State Bank Of India & Ors vs Bidyut Kumar Mitra & Ors

15 respondent raised the ground of non-

supply of the vigilance report. He also

submitted that the refusal of the Bank to

requisition the documents mentioned in

the list of witnesses and to summon the

witnesses named in the list of witnesses

resulted in denial of reasonable

opportunity of hearing at the enquiry and

the same caused serious prejudice to his

defence. He stated that out of the

seventeen documents referred to in the

application dated 3rd April, 1982, the

documents at Sr. No. 1, 2, 6, 12, 14 and

17 were most vital documents. He

reiterated the pleas which were raised in

the Review Petition.

15. The appellant Bank filed a detailed

counter affidavit in opposition to the writ

petition denying all allegations and

16 claims of the respondent. In reply to

paras 10, 11 and 12 of the petition, it was

stated that respondent was asked to

submit his list of documents and

witnesses by 31st March, 1982, but he

failed to do so. He submitted the list

after nearly two months and as such no

action could be taken there upon. It is

reiterated that the respondent did not

make any grievance about the non-

production of documents at the enquiry.

He also did not raise any objection with

regard to non-calling of any witness at

the enquiry. It was stated that the

allegations with regard to denial of

natural justice are baseless and the

respondent had in fact admitted that he

committed the irregularity but he blamed

the Head Office for not warning the

respondent well in advance. His

17 justification about the group guarantee

was nullified by his own defence witness,

a Development Manager, who deposed

that the group guarantee is meant for

poor sections of the community under

Differential Interest Rate (DIR) loans and

not for transport operators. It was also

pointed out that group guarantees are

taken only for loans of about Rs.6,500/-

or so and not for large amounts of Rs. 1

Lac and above. The appellant Bank also

submitted that there were no violations of

principle of natural justice. The

appellant Bank also submitted that

Presenting Officer made repeated

requests to the respondent to submit the

list of documents and witnesses but the

respondent ignored the requests. It was

only about two months later when the

enquiry was virtually completed when the

18 respondent submitted a request letter

dated 3rd April, 1982.

16. By judgment and order dated 18th April,

2001, the learned Single Judge dismissed

the writ petition. Aggrieved by the

judgment of the learned Single Judge, the

respondent challenged the same in

appeal before the Division Bench. The

Division Bench vide judgment and order

dated 6th February, 2009 set aside the

judgment of the learned Single Judge

dated 18th April, 2001 and allowed the

writ petition. Consequently, the Enquiry

Report, order of punishment and the

subsequent orders of the Appellate

Authority as also the resolution passed

by the Review Committee were quashed

and set aside. The Bank has challenged

19 the aforesaid judgment of the Division

Bench in the present appeal.

17. We have heard the learned counsel for

the parties.

18. It is submitted by Mr. Shyam Divan,

learned senior counsel appearing for the

Bank that the Division Bench without

adverting to the fact situation held that

there has been a breach of rules of

natural justice, which has vitiated the

entire disciplinary proceedings from the

stage of holding of the departmental

enquiry till the passing of the resolution

by the Review Committee. Learned Single

Judge, according to the learned senior

counsel, had given cogent reasons to

justify its conclusions on facts. It was

rightly observed by the learned Single

20 Judge that respondent never raised the

issue of any prejudice having been

caused by the non-supply of the

documents during the proceedings. The

Division Bench also failed to appreciate

that all material documents relied upon

by the Bank had been supplied to or

inspected by the respondent. The

Division Bench, wrongly relying on a

judgment of this Court in the case of

State Bank of India and Ors. Vs. D.C.

Aggarwal and Anr.1 held that the non-

supply of the report of the CVC had

vitiated the entire proceedings. Learned

senior counsel submitted that both the

grounds on which the judgment of the

Division Bench is based are factually

non-existent in this case. According to

Mr. Divan, the matter herein is in fact

covered by the judgment of this Court in 1 (1993) 1 SCC 13 21 the case of State Bank of India and Ors

Vs. S. N. Goyal2 wherein the judgment in

D.C. Aggarwal's case (supra) has been

distinguished. Learned senior counsel

had also relied on Disciplinary

Authority-cum-Regional Manager and

Ors Vs. Nikunja Bihari Patnaik3 and

Regional Manager, U.P. SRTC, Etwah

and Ors Vs. Hoti Lal and Anr.4.

19. On the other hand, Mr. Kalyan

Bandopadhyay, learned senior counsel

appearing for the respondent submitted

that there has been a clear breach of

procedure prescribed under Rule 50 sub-

clause xi of the Service Rules. The

Division Bench on consideration of the

aforesaid rule concluded that the learned

Single Judge did not take care of the

2 (2008) 8 SCC 92 3 (1996) 9 SCC 69 4 (2003) 3 SCC 605 22 procedural impropriety, i.e., breach of

Rule 50 in conducting the enquiry

proceeding against the respondent.

Learned senior counsel further submitted

that the procedural requirements under

Rule 50 are mandatory in nature to

ensure that there is a fair enquiry. Mr.

Bandopadhyay further submitted that

non-supply of the recommendations of

the CVC being contrary to the

requirements of the Service Rules, any

further proof of prejudice was not

required. Once the procedural rule had

been violated, prejudice would be

presumed. In support of his

submissions, Mr. Bandopadhyay relied

on a number of judgments of this Court

in the case of D.C. Aggarwal's case

(supra), Committee of Management,

Kisan Degree College Vs. Shambhu

23 Saran Pandey and Ors.5, State Bank of

Patiala and Ors Vs. S.K. Sharma6 and

Nagarjuna Construction Company

Limited Vs. Government of Andhra

Pradesh and Ors.7.

20. Mr. Bandopadhyay submits that the

Division Bench had passed a just order to

remove an injustice. The respondent had

been dismissed from service arbitrarily.

The entire disciplinary proceedings were

vitiated being violative of principle of

natural justice. According to the learned

senior counsel, the appeal observes to be

dismissed.

21. We have considered the submissions

made by the learned counsel for the

parties. Before we consider the judgment

5 (1995) 1 SCC 404 6 (1996) 3 SCC 364 7 (2008) 16 SCC 276 24 of the Division Bench, it would be

appropriate to notice the opening

remarks made by the learned Single

Judge in its order dated 18th April, 2001.

The learned Single Judge observed as

follows:-

"Very many points had been urged in the writ petition in support of the challenged thrown to the charge sheet, proceedings pursuant thereto and the orders passed therein, but at the hearing the same was restricted to denial of natural justice for not supplying the vigilance report, which, according to the petitioner, was considered while taking the decision for completion of the disciplinary proceedings."

From the above, it become obvious that even before the

learned Single Judge, the respondent had made no

grievance about the non-supply of documents. Also no

further issue was raised about any prejudice having been

caused to the respondent. With regard to the non-supply

of the recommendations of the CVC, the learned Single

Judge made the following observations:-

"It is true that if in a disciplinary proceeding a decision is taken on the basis of a recommendation or advice, not 25 supplied to the delinquent, such a decision would be bad. On the pleadings there is no dispute that in the case of the Petitioner advice and recommendations were sent by the Central Vigilance Commission. There is also no dispute that such advice and recommendations were not communicated to the Petitioner. If the decisions impugned in this writ petition have been taken on the basis of such advice and recommendations, the same are equally bad. It is not the case of the Petitioner that by reason of any application rule or by reason of usage, custom or practice, the Authorities concerned, who have decided the matters, are bound to take into account such advice or recommendations of the Central Vigilance Commission. Therefore, despite such advice and recommendations having been given, the Authorities concerned, who are empowered to decide, may totally ignore such advice and recommendations and if they so ignore they will be well within their right to do so. In the instant case it has been denied that such advice or recommendations were taken note of or considered by the Authorities concerned, who passed the impugned orders. The orders in question have been set out above. From that it does not appear that the Authorities concerned have in fact considered any of the said advices or recommendations of the Central Vigilance Commission. Merely because the Central Vigilance Commission had given advice or recommendations, but the same were not furnished to the Petitioner to give him an opportunity to deal with the same, would not make the decisions impugned in the instant case bad, unless it is shown and established that the decisions in the instant case are influenced by such advice or recommendations. There is nothing on record from where it can be safely said that at or before making the impugned decisions, any of the authorities concerned in fact looked into or considered such advices or recommendations of the Central Vigilance Commission. In that view of the matter, it cannot be said that there has been denial of natural justice in the instant case for not supplying the subject Vigilance reports case for not 26 supplying the subject Vigilance reports or advice and recommendations as the case may be."

22. The aforesaid observations make it

abundantly clear that the

recommendations of the CVC were not

taken into consideration by the

authorities concerned. There was also no

other material on the record to show that

before taking the impugned decisions,

any of the authorities concerned took into

consideration any advice or

recommendations of the CVC. It was also

not even the case of the respondent that

under any rule, usage, customs or

practice, the authorities concerned were

bound to take into account such advice

or recommendations of the CVC. The

authorities concerned would be within

their right to totally ignore any advice or

recommendations of the CVC, if they so

27 chose. The learned Single Judge also

observed that in case of D.C.

Aggarwal's case (supra), the authorities

had relied upon the recommendations of

the CVC, which were not at all disclosed

to the delinquent officer. On the fact

situation in the present case, the learned

Single Judge held that the authorities

concerned have not looked at the advice

or recommendations of the CVC before

taking any of the impugned decisions.

The aforesaid judgment was

distinguishable as it did not apply in the

facts of this case.

23. The Division Bench, in our opinion,

erroneously proceeded to presume that

there has been either any breach of the

statutory rules or violation of rules of

natural justice. The Division Bench also

28 failed to take into consideration that the

issue with regard to the non-supply of the

documents listed in the letter

dated 3rd April, 1982 was not even

canvassed before the learned Single

Judge at the time of arguments. As is

evident from the remarks of the learned

Single Judge at the hearing of the writ

petition, counsel for the respondent

restricted the challenge only to denial of

natural justice for not supplying the

vigilance report. This apart, the Division

Bench totally ignored the fact that the

respondent did not care to raise the issue

of non-supply of the documents during

the entire course of the enquiry

proceedings. He also totally omitted to

raise such an issue in the written brief

containing his defence arguments. The

Appellate Authority in its order dated 6th

29 June, 1984 noticed that the respondent

had "failed to submit his list of

documents and witnesses which he

wanted to produce for the purpose of his

defence within the date stipulated the

Inquiring Authority and he also did not

raise any objection during the course of

enquiry." The Review Committee in its

order dated 12 th

November, 1987 upon consideration of

the entire matter observed as follows:-

"The Petitioner has contended that certain documents required by him were not made available to him by the prosecution at the inquiry. The records reveal, in this respect, that he was asked to submit his lists of documents and witnesses by the 31st March, 1982 and that he had failed to do so. The lists were in fact received by the Presenting Officer on the 28th May 1982, far beyond the stipulated time, and as such no action was taken thereon. However, the Committee is at a loss to understand as to why the Petitioner did not press at the Inquiry for the production of the requisite documents if they were so vital as to cause serious prejudice to his defence as alleged. The Petitioner's accusation that the Inquiry Authority refused to summon all the defence witnesses is also not acceptable for the same reason that the list was not received within the stipulated period. The committee, however, observes that the Inquiring

30 Authority had, in fact, permitted the Petitioner to produce his witnesses for deposition."

24. These observations indicate even though

the grievance was made belatedly, the

same was duly considered by the highest

authority of the Bank. Even at that

stage, the respondent had failed to point

out as to what prejudice had been caused

to him during the course of the enquiry.

In such circumstances, the Division

Bench was wholly unjustified in setting

aside the entire disciplinary proceedings

and the findings recorded by the learned

Single Judge.

25. In our opinion, the Division Bench has

erroneously relied on the judgment in

D.C. Aggarwal's case (supra). As rightly

observed by the learned Single Judge, in

that case this Court considered a 31 situation where the Disciplinary

Authority passed an elaborate order

regarding findings against the Charge

Sheet Officer agreeing on each charge on

which CVC had found against him. In

these circumstances, this Court observed

that:-

"The order is vitiated not because of mechanical exercise of powers or for non-supply of the inquiry report but for relying and acting on material which was not only irrelevant but could not have been looked into. Purpose of supplying document is to contest its veracity or give explanation. Effect of non-supply of the report of Inquiry Officer before imposition of punishment need not be gone into nor it is necessary to consider validity of sub-rule (5). But non-supply of CVC recommendation which was prepared behind the back of respondent without his participation, and one does not know on what material which was not only sent to the disciplinary authority but was examined and relied on, was certainly violative of procedural safeguard and contrary to fair and just inquiry."

These observations would not be applicable in the facts of

the present case as the Disciplinary Authority did not

take into consideration any recommendations of the

CVC. The judgment was, therefore, rightly distinguished

by the learned Single Judge.

32

26. We may now consider the other

judgments relied upon by Mr.

Bandopadhyay. In the case of Kisan

Degree College (supra), this Court

noticed that the respondent was

dismissed from service on the basis of an

Enquiry Report. In that case, the

respondent had at the earliest sought for

inspection of the documents. He was,

however, told to inspect the same at the

time of final arguments in the enquiry. It

was, therefore, held that the enquiry

proceeding had been conducted in breach

of rule of natural justice. The aforesaid

judgment would have no relevance in the

facts of this case. In the case of

S.K. Sharma (supra), this Court held

that violation of any and every procedural

provision can not be said to automatically

33 vitiate the enquiry held or order passed.

Except in cases falling under - "no

notice", "no opportunity" and "no

hearing" categories, the complaint of

violation of procedural provision should

be examined from the point of view of

prejudice, viz., whether such violation

has prejudiced the delinquent

officer/employee in defending himself

properly and effectively. In the present

case, we have noticed above that the

respondent did not even care to submit

the list of documents within the

stipulated time. Further, he did not even

care to specify the relevance of the

documents sought to be requisitioned. In

our opinion, the appellant Bank has not

transgressed any of the principles laid

down in the aforesaid judgment whilst

conducting and concluding the

34 departmental proceedings against the

respondent. Therefore, the aforesaid

observations in S.K. Sharma's case are

of no avail to the respondent. In the case

of Nagarjuna Construction Company

Limited (supra), this Court observed as

follows:-

"The basic principles of natural justice seem to have been disregarded by the State government while revising the order. It acted on materials which were not supplied to the appellants. Accordingly, the High Court for the first time made reference to the report/inspection notes which were not even referred to by the State Government while exercising revisional power."

These observations are of no relevance in the facts and

circumstances of the present case. The respondent

herein is merely trying to make capital of his own lapse

in not submitting the list of documents in time and also

not stating the relevance of the documents required to be

produced. By now, the legal position is well settled and

defined. It was incumbent on the respondent to plead

and prove the prejudice caused by the non-supply of the

35 documents. The respondent has failed to place on record

any facts or material to prove what prejudice has been

caused to him.

27. At this stage, it would be relevant to make a

reference to certain observations made by this Court in

the case of Haryana Financial Corporation and Anr.

Vs. Kailash Chandra Ahuja8, which are as under:-

"From the ratio laid down in B. Karunakar1 it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non- supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside."

28.We may also notice here

that there is not much

substance in the

8 (2008) 9 SCC 31 36 submission of Mr.

Bandopadhyay that mere

breach of Rule 50(11) would

give rise to a presumption

of prejudice having been

caused to the respondent.

The aforesaid rule is as

under:-

"(x) (a) the inquiring authority shall where the employee does not admit all or any of the articles of charge furnish to such employee a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be proved.

(b) The Inquiring Authority shall also record an order that the employee may for the purpose of preparing his defence:

I. inspect and take notes of the documents listed within five days of the order or within such further time not exceeding five days as the Inquiring Authority may allow:

II. submit a list of documents and witnesses that he wants for inquiry:

III. be supplied with copies of statements of witnesses, if any, recorded earlier and the Inquiring Authority shall furnish such copies not later than three days before the commencement of the examination of the witnesses by the Inquiring Authority.

IV. give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiry Authority may allow for the discovery or production of the documents referred to at (II) above.

37 Note: The relevancy of the documents and the examination of the witnesses referred to at (II) above shall be given by the employee concerned.

(xi) the Inquiry Authority shall, on receipt of the notice for the discovery of production of the documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents on such date as may be specified."

A perusal of the note under Clause 4 of the aforesaid rule

would make it obvious that the respondent was not only

to submit a list of documents and witnesses but was also

required to state the relevancy of the documents and the

examination of the witnesses. The respondent himself

having not complied with the procedural requirements

can hardly complain that a breach of the procedural

requirements under Clause xi would ipso facto result in

rendering the enquiry null and void. In any event, since

the Disciplinary Authority has not relied on any

recommendations of the CVC and the respondent has

failed to plead or prove any prejudice having been

caused, the disciplinary proceedings can not be said to

be vitiated.

38

29. In our opinion, the aforesaid observations of this

Court are fully applicable to the facts and circumstances

of this case. In our opinion, the respondent has failed to

prove any prejudice caused which has resulted in

miscarriage of justice. In our opinion, the judgment of

the Division Bench can not be sustained in law. The

appeal is, therefore, allowed, the impugned judgment of

the Division Bench is set aside and the judgment of the

learned Single Judge is restored.

...................................J. [B.Sudershan Reddy]

...................................J. [Surinder Singh Nijjar]

New Delhi;

January 11, 2011.

39