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2021 DIGILAW 761 (AP)

Arigela Pramodh S/o Narasimha Rao v. State Bank of India

2021-11-10

M.SATYANARAYANA MURTHY

body2021
ORDER : 1. This writ petition is filed under Article 226 of the Constitution of India seeking the following relief: “to issue an appropriate Writ, Order or Direction more particularly in the nature of Writ of CERTIORARI calling for the entire records of 2nd Respondent dated 18.05.2016, whereby dismissing the appeal filed by the Petitioner against the order dated 28.03.3016 of the 3rd Respondent, whereunder imposing penalty “Compulsory Retirement” from Banks Services with retirement benefits against the Petitioner herein and set aside the same by declaring the same as cryptic order in nature and without any reasons for confirming the orders of the 3rd Respondent.” 2. The case of the petitioner, in brief, is that he was appointed as single window operator (for short “SWO-A”) in the State Bank of Hyderabad, Vyra Branch, Khammam District vide proceedings dated 24.10.2011 issued by the respondents herein. As per the said appointment order, the petitioner herein had joined in Vyra Branch, Khammam District on 24.10.2011. Subsequently the petitioner herein was transferred from Vyra Branch Khammam district to Koyyalagudem Branch, Khammam District in the same capacity as SWO-A. Accordingly, the petitioner reported to duty as SWO-A at Koyyalagudem Branch. 3. While the petitioner was working in Koyyalagudem Branch, he was placed under suspension on the allegations of certain irregularities alleged to have been committed by the petitioner while he was working at Koyyalagudem Branch, by order dated 01.09.2014 issued by respondent No. 3 herein. After the petitioner was placed under suspension, the respondents herein have issued proceedings No. R.III/Gr.1/746 dated 12.02.2015 calling for explanation of the petitioner for the misconduct attributed to him. After submitting explanation, the respondents herein issued charge-sheet vide Charge-Sheet No. R.III/Gr.1/864 dated 24.03.2015. The petitioner herein has submitted a detailed written statement denying the charges leveled against him, requested to exonerate from the charges. Instead of dropping the charges against the petitioner, the respondents herein issued a revised charge-sheet No. R.III/Gr.1/431 dated 26.08.2015 calling for the explanation from the petitioner to the revised charge-sheet. Accordingly the petitioner has submitted his explanation to the revised charge-sheet also. Being not satisfied with the explanation submitted by the petitioner, the respondents herein appointed an enquiry officer vide proceedings Dated No. R.III/Gr.1/499 dated 08.05.2015 to enquire into the charges leveled against the petitioner. The petitioner has participated in the enquiry proceedings by engaging the defense counsel and presented his case. Being not satisfied with the explanation submitted by the petitioner, the respondents herein appointed an enquiry officer vide proceedings Dated No. R.III/Gr.1/499 dated 08.05.2015 to enquire into the charges leveled against the petitioner. The petitioner has participated in the enquiry proceedings by engaging the defense counsel and presented his case. As the enquiry is conducted in biased manner, without going into the merits of the case, the respondents has imposed penalty of Compulsory retirement from banks service with superannuation benefits vide order No. R.III/Gr.1/1038 dated 28.03.2016. The order is confirmed in appeal. As the order passed by respondent No. 2, who is appellate authority, is cryptic in nature and without considering the grounds urged by the petitioner in his appeal, on 15.06.2016 the petitioner filed review of the impugned order dated 18.05.2016. The order passed by respondent No. 2 is cryptic in nature and the same was passed without recording any reasons. Therefore, the said order is illegal, arbitrary and violataive of principles of natural justice. 4. Respondents filed counter denying all the material allegations while admitting about conduct of enquiry, finding the petitioner guilty and imposition of penalty. It is contended that reasonable opportunity was afforded to the petitioner at all times and passed the order by the Enquiry Officer strictly adhering to the principles and rules governing the enquiry. It is also contended that the remedy by way of “industrial dispute” is not exhausted by the petitioner. Therefore, the writ petition is not maintainable, requested to dismiss the writ petition. 5. Sri. Sai Gangadhar Chamarty, learned counsel for the petitioner, reiterated the contentions urged in the petitioner while highlighting the lacuna in the unreasoned order since the order is cryptic, requested to set aside the penalty imposed against the petitioner. 6. Sri. K.B. Ramanna Dora, learned counsel for the respondents, contended that when an alternative remedy is available to the petitioner, he cannot approach this Court invoking jurisdiction under Article 226 of the Constitution of India. Since there is effective, efficacious and statutory remedy by way of “industrial dispute” the writ petition cannot be maintained, requested to dismiss the writ petition. 7. Undoubtedly, the petitioner was placed under suspension. Later, enquiry was conducted, imposed penalty of compulsory retirement from service with retirement benefits. The order was challenged before respondent No. 2 in appeal, which ended in dismissal. Later, the petitioner filed review, which is also rejected. 7. Undoubtedly, the petitioner was placed under suspension. Later, enquiry was conducted, imposed penalty of compulsory retirement from service with retirement benefits. The order was challenged before respondent No. 2 in appeal, which ended in dismissal. Later, the petitioner filed review, which is also rejected. Respondent No. 2 passed the following order while dismissing the appeal filed by the petitioner: “I have gone through the appeal preferred. I find that no fresh documents/evidences/ defense arguments have been brought in. I do not see any merit in reviewing the order of the Disciplinary Authority. Appeal dismissed and order accordingly.” 8. As seen from the material, the petitioner appears to have raised several grounds questioning the legality of the findings recorded by the enquiry officer. Even in the review petition, the petitioner raised various grounds. But none of the grounds were dealt with by respondent No. 2 and passed the impugned order without recording any reasons. 9. Though, it is an appeal or review, it is the duty of respondent No. 2 to record reasons either to dismiss the appeal or reject the review. Respondent No. 2 without referring any of the grounds urged by the petitioner, dismissed the appeal/review. 10. Time and again, the Apex Court and this Court issued certain guidelines to be followed for drafting judgments/orders and highlighted the requirements of an order or judgment. 11. What an order shall contain normally is not specified anywhere but the order must be reasoned one since the judgment or order in its final shape usually contains in addition to formal parts: (i) A preliminary or introductory part, showing the form of the application upon which it was made, the manner in which and the place at which, the writ or other originating process was served, the parties appearing any consent, waivers, undertakings or admissions given or made, so placed as to indicate whether they relate to the whole judgment or order or only part of it, and a reference to the evidence upon which the judgment or order, is based and (ii) A substantive or mandatory part, containing the order made by the Court” as has been said in Halsbury's Laws of England (4th Edition, Volume 26 P. 260). Thus, in view of the requirements of an order or judgment referred above, an order pronounced on the bench shall contain the reasoning since the judge speaks with authority by his judgment. Thus, in view of the requirements of an order or judgment referred above, an order pronounced on the bench shall contain the reasoning since the judge speaks with authority by his judgment. The strength of a judgment lies in its reasoning and it should therefore be convincing. Clarity of exposition is always essential. Dignity, convincingness and clarity are exacting requirements but they are subservient to what, after all, is the main object of a judgment, which is not only to do but to seem to do justice. In addition to these cardinal qualities of a good order, there are the attributes of style, elegance and happy phrasing which are its embellishments. In the words of Former Chief Justice of the Supreme Court Sabyasachi Mukharji, the requirement of a good order is reason. Judgment/order is of value on the strength of its reasons. The weight of an order/judgment, its binding character or its persuasive character depends on the presentation and articulation of reasons. Reason, therefore, is the soul and spirit of a good judgment. Equity, justice and good conscience are the hallmarks of judging. One who seeks to rely only on principles of law and looks only for the decided cases to support the reasons to be given in a case or acts with bias or emotions, loses rationality in deciding the cases. The blind or strict adherence to the principles of law sometimes carries away a judge and deviates from the objectivity of judging issues brought before him. Justice M.M. Corbett, Former Chief Justice of the Supreme Court of South Africa, recommended a basic structural form for judgment writing, which is as follows: “(i) Introduction section. (ii) Setting out of the facts. (iii) The law and the issues. (iv) Applying the law to the facts. (v) Determining the relief; including costs. (vi) Finally, the order of the Court.” 12. Keeping in view various principles and observations including the definition of order and judgment, the Apex Court laid down certain guidelines for writing judgments and orders in Joint Commissioner of Income Tax, Surat vs. Saheli Leasing and Industries Limited (Civil Appeal No. 4278 of 2010) in Para-7 of the judgment and they are extracted hereunder: “7. Keeping in view various principles and observations including the definition of order and judgment, the Apex Court laid down certain guidelines for writing judgments and orders in Joint Commissioner of Income Tax, Surat vs. Saheli Leasing and Industries Limited (Civil Appeal No. 4278 of 2010) in Para-7 of the judgment and they are extracted hereunder: “7. These guidelines are only illustrative in nature, not exhaustive and can further be elaborated looking to the need and requirement of a given case: (a) It should always be kept in mind that nothing should be written in the judgment/order, which may not be germane to the facts of the case. It should have a co-relation with the applicable law and facts. The ratio decidendi should be clearly spelt out from the judgment/order. (b) After preparing the draft, it is necessary to go through the same to find out, if anything, essential to be mentioned, has escaped discussion. (c) The ultimate finished judgment/order should have sustained chronology, regard being had to the concept that it has readable, continued interest and one does not feel like parting or leaving it in the midway. To elaborate, it should have flow and perfect sequence of events, which would continue to generate interest in the reader. (d) Appropriate care should be taken not to load it with all legal knowledge on the subject as citation of too many judgments creates more confusion rather than clarity. The foremost requirement is that leading judgments should be mentioned and the evolution that has taken place ever since the same were pronounced and thereafter, latest judgment, in which all previous judgments have been considered, should be mentioned. While writing judgment, psychology of the reader has also to be borne in mind, for the perception on that score is imperative. (e) Language should not be rhetoric and should not reflect a contrived effort on the part of the author. (f) After arguments are concluded, an endeavour should be made to pronounce the judgment at the earliest and in any case not beyond a period of three months. Keeping it pending for long time, sends a wrong signal to the litigants and the society. (g) It should be avoided to give instances, which are likely to cause public agitation or to a particular society. Keeping it pending for long time, sends a wrong signal to the litigants and the society. (g) It should be avoided to give instances, which are likely to cause public agitation or to a particular society. Nothing should be reflected in the same which may hurt the feelings or emotions of any individual or society.” Hence, a judgment or an order shall contain the above seven minimum requirements i.e. (a) to (g). 13. In the case of Allahabad Bank vs. Krishna Narayan Tewari, (2017) 2 SCC 308 the Supreme Court has held as under: “7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the enquiry officer or the disciplinary authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the enquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority.” 14. The recording of reasons is necessary. It is well known that “conclusions” and “reasons” are two different things and reasons must show mental exercise of authorities in arriving at a particular conclusion. 15. In Breen vs. Amalgamated Engg. Union, 1971 (1) All ER 1148 it was held that the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. vs. Crabtress, 1974 (4) IRC 120 (NIRC) it was observed that “failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at.” 16. In Union of India vs. Mohan Lal Kapoor, (1973) 2 SCC 836 the Apex Court held as under: “Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached.” 17. The Apex Court in the case of Uma Charan vs. State of Madhya Pradesh, AIR 1981 SC 1915 , said: “Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable.” 18. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable.” 18. The Apex Court of India in the case of Raj Kishore Jha vs. State of Bihar, (2003) 11 SCC 519 has held that reasons are the heartbeat of every conclusion and without the same, it becomes lifeless. 19. The Apex Court also in Competition Commission of India vs. Steel Authority of India Ltd. JT 2010 (10) SC 26 said: “Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. By practice adopted in all courts and by virtue of judge made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and therefore, proper reasoning is foundation of a just and fair decision.” 20. In the present case, respondent No. 2 passed cryptic order without recording any reasons. Therefore, by applying the principles laid down by the Apex Court in the judgments (referred supra) the order is liable to be set aside. 21. The major contention urged before this Court by the learned counsel for the respondents is that when an alternative effective, efficacious and statutory remedy is available to the petitioner, he cannot approach this Court directly invoking jurisdiction under Article 226 of the Constitution of India. No doubt, when an effective, efficacious, statutory remedy is available, normally the Courts would not entertain writ petition under Article 226 of the Constitution of India. 22. In Genpact India Private Limited vs. Deputy Commissioner of Income Tax and Another, (2019) 311 CTR (SC) 737 the Division Bench of the Apex Court held that, when a statutory remedy is available under the statute, the Court would not normally entertain the writ petition against assessment order. 22. In Genpact India Private Limited vs. Deputy Commissioner of Income Tax and Another, (2019) 311 CTR (SC) 737 the Division Bench of the Apex Court held that, when a statutory remedy is available under the statute, the Court would not normally entertain the writ petition against assessment order. The Apex Court finally concluded that, if the submission is accepted, every time the dispute will be required to be taken up in proceedings such as a petition under Article 226 of the Constitution, which normally would not be entertained in case of any disputed questions of fact or concerning factual aspects of the matter. The assessee may thus, not only lose a remedy of having the matter considered on factual facets of the matter but would also stand deprived of regular channels of challenges available to it under the hierarchy of fora available under the Act. 23. In Commissioner of Income Tax vs. Chhabil Dass Agarwal, (2014) 1 SCC 603 the Apex Court held as follows: “Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. [See: State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 , Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433 , Harbanslal Sahnia vs. Indian Oil Corporation Ltd. (2003) 2 SCC 107 and State of H.P. vs. Gujarat Ambuja Cement Ltd. (2005) 6 SCC 499 ].” 24. In view of the law declared by the Apex Court, when a statutory remedy is available, the Court may not normally entertain petition under Article 226 of the Constitution of India which is purely discretionary in nature. 25. In view of the law declared by the Apex Court, when a statutory remedy is available, the Court may not normally entertain petition under Article 226 of the Constitution of India which is purely discretionary in nature. 25. The Apex Court time and again laid down certain principles as to under what circumstances the Court can exercise its power of judicial review under Article 226 of the Constitution of India and that there is no absolute bar to entertain such writ petitions, more particularly, when the authorities passed an order in violation of principles of natural justice or without considering any law or without affording any opportunities to the parties. 26. In Maharashtra Chess Association vs. Union of India, Civil Appeal No. 5654 of 2019 and Special Leave Petition (C) No 29040 of 2018 dated 29.07.2019 the Division Bench of Apex Court was called upon to decide whether the existence of an alternate remedy would create a bar on High Court to exercise writ jurisdiction, it held “the existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Courts writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court.” Explaining that the court added that courts had themselves imposed certain constraints on the exercise of their writ jurisdiction to ensure that the jurisdiction did not become an appellate mechanism for all disputes within a High Courts territorial jurisdiction, the bench said, “the intention behind this self-imposed rule is clear. If High Courts were to exercise their writ jurisdiction so widely as to regularly override statutory appellate procedures, they would themselves become inundated with a vast number of cases to the detriment of the litigants in those cases.” This would also defeat the legislature's intention in enacting statutory appeal mechanisms to ensure the speedy disposal of cases. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. 27. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. 27. Recently, the Division Bench of the Supreme Court in Radha Krishan Industries vs. State of Himachal Pradesh, 2021 SCC Online SC 334 summarized the following four principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy, despite availability of efficacious alternative statutory remedy under the Act. 28. The principles of law which emerge are that: “(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. (ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person. (iii) Exceptions to the rule of alternate remedy arise where: (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution. (b) there has been a violation of the principles of natural justice. (c) the order or proceedings are wholly without jurisdiction. (d) the vires of a legislation is challenged. (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. (v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. (vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.” 29. (vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.” 29. The same principles were reiterated by the Full Bench of the Apex Court in M/s. Magadh Sugar and Energy Limited vs. State of Bihar, Civil Appeal No. 5728 of 2021 dated 24.09.2021. 30. If those principles are applied to the present facts of the case, when respondent No. 2 did not afford any opportunity and did not record any reasons, entertainment of writ petition is permissible. Hence, the contention of the learned counsel for the respondents is hereby rejected. 31. In view of my foregoing discussion, the impugned order is cryptic order and the same is liable to be dismissed. 32. In the result, the writ petition is allowed setting aside the order dated 18.05.2016 passed by respondent No. 2 in the appeal filed by the petitioner while remanding the matter to respondent No. 2 to reconsider the grounds raised by the petitioner after affording reasonable opportunity to him and pass reasoned order strictly in compliance of the judgments of the Apex Court (referred supra) within eight (8) weeks from today. No costs. 33. The miscellaneous petitions pending, if any, shall also stand closed.