WA 393/2005 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE A. POTSANGBAM JUDGMENT & ORDER Ranjan Gogoi J. 1. The writ petition [WP(C) No.83/2002] filed by the present respondent aga inst the order of dismissal from service having been allowed by the learned Sing le Judge, by order dated 16.2.2005, the present appeal has been filed. 2. The core facts that will be required to be noticed for the purpose of th e present adjudication are set out herein. At the relevant point of time, the respondent- writ petitioner was worki ng in the State Bank of India as the General Manager (Commercial Banking i.e. CB ) at its Head Office at Guwahati. He was due to retire with effect from 31.3.199 8. On 23.3.98 he was served with a show cause notice dated 21.3.98 asking him to submit his reply against the charge set out in the articles of charges based on the statement of imputations of misconduct enclosed to the charge memo. At or a bout the same time the respondent-petitioner received another order dated 23.3.9 8 by which, in view of the proceeding initiated against him by the charge memo d ated 21.3.98, he was ordered to be treated to be continuing in service. The said action was stated to be in terms of Rule 19(3) of the State Bank of India Offic ers Service Rules (hereinafter referred to as the Rules). 3. On receipt of the charge memo dated 21.3.98 the respondent petitioner by communication dated 25.3.98 requested his disciplinary authority to furnish to him three documents, details of which are stated below, so as to enable him to f ile his written statement/reply against the charge memo. (1) A copy of the investigation report submitted by Shri P.N. Bhat, General Manager in respect of complaint against him(petitioner) in the early 1997; (2) A copy of the investigation report submitted by Shri A.W.Siddiqui, Gener al Manager in early 1998 in respect of complaint/allegations against the petitio ner; and (3) A copy of the handwritten letter with enclosures of Shri D. P. Srivastav a, erstwhile Chief General Manager of the Bank which was sent to the Central off ice at the time of his retirement allegedly involving the petitioner. 4. By letter dated 3.4.98 the disciplinary authority declined the request m ade by the respondent petitioner for the documents mentioned above on the ground that such request was not justified . Situated thus, the respondent-petitioner submitted his written statement of defence on 31.3.98 denying the charges/ alle gations levelled and enclosing to his said statement a copy of an earlier reply submitted by the him in response to a letter dated 27.2.98 of the Chief General Manager (North Eastern Region). By the said letter dated 27.2.98 explanations we re called for from the respondent petitioner in respect of allegations which the Respondent petitioner contends to be the same as contained in the charge memo d ated 21.3.98. 5. Thereafter, the Bank, having decided to hold an enquiry in the matter, a ppointed an Enquiry Officer before whom the respondent petitioner submitted a li st of documents required for his inspection so as to prepare his defence and to present his case in the enquiry to be held. In the said list the above-stated t hree documents were, once again, mentioned by the respondent petitioner. Though the respondent petitioner was allowed to inspect and was also given copies of al l other documents sought for, inspection or copies of the three documents in que stion was refused by the disciplinary authority on the ground that the said docu ments were privileged. This was communicated by letter dated 10.8.98. The enquir y against the respondent petitioner proceeded in the aforesaid circumstances and report thereof was submitted on 21.1.99 holding imputations No.I and VIII in su pport of the charge levelled to be not proved and imputation No.V to be partiall y proved. In the report of enquiry, imputation Nos.II, III, IV, VI and VII were held to be proved. The disciplinary authority on consideration of the report of enquiry informed the respondent petitioner by letter dated 9.4.99 that while the findings of the enquiry officer with regard to imputation Nos.II, III, IV, VI & VII was being concurred, imputation Nos.I and VIII was proposed to be held as p roved and the charges levelled as a whole to be proved against the respondent pe titioner. The respondent-petitioner was granted liberty to file a reply in the m atter for which purpose a copy of the enquiry report was also furnished to him. 6. The respondent-petitioner submitted his reply on 29.5.99. Thereafter, b y order dated 23.2.2000, the penalty of dismissal from service with effect from 31.3.98 was imposed on the respondent petitioner. The appeal filed by the respon dent petitioner was rejected which order was communicated to him by letter dated 6.11.2001. As a consequence of the imposition of the penalty of dismissal the p ensionary benefits of the respondent petitioner have been denied along with the employer’s contribution in the provident fund account of the respondent petition er. Aggrieved, the writ petition out of which this writ appeal had arisen was fi led. 7. Several arguments and contentions were advanced on behalf of the respond ent petitioner before the learned Single Judge in support of the challenge made in the writ petition. The charge levelled was contended to be vague and therefor e in contravention of Rule 68(2)(iii) of the Rules. It was contended that the ac ts attributed to the petitioner in the statement of imputations do not constitut e misconduct under Rule 50(4). It was also contended on behalf of the responden t-petitioner that the financial accommodation which formed the subject matter of the charge was provided to the customer on the basis of a decision taken by the Circle Credit Committee of which the respondent petitioner was one of the membe rs. It was also urged that the acts attributed to the respondent petitioner, at best, could be an error of judgment or a bona fide mistake or even negligence on his part but such acts cannot amount to misconduct under the Rules in force. Ar guments were also offered that the findings in respect of imputation Nos.II, III , IV, VI and VII are not sustainable on the materials on record and further that the disciplinary authority could not have unilaterally held imputation Nos.I a nd VIII to be proved as has been done in the present case. 8. However, the main thrust of the arguments advanced before the learned Si ngle Judge, on behalf of the respondent petitioner, pertained to the legality of the refusal of the Bank to furnish copies of the three documents sought for by him, initially, on the ground that such request was not justified and subsequent ly on the basis that the same were privileged documents. According to the respon dent petitioner, the aforesaid documents were reports submitted by different aut horities of the Bank with regard to the culpability of the respondent petitioner on the same charges as mentioned in the charge memo dated 21.3.98. The said rep orts were submitted in connection with certain preliminary enquiries in the matt er. It was, therefore, the contention of the respondent-petitioner that, regardl ess of the fact as to whether the documents in question were relied upon or not in bringing the charges against the respondent petitioner, the same were vital f or his defence and therefore under Rule 68(2)(ix)(b) of the Rules the respondent petitioner had a right to be furnished with the said documents. It was also urg ed that the claim of privilege made in the present case was wholly unfounded and untenable and in any case the affidavit claiming such privilege was filed by th e appellant-respondent No.5 who was not the competent authority to set up a clai m of privilege on behalf of the Bank. 9. The contentions advanced on behalf of respondent petitioner before the l earned Single Judge were contested by the present appellants by contending that the charge levelled against the respondent petitioner, based upon the statement of amputations of misconduct, leaves no room for doubt or ambiguity as to what h ad been alleged against the respondent petitioner. The contention that the imput ations held to be proved were contrary to the materials was hotly contested on b ehalf of the appellant Bank. Furthermore, in so far as the imputation Nos.I and VIII are concerned, the appellant respondents had contended that the materials o n record fully supported the finding reached by the disciplinary authority which was so reached after giving the respondent petitioner an opportunity to submit his reply. In so far as the three documents which were not furnished to the resp ondent petitioner, is concerned, the Bank had claimed privilege in respect of t he same. The said claim made under the proviso to Rule 68(2)(xii) was on the bas is that production of the documents in question would be against the interest of the Bank in question as said documents were in respect of matters pertaining to the internal working of the Bank. 10. The learned Single Judge, as evident from the order dated 16.2.2005 unde r challenge, after holding the charge levelled against the respondent petitioner to be sufficiently intelligible thought it proper to take up the issue pertaini ng to the documents sought for by the respondent petitioner and the consequent v iolation of Rule 68(2)(ix)(b) of the Rules. After an elaborate discussion the le arned Single Judge came to the conclusion that the claim of privilege in respect of the documents in question was not sustainable and that the said documents we re relevant to the defence of the respondent petitioner in the enquiry held. As the documents were not furnished to the respondent petitioner the learned Singl e Judge thought it appropriate to hold that the mandate prescribed by Rule 68(2) (ix)(b) of the Rules had been breached in the present case. In view of the afore said conclusion reached, the learned Single Judge did not consider it necessary to go into the other issues raised by the parties. Accordingly, the order of dis missal was interfered with and directions for grant of consequential benefits we re issued. The correctness of the aforesaid view of the learned Single Judge has been raised in the appeal filed by the Bank. 11. As the charge levelled against the respondent petitioner and the imputat ions of misconduct have been set out in the judgment under appeal we do not prop ose to reproduce the same in the present order. However, on reading the charge l evelled and the imputations of misconduct in support thereof, we feel fortified to express our agreement with the essence of the charge read with the imputation s of misconduct as summarized by the learned Single Judge in paragraph 33 of the order which is reproduced below:- 33. The essence of the charge and the imputations of misconduct against the petitioner is that by disregarding the negative recommendations of the Deputy Ge neral Manager and other infirmities featuring in the export bill purchase propos al, he instead of making a detailed review of the accounts of the Group of Compa nies involved and without dealing with the issue himself (as it was within his discretionary powers) got the matter referred to the committee by circumventing the procedure for seeking its views regarding acceptability of the proposal and thereby played the role of a facilitator for interplay of funds amongst the said Group of Companies. Further, though in the capacity of the General Manager (Com mercial Banking), Local Head office, he was aware of the irregular accounts of t he Group of Companies involved and their falling financial condition, he played a decisive role in the process of consideration of the sanction proposals by the committee which readily endorsed his view in the matter. The imputations of per sonal connivance of the petitioner in getting the sanction proposal passed in fa vour of the Group of Companies involved was, therefore categorically made and is discernible from the supporting statement of allegations. The assertion of pers onal complicity and extra zealous role as a facilitator for purchasing the docum entary export bill and for sanction of financial limits to the Group of companie s facilitating interplay of funds not permissible under the bank’s guidelines is therefore the gravamen of the charge. 12. Having understood the essence of the charge levelled against the respond ent petitioner in the above manner, we may indicate that the only point that wou ld require our consideration in the present appeal is whether the Bank was justi fied in not furnishing the three documents in question to the respondent petitio ner and if not whether the enquiry was held in infraction of Rule 68(2)(ix)(b) o f the Rules. 13. Before delving into a consideration of the above question it must be not iced that before the learned Single Judge the documents in respect of which priv ilege was claimed had not been produced by the appellant Bank. The learned Singl e Judge, therefore, had to record his findings on the issue on a consideration o f the affidavit filed on behalf of the Bank. Relying on the several decisions of the Apex Court referred to in the order dated 16.12.2005 the learned Single Jud ge came to the conclusion that even if the documents in respect of which privile ge is claimed pertains to the affairs of the State the claim of privilege was re quired to be raised before the Court by the Head of the Department which not hav ing been done in the present case the claim of privilege was unsustainable. The learned Single Judge also took note of the fact that in the affidavit filed, tho ugh the Bank had denied the claim of the petitioner of being absolved in two out of the three reports in respect of which inspection was sought by the petitione r, the fact that the said preliminary enquiries were conducted in respect of the same subject matter as involved in the disciplinary proceeding against the peti tioner was admitted by the Bank. On the basis of the said findings recorded the learned Single Judge thought it proper to arrive at the conclusion that the docu ments sought for by the respondent petitioner were relevant and, therefore, the enquiry conducted by denying him the said documents was in breach of Rule 68(2)( ix)(b) of the Rules. 14. The position before us, however, is a little different. Copies of the th ree documents sought for by the respondent petitioner have been placed before th e Court by the learned counsel for the appellant-Bank who has reiterated the cla im of privilege besides arguing that in any event the learned Single Judge, afte r finding fault with the enquiry, could not have passed orders for grant of cons equential benefits to the respondent petitioner. According to the learned couns el, the learned Single Judge should have remitted the matter for a de novo enqui ry. 15. The arguments advanced on behalf of the respondent petitioner before us, in reply, need not be set out in details as the same are a reiteration of the a rguments made before the learned Single Judge which have already been noted. 16. We have read and considered the report of Sri P. N. Bhatt, General Manag er 9I & A); the report of Shri A. W. Siddiqui, General Manager (OMD) and the let ter of Shri D. P. Srivastava, Chief General Manager, which have been placed befo re us by the learned counsel appearing for the appellant Bank. On reading the af oresaid reports we are left with no doubt that the said reports deal with the co nduct and liability of the respondent petitioner in respect of the very same tra nsactions that were enquired into in the departmental proceeding against the res pondent petitioner. Our reading of the reports in question also make it clear th at in the report of Sri P. N. Bhatt the respondent petitioner has been exonerate d from any liability. Similarly, in the report of Shri A. W. Siddiqui though the transactions with the customer have been found to be reflective of some soft pa ddling, the sole liability of any single individual had been ruled out. The lett er of Shri D. P. Srivastava placed before us does not indict the respondent peti tioner in any manner but merely suggests for consideration of the Managing Direc tor of the Bank as to whether the respondent petitioner should be allowed to con tinue to work in Guwahati. It may also be noticed at this stage that though the report of Sri P. N. Bhatt is undated the report of Sri A.W. Siddiqui is dated 13 .3.98 and the letter of Sri D. P. Srivastava to the Managing Director of the Ban k is dated 31.7.97. The aforesaid three reports read by us contain details of th e manner in which the transactions with the customer in question were concluded and the extent of the exposure of the Bank pursuant to the transactions in quest ion. 17. If, as already found by us, the contents of the three documents pertain to details of the manner in which the transactions in question were entered into with the customer and the role of the different Bank officials in course of the said transactions, it is difficult for us to visualize as to how publication of the said facts can be held to be contrary to the interest of the Bank which is the basis on which privilege has been claimed. Such facts are bound to be reveal ed in any regular enquiry held in respect of the transactions in question- which is what had happened in the present case as evident from the report of enquiry dated 21.1.99. In such a situation if the three reports deal with the very same transactions which had formed the basis of the subject matter of the departmenta l proceeding against the respondent petitioner and the contents thereof being wh at has already been noticed the finding that must be reached is that the said do cuments were highly relevant to the possible defences that the respondent petiti oner could have taken on the basis thereof. The said documents having been denie d to the respondent petitioner, clearly, Rule 68(2)(ix)(b) of the Rules has been breached while holding the enquiry against him. Consequently the impugned penal ty imposed on the respondent-petitioner will be legally fragile. We, therefore, affirm the findings of the learned Single Judge, though, on a slightly different basis. 18. The next question that has to engage our attention is whether the learne d Single Judge was justified in directing consequential benefits to the responde nt petitioner following the interference made with the order of penalty on the g round that the enquiry was held in infraction of Rule 68(2)(ix)(b) of the Rules. Our answer to the above question, for reasons obvious, has to be in the negativ e. If the departmental proceeding against a delinquent is invalidated on account of an infraction of the Rules laying down the manner of holding the enquiry the reby resulting in denial of fair opportunity, as in the present case, the discip linary authority cannot be denied the option of having a fresh enquiry, if it is so inclined. The direction for consequential benefits in the order of the learn ed Single Judge dated 16.2.2005, therefore, is open for interference. 19. However, Sri K. N. Choudhury, learned counsel for the respondent petitio ner, has submitted that the respondent petitioner, as on date, is suffering from cancer and is bed ridden and will not be in a position to face a fresh enquiry. Sri Choudhury has submitted that, if required, an affidavit to the above effect may be allowed to be brought on record along with supporting documents. 20. We do not, for a moment, have any reason to doubt the facts stated by Sr i Choudhury as in our comprehension it is inconceivable that a human would attem pt to take advantage of what even medical science has acknowledged to be an inst ance of human tragedy. In such circumstances, filing of affidavits would have on ly delayed the matter. 21. The fresh round of enquiry that can be ordered by the disciplinary autho rity is surrounded by several uncertainties. Such an enquiry may not be consider ed feasible by the disciplinary authority itself on account of the long efflux o f time or on any other valid ground. Alternatively, if such an enquiry is to be held, the respondent petitioner may be fully exonerated therein. Alternatively, he may be found guilty of the charge levelled leading to imposition of any of th e prescribed penalties at the discretion of the disciplinary authority. Taking i nto account all the aforesaid uncertainties and the present predicament of the r espondent petitioner, we are of the view that the ends of justice will be best s erved if the order of consequential benefits directed by the learned Single Judg e is maintained subject to the condition that the quantum thereof will be restri cted to 75% of the amount actually found due. 22. The writ appeal, consequently, is disposed of in the above terms.