State Bank of India
and Ors. Vs Bidyut Kumar Mitra and Ors.
JUDGMENT
SURINDER SINGH
NIJJAR, J.
1.
Leave
granted.
2.
This
appeal is directed against the final judgment and order dated 6th February, 2009
passed by the Division Bench of the High Court at Calcutta in M.A.T. No. 3613
of 2001 whereby the Division Bench quashed the enquiry proceedings against the
respondent held on the basis of the charge sheet dated 14th December, 1981, enquiry
report dated 22nd September, 1982, the order of punishment dated 4th July,
1983, the order dated 6th June, 1984 passed by the Appellate Authority as also
the resolution dated 12th November, 1987 adopted in the meeting of the Review
Committee of the appellant Bank.
3.
The
respondent was appointed as a Clerk in the Imperial Bank of India, which is a predecessor
of the appellant Bank. Way back in November, 1944, he had joined in the
capacity of a Clerk. Subsequently, by the year 1978-79, he was working as Branch
Manager at the Biplabi Rash Behari Bose Road Branch, Calcutta of the appellant
Bank. In the capacity of a Branch Manager, he granted numerous mid-term loans
to a number of transport operators without making appropriate scrutiny of the
applications as required under the rules. He had also granted the loans in
excess of his discretionary power thereby exposed the Bank to the risk of serious
financial loss.
4.
A
charge sheet dated 14th December, 1981 was served upon him alleging that he,
during his incumbency as the Branch Manager of the Biplabi Rash Behari Bose Road
Branch, Calcutta from 29th February, 1978 to 21 st August, 1979 had granted
medium term loans to large number of transport operators without making
thorough scrutiny of the relative proposals. He had sanctioned the loans even
before completion of the necessary formalities. The loans were granted without
making any discreet enquiries to the credit worthiness of the borrowers/guarantors.
He had thus violated the laid down norms and instructions of the Bank in this
regard and thereby exposed the Bank to grave risk of financial loss. The gist
of the allegations was as follows:-
"(i) (a)
granting loans, in as many as 29 cases (as per Annexure `B') out of 57 such
cases, far in excess of the discretionary powers vested in you in terms of H.O.
`SIB' Circular No.57 of 1979; (b) Sanctioning the loans in question without
compiling the necessary opinion reports on the borrowers/guarantors properly;
and (c) allowing most of these borrowers to stand AS guarantors for the
advances granted to others and vice-versa (as per Annexure `C');(ii) It has
further been alleged against you that- (a) You had failed to submit the necessary
control returns in respect of the Medium Terms Loans in question to the Controlling
Authority at the appropriate time despite reminders
(b) You had made full
payment to a body building firm viz. M/s. C.A. Engineers and Body Buildings,
Calcutta as per their quotation long before the delivery of the chassis by the suppliers,
in respect of a loan of Rs.1,92,000/- granted to Shri Ashoke Kumar Sengupta (MTL
No.21) on the 21st April, 1979; (c) You had allowed clean overdrafts to some of
these borrowers (as per Annexure `D'), presumably to meet their margin
requirements, without obtaining any letters of request and without stipulating
any repayment programme therefore and even without reporting the matter to your
Controlling Authority."
5.
It
was alleged that he had acted in an extremely negligent manner and thereby contravened
the provisions of Rules 32(3) and 32(4) of the State Bank of India (Supervising
Staff) Service Rules (hereinafter referred to as `Service Rules'). It was
further stated that the above charges, if proved, would amount to lapses
involving lack of devotion to duty and would be construed as prejudicial to the
interests of the Bank. Consequently, he was asked to show cause within fifteen days
as to why disciplinary action should not be taken against him. A copy of the list
of documents and list of witnesses relied upon by the Bank were supplied to the
respondent.
6.
On
11th March, 1982, Shri A.R. Banerjee, Commissioner of Departmental Enquiries,
Central Vigilance Commission (hereinafter referred to as `CVC') was appointed
as the Enquiry Officer. The Enquiry Officer instructed the Bank to show all the
documents including the additional documents relied upon by it to the defence
by 20th March, 1982. The defence assistant of the respondent was also
instructed to submit the list of the defence documents required, if any, by
31st March, 1982 along with the respective relevancy to the charge sheet and
likely whereabouts of the documents. He was also instructed to submit the list of
additional witnesses, which were required to be summoned along with their
latest addresses. By letter dated31st March, 1982, the respondent informed the
Enquiry Officer that he shall submit the list of defence witnesses and documents
within "a couple of days". Thereafter, the defence representative of the
respondent by letter dated 3rd April,1982 addressed to the Enquiry Officer, submitted
a list of witnesses and documents of the defence. According tothe respondent,
all the witnesses referred to in the list of witnesses were officers of the
Bank. Similarly, the documents referred to, were also in the possession of the
management of the Bank. Therefore, the respondent claimed that he was unable to
produce either the witnesses or the documents in support of his defence, unless
they were summoned by the Enquiry Officer.
7.
It
appears that the two witnesses referred to in the said application of the respondent
were summoned. However, the documents relied upon by the respondent were not
requisitioned. It was the case of the respondent that in fact his prayer in
respect of the aforesaid documents was never disposed of and no reason was
assigned by the Enquiry Officer for not requisitioning such documents. It
appears that the aforesaid issue was also not dealt with by the Enquiry Officer
in the Enquiry Report dated 22nd September, 1982. On this short ground, the respondent
had claimed that he was denied reasonable opportunity of hearing at the enquiry
and the same has caused serious prejudice to his defence.
8.
On
16th September, 1982, the respondent submitted the defence arguments in the form
of a written brief. In the aforesaid brief, the respondent did not raise the issue
of non-supply of any documents. On 16th June, 1983, the Disciplinary Authority
forwarded his comments and a note on the enquiry proceeding to the Appointing
Authority. In this note, the Disciplinary Authority agreed with the findings of
the Enquiry Officer. It was mentioned that it has been proved at the enquiry that
the respondent granted medium term loans to a large number of transport
operators, not in a proper manner, thus exposed the Bank to a risk of
substantial financial loss. It was further mentioned that while granting advances,
the respondent should have ascertained his discretionary powers and followed
the Bank instructions. The Disciplinary Authority recommended the imposition of
penalty of dismissal on the respondent.
9.
By
order dated 4th July, 1983, the Appointing Authority, upon examination of the
records pertaining to the enquiry, agreed with the findings of the Disciplinary
Authority and imposed the punishment of dismissal on the respondent in terms of
Rule 49(h) read with Rule 50(3)(iii) of the Service Rules effective from the
date of the receipt of the aforesaid order.
10.
Aggrieved
by the aforesaid order of dismissal, the respondent filed a departmental appeal
on 31st August, 1983. In the aforesaid appeal, the respondent for the first
time alleged violation of principle of natural justice due to non-supply of
documents as requested through his letter dated 3rd April, 1982. However, there
was no averment with regard to the non-supply of CVC recommendations.
Furthermore, the respondent had not given any particulars as to what prejudice
had been caused to him during the course of the enquiry proceeding. Such an
objection was also not raised by the respondent while the enquiry was being
conducted.
11.
By
order dated 6th June, 1984, the Appellate Authority upheld the order of the
Appointing Authority imposing the punishment of dismissal. With regard to the
non-supply of some documents, the Appellate Authority held that respondent had
failed to submit the list of documents and witnesses within the stipulated
time. Furthermore, he did not raise any objection during the course of the enquiry.
12.
Being
aggrieved by the aforesaid order of 1st December, 1984, the respondent filed a
review application. He made a grievance that neither the Enquiry Officer nor
the Disciplinary Authority or the Appellate Authority while passing the orders considered
the material contentions raised by the respondent in his written statement of
defence as well as in his petition of appeal. According to him, all the
authorities proceeded with a predetermined mind and the orders have been passed
mechanically. For the first time, he made a grievance that neither the documents
mentioned in the application dated 3rd April, 1982 were requisitioned nor the witnesses
mentioned in the list of witnesses were summoned. He then proceeded to set out the
relevance of the documents which according to him would have enabled him to
prove at the enquiry that priority sector advance was given utmost importance
in the Bank's policy. It was, therefore, incumbent upon him as Branch Manager
to make all efforts to increase advances in the priority sector which includes
transport loans. The opinion reports submitted by the respondent with regard to
the loans were never incomplete. They were not produced at the enquiry.
He also highlighted
that production of documents listed at Sr. No. 12 would have shown that the
respondent was absorbed with the work relating to IDBI Refinance, which resulted
in a little delay in submitting the controlled return. He stated that the
documents mentioned at Sr. No. 14 would have shown that the overdrafts of
borrowers were sanctioned on the basis of request letters. According to him,
the document at Sr. No. 17 would have enabled him to prove that in priority sector
group guarantee or counter guarantee was permissible in case of loans to transport
borrowers. He, therefore, submitted that non- summoning of such documents
resulted in denial of reasonable opportunity and was in gross violation of
principle of natural justice.
13.
By
a detailed order dated 12th/16th November, 1987, the Review Committee declined
to interfere with the order of the Appointing Authority which had been upheld
by the Appellate Authority.
14.
Aggrieved
by the action of the Bank in passing the aforesaid order, the respondent challenged
the same in a Writ Petition Civil Order No. 7390 (W) of 1988 in the High Court
at Calcutta. It would appear that for the first time, the respondent raised the
ground of non- supply of the vigilance report. He also submitted that the
refusal of the Bank to requisition the documents mentioned in the list of
witnesses and to summon the witnesses named in the list of witnesses resulted in
denial of reasonable opportunity of hearing at the enquiry and the same caused
serious prejudice to his defence. He stated that out of the seventeen documents
referred to in the application dated 3rd April, 1982, the documents at Sr. No.
1, 2, 6, 12, 14 and 17 were most vital documents. He reiterated the pleas which
were raised in the Review Petition.
15.
The
appellant Bank filed a detailed counter affidavit in opposition to the writ petition
denying all allegations and claims of the respondent. In reply to paras 10, 11
and 12 of the petition, it was stated that respondent was asked to submit his list
of documents and witnesses by 31st March, 1982, but he failed to do so. He
submitted the list after nearly two months and as such no action could be taken
there upon. It is reiterated that the respondent did not make any grievance
about the non-production of documents at the enquiry. He also did not raise any
objection with regard to non-calling of any witness at the enquiry. It was
stated that the allegations with regard to denial of natural justice are
baseless and the respondent had in fact admitted that he committed the
irregularity but he blamed the Head Office for not warning the respondent well in
advance.
His justification
about the group guarantee was nullified by his own defence witness, a
Development Manager, who deposed that the group guarantee is meant for poor
sections of the community under Differential Interest Rate (DIR) loans and not
for transport operators. It was also pointed out that group guarantees are taken
only for loans of about Rs.6,500/-or so and not for large amounts of Rs. 1Lac
and above. The appellant Bank also submitted that there were no violations of principle
of natural justice. The appellant Bank also submitted that Presenting Officer made
repeated requests to the respondent to submit the list of documents and
witnesses but the respondent ignored the requests. It was only about two months
later when the enquiry was virtually completed when the respondent submitted a
request letter dated 3rd April, 1982.
16.
By
judgment and order dated 18th April, 2001, the learned Single Judge dismissed the
writ petition. Aggrieved by the judgment of the learned Single Judge, the respondent
challenged the same in appeal before the Division Bench. The Division Bench
vide judgment and order dated 6th February, 2009 set aside the judgment of the
learned Single Judge dated 18th April, 2001 and allowed the writ petition.
Consequently, the Enquiry Report, order of punishment and the subsequent orders
of the Appellate Authority as also the resolution passed by the Review
Committee were quashed and set aside. The Bank has challenged the aforesaid
judgment of the Division Bench in the present appeal.
17.
We
have heard the learned counsel for the parties.
18.
It
is submitted by Mr. Shyam Divan, learned senior counsel appearing for the Bank
that the Division Bench without adverting to the fact situation held that there
has been a breach of rules of natural justice, which has vitiated the entire
disciplinary proceedings from the stage of holding of the departmental enquiry
till the passing of the resolution by the Review Committee. Learned Single Judge,
according to the learned senior counsel, had given cogent reasons to justify
its conclusions on facts. It was rightly observed by the learned Single Judge
that respondent never raised the issue of any prejudice having been caused by the
non-supply of the documents during the proceedings. The Division Bench also
failed to appreciate that all material documents relied upon by the Bank had
been supplied to or inspected by the respondent.
The Division Bench,
wrongly relying on a judgment of this Court in the case of State Bank of India
and Ors. Vs. D.C. Aggarwal and Anr.1 held that the non- supply of the report of
the CVC had vitiated the entire proceedings. Learned senior counsel submitted
that both the grounds on which the judgment of the Division Bench is based are
factually non-existent in this case. According to Mr. Divan, the matter herein
is in fact covered by the judgment of this Court in the case of State Bank of
India and Ors Vs. S. N. Goyal2 wherein the judgment in D.C. Aggarwal's case
(supra) has been distinguished. Learned senior counsel had also relied on Disciplinary
Authority-cum-Regional Manager and Ors Vs. Nikunja Bihari Patnaik3 and Regional
Manager, U.P. SRTC, Etwah and Ors Vs. Hoti Lal and Anr.4.
19.
On
the other hand, Mr. Kalyan Bandopadhyay, learned senior counsel appearing for
the respondent submitted that there has been a clear breach of procedure
prescribed under Rule 50 sub- clause xi of the Service Rules. The Division
Bench on consideration of the aforesaid rule concluded that the learned Single
Judge did not take care of the procedural impropriety, i.e., breach of Rule 50 in
conducting the enquiry proceeding against the respondent. Learned senior
counsel further submitted that the procedural requirements under Rule 50 are
mandatory in nature to ensure that there is a fair enquiry. Mr. Bandopadhyay
further submitted that non-supply of the recommendations of the CVC being contrary
to the requirements of the Service Rules, any further proof of prejudice was not
required. Once the procedural rule had been violated, prejudice would be presumed.
In support of his submissions, Mr. Bandopadhyay relied on a number of judgments
of this Court in the case of D.C. Aggarwal's case(supra), Committee of
Management, Kisan Degree College Vs. Shambhu Saran Pandey and Ors.5, State Bank
of Patiala and Ors Vs. S.K. Sharma6 and Nagarjuna Construction Company Limited
Vs. Government of Andhra Pradesh and Ors.
20.
Mr.
Bandopadhyay submits that the Division Bench had passed a just order to remove
an injustice. The respondent had been dismissed from service arbitrarily. The
entire disciplinary proceedings were vitiated being violative of principle of natural
justice. According to the learned senior counsel, the appeal observes to be dismissed.
21.
We
have considered the submissions made by the learned counsel for the parties.
Before we consider the judgment of the Division Bench, it would be appropriate to
notice the opening remarks made by the learned Single Judge in its order dated 18th
April, 2001. The learned Single Judge observed as follows:-"Very many
points had been urged in the writ petition in support of the challenged thrown
to the charge sheet, proceedings pursuant thereto and the orders passed therein,
but at the hearing the same was restricted to denial of natural justice for not
supplying the vigilance report, which, according to the petitioner, was
considered while taking the decision for completion of the disciplinary
proceedings." From the above, it become obvious that even before the learned
Single Judge, the respondent had made no grievance about the non-supply of
documents.
Also no further issue
was raised about any prejudice having been caused to the respondent. With
regard to the non-supply of the recommendations of the CVC, the learned Single Judge
made the following observations:-"It is true that if in a disciplinary
proceeding a decision is taken on the basis of a recommendation or advice, not 25
supplied to the delinquent, such a decision would be bad. On the pleadings
there is no dispute that in the case of the Petitioner advice and
recommendations were sent by the Central Vigilance Commission. There is also no
dispute that such advice and recommendations were not communicated to the
Petitioner. If the decisions impugned in this writ petition have been taken on
the basis of such advice and recommendations, the same are equally bad. It is
not the case of the Petitioner that by reason of any application rule or by
reason of usage, custom or practice, the Authorities concerned, who have decided
the matters, are bound to take into account such advice or recommendations of
the Central Vigilance Commission.
Therefore, despite
such advice and recommendations having been given, the Authorities concerned,
who are empowered to decide, may totally ignore such advice and recommendations
and if they so ignore they will be well within their right to do so. In the instant
case it has been denied that such advice or recommendations were taken note of
or considered by the Authorities concerned, who passed the impugned orders. The
orders in question have been set out above. From that it does not appear that
the Authorities concerned have in fact considered any of the said advices or recommendations
of the Central Vigilance Commission.
Merely because the
Central Vigilance Commission had given advice or recommendations, but the same
were not furnished to the Petitioner to give him an opportunity to deal with
the same, would not make the decisions impugned in the instant case bad, unless
it is shown and established that the decisions in the instant case are
influenced by such advice or recommendations. There is nothing on record from where
it can be safely said that at or before making the impugned decisions, any of
the authorities concerned in fact looked into or considered such advices or recommendations
of the Central Vigilance Commission. In that view of the matter, it cannot be
said that there has been denial of natural justice in the instant case for not
supplying the subject Vigilance reports case for not 26 supplying the subject
Vigilance reports or advice and recommendations as the case may be."
22.
The
aforesaid observations make it abundantly clear that the recommendations of the
CVC were not taken into consideration by the authorities concerned. There was
also no other material on the record to show that before taking the impugned
decisions, any of the authorities concerned took into consideration any advice or
recommendations of the CVC. It was also not even the case of the respondent
that under any rule, usage, customs or practice, the authorities concerned were
bound to take into account such advice or recommendations of the CVC. The authorities
concerned would be within their right to totally ignore any advice or recommendations
of the CVC, if they so chose. The learned Single Judge also observed that in
case of D.C. Aggarwal's case (supra), the authorities had relied upon the
recommendations of the CVC, which were not at all disclosed to the delinquent
officer. On the fact situation in the present case, the learned Single Judge
held that the authorities concerned have not looked at the advice or
recommendations of the CVC before taking any of the impugned decisions. The aforesaid
judgment was distinguishable as it did not apply in the facts of this case.
23.
The
Division Bench, in our opinion, erroneously proceeded to presume that there has
been either any breach of the statutory rules or violation of rules of natural
justice. The Division Bench also failed to take into consideration that the issue
with regard to the non-supply of the documents listed in the letter dated 3rd
April, 1982 was not even canvassed before the learned Single Judge at the time
of arguments. As is evident from the remarks of the learned Single Judge at the
hearing of the writ petition, counsel for the respondent restricted the
challenge only to denial of natural justice for not supplying the vigilance
report. This apart, the Division Bench totally ignored the fact that the respondent
did not care to raise the issue of non-supply of the documents during the entire
course of the enquiry proceedings. He also totally omitted to raise such an
issue in the written brief containing his defence arguments. The Appellate
Authority in its order dated 6th June, 1984 noticed that the
respondent had "failed to submit his list of documents and witnesses which
he wanted to produce for the purpose of his defence within the date stipulated
the Inquiring Authority and he also did not raise any objection during the
course of enquiry
." The Review
Committee in its order dated 12th November, 1987 upon consideration of the
entire matter observed as follows:-"The Petitioner has contended that
certain documents required by him were not made available to him by the prosecution
at the inquiry. The records reveal, in this respect, that he was asked to
submit his lists of documents and witnesses by the 31st March, 1982 and that he
had failed to do so. The lists were in fact received by the Presenting Officer
on the 28th May 1982, far beyond the stipulated time, and as such no action was
taken thereon. However, the Committee is at a loss to understand as to why the
Petitioner did not press at the Inquiry for the production of the requisite
documents if they were so vital as to cause serious prejudice to his defence as
alleged. The Petitioner's accusation that the Inquiry Authority refused to
summon all the defence witnesses is also not acceptable for the same reason
that the list was not received within the stipulated period. The committee,
however, observes that the Inquiring 30 Authority had, in fact, permitted the
Petitioner to produce his witnesses for deposition."
24.
These
observations indicate even though the grievance was made belatedly, the same
was duly considered by the highest authority of the Bank. Even at that stage,
the respondent had failed to point out as to what prejudice had been caused to
him during the course of the enquiry. In such circumstances, the Division Bench
was wholly unjustified in setting aside the entire disciplinary proceedings and
the findings recorded by the learned Single Judge.
25.
In
our opinion, the Division Bench has erroneously relied on the judgment in D.C.
Aggarwal's case (supra). As rightly observed by the learned Single Judge, in that
case this Court considered a situation where the Disciplinary Authority passed an
elaborate order regarding findings against the Charge Sheet Officer agreeing on
each charge on which CVC had found against him. In these circumstances, this
Court observed that:-"The order is vitiated not because of mechanical
exercise of powers or for non-supply of the inquiry report but for relying and
acting on material which was not only irrelevant but could not have been looked
into. Purpose of supplying document is to contest its veracity or give explanation.
Effect of non-supply of the report of Inquiry Officer before imposition of
punishment need not be gone into nor it is necessary to consider validity of
sub-rule (5). But non-supply of CVC recommendation which was prepared behind
the back of respondent without his participation, and one does not know on what
material which was not only sent to the disciplinary authority but was examined
and relied on, was certainly violative of procedural safeguard and contrary to
fair and just inquiry." These observations would not be applicable in the
facts of the present case as the Disciplinary Authority did not take into
consideration any recommendations of the CVC. The judgment was, therefore,
rightly distinguished by the learned Single Judge.
26.
We
may now consider the other judgments relied upon by Mr. Bandopadhyay. In the
case of Kisan Degree College (supra), this Court noticed that the respondent was
dismissed from service on the basis of an Enquiry Report. In that case, the respondent
had at the earliest sought for inspection of the documents. He was, however,
told to inspect the same at the time of final arguments in the enquiry. It was,
therefore, held that the enquiry proceeding had been conducted in breach of
rule of natural justice. The aforesaid judgment would have no relevance in the facts
of this case. In the case of S.K. Sharma (supra), this Court held that
violation of any and every procedural provision cannot be said to automatically
vitiate the enquiry held or order passed.
Except in cases
falling under - "no notice", "no opportunity" and "no hearing"
categories, the complaint of violation of procedural provision should be
examined from the point of view of prejudice, viz., whether such violation has prejudiced
the delinquent officer/employee in defending himself properly and effectively. In
the presen tcase, we have noticed above that the respondent did not even care
to submit the list of documents within the stipulated time. Further, he did not
even care to specify the relevance of the documents sought to be requisitioned.
In our opinion, the appellant Bank has not transgressed any of the principles
laid down in the aforesaid judgment whilst conducting and concluding the departmental
proceedings against the respondent. Therefore, the aforesaid observations in
S.K. Sharma's case are of no avail to the respondent. In the case of Nagarjuna
Construction Company Limited (supra), this Court observed as follows:-
"The basic
principles of natural justice seem to have been disregarded by the State
government while revising the order. It acted on materials which were not
supplied to the appellants. Accordingly, the High Court for the first time made
reference to the report/inspection notes which were not even referred to by the
State Government while exercising revisional power."These observations are
of no relevance in the facts and circumstances of the present case. The
respondent herein is merely trying to make capital of his own lapse in not
submitting the list of documents in time and also not stating the relevance of
the documents required to be produced. By now, the legal position is well
settled and defined. It was incumbent on the respondent to plead and prove the
prejudice caused by the non-supply of the documents. The respondent has failed
to place on record any facts or material to prove what prejudice has been caused
to him.
27.
At
this stage, it would be relevant to make are ference to certain observations
made by this Court in the case of Haryana Financial Corporation and Anr. Vs.
Kailash Chandra Ahuja8, which are as under:-"From the ratio laid down in
B. Karunakar1 it is explicitly clear that the doctrine of natural justice
requires supply of a copy of the inquiry officer's report to the delinquent if such
inquiry officer is other than the disciplinary authority. It is also clear that
non-supply of report of the inquiry officer is in the breach of natural
justice. But it is equally clear that failure to supply a report of the inquiry
officer to the delinquent employee would not ipso facto result in the
proceedings being declared null and void and the order of punishment non est
and ineffective. It is for the delinquent employee to plead and prove that non-
supply of such report had caused prejudice and resulted in miscarriage of
justice. If he is unable to satisfy the court on that point, the order of
punishment cannot automatically be set aside."
28.
We
may also notice here that there is not much substance in the submission of Mr. Bandopadhyay
that mere breach of Rule 50(11) would give rise to a presumption of prejudice
having been caused to the respondent. The aforesaid rule is as under:-"(x)
(a) the inquiring authority shall where the employee does not admit all or any
of the articles of charge furnish to such employee a list of documents by
which, and a list of witnesses by whom, the articles of charge are proposed to
be proved. (b) The Inquiring Authority shall also record an order that the
employee may for the purpose of preparing his defence: I. inspect and take
notes of the documents listed within five days of the order or within such
further time not exceeding five days as the Inquiring Authority may allow: II. submit
a list of documents and witnesses that he wants for inquiry: III. be supplied
with copies of statements of witnesses, if any, recorded earlier and the Inquiring
Authority shall furnish such copies not later than three days before the
commencement of the examination of the witnesses by the Inquiring Authority. IV.
give a notice within ten days of the order or within such further time not
exceeding ten days as the Inquiry Authority may allow for the discovery or
production of the documents referred to at (II) above. 37 Note:
The relevancy of the documents
and the examination of the witnesses referred to at (II) above shall be given
by the employee concerned.(xi) the Inquiry Authority shall, on receipt of the
notice for the discovery of production of the documents, forward the same or
copies thereof to the authority in whose custody or possession the documents are
kept with a requisition for the production of the documents on such date as may
be specified." A perusal of the note under Clause 4 of the aforesaid rule would
make it obvious that the respondent was not only to submit a list of documents
and witnesses but was also required to state the relevancy of the documents and
the examination of the witnesses. The respondent himself having not complied
with the procedural requirements can hardly complain that a breach of the
procedural requirements under Clause xi would ipso facto result in rendering
the enquiry null and void. In any event, since the Disciplinary Authority has not
relied on any recommendations of the CVC and the respondent has failed to plead
or prove any prejudice having been caused, the disciplinary proceedings can not
be said to be vitiated.
29.
In
our opinion, the aforesaid observations of this Court are fully applicable to
the facts and circumstances of this case. In our opinion, the respondent has
failed to prove any prejudice caused which has resulted in miscarriage of
justice. In our opinion, the judgment of the Division Bench can not be
sustained in law. The appeal is, therefore, allowed, the impugned judgment of the
Division Bench is set aside and the judgment of the learned Single Judge is restored.
...................................J.
[B.Sudershan Reddy]
.
...................................J. [Surinder Singh Nijjar]
New
Delhi;
January
11, 2011.
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