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CASE NO.:

Appeal (civil) 7539 of 1999

PETITIONER:

Canara Bank and Ors.

RESPONDENT:

Shri Debasis Das and Ors.

DATE OF JUDGMENT: 12/03/2003

BENCH:

SHIVARAJ V. PATIL & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J.

Scope and ambit of Regulation 6(18) and 6(21) of the

Canara Bank Officer Employees' (Conduct) Regulations 1976

(hereinafter referred to as 'the Regulations') fall for

determination in this appeal.

Filtering out unnecessary details, the factual

background relevant for adjudication for the present

dispute is as follows:-

Four charge-sheets dated 12.12.1987, 5.11.1987,

23.3.1989 and 25.5.1989 were issued to respondent no.1-

Debasis Das (hereinafter referred to as 'the employee') by

the functionaries of the Canara bank, a Government of India

undertaking. Disciplinary proceedings were commenced.

Charge-sheet dated 5.11.1987 related to the non-vacation of

residential quarter by the employee after expiry of the

lease period. On completion of inquiry in respect of the

said charge, disciplinary authority directed dismissal of

the employee from the services of the Bank by order dated

28.8.1989. The disciplinary authority thereafter passed an

order on 13.9.1989 which is the bone of contention of the

parties. Details of the said order shall be dealt with

infra and after the recital of the factual position is

completed. Order of dismissal was challenged by the

employee before the Calcutta High Court. By order dated

14.12.1990 in writ petition CO No. 10514(W)/1989, the order

of dismissal was set aside. Employee was reinstated on

28.1.1991. After reinstatement three office orders were

issued to proceed with the inquiries relating to the other

three charge-sheets. According to the employer-Bank the

proceedings were earlier suspended. Enquiry Officers and

Presiding Officers were appointed in those proceedings. By

letter dated 6.4.1991 employee requested to drop the

proceedings in the said charge-sheets and to exonerate him

from the charges contained. On 23.4.1991 he was advised by

the authority to attend the inquiry proceedings. On

30.9.1991 list of the documents along with the copies were

sent to the employee. On 24.11.1992 employee for the first

time took the stand that he had been exonerated of the

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charges contained in the three charge-sheets and all

proceedings in connection therewith had been dropped. Along

with his letter, a photocopy purporting to be a copy of

letter dated 13.9.1989 written by one Shri K.V. Nayak,

officer of the Bank was sent. According to the appellant

the enclosure to employee's letter dated 24.11.92 was a

fabricated document and contents of the actual letter dated

13.9.1989 sent by the Bank had been interpolated. Treating

the letter to be a fabricated document further charge-sheet

dated 21.5.1994 was issued where it was stated that during

the progress of the pending three enquiries employee had

produced certain forged/fabricated documents before the

disciplinary authority and thus constituted misconduct. The

charge-sheet along with statement of imputation were served

on the employee. On 7.6.1994 employee wrote to the Acting

Dy. General Manager that the proceedings dated 13.9.1989

received by him from the Bank was singed by the Dy. General

Manager and not by the Acting General Manager or Shri K.V.

Nayak as alleged or at all. Enquiry into the charge-sheet

was conducted, the documents relied upon by the management

were produced and the office copy of the letter issued under

the signature of Mr. K.V. Nayak, Acting General Manager was

produced. Certain witnesses were examined. During the

inquiry employee was asked to produce the original letter

claimed to have been received by him, but his stand was that

he did not desire to part custody of the defence documents

since the same are very much required at a later stage. On

1.4.1995 the minutes were accordingly recorded. The

employee on that date made a statement that he wanted to

make further submissions in his written briefs which he

would be submitting in terms of Rule 6(18) and he was

closing his evidence/defence. The Presenting Officer was

directed by the Inquiry Officer to submit his written briefs

within 10 days i.e. before 12.4.1995. He was also

instructed to send a copy of his written briefs to the

charged officer simultaneously. Employee was further

directed to submit his written briefs within 10 days of the

receipt of the written briefs from the Presenting Officer.

The Presenting Officer submitted his written briefs on

19.4.1995. Since no written briefs were sent by the

employee, the inquiry officer sent his report to the

disciplinary authority on 2.5.1995. On 19.5.1995

disciplinary authority sent copy of the enquiry report to

the employee and asked for his submission in relation to the

findings recorded by the Inquiry Authority. Employee took

the stand that he could not submit written briefs as he had

not received copy of the Presenting Officer's written

briefs. He requested for a copy. The Disciplinary

Authority on 2.7.1995 wrote to the employee that Presenting

Officer's briefs was sent to him on 2.5.1995 and as such he

could make his submission based on the findings of the

enquiry officer and also on the oral/documentary evidence

which were recorded during the course of inquiry. He

further informed that such submissions would be taken into

account for final decision in the matter. Employee by his

letter dated 12.7.1995 stated that without copy of the

Presenting Officer's written briefs no effective submissions

could be made on the findings of the Enquiry Report. The

Disciplinary Authority sent copy of the briefs to the

employee and asked him to make his submissions on the

findings of the enquiry report. Employee asked for time

till 10.8.1995. Finally on 4.8.1995 the employee stated

that the written briefs were being sent for consideration of

the Enquiry Officer. On 7.8.1995 the Disciplinary Authority

asked the employee to file submissions to the findings of

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the Inquiry Authority. On 12.8.1995 the employee took the

stand that the written briefs should be considered by the

Inquiry Authority whereafter the findings of the Inquiry

Officer should be made and he should be permitted 30 days'

time to give his submissions on the findings of the said

report. He did not make or send submissions on the findings

of the Inquiry Officer. By order dated 29.9.1995

Disciplinary Authority held the employee guilty and imposed

punishment of dismissal from service agreeing with the

findings of the Inquiry Officer. On 11.10.1995 Howrah

Branch of the appellant-Bank received order for effecting

service on the employee. But he left the Bank along with

certain keys. Complaint was lodged before the police on

13.10.1995 regarding the removal of the keys. On 6.11.1995

employee filed writ petition before the Calcutta High Court.

Learned Single Judge of the High Court passed interim order

restraining the Bank from giving effect to the final order.

Thereafter on 8.11.1995 the employee attended the Bank. An

appeal was preferred against the interim order by the Bank

and the Appellate Court vacated the interim order. Employee

filed a Special Leave Petition before this Court which was

dismissed. The order of dismissal was given effect on

5.2.1996 operative from 29.1.1996. Employee filed an appeal

before the prescribed departmental appellate authority. On

8.1.1997 the employee was informed that the Appellate

Authority would give personal hearing to him on 27.1.1997.

During personal hearing, employee submitted a written

statement and submitted some documents, one of them

purported to be copy of letter dated 13.9.1989, which was at

variance with one which was produced by the employee earlier

and was also at variance with the original letter produced

by the management during the inquiry. According to the

appellant, this letter was another forged and fabricated

document and this time the letter was claimed to have been

signed by the Dy. General Manager and not by the Acting

General Manager. In any event, it is not necessary to deal

with the aspect in detail. The Appellate Authority passed

an order upholding the order of dismissal. Employee filed a

writ petition No. 9707 (W) of 1997, with application for

return of the documents produced by him before the Appellate

Authority. Learned Single Judge disposed of the interim

application directing the appellant-Bank to return the

original documents produced by the employee before the

Appellate Authority. When these documents were returned to

the employee he refused to accept them stating that he had

not filed them before the Appellate Authority. The Learned

Single Judge allowed the writ petition holding that Inquiry

Officer had given an opportunity to the Presenting Officer

to file his written briefs and similar opportunity ought to

have been given to the employee and thus there has been

violation of principles of natural justice. Further

direction was given to send the disputed documents to the

Government Handwriting and Questioned Documents' Expert. It

was observed that, if so desired, the parties may pray for

adducing fresh evidence before the Enquiry Officer which

shall be considered. The said order was challenged before

the Division Bench. The appeal was dismissed by the

Division Bench, inter alia, with the conclusion that

provisions of Regulation 6(18) are mandatory in nature and

the employee did not get an opportunity to file his written

briefs before the Inquiry Officer. Prejudice is patent as

the author of the disputed documents was not produced to

prove or disprove his signature and contents of the letters

in question. Written briefs had to be considered by the

Inquiry Officer in terms of Regulation 6(18), and order of

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dismissal shows that written briefs of the employee had not

been considered. An unfair trial cannot be cured by a fair

appeal. There was no question of directing the proceedings

to commence de novo from the inquiry report stage. Though

Learned Single Judge had not given specific directions

regarding payment of back wages upon quashing of

disciplinary proceedings, the consequences had to follow.

In support of the appeal, Mr. P.P. Rao, learned

counsel for the appellant submitted that the true import of

Regulation 6(18) has not been considered by the High Court.

As no prejudice was caused to the employee by the action

taken by the Disciplinary Authority, and there was full

compliance with the principles of audi alteram partem. Even

if it is conceded for the sake of argument that there was

any deficiency in the order passed by the Disciplinary

Authority, same was abundantly made good by the Appellate

Authority which granted personal hearing to the employee.

Post decisional hearing is permissible and in fact personal

hearing was granted though there was no such requirement. No

prejudice has been shown.

In response learned counsel for the employee submitted

that the Inquiry Officer had permitted filing of the written

briefs by the employee after written briefs was submitted by

the Presenting Officer. As the employee had not received

the copy of written briefs, therefore, there was delay and

the Inquiry Officer was duty bound to consider the written

briefs of the employee. Merely because the Appellate

Authority granted opportunity of personal hearing that did

not cure the incurable defect in the proceedings.

Furthermore, the directions of the Learned Single Judge for

sending the disputed documents to the expert stand and the

Bank is not prejudiced in any manner. He in essence

supported the High Court's judgment.

Since Regulation 6(18) is the provision round which the

controversy centers, it would be appropriate to quote the

same. So far relevant it reads as follows:

"Regulation 6(18): The Inquiring Authority

may, after the completion of production of

evidence hear the Presenting Officer, if

any, appointed and the Officer employee, or

permit them to file written briefs of the

respective cases within 15 days of the date

of completion of the production of evidence

if they so desire."

It would be also relevant to extract Regulation 6(21)

which reads as follows:

"Regulation 6(21): (i) On the conclusion of

the inquiry the inquiring authority shall

prepare a report which shall contain the

following:

a) a gist of the article of charge

and the statement of the imputations

of misconduct or misbehaviour;

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b) a gist of the defence of the

officer employee in respect of each

article of charge;

c) an assessment of the evidence in

respect of each article of charge;

d) the findings on each article of

charge and the reasons therefor.

Explanation: If, in the opinion of the

Inquiring authority, the proceedings of the

inquiry establish any article of charge

different from the original article of

charge, it may record its findings on such

article of charge:

Provided that the findings on such

article of charge shall not be recorded

unless the officer employee has either

admitted the facts on which such article of

charge is based or has had a reasonable

opportunity of defending himself against

such article of charge.

(ii) The inquiring authority, where it is

not itself the Disciplinary Authority, shall

forward to the Disciplinary Authority, the

records of inquiry which shall include.

a) the report of the inquiry prepared

by it under clause (i);

b) the written statement of defence,

if any, submitted by the officer

employee referred to in sub-regulation

(15);

c) the oral and documentary evidence

produced in the course of the inquiry;

d) written briefs referred to in sub-

regulation (18) if any; and

e) the orders, if any, made by the

Disciplinary Authority and the

inquiring authority in regard to the

inquiry."

It is to be noted that the Disciplinary Authority can

himself be the Inquiring Authority. In that sense the

Inquiry Officer is an agent of the Disciplinary Authority.

The regulations make this position crystal clear in

Regulation (7). It reads as follows:

"Regulation 7: Action on the Inquiry

Report:

(1) The Disciplinary Authority, if it

is not itself the inquiring authority may

for reasons to be recorded by it in writing,

remit the case to the inquiring authority

for fresh or further inquiry and report and

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the inquiring authority shall thereupon

proceed to hold the further inquiry

according to the provisions of regulation 6

as far as may be.

(2) The Disciplinary Authority shall,

if it disagrees with the findings of the

inquiring authority on any article of

charge, record its reasons for such

disagreement and record its own findings on

such charge, if the evidence on record is

sufficient for the purpose.

(3) If the Disciplinary Authority,

having regard to its findings on all or any

of the articles of charge is of the opinion

that any of the penalties specified in

regulation 4 should be imposed on the

officer employee it shall notwithstanding

anything contained in regulation 8, make an

order imposing such penalty.

(4) If the Disciplinary Authority

having regard to its findings on all or any

of the articles of charge is of the opinion

that no penalty is called for, it may pass

an order exonerating the officer employee

concerned."

It is to be noted that both the expressions "may" and

"shall" appear in Regulation (7). The former expression is

used when the Disciplinary Authority, if it is not the

Inquiring Authority can remit the case to the Inquiring

Authority for fresh or further inquiry and report and the

latter expression is used vis--vis the Inquiring Authority

who is required to proceed to conduct further inquiry

according to provision of Regulation (6) as far as may be

applicable.

Regulation 6(21)(ii) deals with the documents which are

to be forwarded to the Disciplinary Authority in case it is

not the Inquiring Authority. The documents to be forwarded

include the written briefs referred to in sub-regulation

(18).

A bare reading of sub-regulation (18) of Regulation 6

makes the position clear that there is no requirement of the

employee being granted an opportunity to file written briefs

after the Presenting Officer files written briefs. On the

contrary, as the provisions postulate, after completion of

production of evidence two options are open to the Inquiry

Officer. It may hear the Presenting Officer appointed and

the concerned employee or in the alternative permit them to

file written briefs within 15 days of the date of completion

of the production of evidence if they so desire. The written

briefs are relatable to the cases of the party concerned;

otherwise the expression 'respective case' would be

meaningless. In other words, the written briefs must contain

what his case is. There is no requirement of filing written

briefs one after the other. It is not required that one

party has to wait till filing of written briefs by the

other. The expression "respectively", means belonging or

relating separately to each of several people. It is a word

of severance.

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It is to be further noted that in the appeal before the

Appellate Authority findings of the Inquiry Officer were

challenged and, therefore, the question of any prejudice

does not arise. Since employee had the opportunity to meet

the stand of the Bank, it was to his advantage, and

opportunity for personal hearing was also granted, though

Regulation 6(18) does not even speak to grant such an

opportunity. Keeping in view what was observed in B.

Karunakara's case (supra) there was no question of violation

of principles of natural justice.

On that score the conclusion arrived at by the Learned

Single Judge and the Division Bench that there was violation

of principles of natural justice cannot be maintained.

Residual and crucial question that remains to be

adjudicated is whether principles of natural justice have

been violated; and if so, what extent any prejudice has been

caused. It may be noted at this juncture that in some cases

it has been observed that where grant of opportunity in

terms of principles of natural justice do not improve the

situation, "useless formality theory" can be pressed into

service.

Natural justice is another name for commonsense

justice. Rules of natural justice are not codified canons.

But they are principles ingrained into the conscience of

man. Natural justice is the administration of justice in a

commonsense liberal way. Justice is based substantially on

natural ideals and human values. The administration of

justice is to be freed from the narrow and restricted

considerations which are usually associated with a

formulated law involving linguistic technicalities and

grammatical niceties. It is the substance of justice which

has to determine its form.

The expressions "natural justice" and "legal

justice" do not present a water-tight classification. It is

the substance of justice which is to be secured by both, and

whenever legal justice fails to achieve this solemn purpose,

natural justice is called in aid of legal justice. Natural

justice relieves legal justice from unnecessary

technicality, grammatical pedantry or logical prevarication.

It supplies the omissions of a formulated law. As Lord

Buckmaster said, no form or procedure should ever be

permitted to exclude the presentation of a litigants'

defence.

The adherence to principles of natural justice as

recognized by all civilized States is of supreme importance

when a quasi-judicial body embarks on determining disputes

between the parties, or any administrative action involving

civil consequences is in issue. These principles are well

settled. The first and foremost principle is what is

commonly known as audi alteram partem rule. It says that no

one should be condemned unheard. Notice is the first limb of

this principle. It must be precise and unambiguous. It

should appraise the party determinatively the case he has to

meet. Time given for the purpose should be adequate so as to

enable him to make his representation. In the absence of a

notice of the kind and such reasonable opportunity, the

order passed becomes wholly vitiated. Thus, it is but

essential that a party should be put on notice of the case

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before any adverse order is passed against him. This is one

of the most important principles of natural justice. It is

after all an approved rule of fair play. The concept has

gained significance and shades with time. When the historic

document was made at Runnymede in 1215, the first statutory

recognition of this principle found its way into the "Magna

Carta". The classic exposition of Sir Edward Coke of

natural justice requires to "vocate interrogate and

adjudicate". In the celebrated case of Cooper v. Wandsworth

Board of Works (1963 (143) ER 414), the principle was thus

stated:

"Even God did not pass a sentence upon

Adam, before he was called upon to make his

defence. "Adam" says God, "where art thou

has thou not eaten of the tree whereof I

commanded thee that though should not eat".

Since then the principle has been chiselled, honed and

refined, enriching its content. Judicial treatment has added

light and luminosity to the concept, like polishing of a

diamond.

Principles of natural justice are those rules which

have been laid down by the Courts as being the minimum

protection of the rights of the individual against the

arbitrary procedure that may be adopted by a judicial,

quasi-judicial and administrative authority while making an

order affecting those rights. These rules are intended to

prevent such authority from doing injustice.

What is meant by the term 'principles of natural

justice' is not easy to determine. Lord Summer (then

Hamilton, L.J.) in Ray v. Local Government Board (1914) 1 KB

160 at p.199:83 LJKB 86) described the phrase as sadly

lacking in precision. In General Council of Medical

Education & Registration of U.K. v. Sanckman (1943 AC 627:

(1948) 2 All ER 337), Lord Wright observed that it was not

desirable to attempt 'to force it into any procusteam bed'

and mentioned that one essential requirement was that the

Tribunal should be impartial and have no personal interest

in the controversy, and further that it should give 'a full

and fair opportunity' to every party of being heard.

Lord Wright referred to the leading cases on the

subject. The most important of them is the Board of

Education v. Rice (1911 AC 179:80 LJKB 796), where Lord

Loreburn, L.C. observed as follows:

"Comparatively recent statutes have

extended, if they have originated, the

practice of imposing upon departments or

offices of State the duty of deciding or

determining questions of various kinds. It

will, I suppose usually be of an

administrative kind, but sometimes, it will

involve matter of law as well as matter of

fact, or even depend upon matter of law

alone. In such cases, the Board of Education

will have to ascertain the law and also to

ascertain the facts. I need not and that in

doing either they must act in good faith and

fairly listen to both sides for that is a

duty lying upon everyone who decides

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anything. But I do not think they are bound

to treat such a question as though it were a

trial....The Board is in the nature of the

arbitral tribunal, and a Court of law has no

jurisdiction to hear appeals from the

determination either upon law or upon fact.

But if the Court is satisfied either that

the Board have not acted judicially in the

way I have described, or have not determined

the question which they are required by the

Act to determine, then there is a remedy by

mandamus and certiorari".

Lord Wright also emphasized from the same decision the

observation of the Lord Chancellor that the Board can obtain

information in any way they think best, always giving a fair

opportunity to those who are parties to the controversy for

correcting or contradicting any relevant statement

prejudicial to their view". To the same effect are the

observations of Earl of Selbourne, LO in Spackman v.

Plumstead District Board of Works (1985 (10) AC 229:54 LJMC

81), where the learned and noble Lord Chancellor observed as

follows:

"No doubt, in the absence of special

provisions as to how the person who is to

decide is to proceed, law will imply no more

than that the substantial requirements of

justice shall not be violated. He is not a

judge in the proper sense of the word; but

he must give the parties an opportunity of

being heard before him and stating their

case and their view. He must give notice

when he will proceed with the matter and he

must act honestly and impartially and not

under the dictation of some other person or

persons to whom the authority is not given

by law. There must be no malversation of any

kind. There would be no decision within the

meaning of the statute if there were

anything of that sort done contrary to the

essence of justice".

Lord Selbourne also added that the essence of justice

consisted in requiring that all parties should have an

opportunity of submitting to the person by whose decision

they are to be bound, such considerations as in their

judgment ought to be brought before him. All these cases lay

down the very important rule of natural justice contained in

the oft-quoted phrase 'justice should not only be done, but

should be seen to be done'.

Concept of natural justice has undergone a great deal

of change in recent years. Rules of natural justice are not

rules embodied always expressly in a statute or in rules

framed thereunder. They may be implied from the nature of

the duty to be performed under a statute. What particular

rule of natural justice should be implied and what its

context should be in a given case must depend to a great

extent on the fact and circumstances of that case, the

frame-work of the statute under which the enquiry is held.

The old distinction between a judicial act and an

administrative act has withered away. Even an administrative

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order which involves civil consequences must be consistent

with the rules of natural justice. Expression 'civil

consequences' encompasses infraction of not merely property

or personal rights but of civil liberties, material

deprivations, and non-pecuniary damages. In its wide

umbrella comes everything that affects a citizen in his

civil life.

Natural justice has been variously defined by different

Judges. A few instances will suffice. In Drew v. Drew and

Lebura (1855(2) Macg. 1.8, Lord Cranworth defined it as

'universal justice'. In James Dunber Smith v. Her Majesty

the Queen (1877-78(3) App.Case 614, 623 JC) Sir Robort P.

Collier, speaking for the judicial committee of Privy

council, used the phrase 'the requirements of substantial

justice', while in Arthur John Specman v. Plumstead District

Board of Works (1884-85(10) App.Case 229, 240), Earl of

Selbourne, S.C. preferred the phrase 'the substantial

requirement of justice'. In Vionet v. Barrett (1885(55) LJRD

39, 41), Lord Esher, MR defined natural justice as 'the

natural sense of what is right and wrong'. While, however,

deciding Hookings v. Smethwick Local Board of Health

(1890(24) QBD 712), Lord Fasher, M.R. instead of using the

definition given earlier by him in Vionet's case (supra)

chose to define natural justice as 'fundamental justice'. In

Ridge v. Baldwin (1963(1) WB 569, 578), Harman LJ, in the

Court of Appeal countered natural justice with 'fair-play in

action' a phrase favoured by Bhagawati, J. in Maneka Gandhi

v. Union of India (1978 (2) SCR 621). In re R.N. (An Infaot)

(1967(2) B617, 530),Lord Parker, CJ, preferred to describe

natural justice as 'a duty to act fairly'. In fairmount

Investments Ltd. v. Secretary to State for Environment (1976

WLR 1255) Lord Russell of Willowan somewhat picturesquely

described natural justice as 'a fair crack of the whip'

while Geoffrey Lane, LJ. In Regina v. Secretary of State for

Home Affairs Ex Parte Hosenball (1977 (1) WLR 766) preferred

the homely phrase 'common fairness'.

How then have the principles of natural justice been

interpreted in the Courts and within what limits are they to

be confined? Over the years by a process of judicial

interpretation two rules have been evolved as representing

the principles of natural justice in judicial process,

including therein quasi judicial and administrative process.

They constitute the basic elements of a fair hearing, having

their roots in the innate sense of man for fair-play and

justice which is not the preserve of any particular race or

country but is shared in common by all men. The first rule

is 'nemo judex in causa sua' or 'nemo debet esse judex in

propria causa sua' as stated in (1605) 12 Co.Rep.114 that

is, 'no man shall be a judge in his own cause'. Coke used

the form 'aliquis non debet esse judex in propria causa quia

non potest esse judex at pars' (Co.Litt. 1418), that is, 'no

man ought to be a judge in his own case, because he cannot

act as Judge and at the same time be a party'. The form

'nemo potest esse simul actor et judex', that is, 'no one

can be at once suitor and judge' is also at times used. The

second rule is 'audi alteram partem', that is, 'hear the

other side'. At times and particularly in continental

countries, the form 'audietur at altera pars' is used,

meaning very much the same thing. A corollary has been

deduced from the above two rules and particularly the audi

alteram partem rule, namely 'qui aliquid statuerit parte

inaudita alteram actquam licet dixerit, haud acquum facerit'

that is, 'he who shall decide anything without the other

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side having been heard, although he may have said what is

right, will not have been what is right' (See Bosewell's

case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it

is now expressed, 'justice should not only be done but

should manifestly be seen to be done'. Whenever an order is

struck down as invalid being in violation of principles of

natural justice, there is no final decision of the case and

fresh proceedings are left upon. All that is done is to

vacate the order assailed by virtue of its inherent defect,

but the proceedings are not terminated.

What is known as 'useless formality theory' has

received consideration of this Court in M.C. Mehta v. Union

of India (1999(6) SCC 237). It was observed as under:

"Before we go into the final aspect of

this contention, we would like to state that

case relating to breach of natural justice

do also occur where all facts are not

admitted or are not all beyond dispute. In

the context of those cases there is a

considerable case-law and literature as to

whether relief can be refused even if the

court thinks that the case of the applicant

is not one of 'real substance' or that there

is no substantial possibility of his success

or that the result will not be different,

even if natural justice is followed (See

Malloch v. Aberdeen Corpn: (1971)2 All ER

1278, HL) (per Lord Reid and Lord

Wilberforce), Glynn v. Keele University:

(1971) 2 All ER 89; Cinnamond v. British

Airports Authority: (1980) 2 All ER 368, CA)

and other cases where such a view has been

held. The latest addition to this view is R

v. Ealing Magistrates' Court, ex p. Fannaran

(1996 (8) Admn. LR 351, 358) (See de Smith,

Suppl. P.89 (1998) where Straughton, L.J.

held that there must be 'demonstrable beyond

doubt' that the result would have been

different. Lord Woolf in Lloyd v. McMohan

(1987 (1) All ER 1118, CA) has also not

disfavoured refusal of discretion in

certain cases of breach of natural justice.

The New Zealand Court in McCarthy v. Grant

(1959 NZLR 1014) however goes halfway when

it says that (as in the case of bias), it is

sufficient for the applicant to show that

there is 'real likelihood-not certainty- of

prejudice'. On the other hand, Garner

Administrative Law (8th Edn. 1996. pp.271-

72) says that slight proof that the result

would have been different is sufficient. On

the other side of the argument, we have

apart from Ridge v. Baldwin (1964 AC 40:

(1963) 2 All ER 66, HL), Megarry, J. in John

v. Rees ( 1969 (2) All ER 274) stating that

there are always 'open and shut cases' and

no absolute rule of proof of prejudice can

be laid down. Merits are not for the court

but for the authority to consider. Ackner, J

has said that the 'useless formality theory'

is a dangerous one and, however

inconvenient, natural justice must be

followed. His Lordship observed that

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'convenience and justice are often not on

speaking terms'. More recently, Lord Bingham

has deprecated the 'useless formality

theory' in R. v. Chief Constable of the

Thames Valley Police Forces, ex p. Cotton

(1990 IRLR 344) by giving six reasons (see

also his article 'Should Public Law Remedies

be Discretionary?" 1991 PL. p.64). A

detailed and emphatic criticism of the

'useless formality theory' has been made

much earlier in 'Natural Justice, Substance

or Shadow' by Prof. D.H. Clark of Canada

(see 1975 PL.pp.27-63) contending that

Malloch (supra) and Glynn (supra) were

wrongly decided. Foulkes (Administrative

Law, 8th Edn. 1996, p.323), Craig

(Administrative Law, 3rd Edn. P.596) and

others say that the court cannot prejudge

what is to be decided by the decision-making

authority. De Smith (5th Edn. 1994, paras

10.031 to 10.036) says courts have not yet

committed themselves to any one view though

discretion is always with the court. Wade

(Administrative Law, 5th Edn. 1994,

pp.526-530) says that while futile writs may

not be issued, a distinction has to be made

according to the nature of the decision.

Thus, in relation to cases other than those

relating to admitted or indisputable facts,

there is a considerable divergence of

opinion whether the applicant can be

compelled to prove that the outcome will be

in his favour or he has to prove a case of

substance or if he can prove a 'real

likelihood' of success or if he is entitled

to relief even if there is some remote

chance of success. We may, however, point

out that even in cases where the facts are

not all admitted or beyond dispute, there is

a considerable unanimity that the courts

can, in exercise of their 'discretion',

refuse certiorari, prohibition, mandamus or

injunction even though natural justice is

not followed. We may also state that there

is yet another line of cases as in State

Bank of Patiala v. S.K. Sharma (1996 (3) SCC

364), Rajendra Singh v. State of M.P. (1996

(5) SCC 460) that even in relation to

statutory provisions requiring notice, a

distinction is to be made between cases

where the provision is intended for

individual benefit and where a provision is

intended to protect public interest. In the

former case, it can be waived while in the

case of the latter, it cannot be waived.

We do not propose to express any

opinion on the correctness or otherwise of

the 'useless formality theory' and leave the

matter for decision in an appropriate case,

inasmuch as the case before us, 'admitted

and indisputable' facts show that grant of a

writ will be in vain as pointed by Chinnappa

Reddy, J."

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As was observed by this Court we need not go into

'useless formality theory' in detail; in view of the fact

that no prejudice has been shown. As is rightly pointed out

by learned counsel for the appellants unless failure of

justice is occasioned or that it would not be in public

interest to dismiss a petition on the fact situation of a

case, this Court may refuse to exercise said jurisdiction

(see Gadde Venkateswara Rao v. Govt. of A.P. and Ors. (AIR

1966 SC 828). It is to be noted that legal formulations

cannot be divorced from the fact situation of the case.

Personal hearing was granted by the Appellate Authority,

though not statutorily prescribed. In a given case post-

decisional hearing can obliterate the procedural deficiency

of a pre-decisional hearing. (See Charan Lal Sahu v. Union

of India etc. (AIR 1990 SC 1480)

Additionally there was no material placed by the

employee to show as to how he has been prejudiced. Though

in all cases the post-decisional hearing cannot be a

substitute for pre-decisional hearing, in the case at hand

the position is different. The position was illuminatingly

stated by this Court in Managing Director, ECIL, Hyderabad

and Ors. vs. B. Karunakara and Ors. [1993 (4) SCC 727 at

para 31] which reads as follows:

"Hence, in all cases where the enquiry

officer's report is not furnished to the

delinquent employee in the disciplinary

proceedings, the Courts and Tribunals should

cause the copy of the report to be furnished

to the aggrieved employee if he has not

already secured it before coming to the

Court/Tribunal and give the employee an

opportunity to show how his or her case was

prejudiced because of the non-supply of the

report. If after hearing the parties, the

Court/Tribunal comes to the conclusion that

the non-supply of the report would have made

no difference to the ultimate findings and

the punishment given, the Court/Tribunal

should not interfere with the order of

punishment. The Court/Tribunal should not

mechanically set aside the order of

punishment on the ground that the report was

not furnished as is regrettably being done

at present. The courts should avoid

resorting to short cuts. Since it is the

Courts/Tribunals which will apply their

judicial mind to the question and give their

reasons for setting aside or not setting

aside the order of punishment, (and not any

internal appellate or revisional authority),

there would be neither a breach of the

principles of natural justice nor a denial

of the reasonable opportunity. It is only

if the Court/Tribunal finds that the

furnishing of the report would have made a

difference to the result in the case that it

should set aside the order of punishment.

Where after following the above procedure,

the Court/Tribunal sets aside the order of

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punishment, the proper relief that should be

granted is to direct reinstatement of the

employee with liberty to the

authority/management to proceed with the

inquiry, by placing the employee under

suspension and continuing the inquiry from

the state of furnishing him with the report.

The question whether the employee would be

entitled to the back-wages and other

benefits from the date of his dismissal to

the date of his reinstatement if ultimately

ordered, should invariably be left to be

decided by the authority concerned according

to law, after the culmination of the

proceedings and depending on the final

outcome. If the employee succeeds in the

fresh inquiry and is directed to be

reinstated, the authority should be at

liberty to decide according to law how it

will treat the period from the date of

dismissal till the reinstatement and to what

benefits, if any and the extent of the

benefits, he will be entitled. The

reinstatement made as a result of the

setting aside of the inquiry for failure to

furnish the report, should be treated as a

reinstatement for the purpose of holding the

fresh inquiry from the stage of furnishing

the report and no more, where such fresh

inquiry is held. That will also be the

correct position in law."

The position was again reiterated in Union Bank of

India vs. Vishwa Mohan ([1998 (4) SCC 310 at page 314).

The relevant para 9 reads as follows:

"We are totally in disagreement with the

above-quoted reasoning of the High Court.

The distinction sought to be drawn by the

High Court that the first charge-sheet

served on the respondent related to the

period when he was a clerk whereas the other

three charge-sheets related to the period

when he was promoted as a bank officer. In

the present case, we are required to see the

findings of the enquiry authority, the order

of the Disciplinary Authority as well as the

order of the Appellate Authority since the

High Court felt that the charges levelled

against the respondent after he was promoted

as an officer were not of a serious nature.

A bare look at these charges would

unmistakably indicate that they relate to

misconduct of a serious nature. The High

Court also committed an error when it

assumed that when the respondent was

promoted as a bank officer, he must be

having a good report otherwise he would not

have been promoted. This finding is totally

unsustainable because the various acts of

misconduct came to the knowledge of the Bank

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in the year 1989 and thereafter the first

charge-sheet was issued on 17.2.1989. The

respondent was promoted as a bank officer

sometime in the year 1988. At that time, no

such adverse material relating to the

misconduct of the respondent was noticed by

the Bank on which his promotion could have

been withheld. We are again unable to

accept the reasoning of the High Court that

in the facts and circumstances of the case

"it is difficult to apply the principle of

severability as the charges are so

inextricably mixed up". If one reads the

four charge-sheets, they all relate to the

serious misconduct which includes taking

bribe, failure to protect the interests of

Bank, failure to perform duties with utmost

devotion, diligence, integrity and honesty,

acting in a manner unbecoming of a bank

officer etc. In our considered view, on the

facts of this case, this principle has no

application but assuming that it applies yet

the High Court has erred in holding that the

principle of severability cannot be applied

in the present case. The finding in this

behalf is unsustainable. As stated earlier,

the appellant had in his possession the

enquiry report/findings when he filed the

statutory appeal as well as the writ

petition in the High Court. The High Court

was required to apply its judicial mind to

all the circumstances and then form its

opinion whether non-furnishing of the report

would have made any difference to the result

in the case and thereupon pass an

appropriate order. In para 31, this Court

in Managing Director, ECIL has very rightly

cautioned: (SCC p. 758)

"The Court/Tribunal should not

mechanically set aside the order of

punishment on the ground that the

report was not furnished as is

regrettably being done at present. The

courts should avoid resorting to short

cuts".

Strong reliance was placed by learned counsel for the

employee on a three-Judge Bench of this Court in Punjab

National Bank and Ors. vs. Kunj Behari Misra [1998 (7) SCC

84)]. The said decision has no application and is factually

distinguishable. That was a case where the Disciplinary

Authority differed from the views of the inquiry officer.

In that context it was held that denial of opportunity of

hearing was per se violative of the principles of natural

justice. The case at hand is founded on totally different

factual backdrop.

It is to be noted that at no stage the employee

pleaded prejudice. Both Learned Single Judge and the

Division Bench proceeded on the basis that there was no

compliance of the requirement of Regulation 6(18) and,

therefore, prejudice was caused. In view of the finding

recorded supra that Regulation 6(18) has not been correctly

interpreted, the conclusions regarding prejudice are

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indefensible.

It is further to be noted that case of the parties on

merits was not considered by Learned Single Judge or the

Division Bench. Notwithstanding the fact that there was no

consideration of the respective cases, Learned Single Judge

directed examination of the documents by the expert.

The inevitable result is that the judgment of the

Division Bench confirming that of the Learned Single Judge

has to be quashed so far as it relates to the question of

violation of principles of natural justice. But that is

not the end of the matter. There was no consideration of

the merits of the case as noted above. It would be in the

fitness of things to direct examination of the documents by

the expert in terms of Learned Single Judge's order. The

employee shall file originals of the documents on which he

relies upon, of which copies were placed before the High

Court. The appellant-Bank shall file originals of the

documents on which reliance was placed, if not already

done. If the government expert is of the view that

documents produced by the employee are forged/fabricated or

not authentic the order of dismissal shall stand. If,

however, the report of the expert is that the documents

produced by the employee are genuine, the order of

dismissal has to be vacated. In case the originals, as

directed above, are not filed by the employee or the Bank,

then the High Court shall pass necessary orders, upholding

the order of dismissal or setting aside the order of

dismissal, as the case may be. No other point shall be

considered by the High Court. The matter shall be heard by

the Division Bench by restoration of the writ appeal.

The appeal is allowed to the extent indicated.