IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.3866 OF 1984 For Approval and Signature The Hon'ble Mr. Justice S.K. KESHOTE --------------------------------------------------------- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether their lordships wish to see the fair copy of the judgment ? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the Civil Judge? --------------------------------------------------------- VINODCHANDRA B PANDIT VERSUS BANK OF INDIA & ORS. --------------------------------------------------------- Appearance: MR AK CLERK for the Petitioner MR NANDISH CHUDGAR for the Respondent --------------------------------------------------------- Coram: S.K. Keshote,J Date of decision:09/05/1997 C.A.V.JUDGMENT The petitioner, an officer of the Bank of India, challenges by this Special Civil Application, filed under Article 226 of the Constitution of India, the order of the disciplinary authority, annexure `F', dated 28th June 1983, under which penalty of removal from the services was given and further orders annexures `H' & `J' of the Appellate Authorities, dated 24th October 1983 and 7th June 1984, respectively, under which the order annexure `F' was confirmed. 2. The petitioner was removed from the services after holding full fledged departmental inquiry. The petitioner was given detailed chargesheet vide memo dated 10th August 1982, to which the petitioner has submitted his reply. After completion of inquiry, the inquiry officer submitted a report to the disciplinary authority, who after considering the same and other record, under the order dated 28th June 1983, ordered for removal of the petitioner from services. It is not in dispute that alongwith the order of respondent of removal of petitioner from services, copy of inquiry report was sent to the petitioner. The petitioner preferred an appeal against the aforesaid order to the Appellate Authority which came to be dismissed under the order dated 24th October 1983. Hence this Special Civil Application. 3. This Special Civil Application came to be accepted by this Court under the order dated 17th September 1991. The Special Civil Application was accepted only on the ground that the copy of the inquiry report was not supplied to the petitioner before he was held to be guilty by the disciplinary authority. The respondent-Bank preferred Letters Patent Appeal and the same came to be dismissed by the Division Bench of this Court. Thereafter the Bank has taken up the matter to the Hon'ble Supreme Court by filing Civil Appeal No.302 of 1992, which was allowed and the matter was remitted back to this Court to decide other points raised by the petitioner in this Special Civil Application. The Division Bench of this Court, under the order dated 16th October 1996, sent the matter to the Single Judge for deciding other points raised by the petitioner in the Special Civil Application. 4. The learned counsel for the petitioner, Shri A.K. Clerk, contended that the petitioner was not given three important documents by the Bank. These documents are; (i) first copy of the report of investigation by CBI, (ii) the letters written by Shri P.R. Bhatt to the Bank on the basis of which inquiry was initiated and (iii) report of the preliminary inquiry conducted by Security Officer of the Bank. The learned counsel for the petitioner contended that for want of report of CBI, the petitioner could not effectively cross-examine the CBI Inspector as well as other witnesses produced in the inquiry against him. In support of this contention, the learned counsel for the petitioner placed reliance on decision of Apex Court in the case of State Bank of India v. D.C. Aggarwal & Anr., reported in (1993)1 SCC 13. Reliance has also been placed on Regulation 10(b)(II)(iii), 11 and 12 of the Bank of India Officers/Employees Discipline and Appeal Regulations, 1976. Second contention raised is that complaints have not been made by the borrower or guarantor, either in writing or orally, that the petitioner demanded or accepted illegal gratification. The third contention of the learned counsel for the petitioner is that none of borrowers or guarantors is examined during the inquiry by the Bank in case of three incidents. In case of two incidents, co-borrowers are examined. The main borrower is not examined in any of the five incidents and the charge is sought to be proved by examining third parties. The fourth contention of the learned counsel for the petitioner is that out of the five accounts for which the charge is held to be proved, two accounts have been closed on repayment of loan even before issuance of the chargesheet. The fifth contention is that the report of Inquiry Officer is based on no evidence and is perverse and as such no reasonable man could have arrived at the said decision on the basis of material on record. In support of this contention, the learned counsel for the petitioner placed reliance on two decisions, one of the Apex Court, in the case of Sawai Singh v. State of Rajasthan, reported in AIR 1986 SC 995 and of this Court in the case of Siddharth Mohanlal Sharma v. South Gujarat University, reported in 23(1) GLR 233. Sixth contention of the learned counsel for the petitioner is that the chargesheet is vague and lacking in material particulars. Further contention of the learned counsel for the petitioner is that the chargesheet was issued after inordinate delay of 5 to 7 years. In support of this contention, reliance has been placed by the counsel for the petitioner on decision of this Court in the case of Mohanbhai Dungarbhai Parmar v. Y.B. Zala & Anr., reported in 20(1) GLR 497. The last contention is that the penalty of removal, which has been given to the petitioner in the present case, by disciplinary authority and as confirmed by the Appellate Authority is excessive and disproportionate to the guilt proved against the petitioner. 5. On the other hand, Shri Nandish Chudgar, learned counsel for the respondent, contended that CBI report, letters written by Shri P.R. Bhatt to the Bank as well as report of preliminary inquiry conducted by the Security Officer were not produced by the Bank in the inquiry. It is urged that these documents were not relied upon by the Inquiry Officer to hold the petitioner guilty of charges. These documents not being the part of the inquiry, it was not obligatory on the part of respondent to give copies of the same to the petitioner. Otherwise also, merely on non supply of these documents, the inquiry as well as the order of penalty will not vitiate as the petitioner has failed to establish that non supply of these documents has caused any prejudice to him. It has next been contended that for the purpose of cross examination of CBI Inspector and the Security Officer of the Bank, who were examined as Bank witnesses in the inquiry against the petitioner, these documents were not necessary nor the petitioner has given out how these documents were necessary for this purpose. These two persons have given statements that they have made preliminary inquiry/investigation against the petitioner wherein they have examined witnesses and those witnesses have admitted that the petitioner has accepted from them, bribe for sanction of loan in favour of loanees. The copies of the statements of the persons who have been examined by CBI in investigation has been furnished to the petitioner and the case against the petitioner is based on direct evidence which has been recorded in the inquiry. The learned counsel for the respondent further contended it is hardly of any substance that the borrower or guarantor has not made any complaint, but the question is whether the petitioner has accepted bribe to sanction the loan to the loanees or not, and this question has been proved in the present case on the basis of substantial evidence produced by the Bank. Otherwise also, it is hardly of any substance that the borrower or guarantor were not examined, where the evidence has been produced in the inquiry of the persons who were directly connected with the loan and who have given bribe to the petitioner. Out of five accounts, if two accounts have been closed on repayment, the guilt of petitioner will not come to an end. The report of the Inquiry Officer is based on the evidence and the petitioner has been provided sufficient opportunity to cross-examine those witnesses, but he failed to get out anything from those witnesses in his favour. The chargesheet is not vague or lacking in material particulars. Moreover, this point was never raised by the petitioner during the course of inquiry. He has allowed the inquiry to be completed and then only, he has raised all these objections before this Court. There are serious charges against the petitioner of accepting illegal gratification (corruption) and as such, even if some delay in issuance of chargesheet is there, it is not fatal to the case. Replying to the last contention of the learned counsel for the petitioner, the learned counsel for the respondent contended that in the case where charges of acceptance of illegal gratification have been proved against the petitioner, the minimum penalty could have been removal or dismissal of the delinquent officer from the services and as such, it cannot be said to be a case of excessive or disproportionate punishment. In support of his contentions, the learned counsel for the respondent placed reliance on the following decisions of the Apex Court: Krishna Chandra Tandon v. Union of India -- (1974)4 SCC 374 State Bank of India & Ors. v. Samrendra Kishore Endow & Anr. -- (1994)2 SCC 537 B.C. Chaturvedi v. Union of India & Ors. -- (1995)6 SCC 749 State Bank of Patiala v. S.K. Sharma -- JT 1996 (3) SC 722 6. In the rejoinder, the learned counsel for the petitioner cited decision of the Apex Court in the case of Union of India v. H.C. Goel, reported in AIR 1964 SC 364 . 7. I have given my thoughtful considerations to the submissions made by the learned counsel for the parties. 8. From the article of charges and the statement of allegations of charges, which have been produced on record, it cannot be said that the chargesheet is vague and lacking in any material particulars. The respondents, in the chargesheet, have given out elaborately the charges which have been framed against the petitioner. Moreover, I do not find anything on the record from the Special Civil Application as well as it is not the contention of the learned counsel for the petitioner that immediately after receipt of chargesheet or thereafter, during the course of inquiry, the petitioner has made any complaint that the chargesheet is vague and lacking any material particulars. Over and above this, the learned counsel for the petitioner has failed to show any vagueness or anything lacking in the material particulars in the chargesheet. In view of this fact, I do not find any substance in the contention of the learned counsel for the petitioner that the chargesheet is vague and lacking any material particulars. 9. The hearing of this case commenced in this Court from 26th November 1996, which has been adjourned from time to time. During the course of hearing of this Special Civil Application, this Court has directed the respondent-Bank to bring for perusal of this Court, investigation report made by the CBI in this case, the preliminary inquiry report as well as letters which have been written by Shri Bhatt to the Bank from time to time. The learned counsel for the respondent-Bank has not only produced these three documents before this Curt, but copy of these documents has also been given to the counsel for the petitioner. The learned counsel for the respondent contended that the letters which have been written by Shri Bhatt, Manager of the Branch concerned, are part of preliminary inquiry report. The learned counsel for the petitioner, after receipt of these documents, is unable to point out how these documents could have been of any relevance for the purpose of cross-examining the witnesses of the Bank, namely the CBI Inspector and the officer of the Vigilance Section of the Bank. The learned counsel for the petitioner has not advanced any arguments on the basis of these documents during the course of arguments in this behalf. So this fact goes against the petitioner and this plea of non supply of documents was taken only for the sake of objection and it was not a case where the petitioner, in substance, really needed these documents for the purpose of cross-examining those witnesses. It is true that these documents have been prayed for by the petitioner. These documents can be classified in three categories, namely, (i) Investigation report of CBI, (ii) Report of preliminary inquiry conducted by Vigilance Section of the Bank, and (iii) Letters which were written by Shri Bhatt, the then Branch manager to the Bank. The letters of Shri Bhatt form part of preliminary inquiry report. On the basis of those letters, it appears that the preliminary inquiry has been conducted against the petitioner in the present case to find out whether the allegations made against the petitioner has any substance and whether it is a case where inquiry should be conducted or not. The purpose of preliminary inquiry report is only to prima-facie find out whether the allegations made against the delinquent employee/officer are true and further to decide whether on these allegations, the departmental inquiry should be held or not. On initiation of departmental inquiry, the preliminary inquiry report loses its significance and importance. The report of the preliminary inquiry is not a document to be given to the delinquent employee/officer where full fledges inquiry has been held against him on the charges framed. The preliminary inquiry is nothing to do with the inquiry conducted after issue of chargesheet. As stated earlier, the former action would be to find whether the disciplinary inquiry should be initiated against the delinquent employee/officer or not. After full fledged inquiry was held, the preliminary inquiry loses its importance. A reference in this respect may have to the decision of Apex Court in the case of Narayan Dattatraya Ramteerthakar v. State of Maharashtra & Ors., reported in (1997)1 SCC 299. In view of this fact and the position of law as discussed above, the grievance of the petitioner made on the ground of non supply of preliminary inquiry report deserves no acceptance. The grievance of the petitioner for non supply of letters of the then Branch Manager Shri Bhatt is also of no substance. These letters formed part of preliminary inquiry report and when the preliminary inquiry report was not required to be given to the petitioner, how the claim of the petitioner for supply of these documents can be accepted. Moreover, the petitioner has failed to establish how any prejudice has resulted to him for non supply of these documents. As earlier observed, these letters were relevant only for the purpose of forming opinion whether prima-facie case is there against the petitioner for holding inquiry or not and these documents have lost importance when the full fledged departmental inquiry was held. 10. The CBI conducted investigation in the present case to examine the aspect of criminal liabilities of the petitioner and during the course of that investigation, naturally statements of many persons connected with the matter have to be recorded. The scope of investigation by CBI and the full fledged departmental inquiry on misconduct alleged against the petitioner are altogether different, and both these are different fields. However, the CBI has conducted the investigation and has recorded statements of many of the persons who stated before it that the petitioner accepted illegal gratification for sanction of loan, and many of them have been examined in the departmental inquiry. The petitioner has not made any grievance that copies of the statements of the witnesses examined by the CBI during investigation have not been given. I find sufficient merits in the contention of the learned counsel for the respondent-Bank that only documents which form part of the inquiry report and particularly on which, reliance is placed by the Inquiry Officer, to hold the delinquent employee/officer to be guilty of the charges, have to be furnished. The CBI investigation report was not produced and relied in the inquiry by the Bank and as such it does not form part of the inquiry proceedings. Not only this, the learned counsel for the petitioner has failed to point out from the inquiry report that the Inquiry Officer has placed reliance on the CBI investigation report to hold the petitioner guilty of charges found proved against him. Reference has only been made to the statement of CBI Investigating Officer and the Vigilance Officer of the Bank as well as other witnesses. It is not in dispute that the petitioner has cross-examined all these witnesses. The learned counsel for the petitioner further failed to point out any relevance of these documents in the inquiry. Secondly, though the petitioner raised the point that CBI investigation report was necessary for cross-examination of the CBI Investigating Officer, but as stated earlier, he failed to point out any relevancy of this inquiry report for the cross-examination of witnesses. The learned counsel for the petitioner is unable to satisfy this Court that for non supply of CBI investigation report, any prejudice has been caused to the petitioner. It is not the case of the petitioner that the copy of the CBI investigation report was required by him for his defence. It is also not the case of the petitioner that the CBI inquiry report in any way supports the case of the petitioner. The only grievance is that non supply of the same has resulted in denial of effective right of cross-examination of witness, the CBI Investigating Officer. The fact that after receipt of the CBI investigating report, the learned counsel for the petitioner is unable to point out how it was relevant to cross examine the Investigating Officer of CBI, goes against the petitioner. The CBI investigation report was not produced in the inquiry by the Bank and it is not a part of the inquiry proceedings nor any reliance has been placed on it by the Inquiry Officer to hold the petitioner guilty of charges and it is also not a case where it can be said that any prejudice is caused to the petitioner by non supply of the same. 11. The learned counsel for the petitioner, during the course of arguments, made reference to the regulations of the Bank, but has not produced those regulations for the perusal of the Court. I consider it to be advantageous to make reference to the decision of Hon'ble Supreme Court in the case of State Bank of Patiala & Ors. v. S.K. Sharma, reported in 1996(3) SCC 364 = JT 1996(3) SC 722. While dealing with the State Bank of Patiala (Officers) Service Regulation, 1979, the Apex Court held; 10. Sub-clause (iii) aforesaid is indisputably part of a regulation made in exercise of statutory authority. the sub-clause incorporates a facet of the principle of natural justice. It is designed to provide an adequate opportunity to the delinquent officer to cross-examine the witnesses effectively and thereby defend himself properly. It is relevant to note in this behalf that neither the enquiry officers' report nor the judgment of the trial court, appellate court or High Court say that the respondent had protested at the relevant time that he was denied an adequate opportunity to cross-examine the witnesses effectively or to defend himself properly on account of non-supply of the statements of witnesses. The appellate court, on the contrary, has recorded that when he was advised to peruse, examine and take notes from the documents including the statements of witnesses (Kaur Singh and Balwant Singh), the only objection raised by the respondent was that "the documents marked Exhs. P-6, P-10 and P-11 were only photostat copies and not originals and should not be considered or marked exhibits". (Exhs. P-6, P-10 and P-11 are documents other the statements of witnesses, i.e. of Kaur Sing and Balwant Singh.) Moreover, as pointed out above, the examination of witnesses began long after the expiry of three days from the day on which the respondent was advised to and he did peruse the documents and statements of witnesses. In the circumstances, it is possible to say that there has been a substantial compliance with the aforesaid sub-clause (iii) in the facts and circumstances of this case, though not a full compliance. This, in turn, raises the question whether each and every violation of rules or regulations governing the enquiry automatically vitiates the enquiry and the punishment awarded or whether the test of substantial compliance can be invoked in cases of such violation and whether the issue has to be examined from the point of view of prejudice. So far as the position obtaining under the Code of Civil Procedure and the Code of Criminal Procedure is concerned, there are specific provisions thereunder providing for such situation. There is Section 99 of the Code of Civil Procedure and Chapter 35 of the Code of Criminal Procedure. Section 99 of CPC says: "No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, nor affecting the merits of the case of the jurisdiction of the Court." Section 465(1) of the Criminal Procedure Code, which occurs in Chapter 35 similarly provides that: "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this code, or any error, or irregularity in any sanction for the prosecution. Unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby." 12. It would be appropriate to pause here and clarify a doubt which one may entertain with respect to the principles aforestated. The several procedural provisions governing the disciplinary enquiries (whether provided by rules made under the proviso to Article 309 of the Constitution, under regulations made by statutory bodies in exercise of the power conferred by a statute or for that matter, by way of a statute) are nothing but elaboration of the principles of natural justice and their several facets. It is a case of codification of the several facets of rule of audi alteram partem or the rule against bias. One may ask, if a decision arrived at in violation of principles of natural justice is void, how come a decision arrived at in violation of rules /regulations/ statutory provisions incorporating the said rules can be said to be not void in certain situations. It is this doubt which needs a clarification -- which in turn calls for a discussion of the question whether a decision arrived at in violation of any and every facet of principles of natural justice is void. 29. the matter can be looked at from the angle of justice or of natural justice also. The object of the principles of natural justice -which are now understood as synonymous with the obligation to provide a fair hearing -- is to ensure that justice is done, that there is no failure of justice and that every person whose rights are going to be affected by the proposed action gets a fair hearing. The said objective can be tested with reference to sub-clause (iii) concerned here. It says that copies of statements of witnesses should be furnished to the delinquent officer