Bank of Bikaner & Jaipur Vs. Srinath Gupta & Anr  INSC 1327 (25 October 1996)
Verma, B.N. Kirpal Kirpal.J.
appeal by special leave arises from the judgment of the Division Bench of the
Rajasthan High Court which dismissed the appeal filed by the appellant against
the judgment of the Single Judge who had allowed the writ petition filed by
respondent No. 1 quashing the order of the Central Government Industrial
Tribunal (hereinafter referred to as 'the Tribunal) which had upheld dismissal
of the said respondent No. 1 pursuant to the proceeding which had been held.
No. 1 was initially appointed as cashier-cum -godown keeper by the appellant
bank in the year 1961. He was promoted as Head-Cashier on 25.3.1970 and was
posted at Sunel Branch of the Bank. In June, 1973, he was transferred to Sangod
31.3.1975 the appellant lodged with the Central Bureau of Investigation (hereinatter
referred to as 'C.B.I.') an F.I.R. in which it was, inter alia, alleged that
while working as the cashier at the Sunel Branch during the year 1970-1971, the
said respondent had demanded and accepted illegal gratification from a number
of persons in consideration of his showing favours to them in getting their
loans sanctioned. The C.B.I. submitted its final report on 21.2.1977 stating
that no reliable evidence was available in support of the allegations and that
the evidence against the said respondent was scanty. The final report was
accepted by the Court on 2.11.1977 and no prosecution of the respondent took
meantime departmental disciplinary proceeadings were commenced by the
appellant. On 22.3.1976 a charge-sheet was served on the respondent. Those
charge wee as follows:
You demanded and accepted bribe from the following persons as mentioned against
each for arranging sanction of bank loans in their favour:
AMOUNT OF BRIBE
R.S. Ashraf Ali 50/- Dhana Lal 50/- Raghu Nath 100/- Mitthu Lal 50/- Mohan Lal
350/- Bapu Lal 300/- Ram Singh 350/- Kanhi Ram 350/- Mangu 375/- ii) You
demanded and accepted Rs.20/- in the month of may 1973 as bribe from smt. Phuli
Bai sweepers at Sunel Branch for arranging payment of bonus amounting to
Rs.80/- payable to her.
You demanded and accepted bribe of Rs. 500/- (Rs. 50/- per month) w.e.f.
August, 1972 to May, 1973 from Shri Nemi Chand for arranging for him a
temporary appointment of a Peon at the branch on 5th August, 1972.
You raised a fictitious loan of Rs. 1000/- at the branch in the name of one Shri
Panna Lal by getting the same guaranteed by your brother Shri Jagdish
Chandra." After the Inquiry Officer was appointed, the inquiry proceedings
commenced. Deposition of a number of prosecution witnesses was recorded
including the statements of Ashraf Ali and Dhanna Lal, from whom bribe was
alleged to have been demanded for getting the loan sanctioned. Some of the
other witnesses, however, turned hostile. Statements of the concerned witnesses
including those of Ashraf Ali and Dhanna Lal had earlier been recorded by the
appellant under Section 161 Cr.P.C. During the examination of these witnesses
before the inquiry officer, these statements were brought on record as part of
the deposition. It appears that copies of these statements were given to the
respondent workman in advance and the contents of the same were admitted by the
witnesses and opportunity was given to the said workman to cross- examine them.
Inquiry Officer submitted his report on 10.2.1979 and as a consequence thereof,
a notice was issued to respondent No. 1 to show cause why he should not be
dismissed from service. A reply was submitted by the workman on 11.3.1979 and
on 27.6.1979, the appellant passed an order dismissing him from service. An
appeal, against the order of dismissal filed before the appropriate authority
was dismissed on 2.8.1979.
respondent then approached the Conciliation Officer, Kota and a failure report was sent to the Government.
Thereupon the Central Government referred the following dispute to the Tribunal
the action of the management of State Bank of Bikaner & Jaipur in
dismissing Shri S.N.
Head Cashier, Pipalda Branch in District Kota with effect from 6.7.1979 is
justified If not, to what relief is the workman concerned entitled ?" Vide
Award dt. 9.4.1984, the Tribunal upheld the dismissal of the said respondent.
The workman then filed a writ petition number 631 of 1984 before the Rajasthan
High Court at Jaipur. By judgment dated 17.12.1984 the Award of the Tribunal
was set aside and the case remanded with certain directions, inter alia,
relating to the question as to whether the domestic enquiry was defective or
not and whether the punishment awarded was justified. Thereafter the Tribunal
again passed an award dated 29.5.1985 confirming its earlier decision and it
upheld the dismissal of the said respondent.
respondent No. 1 then filed a fresh writ petition in the Rajasthan High Court.
Vide judgment dated 5.8.1992, a Single Judge of the High Court allowed the writ
award dated 29.5 1985 was quashed and respondent No. 1 was directed to be taken
on duty forthwith. In regard to back wages, it was held that respondent No. 1
would be entitled to 50% of the total amount which may be found due to him
subject to any deduction therefrom if he had worked during that period. The
appellant then filed an appeal before the Division Bench of the High Court but
the same was dismissed on 21.10.1992 with a modification that respondent be
paid 30% of salary or the period during which the inquiry had remained pending.
Aggrieved by the said judgment, the appellant has preferred the present appeal.
respondent had succeded before the High Court on two grounds, firstly; the High
Court came to the conclusion that the statements which had been recorded under under
Section 161 Cr.P.C. were not admissible and, therefore, the dacision of the
Tribunal stood vitiated. Secondly, the Single Judge had also held that during
the course of disciplinary proceedings, C.B.I. Inspector had remained therein
and his presence itself had also vitiated the proceedings because the witnesses
were under a fear to state the whole truth contrary to what had been recorded
earlier by the C.B.I. Inspector.
regards the statements under Section 161 Cr.P.C. are concerned, we find that
the said statements were supplied to the respondent on 1.11.1976. The evidence
of these persons, we are informed, was recorded on 5.4.1977. The procedure
which was followed by the Inquiry Officer, relating to the taking on record of
these statements under Section 161 Cr.P.C. would be evident from the
proceedings of the Inquiry Officer which are as follows:
bank representative produced his witness Sri Dhannalal s/o Mangilal residence
of Sunel for evidence. At this moment Sri S.L.Gupta, employees representative
raised his objection to the procedure of reading the statement of the witnesses
by bank representative previously recorded.
view to offer equal opportunity to both the sides and to enable the bank to
present the case in the proper manner, as a norm of the domestic enquiry, I
allow this Procedure to continue and proceed further in the case.
statement of Dhannalal s/o Mangilal previously recorded by the CBI Inspector
was read over to him by the bank representative. Sri Dhannalal admitted the
contents of the statement.
examination by defence.........." According to the appellant in respect of
Ashraf Ali also a similar procedure was followed. It is now well- settled that
strict rules of evidence are not applicable and are not required to be followed
in domestic inquiry [ e.g. What has to be ensured is that the principles of
natural justuce are complied with and the delinquent workman has the
opportunity of defending himself.
statements under Section 161 Cr.P.C. may not be admissible in the criminal
trial, but the said statemetns can be produced in a disciplinary inquiry like
person who made the statement has been examined before the inquiry officer. It
was open to the witness to have stated orally the entire contents of what was
recorded in his statement under Section 161 Cr.P.C. Instead of following this
time consuming procedure, the said statement recorded under Section 161 Cr.P.C.
was read over to the witness who admitted the contents thereof. In this way the
earlier statement under Section 161 Cr.P.C. became a part of the
examination-in-chief of the witness before the Inquiry Officer. It is not in
dispute that the said statements had been given to the respondent in advance
and full opportunity was granted to the respondent to crossexamine the said
witnesses. This being the case, it is difficult to appreciate as to how the
High Court could have come to the conclusion that the inquiry proceedings stood
coming to the aforesaid conclusion, we are fortified by the decision of a
Constitution Bench of this Court in the case of STATE OF MYSORE VS. S.S. MAKAPUR, 1963  SCR 943.
that case also, statements of witnesses which had been recorded behind the back
of the delinquent officer were taken on record and an opportunity of
cross-examination was given. The High Court had come to the conclusion that the
principles of natural justice had not been followed because of the admission in
evidence of such statements. While allowing the appeal and rejecting the
contention of the respondent therein, this Court in S.S. Makapur's case (supra)
at page 951 observed as follows:
the evidence is oral, normally the examination of the witness will in its
entirety, take place before the party charged, who will have full opportunity
of cross-examining him. The position is the same when a witness is called, the
statement given previously by him behind the back of the party is put to him,
and admitted in evidence, a copy thereof is given to the party, and he is given
an opportunity to cross-examine him. To require in that case that the contents
of the previous statement should be repeated by the witness word by word, and
sentence by sentence, is to insist on bare technicalities, and rules of natural
justice are matters not of from but of substance. In our Opinion they are
sufficiently complied with when previous statements given by witnesses are read
over to them, marked on their admission, copies thereof of given to the person
charged, and he is given an opportunity to cross-examine them." The
aforesaid obervations apply in the present case as 1981(3) SCR 145 dealing with
petition under Article 32 of the Constitution, the question arose whether the
statements made before the police officer in the course of investigation could
be directed to be produced and whether the bar of Section 162 Cr.P.C. applied
or not. In this connection, it was observed, at page 152, as follows:
bars the use of any statement made before a police officer in the course of an
investigation under Chanter XII, whether recorded in a police diary or
otherwise, but by the express terms of the Section this bar is applicable only
where such statement is sought to be used at any inquiry or trial in respect of
any offence under investigation at the time when such statement was made'. If
the statement made before a police officer in the course of an investigation
under chapter XII is sought to be used in any proceeding other than an inquiry
or trial or even at an inquiry of trial but in respect of an offence other than
that which was under investigation at the time when such statement was made,
the bar or Section 162 would not be attracted." Mr. Tarkunde, learned
counsel for the respondent, however, placed strong reliance on the following
observations of this court in M/S. KOSORAM COTTON MILLS LTD. VS. GANGADHAR AND
OTHERS, 1964(2) SCR 809 at page 827:
we can take judicial notice of the fact that many of our industrial workers are
illiterate and sometimes even the representatives of labour union may not be
present tc defend them. In such a case to read over a prepared statement in a
few minutes and then ask the workmen to cross- examine would make a mockery of
the opporturity that the rules of natural justice require that the workmen
should have to defend themselves. It seems to us therefore that when one is
dealing with domestic inquiries in industrial matters, the proper course for
the management is to examine the witnesses from the beginning to the end in the
presence of the workman at the enquiry itself. Oral examination always takes
much longer than a mere reading of a prepared statement of the same length and
brings home the evidence more clearly to the person against whom the inquiry is
speaking therefore we should expect a domestic inquiry by the management to the
of this kind." The aforesaid observations do imply that oral examination
should take place and reading of a prepared statement may cause prejudice but
the Court did not hold that the procedure which was referred to in
SHIBAVASAPPA'S CASE (supra) was illegal. In fact in the very next sentence, it
was observed in the said case as follows:
so we recognise the force of the argument on behalf of the appellant that the
main principles of natural justice cannot change from tribunal to tribunal and
therefore, it may be possible to have another method of conducting a domestic
inquiry (though we again repeat that this should not be the rule but the
exception) and that is in the manner laid down in Shibavasappa's case. The
minimum that we shall expect where witnesses are not examined from the very
beginning at the enquiry in the presence of the person charged is that the
person charged should be given a copy of the statements made by the witnesses
which are to be used at the inquiry well in advance before the inquiry begins
and when we say that the copy of the statements should be given well in advance
we mean that it should be given at least two days before the inquiry is to
begin." In the present case, statements under Section 161 Cr.P.C. had been
given to respondent No, 1 a number of months before the witnesses were
examined. Therefore, even the minimum requirement which is referred to in
KESORAM COTTON MILLS LTD. case (supra) was complied with.
the aforesaid discussion the only conclusion which could be arrived at is that
in the present case no illegality had been committed by taking on record the
statements which had been made under Section 161 Cr.P.C. and the conclusion of
the High Court which has held that the disciplinary proceedings stood vitiated,
is not correct.
to the question with regard to the presence of a C.B.I. Inspector during the
disciplinary proceedings, Mr. G.L Sanghi, learned counsel for the appellant,
has drawn our attention to the observation in the award of the Tribunal in
which it is stated that the C.B.I. Inspector was one of the witnesses in the
enquiry. When the objection regarding his presence was raised then he was
removed from there. This being so, one of the reasons given by the single Judge
for setting aside the award, was based on a wrong premise. In fact, the
Division Bench did not base its decision on this ground.
the aforesaid reasons, this appeal is allowed. The Judgments of the Single
Judge and the Division Bench of the Rajasthan High Court are set aside. During
the pendency of this appeal, by reason of the interim order passed by this
Court, certain payments have been made to the respondent. In the circumstances
of the case we direct that the amount so paid is not required to be refunded.
There will be, however, no order as to costs.