THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.3270 OF 2008 DATED 25TH OCTOBER, 2010 BETWEEN Jayanth Selmoker … Petitioner And State Bank of Hyderabad, Rep. by its Managing Director, Head Officer, Gunfoundry, Hyderabad – 500 001 and Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.3270 OF 2008 ORDER: The petitioner, an officer in the State Bank of Hyderabad of the rank of Junior Management Grade Scale-I, was compulsorily retired from service under proceedings of the disciplinary authority, the General Manager (Operations) of the Bank, in Ref: No.DPD/770 dated 12.09.2007. Thereby, the period of his suspension was directed to be treated as off duty and he was held ineligible for any payment other than subsistence allowance during the said period. He was also held disentitled to increments during his suspension. The proceedings dated 12.09.2007 indicate that the disciplinary authority concurred with the findings of the inquiring authority that six of the seven charges levelled against the petitioner were duly proved and one, Imputation- 2(c), was partly proved. Thereupon, the petitioner preferred an appeal to the Chief General Manager of the Bank, the appellate authority, which was dismissed by order dated 05.12.2007. Relevant to note, the petitioner’s appeal was relatable to Regulation 70 of the State Bank of Hyderabad (Officers) Service Regulations, 1979 (for brevity, ‘the Regulations of 1979’). These Regulations trace their origin to Section 63 of the State Bank of India (Subsidiary Banks) Act, 1959 and are therefore statutory in nature. Regulation 70 of the Regulations of 1979, to the extent relevant, reads as under: “70(1) An officer may appeal to the Appellate Authority against an order imposing upon him any of the penalties specified in regulation 67 against the order of suspension referred to in regulation 69. (2) An appeal shall be preferred within 45 days from the date of the receipt of the order appealed against. The appeal shall be addressed to the Appellate Authority and submitted to the authority whose order is appealed against. The officer may, if he so desires, submit an advance copy to the Appellate Authority. The Appellate Authority shall consider whether the findings are justified and/or whether the penalty is excessive or inadequate and pass appropriate orders. The Appellate Authority may pass an order confirming, enhancing reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty or to any other authority with such directions as it deems fit in the circumstances of the case.” The appellate authority was therefore enjoined by the above Regulation to consider: (i) whether the findings recorded against the petitioner by the inquiring authority and affirmed by the disciplinary authority were justified and/or (ii) whether the punishment was excessive or inadequate. However, the treatment of the petitioner’s appeal by the appellate authority, as reflected in the order dated 05.12.2007, falls far short of the requirements posited by the above Regulation. The appellate authority baldly stated that the petitioner had committed the enumerated irregularities and merely extracted the seven charges framed against him. The lack of application of mind by the appellate authority was carried to such an extent that he even failed to notice that part of Imputation 2(c) was held not proved by the inquiring authority as well as the disciplinary authority. Thereafter, the appellate authority thought it fit to sum up as under: “3. As no extenuating factors are brought out in the appeal preferred by the official necessitating reconsideration of the penalty imposed by the Disciplinary Authority/General Manager (Ops.), I dismiss the appeal and uphold the orders of the Disciplinary Authority against the official and order accordingly.” Without first inquiring into the justification underlying the findings recorded against the petitioner, the appellate authority ought not to have gone to the next step. However, the appellate authority, ignoring this aspect, straight away stated that no extenuating factors were established warranting reconsideration of the penalty imposed on the petitioner. Pertinent to note, the petitioner had raised detailed grounds of appeal running into seven pages which required to be considered by the appellate authority in the context of the factual findings recorded by the inquiring authority against the petitioner which were accepted by the disciplinary authority. No such exercise, however, was undertaken by the appellate authority. Sri A.Krishnam Raju, learned standing counsel for the Bank, sought to support the appellate authority’s order. He contended that as a quasi-judicial authority untrained in legal process, the appellate authority was not required to pass an elaborate order or answer in detail each and every contention raised by the petitioner in his appeal. There is no dispute with this proposition. However, once a statutory right of appeal was created under the Bank’s Regulations, the petitioner stood vested with a substantive right to have his appeal decided on merits, that is, with due consideration of the main points raised by him in the appeal. As pointed out by the learned standing counsel, it may not be necessary for the appellate authority to deal in extenso with each and every contention raised in such appeal but in the present case, not even a single contention has been dealt with by the appellate authority! I n SHIV SHAKTI CO-OPERATIVE HOUSING SOCIETY v. SWARAJ DEVELOPERS[1], the Supreme Court observed to the effect that it is a fairly well settled proposition that the right of appeal, once provided, is a substantive right and is a matter of substance and not of procedure. An appeal was held to be a continuation of the original proceedings. The observations of the Court in this regard are of guidance: “17. Right of appeal is statutory. Right of appeal inhered in no one. When conferred by statute it becomes a vested right. In this regard there is essential distinction between right of appeal and right of suit. Where there is inherent right in every person to file a suit and for its maintainability it requires no authority of law, appeal requires so. As was observed in State of Kerala v. K.M.Charia Abdulla and Co.[2] the distinction between right of appeal and revision is based on differences implicit in the two expressions. An appeal is continuation of the proceedings; in effect the entire proceedings are before the Appellate Authority and it has the power to review the evidence subject to statutory limitations prescribed. But in the case of revision, whatever powers the revisional authority may or may not have, it has no power to review the evidence, unless the statute expressly confers on it that power. It was noted by the four Judges Bench in Hari Shankar v. Rao Girdhari Lal Chowdhury[3] that the distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way, as has been done in second appeals arising under the Code. ………” The scope of examination and adjudication on facts in the petitioner’s appeal is manifest from the above judicial edict. Viewed thus, the shabby and perfunctory treatment of the petitioner’s appeal by the appellate authority, in effect, decimated his substantive statutory right. The learned standing counsel placed reliance on CANARA BANK v. V.K.AWASTHY[4] and more particularly para 17 thereof dealing with the ‘useless formality theory’. It is however to be noticed that the discussion of this theory was in the context of breach of the principles of natural justice and the Court was, in fact, of the opinion that it need not go into the said theory in detail. In the present case, the irregularity on the part of the Bank does not amount to mere violation of the principles of natural justice. The Bank failed to abide by its own statutory regulation which vested in the petitioner a substantive right of appeal. This substantive right could not have been whittled down by the shallow and superficial approach adopted by the appellate authority in dealing with the appeal. The order dated 05.12.2007 passed by the appellate authority, the Chief General Manager of the State Bank of Hyderabad, is therefore unsustainable in law and is accordingly set aside. The matter is remitted to the appellate authority for fresh consideration in accordance with Regulation 70(2) of the Regulations of 1979. Keeping in mind the passage of time, it is in the interest of both the parties that the issue be expeditiously settled. In that view of the matter, the appellate authority, the second respondent herein, is directed to consider and dispose of the appeal in accordance with law and the practice and procedure of the Bank as per the Regulations of 1979, within a period of three (3) months from the date of receipt of a copy of this order. The writ petition is disposed of with the above direction. No order as to costs. ____________________ SANJAY KUMAR, J. 25TH OCTOBER, 2010 VGSR/PGS [1] (2003) 6 SCC 659 [2] AIR 1965 SC 1585 [3] AIR 1963 SC 698 [4] (2005) 6 SCC 321