Case: P.D. Agrawal Vs. State Bank Of India

2. One Shri R.K. Sharma, Branch Manager, having been abused and threatened to be hit by shoes by the Appellant, lodged two First Information Reports (FIR) against the Appellant pursuant whereto two cases under Section 353 of the Indian Penal Code were initiated in respect of the incidents which took place on 16.10.1986 and 23.10.1986. He was placed under suspension by an order dated 11.11.1986 by the Disciplinary Authorityhas been reported that soon after your reinstatement on 16th August, 1986 on conclusion of major penalty proceedings against you, you again misbehaved with your colleagues, senior officer and also some of the outsiders and used abusive language passing derogatory remarks during your recent stay at different branches viz. Katni Market, Churcha and Shahdol branches. This has tarnished the image of the bank and resulted in your arrest by the local police on 16th October, 1986 and thereafter on 23rd October, 1986 under sections 353, 448 and 506 of Indian Penal Code. The nature and extent of the misbehaviour indicates that the established authorities of the Bank and certain other functionaries in the Regional Office and engendering indiscipline amongst the staff.He was, however, acquitted of the charges levelled against him in the criminal proceedings by a learned Judicial Magistrate by a judgment dated 7.5.1988, inter alia, on the ground that the same could not be proved beyond reasonable doubt.4. The Disciplinary Authority thereafter issued a charge sheet against him for his purported misbehaviour during the period 8.9.1986 to 27.9.1986 to which we have referred to hereinbefore. An Inquiry Officer was appointed to enquire into the said charges. Before the said Inquiry Officer several witnesses were examined. In relation to each of the charges, the witnesses, indisputably, were cross-examined. The Appellant also entered into defence and several documents on his behalf were exhibited.5. The Inquiry Officer considered all the materials brought on record, including the judgment passed in his favour in the criminal case. The Appellant was found guilty of all the charges except the charge No.2.6.The Disciplinary Authority, however, differed with the findings of the Inquiry Officer as regards the said charge No.2 and recommended for his dismissal from services to the Appointing AuthorityI am in agreement with the findings of the Inquiring Authority in respect of all the allegation/charges except allegations/charge No.2. In respect of allegation No.2, on perusal of deposition of Shri K.C. Tiwari (the maker of PEX-3) I find that DEX-1 was written by him under pressure of the charge sheeted official. Further PEX-4 was written by Shri Tiwari on receipt of the letter of Regional Office (DEX-3). However, nothing has been established during the course of the enquiry that the letter PEX-3 was written under pressure. Therefore, I am not in agreement with the Inquiring Authority that the letter (PEX-3) was not written of his own volition, and placing reliance on PEX- 3, I hold the allegation and the charge as fully proved.3. In this connection, I have also perused/examined and considered the past record of the official. I find that earlier also the official was placed under suspension for similar type of acts of misconduct and was proceeded against for major penalty. On conclusion of the enquiry he was inflicted upon the penalty of "Censure" by the Disciplinary Authority considering that he suffered mental agony and that the act was the first riotous act during his service and with a view to give him an opportunity to reform himself. Despite this, I find that the official has repeated such type of misconduct proving that the earlier decision of the Disciplinary Authority did not have any reformative impact upon the official.4. The ingredients of the proved/partly proved allegations/charges in the instant case are so grave that the official does not deserve to be continued in the Banks service. I, therefore, recommend that the penalty of "Removal from Banks service" as provided for in Rule No.49(g) of the State Bank of India (Supervising Staff) Service Rules may be inflicted upon the official treating his period of suspension as such. Accordingly, he will not be eligible for any back wages for the period of his suspension. The order shall be effective from the date of its receipt by the official.It is not disputed that the Disciplinary Authority, prior to making the said recommendations, did not assign any reason for expressing his difference of opinion with the Inquiry Officer as regard the said charge No.2, nor served the delinquent officer with a show cause nor he was served with a copy of the enquiry report. The Appointing Authority, however, relying on or on the basis of the said recommendations of the Disciplinary Authority, as also upon consideration of the materials on record, while forwarding a copy of the report of the Inquiry Officer, imposed upon the Appellant a punishment of removal from servicehave perused the records of the enquiry in its entirety and concur with the reasonings/findings recorded in the "Note" of the Disciplinary Authority. Accordingly, I am in agreement with the recommendations of the Disciplinary Authority that you do not deserve to be continued in the Banks service. I have, therefore, decided to inflict upon you the penalty of "Removal from service" in terms of Rule No.49(g) of the State Bank of India (Supervising Staff Service Rules governing your services in the Bank read with Rule No.50(3)(iii) ibid., which I hereby do. Further, you will also not be paid the salary and allowances for the period of your suspension except the subsistence allowance already paid to you, as the period of suspension has been treated as such by me. The order shall be effective from the date of receipt of this letter by you. Please note that a copy of this order is being placed in your service file.The Appellant herein, thereafter, preferred an appeal before the Appellate Authority. As regards the opinion of the Disciplinary Authority, so far as charge No.2 is concerned, heenquiring authority held this charge disproved but the disciplinary authority reversed the findings of E/A and deemed the charge as proved. The act of disciplinary authority having given weightage to the CSO pressure on BM Churcha requires to be reviewed in the light of the fact that the Regional Managers say in the matter was not considered the pressure to whom BM is subordinate but an OJM on deputation to the branch could pressurise the BM Churcha. The perusal of relative portion of enquiry proceedings will reveal that the entire issue was framed by BM Churcha on instance of the respective Regional Manager. It is, therefore, requested to your honour to take an independent view in the matter.No plea was raised by the Appellant that he was prejudiced in any manner either by reason of any delay, which might have taken place in holding the disciplinary proceeding, or by reason of the Disciplinary Authoritys dissatisfaction as regards thereto and/or non-grant of an opportunity of hearing to him. The said appeal, upon consideration of the contentions raised by the Appellant herein, was dismissed by the Appellate Authority by an order dated 16.6.1992and decency will have to be maintained at all costs and breach thereof will have to be severely dealt with. Further, the official was given an opportunity to reform himself on an earlier occasion but he failed to eschew his defiant attitude. I am, therefore, in full agreement with the appointing Authoritys decision to impose the exemplary punishment of removal from service on Shri Agarwal. However, to reduce the financial hardships faced by the appellant, I am inclined to consider the period of suspension from 11.11.1986 to 22.7.1990 on duty.He filed a writ petition questioning the legality of the said order, which was dismissed. A Letters Patent Appeal preferred by the Appellant thereagainst was also dismissed by a reasoned order.

Reasoning:
15.The pattern of charges against the Appellant, categorically point out to the fact that the Appellant had been misbehaving with the Regional Managers and other officers, as well as the customers not only while he was posted in different branches.Charge No.2 refers to an incident, which took place on 26.9.1986. The said charge, admittedly, was not proved. However, it is not disputed that in respect of charge No.1 witnesses were examined on behalf of the 1st Respondent. They were thoroughly cross-examined by the Appellant. Documentary evidences were also adduced by the parties. So far charge No.3 is concerned, only one witness was examined on behalf of the 1st Respondent. The Appellant therein exhibited four documents in support of his case. The 1st Respondent also exhibited some documents. Similarly, in relation to each other charge witnesses were examined on behalf of the 1st Respondent; they were cross-examined and documents were exhibited.17. The validity of the disciplinary proceeding and/or justifiability thereof on the ground of delay or otherwise had never been raised by the Appellant before any forum. It was not his case either before the Appellate Authority or before the High Court that by reason of any delay in initiating the disciplinary proceeding he had been prejudiced in any manner whatsoever. It may be true that delay itself may be a ground for arriving at a finding that enquiry proceeding was vitiated in the event it is shown that by reason thereof the delinquent officer has been prejudiced, but no such case was made out.The terms and conditions of the employees of the Respondent-Bank are governed by a statute. The Disciplinary Authority, by reason of the Rules framed, was delegated with the power of the Bank to initiate departmental proceeding against the delinquent officer and impose suitable punishment upon him, if the misconduct is proved. In this case concept of contract of personal service as is understood in common parlance is not applicable. The doctrine of condonation of misconduct so evolved by ordinary law of `master and servant is thus, not attracted in this case. Under the common law, as also the provisions contained in Section 14(1)(b) of the Specific Relief Act, a master was entitled to terminate the services of an erring employee at his sweet will. The dismissed employee could have sued his master only for damages and not for his reinstatement in service. It is only for the purpose of grant of damages, a declaration was required to be made that the termination of the service was illegal. Having regard to the said legal position, the doctrine of condonation of misconduct evolved, in terms whereof, it was impermissible for the master to allow an employee to continue in service for a long time despite his knowledge that he had committed a misconduct and then to turn round and contend that his services should have been terminated on the ground that he was guilty ofIn this case, as noticed hereinbefore, the Appellant did not raise the question of delay before any forum whatsoever. He did not raise such a question even before the Disciplinary Authority. He not only took part therein without any demur whatsoever, but, as noticed hereinbefore, crossexamined the witnesses and entered into the defence. The Principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change.Contention of Mr. Bobde in this behalf that he was not prejudiced thereby cannot be accepted. There has been a flagrant violation of principles of natural justice in so far as no show cause notice was issued to the Appellant by the Disciplinary Authority while differing with the findings of the Inquiry Officer as regard charge No.2. We would deal with this aspect of the matter a little later.36. However, the contention of Mr. Rao that only because a copy of the enquiry report was not furnished to the Appellant by the Disciplinary Authority, there has been a violation of the mandatory provisions of the regulations, cannot also be accepted for the reasons stated hereinafter.37. The order of punishment of removal against the Appellant was passed against the Appellant on 22nd July, 1990. The decision of this Court in Mohd. Ramzan Khan (supra), as noticed hereinbefore, was decided on 20th November, 1990 wherein the law laid down by this Court, while holding that a delinquent officer cannot be called upon to make a representation on the quantum of punishment without furnishing a copy of the enquiry report, was expressly given a prospective effect. It was, therefore, not at all necessary for the Disciplinary Authority, keeping in view the law as it then stood, to furnish a copy of the enquiry report to the Appellant.38. Decision of this Court in S.L. Kapoor vs. Jagmohan & Ors. [(1980) 4 SCC 379] , whereupon Mr. Rao placed strong reliance to contend that nonobservance of principle of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, has undergone a sea change. In view of the decision of this Court in State Bank of Patiala & Ors. vs. S.K. Sharma [(1996) 3 SCC 364] and Rajendra Singh vs. State of M.P. [(1996) 5 SCC 460] , the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula. [See Viveka Nand Sethi vs. Chairman, J. & K. Bank Ltd. & Ots. (2005) 5 SCC 337  and State of U.P. vs. Neeraj Awasthi & Ors. JT 2006 (1) SC 19 . See also Mohd. Sartaj vs. State of U.P. (2006) 1 SCALE 265.] 39. In Union of India & Anr. vs. Tulsi Ram Patel [(1985) Supp.2 SCR 131 : (1985) 3 SCC 398 ], whereupon again Mr. Rao placed strong reliance, this Court did not lay down a law in absolute terms that violation of principle of natural justice would be read into the equality clause contained in Article 14 of the Constitution of India. The said decision was rendered having regard to the fact that by taking recourse to the second proviso appended to Article 311 of Constitution of India, no disciplinary proceeding was to be initiated at all and an order of dismissal could be passed only on the basis of subjective satisfaction of the authority empowered to dismiss or remove a person or to reduce him in rank wherefor reason was to be recorded by it in writing that it was not reasonably practicable to hold a disciplinary proceeding.Yet again, in Sawarn Singh & Anr. vs. State of Punjab & Ors. [(1976) 2 SCC 868] , this CourtIn view of this, the deficiency or reference to some irrelevant matters in the order of the Commissioner, had not prejudiced the decision of the case on merits either at the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non- existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision.We are, therefore, of the opinion that charge No.2 being severable, this Court can proceed on the basis that the charges against the Appellant in respect of charge No.2 was not proved.