H. M. Trivedi v. UNION BANK OF INDIA — 1991 DIGILAW 361 (GUJ)

J. N. BHATT, J. ( 1 ) BY this petition under Article 226 of the Constitution of India, petitioner has questioned the order of dismissal from the service of the bank, passed on 5-9-1985. ( 2 ) A conspectus of the material facts giving rise to the present petition, may, shortly, be stated at the outset. The petitioner joined the services of the respondent-bank (Union Bank of India) as a Clerk, on 7-2-1966, and reached, in due course of time, to the post of Branch manager, in February 1983. In August 1984, the Inspection Team of the respondent Bank had inspected the sandhier Branch, where the petitioner had worked as Branch Manager. On 22-8-1984, the petitioner was summoned by the Inspection Team to Vihar Guest house, Surat, where statements of the petitioner were recorded, which, according to the petitioner, were obtained by coercion, in respect of the alleged acceptance of illegal gratification from various borrowers. ( 3 ) THE petitioner had served a notice to the respondent-bank, on 27-8-1984, instructing the respondent-bank to write off the statements on the ground that those statements were obtained from the petitioner under coercion and undue influence. It was denied by the respondent-bank that the said statements were taken under coercion or undue influence, as alleged. ( 4 ) THE respondent-bank was pleased to hold a departmental inquiry against the petitioner in connection with the alleged illegal actions of the petitioner. The respondent-bank had appointed an inquiry Officer, who, on completion of the inquiry, submitted an Inquiry Report to the Disciplinary Authority. The Inquiry officer had, ultimately, held the petitioner guilty of all the charges. It is one of the contentions of the petitioner that the disciplinary Authority had not furnished a copy of the Inquiry Report to the petitioner, enabling him to make an effective representation against the findings of the Inquiry Officer, before passing the impugned dismissal order by the Disciplinary Authority. The dismissal order passed by the respondent-bank is questioned on various grounds. ( 5 ) LEARNED Counsel for the petitioner has, firstly, contended that the impugned dismissal order cannot be sustained as the petitioner was not furnished with a copy of the Inquiry Report before the imposition of extreme penalty of dismissal from service. The dismissal order passed by the respondent-bank is questioned on various grounds. ( 5 ) LEARNED Counsel for the petitioner has, firstly, contended that the impugned dismissal order cannot be sustained as the petitioner was not furnished with a copy of the Inquiry Report before the imposition of extreme penalty of dismissal from service. This contention goes to the root of the matter and, therefore, it would not be necessary to examine other contentions raised on behalf of the petitioner about the legality and validity of the dismissal order. ( 6 ) THE aforesaid contention of non-supply of Inquiry Report to the petitioner, resulting into violation of the principles of natural justice, is, seriously, opposed by the learned Counsel for the respondent -bank. ( 7 ) THE first contention of the non-supply of the Inquiry Report to the delinquent (petitioner) before passing the order imposing the penalty is full of substance. It is contended on behalf of the respondent-bank that the non-supply of the Inquiry Report would not ipso facto lead to an inference of prejudice having been caused. This aspect requires to be, seriously, examined. ( 8 ) THERE is no dispute about the fact that the report of the Inquiry Officer was not given to the petitioner before imposition of penalty of dismissal, in the departmental Inquiry. Non-supply of inquiry Report at the pre-decisional stage would violate the principles of natural justice and fair play. This proposition of law is very much settled. It would not detain this Court any longer in view of the Division Bench decision of this Court in the case of T. S. Rabari v. Government of Gujarat reported in 1991 (2) GLR, 1035. It is clearly held by this Court in the above Division Bench decision that non-supply of Inquiry Report to the delinquent before passing any order of penalty would not be legal and valid and it would violate the principles of natural justice and fair play. The facts of the present case would, obviously, attract the ratio of the said decision. This case is squarely covered by the decision in T. S. Rabaris case (supra ). In view of the settled proposition of law, it is the duty of the employer or master to act fairly and reasonably and the duty to act fairly seems to connote an obligation to observe some act of rules of natural justice. This case is squarely covered by the decision in T. S. Rabaris case (supra ). In view of the settled proposition of law, it is the duty of the employer or master to act fairly and reasonably and the duty to act fairly seems to connote an obligation to observe some act of rules of natural justice. The case of the petitioner is governed by the ratio of the aforesaid decision of this court. ( 9 ) HOWEVER, it is contended that the question of prejudice having been caused or the aspect of prejudice was not in the focus of the said case. The learned counsel for the petitioner has also, fairly, stated that this aspect was not in focus in the decision of the Division Bench of this Court in T. S. Rabaris case (supra ). Therefore, this aspect is required to be examined. ( 10 ) THE submission that mere non-supply of Inquiry Report would not ipso facto show prejudice to the delinquent in all cases. Therefore, it is contended that it is incumbent upon the petitioner to show that prejudice was caused to him on account of non-supply of Inquiry Report before imposition of penalty. Prima facie, this contention may seem to be subtle but not sustainable. It cannot be gainsaid that the petitioner must show some prejudice in order to succeed in such a petition on the ground of non-supply of Inquiry Report. In reality, the non-supply of the Inquiry report itself is a great prejudice. Obviously, therefore, further prejudice is not required to be shown to succeed in a petition challenging the impugned order. Though this aspect, as stated above, may not be in the focus in the division Bench of this Court in T. S. Rabaris case (supra), the view of this Court is, fully, reinforced, by the decision rendered in the case of Management of M/s. Nallibharat Engineering Company limited v. Stale of Bihar and Others, reported in (1990) 2, SCC, 48. It is held in that case that actual prejudice as a result of want of opportunity need not be established. Not giving an opportunity itself is a prejudice. The Apex Court has held that actual prejudice need not be examined. Non-supply of report of the inquiry Officer ipso facto would be prejudical to the interest of the delinquent. Therefore, this contention cannot be subscribed to. Not giving an opportunity itself is a prejudice. The Apex Court has held that actual prejudice need not be examined. Non-supply of report of the inquiry Officer ipso facto would be prejudical to the interest of the delinquent. Therefore, this contention cannot be subscribed to. ( 11 ) LEARNED Counsel for the respondent-bank has raised several other contentions which have admittedly, raised and considered by this Court in T. S. Rabaris case (supra ). Therefore, it is not necessary to go into all contentions in details as all the contentions which were raised and also negatived by the Division bench. No any other new contention is raised before this Court. ( 12 ) IT is contended that this Court has to consider some other decisions of other high Courts which were not considered by the Division Bench so that this Court can take a different view. I am afraid, such a contention also cannot be subscribed to. One may have a different view but one cannot be indifferent to the binding law laid down by the court. ( 13 ) IN view of the settled proposition of law, it is very clear that if the inquiry is held by person other than the disciplinary authority, copy of the report submitted by the Inquiry Officer is required to be supplied to the delinquent and failure to supply copy of such a report would vitiate the inquiry and the punishment or the penalty imposed is liable to be quashed. Not only the furnishing of a copy of the report of the inquiry Officer only is necessary but reasonable opportunity has to be given to the delinquent in such proceedings. Even in respect of any document which is relied on by the disciplinary authority. In U. P. State Road Transport corporation v. Muniruddin reported in 1990 (3) J. T. 494 (SO, the Supreme Court has held that copies of the documents relied on by the disciplinary authority should have been made available to a delinquent, who was a conductor in that case and non-supply or failure to supply such documents would cause serious prejudice to the delinquent. In that case, the order of dismissal was set aside by the Supreme Court. In that case, the order of dismissal was set aside by the Supreme Court. ( 14 ) FURNISHING the report of the Inquiry officer is considered to be a part and parcel of natural justice and the Supreme court has held in no uncertain terms in the case of Union of India v. Mohd. Ramzan Khan reported in AIR 1991 SC 471 that a copy of the Inquiry Report finding him guilty must be made available to the delinquent officer and before any order of punishment is imposed on him by the disciplinary authority. It has nothing to do with his right to fight against that order. Prior to the filing of the appeal before the Appellate Authority, ordinarily, the delinquent must get a right to satisfy the Disciplinary Authority and for that purpose, supply of a copy of the Report of the Inquiry Officer is essential and necessary. It is also settled proposition of law that even if there is no statutory provision and the statute is silent about the application of principles of natural justice, these principles would apply. It is made very clear by catena of judicial pronouncements on this point that the principles of natural justice would operate in areas not covered by the statutory provisions. In other words, they would not supplant law but supplement it. ( 15 ) IN the aforesaid Division Bench decision of this Court in T. S. Rabaris case (supra), vires of Regulation No. 9, which is pari materia to Regulation No. 9 of the Union Bank of India Officer employees (Discipline and Appeal) regulations, 1976, under which the impugned action came to be taken against the petitioner was challenged. Relying on the Regulations, it is contended that there is no challenge in the present petition against the vires and, therefore, this Court has to interpret the Rules as they are. True. No doubt about it. No challenge is made against the vires in the present case. Mere non-challenge of the vires of the Regulations under which the impugned order came to be passed against the petitioner, does not ipso facto would amount to waiver of fundamental principles of natural justice. This Court had an occasion to examine the vires of the aforesaid Regulations as they were challenged in that case. Mere non-challenge of the vires of the Regulations under which the impugned order came to be passed against the petitioner, does not ipso facto would amount to waiver of fundamental principles of natural justice. This Court had an occasion to examine the vires of the aforesaid Regulations as they were challenged in that case. In the aforesaid division Bench decision in T. S. Rabaris case (supra) this Court found that those regulations are intra vires. Principles of fair play and natural justice are inherent in such proceedings and relying on that this Court held in the T. S. Rabaris case (supra) that such principle is implied. It is held in that case that though validity of the relevant statutory provision is upheld and the prayer to declare those provisions of relevant regulations as ultra vires and unconstitutional, came to be rejected, all these provisions are required to be interpreted in consonance with the principles of natural justice and the disciplinary action and the final order passed by the Disciplinary Authority imposing penalty on the delinquent without supplying copy of the report of the Inquiry Officer to the delinquent came to be quashed and set aside. While upholding the contention that the regulations are inra vires, this Court held that the fundamental principles of natural justice are required to be followed so as to afford an adequate and reasonable opportunity which is inherent in the audi alteram partem so as to enable the delinquent to make effective representation before the Disciplinary authority in respect of the report submitted by the Inquiry Officer before the delinquent is held guilty by the disciplinary Authority and before any penalty order is passed. Therefore, the contention that since no challenge is made against the provisions of Regulations, this court is helpless to look at other provisions or principles other than the provisions incorporated in the regulations, cannot be accepted. Such a contention is running counter to the law propounded by this Court in the aforesaid division Bench decision. Therefore, it merits outright rejection. ( 16 ) IN view of the aforesaid proposition of law which is settled, and in the facts and circumstances of the present case, the impugned dismissal order is required to be quashed. Such a contention is running counter to the law propounded by this Court in the aforesaid division Bench decision. Therefore, it merits outright rejection. ( 16 ) IN view of the aforesaid proposition of law which is settled, and in the facts and circumstances of the present case, the impugned dismissal order is required to be quashed. ( 17 ) NEXT it will bring into the sharp focus the question of appropriate relief to which the petitioner is found entitled to in the circumstances of the present case. ( 18 ) LEARNED Counsel for the petitioner, mr. Brahmbhatt, forcefully, contended that in view of the settled proposition of law, the petitioner, on reinstatement, would be entitled to full backwages. He has also contended that anything less than full backwages on reinstatement would tentamount indirectly to punishment or penalty before finalisation of the departmental proceedings in view of the order of this Court, quashing the impugned dismissal order. ( 19 ) THIS is a matter where the court is required to consider one important aspect that is pertaining to the discretionary relief to be granted to the petitioner under Article 226 of the constitution of India. In this connection, reliance is placed on a recent decision of this court, in Special Civil Application no. 3866 of 1984, dated 17-9-1991. The question of backwages was considered by this Court and in a similar case, while quashing the order of removal from service the reinstatement was ordered in favour of the petitioner with full backwages with all considered benefits of continuous service. ( 20 ) IT was contended in the said case on behalf of the petitioner that once the penalty order is quashed, status quo ante has to be restored. Thus, the petitioner has claimed full backwages from the date of removal from the service. As against that it was submitted on behalf of the respondent-bank (Bank of India) that the petitioner had succeeded in the petition only on technical ground in the present petition, i. e. failure to supply report of the Inquiry Officer. It was, therefore, contended that this Court should not award full backwages while passing the order of reinstatement for the period during which the petitioner did not work for the bank and also on the principle of "no work, no pay". It was, therefore, contended that this Court should not award full backwages while passing the order of reinstatement for the period during which the petitioner did not work for the bank and also on the principle of "no work, no pay". This Court negatived the contention raised on behalf of the respondent-bank and held that the petitioner had not refused to work during the period he remained out of job. The petitioner had, however, been prevented from working by the impugned order of removal. Therefore, rejecting the contentions raised on behalf of the respondent-bank, this Court had passed order of reinstatement with full backwages in favour of the petitioner. Ratio of the said decision will be squarely applicable to the facts of the present case. Therefore, the contention that the petitioner, on reinstatement, would not be entitled to full backwages, cannot be subscribed to. On the contrary, learned counsel for the petitioner has, rightly, contended that the petitioner is entitled to full backwages in the facts of the present case. . ( 21 ) LEARNED Counsel for the respondent-bank, alternately, has urged that the interregnum period, i. e. from the date of dismissal till reinstatement, should be treated as a period under suspension in the circumstances of the case. This contention is, seriously, opposed by the learned Counsel for the petitioner and he has relied the decision of this Court in Special Civil Application No. 3866 of 1984 dated 17-9-1991. Such a contention is also not sustainable in the present case. ( 22 ) IN the result, the petitioner succeeds. Consequently, the impugned dismissal order, passed by the Disciplinary authority, dismissing the petitioner from the services of the respondent-bank with immediate effect on 5-9-1985, Annexure c, and which was later on confirmed by the Appellate Authority by order dated 1-11-1985, as per Annexure a is, hereby, quashed. The respondents are directed to reinstate the petitioner in service, on or before 30-11-1991, and shall pay to him all benefits of continuous service, including backwages, as if the impugned order of dismissal had not been passed, within a period of one month after reinstatement. The respondents are directed to reinstate the petitioner in service, on or before 30-11-1991, and shall pay to him all benefits of continuous service, including backwages, as if the impugned order of dismissal had not been passed, within a period of one month after reinstatement. It is clarified that the decision of this Court in this petition, obviously, shall not be an impediment or hurdle in making or proceeding further with the departmental proceedings from the stage of supply of copy of the report of the Inquiry Officer, if so desired by the respondents. The petition is allowed. Rule is made absolute to that extent. No order as to costs. Order accordingly. .