Civil Appeal No 1135 of 1978
From the Judgment and Order dated the 2nd February 1978 of the High Court of Allahabad in Civil Misc
Writ No 1724 of 1976
RK Garg and Pramod Swaroop with him for the Appellant
PR Mridul OC Mathur section Sukumaran Miss Meera Mathur for Ms JB Dadachanji  Co for the Respondents
SS Sharma for State Bank of India
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
Shri KLTripathi the appellant herein joined the State Bank of India in 1955
At the relevant time he was working as Branch Manager State Bank of India Deoria
Certain complaints were received about his conduct from Gorakhpur Branch Manager Shri RS Kapoor Staff Officer Grade II who reported to the Head Office on 5th May 1974 that from the information given to him by some members of the staff of Deoria Branch namely Shri MR Sharma Head Clerk MS Gupta Field Officer and from other enquiries made by him he found that the bills negotiated by the Gorakhpur Branch under a Revolving Letter of Credit No 201 dated 21st March 1974 established by the Deoria Branch on Gorakhpur Branch for Rs 2 lakhs at a time subject to maximum of Rs 17 lakh had remained unpaid to the extent of Rs 12 lakhs and that the openers of the Letter of Credit Ms Jamuna Prasad Munni Lal Jaiswal Deoria were unable to meet their obligations
In the same letter he also informed that Deoria Branch had opened another Revolving Letter of Credit No 202 dated 3rd April 1974 for Rs 50000 per day subject to a maximum of Rs 10 lakhs and that because the clauses of the credit had not 188 been drawn properly the bills were not negotiated thereunder by his Branch and were instead sent on collection basis
Certain other allegations giving the particulars of the bills and records were mentioned
In those circumstances the head office ordered a preliminary enquiry which was conducted by Shri RP Srivastava Staff Officer Grade II and having considered his report the head office directed Shri BD Sharma Chief Manager to carry out investigation under the rules governing the services of the officers of the State Bank
Shri Sharma conducted the investigation between 9th June to 23rd June 1974 and in the course of the investigation he visited Deoria and Gorakhpur
On 9th September 1974 charges were framed
The information Shri Sharma could gather was that Ms Jamuna Prasad Muni Lal Jaiswal Station Road Deoria was a sole proprietorship concern with Shri Jamuna Prasad Jaiswal as the sole proprietor
Their business was to deal in scrap iron which they purchased from Sugar Mills around Deoria and from other sources
The firm maintained a current account only with an average balance of Rs 10000
There was no opinion report on record with the Branch
It appeared that the firm had no experience in oil business
Shri Sharma enquired from Mr Tripathi
From the report of Shri Sharma it appears that in respect of all relevant entries upon which he has based his conclusion he asked Shri Tripathi after giving him the gist of the relevant materials gathered from other persons in the absence of the appellant and asked his pinion or explanation in respect of those
We have examined the report of Shri Sharma and find that at all stages in respect of all the matters mentioned in the report the appellant was associated with the preliminary investigation and his versions or explanations were sought for and recorded
It is significant that in respect of charge ii Letters of Credit No 201 dated 21st March 1974 and No 202 dated 3rd March 1974 the petitioner stated as follows That the Revolving Letter of Credit No 201 dated the 21st March 1974 for a sum not exceeding Rs 2 lakhs at a time subject to a maximum of Rs 17 lakhs was established by me after obtaining the permission of the Regional Manager over telephone
The other Letter of Credit No 202 dated the 3rd April 1974 for a sum not exceeding Rs 50000 per day subject to a maximum of Rs 10 lakhs was established in good faith which was 189 within my power
In so far as compilation of a regular opinion report on the firm is concerned I may submit that the required particulars had already been collected by the Branch Head Cashier and before issuing the aforesaid Letters of Credit I had made my own assessment of the firm s credit worthiness means and their ability to meet their commitments in this regard
In this connection I remember to have informed Shri B D Sharma the Investigating Officer that the words per day instead of at a time were substituted at the instance of Shri A K Chatterjee Manager section I B Division
Gorakhpur Branch at the material time which I reiterate
It was not my intention to issue clean letter of credit and to this end I used the words accompanied by once used and unidentified plant lubricating oil in 200 liters each drum
I regret the these words were not properly placed in the Letters of Credit
Both the typists attached to the Branch were on deputation at the material time with the result that formal sanction of the controlling authority was not obtained
On my part I was also awfully busy in inspection of Agricultural loans other important duties mobilisation of deposits and I had absolutely little time at my disposal towards correspondence
In these transactions I had always in mind to promote the Bank s business interest
I had never intended to jeopardise the Bank s interest at any time
 He admitted that amount of Draft No BS001560 dated 12th January 1974 for Rs 75000 was not credited to Margin on Documentary Credits Account before issuing the Letters of Credit
He however stated that margin amount of Rs 75000 was lying with the Bank as security by means of a draft and the Bank s interests were not jeopardised and were fully protected to that extent
The draft was however not duly discharged
He admitted that there was delay in retiring of bills but he gave certain explanation to the show cause notice
So far as dates of payment of bills No 30 35 and 36 he gave his explanation
190 So far as another matter telegrams relating to the advising negotiation of bills under Letter of Credit No 201 dated 21st March 1974 the appellant stated inter alia as follows A representative of F C I Gorakhpur came to Deoria on the 11th April 1974 and handed over Gorakhpur Branch section C No 774 to 778 along with a D O letter from Shri Maheshwari Dy
Finance Manager F C I with a request to arrange for quick payment of the aforesaid bills as they were in urgent need of money
With a view to render helpful service to valued constituent like F C I a Government of India undertaking the payment advice dated the 11th April 1974 in respect of section C Nos
774 to 778 was signed by me before the bills were paid as I was to leave my office for inspection
In this connection I invite your kind attention to the fact that Shri section N Singh was only an Acting Accountant and his name appeared in the Officers Grade I column of the Officers list of the Circle
As such I was particular about signing inter office advices of heavy amounts to avoid their being dis honoured by the branch on which they were drawn
The firm s account showed a credit balance of approximately Rs 102000 and I had called the proprietor of the firm on that day for depositing sufficient funds in their account so that the bills could be retired by debit to firm s account and it was on his assurance that the payment advice was signed by me in good faith and handed over to Shri section section Srivastava Officer Grade II for delivery to the Corporation s representative only when the required transactions had been put through in the books of the Branch
On the 11th April I returned late in the night from inspection and got the news of tragic death of my grand mother at my village in Ghazipur District
 Thereafter he stated that he was mentally disturbed and he left for the village and in conclusion stated as follows in respect of this However I am sorry for the fact that the full details of the above transaction were not advised to Head 191 Office in time
I sincerely regret for this circumstantial omission on my part and assure Sir that there was hardly any motive or fraudulent intention behind it
 In the end he did not deny the factual basis stated to him as mentioned in the report of Shri Sharma or challenge the veracity or the correctness of any of these facts or the materials mentioned in the report of Shri Sharma
He stated in his reply to the second show cause notice on these points as follows It would be clear that whatever was done by me in these transactions was done in good faith and to promote the interest of the Bank
There was a conspiracy against me that I had indulged in fraudulent transactions and attempted to misappropriate Bank s money are baseless
I never intended to jeopardise the Bank s interest
My integrity and bonafides have always been above board during my service of about 20 years in the Bank
 It is material to record the conclusions reached by Shri Sharma by his investigation upon the basis of which the appellant was charge sheeted
These were as follows Considering all circumstances of the case I am of the view that Shri Tripathi is responsible for the following irregularities 1 The opinion on Ms Jamuna Prasad Munnilal Jaiswal a sole proprietorship concern has been furnished to FCI in an out of the way manner is not based on any reliable records of the Branch and contains commitments far beyond the discretionary powers of the Deoria Manager
2 The two clean letters of credit one for Rs 1700000 and the other for Rs 1000000 opened on Gorakhpur Branch were for beyond his discretionary powers and no proper approval therefor had been obtained from the appropriate authority
3 Although the letters of credit far exceeding his discretionary powers were established Viz Nos
201 192 and 202 dated the 21st March and 3rd April 1974 respectively these were reported to the controlling authority in a perfunctory manner on the 6th May and 7th May ie after the position had already come to their knowledge
4 DDs
for 6 lacs negotiated by Gorakhpur Branch and bearing their LBCS Nos 31 32 and 33 were removed from the dak and retained by Shri Tripathi in his personal custody without entering them in the Bank s books
These were subsequently found in his safe
5 The lists of bills aggregating Rs 60120450 relating to Gorakhpur Branch LBCS
No 31 32 and 33 vide item 5 above after having been entered in the schedule No 8 Book and after having been referred to jointly
6 The terms and conditions of letter of credit No 201 dated 2131974 were changed without complying with the required formalities
7 The lists of bills aggregating Rs 60120450 relating to Gorakhpur Branch LBCs
Nos 31 32 and 33 vide item No 5 above after having been entered in the Schedule 8 Book and after having been referred to jointly by Shri SS Srivastava Officer Grade II and Shri SN Singh Branch Accountant in the presence of Shri MS Gupta Field Officer disappeared while the books was in Shri Tripathi s custody
8 The Gorakhpur Branch Manager was advised by him that Gorakhpur Branch LBC No 30 had been paid on 2031974 whereas it was actually paid on 241974 and that the Branch s LBCs No 34 35 and 36 had been paid on 941974 whereas these had not been paid at all
9 Although a number of bills negotiated by Gorakhpur Branch under the letter of credit had been outstanding no efforts were made by Shri Tripathi for recovering the Bank s dues
193 10 Telegrams from Gorakhpur Branch advising Deoria Branch of the negotiations done under the letter of credit were received at the Branch but were not attended to although huge sums were involved
11 The letter of credit No 202 was opened by him on 341974 irrespective of the fact that a large sum of money was already due from the drawees who were unable to pay promptly
12 Five SCS aggregating Rs 25 lacs received from Gorakhpur Branch bearing their section No 774 to 778 for collection were paid on 1141974 by debit to IBI Account instead of the drawyee s account
13 The plea that since he Shri Tripathi was going out for inspection on 1141974 and so was in hurry he signed the SC payment advice of bills referred to in item No 12 above in order to avoid inconvenience to Shri Ramji Singh FCI representative is not supported by circumstantial evidence
I am satisfied from the evidences available that he did not go out on an inspection at 1015 am that he was in the office till late afternoon and that the inspection plea put up by him is an after thought
14 The bills received for collection from Gorakhpur Branch were not entered in Branch Books in the normal manner on receipt but were detained and entered at later dates suiting circumstances
I therefore hold that Shri Tripathi was committed the above irregularities wilfully violating the established practices and defying the Bank s instructions and had done so with the motive of helping unauthorisedly Ms Jamuna Prasad Munnilal Jaiswal who were otherwise not in a position to handle from their own resources transactions involving a turnover of Rs 27 lacs within the limited period mentioned in the letters of credit
 Thereafter on this basis on 19th June 1975 the appellant was issued a show cause notice
In the said show cause notice the appellant was communicated of three charges
These charges were mainly 194 based on the report of Shri Sharma as mentioned hereinbefore First charge was furnishing of opinion report to the Fertilizer Corporation of India in an unauthorised manner
Second charge was about the appellant s conduct in opening two clean revolving Letters of credit Nos
201 dated 21st March 1974 and the other 202 dated 3rd April 1974
The third charge was about irregularities in respect of the opening of Letters of Credit and payment of bills negotiated thereunder
Sufficient particulars of these charges were mentioned and these appear in the charge sheet which we need not set out in extenso
The appellant was charged as follows a had acted in a manner highly prejudicial to the Bank s interest b had exposed the Bank s interest to serious risk c had attempted to defraud the Bank which act on your part casts serious aspersions on your integrity and bonafides and d had wilfully and knowingly furnished incorrect particulars concealedwithheld informationparticulars tofrom Gorakhpur Branch negotiating Branchcontrolling authority and flagrantly violated Bank s rules and instructions with a view to cover up your attempts to misappropriate Bank s money andor to defraud the Bank
It is thus evident that as the Branch Manager you had failed miserably to safeguard the Bank s interest on the contrary you had wilfullyknowingly committed gross irregularities in the opening of the aforesaid Letters of Credit and payment of bills drawn thereunder and attempted to defraud the Bank
Your actions which have seriously jeopardised the Bank s interests and exposed the Bank to grave financial risks cast grave doubts on your integrity and bonafides
It is therefore proposed to proceed against you in terms of Rule 49 read with Rule 50 of the State Bank of India Officers  Assistants Service Rules
You are therefore required to submit to us your written statement in defence in terms of Rule 50 2 ibid in respect of the aforesaid charges within 15 days of the receipt hereof also if you so desire you may apply for a hearing in person with the undersigned
Please note that in the event of your failure 195 to submit the reply within this period it will be understood that you have no defence to offer
 In his reply dated 5th November 1975 the appellant had dealt with the different allegations mentioned in the charge sheet
So far as the first charge was concerned regarding issuance of opinion report fixing estimates arbitrarily and giving over estimates as mentioned in the charge sheet the appellant admitted the facts but stated that it was done out of ignorance and he further stated this was however done by me out of enthusiasm 
Regarding Charge ii what he had stated has been set out hereinbefore
It may be mentioned that regarding Charge number ii his reply was that the words which ought to have been there accompanied by once used and unidentified plant lubricating oil in 200 litres each drum  which were safeguard for encashments pursuant to the letters of credit were important and significant
He accepted that those words were not properly placed in the letters of credit
As would appear from the report of Shri Sharma that the appellant had admitted that he had changed the words at a time and had used the words per day 
The appellant s defence was that he meant the same thing
In respect of these charges he admitted the facts and used expressions like these I regret that due to inadvertence was not credited
Another explanation was that he was awfully busy in inspection of agricultural loans
Another charge was that he did not ensure prompt payment of the bill on receipt
He admitted in his reply that this was so but stated that the Gorakhpur branch created complications and he was put to harassment
He admitted that the furnished in respect of charge iii d in the show cause notice incorrect particulars regarding payment of bills negotiated but stated that he was regretting these things
Another explanation for these matters was that he had to leave office frequently and early during the day for inspection
He admitted in reply to charge iii e that he used to receive covers and 196 passed these on to Shri Srivastava
In respect of charge iii f Telegraphic advices from Gorakhpur branch for negotiations of bills his reply was that he had not attended to these and amount was not recovered
But his explanation was that it was handled by the branch accountant and it was not possible or necessary for him because of his pre occupation to attend to these telegrams personally
In spite of making allegations against some officers he did not ask to cross examine any of these officers in respect of the matters stated against him
He merely asked for personal hearing
He wanted an opportunity to expose the conspiracy
It may be stated however that the appellant was given a personal hearing
Even in respect of the matters of conspiracy he did not ask any opportunity to cross examine the officials
The appellant did not ask for any opportunity in the reply to lead evidence in support of his defence
He admitted however in his reply that the facts he was stating had already been explained to Shri Sharma during his preliminary investigation
Thereafter on 1st May 1976 the appellant received a letter from the Chief General Manager intimating to him that in accordance with the independent investigation conducted under Rule 501 of the State Bank of India Officers  Assistants Service Rules governing the appellant s service in the Bank the statement of charges served dated 19th June 1975 and the appellant s reply thereto dated 5th November 1975 were submitted to the Local Board at its meeting held on the 28th April 1976 and it was resolved that the appellant be dismissed from the service in terms of Rule 49 f of the aforesaid service rules
Thereafter the appellant by the said rule was required to submit his written statement showing cause why the penalty proposed should not be imposed upon the appellant
The appellant was further informed that if no reply was received the State Bank of India s authority will presume that the appellant had no submissions to make
Along with the said letter a copy of the statement of charges and a copy of the report of the Investigating Officer who investigated consisting of investigation in respect of each of the allegations and the appellant s explanations to the allegations during the time of the preliminary investigation and the facts and materials gathered during the preliminary investigation in which the appellant participated as mentioned thereinbefore was sent
197 The appellant on 18th June 1976 submitted a reply
These have been set out in pages 107 to 129 of the Paper Book Annexure 4 to the affidavit of Shri K P Rau filed in these proceedings
Apart from the detailed reply which had already been submitted by the appellant a reading of the explanation submitted by the appellant made it clear according to the appellant that none of the charges could be made the basis of any disciplinary action specially action of dismissal
He referred to his excellent record from 1967 to 1973 in which he stated that the entry of appellant s performance was excellent  in 1970 that he was an asset to the institution
He further stated that even if there was some technical fault on account of certain interpretation of rules mentioned in the report the appellant had sought guidance of the Field Officer and further submitted that on account of technical mistake where the Bank has not suffered any monetary loss or any other type of loss and in view of his long service for more than 20 years during which the appellant s service as Officer Grade I was excellent no action could or should be taken against the appellant
He further stated that the facts and circumstances revealed that the enquiry was in violation of the principles of natural justice and he mentioned the statements against him were alleged to have been recorded during the course of enquiry but while recording those statements the appellant was never informed nor any statement was taken in presence of the appellant
The statements were not signed in his presence
Thereafter he made allegations of bias of certain officers
The appellant further stated that so far as the report of the enquiry officer regarding the opinion report of the firm Ms Jamuna Prasad Jaiswal was concerned the appellant had not committed any breach of the rules as he had obtained permission on telephone from the competent authority and this fact was brought to the notice of the enquiry officer during the investigation
He also mentioned that the fact that trunk call was booked appears from the register
He stated that he was not guilty of the charges
The main grievance was that the enquiry officer only took the statement of the appellant and none of the statements on which reliance was placed was recorded in the presence of the appellant
The appellant prayed that the penalty proposed may not be imposed
His explanation along with other necessary papers was forwarded to the Executive Committee of the Central Board and the Central Board in its meeting duly considered the same and directed that the appellant be dismissed from the 198 Bank s service with immediate effect
The appellant was duly communicated to the said effect on 19th October 1976
On 4th November 1976 Writ application under Article 226 was filed by the appellant in the Allahabad High Court alleging contravention of the State Bank of India Officers and Assistants Service Rules and on 2nd February 1978 the Allahabad High Court by its judgment held that the rules had no statutory effect and as such the writ application was dismissed
The appellant being the petitioner therein has now come up by special leave to this Court under Article 136 of the Constitution
It appears that the main controversy before the Allahabad High Court was whether Rule 50 of the aforesaid rules in force at the relevant time has been complied with or not
On behalf of the State Bank of India it was urged that the said rules not having been framed under the State Bank of India Act these had no statutory force and as such the appellant could not enforce any statutory right
In that light the application under Article 226 of the Constitution was held not to be maintainable
The points for consideration urged before us in this appeal were mainly i that in conducting the enquiry resulting in the dismissal of the appellant the principles of natural justice had been violated and the appellant was not given a fair opportunity to defend himself ii whether Rule 50 of the said rules as prevalent prior to 2571970 had been complied with or not iiiwhether the procedure envisaged under Rule 50 contained requirement of due compliance with the principles of natural justice
In this connection it may be mentioned that if the rules were not statutory but merely contract between the parties one of the points urged before us was that can a party contract on a basis different from the principles of natural justice  It may be mentioned further that the said rules came into effect from 1st January 1958 and the appellant had signed the agreement in accordance with rules on the 9th June 1974
199 In dealing with the points in controversy at this stage it may be relevant to refer to the relevant rules
Rule 49 f which dealt with the employee who committed any breach of the rules and regulations of the Bank or displayed negligence inefficiency or indolence or who knowingly did anything detrimental to the interests of the Bank or in conflict with its instructions or committed any breach of discipline or was guilty of any other acts of misconduct would be liable for the penalty of inter alia dismissal
Sub rule 1 of Rule 50 of the said rules mentioned above postulates that the Managing Director if he is satisfied that there was a prima facie case for proceeding against an employee may investigate the case himself or appoint any other investigating officer and submit an independent report in writing
Sub rule 2 of Rule 50 envisages that brief statement of the charges together with the grounds on which the charges are based should be communicated in writing to the employee
The employee should be required to submit a written statement in defence and given an opportunity to be heard in person if desired by him and he shall also be given facilities for access to the records of the Bank for the purpose of preparing his written statement
The Managing Director for the reasons to be recorded in writing may refuse such access if in his opinion such records were not strictly relevant or it was not desirable in the interests of the Bank to allow such access
Thereafter sub rule 3 envisages that the report of the officer who investigated the case together with the employee s statement and a further report in writing by the Managing Director or the Secretary and Treasurer indicating the charge or charges against the employees shall be laid for consideration in the case of an employee serving in or under Central Office before the Executive Committee and in the case of an employee serving in a Circle before the Local Board
The Executive Committee or the Local Board as the case may be shall make such order as they consider in the circumstance fit and proper but if they consider it fit for imposing a penalty mentioned in clause e or clause f of rule 49 the employee shall be given a further opportunity to state in writing by a specified date why such penalty shall not be imposed
For this purpose the charge or charges against him together with a copy of the report of the officer who investigated the case and specific penalty proposed to be imposed shall be communicated to him by the Managing Director or the Secretary and Treasurer as the case may be
If the employee gives 200 a reply that reply will be taken into consideration and the Executive Committee will convey its decision in writing to the employee concerned
This rule it may be mentioned has been altered with effect from 25th July 1975
We are however not concerned with the said amended rule
The main argument of Mr Garg counsel for the appellant was that the requirements of Rule 50 of the aforesaid rules have not been complied with
He submitted that the materials against the appellant were gathered in his absence and he was not allowed to cross examine the witnesses and that evidence against him was not recorded in his presence
He urged that only an opportunity to show cause after he had replied the charges against him which were based on materials gathered behind him for imposition of penalty was given
He submitted that reasonable opportunity under the rules required that materials against a person should not be gathered behind his back and he should be given an opportunity to cross examine if necessary the persons who had supplied the materials or given evidence against him
He further submitted that the delinquent officer should also be given an opportunity to rebut such evidence
Mr Garg submitted that infraction of this procedure under the rules will make the investigation bad as basic fundamental requirement of an opportunity was implied in the rule
The impugned order should be struck down as having been passed in violation of the principles of natural justice
We are of the opinion that Mr Garg is right that the rules of natural justice as we have set out hereinbefore implied an opportunity to the delinquent officer to give evidence in respect of the charges or to deny the charges against him
Secondly he submitted that even if the rules had no statutory force and even if the party had bound himself by the contract as he had accepted the Staff Rule there cannot be any contract with a Statutory Corporation which is violative of the principles of natural justice in matters of domestic enquiry involving termination of service of an employee
We are in agreement with the basic submission of Mr Garg in this respect but we find that the relevant rules which we have set out hereinbefore have been complied with even if the rules are read that requirements of natural justice were implied in the said rules or even if such basic principles of natural justice were implied there has been no violation of the principles of natural justice in respect of the order passed in this case
In respect of an order involving adverse or penal consequences against an officer or an employee of Statutory Corporations 201 like the State Bank of India there must be an investigation into the charges consistent with the requirements of the situation in accordance with the principles of natural justice as far as these were applicable to a particular situation
So whether a particular principle of natural justice has been violated or not has to be judged in the background of the nature of charges the nature of the investigation conducted in the background of any statutory or relevant rules governing such enquiries
Here the infraction of the natural justice complained of was that he was not given an opportunity to rebut the materials gathered in his absence
As has been observed in On Justice by J R Lucas the principles of natural justice basically if we may say so emanate from the actual phrase audi alteram partem which was first formulated by St Augustine De Duabus Animabus XIV 22 J P Migne PL 42 110
In dealing with particular situation we must formulate the actual principles to be applied in a particular situation
Hence it may be illustrated as J R Lucas On Justice page 86 has done it thus Hence when we are judging deeds and may find that a man did wrong there is a requirement of logic that we should allow the putative agent to correct misinterpretations or disavow the intention imputed to him or otherwise disown the action
God needed to ask Adam Hast thou eaten of the tree whereof I commanded thee that thou shouldest not eat   because it was essential that Adam should not be blamed or punished unless he had done exactly that deed
If the serpent had planted the evidence or if he had beguiled Adam into eating it under the misapprehension that it came from another non forbidden tree then Adam had not sinned and should not have been expelled from Eden
Only if the accused admits the charge or faced with the accusation cannot explain his behaviour convincingly in any other way are we logically entitled to conclude that he did indeed do it
 Wade On Administrative Law  5th Edition at pages 472 475 has observed that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply nor as to their scope and extent
Everything depends on the subject matter the 202 application of principles of natural justice resting as it does upon statutory implication must always be in conformity with the scheme of the Act and with the subject matter of the case
In the application of the concept of fair play there must be real flexibility
There must also have been some real prejudice to the complainant there is no such thing as a merely technical infringement of natural justice
The requirements of natural justice must depend on the facts and the circumstances of the case the nature of the inquiry the rules under which the tribunal is acting the subject matter to be dealt with and so forth
The basic concept is fair play in action administrative judicial or quasi judicial
The concept fair play in action must depend upon the particular lis if there be any between the parties
If the credibility of a person who has testified or given some information is in doubt or if the version or the statement of the person who has testified is in dispute right of cross examination must inevitably form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross examination to be fulfilled to justify fair play in action
When on the question of facts there was no dispute no real prejudice has been caused to a party aggrieved by an order by absence of any formal opportunity of cross examination per se does not invalidate or vitiate the decision arrived at fairly
This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version or the credibility of the statement
The party who does not want to controvert the veracity of the evidence from or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross examination specially when it was not asked for and there was no dispute about the veracity of the statements
Where there is no dispute as to the facts or the weight to be attached on disputed facts but only an explanation of the acts absence of opportunity to cross examination does not create any prejudice in such cases
The principles of natural justice will therefore depend upon the facts and circumstances of each particular case
We have set out hereinbefore the actual facts and circumstances of the case
The appellant was associated with the preliminary investigation that was conducted against him
He does not deny or dispute that
Information and materials undoubtedly were gathered not in his presence 203 but whatever information was there and gathered namely the versions of the persons the particular entries which required examination were shown to him
He was conveyed the informations given and his explanation was asked for
He participated in that investigation
He gave his explanation but he did not dispute any of the facts nor did he ask for any opportunity to call any evidence to rebut these facts
He did ask for a personal hearing as we have mentioned hereinbefore and he was given such opportunity or personal hearing
His explanations were duly recorded
He does not allege that his version has been improperly recorded nor did he question the veracity of the witnesses or the entries or the letters or documents shown to him upon which the charges were framed and upon which he was found guilty
Indeed it may be mentioned that he was really consulted at every stage of preliminary investigation upon which the charges were based and upon which proposed action against him has been taken In that view of the matter we are of the opinion that it cannot be said that in conducting the enquiry or framing of the charges or arriving at the decision the authorities concerned have acted in violation of the principles of natural justice merely because the evidence was not recorded in his presence or that the materials the gist of which was communicated to him were not gathered in his presence
As we have set out hereinbefore indeed he had accepted the factual basis of the allegations
We have set out hereinbefore in extenso the portions where he had actually admitted the factual basis of these allegations against him where he has not questioned the veracity of the witness of the facts or credibility of the witnesses or credibility of the entries on records
Indeed he has given explanation namely he was over worked he had consulted his superiors and sought their guidance his conduct has not actually according to him caused any financial risk or damage to the Bank concerned
Therefore in our opinion in the manner in which the investigation was carried out as a result of which action has been taken against him cannot be condemned as bad being in violation of the principles of natural justice
Had he however denied any of the facts or had questioned the credibility of the persons who had given information against him then different considerations would have applied and in those circumstances refusal to give an opportunity to cross examine the persons giving information against him or to lead evidence on his own part to rebut the facts would have been necessary and denial of such opportunity would have been fatal
But such is not the case here as we have mentioned hereinbefore
204 Our attention was drawn to the new rules called State Bank of India Supervising Staff Service Rules  which were first introduced on 25th July 1975 and thereafter from time to time amended which laid down detailed procedure for gathering the information and procedure for recording of the evidence etc
We are however not concerned with those rules as at relevant time when the enquiry was conducted these rules were not in force
We may also mention that the appellant has contended that there is no evidence that the appellant has actually defrauded the Bank or actual loss or damage has been caused to the Bank or actual risk has been incurred by the Bank
That is true
But the charge against the appellant was that he had so conducted himself which exposed the Bank to grave risk and for which his explanation was not accepted after considering his explanation and after personal hearing reasonably an opinion may be formed that his conduct was such that defrauding of the Bank might have been caused
These were the charges against him and these are the charges upon which he was accused
Therefore whether actual loss or damage had been caused or not is in our opinion immaterial
In that view of the matter we are of the opinion that the arguments on this aspect of the matter on behalf of the appellant cannot be accepted
In that view of the matter it is not necessary to express any opinion on the question whether these rules under which the enquiry was conducted were statutory rules or not and as such whether the appellant has any statutory remedy against the orders impugned
Reliance was placed in support of his argument by Mr Garg on a decision of this Court in the case of Phulbari Tea Estate vs Its Workmen where it would appear from the facts set out at page 1113 of the report that the delinquent had no opportunity of asking questions to the witnesses after knowing what they had said against him
In this case as we have mentioned hereinbefore the appellant was communicated the gist of what had been gathered in his absence and even then he did not deny these informations nor did he ask any opportunity to cross examine the witnesses either regarding the veracity of the material that was gathered against him or on the credibility of the persons who had given evidence
205 Reliance was also placed on the observations in the decision of this Court in Khem Chand vs The Union of India and others
That however was a case dealing with the requirements under Article 3112 of the Constitution
In that decision the Court was concerned with the expression reasonable opportunity of showing cause under Article 3112 of the Constitution 
The facts of that case were entirely different from the facts of the instant case
However Das CJ dealing with opportunity to show cause explained at pages 1096 97 of the report the position under the said Article as follows If the opportunity to show cause is to be a reasonable one it is clear that he should be informed about the charge or charges levelled against him and the evidence by which it is sought to be established for it is only then that he will be able to put forward his defence
If the purpose of this provision is to give the government servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one he should be allowed to show that the evidence against him is not worthy of credence or consideration and that he can only do if he is given a chance to cross examine the witnesses called against him and to examine himself or any other witness in support of his defence
All this appears to us to be implicit in the language used in the clause but this does not exhaust his rights
In addition to showing that he has not been guilty of any misconduct so as to merit any punishment it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessary require the particular punishment proposed to be meted out to him
He may say for instance that although he has been guilty of some misconduct it is not of such a character as to merit the extreme punishment of dismissal or even of removal or reduction in rank and that any of the lesser punishments ought to be sufficient in his case
To summarise the reasonable opportunity envisaged by the provision under consideration includes 206 a An opportunity to deny his guilt and establish his innocence which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based b an opportunity to defend himself by cross examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence and finally c an opportunity to make his representation as to why the proposed punishment should not be inflicted on him which he can only do if the competent authority after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant
 In substance in the facts and circumstances of this cases the provision of the rules under which the enquiry was conducted the procedure mentioned above has been followed
Here also the appellant was allowed to show that the evidence against him was not worthy of credence or consideration
The evidence was discussed
His explanation was sought for and recorded
The materials and other records were shown to him
He did not ask for any chance to cross examine the witness or to examine himself or any other witness in support of his defence
Indeed as we have noted before he admitted the facts
He was also given in addition an opportunity of showing that he has not been guilty of any such misconduct as to merit the particular punishment proposed to be meted out to him
This opportunity was given
He gave his explanation and that was considered
He asked for a personal hearing which we have noted in this case was duly given to him
We are therefore of the opinion that the aforesaid passage relied on behalf of the appellant would not be of any assistance to the appellant in this case
It is true that all actions against a party which involve penal or adverse consequences must be in accordance with the principles of natural justice but whether any particular principle of natural justice would be applicable to a particular situation or the question whether there has been any infraction of the application of that principle has 207 to be judged in the light of facts and circumstances of each particular case
The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons
We must reiterate again that the rules of natural justice are flexible and cannot be put on any rigid formula
In order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of cross examination it has to be established that prejudice has been caused to the appellant by the procedure followed
See in this connection the observations of this Court in the case of Jankinath Sarangi vs State of Orissa
Hidayatullah CJ observed there at page 394 of the report there is no doubt that if the principles of natural justice are violated and there is a gross case this Court would interfere by striking down the order of dismissal but there are cases and cases
We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right
 Judged by this principle in the background of the facts and circumstances mentioned before we are of the opinion that there has been no real prejudice caused by infraction of any particular rule of natural justice of which appellant before us complained in this case
See in this connection observations of this Court in the case of Union of India  Anr
vs PK Roy  Ors
where this Court reiterated that the doctrine of natural justice cannot be imprisoned within the strait jacket of a rigid formula and its application depends upon the nature of the jurisdiction conferred on the administrative authority upon the character of the rights of the persons affected the scheme and policy of the statute and other relevant circumstances disclosed in a particular case
See also in this connection the observations of Hidayatullah CJ in the case of Channabasappa Basappa Happali vs State of Mysore
In our opinion in the background of facts and circumstances of this case the nature of investigation conducted in which the appellant was associated there has been no infraction of that principle
In the premises for the reasons aforesaid there has been in the facts and circumstances of the case no infraction of any principle of natural justice by the absence of a formal opportunity of cross examination Neither cross examination nor the opportunity to lead evidence by the delinquent is an integral part of all quasi judicial adjudications
208 Another aspect of the violation of the principles of natural justice that was urged before us on behalf of the appellant was that the final order did not contain reasons
In this connection reliance was placed on the observations of this Court in the case of Siemens Engineering  Manufacturing Co of India vs Union of India  Anr
where this Court observed that if courts of law were to be replaced by administrative authorities and tribunals were essential then administrative authorities and tribunals should afford fair and proper hearing to the persons sought to be affected by the orders and give sufficiently clear and explicit reasons in support of the orders made by them
The Court further observed that the rule requiring reasons to be given in support of an order is like the principle of audi alteram partem a basic principle of natural justice which must inform every quasi judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law
It may be mentioned that the facts in that case were different
In the instant case though reasons have not been expressly stated these reasons were implicit namely the nature of the charges the explanation offered and the reply of the appellant to the show cause notice
These appear from a fair reading of the order impugned in this case
It further appears that there was consideration of those facts and the decision was arrived at after consideration of those reasons
It is manifest therefore that absence of any denial by the appellant indeed admissions of the factual basis and nature of the explanation offered by the appellant were considered by the authority to merit the imposition of the penalty of dismissal
Such a conclusion could not in the facts and circumstances of the case be considered to be unreasonable or one which no reasonable man could make
Counsel relied on the observations of this Court in the case of Union of India vs H C Goel at pages 723 726 of the report
These observations were made again in the context of jurisdiction of the High Court to interfere with the orders passed under Article 311 2 read along with Civil Service Classification Control and Appeal Rules
The Court rejected the plea made in that case that even if the enquiry officer made findings against the public servant the 209 Government could never re examine the matter so that even if the Government was satisfied that the findings against the public servant were erroneous the Government must proceed on the basis that the public servant was guilty and impose some punishment on him
That is not the position here
In this case there is no evidence that the disciplinary authority was not satisfied with the findings arrived at in the investigation
This case therefore is of no assistance in deciding the controversy before us
Another decision of this Court was relied on by counsel for the appellant namely the decision in the case of The Barium Chemicals Ltd and Anr
vs The Company Law Board and Others
That case arose under proceedings in respect of an order passed by the Company Law Board under Section 237 b of the Companies Act appointing four inspectors to investigate the affairs of the appellant company on the ground that the Board was of the opinion that there were circumstances suggesting that the business of the appellant company was being conducted with intent to defraud its creditors members or any other persons and that the persons concerned in the management of the affairs of the company having connection therewith were guilty of fraud misfeasence and other misconduct towards the company and its members
Bachawat J at page 342 of the report was of the opinion that in view of the circumstances disclosed therein without more could not reasonably suggest that the business of the company was being conducted to defraud the creditors members and other persons or that the management was guilty of fraud towards the company and its members
From the observations of Shelat J in that decision it appears that he was also inclined to take the same view
The facts of the instant case are however different
It has to be emphasised that the appellant was not charged for defrauding the Bank
He was charged mainly for the conduct which suggested that he acted improperly and in violation of the principles on which sound banking business should be conducted
The charge against the appellant was that he had acted in violation of procedure of the Bank he had disregarded all safeguards in sanctioning the overdrafts encashing bills and his conduct had exposed the bank to grave risks and that he had flagrantly violated the bank rules and instructions with a view to cover up attempts to misappropriate bank s money after defrauding the bank
Whether actual misappropriation had been caused or bank defrauded or not were not relevant in respect of the charges against him
210 For the reasons aforesaid this appeal fails but for reasons different from those given by the High Court and is accordingly dismissed but without any order as to costs
We must however observe in conclusion that having regard to the record of the service of the appellant prior to the conduct revealed in this case and further in view of the fact that actually no loss has been occasioned to the Bank by the improper conduct of the appellant if the Bank considers in the interest of justice that the appellant should be given some job or employment in some capacity which might mitigate or compensate in some measure the grave loss suffered by the appellant consequent on the dismissal order the Bank might consider taking such a course of action
HSK Appeal dismissed


Summary:
On the basis of a complaint made against the appellant a Branch Manager of the first respondent Bank the Head Office of the Bank ordered a preliminary inquiry and after considering the report of the preliminary inquiry directed one of its officers to carry out investigation under the rules governing the service of the officers of the Bank
The Investigating officer conducted the investigation and also framed charges against the appellant
The Investigating officer held that the appellant had committed certain irregularities wilfully violated the established practices and defied the Bank s instructions
On the basis of the report of the Investigating officer the appellant was served with a charge sheet
The charge against the appellant was that he had acted in violation of procedure of the Bank he had disregarded all safeguards in sanctioning the overdrafts encashing bills and his conduct had exposed the bank to grave risks and that he had flagrantly violated the bank rules and instructions with a view to cover up attempts to misappropriate bank s money after defrauding the bank
In his reply to the charge sheet the appellant did not ask for any opportunity to lead evidence in support of his defence and for cross examination of any of the officers in respect of the matters stated against him
The appellant merely asked for a personal hearing which was granted to him
The Local Board of the Bank after considering all the relevant documents submitted to it resolved that the appellant be dismissed Thereafter the appellant was served notice to show cause why he should not be dismissed from service in terms of rule 49f of the State Bank of India Officers and Assistants Service Rules
In his reply the appellant stated inter alia that the inquiry was in violation of the principles of natural justice
The Executive Committee of the Central Board of the Bank after going through all the necessary papers submitted to it directed that the appellant be dismissed from service
On being dismissed the appellant challenged his dismissal in the High Court alleging contravention of the rules
The High Court dismissed the 185 writ application on the ground that the rules had no statutory effect
Hence this appeal by special leave
The appellant contended that the impugned order should be struck down as having been passed in violation of the principles of natural justice
He submitted that rule 50 of the Rules implied reasonable opportunity which required that materials against a person should not be gathered behind his back and he should be given an opportunity to cross examine if necessary the persons who had supplied the materials or given evidence against him and since in his case the materials against him were gathered in his absence and he was not allowed to cross examine the witnesses and that evidence against him was not recorded in his presence the requirements of rule 50 had not been fulfilled
The appellant also submitted that no loss or damage had been caused to the Bank and that the final order did not contain the reasons
Dismissing the appeal HELD Referring to rule 49f and sub rules 1 2 and 3 of rule 50 of the State Bank of India officers and Assistants Service Rules in the instant case the relevant rules have been complied with
Even if the rules are read as requiring due compliance with the principles of natural justice or even if such basis principles of natural justice were taken as implied in any case there has been no violation of the principles of natural justice in respect of the impugned order
200 G H All actions against a party which involve penal or adverse consequences must be in accordance with the principles of natural justice but whether any particular principles of natural justice would be applicable to a particular situation or the question whether there has been any infraction of the application of that principle has to be judged in the light of facts and circumstances of each particular case
The basic requirement is that their must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons
The rules of natural justice are flexible and cannot be put on rigid formula
In order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of cross examination it has to be established that prejudice has been caused to the appellant by the procedure followed
206 H 207 A C Neither cross examination nor the opportunity to lead evidence by the delinquent is an integral part of all quasi judicial adjudications
207 H J R Lucas On Justice page 86 and Wade On Administrative Law  5th Edition at pages 472 475 referred to
In respect of an order involving adverse or penal consequences against an officer or an employee of statutory corporations there must be an investigation into the charges consistent with the requirements of the situation in accordance with the principles of natural justice as far as these were applicable to a particular situation
So whether a particular principle of natural justice has been violated or not has to be judged in the background of the nature of 186 the charges the nature of the investigation conducted in the background of any statutory or relevant rules governing such enquiries
200 H 201 A B In the instant case the infraction of the natural justice complained of was that the appellant was not given opportunity to rebut the materials gathered in his absence
The appellant was associated with the preliminary investigation that was conducted against him
He does not deny or dispute
Information and materials undoubtedly were gathered not in his presence but whatever information was there and gathered namely the versions of the persons the particular entries which required examination were shown to him
He was conveyed the information given and his explanation was asked for
He participated in that investigation
He gave his explanation but he did not dispute any of the facts nor did he ask for any opportunity to call any evidence to rebut these facts
He did ask for a personal hearing and he was given such opportunity of personal hearing
His explanations were duly recorded
He does not allege that his version has been improperly recorded nor did he question the veracity of the witnesses or the entries or the letters or documents shown to him upon which the charges were framed and upon which he was found guilty
Indeed he was really consulted at every stage of preliminary investigation upon which the charges were based and upon which the proposed action against him has been taken
In that view of the matter it cannot be said that in conducting the enquiry or framing of the charges or arriving at the decision the authorities concerned have acted in violation of the principles of natural justice merely because the evidence was not recorded in his presence or that the materials the gist of which was communicated to him were not gathered in his presence
201 B 202 H 203 A E In the instant case the charge against the appellant was that he had so conducted himself which exposed the Bank to grave risk and for which his explanation was not accepted after considering his explanation and after personal hearing reasonably an opinion may be formed that his conduct was such that defrauding of the Bank might have been caused
These were the charges against him and these are the charges upon which he was accused
Therefore whether actual loss or damage had been caused or not is immaterial
204 C D In the view of the matter being taken it is not necessary to express any opinion on the question whether these rules under which the enquiry was conducted were statutory rules or not and as such whether the appellant has any statutory remedy against the orders
204 E In the instant case though reasons have not been expressly stated these reasons are implicit namely the nature of the charges the explanation offered and the reply of the appellant to the show cause notice
These appear from a fair reading of the order impugned in this case
It further appears that there was consideration of those facts and the decision was arrived at after consideration of those reasons
200 D E Phulbari Tea Estate vs Its Workmen AIR 1959 SC p 1111 Khem Chand vs The Union of India and Ors 1959 SCR p 1080 Jankinath Sarangi vs 187 State of Orissa   Union of India  Anr
vs P K Roy  Ors 1968 2 SCR p 186 Channabasappa Basappa Happali vs State of Mysore 1971 2 SCR p 645 Siemens Engineering  Manufacturing Co of India vs Union of India  Anr 1976 Supp SCR p 489 Union of India vs H C Goel 1964 4 SCR p 718 and The Barium Chemicals Ltd  Anr
vs The Company Law Board  Ors 1966 Supp
SCR p 311 referred to