Posted On by &filed under Andhra High Court, High Court.


Andhra High Court
G.L.N. Acharyulu vs The Managing Director (Appellate … on 18 December, 1992
Equivalent citations: 1993 (1) ALT 316
Author: M B Naik
Bench: M B Naik


ORDER

Motilal B. Naik, J.

1. This petition is for a writ of Certiorari, seeking to quash the proceedings of the first respondent Managing Director, dt.20-9-1989, confirming the proceedings of the second respondent dt.30-12-1988, compulsorily retiring the petitioner from the service.

2. Though the petitioner has assailed the order impugned on various counts, primarily, without adverting to the merits and demerits of the case, I have taken up to decide the matter only on the question of principles of natural justice, whether the petitioner was given a fair and reasonable opportunity before the final order is passed.

3. The case of the petitioner is that he was originally appointed as a Cashier-cum-Godown Keeper in the State Bank of Hyderabad on 4-8-1970 and was directed to report for duty at Jaggayyapet Branch. Later on, the petitioner was promoted as an Officer in the Junior Management Grade Scalei by proceedings No.Per/PF/2762, dt.23-6-1980 and was put on probation for a period of one year from 24-3-1980. He was posted as a Branch Manager, State Bank of Hyderabad, Uttar Kanchi Branch in East Godavari district and worked in the said position from December, 1981 to August, 1983. While so, there were some complaints against the Branch Manager by one C. Babu Rao and his brother C. Ramaiah, as the petitioner did not sanction fresh loans to these persons. While proceedings of recovery were initiated by the petitioner, the said two persons entertained ill-feelings against the petitioner and levelled wild allegations complaining to the higher authorities. An anonymous letter dt.5-9-1982 threatening his life was also received by him. This fact was informed to the General Manager and the District Collector and sought police assistance also in this regard. It is stated by the petitioner that on the basis of anonymous letters, sent by some persons alleging the petitioner collecting funds for construction of a temple, using his office for the said purpose, the respondent-Bank deputed Sri Jalapathi Rao, Officer in-charge of staff matters on 30-9-1982 to enquire into the matter and submit his report. It is stated that the said Jalapathi Rao enquired into the allegations and submitted his report on 8-10-1982. It is further alleged that the said Jalapathi Rao conducted an enquiry behind the back of the petitioner without affording opportunity to him and submitted a report. It is stated that in the said report dt.8-10-1982, it is said to have been intimated that there were other allegations against the petitioner collecting funds from the borrowers for the purpose of construction of a temple. On the basis of the report of the said Jalapathi Rao, the Chief Vigilance Officer directed the Controlling Authority to make further enquiry about the allegations and to hand over the case to the Vigilance Wing. On the basis of the note dt.18-10-1982 of the Chief Vigilance Officer, one Sri C.N.K. Sharma, Administrative Officer was directed to enquire into the allegations and submit his report. Accordingly the said Sharma went to Uttar Kanchi and made enquiries behind the back of the petitioner and perused the records and submitted his report on 12-11-1982. It is contended that he has not found the petitioner guilty of any charge of collecting funds for construction of Venkateshwara temple at Uttar Kanchi. It is contended that the report of Sri Jalapathi Rao dt.8-10-1982 and report of Sri C.N.K. Sharma dt.12-11-1982 did not disclose that the petitioner while sanctioning loans collected illegal gratification. However it is contended by the petitioner that Sri C.N.K. Sharma, Administrative Officer went to Uttar Kanchi and abused the petitioner in the presence of various Officers, though objected by him. The said Officer seems to have contacted C. Babu Rao and C. Ramaiah, Harischandrudu and other followers of the said persons who sent information against the petitioner. This fact of Chief Vigilance officer inviting complaints against the petitioner from various sources was intimated to the General Manager by the petitioner, alleging that the Chief Vigilance Officer is being hostile towards the petitioner. It is contended that the report of the Chief Vigilance Officer was not furnished to him. However on the basis of the ex parte report of the Vigilance Officer, the petitioner was placed under suspension by proceedings GR/P & C/5, dt.6-4-1983 which was served on the petitioner on 26-8-1983. Subsequently the matter was entrusted to Central Bureau of Investigation, Vishakapatnam on the report of the Chief Vigilance Officer and the petitioner was directed by Chief Vigilance Officer to report before the Superintendent of Police, Central Bureau of Investigation on 17-4-1984. Meanwhile the petitioner filed an appeal against the order of suspension and it was allowed by the Managing Director in his proceedings R-3/GR-3/C, dated 31-12-1984, withdrawing the order of suspension and reinstating the petitioner into service and was posted at Hanmakonda. While so once again by proceedings dt.18-1-1985 of the Regional Manager, the petitioner was posted as Assistant Accountant at Bellampally branch. The reinstatement, it is contended, was without prejudice to the proceedings that may be initiated against the petitioner.

4. Subsequently, the Disciplinary authority/General Manager (Operation) by proceedings DPC/1106/26-7-1985 issued a charge memo under Regulation 68 of State Bank of Hyderabad Officers Service Regulations, 1979, framing as many as six charges against the petitioner and directed him to submit his defence within a period of 15 days. The petitioner received the charge memo on 14-8-1985 and sought time and ultimately submitted his defence on 12-10-1985. It is contended that Sri K. Shyamsunder Prasad was appointed as Enquiry Officer by proceedings No. APC /686, dt.2-6-1986, but subsequently by proceedings DPC/81, dt.13-1-1988, one B.V. Narasinga Rao Officer MMGS-III, State Bank of Hyderabad, Disciplinary Proceedings Cell, Head Office was appointed as Enquiry Officer in place of Sri K. Shyamsunder Prasad to conduct enquiry relating to the charges framed. It is stated that the preliminary enquiry was held on 4-3-1988 and regular enquiry was commenced on 6-4-1988 and was concluded on 14-9-1988. It is contended that the petitioner received the order in DPC/1876, dt.30-12-1988 issued by the appointing authority, the Chief General Manager, imposing penalty of compulsory retirement from the Bank service in terms of Regulation 67/F of the State! Bank of Hyderabad Officers Service Regulations, 1979, enclosing a separate order of the appointing authority dt.29-12-1988, along with the recommendations of Disciplinary authority dated 27-12-1983 and the report of the Enquiry Officer dt.4-11-1988.

5. The main thrust on behalf of the petitioner as contended by Sri K. Subrahmanya Reddy representing Sri C.V. Rajeeva Reddy, learned Counsel for the petitioner is on three folds. It is contended that without going into the merits of the case, the principles of natural justice are violated inasmuch as the petitioner was not furnished with a copy of the report of enquiry and yet initially the petitioner was asked to submit his defence by an order dt.26-7-1985. The petitioner was forced to submit his defence without the benefit of the report being made available to him as the authorities directed the petitioner to submit his defence within some period and therefore the petitioner was forced to submit his defence under this background.

6. The next contention raised on behalf of the petitioner is that the order in proceedings DPC/1876, dt.30-12-1988 issued by the Appointing Authority (Chief General Manager) imposing the penalty of compulsory retirement in terms of Regulation 67/F of the State Bank of Hyderabad Officers Service Regulations, 1979 while enclosing a copy of the order of the Appointing Authority dt.29-12-1988 along with the recommendations of the Disciplinary authority dt.27-12-1988 and Enquiry Officer’s report dt.4-11-1988, is clear violation of principles of natural justice as the petitioner was not given a fair deal by supplying a copy of the Enquiry report dt.4-11-1988 of the Enquiry Authority nor with the recommendations of the Disciplinary Authority dated 27-12-1988 before the final order of compulsory retirement is passed. The petitioner was denied of an opportunity of perusing the enquiry report and make his submission before the Disciplinary Authority who recommended compulsory retirement.

7. The third contention is while imposing the quantum of punishment, the petitioner was not given a chance to represent as to the quantum of punishment and that therefore it is clear violation of principles of natural justice.

8. On behalf of the respondents a detailed counter has been filed inter-alia refuting the allegations. It is contended by Sri K. Srinivasa Murthy, learned counsel appearing for the respondent-Bank that the Disciplinary Authority who is the GeneraL Manager (Operations) considered the entire material on record and recommended necessary action to be taken by the Appointing Authority. He further contended that there is no rule in the Service Rules of State Bank of Hyderabad Officers Service Rules, 1979, contemplating to furnish the enquiry report to the charge-sheeted Officer and therefore, there is no violation of principles of natural justice. It is contended that the petitioner was furnished with the enquiry report along with the findings and recommendations of the Disciplinary Authority along with the final order. As against said order, the petitioner also preferred an appeal before the appellate authority i.e., Board of Directors and therefore there is no violation of principles of natural justice.

9. In the context of stands taken, the question that falls for consideration, without adverting to the merits, is whether there is any violation of principles of natural justice as pleaded by the petitioner and was denied reasonable opportunity. Admittedly the report of the Enquiry Officer has not been furnished to the petitioner. Secondly, the report of the Disciplinary Authority recommending the final authority for compulsory retirement, is also not furnished to the petitioner. The petitioner was not given an opportunity to place his case before the final authority even on the quantum of punishment. At para 11 page 4 of the counter filed by the respondent Bank, it is stated as under:

“The Disciplinary Authority, i.e., 3rd respondent who is also the General Manager (Operations) of the Respondent-Bank, had considered the entire material on record and findings of the Enquiry Officer and found that the charges proved warrant; for a higher punishment and that therefore it required to be examined by the Appointing Authority who is the Chief General Manager and accordingly, forwarded the entire file along with the findings and recommendations dated 27-12-1988 along with Inquiry Authority’s dt. 4-11-1988. The Appointing Authority is the 2nd respondent/Chief General Manager had considered the entire material placed before the Enquiry Officer, the findings of the Inquiring Authority, the findings and recommendations of the Disciplinary Authority and came to the conclusion that some of the charges were proved and the proved charges call for punishment of compulsory retirement and accordingly awarded the punishment of compulsory retirement to the petitioner.”

It is evident from the counter that the Disciplinary Authority had considered the entire material on record and the finding of the Enquiry Officer and found that the charges were proved. The specific case of the petitioner is that the petitioner had no idea as to what was the material before the Disciplinary Authority and that he was not furnished with the copy of the finding of the Enquiry Officer and therefore the petitioner is clearly kept in dark about the findings. At para 14 of page 5 of the counter, it is asserted that there is no rule to provide enquiry report to the charge-sheeted Officer and therefore there is no violation of principles of natural justice. In my view, this cannot be the proper stand to be taken against a person who is to be imposed with the punishment of compulsory retirement. After all fair play is needed when a person against whom an order is to be passed and if fair play is not displayed there is clear violation of principles of natural justice.

10. In K.L Thripathi v. State Bank of India ., the Supreme Court summarised the reasonable opportunity and its violations as under:

“(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations of which such charges are based;

(b) An opportunity to defend himself by cross-examining the witnesses, produced against him and by examininghim self or any other witnesses’ in support of his defence, and finally;

(c) An opportunity to mate his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant.”

The Supreme Court further observed:

“All the actions against a party which involve penal or adverse consequences must be in accordance with the principles of natural justice but whether any particular situation or the question whether there has been any infraction of the application of that principle, has to be judged, in the light of facts and circumstances of each particular case. The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons. We must reiterate again that the rules of natural justice are flexible and cannot be put on any rigid formula.”

The requirement of natural justice must depend upon the facts and circumstances of case, nature of the enquiry, subject matter of the case to be dealt with, and so forth. All actions against a party which involve penal or adverse consequences must be in accordance with the principles of natural justice whether any particular principle of natural justice would be applicable to a particular situation or the question whether there has been any infraction of the application of that principle has to be judged in the light of facts and circumstances of each particular case. In the instant case, undoubtedly the petitioner was denied of the report of the Enquiry Officer and the materials which are available before the Disciplinary Authority and the report of the Disciplinary Authority. The petitioner was also denied of an opportunity to place the facts before the Recommending Authority for consideration. In the absence of all the material not being supplied to him and no reasonable opportunity given to the petitioner to sustain the allegation, in my view, there is clear violation of principles of natural justice.

11. In Swadesh Cotton Mills v. Union of India, ., the question of violation of principles of natural justice was considered by the Supreme Court. Their Lordships observed at page 830:

“Once we understand the soul of the rule as fair play in action – and it is so — we must hold that it extends to both the fields. After all, administrative power in a democratic set-up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural justice gains access. For fairness itself is a flexible, pragmatic and relative concept, not by a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one’s bonnet. Its essence is good conscience in a given situation; nothing more – but nothing less. The “exceptions to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case.”

12. The Supreme Court also dealt with the situation wherein the absence of any statute conferring the power, is silent with regard to the giving of a predecisional hearing to the person affected and the administrative decision taken by the authority. At para 42, their Lordships observed:

“In short, the general principle-as distinguished from an absolute rule of uniform application’- seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely, if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature and no full review or appeal on merits against that decision is provided, it would paralise the administ active process or frustrate the need for utmost promptitude. In short, this rule of fairplay”must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands”. The Court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modification.”

The further observations of the Supreme Court at para 104 are:

“The principles of natural justice have taken deep root in the judicial conscience of our people. They are now considered so fundamental as to be “implicit in the concept of ordered liberty” and, therefore, implicit in every decision making function, call it judicial, quasi-judicial or administrative. Where an authority functions under a statute and the statute provides for the observance of the principles of natural justice in a particular manner, natural justice will have to be observed in that manner and in no other. No wider right than that provided by statute can be claimed nor can the right be narrowed. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice.”

13. Though it is contended by the respondent-Bank that there is no rule in the service Rules of the respondent-Bank contemplating to furnish the copy of the enquiry report to the charge-sheeted Officer, I am afraid this view cannot stand to reasoning in view of the decisions of the Supreme Court.

14. In T.S. Rabari v. Government of Gujarat, 1992 A.I.SLR (Part III) 1., a Division Bench of Gujarat High Court held:

“Natural justice and Law :- Plea that certain rules do not provide for giving copy of enquiry report so natural justice cannot be attracted – Held in fact natural justice applies in absence of law.”

At para 38, it is further observed:

“In view of the law laid down by English as well as Indian Courts, there is no doubt in our minds that even if there is no statutory provision made the statute is silent about the application of the principles would apply. In fact, the settled legal position appears to be the principles of natural justice would operate only in areas not covered by the law validly made. In other words, they do not supplant the law of land but supplement it. If there is a statutory provision for giving of notice, calling for explanation or affording an opportunity of hearing, those requirements must be complied with not because natural justice requires but because the statute commands. It is only in cases where there is no statutory provision that the Court would invoke the principles of natural justice by directing the authorities to give reasonable opportunity to the person concerned against whom an action prejudicially affecting him is sought to be taken.”

15. Sri K. Srinivasa Murthy, learned Counsel for the respondent-Bank contends that no second notice is required to be given to the delinquent Officer, consequent upon the 42nd amendment to the Constitution with reference to Article 311. The learned Counsel for the respondent also placed reliance on the decisions of Supreme Court in Union of India v. Mohd. Ramzan Khan, , S.P. Viswanathan (I) v. Union of India, 1991 (2) SCC Supp.II 269, and contended that no second notice need be given to the affected Government official and therefore the procedure followed by the respondent-Bank is proper. Article 309 of the Constitution deals with the recruitment and conditions of service of persons serving the Union or State. Article 310 deals with the tenure of Office of persons serving the Union or a State. Article 311 of the Constitution deals with dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. Thus it is clear that Articles 309 to 311 only deal with employees of either State Government or Central Government. The employee of State Bank of Hyderabad cannot be held to be holder of Civil Post either under Central or State Government and therefore they cannot be treated as Civil servants within the meaning of Article 311 of the Constitution. In my considered view, the implications of Articles 309 to 311 have no reference to the employees of the respondent-Bank, with regard to giving second notice to the delinquent official of the respondent- Bank inasmuch as the principles of natural justice require that the delinquent Officer is entitled for a fair and reasonable opportunity to defend his case. The reasonable opportunity cannot be a mere ritual. Supplying of the relevant material basing on which final order is passed along with the removal order, would look placing of cart before horse.

16. In Olga Tellis v. Bombay Municipal Corporation, ., the Supreme Court held that the Constitution is not only paramount law of the land, but also it is a source of sustenance of all laws. Its provisions are conceived in public interest and are intended to serve public purpose. In. Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 109., the Supreme Court observed:

“Interplay of Articles 14,16(1), 19(l)(g) and 21 as guarantors of public employment as a source of right to livelihood.”

When the employment becomes a source of livelihood as held by the Supreme Court, denying the source of the livelihood without affording an opportunity to such employee in my considered view, would definitely fall under the undefined boundaries of principles of natural justice. The sum and substance of various decisions would undoubtedly go to show that fair play is just and reasonable. The party which is being affected has to necessarily have full opportunity to defend the case. Viewed from any angle, I have no doubt in my mind to hold that the petitioner was denied of reasonable opportunity and therefore the order impugned is in clear violation of principles of natural justice and cannot sustain me judicial scrutiny.

17. In the result, the Writ Petition is allowed and the order dt.20-9-1989 of the first respondent confirming the proceedings dt.30-12-1988 of the second respondent is set aside. Consequently, the respondents are directed to furnish a copy of the report of the Enquiry Officer dt.4-11-1988, in the first instance and afford an opportunity to the petitioner to place his defence before the Disciplinary Authority against the findings of Enquiry Officer. The Disciplinary Authority, there after shall hear the case of the petitioner and consider the objections if any and make recommendations to the competent authority. The competent Authority then pass appropriate order on the basis of the recommendations of the Disciplinary Authority. It is made clear, in the event of Disciplinary Authority rejecting the objection filed by the petitioner And recommend passing of penalty, the petitioner is entitled to have a copy of the recommendation of the Disciplinary Authority to enable him to place his case before the final authority. On the quantum of punishment if any intended to be imposed the petitioner is entitled to be heard on this aspect also. The final authority before arriving at a decision, the petitioner is entitled to file his objection if any against the recommendations of the Disciplinary Authority and the Final Authority thereafter pass an order on merits.

18. In view of the conclusions arrived at by me, it is open to the petitioner to place all relevant material which the petitioner considers it appropriate in support of his case before the appropriate authority. It is also open to him to raise all the grounds which have been raised in the writ petition. No costs.


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