* THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL Nos.1663 of 2003 and 439 of 2004 %Dated 30.10.2009 #Between: W.A.No.1663 of 2003 The State Bank of Hyderabad rep.by its ManagingDirector, Gun Foundry,Hyderabad and others. ..... APPELLANT AND Ahmed Moinuddin. .....RESPONDENT ! Counsel for the Appellants: MR.M.S.RAMACHANDRA RAO. ^ Counsel for the Respondent : MR.S.V.BHATT W.A.No.439 of 2004 Ahmed Moinuddin. .....APPELLANT AND The State Bank of Hyderabad rep.by its Managing Director, Gun Foundry,Hyderabad and others. .....RESPONDENTS ! Counsel for the Appellant: MR.S.V.BHATT ^ Counsel for the Respondents : MR.M.S.RAMACHANDRA RAO. <GIST >HEAD NOTE: [1] (1998) 3 SCC 227 2 1996-ALD -1-306 3 (2009) 2 SCC 541 4 (2007)1 SCC 338 5 AIR 1955 SC 160 6 (2008) 12 SCC 30 7 (2005) 8 SCC 264 8 (2002) 10 SCC 293 9 (1998) 7 SCC 84 10 AIR 1999 SC 3750 11AIR 1963 SC 77 12 AIR 1969 SC 966 13AIR 1996 SC 1561 141969(3) SCC 372 15AIR 1974 SC 696 16 (1998) 2 SCC 400 171981(2) ALT 455 18AIR 2000 SC 3028 19(2008) 4 SCC 517 20(2006) 7 SCC 212 THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL Nos.1663 of 2003 and 439 of 2004 COMMON JUDGMENT: (Per Sri Justice Ghulam Mohammed) Since these two writ appeals arise out of the order dated 02.05.2003 passed by this Court in W.P.No.5925 of 1997, filed seeking to set aside the orders in DPD Nos.1121, 135 and 224, dated 28.02.1996, 10.05.1995 and 13.06.1994 respectively, they are being disposed of by this common judgment. 2. W.A.No.1663 of 2003 is filed by the respondent-State Bank of Hyderabad in the writ petition and W.A.No.439 of 2004 is filed by the writ petitioner-Ahmed Mohinuddin. 3. For the sake of convenience, the parties hereinafter referred to as they were arrayed in the writ petition. 4. The facts stated are:- The petitioner, while working as Manager, Grade-II, in the respondent Bank, was transferred from Bidar to Kamalanagar Branch and joined duty in July, 1975 and to undergo training at Trivendrum, he was relieved from the duty on 16.09.1976. While so, based on the complaint, dated 17.09.1976, given by a customer, namely, Bandappa Kalappa Gandge, of Kamalanagar Branch, the Deputy General Manager (Operations) vide letter, dated 05.10.1976, called upon the petitioner to show cause and submit his comments on the said complaint. It is stated that thereafter, the petitioner was placed under suspension vide order dated 09.10.1976 and charge sheeted on eight counts vide memo dated 08.12.1976. He submitted his explanation vide letter dated 24.01.1977. He stated that the respondent Bank, without conducting any enquiry, issued notice dated 30.04.1977 to show cause as to why he should not be reverted. Questioning the same, he filed W.P.No.526 of 1978 and this Court allowed the same vide order, dated 08.08.1978, directing the respondents to complete the enquiry, within a period of two months from the date of receipt of a copy of the order. Not satisfied with the said order, the petitioner filed W.A.No.461 of 1978 and the Division Bench of this Court disposed of the same vide judgment, dated 11.07.1979 confirming the order dated 08.08.1978 and directed the respondents to complete the enquiry and pass appropriate orders after considering the reply filed by the petitioner. He further stated that the respondent Bank vide order dated 03.09.1982, imposed the punishment of discharge from the services of the Bank by treating the period he was under suspension as not on duty and without adjusting the subsistence allowance/remuneration payable to him. Challenging the same, the petitioner filed W.P.No.6754 of 1982, wherein this Court on perusing the material available on record, allowed the same by its order, dated 14.02.1983, and quashed the suspension order dated 03.09.1982 directing the respondent Bank to conduct the enquiry on the basis of the show cause notice dated 30.04.1977. However, aggrieved by the direction given by the learned Single Judge to the respondent Bank to conduct enquiry against the petitioner, the petitioner preferred W.A.No.331 of 1983, which was dismissed on 14.06.1984. Consequently, an enquiry was conducted and the Enquiry Officer submitted his report dated 22.06.1989, based on which, the third respondent, by order dated 13.02.1991, communicated to the petitioner the decision dated 07.12.1990 of the Board of Directors of the respondent Bank imposing the punishment of placing him at the start of the basic pay applicable to the Officers of JMGS-I Cadre i.e., at Rs.2,100/-, thereby the basic pay of the petitioner is reduced from Rs.3,180/- by nine stages, and debarring his promotional chances for a period of 5 years from the date of reporting back to duty and recovery of Rs.550/- paid by the Bank to Bandappa Kalappa Gandge. Further, the period of suspension of the petitioner was confined to the subsistence allowance already received by him. Questioning the said order, the petitioner filed W.P.No.3129 of 1991, wherein this Court by order, dated 22.03.1994, set aside the punishment imposed on him and directed the first respondent to commence the enquiry from the stage of affording an opportunity to the petitioner to submit reply to the report of the enquiry officer to the disciplinary authority and complete the same in accordance with law. This Court further directed the parties to maintain status quo as on the date of the order for a period of four months and in case, the enquiry is not completed within the said period, the petitioner should be paid the salary, which he was drawing prior to the order suspending him from service pending enquiry. The petitioner submitted his explanation to the second respondent on 16.04.1994. Thereafter, the third respondent, by its order, dated 13.06.1994, imposed on the petitioner the same penalty as was imposed by him by the decision of the Board of Directors of the Bank, dated 07.12.1990 and communicated to him by the order of the Managing Director, dated 13.02.1991. Aggrieved by the same, he preferred an appeal before the second respondent on 27.07.1994. It is further stated that the third respondent, by his communication dated 16.02.1995, informed the petitioner that the appeal preferred by him dated 27.07.1994 and the entire record of disciplinary proceedings initiated against him together with the findings of the Inquiring Authority and his submissions thereto, had been remitted back to the third respondent for furnishing the reasons to him (the petitioner) on account of his differing with the findings of the inquiring authority and therefore, the petitioner was called upon to submit his comments thereon, within fifteen days from that date. As the petitioner failed to furnish his comments, the appellate authority, by the order, dated 10.05.1995 rejected his appeal dated 27.07.1994 concurring with the findings and the punishment imposed by the disciplinary authority cum appointing authority. Dissatisfied with the same, the petitioner preferred a review petition on 03.07.1995 to the second respondent and the same was rejected vide communication dated 28.02.1996. Hence, the petitioner filed the present Writ Petition being up No.5925 of 1997 challenging the decisions of the primary, appellate and revisional authorities. 5. This Court, after considering the entire evidence and the material on record, found that the conclusion arrived at by the enquiry authority as confirmed by the disciplinary and appointing authorities, in respect of charge No.4, is valid and that in respect of charge Nos.1, 2, 3 and 5 to 8 is invalid and remitted the matter for consideration of the third respondent for appropriate penalty proportionate to the misconduct validly found against the petitioner in respect of charge No.4 and take a decision in this regard in accordance with law. Aggrieved by the same, the present writ appeals are filed by the respondent Bank and the petitioner respectively. 6. Sri S.V.Bhatt, learned counsel for the petitioner contended that the learned Single Judge has rightly held that charge Nos.1 to 3 and 5 to 8 are liable to be effaced on account of their invalidity, but ought not to have held that the findings insofar as charge No.4 concerned are sustainable. He contended that the Enquiry Officer denied the petitioner an opportunity of cross-examining M.W.6, the Handwriting Expert, so as to test the veracity of the witness and therefore, the entire procedure conducted by the inquiring authority is vitiated. He contended that on the complaint given by Bandappa Kalappa, the customer of S.B.H., Kamalanagar Branch, on 16.09.1976, the petitioner submitted his explanation, but he was kept under suspension indefinitely without considering the explanation submitted by him and that after issuing the charge memo to the petitioner on 08.12.1976, the respondent bank received a second complaint on 03.09.1977 i.e. after lapse of one year from the date of the first complaint, which is impermissible under law. He contended that only preliminary enquiry was conducted against the petitioner and no regular enquiry was conducted. He further contended that the petitioner is a sincere and honest officer, but the Bank has unnecessarily implicated him in this case and litigating the matter since two decades. Learned counsel for the petitioner vehemently contended that all the witnesses are interested witnesses and their evidence was contrary to the documents, testimony or truthfulness and so, their evidence cannot be accepted. Learned counsel further contended that the learned Single Judge ought to have held that the petitioner has to be reinstated into service with all consequential benefits because another Enquiry Officer was appointed and he has not afforded an opportunity of being heard to the petitioner. He further contended that the disciplinary authority while disagreeing with the report of the enquiry officer in not furnishing the reasons so as to deny the opportunity to the petitioner passed the order of discharge, which is a nullity. Nonetheless, the appellate authority had suo motu remitted the matter to the third respondent and directed him to furnish reasons to the petitioner for differing with the report of the inquiring authority and also to give an opportunity to him to submit his explanation. From this, it can be inferred that the disciplinary authority has committed serious irregularities. The disciplinary Authority informed the same to the petitioner and called for his defence statement, but no enquiry was held and without considering the same, as empty formality, passed the impugned order, which vitiated the entire proceedings. 7. Learned counsel for the petitioner further contended that the entire proceedings are vitiated as the respondent bank authorities ought to have examined the account holder and that no independent witness was examined. Learned counsel relied on the decision reported in MINISTRY OF FINANCE v. S.B. RAMESH[1] and contended that non-examination of the account holder or the complainant and taking the second complaint after issuance of the charge memo vitiates the whole procedure. The relevant portion of the order reads thus: “Service Law-Departmental enquiry-Standard of proof- Findings of Enquiry Officer-Government servant charged of living together and having extra-marital sexual relationship with a lady-CAT setting aside the punishment of compulsory retirement on account of want of evidence to substantiate the charge, after finding that (i) the Enquiry Officer had not attempted to question the delinquent employee under R.14(18) of CCS (CCA) Rules on the evidence appearing against him although such opportunity ought to have been afforded despite having set him ex parte;(ii) only one of seven documents was proved by the witness and certain documents had been marked on the side of the delinquent by the Enquiry Officer without the delinquent’s consent and that therefore the inference drawn from such documents stood vitiated; (iii) the said document allegedly containing the statement of the lady in question was relied on by the Enquiry Officer and the disciplinary authority without offering her as a witness for cross-examination; (iv) the witness in whose presence the said statement was allegedly made, had not spoken to the details of the contents thereof; (v) the authenticity of the said statement had been denied by the delinquent employee; (vi) inference drawn by the authorities merely on the ground of similarity of handwriting, signature or telephone numbers that the name occurring in certain documents was that of the delinquent, was merely a guess work and could not be relied on to prove the charge- In the light of the material placed before CAT its order, held, called for no interference-More so when full materials were not placed before the Supreme court despite the opportunity given for that purpose-Departmental enquiry-summoning of witnesses-Conducting the enquiry-Departmental enquiry- Witnesses whose statements are relied on must be produced. He also relied upon the following judgments: In EXECUTIVE COMMITTEE v. DHANESWARA RAO[2], it was held as under: “It is well settled principle of law that this Court under Article 226 of the Constitution is not an appellate authority while reviewing a question of fact therefore, the High Court cannot review the evidence and reverse a finding of fact based on evidence. Of course, if the finding is not based on any evidence or is based on inadmissible evidence or there is an error of law apparent on the face of record, there is no bar to this Court to interfere”. In UNION OF INDIA v. PRAKASH KUMAR TANDON[3], it was held as under: “15.The principles of natural justice demand that an application for summoning a witness by the delinquent officer should be considered by the enquiry officer. It was obligatory on the part of the enquiry officer to pass an order in the said application. He could not refuse to consider the same. It is not for the Railway Administration to contend that it is for them to consider as to whether any witness should be examined by it or not. It was for the enquiry officer to take a decision thereupon. A disciplinary proceeding must be fairly conducted. An enquiry officer is a quasi-judicial authority. He, therefore, must perform his functions fairly and reasonably which is even otherwise the requirement of the principles of natural justice. 17. If the disciplinary proceedings have not been fairly conducted, an inference can be drawn that the delinquent officer was prejudiced thereby. 18. In S.L.Kapoor v. Jagmohan (1980) 4 SCC 379 this Court has held that non-compliance with the principles of natural justice itself causes prejudice. We are not oblivious of the fact that the said principle has since been watered down but in a situation of this nature, we are of the opinion that the concurrent findings of the Tribunal, as also the High Court cannot be said to be unreasonable or suffering from any legal infirmity warranting interference. In GOVERNMENT OF ANDRA PRADESH v. A. VENKATA RAIDU[4], it was held as under: “We respectfully agree with the view taken by the High court. It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In charge 1, what is mentioned is that the respondent violated the orders issued by the government. However, no details of these orders have been mentioned in charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO, etc. but that was not done. Copies of the said GOs or directions of the Government were not even placed before the enquiry officer. Hence, charge 1 was not specific and hence, no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged”. Learned counsel for the petitioner further contended that the learned Single Judge has committed an error in holding that charge No.4 is proved. He further contended that the scope of this Court is very narrow and it cannot sit as an appellate authority and undertake the exercise undertaken by the disciplinary authority and that efficacy or inefficacy or deficiency or otherwise of the evidence cannot be a subject matter of judicial review under Article 226 of the Constitution of India. He further relied upon the following judgments: I n P.JOSEPH JOHN v. STATE OF TRAVANCORE- COCHIN[5], it was held as under: “As regards the question whether the petitioner was given reasonable opportunity of showing cause against the action proposed to be taken in regard to him, the legal position in that respect and the nature of opportunity to be granted was stated by the Privy Council in the case of –High Commissioner for India v. I.M.Lal ( AIR 1948 PC 121 (A), and it was held that when a stage is reached when definite conclusions have been come to as to the charges, and the actual punishment to follow is provisionally determined on, that the statute gives the civil servant an opportunity for which sub-section (3) of section 240 of the Government of India Act, 1935 (which corresponds to Article 311) makes provision, and that at that stage a reasonable opportunity has to be afforded to the civil servant concerned. It was also held that there was no anomaly in the view that the statute contemplates a reasonable opportunity at more than one stage. In our opinion, in the present case the petitioner had reasonable opportunity at both stages to enter upon his defence. He fully availed himself of the first opportunity and though a reasonable opportunity was also given to him at the second stage, he failed to avail himself of it and it is not open to him now to say that the requirements of clause (2) of Article 311 have not been satisfied. It was not denied that the petitioner was given by the Enquiry Commissioner all facilities for entering on his defence. Before filing his written statement before the Enquiry Commissioner the petitioner and his counsel were afforded facility to inspect the various files concerning the charges which he had to meet. After inspecting those files he filed a full written statement explaining those charges. He was defended in the enquiry by a leading lawyer and was afforded fullest opportunity to examine and cross-examine the witnesses examined by the commissioner. He was able to satisfy the Enquiry Commissioner that out of the charges leveled against him a number of them were not established; but he failed to satisfy the Commissioner as regards the rest and the Enquiry Commissioner held them proved. After the enquiry was concluded the petitioner was furnished with a copy of the report of the Commissioner and was asked to show cause against the action proposed to be taken against him. He applied for two months’ time to show cause. This was granted. He made a further application for further time. This was also partially granted. He again asked for further time which was refused. It is difficult to say that the time allowed to him was not reasonable in view of the fact that he had taken part in the enquiry before the commissioner and all the evidence had been taken in his presence and he had full opportunity to defend himself. All the material on which the commissioner had reported against him on the charges found proved, was given in the report of the Commissioner and that was supplied to him with a show cause notice. The time allowed, in our opinion, was more than sufficient for him to enter on his defence and having failed to do so, he cannot be heard to say that he was not given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him”. In UNION OF INDIA v. Y.S.SADHU EX-INSPECTOR[6], it was held as under: “Service law-Departmental enquiry-Natural justice-Violation of-Whether results in automatic reinstatement-Departmental enquiry conducted against respondent found defective inasmuch as witnesses examined earlier were not produced for cross-examination-Disciplinary authority dismissed him from service on the basis of enquiry report which held the charges against respondent as proved-Following the law laid down in Hiran Mayee Bhattacharyya case, (2002) 10 SCC 293 and R.S.Pandey case, (2005) 8 SCC 264, held, reinstatement could not be ordered on account of these infirmities in disciplinary proceedings-High Court ought to have directed fresh proceedings from the stage of alleged illegality, without ordering reinstatement-Respondent, however, in the meantime reaching superannuation age and therefore not interest in pursuing further remedy, rather interested in submitting a departmental representation for change of punishment from termination to compulsory retirement-Liberty given to him to do so without expressing any opinion on this aspect. I n U.P.STATE SPINNING COMPANY LTD., v. E.S.PANDEY[7], it was held as under: “The residual question is what would the appropriate direction in such a case be. Stand of the employer is that it would have justified the order of termination by adducing any evidence even if it was held that there was some defect in the departmental proceedings. The solution is found in what was stated by this Court in Managing Distrctor, ECIL v. B.Karunakar (1994) 4 SCC 727:1993 SCC (L & S) 1184: (1993) 25 ATC 704.In para 31, it was observed as follows: “In all cases where the enquiry officer’s report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the court/tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. 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. Whereafter following the above procedure, the court/tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law”. I n HIRAN MAYEE BHATTACHARYYA v. SECRETARY,S.M.SCHOOL FOR GIRLS[8], it was