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TMI Blog2006 (4) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst 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. (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 act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls 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 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 pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 respecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 "pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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". It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on charges 1(a) and 1(e) were vitiated for reasons set out by it, because in our judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate 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, 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 Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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