly. At no point of time after 28.2.91 did the respondent ever represent to any one that he had ceased to be in the service of the bank nor did he protest to any one that he was being retained in service beyond 28.2.91 against his wishes, or in violation of para 19 of 1979 order. Not only this, in the first writ application filed by him in this court where he had challenged his suspension order, he had not raised any plea about the invalidity or non-applicability of the order dated 6th March, 1987 or against the extension granted to him beyond due date was invalid. All the objections regarding such extension therefore started arising at a later stage. We have therefore no hesitation in holding and concluding that, notwithstanding para 19 of 1979 order, by virtue of the order dated 6th March, 1987 and. as a matter of fact, as a matter of reality, as a matter of substance, the respondent was actually, factually and physically in the service of the bank as on 26-3-91 and therefore, in terms of clause (3) of para 19 of 1979 order he, being in the service of the bank as on that date was liable to be issued the chargesheet.
8. This now brings us to the next question about the vitiation of the disciplinary proceedings and the enquiry against the respondent. We have very carefully gone through the record. We have considered the rival submissions at the bar with minute details. We find that the enquiry by the Enquiry Officer was not conducted strictly in accordance with the principles of natural Justice. We also find that the respondent was not afforded a proper opportunity of effectively defending himself in the enquiry. We find that the enquiry officer did not properly understand the true impact of the judgment of Justice Kalyanmoy Gangull delivered on 28.5.91 and completed the enquiry proceedings in hot haste, seriously prejudicing the interests of the respondent.
9. First of all, if we consider the question of time frame of 6 months as fixed by the Judgment of Justice Kalyanmoy Gangull, we find that in that judgment itself a serious consequence of enquiry proceedings having been deemed to be abandoned by the employer could always be considered to have arisen because of the default committed by the employer itself. We are saying so because the employer and the Enquiry Officer themselves did not strictly follow the mandate of the Judgment dated 28.5.91 and allowed unnecessary adjournments in the enquiry, none of which was asked for by the respondent. The expression used by Justice Kalyanmoy Gangull, 'the enquiry is to be conducted continuously without allowing any adjournment except under compelling circumstances' appears to have been followed more in breach than in compliance. We noticed that the Enquiry Officer granted unnecessary adjournment from 25th June, 1991. We have noticed that the preliminary hearing in the enquiry was fixed on 8.6.1991 and at the preliminary hearing itself the presenting officer brought the lists of documents and witnesses upon which the department sought to rely to substantiate the charges against the respondent. The Enquiry Officer directed the department representative to make out duly authenticated copies of the documents relied upon by the department on 10.6.91 and time was granted to the respondent till 24.6.91 to submit his list of additional documents and witnesses required in defence. Time was given till 29th July, 1991 for the presenting Officer to collect the documents. The date of regular hearing was fixed on 5-8-91 at Calcutta. Instead of 5-8-91 however, the hearing took place on 6-8-91. During this period various efforts were made by the respondent to procure the witnesses from Antwerp (Belgium) and to make efforts regarding the documents etc. etc. On 6-8-91 two witnesses were examined and certain documents were produced on behalf of the bank. On 7/8/9/10th August, 1991 further evidence was taken. On 10th August, 1991 the case of the prosecution was declared closed by the Enquiry Officer. The enquiry was adjourned to 25th September, 1991 at Calcutta and the respondent directed to lead his evidence. In the meantime on 6th September, 1991 at Delhi the Enquiry Officer passed a detailed order with regard to the request of the respondent for payment of TA/DA to defence witnesses. She directed that this matter be decided by the disciplinary authority. Interestingly in this order it was recorded that the respondent's request to recall some prosecution witnesses for further cross-examination was turned down on the ground that such request for such recall should come from the presenting Officer and not from the respondent. The enquiry however could not be resumed on 26th September, 1991 because in the meantime the bank could not take a decision regarding the request of the respondent for defraying the expenses of the defence witnesses cited by him. Initially, by a letter dated 25th September. 1991 the Chief Vigilance Officer of the bank informed the respondent that the bank would provide TA/DA to the bank staff who are coming from within india or abroad but no TA/DA would be paid by the bank for any witnesses who might be called as witness for defence from abroad and was not the member of the Bank Staff. The respondent had requested for examining only one person as a non-staff member as his witness who was to come from abroad. Later on the bank agreed to provide the TA/DA for this witness as well. The hearing accordingly was resumed on 14.11.91 and continued on day-to-day basisuptill 16.11.91. During this period the evidence for the defence was taken. The Examination-in-Chief of the respondent had started on 15-11-91 and continued on 16.11.91 when it remained inconclusive. The next date was fixed on 19th November. 1991, then adjourned to 20lh November. 1991.
10. The petitioner admittedly is a patients of leucomia (blood cancer). Even though on 20th November, 1991 the matter was fixed for the statement of the Respondent, the proceedings could not begin because the respondent informed the Enquiry Officer that he was unwell and was advised bed rest by his doctor. It appears that the Enquiry Officer went to the residence of the Respondent on that date but because the respondent could not resume his deposition, it was agreed that keeping in view the time constraint as fixed by the High Court, his deposition be completed latest by 25/26-11-91. It appears that respondent informed the Enquiry Officer at Delhi on 22nd November, 1091 that he was ready to complete his deposition but not on 25th November, 1991. He informed her that it could be resumed on 26th November or thereafter. Despite such request the Enquiry Officer closed the evidence of the respondent while sitting at Delhi on 25th November, 1991 itself. She passed this order in the absence of the respondent. She did not permit the respondent to conclude him examination-in-chief or to be cross-examined. The respondent's request for extension by a day or two was not allowed. The Presenting Officer was given time till 29.11.91 to submit his brief with advance copy to the respondent and the respondent was allowed time to submit his brief latest by 7th December, 1991. The Presenting Officer sent a copy of his brief to the respondent on 28.11.91. The respondent however by a letter dated 12th December, 1991 asked the Managing Director of the bank to treat the enquiry as having been abandoned because of the specific order of Justice Kalyanmoy Gangull. By a letter dated 23rd December, 1991 however the Managing Director sent to the petitioner a copy of the Enquiry Report submitted by the Enquiry Officer asking him to submit his comments which the respondent did on 6th January, 1992. On 16th January. 1992, as noticed earlier the Managing Director submitted his recommendatory memorandum to the Executive Council whereof, as discussed earlier the ultimate dismissal order dated 21.1.1992 was passed.
11. In the aforesaid back-drop of the facts, we need hardly emphasis that the enquiry Officer did not conduct herself properly and failed to observe principles of natural Justice. By preemptorily closing the evidence of the respondent on 25-11-91, while sitting at Delhi and passing an exparte order in the absence of the respondent, a grave mis-carriage of Justice was caused to the respondent since the respondent was prevented from defending himself appropriately in the enquiry. This by itself in our view is enough to vitiate and nullify the enquiry,
12. We have taken note of various other orders passed by the Enquiry Officer with regard to the request of the respondent for furnishing to him some documents and for recalling of the prosecution witnesses examined earlier for their further cross-examination. On 16th August, 1991 the petitioner made such an application. The order passed thereupon by the Enquiry Officer reads as under :
'With reference to his (CO) letter dt. 16.8.91, it is clarified that the documents that have already been taken on record and marked as prosecution documents are in support of the charges framed against the C/o. As for the request of the Co to recall certain prosecution witnesses whose evidence has already been recorded it is clarified that only the Presenting Officer can make a request to recall a witness earlier presented by him.'
13. On 3rd September, 1991 the respondent requested the Enquiry Officer to either provide to him certain documents or to exclude them for consideration because, according to the respondent the bank had wrongly withheld their production on the ground of claiming privilege as provided under clause 50(2) (xii) of the SBI (Supervising Staff) Service Rules. It may be recalled that certain documents were not either shown to the respondent or even to the Enquiry Officer because the bank claimed privilege under the aforesaid Rule. It is a moot point whether the bank could claim such a privilege or not. It is also a moot point whether in a departmental disciplinary proceedings, which is not open to public and record whereof is also not public, a charged officer facing an enquiry can be prevented from looking into some documents which are relied upon by the department on the ground that the department claims privilege in respect of them. We are not called upon to consider these questions in this appeal because of the nature of the order passed by the Enquiry Officer on the aforesaid application of the respondent. The respondent's application dated 3rd September, 1991 was dealt with by the Enquiry Officer by passing the following order:
'With reference to Co's letter dt. 3.9.91. the C.O. may address his protest against claiming of privilege by the Management allegedly to be in violation of clause 50(2) (xii) to the appropriate authority in the Bank. The request made by the said letter for excluding certain documents that have already been taken on record is rejected since the listed documents that have been taken on record cannot now be dropped unless a request of the same is received from the prosecution side.'
14. After the Enquiry Officer therefore advised the petitioner to contact the bank, the petitioner actually did contact the bank and requested for the aforesaid reliefs but, predictably the bank vide communication dated 16th November, 1991 tossed the respondent back to the Enquiry Officer. It is there that the matter stood closed for ever in so far as the petitioner's requested for the documents was concerned.
15. If the Enquiry Officer was determined to conclude the Enquiry within the time frame fixed by the High Court, there was no reason why between the first week of June, 1991 to August, 1991 no worthwhile proceedings were taken by her. After 10th August, 1991, there was no reason why the enquiry proceedings should have been adjourned for more than two months. It is not the case of the appellants that the respondent had ever asked for this period. Even if the respondent would have asked for such a long adjournment, it was not the obligatory for the Enquiry Officer to grant the request. Not only this, if in these circumstances the Enquiry Officer felt that the Enquiry was not being completed within the time frame fixed by the High Court and that at the fag end, for recording one or two statementsa few days more might be taken, nothing prevented her or the Bank itself from coming to the court for seeking possible extension in time to enable the Enquiry to be completed. We have noticed the aforesaid infirmities and serious lacunae in the enquiry proceedings. We are convinced that these infirmities have seriously vitiated the enquiry itself causing grave prejudice to the respondent.
16. In normal course we would have considered the question of remanding the matter for fresh enquiry to be started at an appropriate stage. We are not doing so in this case for two reasons. Firstly because the petitioner is suffering from leucomia (Blood cancer), a dreaded disease. We do not know for how much longer the petitioner will be alive. We do not want to hazard any guess about this. However we are totally disinclined to drive the respondent back to the enquiry at this stage of his health, that too after practically a decade is already over.
17. The other reason for not remanding the matter back is the delay having occurred in the meanwhile. Whether the witnesses would be available or not, or whether the documents could again be available or not are such questions, making any guess whereof is hazardous especially when the matter pertains to a foreign branch of the bank at Antwerp (Belgium). More importantly this is a fit case where we should not put premium on the act of the appellants in their failure to conduct a proper enquiry. We must say that we cannot allow the respondent to suffer any more or all-over again, when the appellants by their own conduct could not provide to the respondent a proper enquiry within a reasonable time.
18. All this therefore leads us to the irrestible conclusion that the enquiry against the respondent was not properly conducted. Resultantly therefore, the dismissal order passed on the basis of the Report of the Enquiry Officer suffered from this basic legal infirmity. Such a dismissal Order therefore cannot be held to be legally valid. In our opinion the learned single Judge was correct in setting aside the dismissal on the ground of the vitiation of the enquiry proceedings and the violation of the principles of natural justice.
19. For the foregoing reasons therefore, to the extent indicated hereinabove the appeal is dismissed but without any order as to costs.
D.P. Kundu. J.
20. I agree
21. The oral prayer of the learned Advocate for the appellant for stay of the operation of this Judgment, upon due consideration is rejected. The certified xerox copies of the Judgment, if applied for may be issued expedltlously.
22. Appeal dismissed