Heera
Prasad Vs. State Bank of India & Ors [1993] INSC 110 (2 March 1993)
Bharucha
S.P. (J) Bharucha S.P. (J) Verma, Jagdish Saran (J)
CITATION:
1993 SCR (2) 160 1993 SCC (2) 418 JT 1993 Supl. 67 1993 SCALE (1)768
ACT:
Constitution
of India, 1950: Article 136-Appeal-Service- Disciplinary proceeding-Bank
employee-Dismissal from service on the basis of enquiry report challenged
before High Court- High Court's order dated 8.7.1988 contemplating fresh
enquiry- "Additional enquiry report" made by Enquiry of- ficer-Whether
there was application of mind-Supreme Court's direction to appoint another
Enquiry Officer prescribing his duties.
HEAD NOTE:
The
respondent-bank charge-sheeted the appellant-employee for granting bank loans
to a large number of persons without proper documentation and without verifying
their credit- worthiness and obtaining illegal gratification in that
connection.
An
enquiry was held. The Enquiry Officer found the appellant guilty and on the
basis of the enquiry report, he was dismissed from service.
The
appellant challenged the order of dismissal in a writ petition before the High
Court.
On
8.7.1988 the High Court allowed the petition holding that the enquiry held was
not proper and in accordance with law and ordered the appellant to face another
enquiry in respect of which it gave certain directions.
The
same enquiry Officer then permitted the appellant to cross-examine the
witnesses of the bank and to examine his own witnesses.
The
Enquiry Officer held in his report dated 27.3.1989 that nine charges against
the appellant were found to be proved, one not proved and one partly proved.
The
disciplinary authority, considering the enquiry report, dismissed the appellant
from service on 23.10.1989.
161
The appellant challenged the dismissal order in the High Court contending that
the enquiry was not conducted as required by the order of the High Court dated
8.7.1998 and that he was not furnished with a copy of the Enquiry Report.
The
High Court dismissed the writ petition, against which the present appeal by
special leave was filed.
The
appellant contended that the Enquiry Officer in the second enquiry report had
relied upon the findings of the earlier enquiry, since quashed, and that he did
not permit the appellant to examine three necessary witnesses in support of his
case; that there was no real enquiry as contemplated by the High Court's order
dated 8.7.1988; and that, therefore, the dismissal order passed on the basis of
the second enquiry report be quashed.
The
respondent-bank submitted that the Enquiry Officer conducted the enquiry as
directed by the High Court in its order dated 8.7.1988.
Allowing
the appeal, this Court,
HELD
:
1.01.
The order dated 8th
July, 1988
contemplated a fresh enquiry. At best, the examination-in-chief of the
witnesses of the respondent could be said to have been allowed to be
incorporated in the second enquiry proceedings. The order certainly
contemplated that the Enquiry Officer would apply his mind afresh to the
evidence on record, comprising the examination-in-chief and cross- examination
of the respondent's witnesses and that of the appellant's witnesses. [165C]
1.02.
It was patent from the "Additional enquiry report" made by the
Enquiry. Officer that there had been no fresh application of mind. It was
impermissible for the Enquiry Officer, in these circumstances, to have borne
his previous Enquiry Report in mind and to have confined the "Additional
enquiry report" only to the cross-examination of prosecution witnesses and
the examination and cross-examination of defence witnesses .as the charges have
been dealt with one by one in detail in my previous enquiry report". It
was also impermissible for him to have stated that "the findings of the
previous enquiry report remain as they are". Having regard to the High
Court's order dated 8th July, 1988, the Enquiry Officer was bound to consider
the material on record afresh and not to take his earlier 162 report into
account and to say that he found "no reason to change that report'..
[165C-E]
1.03.
In the fitness of things it was directed that another Enquiry Officer should be
appointed by the respondent who should allow the appellant the opportunity of
examining as his witnesses the three persons referred to by the earlier Enquiry
Officer in the paragraph of the 'Addi- tional enquiry report" sub-titled
'Conclusion". He should give to the respondent and the appellant the
opportunity of a hearing. He should then apply his mind to the material on
record without in any way being influenced by the earlier enquiry reports, and
make his own enquiry report accordingly. [165G-H,'166A] Union of India and
Others v. Mohd Ramzan Khan, AIR 1991 SC 471, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 901 of 1993.
From
the Judgment and Order dated 15.11.91 of the Patna High Court in C.W..C. No.
3430 of 1991.
A. Sharan
for the Appellant.
G. Ramaswamy
and A.V. Rangam for the Respondents.
The
Judgment of the Court was delivered by BHARUCHA, J.Leave to appeal is granted.
The
appeal is directed against the judgment and order of the High Court at Patna
dismissing the writ petition filed by the appellant.
The
appellant was employed by the respondent. He was chargesheeted for having
granted bank loans to a large number of persons without proper documentation
and without verifying their creditworthiness and also with having obtained
illegal gratification in that connection. An en- quiry was held. The Enquiry
Officer made a report holding the appellant guilty. Upon the basis of the
enquiry report the appellant was dismissed from service.
The
appellant filed a writ petition before the High Court at Patna (being Writ
Petition No. C.W.J.C. No. 1979 of 1988) impugning the dis- 163 missal. The High
Court allowed the writ petition by judgment and order dated 8th July, 1988. The
enquiry, the court concluded, could not be held to be proper and in accordance
with law. Consequently, the order of dismissal was set aside. The High Court observed
:
"This
does not mean that the petitioner should be got scot free. He must face enquiry.
Sufficient
time has already lapsed. The enquiry must be concluded as early as pos- sible.
The petitioner will appear before the Enquirying Officer (to be nominated in
the meantime) at Patna on 2nd August, 1988 and the prosecution will produce the
witnesses examined on his behalf for cross-examination.
After
the cross-examination is over the petitioner will also produce the witnesses
when he may like to enquire. This should be done without any adjournment and the
proceed- ing should be conducted day to day so that it may be concluded as
early as possible. With this observation this writ application is disposed
of." The same Enquiry Officer then permitted the appellant to cross
examine the witnesses produced in support of the charge and to examine his own
witnesses. He made a report dated 27th March, 1989 in which he held nine charges
against the appellant to be proved, one to be partly proved and one not proved.
The disciplinary authority, upon consideration of the enquiry report, passed an
order dated 23rd
October, 1989,
dismissing the appellant from service.
The
appellant challenged the order of dismissal dated 23rd October, 1989 on the ground that the enquiry upon the basis of which it
had been passed had not been conducted as required by the order of the High
Court dated 8th July,
1988. He also
challenged it upon the ground that he had not been furnished with a copy of the
Enquiry Report. The High Court rejected the writ petition. It held that the
judgment of this Court in the case of Union of India and others v. Mohd. Ramzan
Khan, A.I.R. 1991 S.C. 471, did not cover an order of dismissal that had been
passed before the said judgment was delivered. Insofar as the enquiry report
was concerned, the High Court took the view that the Enquiry Officer had allowed
the appellant to participate in the proceedings as also to cross-examine
witnesses and he had considered all relevant aspects on the record.
164 It
will be recalled that the High Court by the judgment and order dated 8th July, 1988 had held that the earlier enquiry
was not proper and in accordance with law and had quashed the order of
dismissal dated 14th
February, 1987 based
thereon. It had directed that the appellant should face an enquiry whereat the
prosecution would produce the witnesses it had examined on its behalf for
cross-examination. by the appellant. Thereafter, the appellant could produce
such witnesses as he desired. It is the submission of learned counsel on behalf
of the appellant that the Enquiry Officer had in the second enquiry report
relied upon the findings of the earlier enquiry, since quashed, and that he had
not permitted the appellant to examine three necessary witnesses in support of
his case. There had, therefore, been no real enquiry as contemplated by the
High Court's order dated 8th
July, 1988 and that,
therefore, the dismissal order passed upon the basis of the second enquiry
report should be quashed.
Shri G
Ramaswamy, learner senior counsel for the respondent, submitted that the
Enquiry Officer had conducted the enquiry as directed by the High Court in its
order dated 8th July,
1988, from the point
of cross-examination of the respondent's witnesses onward.
The
enquiry report made by the Enquiry Officer subsequent to the order of the High
Court dated 8th July,
1988 is entitled
Additional enquiry report in respect of charges laid against Shri Heera
Prasad". It opens with the sentence, "This enquiry, report is further
to the enquiry, report already submitted by me in September 1986". It says
that "the enquiry was reopened". It says, further, ".As the
charges have been dealt with one by one in detail in my previous enquiry report
I am confining this report only to the cross examination of prosecution
witnesses as also examination/cross examination of defence witnesses." The
report concludes thus :
"After
going through the proceedings, hearing the depositions made by the defence
witnesses, and hearing the answers given by the prosecution witnesses, I find
no reason to change may report as no exonerating fact came out during the
enquiry instead it becomes a little darker particularly noting the fact that at
least three (03) of the witnesses cited by the charged officer himself refused
to come for deposing before the enquiry for reasons best known to the charged
officer/witnesses. As the various 165 exhibits etc. were discussed and analysed
by me in my previous report, I am not repeating the analysis once again in this
report." As aforesaid, the Enquiry Officer held nine of the eleven charges
to be proved, one to be partly proved and one to be not proved. (The Emphasis
is supplied).
It is
patent that the order dated 8th July, 1988
contemplated a fresh enquiry. At best, the examination-in- chief of the
witnesses of' the respondent could be said to have been allowed to be
incorporated in the second enquiry proceedings. The order certainly
contemplated that the Enquiry Officer would apply his mind afresh to the
evidence on record comprising the examination-in-chief and cross- examination
of the respondents witnesses and that of the appellant's witnesses. It is
patent from the "Additional enquiry report" made by the Enquiry
Officer that there has been no fresh application of mind. It was impermissible
for the Enquiry Officer, in these circumstances, to have borne his previous
Enquiry Report in mind and to have confined the "Additional enquiry
report" only to the cross-examination of prosecution witnesses and the
examination and cross-ex- amination of defence witnesses "as the charges
have been dealt with one by one in detail in my previous enquiry report".
It was also impermissible for him to have stated that "the findings of the
previous enquiry report remain as they are". Having regard to the High
Court's order dated 8th July, 1988, the Enquiry Officer was bound to consider
the material or, record afresh and not to take his earlier report into account
and to say that he found "no reason to change that report".
We
are, in the circumstances, not satisfied that the appellant has had a fair
opportunity of presenting his case to an Enquiry Officer unbiased by
pre-conceptions.
Having
regard to all that has transpired. we think that it is in the fitness of things
that the order of dismissal dated 23rd October, 1989 should be quashed and
another Enquiry Officer should be appointed by the respondent who should allow
the appellant the opportunity of examining as his witnesses the three persons
referred to by the earlier Enquiry Officer in the paragraph of the
"Additional enquiry report" subtitled "Conclusion". He
should give to the respondent and the appellant the opportunity of a hearing.
He
should then apply his mind to the material on record without in any way being
influenced by the earlier enquiry reports, and make his own enquiry report
accordingly.
In the
result, the appeal is allowed. The judgment and order under appeal are set
aside. The writ petition is allowed to the extent mentioned in the preceding
paragraph.
There
shall be no order as to costs.
V.P.R.
Appeal allowed.
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