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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 ..... t should exercise its discretionary jurisdiction under Article 136 of the Constitution of India. This appeal is, therefore, dismissed - C.A. 7686 OF 2004 - - - Dated:- 28-4-2006 - S.B. SINHA, J. JUDGMENT 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 crea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 No.50(3)(iii) ibid., which I hereby do. Further, you wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etters 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; (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 disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged 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. 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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- 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-decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterials 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unnatural expansion of natural justice which in itself is antithetical to justice. It was further opined: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral 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 Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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