This appeal is preferred against the order passed by the learned single Judge who has set aside the order of removal and the enquiry proceedings, solely on the ground of non-production of seven documents, which was sought for by the delinquent employee.
2. For the purpose of convenience, the parties in this appeal are referred to as they are referred to in the writ petition.
3. The petitioner was functioning as Sub-Manager at the Nariman Point Branch, Mumbai, of the Respondent - Syndicate Bank. The Branch was headed by an Assistant General Manager and the petitioner was working as Sub- Manager. On 21.02.1995, office of the Directorate of Revenue Intelligence, ('DRI' for short) Mumbai, apprehended five persons carrying four gunny bags containing Indian currency. A panchnama was prepared in which it was stated that the gunny bags contained a total amount of Rs.1,00,78,000/- which was seized from the said five persons. The DRI also seized certain pay orders issued by the Bank on account of some private parties. It was alleged by the DRI that the account holders namely M/s.Acrobond Exports, M/s.Hitesh Exports, M/s.Nahalchand Laloochand, M/s.Nucleus Securities Ltd., and M/s. Wall Street Finance Limited, committed offences under the Customs Act, 1962, and the officials of the Bank abetted the same. The Bank appointed one Sri.N.R.Kamath, an officer working in Vigilance Unit of the Bank and got conducted an investigation. By a letter dated 08.08.1995, the petitioner was called upon to submit his explanation in the matter of certain current accounts opened at Nariman Point Branch between 31.01.1995 and 21.02.1995, on the introduction of some customers of M/s.Bombay Mercantile Co-operative Bank Limited, 11 current accounts opened at Nariman Point Branch, Mumbai, during the period 03.02.1995 to 21.02.1995 on the introduction of some customers of Malabar Hills and Nariman Point Branches; and 30 current accounts opened during the period between 09.05.1994 and 03.02.1995 on the introduction of customers of local branches of the 1st Respondent - Bank. Petitioner gave a reply on 08.09.1995 stating that he was functioning as a Sub-Manager of the Branch looking after administration and was not attending any frontline operations and had no contact with customers except in the matter of exchange of cut notes and complaints. He also pointed out that as a matter of routine, he was required to affix second signature on certain instruments like cheques, drafts and pay orders. The entire scrutiny and opening of the account took place at the level of Departmental Officer, who after verification of opening of the account, used to certify the correctness by signing the account opening forms and the petitioner used to put the second signature after verification as to whether the forms are filled up properly. The accounts were opened within the legal frame work of the Banking Law in the normal course of business and that no irregularity or wrong was committed nor any rule violated in that regard.
4. Petitioner was placed under suspension on 22.9.1995. A charge sheet dated 30.10.1995 was served on the petitioner. In addition to the aforesaid allegations, an additional allegation that DRI, Mumbai, served a show cause notice dated 16.8.1995 on the Nariman Point Branch of the Bank seeking reasons as to why penalty should not be imposed on the delinquent as the current accounts had been opened by some unscrupulous persons and was utilised for smuggling out foreign exchange. Petitioner submitted his reply to the charge sheet on 11.11.1995 denying the charges and reiterating the statements made in his reply to the show cause notice.
5. The bank proceeded with the disciplinary enquiry by appointing an enquiry officer. Two witnesses were examined on behalf of the bank. 356 documents were produced. Both the witnesses have been cross-examined fully. After the closure of the side of the bank, the petitioner submitted a representation on 19.4.1996 listing out 14 documents which he required for his defence. Out of the 14 documents, 7 documents were supplied. Out of the remaining 7 documents, documents 1 to 3 privilege was claimed and regarding documents 4 to 7 it was stated that they are not available. The delinquent did not step into the witness box. However, he examined two witnesses on his behalf. After the conclusion of the enquiry, the delinquent filed a written brief. After hearing both the parties and taking into consideration the oral and documentary evidence adduced, the enquiry officer submitted a report holding that all the charges levelled against the delinquent are proved. The disciplinary authority on receipt of the said report issued a second show cause notice enclosing a copy of the report to the petitioner. The disciplinary authority after considering the reply held the charges levelled against the delinquent is proved and passed an order of his removal from service. Aggrieved by the said order, the delinquent preferred a statutory appeal. The Appellate Authority also dismissed the appeal. Aggrieved by the said orders, the delinquent preferred a Writ Petition before this Court.
6. The petitioner among other grounds contended that, non-furnishing of 7 documents which are sought have greatly prejudiced his defence and therefore the entire enquiry is liable to be set aside. He also contended that the DRI has not taken any coercive steps against the bank and therefore the bank has no case to proceed against the delinquent. The learned single Judge who heard the matter was of the view that, denial of the document has undoubtedly prejudiced the interest of the delinquent. In the absence of any reasons assigned by the Presenting Officer stating as to how the supply of these documents or the disclosure of the contents of the audit report and the Special Inspection Report would prejudicially affect the interest of the bank or for that matter the public interest, having regard to the relevancy of the documents and the prejudice that is bound to be caused to the interest of the delinquent in his defence, he was of the view, non-supply of these documents has vitiated the enquiry. He held the delinquent is denied full and fair opportunity to effectively defend himself in the proceedings. Further he held, the specific defence taken by the delinquent is he was only acting as a Staff Manager in-charge of the administration and it was not his responsibility to attend to the functions which are set out in the show cause notice as well as the charge sheet. He was putting his signature as a second signatory to most of these transactions in respect of which misconduct is attributed to him and therefore in order to enable him to prove that it was not the petitioner who was responsible principally to discharge these duties and that these duties were assigned to the Assistant General Manager and other officers, the petitioner wanted those documents to be produced and ultimately denial of all those documents has prejudicially affected his interest. Further, when the petitioner filed his statement of defence enclosed a copy of the report dated 20.11.1995 submitted by the bank through its advocate by way of reply to the show cause notice dated 16.8.1995 issued by the DRI. The said document was not taken into account by the enquiring authority on the ground that it is a xerox copy and that it is not properly tendered in evidence and therefore he was of the view production of the original in that context has affected the enquiry and the punishment imposed. Therefore, he proceeded to set aside the order of removal as well as the entire enquiry and remanded the matter to the disciplinary authority for a de- novo enquiry and directed that the period from the date of passing of the order of removal till the completion of the disciplinary proceedings shall be treated as one of suspension and the petitioner shall be entitled for subsistence allowance in accordance with law. Aggrieved by the said order, the bank has preferred this appeal.
7. Sri Sawkar, learned counsel appearing for the appellant-bank contended that, the enquiry that was initiated against the petitioner was not based on the Investigating Report or the Audit Report or on the basis of any of the documents which were sought for by the petitioner. When the bank did not rely on those documents, non-furnishing of the copies of the said documents would in no way affect the interest of the petitioner. The law on the point is well settled. The learned single Judge has not properly appreciated the facts and the law on the point and committed a serious error in setting aside a valid enquiry and the punishment imposed solely on the ground of non-production of 7 documents which is illegal and requires to be set aside.
8. Per contra, learned senior counsel Sri P.S. Rajagopal, appearing for the delinquent employee contends that, though the enquiry is not based on the said 7 documents which were not furnished, those documents would have proved the innocence of the delinquent. In the Investigating Report and the Audit Report, the delinquent has been completely exonerated. In so far as the other three documents sought for are concerned, under the Regulations the said documents have to be sought for from the person who is in possession of the said documents. The request of the petitioner was never forwarded to these persons in possession of the said documents. It is the Presenting Officer himself has rejected his request on the ground that it is not available. Therefore, the procedure prescribed under law has not been followed and denial of those documents has seriously affected the interest of the petitioner and the learned single Judge rightly set aside the said order of removal as well as the enquiry and therefore he submits no case for interference is made out.
9. From the aforesaid material on record and the rival contentions it is clear that, a show cause notice was issued to the petitioner. When the reply given by him was not satisfactory, the bank decided to hold an enquiry. He was kept under suspension. A charge sheet was served on him. He gave a reply reiterating his stand made in the reply notice. Then an enquiry officer was appointed. It is not in dispute between the parties that the enquiry was not based on the said inspection report or the concurrent audit report or the regular inspection report for the year 1994-95. No persons were examined by the authors of the report before preparing the said report. In fact, the said report was prepared by one Sri N.R. Kamath who has been examined in the case who in turn did not rely on the report. The delinquent had full opportunity to cross-examine the said witness. In the enquiry, 356 documents were marked. None of those documents were disputed. Even otherwise, he had full opportunity to cross-examine the witnesses in relation to the said 356 documents which were produced. It is only after the side of the bank is closed, a request is made for furnishing of 14 documents. Admittedly, 7 documents were furnished. Out of the remaining 7 documents, 3 documents are the aforesaid reports which were not furnished. In so far as the remaining 4 documents are concerned, they are in the nature of credit card, copies of office note and report of financial standing of a client which was not furnished. It was not furnished on the ground that it is not available. The case of the bank was not laid on the basis of the said documents and those documents were not relied on to prove the charges levelled against the petitioner. In the reply filed to the show cause notice, the petitioner has not denied the transactions. His specific case is he was working under the directions and instructions of A.Subramaniam, the Branch in-charge of Nariman Point. He was not directly involved. He was only a second signatory to all the documents and therefore he cannot be held liable and his grievance is others though found guilty of the charges levelled against them, they are let off with a minor punishment. After denial of these documents, when he filed a written brief he did not complain of any serious prejudice in the trial because of non-furnishing of the said documents. In reply to the second show cause notice also he did not complain of the said grievances. Even when he preferred a statutory appeal that was not a ground at all. It is only in the Writ Petition the said ground is urged. It is in that context, it is necessary to know the law on the point.
10. The Apex Court in the case of SYNDICATE BANK AND OTHERS vs V.VENKATESH GURURAO KURATI [AIR 2006 SC 3542] after referring to the various judgments of the Supreme Court held as under:-
"18. In our view, non-supply of documents on which the Enquiry Officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the Enquiry Officer to arrive at his conclusion, the non-supply of which would cause prejudice being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of delinquent officer must be established by the delinquent officer. It is well settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice".
11. In the case of CHANDRAMA TEWARI vs UNION OF INDIA [AIR 1988 SC 117], the Apex Court dealing with a similar matter has held as under:-
"9. It is now well settled that if copies of relevant and material documents including the statement 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 vitiated for the 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, as 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 or preliminary enquiry or the copy of any other document which may have been relied in support of the charges. If a document has no bearing on the charges or if it is not relied by the enquiry officer to support the charges, or if such document or material was not necessary for the cross- examination of witnesses during the enquiry, the officer cannot insist upon the supply of copies of such documents, as the absence of copy of such document will not prejudice the delinquent officer. The decision of the question whether a document is material or not will depend upon the facts and circumstances of each case".
12. The Supreme Court in the case of VIJAY KUMAR NIGAM (DEAD) THROUGH LRs vs STATE OF M.P. AND OTHERS [AIR 1997 SC 1358] held as under:-
"3. ... The main ground was that the report of the preliminary enquiry conducted against him before initiating departmental enquiry, was not supplied to him and, therefore, it is violative of the principle of natural justice. The High Court has rejected the contention and, in our view, quite rightly. The preliminary report is only to decide and assess whether it would be necessary to take any disciplinary action against the delinquent officer and it does not form any foundation for passing the order of dismissal against the employee. ........"
13. As against those judgments, the learned senior counsel appearing for the petitioner relied on the judgment of the Apex Court in the case of TIRLOK NATH vs UNION OF INDIA [1967 SLR 759] wherein dealing with Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 it was held as under:-
"10. ..... But this rule requires that the public servant concerned must be afforded an adequate opportunity of defending himself. It is for this reason that it is obligatory upon the Inquiry Officer not only to furnish the public servant concerned with a copy of the charges levelled against him, the grounds on which those charges are based and the circumstances on which it is proposed to take action against him. Further, if the public servant so requires for his defence, he has to be furnished with copies of all the relevant documents, that is, documents sought to be relied on by the Inquiry Officer or required by the public servant for his defence. ....."
In the facts of that case it was held that,
"Therefore, in our view the failure of the Inquiry Officer to furnish the appellant with copies of the documents such as the first information report and the statements recorded at the Shidipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the Inquiry. The Inquiry held must, in these circumstances, be regarded as one in violation not only of R.55 but also of Art.311(2). Accordingly, we quash the order of removal of the appellant from service passed by the Chief Commissioner of Delhi. "
14. He also relied on a judgment of a learned single Judge of this Court in the case of BHARGAVA P vs SUPDT. OF POLICE, MANGALORE and ANR., [1983 (2) Kar. LJ 62] where it was held that, if the preliminary enquiry report is required for cross-examination by a concerned party, it must be furnished and failure to do so would amount to denial of reasonable opportunity which is guaranteed to him under Article 311(2) of the Constitution.
15. In the case of G.V.ASWATHANARAYANA vs CENTRAL BANK OF INDIA, BY CHAIRMAN, BOMBAY AND OTHERS [ILR 2003 KAR 3066] a Division Bench of this Court has held as under:-
"20. ... A delinquent in a departmental or domestic enquiry is entitled to demand and receive two sets of documents, namely, (i) all those documents on the basis of which the disciplinary authority has framed the charges and the documents on which the disciplinary authority places reliance to prove those charges and (ii) other documents which may not be the basis for framing the charges nor those on which the disciplinary authority places reliance to prove the charges agaisnt the delinquent, but, they are required by the delinquent to effectively defend himself in the enquiry and to effectively cross-examine the witness of the disciplinary authority. If required relevant documents are not made available to a delinquent, it is trite, such delinquent would be prejudiced greatly in defending himself against the charge effectively. Departmental/domestic enquiry in order to be valid, a disciplinary Authority not only appraise the delinquent precisely and clearly with the charges levelled against him but also should supply all necessary information, particulars and documents that may be required by the delinquent to defend himself effectively in the enquiry. If the Court finds that the disciplinary authority has failed to furnish either of the two sets of documents referred to above to a delinquent, it will be duty bound to step in and interfere with the disciplinary action taken against such delinquent."
16. In so far as the law laid down by this Court in G.V.Aswathanarayana's case as well as Bhargava's case is concerned, they run counter to the law declared by the Apex Court in Syndicate Banks' case (referred to supra) as well as the judgment of the Apex Court in Vijay Kumar Nigam's case.
17. Ultimately as laid down in all these judgments there cannot be any hard and fast rule. Whether a document which is sought for is relevant or not, is to be decided on the facts of that particular case. Seen from that angle, in the instant case the Bank relied on 356 documents which are not disputed. Two witnesses examined by the bank were fully cross-examined. It is only at the end of the trial, in so far as the bank is concerned, it was pointed out that out of 14 documents, only 7 documents have been furnished and remaining 7 documents have not been furnished. Out of the 7 documents which are not furnished, as stated earlier documents 1 to 3 are reports. The said documents were not relied upon by the bank. While preparing the said report no one was examined and the bank did not rely on such evidence. Therefore, non-furnishing of the said reports cannot said to be prejudicially affect the petitioner. In fact, in the written brief filed nor in the reply to the show cause notice nor in the memorandum of appeal, such a grievance is made out. That grievance is made out for the first time in the Writ Petition. In so far as other 4 documents are concerned, they were not available. Assuming those documents were relevant, before it could be held that the enquiry is vitiated, the delinquent has to show how that document could have helped his defence. Then the learned single Judge ought to have considered the said contention with reference to the available evidence on record and the finding recorded by the enquiry officer as well as the Appellate Authority and only then if he was of the view that it was relevant, he could have drawn an adverse inference. Such an exercise is not done by the learned single Judge. Merely because the petitioner says it is relevant, he wanted it for cross-examination and it was not furnished, the enquiry would not get vitiated. Therefore the finding recorded by the learned single Judge that the enquiry is vitiated for non-furnishing of these 7 documents cannot be sustained and accordingly it is liable to be set aside.
18. Yet another factor which has weighed with the learned single Judge was others who were also accused of misconduct, have been let off with minor punishments. Therefore, it is clear the misconduct alleged against all of them is proved. If that is the case, the learned single Judge ought to have considered the material on record and should have found out, having regard to the gravity of the misconduct proved against the petitioner, whether the punishment of removal is proper or not and he had ample power to decide whether a lesser punishment could be imposed. That exercise has not been done by the learned single Judge and therefore that reasoning cannot be sustained.
19. Yet another reason given is the DRI which had issued notice has not initiated any action against the Bank and on the contrary they have dropped the proceedings. Assuming it to be true, the result would be one of the charges levelled against the petitioner has to be dropped. That is not the only charge levelled against the petitioner. On that ground, the entire enquiry and the order of removal cannot be set aside. Seen from that angle, the order passed by the learned single Judge is unsustainable and requires to be set aside. As the learned single Judge has not appreciated the case on merits, it will not be proper for this Court to take upon itself the responsibility of considering the case of merits for the first time. Therefore, the proper course would be to set aside the order of the learned single Judge and remand the matter back to the learned single Judge to consider the case on merits and in accordance with law except on the points which are decided by this Court. That would meet the ends of justice. Hence, we pass the following order:-
(a) Appeal is allowed.
(b) The impugned order passed by the learned single Judge is hereby set aside.
(c) The matter is remitted back to the learned single Judge for considering the case on merits and in accordance with law.
(d) In so far as the points which are decided in this appeal are concerned, they are concluded and are not to be reopened.
Parties to bear their own costs.