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CASE NO.:

Appeal (civil) 7686 of 2004

PETITIONER:

P.D. Agrawal

RESPONDENT:

State Bank of India & Ors.

DATE OF JUDGMENT: 28/04/2006

BENCH:

S.B. Sinha & P.P. Naolekar

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

The Appellant herein was working as a Junior Manager, Grade-I in a

Branch office of the 1st Respondent-Bank, herein. On or about 29.9.1984 he

is said to have misbehaved with the Regional Manager of the Bank. He was

placed under suspension. Disciplinary proceedings were also initiated

against him on 26.11.1984. He was found guilty of the misconduct alleged

against him. On earlier occasion also, he was found guilty for misbehaviour

wherefor, he had been censured. He was thereafter allowed to join his

duties. The Appellant, however, despite imposition of the said penalties on

him, started misbehaving with the senior officers again as also with the

customers by using abusive language and passing derogatory remarks during

the period 8.9.1986 to 27.9.1986. During the said period, it may be

mentioned, he was posted in different branches. A disciplinary proceeding

was started against him. The charges levelled against him were as under:

"Katni Market Branch

1. You created an unpleasant scene and atmosphere

by using unparliamentary language against the

local authorities of the Branch in a calculated

attempt to denigrate the said authority, which act

of yours damaged/tarnished the image of the Bank.

Churcha Branch

2. You disobeyed the lawful and reasonable orders of

the superiors. You also crossed the boundaries of

decorum and decency. You have thus acted in a

manner unbecoming of an official of the Bank.

3. You disregarded the lawful instructions of the

superiors.

Shahdol Branch

4.(a) By your acts you have disobeyed the lawful

instructions of the superiors. You also displayed

gross negligence in performance of your duties.

(b) By your acts you disobeyed the lawful and

reasonable orders of the Bank. You also showed

insubordination to the superior authorities. Your

acts are unbecoming of officer of the Bank.

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(c) By your acts you intentionally showed

insubordination to the superior authorities of the

Bank. You thus acted in a manner unbecoming of

an official of the Bank.

(d) You created a feeling of insecurity amongst the

staff members. You have acted in a manner

unbecoming of an official of the Bank.

Jabalpur Regional Office

5. You failed to obey the reasonable and lawful

orders of the Bank and behaved in a manner

unbecoming of an official of the Bank.

The above charges, if proved, are tantamount to

misconduct in contravention of Rules 32(1) and 32(4)

and (5) of the State Bank of India (Supervising Staff)

Service Rules governing our services."

One Shri R.K. Sharma, Branch Manager, having been abused and

threatened to be hit by shoes by the Appellant, lodged two First Information

Reports (FIR) against the Appellant pursuant whereto two cases under

Section 353 of the Indian Penal Code were initiated in respect of the

incidents which took place on 16.10.1986 and 23.10.1986. He was placed

under suspension by an order dated 11.11.1986 by the Disciplinary

Authority stating:

"It has been reported that soon after your

reinstatement on 16th August, 1986 on conclusion of

major penalty proceedings against you, you again

misbehaved with your colleagues, senior officer and also

some of the outsiders and used abusive language passing

derogatory remarks during your recent stay at different

branches viz. Katni Market, Churcha and Shahdol

branches. This has tarnished the image of the bank and

resulted in your arrest by the local police on 16th October,

1986 and thereafter on 23rd October, 1986 under sections

353, 448 and 506 of Indian Penal Code. The nature and

extent of the misbehaviour indicates that the established

authorities of the Bank and certain other functionaries in

the Regional Office and engendering indiscipline

amongst the staff."

He was, however, acquitted of the charges levelled against him in the

criminal proceedings by a learned Judicial Magistrate by a judgment dated

7.5.1988, inter alia, on the ground that the same could not be proved beyond

reasonable doubt.

The Disciplinary Authority thereafter issued a charge sheet against

him for his purported misbehaviour during the period 8.9.1986 to 27.9.1986

to which we have referred to hereinbefore. An Inquiry Officer was

appointed to enquire into the said charges. Before the said Inquiry Officer

several witnesses were examined. In relation to each of the charges, the

witnesses, indisputably, were cross-examined. The Appellant also entered

into defence and several documents on his behalf were exhibited.

The Inquiry Officer considered all the materials brought on record,

including the judgment passed in his favour in the criminal case. The

Appellant was found guilty of all the charges except the charge No.2.

The Disciplinary Authority, however, differed with the findings of the

Inquiry Officer as regards the said charge No.2 and recommended for his

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dismissal from services to the Appointing Authority stating:

"2. I am in agreement with the findings of the

Inquiring Authority in respect of all the

allegation/charges except allegations/charge No.2. In

respect of allegation No.2, on perusal of deposition of

Shri K.C. Tiwari (the maker of PEX-3) I find that DEX-1

was written by him under pressure of the charge sheeted

official. Further PEX-4 was written by Shri Tiwari on

receipt of the letter of Regional Office (DEX-3).

However, nothing has been established during the course

of the enquiry that the letter PEX-3 was written under

pressure. Therefore, I am not in agreement with the

Inquiring Authority that the letter (PEX-3) was not

written of his own volition, and placing reliance on PEX-

3, I hold the allegation and the charge as fully proved.

3. In this connection, I have also

perused/examined and considered the past record of the

official. I find that earlier also the official was placed

under suspension for similar type of acts of misconduct

and was proceeded against for major penalty. On

conclusion of the enquiry he was inflicted upon the

penalty of "Censure" by the Disciplinary Authority

considering that he suffered mental agony and that the act

was the first riotous act during his service and with a

view to give him an opportunity to reform himself.

Despite this, I find that the official has repeated such type

of misconduct proving that the earlier decision of the

Disciplinary Authority did not have any reformative

impact upon the official.

4. The ingredients of the proved/partly proved

allegations/charges in the instant case are so grave that

the official does not deserve to be continued in the

Bank's service. I, therefore, recommend that the penalty

of "Removal from Bank's service" as provided for in

Rule No.49(g) of the State Bank of India (Supervising

Staff) Service Rules may be inflicted upon the official

treating his period of suspension as such. Accordingly,

he will not be eligible for any back wages for the period

of his suspension. The order shall be effective from the

date of its receipt by the official."

It is not disputed that the Disciplinary Authority, prior to making the

said recommendations, did not assign any reason for expressing his

difference of opinion with the Inquiry Officer as regard the said charge

No.2, nor served the delinquent officer with a show cause nor he was served

with a copy of the enquiry report. The Appointing Authority, however,

relying on or on the basis of the said recommendations of the Disciplinary

Authority, as also upon consideration of the materials on record, while

forwarding a copy of the report of the Inquiry Officer, imposed upon the

Appellant a punishment of removal from service stating:

"I have perused the records of the enquiry in its

entirety and concur with the reasonings/findings recorded

in the "Note" of the Disciplinary Authority.

Accordingly, I am in agreement with the

recommendations of the Disciplinary Authority that you

do not deserve to be continued in the Bank's service. I

have, therefore, decided to inflict upon you the penalty of

"Removal from service" in terms of Rule No.49(g) of the

State Bank of India (Supervising Staff Service Rules

governing your services in the Bank read with Rule

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No.50(3)(iii) ibid., which I hereby do. Further, you will

also not be paid the salary and allowances for the period

of your suspension except the subsistence allowance

already paid to you, as the period of suspension has been

treated as such by me. The order shall be effective from

the date of receipt of this letter by you. Please note that a

copy of this order is being placed in your service file."

The Appellant herein, thereafter, preferred an appeal before the

Appellate Authority. As regards the opinion of the Disciplinary Authority,

so far as charge No.2 is concerned, he stated:

"The enquiring authority held this charge

disproved but the disciplinary authority reversed the

findings of E/A and deemed the charge as proved. The

act of disciplinary authority having given weightage to

the CSO pressure on BM Churcha requires to be

reviewed in the light of the fact that the Regional

Manager's say in the matter was not considered the

pressure to whom BM is subordinate but an OJM on

deputation to the branch could pressurise the BM

Churcha. The perusal of relative portion of enquiry

proceedings will reveal that the entire issue was framed

by BM Churcha on instance of the respective Regional

Manager. It is, therefore, requested to your honour to

take an independent view in the matter."

No plea was raised by the Appellant that he was prejudiced in any

manner either by reason of any delay, which might have taken place in

holding the disciplinary proceeding, or by reason of the Disciplinary

Authority's dissatisfaction as regards thereto and/or non-grant of an

opportunity of hearing to him. The said appeal, upon consideration of the

contentions raised by the Appellant herein, was dismissed by the Appellate

Authority by an order dated 16.6.1992 stating:

"Discipline and decency will have to be

maintained at all costs and breach thereof will have to be

severely dealt with. Further, the official was given an

opportunity to reform himself on an earlier occasion but

he failed to eschew his defiant attitude. I am, therefore,

in full agreement with the appointing Authority's

decision to impose the exemplary punishment of removal

from service on Shri Agarwal. However, to reduce the

financial hardships faced by the appellant, I am inclined

to consider the period of suspension from 11.11.1986 to

22.7.1990 on duty."

He filed a writ petition questioning the legality of the said order,

which was dismissed. A Letters Patent Appeal preferred by the Appellant

thereagainst was also dismissed by a reasoned order.

Mr. P.P. Rao, learned Senior counsel appearing on behalf of the

Appellant has raised the following contentions in support of this appeal:

(i) The penalty of removal from service, imposed upon the

Appellant by the Disciplinary Authority, was illegal as prior thereto a copy

of the enquiry report was not furnished to him and thus: (a) the Appellant

was denied an opportunity to present his case against the findings of the

Inquiry Officer; (b) a similar opportunity was denied to him by the

Disciplinary Authority when he differed with the finding of the Inquiry

Officer as regard charge No.2;

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(ii) As violation of the principle of natural justice itself causes

prejudice, it was not necessary for the Appellant to raise the said contention

expressly, as also for the violation of Article 14 of the Constitution of India;

(iii) The High Court committed a manifest error in passing the

impugned judgment in so far as it held that the principles of natural justice

had been complied with as the Appellant herein got an opportunity of

hearing before the Appellate Authority;

(iv) The disciplinary proceedings were initiated after delay of about

three years from the alleged incidents, on the basis whereof the charges had

been framed against him and as such the entire disciplinary proceeding was

vitiated;

(v) In any event such inaction on the part of the Disciplinary

Authority for a long time would amount to condonation of the acts of alleged

misconduct;

(vi) The disciplinary proceeding, being mala fide, is violated in law;

(vii) The punishment imposed upon the Appellant was

disproportionate to the gravity of the misconduct, for which the Appellant

was charged, and, thus, deserve to be set aside by this Court.

Mr. V.A. Bobde, learned Senior counsel appearing on behalf of the

Respondents, on the other hand, would contend:

(i) The Appellant did not plead or prove any prejudice having been

caused to him before the Appellate Authority in view of the fact that he

himself invited it to deal with the matter on merit;

(ii) It is not a case where delay in initiating the Disciplinary

Authority caused any prejudice to the Appellant as: (a) all witnesses were

available to prove the charges against him; (b) the witnesses were fully

cross-examined; and (c) the Appellant fully defended himself before the

Disciplinary Authority.

(iii) In respect of findings of the Inquiry Officer vis-`-vis the other

charges being severable, even if the Appellant was held to be not guilty of

commission thereof, the impugned order of punishment would be

sustainable.

(iv) So far as non-furnishing of copy of the enquiry report is

concerned, having regard to the fact that the decision of this Court in Union

of India & Ors. vs. Mohd. Ramzan Khan [(1991) 1 SCC 588], was

rendered on 20th November, 1990, and it having only a prospective

application and the impugned order of punishment having been passed on

20th July, 1990, in law the Disciplinary Authority was not required to

furnish a copy of the enquiry report to the Appellant;

(v) Compliance of principles of natural justice not only varies from

case to case, in a situation of the present nature, the same would be deemed

to have been waived as by reason of non-issuance of a show cause notice

upon the Appellant by the Disciplinary Authority, while differing with the

findings of the Inquiry Officer on charge No.2, he was not at all prejudiced

as he himself .had called upon the Appellate Authority to decide the matter

on its own merit and the impugned order may not be interfered with.

(vi) No case has been made out for interference with the quantum of

punishment by this Court having regard to the fact that despite opportunities

having been granted to the Appellant to reform himself, he continued to

commit similar nature of misconduct, namely, using abusive and

unparliamentary language and threatenings to assault the senior officers and

others.

The Respondent No.1 is a statutory authority, having been created

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under the State Bank of India Act, 1955.

The terms and conditions of the employees of the 1st Respondent

herein, thus, are governed by the statutory Rules framed in this behalf

including the State Bank of India (Supervisory Staff) Service Rules (the

'Rules', for short). Rule 49 of the said Rules provides for the mode and

manner in which the disciplinary proceedings are required to be initiated.

The said Rules also provide for imposition of minor and major penalties. In

terms of the proviso appended to Rule 50(1)(i), where the Disciplinary

Authority is lower in rank than the Appointing Authority in respect of the

category of the employees to which he belongs to, no order imposing any of

the major penalties can be passed, except by the Appointing Authority or an

authority higher than it on the recommendations of the Disciplinary

Authority.

The pattern of charges against the Appellant, categorically point out to

the fact that the Appellant had been misbehaving with the Regional

Managers and other officers, as well as the customers not only while he was

posted in different branches.

Charge No.2 refers to an incident, which took place on 26.9.1986.

The said charge, admittedly, was not proved. However, it is not disputed

that in respect of charge No.1 witnesses were examined on behalf of the 1st

Respondent. They were thoroughly cross-examined by the Appellant.

Documentary evidences were also adduced by the parties. So far charge

No.3 is concerned, only one witness was examined on behalf of the 1st

Respondent. The Appellant therein exhibited four documents in support of

his case. The 1st Respondent also exhibited some documents. Similarly, in

relation to each other charge witnesses were examined on behalf of the 1st

Respondent; they were cross-examined and documents were exhibited.

The validity of the disciplinary proceeding and/or justifiability thereof

on the ground of delay or otherwise had never been raised by the Appellant

before any forum. It was not his case either before the Appellate Authority

or before the High Court that by reason of any delay in initiating the

disciplinary proceeding he had been prejudiced in any manner whatsoever.

It may be true that delay itself may be a ground for arriving at a finding that

enquiry proceeding was vitiated in the event it is shown that by reason

thereof the delinquent officer has been prejudiced, but no such case was

made out.

Mr. Rao urged that the Respondents must have condoned the

misconduct on the part of the Appellant herein as they have not taken any

action and initiated disciplinary proceeding after he was placed under

suspension. Reliance in this behalf has been placed on State of M.P. &

Ors. vs. R.N. Mishra & Anr. [(1997) 7 SCC 644].

The order of suspension was passed as far back in 1986, inter alia, in

contemplation of initiation of a disciplinary proceeding. It may be true that

no disciplinary proceeding was initiated against the Appellant, as a criminal

proceeding was pending against him. But, only because the criminal

proceeding was pending, the same itself may not be a ground to hold that

there had been a conscious act on the part of the Respondents herein to

condone the misconduct on the part of the Appellant herein.

The terms and conditions of the employees of the Respondent-Bank

are governed by a statute. The Disciplinary Authority, by reason of the

Rules framed, was delegated with the power of the Bank to initiate

departmental proceeding against the delinquent officer and impose suitable

punishment upon him, if the misconduct is proved. In this case concept of

contract of personal service as is understood in common parlance is not

applicable. The doctrine of condonation of misconduct so evolved by

ordinary law of `master and servant' is thus, not attracted in this case. Under

the common law, as also the provisions contained in Section 14(1)(b) of the

Specific Relief Act, a master was entitled to terminate the services of an

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erring employee at his sweet will. The dismissed employee could have sued

his master only for damages and not for his reinstatement in service. It is

only for the purpose of grant of damages, a declaration was required to be

made that the termination of the service was illegal. Having regard to the

said legal position, the doctrine of condonation of misconduct evolved, in

terms whereof, it was impermissible for the master to allow an employee to

continue in service for a long time despite his knowledge that he had

committed a misconduct and then to turn round and contend that his services

should have been terminated on the ground that he was guilty of misconduct.

We may notice some decisions cited at the Bar.

In L.W. Middleton vs. Harry Playfair [1925 Calcutta 87], the

Calcutta High Court was concerned with the terms and conditions of service

governed by contract and not by a statute. The suit was filed by the manager

of a Tea Estate for recovery of arrears of salary and damages for beach of

contract of employment.

In District Council, Amraoti through Secretary vs. Vithal Vinayak

Bapat [AIR 1941 Nagpur 125], Vivian Bose, J., following L.W. Middleton

(supra), the Nagpur High Court held:

"Once a master has condoned any misconduct

which would have justified dismissal or a fine, he cannot

after such condonation go back upon his election to

condone and claim a right to dismiss him (servant) or

impose a fine or any other punishment in respect of the

offence which has been condoned. This rule is to be

found in AIR 1925 Cal 87 and in many other cases."

In R.N. Mishra (supra), this Court, in view of the fact situation

obtaining therein opined that the employer had condoned the misconduct

stating:

"In the present case, misconduct attributed to the

respondent came to light in the year 1976 when a

preliminary inquiry was ordered and while the inquiry

was continuing, the State Government was required to

consider the case of the respondent for promotion to the

post of Assistant Conservator of Forest. Under law, the

State Government had no option but to consider the case

of the respondent for promotion. The State Government

could not have excluded the respondent from the zone of

consideration merely on the ground that a preliminary

inquiry to enquire into the allegations of misconduct

attributed to him was pending. In such a situation, the

doctrine of condonation of misconduct cannot be applied

as to wash off his acts of misconduct which was the

subject-matter of preliminary enquiry. We are, therefore,

of the opinion that the promotion of the respondent to the

post of Assistant Conservator of Forest would not

amount to condonation of misconduct alleged against

him which was the subject-matter of preliminary inquiry.

Consequently, the punishment imposed on the respondent

by the State Government was valid and legal. The

decision relied upon by the Tribunal as well as by the

learned counsel for the respondent in the case of Lal

Audhraj Singh v. State of M.P. is not applicable to the

facts of the present case, as in that case, the employer had

a choice to inflict punishment on the employee but the

employer did not choose to punish the employee and in

that context, it was held by the High Court that the

misconduct attributable to the employee was condoned."

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However, for the purpose of holding that misconduct was condoned

by the employer the Court must come to a definite finding as regard the

conduct of the employer. It must be held that either expressly or by

necessary implication that the employer had knowledge of the misconduct of

the employee. It is one thing that despite such knowledge, the delinquent

officer is promoted to which he would not have been otherwise entitled to or

if the disciplinary proceeding had been initiated as if the misconduct was not

committed for and it is another thing to say that such a misconduct was not

required to be taken into consideration as by reason of the service Rule,

promotion was to be granted on the basis of seniority alone, and, thus, the

question of condonation of misconduct on the part of the employer would

not arise.

In State of M.P. vs. Bani Singh & Anr. [(1990) Supp. SCC 738],

whereupon Mr. Rao placed strong reliance, this Court opined that by reason

of delay of 12 years in initiating the disciplinary proceeding, the delinquent

officer could not defend himself properly. In that case there was no

satisfactory explanation such a long delay. There was also doubt as regards

the involvement of the delinquent officer.

In State of Punjab & Ors. vs. Chaman Lal Goyal [(1995) 2 SCC

570], however, this Court refused to set aside those disciplinary proceeding

which had been initiated after a delay of 5= years. Distinguishing the

decision of this Court in Bani Singh & Anr. (supra), it was stated:

"Now remains the question of delay. There is

undoubtedly a delay of five and a half years in serving

the charges. The question is whether the said delay

warranted the quashing of charges in this case. It is trite

to say that such disciplinary proceeding must be

conducted soon after the irregularities are committed or

soon after discovering the irregularities. They cannot be

initiated after lapse of considerable time. It would not be

fair to the delinquent officer. Such delay also makes the

task of proving the charges difficult and is thus not also

in the interest of administration. Delayed initiation of

proceedings is bound to give room for allegations of bias,

mala fides and misuse of power. If the delay is too long

and is unexplained, the court may well interfere and

quash the charges. But how long a delay is too long

always depends upon the facts of the given case.

Moreover, if such delay is likely to cause prejudice to the

delinquent officer in defending himself, the enquiry has

to be interdicted. Wherever such a plea is raised, the

court has to weigh the factors appearing for and against

the said plea and take a decision on the totality of

circumstances. In other words, the court has to indulge in

a process of balancing"

In Additional Supdt. of Police vs. T. Natarajan [1999 SCC (L&S)

646], this Court held:

"In regard to the allegation that the initiation of the

disciplinary proceedings was belated, we may state that it

is settled law that mere delay in initiating proceedings

would not vitiate the enquiry unless the delay results in

prejudice to the delinquent officer. In this case, such a

stage as to examine that aspect has not arisen."

In this case, as noticed hereinbefore, the Appellant did not raise the

question of delay before any forum whatsoever. He did not raise such a

question even before the Disciplinary Authority. He not only took part

therein without any demur whatsoever, but, as noticed hereinbefore, cross-

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examined the witnesses and entered into the defence.

The Principles of natural justice cannot be put in a straight jacket

formula. It must be seen in circumstantial flexibility. It has separate facets.

It has in recent time also undergone a sea change.

In Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corpn.

Ltd., Haldia & Ors. [(2005) 7 SCC 764], a Three Judge Bench of this Court

opined:

"We are aware of the normal rule that a person

must have a fair trial and a fair appeal and he cannot be

asked to be satisfied with an unfair trial and a fair appeal.

We are also conscious of the general principle that pre-

decisional hearing is better and should always be

preferred to post-decisional hearing. We are further

aware that it has been stated that apart from Laws of

Men, Laws of God also observe the rule of audi alteram

partem. It has been stated that the first hearing in human

history was given in the Garden of Eden. God did not

pass sentence upon Adam and Eve before giving an

opportunity to show cause as to why they had eaten the

forbidden fruit. (See R. v. University of Cambridge18.)

But we are also aware that the principles of natural

justice are not rigid or immutable and hence they cannot

be imprisoned in a straitjacket. They must yield to and

change with exigencies of situations. They must be

confined within their limits and cannot be allowed to run

wild. It has been stated: " 'To do a great right' after all, it

is permissible sometimes 'to do a little wrong'." [Per

Mukharji, C.J. in Charan Lal Sahu v. Union of India19

(Bhopal Gas Disaster), SCC p. 705, para 124.] While

interpreting legal provisions, a court of law cannot be

unmindful of the hard realities of life. In our opinion, the

approach of the Court in dealing with such cases should

be pragmatic rather than pedantic, realistic rather than

doctrinaire, functional rather than formal and practical

rather than "precedential".

In Canara Bank & Ors. vs. Debasis Das & Ors. [(2003) 4 SCC

557], this Court referred to the prejudice doctrine stating:

"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 question as to whether in this case there has been a gross

violation of principles of natural justice will have to be considered from two

different angles.

Firstly, the effect of the Disciplinary Authority having not given him

an opportunity of hearing while differing with the findings of the Inquiry

Officer as has been laid down in Punjab National Bank & Ors. vs. Kunj

Behari Mishra [(1998) 7 SCC 84] may be noticed.

In Ranjit Singh vs. Union of India & Ors. [2006 (4) SCALE 154],

following Punjab National Bank (supra), it was held:

"In view of the aforementioned decisions of this

Court, it is now well settled that the principles of

natural justice were required to be complied with

by the Disciplinary Authority. He was also

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required to apply his mind to the materials on

record. The Enquiry Officer arrived at findings

which were in favour of the Appellant. Such

findings were required to be over turned by the

Disciplinary Authority. It is in that view of the

matter, the power sought to be exercised by the

Disciplinary Authority, although not as that of an

appellate authority, but akin thereto. The inquiry

report was in favour of the Appellant but the

Disciplinary Authority proposed to differ with

such conclusions and, thus, apart from complying

with the principles of natural justice it was

obligatory on his part, in absence of any show

cause filed by the Appellant, to analyse the

materials on records afresh. It was all the more

necessary because even the CBI, after a thorough

investigation in the matter, did not find any case

against the Appellant and thus, filed a closure

report. It is, therefore, not a case where the

Appellant was exonerated by a criminal court after

a full fledged trial by giving benefit of doubt. It

was also not a case where the Appellant could be

held guilty in the disciplinary proceedings

applying the standard of proof as preponderance of

the probability as contrasted with the standard of

proof in a criminal trial, i.e., proof beyond all

reasonable doubt. When a final form was filed in

favour of the Appellant, the CBI even did not find

a prima facie case against him. The Disciplinary

Authority in the aforementioned peculiar situation

was obligated to apply his mind on the materials

brought on record by the parties in the light of the

findings arrived at by the Inquiry Officer. He

should not have relied only on the reasons

disclosed by him in his show cause notice which, it

will bear repetition to state, was only tentative in

nature. As the Appellate Authority in arriving at

his finding, laid emphasis on the fact that the

Appellant has not filed any objection to the show

cause notice; ordinarily, this Court would not have

exercised its power of judicial review in such a

matter, but the case in hands appears to be an

exceptional one as the Appellant was exonerated

by the Inquiry Officer. He filed a show cause but,

albeit after some time the said cause was available

with the Disciplinary Authority before he issued

the order of dismissal. Even if he had prepared the

order of dismissal, he could have considered the

show cause as it did not leave his office by then.

The expression "communication" in respect of an

order of dismissal or removal from service would

mean that the same is served upon the delinquent

officer. [See State of Punjab vs. Amar Singh

Harika, AIR 1966 SC 1313]"

Contention of Mr. Bobde in this behalf that he was not prejudiced

thereby cannot be accepted. There has been a flagrant violation of principles

of natural justice in so far as no show cause notice was issued to the

Appellant by the Disciplinary Authority while differing with the findings of

the Inquiry Officer as regard charge No.2. We would deal with this aspect

of the matter a little later.

However, the contention of Mr. Rao that only because a copy of the

enquiry report was not furnished to the Appellant by the Disciplinary

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Authority, there has been a violation of the mandatory provisions of the

regulations, cannot also be accepted for the reasons stated hereinafter.

The order of punishment of removal against the Appellant was passed

against the Appellant on 22nd July, 1990. The decision of this Court in

Mohd. Ramzan Khan (supra), as noticed hereinbefore, was decided on 20th

November, 1990 wherein the law laid down by this Court, while holding that

a delinquent officer cannot be called upon to make a representation on the

quantum of punishment without furnishing a copy of the enquiry report, was

expressly given a prospective effect. It was, therefore, not at all necessary

for the Disciplinary Authority, keeping in view the law as it then stood, to

furnish a copy of the enquiry report to the Appellant.

Decision of this Court in S.L. Kapoor vs. Jagmohan & Ors. [(1980)

4 SCC 379], whereupon Mr. Rao placed strong reliance to contend that non-

observance of principle of natural justice itself causes prejudice or the same

should not be read "as it causes difficulty of prejudice", cannot be said to be

applicable in the instant case. The principles of natural justice, as noticed

hereinbefore, has undergone a sea change. In view of the decision of this

Court in State Bank of Patiala & Ors. vs. S.K. Sharma [(1996) 3 SCC

364] and Rajendra Singh vs. State of M.P. [(1996) 5 SCC 460], the

principle of law is that some real prejudice must have been caused to the

complainant. The Court has shifted from its earlier concept that even a

small violation shall result in the order being rendered a nullity. To the

principal doctrine of audi alterem partem, a clear distinction has been laid

down between the cases where there was no hearing at all and the cases

where there was mere technical infringement of the principal. The Court

applies the principles of natural justice having regard to the fact situation

obtaining in each case. It is not applied in a vacuum without reference to the

relevant facts and circumstances of the case. It is no unruly horse. It cannot

be put in a straightjacket formula. [See Viveka Nand Sethi vs. Chairman,

J. & K. Bank Ltd. & Ots. (2005) 5 SCC 337 and State of U.P. vs. Neeraj

Awasthi & Ors. JT 2006 (1) SC 19. See also Mohd. Sartaj vs. State of

U.P. (2006) 1 SCALE 265.]

In Union of India & Anr. vs. Tulsi Ram Patel [(1985) Supp.2 SCR

131 : (1985) 3 SCC 398], whereupon again Mr. Rao placed strong reliance,

this Court did not lay down a law in absolute terms that violation of

principle of natural justice would be read into the equality clause contained

in Article 14 of the Constitution of India. The said decision was rendered

having regard to the fact that by taking recourse to the second proviso

appended to Article 311 of Constitution of India, no disciplinary proceeding

was to be initiated at all and an order of dismissal could be passed only on

the basis of subjective satisfaction of the authority empowered to dismiss or

remove a person or to reduce him in rank wherefor reason was to be

recorded by it in writing that it was not reasonably practicable to hold a

disciplinary proceeding. The facets of the principle of natural justice was

considered in some details in State Bank of Patiala & Ors. vs. S.K.

Sharma [(1996) 3 SCC 364], wherein this Court categorically held:

"Now, coming back to the illustration given by us

in the preceding para, would setting aside the punishment

and the entire enquiry on the ground of aforesaid

violation of sub-clause (iii) be in the interests of justice

or would it be its negation? In our respectful opinion, it

would be the latter. Justice means justice between both

the parties. The interests of justice equally demand that

the guilty should be punished and that technicalities and

irregularities which do not occasion failure of justice are

not allowed to defeat the ends of justice. Principles of

natural justice are but the means to achieve the ends of

justice. They cannot be perverted to achieve the very

opposite end. That would be a counter-productive

exercise."

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It was opined that in an appropriate case, the said right could also be

waived, stating:

"If it is found that he has been so prejudiced,

appropriate orders have to be made to repair and remedy

the prejudice including setting aside the enquiry and/or

the order of punishment. If no prejudice is established to

have resulted therefrom, it is obvious, no interference is

called for. In this connection, it may be remembered that

there may be certain procedural provisions which are of a

fundamental character, whose violation is by itself proof

of prejudice. The Court may not insist on proof of

prejudice in such cases."

It was further held:

"Where the enquiry is not governed by any

rules/regulations/statutory provisions and the only

obligation is to observe the principles of natural justice \026

or, for that matter, wherever such principles are held to

be implied by the very nature and impact of the

order/action \026 the Court or the Tribunal should make a

distinction between a total violation of natural justice

(rule of audi alteram partem) and violation of a facet of

the said rule, as explained in the body of the judgment.

In other words, a distinction must be made between "no

opportunity" and no adequate opportunity, i.e., between

"no notice"/"no hearing" and "no fair hearing". (a) In the

case of former, the order passed would undoubtedly be

invalid (one may call it 'void' or a nullity if one chooses

to). In such cases, normally, liberty will be reserved for

the Authority to take proceedings afresh according to

law, i.e., in accordance with the said rule (audi alteram

partem). (b) But, in the latter case, the effect of violation

(of a facet of the rule of audi alteram partem) has to be

examined from the standpoint of prejudice; in other

words, what the Court or Tribunal has to see is whether

in the totality of the circumstances, the delinquent

officer/employee did or did not have a fair hearing and

the orders to be made shall depend upon the answer to

the said query."

It is not a case where there had been a gross violation of principles of

natural justice in the sense no disciplinary proceeding was initiated at all or

no hearing was given.

In Canara Bank & Ors. (supra), a Division Bench of this Court held:

"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 with 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 indefensible."

Even in Managing Director, ECIL, Hyderabad & Ors. vs. B.

Karunakar & Ors. [(1993) 4 SCC 727], this Court clearly held:

"\005..The theory of reasonable opportunity and the

principles of natural justice have been evolved to uphold

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the rule of law and to assist the individual to vindicate his

just rights. They are not incantations to be invoked nor

rites to be performed on all and sundry occasions.

Whether in fact, prejudice has been caused to the

employee or not on account of the denial to him of the

report, has to be considered on the facts and

circumstances of each case. Where, therefore, even after

the furnishing of the report, no different consequence

would have followed, it would be a perversion of justice

to permit the employee to resume duty and to get all the

consequential benefits. It amounts to rewarding the

dishonest and the guilty and thus to stretching the

concept of justice to illogical and exasperating limits. It

amounts to an "unnatural expansion of natural justice"

which in itself is antithetical to justice."

It was further opined:

"\005..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"

What then would be the consequence of violation of principles of

natural justice, so far as the dicta laid down by this Court in Punjab

National Bank & Ors. (supra) is concerned is the question.

The charges against the Appellant are almost identical. Primarily,

charges of similar nature in respect of commission of misconduct on nine

different occasions were the subject matter of the disciplinary proceeding.

The charge No.2 constituted an independent charge, as commission of one

misconduct had nothing to do with the commission of similar nature of

misconduct on all other occasions. The said charge was, therefore,

severable.

A Constitution Bench of this Court in State of Orissa & Ors. vs.

Bidyabhushan Mohapatra [(1963) Supp.1 SCR 648 : AIR 1963 SC 779]

opined:

"The High Court has held that there was evidence

to support the findings on heads (c) & (d) of Charge (1)

and on Charge (2). In respect of charge 1(b) the

respondent was acquitted by the Tribunal and it did not

fall to be considered by the Governor. In respect of

charges 1(a) and 1(e) in the view of the High Court "the

rules of natural justice had not been observed". \005\005\005

It is not necessary for us to consider whether the High

Court was right in holding that the findings of the

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Tribunal on charges 1(a) and 1(e) were vitiated for

reasons set out by it, because in our judgment the order

of the High Court directing the Government to reconsider

the question of punishment cannot, for reasons we will

presently set out, be sustained. If the order of dismissal

was based on the findings on charges 1(a) and 1(e) alone

the Court would have jurisdiction to declare the order of

dismissal illegal but when the findings of the Tribunal

relating to the two out of five heads of the first charge

and the second charge was found not liable to be

interfered with by the High Court and those findings

established that the respondent was prima facie guilty of

grave delinquency, in our view the High Court had no

power to direct the Governor of Orissa to reconsider the

order of dismissal."

The Constitution Bench therein has clearly laid down that even if the

charges which have been proved, justify imposition of punishment of

dismissal from service, this Court may not exercise its power of judicial

review.

The said decision was noticed by this Court in Binny Ltd. Vs.

Workmen [AIR 1972 SC 1975 : (1972) 3 SCC 806], in the following terms:

"\005.It was urged that the Court should not have assumed

that the General Manager would have inflicted the

punishment of dismissal solely on the basis of the second

charge and consequently the punishment should not be

sustained if it was held that one of the two charges on the

basis of which it was imposed was unsustainable. This

was rejected following the decision in State of Orissa v.

Bidyabhan Mohapatra, where it was said that if an order

in an enquiry under Article 311 can be supported on any

finding as substantial misdemeanour for which

punishment imposed can lawfully be given, it is not for

the Court to consider whether that ground alone would

have weighed with the authority in imposing the

punishment in question. In our view that principle can

have no application to the facts of this case. Although the

enquiry officer found in fact that the respondent had

behaved insolently towards the Warehouse Master, he

did not come to the conclusion that this act of

indiscipline on a solitary occasion was sufficient to

warrant an order of dismissal."

Yet again, in Sawarn Singh & Anr. vs. State of Punjab & Ors.

[(1976) 2 SCC 868], this Court held:

"19. In view of this, the deficiency or reference to some

irrelevant matters in the order of the Commissioner, had

not prejudiced the decision of the case on merits either at

the appellate or revisional stage. There is authority for

the proposition that where the order of a domestic

tribunal makes reference to several grounds, some

relevant and existent, and others irrelevant and non-

existent, the order will be sustained if the Court is

satisfied that the authority would have passed the order

on the basis of the relevant and existing grounds, and the

exclusion of irrelevant or non-existing grounds could not

have affected the ultimate decision."

We are, therefore, of the opinion that charge No.2 being severable,

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this Court can proceed on the basis that the charges against the Appellant in

respect of charge No.2 was not proved.

In Orissa Cement Limited vs. Adikanda Sahu reported 1960 (1)

LLJ SC 518 that a verbal abuse may entail imposition of punishment of

dismissal from service.

The said decision has been followed in Mahindra and Mahendra

Ltd. vs. N.N. Narawade etc. reported in JT 2005 (2) SC 583.

The question as regard the jurisdiction of this Court to interfere with

the quantum of punishment, it is well known, is limited. While exercising

the said jurisdiction, the Court, only in very exceptional case, interferes

therewith.

In Chairman & M.D., Bharat Pet. Corpn. Ltd. & Ors. vs. T.K.

Raju JT 2006 (2) SC 624, this Court opined:

"15. We also do not agree with the submission of Mr.

Krishnamani that two of the eight charges have not been

found to be proved. The charges levelled against the

respondent must be considered on a holistic basis. By

reason of such an action, the respondent had put the

company in embarrassment. It might have lost its image.

It received complaints from the Federation. There was

reason for the appellant to believe that by such an action

on the part of the respondent the appellant's image has

been tarnished. In any event, neither the learned Single

Judge nor the Division Bench came to any finding that

none of the charges had been proved.

16. The power of judicial review in such mattes is

limited. This Court times without number had laid down

that interference with the quantum of punishment should

not be one in a routine manner."

[See also A. Sudhakar vs. Post Master General, Hyderabad &

Anr. (JT 2006 (4) SC 68)]

For the reasons afore-mentioned, we are of the opinion that it is not a

fit case where this Court should exercise its discretionary jurisdiction under

Article 136 of the Constitution of India. This appeal is, therefore, dismissed.

However, in the facts and circumstances of this case, there shall be no order

as to costs.