STATE BANK OF INDIA Vs BIDYUT KUMAR MITRA .
Bench: B. SUDERSHAN REDDY,SURINDER SINGH NIJJAR, , ,
Case number: C.A. No.-000296-000296 / 2011
Diary number: 12737 / 2009
Advocates: Vs
KAILASH CHAND
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. ………………… OF 2011 [Arising out of SLP (C) No (s) 11590/2009]
State Bank of India and Ors. …APPELLANTS
VERSUS
Bidyut Kumar Mitra and Ors. ...RESPONDENTS
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. Leave granted.
2. This appeal is directed against the final
judgment and order dated 6th February,
2009 passed by the Division Bench of the
High Court at Calcutta in M.A.T. No.
3613 of 2001 whereby the Division Bench
quashed the enquiry proceedings against
1
the respondent held on the basis of the
charge sheet dated 14th December, 1981,
enquiry report dated 22nd September,
1982, the order of punishment dated 4th
July, 1983, the order dated 6th
June, 1984 passed by the Appellate
Authority as also the resolution dated
12th November, 1987 adopted in the
meeting of the Review Committee of the
appellant Bank.
3. The respondent was appointed as a Clerk
in the Imperial Bank of India, which is a
predecessor of the appellant Bank. Way
back in November, 1944, he had joined in
the capacity of a Clerk. Subsequently, by
the year 1978-79, he was working as
Branch Manager at the Biplabi Rash
Behari Bose Road Branch, Calcutta of the
appellant Bank. In the capacity of a
2
Branch Manager, he granted numerous
mid-term loans to a number of transport
operators without making appropriate
scrutiny of the applications as required
under the rules. He had also granted the
loans in excess of his discretionary power
thereby exposed the Bank to the risk of
serious financial loss.
4. A charge sheet dated 14th December,
1981 was served upon him alleging that
he, during his incumbency as the Branch
Manager of the Biplabi Rash Behari Bose
Road Branch, Calcutta from 29th
February, 1978 to 21st August,
1979 had granted medium term loans to
large number of transport operators
without making thorough scrutiny of the
relative proposals. He had sanctioned the
loans even before completion of the
3
necessary formalities. The loans were
granted without making any discreet
enquiries to the credit worthiness of the
borrowers/guarantors. He had thus
violated the laid down norms and
instructions of the Bank in this regard
and thereby exposed the Bank to grave
risk of financial loss. The gist of the
allegations was as follows:-
“(i) (a) granting loans, in as many as 29 cases (as per Annexure ‘B’) out of 57 such cases, far in excess of the discretionary powers vested in you in terms of H.O. ‘SIB’ Circular No.57 of 1979;
(b) Sanctioning the loans in question without compiling the necessary opinion reports on the borrowers/guarantors properly; and
(c) allowing most of these borrowers to stand AS guarantors for the advances granted to others and vice-versa (as per Annexure ‘C’);
(ii) It has further been alleged against you that- (a) You had failed to submit the
necessary control returns in respect of the Medium Terms Loans in question to the Controlling Authority at the appropriate time despite reminders:
4
(b) You had made full payment to a body building firm viz. M/s. C.A. Engineers and Body Buildings, Calcutta as per their quotation long before the delivery of the chassis by the suppliers, in respect of a loan of Rs.1,92,000/- granted to Shri Ashoke Kumar Sengupta (MTL No.21) on the 21st April, 1979;
(c) You had allowed clean overdrafts to some of these borrowers (as per Annexure ‘D’), presumably to meet their margin requirements, without obtaining any letters of request and without stipulating any repayment programme therefore and even without reporting the matter to your Controlling Authority.”
5. It was alleged that he had acted in an
extremely negligent manner and thereby
contravened the provisions of Rules 32(3)
and 32(4) of the State Bank of India
(Supervising Staff) Service Rules
(hereinafter referred to as ‘Service Rules’).
It was further stated that the above
charges, if proved, would amount to
5
lapses involving lack of devotion to duty
and would be construed as prejudicial to
the interests of the Bank. Consequently,
he was asked to show cause within fifteen
days as to why disciplinary action should
not be taken against him. A copy of the
list of documents and list of witnesses
relied upon by the Bank were supplied to
the respondent.
6. On 11th March, 1982, Shri A.R. Banerjee,
Commissioner of Departmental
Enquiries, Central Vigilance Commission
(hereinafter referred to as ‘CVC’) was
appointed as the Enquiry Officer. The
Enquiry Officer instructed the Bank to
show all the documents including the
additional documents relied upon by it to
the defence by 20th March, 1982. The
defence assistant of the respondent was
6
also instructed to submit the list of the
defence documents required, if any,
by 31st March, 1982 along with the
respective relevancy to the charge sheet
and likely whereabouts of the documents.
He was also instructed to submit the list
of additional witnesses, which were
required to be summoned along with
their latest addresses. By letter dated
31st March, 1982, the respondent
informed the Enquiry Officer that he shall
submit the list of defence witnesses and
documents within “a couple of days”.
Thereafter, the defence representative of
the respondent by letter dated 3rd April,
1982 addressed to the Enquiry Officer,
submitted a list of witnesses and
documents of the defence. According to
the respondent, all the witnesses referred
to in the list of witnesses were officers of
7
the Bank. Similarly, the documents
referred to, were also in the possession of
the management of the Bank. Therefore,
the respondent claimed that he was
unable to produce either the witnesses or
the documents in support of his defence,
unless they were summoned by the
Enquiry Officer.
7. It appears that the two witnesses referred
to in the said application of the
respondent were summoned. However,
the documents relied upon by the
respondent were not requisitioned. It
was the case of the respondent that in
fact his prayer in respect of the aforesaid
documents was never disposed of and no
reason was assigned by the Enquiry
Officer for not requisitioning such
documents. It appears that the aforesaid
8
issue was also not dealt with by the
Enquiry Officer in the Enquiry Report
dated 22nd September, 1982. On this
short ground, the respondent had
claimed that he was denied reasonable
opportunity of hearing at the enquiry and
the same has caused serious prejudice to
his defence.
8. On 16th September, 1982, the respondent
submitted the defence arguments in the
form of a written brief. In the aforesaid
brief, the respondent did not raise the
issue of non-supply of any documents.
On 16th June, 1983, the Disciplinary
Authority forwarded his comments and a
note on the enquiry proceeding to the
Appointing Authority. In this note, the
Disciplinary Authority agreed with the
findings of the Enquiry Officer. It was
9
mentioned that it has been proved at the
enquiry that the respondent granted
medium term loans to a large number of
transport operators, not in a proper
manner, thus exposed the Bank to a risk
of substantial financial loss. It was
further mentioned that while granting
advances, the respondent should have
ascertained his discretionary powers and
followed the Bank instructions. The
Disciplinary Authority recommended the
imposition of penalty of dismissal on the
respondent.
9. By order dated 4th July, 1983, the
Appointing Authority, upon examination
of the records pertaining to the enquiry,
agreed with the findings of the
Disciplinary Authority and imposed the
punishment of dismissal on the
10
respondent in terms of Rule 49(h) read
with Rule 50(3)(iii) of the Service
Rules effective from the date of the receipt
of the aforesaid order.
10. Aggrieved by the aforesaid order of
dismissal, the respondent filed a
departmental appeal on
31st August, 1983. In the aforesaid
appeal, the respondent for the first time
alleged violation of principle of natural
justice due to non-supply of documents
as requested through his letter dated 3rd
April, 1982. However, there was no
averment with regard to the non-supply
of CVC recommendations. Furthermore,
the respondent had not given any
particulars as to what prejudice had been
caused to him during the course of the
enquiry proceeding. Such an objection
11
was also not raised by the respondent
while the enquiry was being conducted.
11. By order dated 6th June, 1984, the
Appellate Authority upheld the order of
the Appointing Authority imposing the
punishment of dismissal. With regard to
the non-supply of some documents, the
Appellate Authority held that respondent
had failed to submit the list of documents
and witnesses within the stipulated time.
Furthermore, he did not raise any
objection during the course of the
enquiry.
12. Being aggrieved by the aforesaid order
of 1st December, 1984, the respondent
filed a review application. He made a
grievance that neither the Enquiry Officer
nor the Disciplinary Authority or the
12
Appellate Authority while passing the
orders considered the material
contentions raised by the respondent in
his written statement of defence as well
as in his petition of appeal. According to
him, all the authorities proceeded with a
predetermined mind and the orders have
been passed mechanically. For the first
time, he made a grievance that neither
the documents mentioned in the
application dated 3rd April, 1982 were
requisitioned nor the witnesses
mentioned in the list of witnesses were
summoned. He then proceeded to set out
the relevance of the documents which
according to him would have enabled him
to prove at the enquiry that priority
sector advance was given utmost
importance in the Bank’s policy. It was,
therefore, incumbent upon him as
13
Branch Manager to make all efforts to
increase advances in the priority sector
which includes transport loans. The
opinion reports submitted by the
respondent with regard to the loans were
never incomplete. They were not
produced at the enquiry. He also
highlighted that production of documents
listed at Sr. No. 12 would have shown
that the respondent was absorbed with
the work relating to IDBI Refinance,
which resulted in a little delay in
submitting the controlled return. He
stated that the documents mentioned at
Sr. No. 14 would have shown that the
overdrafts of borrowers were sanctioned
on the basis of request letters. According
to him, the document at Sr. No. 17 would
have enabled him to prove that in priority
sector group guarantee or counter
14
guarantee was permissible in case of
loans to transport borrowers. He,
therefore, submitted that non-
summoning of such documents resulted
in denial of reasonable opportunity and
was in gross violation of principle of
natural justice.
13. By a detailed order dated 12th/16th
November, 1987, the Review Committee
declined to interfere with the order of the
Appointing Authority which had been
upheld by the Appellate Authority.
14. Aggrieved by the action of the Bank in
passing the aforesaid order, the
respondent challenged the same in a Writ
Petition Civil Order No. 7390 (W) of 1988
in the High Court at Calcutta. It would
appear that for the first time, the
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.
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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.
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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.
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