State Bank of Bikaner and Jaipur v. A. M. Kothari — 1995 DIGILAW 477 (RAJ)

Honble MISRA, J.– This Special Appeal has been preferred by the appellant under Sec. 18 of the Rajasthan High Court Ordinance, 1949 against the judgment and order dated 7.12.1993 passed by a learned Single Judge of this Court Farooq Hasan J (as he then was) in S.B. Civil Writ Petition No. 688/1985, whereby the orders dated 3.2.1984 and 30.8.1984 passed by the appellant State Bank of Bikaner & Jaipur imposing a penalty of removal from service of the Bank in terms of Regulation 57(g) of the State Bank of Bikaner & Jaipur (Officers) Service Regulations, 1979 (hereinafter referred to, for short, as ``the Service Regulations) have been set aside holding that the respondents removal from Banks service is null and void and non-existent in the eye of law and for violation of the provisions of the Bank Service Regulations as also violation of Art. 311 (2) of the Constitution of India. It has, therefore been directed that the respondent herein be treated as having continuing in the service of the Bank from the date of the aforesaid order of removal. It has also been held therein that in view of the fact that a long time has elapsed since passing of the order of dismissal, the Bank (appellant herein) should not be permitted to hold a fresh enquiry against the petitioner on the charges in question. Accordingly, the petitioner (respondent herein) has been held to be entitled to all the consequential reliefs financial as well as promotional after his reinstatement. The appellant Bank, feeling financial as well as promotional after his reinstatement. The appellant Bank, feeling aggrieved with the judgment and order of the learned Single Judge, has challenged the aforesaid judgment and order of the learned Single Judge on various grounds. But before referring to the same, the salient facts of the case may be recapitulated as follows:– (2). Respondent A.K. Kothari while functioning as Branch Manager at the Bank Chhoti Sadari Branch, during the year 1980-1981 in course of his duty is alleged to have pocketed a sum of Rs. 324.85 only by falsely showing payment of bankers cheque No. Ao/576823 dated 29.10.1980 to one Shri Radhey Shyam which was originally issued in the name of Anandi Lal by subsequently substituting the name of Radhey Shyam therein. 324.85 only by falsely showing payment of bankers cheque No. Ao/576823 dated 29.10.1980 to one Shri Radhey Shyam which was originally issued in the name of Anandi Lal by subsequently substituting the name of Radhey Shyam therein. Under these circumstances, it was alleged that respondent A.K. Kothari abused his official position and displayed lack of absolute integrity and honesty and, thus, he committed the acts which were unbecoming of a bank official and thereby he was charged of violation of Regulation 50(4) of the Bank Service Regulation of 1979. Respondent Kothari, accordingly, was served with the charge-sheet dated 30.9.1982. (3). In reply to the charges, the respondent herein submitted this written statement dated 26.12.1983, wherein he offerred an explanation stating that Radhey Shyam to whom the payment of Rs. 324.85 was made which, in fact, was earlier paid to Anandi Lal, was due to a special circumstance. Elaborating the said circumstance, it was stated that Radhey Shyam was working as Badli Watchman from time to time and had marked his attendance in the Watch and Ward Register for the days he performed his duty. After working for some days, in the month of October, 1980, Radhey Shyam quit the Bank service. But before the salary of Radhey Shyam was prepared he had sent a letter requesting for payment of his salary to one Anandi Lal in whose name the cheque of Rs. 324.85 had earlier been issued. It was explained that the clerk had prepared the salary in the name of Anandi Lal which, in fact, was payable to Radhey Shyam. But since he had granted the letter of authority to Anandi Lal, his name was wrongly shown in the salary register in place of Radhey Shyam. Respondent Kothari, therefore, submitted that when this error came to his notice at the time of checking the name in the salary register, the same was corrected as Radhey Shyam and when Radhey Shyam again joined his duty in January 1981, the payment of the cheque was made to him by obtaining a suitable letter from him and after making the necessary correction in the cheque. The respondent further stated that the letter of authority of Radhey Shyam in favour of Anandi Lal had never been demanded by Nagauri nor he had asked the respondent anything about the missing of certain pages of the relevant watch and ward register. The respondent further stated that the letter of authority of Radhey Shyam in favour of Anandi Lal had never been demanded by Nagauri nor he had asked the respondent anything about the missing of certain pages of the relevant watch and ward register. The respondent, therefore, submitted that the allegation of pay me nt of cheque in question to Radhey Shyam was not taken by him and, therefore, he totally denied the said charges that he pocketed Rs. 324.85 which was payable to Radhey Shyam and, in fact, had also been paid to him after the necessary correction explained hereinabove. (4). After receipt of the written statement, an oral enquiry was held in which the Presenting Officer of the Bank Produced as many as 16 documents referred in the enquiry report dated 31.12.1983 and also produced witnesses namely V.K. Jain, Ashok Hanswal, Samrath Mal Teli, Anandilal, N.R. Choudhary Inspector CBI, SPE, Jaipur and O.P. Nagori. No defence had been produced by the petitioner. (5). The Enquiring Authority after scrutiny gave a report dated 31.12.1983, holding the charges levelled against the petitioner as proved, after which the Disciplinary Authority on consideration of the said report recommended penalty of removal of respondent Shri Kothari from the Bank Service, which was approved by the Managing Director by order dated 3.2.1984. The appeal filed by the respondent against the order of his removal dated 3.2.1984 was rejected. (6). The respondent herein, Shri Kothari, feeling aggrieved with the aforesaid order of removal challenged the same by filing a writ petition which was heard by the learned Single Judge (Farooq Hasan J. as he then was) who after hearing the counsel for the parties and considering the other relevant material was pleased to hold that the respondent was entitled to obtain a copy of the preliminary report of enquiry and also to have an access to documents and statements of witnesses including his own which was recorded during the course of enquiry and he rightly demanded those documents and statements in order to enable him to effectively cross examine the witnesses with reference to those documents and statements which had been produced at the enquiry to establish the charges levelled against him. The learned Single Judge observed that the petitioner (respondent herein) could not have done so if the copies of those documents and statements had not been made available to him in compliance with the statutory provisions contained in Regulation 68(2)(10)(b)(iii) of the SBBJ (Officers) Service Regulations, 1979 which regulations have thoroughly been discussed in the judgment and order of the learned Single Judge and may not be reiterated herein. the learned Single Judge held that there has been total violation of the procedure contained in the statutory regulation and, hence, it was inferred and held that the delinquent respondent herein, had been denied a reasonable opportunity of exonerating himself of the charges, as the said enquiry was in breach of the statutory regulations. In the resput, the impugned order of penalty of removal from service of the respondent dated 3.2.1984 was quashed as null and void ab initio. (7). Learned counsel appearing for the Bank, Shri Paras Kuhad has submitted that the learned Single Judge is completely in error and has failed to disclose as to how these two documents viz. the copy of the preliminary enquiry report and statements of some of the witnesses including that of the petitioner which were not relied upon by the Bank were at all relevant for his defence and the respondent employee has further failed to prove as to how his case has been prejudiced on account of non-supply of the said documents. It has been elaborately submitted that it is now well settled that whether in fact prejudice has been caused to the employee or not on account of denial to him of preliminary enquiry report has to be considered on the facts and circumstances of each case. In the instant cas,e it has been contended that even after the supply of the said documents, no different consequence would have followed. (8). In support of his submission, learned counsel for the petitioner has cited numerous decisions viz. Sunil Kumar Banerjee vs. State of West Bengal (1) and Kishore Vinay vs. General Secretary, Central Railway, (2). It has been submitted that the learned Judges in these decisions have been pleased to hold that failure to comply with the requirement of Rules does not vitiate the enquiry unless prejudice is caused. Sunil Kumar Banerjee vs. State of West Bengal (1) and Kishore Vinay vs. General Secretary, Central Railway, (2). It has been submitted that the learned Judges in these decisions have been pleased to hold that failure to comply with the requirement of Rules does not vitiate the enquiry unless prejudice is caused. In the case of Sunil Kumar Banerjee (supra), learned Judge, O. Chineppa Reddy J. (as he then was) had categorically held that the failure to comply with the requirement of the Rules does not vitiate the enquiry unless prejudice is caused. Since no prejudice was shown to have been caused in the said case, the enquiry was held to be proper. It has been submitted that merely because statements of some of the witnesses were not supplied to the petitioner would not amount to denial of opportunity to cross-examine the witnesses would not vitiate the enquiry which was conducted against the petitioner. It has further been submitted that non-furnishing of the preliminary report also would not result into holding of the enquiry as null and voild. In support of this contention, attention of this Court has been drawn to the case of Union of India vs. Mohd. Ramzan Khan (3), and S.F. Vaswanathan vs. Union of India (4), wherein the proceedings were not rendered illegal merely on the ground of non-supply of the enquiry report especially if the case has been decided prior to the decision of Ramzan Khan (supra). In support of the submission, reliance has also been placed on the Constitution Bench judgment of the Supreme Court in managing director Oil Hyderabad vs. B. Karunakaran (5). (9). Learned Counsel for the respondent Shri Mathur, on the contrary, repelled the arguments advanced on behalf of the petitioner by submitting in support of the judgment of the learned Single Judge, that the said judgment is fit to be sustained and the findings arrived at by the learned Single Judge is justified for the reason that the petitioner was denied proper opportunity to place his defence by not getting an opportunity to look into the documents relied upon by the petitioner Bank and, by the not granting an opportunity to cross-examine the witnesses a serious prejudice had been caused to the respondent as he was deprived of the opportunity to cross-examine the witnesses relied upon by the petitioner Bank. Several decisions have been cited by the respondents counsel, also in support of his case which are : Kashi Nath Dixit v. Union of India (6), State of Punjab v. Bhagat Ram (7), State of Assam vs. Mahendra Kumar Dass (8), and State of U.P. vs. Mohd. Sariff (9). In all these cases, it has been consisten- tly held that in a departmental enquiry, refusal to supply copies of statements of witnesses relied upon by the Department to establish charges before commencement of the enquiry is mandatory, and violation of the same renders it a vitiated enquiry and the consequential order of dismissal was held to be bad. (10). Now, examining the instant case in order to decide whether the order of removal passed against the respondent Kothari is good or bad in the light of catena of cases relied upon by both the parties, it is sufficiently clear, in our view, that the respondent Sri Kothari, was bound to be seriously prejudiced by non-supply of documents and more so by denial of opportunity of cross-examining the witnesses. To cite, for instance in this regard, the defence of the petitioner was that he had made payment of Rs. 324.85 by cheque to Radhey Shyam on the basis of the letter of authority given by Anandi Lal and in this regard he has categorically submitted that the letter of authority given by Anandi Lal in favour of Radhey Shyam was never demanded by Nagauri. If the petitioner had been granted an opportunity to cross examine Nagauri, he would have surely got an opportunity to establish whether he had made payment on the basis of letter of authority, or the said defence was a conviction. This clinching evidence has been suppressed, in our view, by not granting this opportunity to the delinquent respondent Kothari. This part of the evidence surely would have been conclusive to arrive at the finding whether the respondent was justified in making payment initially to Anandi Lal and after rectification to Radhey Shyam. From the material on record, it is also not clear whether Radhey Shyam had at all been produced as a witness. This part of the evidence surely would have been conclusive to arrive at the finding whether the respondent was justified in making payment initially to Anandi Lal and after rectification to Radhey Shyam. From the material on record, it is also not clear whether Radhey Shyam had at all been produced as a witness. In our view, he was the most important witness to establish the fact whether he had issued any letter of authority or not to Anandi Lal; not he seems not to have been produced at all as we do not find his name mentioned any where. These materials, in our view, were not brought on record at all. Had the petitioner been granted a fair opportunity of cross examination, the same may have surely acted as a turning point in the enquiry. Even if it had been otherwise, at least this ground of causing prejudice to the delinquent employee due to non-supply of these documents would not have been available to the respondents and, in that event, the petitioner would have been justified in contending that the enquiry is not vitiated on the ground of non-supply of documents and cross- examination of witnesses. (11). Learned counsel for petitioner Shri Paras Kuhad, although, has relied upon several decisions, we think, the clear position in this regard has been adequately summed up in the Constitution Bench judgment of five Judges in Managing Director, ECII Hyderabad vs. B. Karunakaran (Supra) wherein also emphasis is laid on the ground of prejudice in the event of non supply of enquiry report, meaning thereby the denial of right to get copy of the enquiry report amounts to denial of reasonable opportunity, and violation of Arts. 14 and 16 of the Constitution and also violation of the principle of natural justice. The learned Judges in this elaborate and unambiguous judgment have even gone to the extent of holding that even if service rules/standing orders are silent or denies supply of enquiry report to the delinquent employee, for major penalty to be valid, even failure of the employee to ask for the report has been construed not to be treated as waiver. This judgment, therefore, in our view, cannot be held to be rightly relied upon in support of the case of the appellant Bank. This judgment, therefore, in our view, cannot be held to be rightly relied upon in support of the case of the appellant Bank. On the contrary, this decision clearly supports the contention of the delinquent employee who in this case is respondent Kothari who claims to have been prejudiced due to non-supply of enquiry report and denial of opportunity to cross examine the witnesses apart from violation of the statutory Regulations of the Bank. (12). Thus, on a resume of the catena of cases on this age-old question regarding legality of holding an enquiry in case of a delinquent employee and the effect of non supply of the enquiry report and the relevant documents and also deprivation of an opportunity to cross-examine the witnesses, we see no reason to interfere with the judgment of the learned Single Judge, wherein there is an additional reason for setting aside the order of dismissal on the ground that Rule 68 of the Bank Service Regulations has been held to have been violated. (13). This Special Appeal, therefore, is dismissed with no order as to costs.