/ . M.P. No. 8697 of 1991 v V Sudhakar s/o Pundlik Koha't ’age- about r32 years, Occupatioh' Officer Juhior'i Management, State Bank of India, At Durg. Distt. Rajnandgaon. .i Pet iti‘oner VERSUS : t. 1. 'Skt‘berBank cf India; ‘ thrp'ugh its Chief 'hene'ral Manager, Lccal Head 0ffice, Bhopal. Respondents i. f Managing Directbr, 3ta’ce Bank of India, Central office, Bombay. PETITION UNDER ART. 226 and ggz OF Tm: CONSTITUTI a} v HIGH COURT OF CHHATTISGARH AT RFLASPUR Post for pronouncement ofjudgment & order on 2—.$Tday M of February, 201 1. Mr,” _ . 1 sdl— Satish K. Agnihotri I 7 Judge I v WRIT PETITION N0. 3697 of 1991 PETITIONFR : Sudhakar. VERSUS RESPONDENTS : State Bank of India & Another. HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION N0. 3697 of 1991 PETITIONER Sudhakar. VERSUS RESPONDENTS State Bank of India & Another. PETITION UNDER ART. 226 AND 227 OF THE CONSTITUTION SB: Hon’ble Shri Satish K. Agnihotri, J. Present: Shri Shrijith C.S.Nair, Advocate for the petitioner. Shri V.R.TiWari, Advocate for the respondents. (Delivered on ...¢2.—5’..7§ay of February, 201 1) 1. Initially, this petition was filed before the High Court of Madhya Pradesh, Jabalpur as M.P. No. 3697/1991. After re-organization of the State of Madhya Pradesh under the provisions of Madhya Pradesh Reorganization Act, 2000, this petition was transferred to the State of Chhattisgarh and_was registered as W.P. No. 3697/1991. Challenge in this petition is to the legality and validity of the order dated 26.12.1990 (Annexure-10) whereby the Chief General Manager and Appointing Authority, agreeing with the findings/recommendations recorded by the Disciplinary Authority, imposed a penalty of bringing down by two stages in the pay scale in terms of Rule No. 49(e) and 50(3)(iii) of the State Bank of India (Supervising Staff) Service Rules (for short ‘the Rules’). Accordingly, the basic pay was reduced from Rs. 3540/— to Rs. 3300/—. Further challenge is to the enquiry report dated 15.1 1.1990 ‘(Annexure—9) and also the order dated 09.09.1991(Annexure-15), with a direction to release the salary for the period from 25.07.1988 to 11,12.1988. 2. The facts, in brief, as projected by the petitioner are that the petitioner while working as Officer, Junior Management, sought transfer from Rajnandgaon to any place near Nagpur as his Wife was a chronic patient of Schizophrenia and required examination and medication regularly at Nagpur. The request of the petitioner was not acceded to. Thus, the petitioner preferred a writ petition, being M.P. No. 3483/86, before the High Court of Madhya Pradesh at Jabalpur seeking quashing of the false, frivolous and baseless entries in his character roll and further prayed for a direction to transfer the petitioner, as aforestated. The High Court of Madhya Pradesh, by order dated 03.08.1988, directed to maintain status quo as obtained on 03.08.1988 in respect of his placement. The petitioner was, in the meantime, transferred to Bodla, a Village Branch. The petitioner, thus, moved an application for amendment on 01.08.1988 being LA. No. 5427/88, in the pending writ petition, which was allowed on 03.08.1988. On the basis of the order dated 03.08.1988, the petitioner approached the original office at Rajnandgaon on 08.08.1988, but he was not allowed to join and was asked to contact the Regional Manager at Raipur. He reported the Regional Manager on 08.08.1988. The petitioner was not allowed to join and he was directed to join at Pandhurna, where he was transferred. The petitioner made another application to the High Court seeking a direction against the respondents to permit the petitioner to join at Pandhurna or at Rajnandgaon. The order dated 03.08.1988 of the High Court was modified on 14.09.1988 (Annexure—2). The Court held as under: “Since the matter relates only to the etitioner’s transfer from Rajnandgaon to Bodla, we need not adjudicate upon any other directions. 1f the petitioner feels that the order or transfer to Bodla still stands he shall be at liberty to go and join at Bodla. However during this period he may either join at the new place or may question that order of transfer. This Court can pass no such order as prayed for. If the petitioner is interested in getting the order vacated, he may take necessary steps. We are unable to exceed to the petitioner’s request for issuance of direction as prayed in the application. The application is accordingly rejected. ” Thereafter, one more application was moved for modification which was rejected on 17.1 1.1988 holding as under: “It is difficult to accept this submission for the reason that the order dated 3.8‘1988 to maintain status quo appears to have been passed for the reason that the petitioner did not bring to the notice of the Bench that the order of transfer has already been given effect to. The order of transfer was passed on 8.7.88 and served upon the petitioner on 18.7.88 on which date the petitioner was relieved. This position has not been disputed before us. In these circumstances the question of stay 0r to maintain status quo as on 3.8.1988 did not arise. In view of the aforementioned facts, the application under consideration is rejected and the order of stay dated 3.8.1988 to maintain status quo is also withdrawn.” 4. The petitioner joined the branch at Bodla on 12.08.1988 and thereafter, filed an application alongwith joining report for grant of leave from 3.12.1988 to 09.12.1988. A disciplinary proceeding thereafter was initiated against the petitioner on 15.10.1990 for misconduct of the petitioner, in obtaining status quo on concealing p the facts of his relieving, before the High Court, on the following charges: “With an intention to cause embrassment to your Controlling Authority, you willfully acted in the manner detailed herein. You deliberately failed to comply with the orders issued to you by your Controlling Authority, exhibiting gross insubordination. You thus contravened Rule N0. 32(1) & (4) of the State Bank of India (Supervising Staff) Service Rules governing your service in the Bank. Unmindful of Bank’s image and the inconvenience caused to the public, you willfully acted in a manner stated herein. Besides containing baseless allegation, against the Bank the said letter also indicated defiant, disobedient, derogatory and exhibiting willful insubordination and deliberate contempt of the Controlling Authority and lack of decorum on your part. You thus contravened Rule No. 32(4) governing your services in the Bank. By remaining unauthorisedly absent from duties you contravened Rule No. 40(1) of the State Bank of India (Supervising Staff) Service Rules governing your services in the Bank.” 5. The enquiry was initiated. The petitioner sought permission to be represented through- his lawyer but the same was declined. The documents demanded by him were also not produced. The Enquiry Officer submitted Enquiry Report on 15.11.1990 and on the basis of said report, the impugned order dated 26.12.1990 was passed. 6‘ Shri Nair, learned counsel appearing for the petitioner would submit that the respondent No. 1 concurred with the Enquiry Report, without dealing independently, the material facts and passed the impugned order of punishment. The petitioner was not afforded any opportunity of hearing as required under Rule 50(3)(ii) of the Rules. Thereafter, the petitioner made a representation to the respondent No. 2 which was treated as an My? appeal (Annexure-ll). The request for permission t0 engage a pleader in the enquiry and before the authorities, was also not allowed. Ultimately, the appeal was rejected by order dated 09.09.1991 (Annexure-IS). The petitioner was not afforded reasonable or any opportunity of hearingr The petitioner has been punished for the simple reason that he had approached the High Court seeking expunging of the adverse entries made in the character roll. The enquiry was Vitiated as it was pre—decided to punish the petitioner. Even, one Mr. P.R.Agrawa1 had also threatened the petitioner which was not taken cognizance of. Denial of the assistance of lawyer in the departmental enquiry also Vitiates the total enquiry. The statement of charges were not properly considered by the Enquiry Officer. The allegation of insubordination is without any basis as the petitioner has every right to take recourse to the Courts and the respondents were duly noticed before any order was passed. The charges of giving false statement and obtaining stay order cannot be a subject matter of enquiry as the same was allegedly done before the High Court and the High Court alone had the competence to take action, if a false statement was given in the Court Other allegations of not handing over the key is also frivolous as there is no practice of getting acknowledgment after hading over the keys. The keys were handed over as stated in the reply also. Even otherwise, duplicate keys were available with the respondents. Thus, it was not difficult for the authorities to open the clearing box as alleged. The allegation of indecent and derogatory language cannot be mixed with the A6 ‘ 6 charge of not handing over the keys. It clgarly indicates the vindictive attitude of the bank—authorities. 7. On the other hand, Shri V.R.Tiwari, learned counsel appearing on behalf of Shri B.D.Guru, learned Advocate for the respondent- Bank would submit that all the charges leveled against the petitioner were fully proved and the disciplinary authority, after perusing the entire report and agreeing with the findings passed the order in accordance with law. The same was maintained by the Appellate Authority. The Enquiry Officer has recorded reasons for coming to the conclusion that the charges leveled against the petitioner were proved. So far as rejection of the request of the petitioner for engaging a lawyer to defend his case is concerned; in a departmental proceeding, if the management is not assisted by a lawyer on its behalf, the delinquent employee has no right to represent his case through a lawyer or assisted by the lawyer. Shri Tiwari would rely on a decision of the Supreme Court in Crescent Dyes and Chemicals Ltd. v. Ram Naresh Trzpathz'l and National Seeds Corpn. Ltd. v. K. VRama Reddy2. Shri Tiwari would further submit that the petitioner has not pointed out any infirmity, specifically on that any conclusion has been reached by the Enquiry Officer without supplying the relevant documents on considering the case of the petitioner. Thus, the scope ofjudicial review is limited. In support of his contention, Shri Tiwari would rely on a decision of the Supreme Court in State of T.N. v. Thiru I (l993)2 SCC l 15 (2006) 11 scc 645 Z KVPerumal & Others3 and State of U.P. & Others v‘ Ramesh Chandra Mangalik4. 8. Having heard rival contentions of learned counsel appearing for the parties, perused the pleadings and documents appended thereto, it is not disputed that all the charges leveled against the petitioner have been found proved. However, the question arises with regard to allegation No. 1 asto whether if the petitioner has obtained interim order, which was vacated subsequently by the High Court on submission of the correct facts, amounts to insubordination and further, whether the said charge can be framed against the employee without liberty obtained from the Court. The High Court, in its order dated 17.11.1988 has already considered the facts of submission of not bringing true facts to the notice of the Bench and passed the order dated 17.1 1.1988 (Annexure—3), which reads as under: “l7.l 1.88 Shri B.B.Shende for the petitioner. Shri Shrouti and Shri Atul Awasthy for the respondent. They are heard on LA. No. 8172/88 for modification of order of stay passed on 3.8.1988. 1t may be pointed out that although the order dated 3.8.1988 stands modified by order dated 14.9.88 yet the learned counsel for the petitioner has filed this application for iiirther modification. It is submitted by the counsel that if the petitioner is made to carry out the order of transfer from Rajnandgaon to Bodla it will cause a great hardship to him. By order dated 3.8.1988, this Court had directed to maintain status quo. Learned counsel for the petitioner submits that this order be clarified by specifically saying that the petitioner shall remain posted at his original place of posting. It is difficult to accept 3 4 (1996) 5 SCC 474 (2002) 3 SCC 443 this submission for the reason that the order dated 3.8.1988 to maintain status quo appears to have been passed for the reason that the petitioner did not bring to the notice of the Bench that the order of transfer has already been given effect to. The order of transfer was passed on 8.7.88 and served upon the petitioner on 187.88 on which date the petitioner was relieved. This position has not been disputed before us. In these circumstances the question of stay or to maintain status quo as on 3.8.1988 did not arise. In view of the aforementioned facts, the application under consideration is rejected and the order of stay dated 3.811988 to maintain status quo is also withdrawn. CC today. Sd/— Faizarnuddin Sd/- K.K.Adhikari Judge Judge” As such, the interim order dated 03.08. 1988 to maintain status quo was withdrawn. There was no liberty either prayed by the respondent authorities or granted by the Court to initiate a proceeding against the petitioner for not bringing the correct facts to the knowledge of the Hon’ble Bench, hearing the matter. Thus, the allegation and article of charges in support of charge No. 1 is vitiated in the eye of law. The allegation No. 1 reads as under: “In terms of Regional office letter No. ta?! (Hz-if Rm? ) 1309 t dated 8m July 1988, the Branch Manager Rajnandgaon relieved you for Bodla Branch on 18.7.88. You did not report for duty at Bodla Branch. You moved an application in the Jabalpur High Court for amendments in the Writ Petition No. 3483 of 1987 filed by you seeking to quash the order of transfer dated 18.7.88 on the grounds that the order dated 18.7.88 is illegal, it being malafide vindictive and made only by way of punishment to harass the petitioner as he had invoked the jurisdiction of the Honourable High Court. You obtained the stay order on 3.8.88 by giving false evidence on oath against the bank intentionally. Later, when the Bank clarified the position, the stay order was vacated by the High Court. The court mentioned in its judgment dated 24.11.88 that the petitioner did not bring to the notice of the bench that the order of transfer was passed on 8.7.88 and served upon the petitioner on 18.7.88. You thus concealed material fact from the court before which the Bank was impleaded as respondent.” Rule 32(1) and (4 of the Rules do not provide that going to the ) Judicial Court and making some wrong statement before the Court amounts to misconduct or insubordination. Rule 32(1) and (4) of the Rules, reads as under: “32. (l) Every employee shall conform to and abide by these rules and shall observe, comply with and obey all lawful and reasonable orders and directions which may from time to time be given to him by any person under whose jurisdiction, superintendence or control he may for the time being be placed. xxx xxx xxx XXX XXX XXX (4) Every employee shall, at all times, take all possible steps to ensure and protect the interest of the Bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of a bank official. XXX XXX XXX a: XXX XXX XXX 10. The term ‘insubordination’ as defined in Advanced Law Lexicon, P. Ramnath Az‘yar, 3rd Edition, 2005, reads as under: “insubordination. The word ‘insubordination’ means unwillingness to submit to authority; disobedience to orders, inhaction of rules, or generally disaffected attitude towards authority. (Webster’s Third New International Dictionary) ‘Insubordination’ means a refusal to subordinate oneself to authority, and it does not follow that mere failure to obey an order amounts to insubordination. R v. Grant, (1957) 2 All ER 694, 696 (Court Martial Appeal Court). [Anny Act, (1955), S. 7] A Government official who makes no bones about leveling charges against his superiors and does not even spare the Head of the State is too insubordinate in his look and behaviour to be tolerated by any administration. R.L.Gupta v. State, AIR 1954 HP 1. The quality or state of being insubordinate; defiance of authority, disobedience of superior authority. [S. 138, IPC (45 of 1860)]” 11. Thus, invocation of Rule 32(1) and (4) of the Rules to bring the conduct of the petitioner as stated in the allegation No. 1, does not come Within the definition of “insubordination 93 . 12. The Supreme Court, in Pratap Singh & Another v. Gurbaksh Singhj, observed as under: “The emphasis, it is stated, is on propriety and discipline in the conduct of a Government servant; and it has been submitted that judged from that point of view, the circular letter cannot be said to constitutean interference with the course of justice in any Court of law. Theoretically and in the abstract, this may be true; and if the circular letter merely lays down that ordinarily a Government servant should exhaust I his departmental remedies before going to the Court of law, no objection can be taken to it. Speaking generally, a Government servant does not ordinarily go to Court, unless and until he‘ fails to get what he considers to be justice from the departmental authorities. But we have to consider in this case a somewhat different problem, namely, the action taken against the respondent during a pending litigation, as though going to a Court of law before exhausting departmental remedies must in all cases be visited with punishmen .” l3. does not come within the purview of insubordination and as such, charge No. 1 is unfounded, illegal and is accordingly quashed. 14. So far as charge No. 2 is concerned, the same have been found proved fully to the extent that the C.S.O. has acted in a manner Thus, the action of the petitioner by approaching the High Court \be (v 49 c 167) “1/3“ X 11 unbecoming 0f a Bank’s official and that he had contravened Rule 32(4) of the Rules. With regard to charge No. 3 that he remained absent from duties from 25.7.1988 to 10.12.1988 has also been found proved. The petitioner is unable to establish that the petitioner was prejudiced in the departmental enquiry as neither he was not afforded an opportunity of hearing nor relevant documents as demanded by the petitioner was not made available to the petitioner. With regard to the contention of the petitioner that he was not supplied all the documents, in State of T.N.3, the Supreme Court has observed as under: “4. ...Now remains only the third ground, viz., the non-furnishing of the documents asked for by the respondent. The Tribunal seems to be un'der the impression that the inquiry officer/disciplinary authority is bound to supply each and every document that may be asked for by the delinquent officer/employee. It is wrong there. Their duty is only to supply relevant documents and not each and every document asked for by the delinquent officer/employee. . .” 16. The ratio laid down in the aforesaid case viz. State of TN.3 was referred with approval by the Supreme Court in Ramesh Chandra Mangalz'k", observed as under: “1 1. Learnedcounsel for the appellant has further submitted that particular documents, copies of which are said to have not been supplied are not indicated by the respondent, much less in the order of the High Court nor has their relevance been pointed out. The submission is that the delinquent will also have to show as to in what manner any particular. document was relevant in connection with the inquiry and what prejudice was caused to him by non-furnishing of a copy of the document. In support of this contention, reliance has been placed upon a case reported in Chandrama Tewari v. Union oflndia It has been x( 15. 12 observed in this case that the obligation to supply copies of documents is confined only to material and relevant documents which may have been relied upon in support of the charges It is further observed that if a document even though mentioned in the memo of charges, has no bearing on the charges or if it is not relied upon or it may not be necessary for cross-examination of any witness, non-supply of such a document will not cause any prejudice to the delinquent. The inquiry would not be vitiated in such circumstances. In State of T.N. v. Thiru KVPerumal relied upon by the appellant, it is held that it is for the delinquent to show the relevance of a document a copy of which he insists to be supplied to him. Prejudice caused by non-supply of document has also to be seen. In yet another case relied upon by the learned counsel for the appellant, reported in State 0f U.P. v. Harendra Arora it has been held that a delinquent must show the prejudice caused to him by non—supply of a copy of the document where order of punishment is challenged on that ground.” ‘L, r In view of the foregoing, the Supreme Court held as under: “12....We therefore find that the finding of the High Court that the principles of natural justice have been violated for non-supply of documents to the respondent is not sustainable.” Having regard to the well settled principles of law, the contention of the petitioner that he was not supplied documents, without pointing out any specific document which was not supplied and finding has been recorded on the basis of the said unsupplied documents,is rejected. Further, he has failed to show that any prejudice has been caused to him by non-supply of a copy of the document. 18. The next question that the petitioner was not allowed to be represented through a Lawyer is noticed to be rejected as aw in l 13 this regard is well settled. The Supreme Court, in Crescent Dyes and Chemicals Ltd], in respect of engagement of a counsel during the disciplinary proceeding, has held as under: “11. A delinquent appearing before a Tribunal may feel that the right to representation is implied in the larger entitlement of a fair hearing based on the rule of natural justice. He may, therefore, feel that refusal to be represented by an agent of his choice would tantamount to denial of natural justice. Ordinarily it is considered desirable not to restrict this right of representation by counsel or an agent of one’s choice but it is a different thing to say that such a right is an element of the principles of natural justice and denial thereof would invalidate the enquiry.” The case of Crescent Dyes and Chemicals Ltd], was referred with approval in National Seeds Corporation Ltd2, wherein the Supreme Court held as under: “9. Though it is correct, as submitted by learned counsel for the respondent, that even if the presenting officer is not a legal practitioner, the disciplinary authority having regard to the circumstances of the case may permit engagement of a legal practitioner. But it would depend upon the factual scenario.” 20. Contention of the petitioner that he is entitled to notice even if the Disciplinary Authority has concurred with the findings recorded by the Enquiry Officer, in terms of the provisions of Rule 50(3)(ii) of the Rules and as such for.want of opportunity of hearing before accepting the enquiry report, the punishment is vitiated. 21. The Supreme Court, in Punjab National Bank & Others v. Kunj ’Behari Misra6, held as under: “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority 0n any article of charge, then before it records its own findings on \, \ \ \CC 84 14 such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to