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TMI Blog2003 (3) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... yee from the services of the Bank by order dated 28.8.1989. The disciplinary authority thereafter passed an order on 13.9.1989 which is the bone of contention of the parties. Details of the said order shall be dealt with infra and after the recital of the factual position is completed. Order of dismissal was challenged by the employee before the Calcutta High Court. By order dated 14.12.1990 in writ petition CO No. 10514(W)/1989, the order of dismissal was set aside. Employee was reinstated on 28.1.1991. After reinstatement three office orders were issued to proceed with the inquiries relating to the other three charge-sheets. According to the employer-Bank the proceedings were earlier suspended. Enquiry Officers and Presiding Officers were appointed in those proceedings. By letter dated 6.4.1991 employee requested to drop the proceedings in the said charge-sheets and to exonerate him from the charges contained. On 23.4.1991 he was advised by the authority to attend the inquiry proceedings. On 30.9.1991 list of the documents along with the copies were sent to the employee. On 24.11.1992 employee for the first time took the stand that he had been exonerated of the charges contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent copy of the enquiry report to the employee and asked for his submission in relation to the findings recorded by the Inquiry Authority. Employee took the stand that he could not submit written briefs as he had not received copy of the Presenting Officer's written briefs. He requested for a copy. The Disciplinary Authority on 2.7.1995 wrote to the employee that Presenting Officer's briefs was sent to him on 2.5.1995 and as such he could make his submission based on the findings of the enquiry officer and also on the oral/documentary evidence which were recorded during the course of inquiry. He further informed that such submissions would be taken into account for final decision in the matter. Employee by his letter dated 12.7.1995 stated that without copy of the Presenting Officer's written briefs no effective submissions could be made on the findings of the Enquiry Report. The Disciplinary Authority sent copy of the briefs to the employee and asked him to make his submissions on the findings of the enquiry report. Employee asked for time till 10.8.1995. Finally on 4.8.1995 the employee stated that the written briefs were being sent for consideration of the Enquiry Officer. On 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Authority. Learned Single Judge disposed of the interim application directing the appellant-Bank to return the original documents produced by the employee before the Appellate Authority. When these documents were returned to the employee he refused to accept them stating that he had not filed them before the Appellate Authority. The Learned Single Judge allowed the writ petition holding that Inquiry Officer had given an opportunity to the Presenting Officer to file his written briefs and similar opportunity ought to have been given to the employee and thus there has been violation of principles of natural justice. Further direction was given to send the disputed documents to the Government Handwriting and Questioned Documents' Expert. It was observed that, if so desired, the parties may pray for adducing fresh evidence before the Enquiry Officer which shall be considered. The said order was challenged before the Division Bench. The appeal was dismissed by the Division Bench, inter alia, with the conclusion that provisions of Regulation 6(18) are mandatory in nature and the employee did not get an opportunity to file his written briefs before the Inquiry Officer. Prejudice is pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyee, or permit them to file written briefs of the respective cases within 15 days of the date of completion of the production of evidence if they so desire." It would be also relevant to extract Regulation 6(21) which reads as follows: "Regulation 6(21): (i) On the conclusion of the inquiry the inquiring authority shall prepare a report which shall contain the following: a) a gist of the article of charge and the statement of the imputations of misconduct or misbehaviour; b) a gist of the defence of the officer employee in respect of each article of charge; c) an assessment of the evidence in respect of each article of charge; d) the findings on each article of charge and the reasons therefor. Explanation: If, in the opinion of the Inquiring authority, the proceedings of the inquiry establish any article of charge different from the original article of charge, it may record its findings on such article of charge: Provided that the findings on such article of charge shall not be recorded unless the officer employee has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge. (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who is required to proceed to conduct further inquiry according to provision of Regulation (6) as far as may be applicable. Regulation 6(21)(ii) deals with the documents which are to be forwarded to the Disciplinary Authority in case it is not the Inquiring Authority. The documents to be forwarded include the written briefs referred to in sub-regulation (18). A bare reading of sub-regulation (18) of Regulation 6 makes the position clear that there is no requirement of the employee being granted an opportunity to file written briefs after the Presenting Officer files written briefs. On the contrary, as the provisions postulate, after completion of production of evidence two options are open to the Inquiry Officer. It may hear the Presenting Officer appointed and the concerned employee or in the alternative permit them to file written briefs within 15 days of the date of completion of the production of evidence if they so desire. The written briefs are relatable to the cases of the party concerned; otherwise the expression 'respective case' would be meaningless. In other words, the written briefs must contain what his case is. There is no requirement of filing written briefs one a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid, no form or procedure should ever be permitted to exclude the presentation of a litigants' defence. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducation will have to ascertain the law and also to ascertain the facts. I need not and that in doing either they must act in good faith and fairly listen to both sides for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial....The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari". Lord Wright also emphasized from the same decision the observation of the Lord Chancellor that the Board can obtain information in any way they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view". To the same effect are the observations of Earl of Selbourne, LO in Spackman v. Plumstead District Board of Works (1985 (10) AC 229:54 LJMC 81), where the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Smith v. Her Majesty the Queen (1877-78(3) App.Case 614, 623 JC) Sir Robort P. Collier, speaking for the judicial committee of Privy council, used the phrase 'the requirements of substantial justice', while in Arthur John Specman v. Plumstead District Board of Works (1884-85(10) App.Case 229, 240), Earl of Selbourne, S.C. preferred the phrase 'the substantial requirement of justice'. In Vionet v. Barrett (1885(55) LJRD 39, 41), Lord Esher, MR defined natural justice as 'the natural sense of what is right and wrong'. While, however, deciding Hookings v. Smethwick Local Board of Health (1890(24) QBD 712), Lord Fasher, M.R. instead of using the definition given earlier by him in Vionet's case (supra) chose to define natural justice as 'fundamental justice'. In Ridge v. Baldwin (1963(1) WB 569, 578), Harman LJ, in the Court of Appeal countered natural justice with 'fair-play in action' a phrase favoured by Bhagawati, J. in Maneka Gandhi v. Union of India (1978 (2) SCR 621). In re R.N. (An Infaot) (1967(2) B617, 530),Lord Parker, CJ, preferred to describe natural justice as 'a duty to act fairly'. In fairmount Investments Ltd. v. Secretary to State for Environment (1976 WLR 1255) Lord R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 'useless formality theory' has received consideration of this Court in M.C. Mehta v. Union of India (1999(6) SCC 237). It was observed as under: "Before we go into the final aspect of this contention, we would like to state that case relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of 'real substance' or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed (See Malloch v. Aberdeen Corpn: (1971)2 All ER 1278, HL) (per Lord Reid and Lord Wilberforce), Glynn v. Keele University: (1971) 2 All ER 89; Cinnamond v. British Airports Authority: (1980) 2 All ER 368, CA) and other cases where such a view has been held. The latest addition to this view is R v. Ealing Magistrates' Court, ex p. Fannaran (1996 (8) Admn. LR 351, 358) (See de Smith, Suppl. P.89 (1998) where Straughton, L.J. held that there must be 'demonstrable beyond doubt' that the result would have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case of substance or if he can prove a 'real likelihood' of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their 'discretion', refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma (1996 (3) SCC 364), Rajendra Singh v. State of M.P. (1996 (5) SCC 460) that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived. We do not propose to express any opinion on the correctness or otherwise of the 'useless formality theory' and leave the matter for decision in an appropriate case, inasmuch as the case before us, 'admitted and indisputable' facts show that grant of a writ will be in vai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the state of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesty, acting in a manner unbecoming of a bank officer etc. In our considered view, on the facts of this case, this principle has no application but assuming that it applies yet the High Court has erred in holding that the principle of severability cannot be applied in the present case. The finding in this behalf is unsustainable. As stated earlier, the appellant had in his possession the enquiry report/findings when he filed the statutory appeal as well as the writ petition in the High Court. The High Court was required to apply its judicial mind to all the circumstances and then form its opinion whether non-furnishing of the report would have made any difference to the result in the case and thereupon pass an appropriate order. In para 31, this Court in Managing Director, ECIL has very rightly cautioned: (SCC p. 758) "The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts". Strong reliance was placed by learned counsel for the employee on a three-Judge Bench of this Court in Punjab National Bank and Ors. vs. Kunj Behari M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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