JUDGMENT
1. Petitioner, an officer in the Union Bank of India (“Bank” for short), has filed this petition challenging the order dismissing him from service.
2. Petitioner joined the service of the Bank as an officer on April 1, 1955. In 1961 he was promoted as Assistant Accountant. On March 30, 1982 petitioner was promoted to Senior Management Grade IV. Certain serious acts of omission and commission were reported against the petitioner during his tenure as Branch Manager at Kanpith Branch, Surat. Petitioner was, therefore, by order Annexure – ‘B’ dated March 10, 1984 suspended from service of the Bank pending departmental inquiry. Notice dated March 23, 1984 was issued by the disciplinary authority against the petitioner calling upon him to show cause why disciplinary proceedings should not be initiated against him for the alleged acts of omission and commission. Petitioner gave reply to this notice on April 11, 1984. The disciplinary authority, however, was not satisfied with this reply and a charge-sheet was served on the petitioner on June 6, 1984. It is not necessary to set out the details of the charges levelled against the petitioner for the reasons, which I will presently state. Petitioner submitted his explanation in regard to the charges levelled against him to the disciplinary authority on August 1, 1984. A supplementary charge-sheet was, thereafter, served on the petitioner on August 2, 1984. Petitioner, it appears, had preferred an appeal against the order suspending him from service. This appeal was, however, dismissed on September 27, 1984. The disciplinary authority appointed an Inquiring Authority to hold inquiry against the petitioner on the charges levelled against him. The Inquiring Authority commenced inquiry on April 16, 1985. On completion of the inquiry the Inquiring Authority submitted his report to the disciplinary authority on June 24, 1985. In this report the Inquiring Authority recorded findings holding the petitioner guilty of the charges levelled against him. Copy of the Inquiring Authority’s report was, however, not supplied to the petitioner, nor was the petitioner given any opportunity of being heard or making representation against the charges levelled against him before the disciplinary authority. The disciplinary authority by his order dated October 29, 1985 dismissed the petitioner from service. This order of the disciplinary authority along with the Inquiring Authority’s report was served on the petitioner. The petitioner, thereafter, preferred appeal against the order of dismissal on December 12, 1985. The appellate authority, however, dismissed the petitioner’s appeal on May 3, 1986. Being aggrieved by the order of dismissal passed against him, the petitioner has approached this Court by way of this petition under Art. 226 of the Constitution challenging the legality and validity of the order of dismissal.
3. Petitioner has impugned the order of dismissal on several grounds. However, at the time of hearing of this petition Mr. B. J. Shethna, the learned Counsel for the petitioner, pressed only one ground of challenge, namely, the order dismissing the petitioner was bad on the ground that he was denied reasonable opportunity to defend himself inasmuch as the copy of the Inquiring Authority’s report was not supplied to him nor was any opportunity of being heard given to him before the disciplinary authority before it passed the order dismissing him from service. Therefore, the only question which arises for my consideration in this petition is whether the disciplinary authority was required to supply the copy of the Inquiring Authority’s report to the petitioner and give him opportunity of being heard after supplying such copy, before passing the impugned order of dismissal from service against the petitioner.
4. In exercise of the powers conferred by Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 the Board of Directors of Union Bank of India in consultation with the Reserve Bank and with the previous sanction of the Central Government made Regulations called Union Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976, (‘Regulations’ for short). Regulation 4 of the Regulations enumerates penalties, which may be imposed on an Officer Employee of the Bank for acts of misconduct or for any other good and sufficient reasons. Penalties enumerated are divided into two parts : (1) Minor Penalties and (2) Major Penalties. Dismissal from services is a major penalty, which can be imposed on an Officer Employee. Regulation 6 of the Regulations lays down procedure which is required to be followed for imposing major penalties. This Regulation 6 envisages amongst other things (1) framing of definite and distinct charges on the basis of the allegations against the Officer Employee and the Articles of Charges, together with a statement of allegations, on which they are based and (2) inquiry by disciplinary authority or Inquiring Authority appointed by him. The said Regulation also lays down detailed procedure for examination of witnesses in support of the charges levelled against the Officer Employee, cross examination of these witnesses by the Officer Employee and recording of evidence led by the Officer Employee. The Inquiring Authority is required to record the findings on the Articles of Charges. The Regulation also makes it clear that no such findings shall be recorded unless the Officer Employee has either admitted the facts on which such Articles of charges are based or has had a reasonable opportunity of defending himself against such Articles of Charges. The Inquiring Authority has to submit his report along with his findings to the disciplinary authority. The disciplinary authority has to take action on this Inquiry report as provided in Regulation 7. Sub-Regulation (3) of Regulation 7, under which the disciplinary authority has acted in the instant case, reads as follows :
“If the Disciplinary Authority having regard to its findings on all or any of the Articles of charge, is of the opinion that any of the penalties specified in Regulations 4 should be imposed on the officer employee it shall, notwithstanding anything contained in Regulation 8, make an order imposing such penalty.”
It is submitted on behalf of the respondents that in case the disciplinary authority agrees with the findings of the Inquiring Authority, it is not required to record separate or independent findings and the findings recorded by the Inquiring Authority becomes its finding. It is submitted that it is only in case the disciplinary authority decided to remit the case to the Inquiring Authority or disagrees with the findings recorded by the Inquiring Authority that it is required to record reasons as contemplated by Sub-Regulations (1) and (2) of Regulation 7. If having regard to its findings on all or any of the Articles of Charge, the disciplinary authority is of the opinion that no penalty is called for, it has to pass an order exonerating the Officer Employee concerned under Sub-Regulation (4) of Regulation 7. Order made by the Disciplinary Authority under Regulation 7 is required to be communicated to the Officer Employee concerned, who shall be supplied with a copy of the report of inquiry, if any. It is submitted that copy of the report of the inquiry has to be supplied or furnished to the officer Employee along with the order made by the superior authority under Regulation 7. In the instant case the disciplinary authority passed order of dismissal against the petitioner under Regulation 7(3). It is not disputed that such order of dismissal was communicated to the petitioner without the copy of the report of the Inquiring Authority.
5. As observed above, Regulation 6 does contemplate affording of reasonable opportunity of being heard in respect of charges against him to the Officer Employee in the inquiry, which is held for the alleged misconduct. There is, however, no specific provision in the Regulations requiring the disciplinary authority to supply copy of the report of the Inquiring Authority before he takes final decision in regard to the charges levelled against the Officer Employee concerned. Therefore, the question which arises for consideration is whether failure to supply a copy of the report of the Inquiring Authority would amount to denial of reasonable opportunity of being heard in respect of charges against him to the Officer Employee and violation of principles of natural justice.
6. Article 311(2) of the Constitution inter alia provides that no person who is a member a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. It was in the context of this Art. 311(2) that the question arose before me in M. J. Ninama v. Post Master General 1984 GLH 800 whether failure to supply copy of the Inquiring Authority’s report would amount to denial of reasonable opportunity as contemplated by the said Article. In that case the petitioner, who was Upper Division Clerk in the Posts and Telegraphs Department, was removed from service by an order dated December 19, 1981 passed by the Director, Postal Services (HQ), Gujarat Circle, Ahmedabad, who was the disciplinary authority. In the Appeal preferred by the petitioner the Post Master General, Ahmedabad by his order dated August 13, 1982, agreed with the finding of guilt recorded by the disciplinary authority, but modified the penalty from removal to that of compulsory retirement from service. Petitioner challenged the findings recorded by the disciplinary authority and the appellate authority and the punishment imposed on him on several ground in a writ petitioner filed in this Court. One of the grounds raised by the petitioner was that he was denied reasonable opportunity of being heard in respect of the charges levelled against him on account of failure on the apart of the disciplinary authority to supply him copy of the report of the Inquiry Officer and reasons recorded by him for disagreeing with the findings recorded by the Inquiry Officer. It was held that the Inquiring Authority’s report whether it is in favour of the delinquent or against him is material on which the disciplinary authority acts. That being the position, in order to afford reasonable opportunity as contemplated by Art. 311(2) of the Constitution, he must be furnished with a copy of the Inquiring Authority’s report. It was held that that would be the position notwithstanding the amendment of Art. 311(2) by the Forty-second Amendment Act. It was further held that in case of the disciplinary authority disagrees with the findings recorded by the Inquiring Authority, it would also be necessary to furnish to the delinquent reasons for doing so, so that the delinquent can meet with them in the representation which he may make to the disciplinary authority. Unless the report of the Inquiring Authority and the reasons for disagreement with the Inquiring Authority’s findings are supplied, the delinquent would not be able to make a pointed and meaningful representation. It was further held that it is the disciplinary authority which can take the final decision the matter and unless the delinquent had an opportunity to make representation before the decision-making authority on the charges levelled against him, he could not be said to have been afforded reasonable opportunity as contemplated by Art. 311(2) of the Constitution. While reaching the above conclusion reliance was placed on the decisions of the Supreme Court in State of Maharashtra v. B. A. Joshi (AIR) 1969 S.C. 1300 and G. Nageswara Rao v. A. P. S. R. T. Corporation (AIR) 1959 S.C. 308.
7. The question, whether in order to afford reasonable opportunity as required under Art. 311(2) of the Constitution, it was necessary on the part of the disciplinary authority to provide the delinquent with a copy of the report of the Inquiring Authority was considered by the Supreme Court in the State of Maharashtra v. B. A. Joshi (supra). That was a case under Art. 311(2) before its amendment by Fifteenth Amendment Act, 1963. High Court in that case held that failure on the part of the competent authority to provide the plaintiff/appellant in that case with a copy of the report of the Inquiring Authority amounted to denial of reasonable opportunity contemplated by Art. 311(2) of the Constitution. Dealing with the above question, the Supreme Court observed as follows :
“It seems to us that the High Court came to a correct conclusion. The plaintiff was not aware whether the Enquiry Officer reported in his favour or against him. If the report was in his favour, in his representation to the Government he would have utilised its reasoning to dissuade the Inspector General from coming to a contrary conclusion, and if the report was against him, he would have put such argument or material as he could to dissuade the Inspector General from accepting the report of the Enquiry Officer. Moreover, as pointed by the High Court, the Inspector general of Prisons had the report before him and the tentative conclusions arrived at by the Enquiry Officer were bound to influence him, and in depriving the plaintiff of a copy of the report he was handicapped in not knowing what material was influencing the Inspector General of Prisons.
As observed by Gajendragadkar J. as he then was, in Union of India v. H. C. Goel (1964-I-LLJ-38) at page 44 the enquiry report along with the evidence recorded constitute the material on which the Government has ultimately to act. That is the only purpose of the enquiry held by competent officer and the report he makes as a result of the said enquiry.
It is true that the question whether reasonable opportunity has or has not been afforded to the Government servant must depend on the facts of each case, but it would be in very rare cases indeed in which it could be said that the Government servant is not prejudiced by the non-supply of the report of the Enquiry Officer”.
In view of this clear pronouncement of the Supreme Court, it must be held that if the delinquent officer is not furnished with the copy of the Inquiring Authority’s report, which the disciplinary authority has taken into consideration, it would amount to denial of reasonable opportunity as contemplated by Art. 311(2) of the Constitution. This position remains unchanged after the amendment of Art. 311(2) the Fifteenth Amendment Act, 1963. In M. J. Ninama’s case (supra) it was held that this position remained unchanged even after the amendment of Art. 311(2) by the Constitution (Forty-second Amendment) Art, 1976.
8. In M. J. Ninama’s case (supra) support was sought to be derived from the decision of the Supreme Court in G. Nageswara Rao v. A. P. S. R. T. Corporation (supra). In that case, under the relevant provisions of the Motor Vehicles Act and the Rules made thereunder, where a scheme was proposed, the State Government was enjoined to approve or modify the scheme after holding an enquiry and after giving an opportunity of being heard to the objectors personally or their representatives and representatives of the State Transport Undertaking. The Officer who received objections of the parties and heard them personally or through their representatives was the Secretary of the Transport Department. Under the Motor Vehicles Act and the Rules framed thereunder, duty was cast on the State Government to give personal hearing. The procedure prescribed by the Rules imposed a duty on the Secretary to hear and the Chief Minister to decide. The Supreme Court observed that this divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. If one person hears and another decided, then personal hearing becomes an empty formality. Relying on his decision it was held in M. J. Ninama’s case (supra) that it is before decision making authority that delinquent must get the opportunity of being heard so far as the charges levelled against him are concerned. If the opportunity of being heard is given only before the Inquiring Authority and no such opportunity is given before the disciplinary authority, it would amount to denial of reasonable opportunity as contemplated by Art. 311(2) of the Constitution.
9. It was, however, urged on behalf of the respondents that in the instant case the inquiry was governed and regulated by the Regulations and not by Art. 311(2) of the Constitution. It was pointed out that in G. S. Shambhani v. State Bank of India (1984-II-LLJ-322), A. P. Ravani, J. has held that Art. 311 of the Constitution of India is not applicable to Bank employees. Therefore, there was no question of giving reasonable opportunity as contemplated by Art. 311(2) of the Constitution to the petitioner in the instant case. It was urged that what the disciplinary authority was required to do was to follow the procedure laid down in Regulation 6 and if he followed the procedure, his decision cannot be questioned. It was submitted that there is no provision in the Regulations to afford “reasonable opportunity” to the officer, who is alleged to have committed misconduct and, therefore, decision of this Court in M. J. Ninama’s case (supra) will have no application. I find myself unable to agree with this submission. As pointed out above Regulation 6 does contemplate giving “reasonable opportunity” of being heard in respect of the charges against him to the delinquent officer. The expression “reasonable opportunity” whether used in Art. 311(2) or in the Regulation cannot have different connotation. Meaning and content of this expression would remain the same in either case. In other words, whether this expression is used in Art. 311(2) of the Constitution or it is used expressly or by necessary implication in Regulation 6, the meaning thereof would be the same. In my opinion, therefore, the view taken in M. J. Ninama’s case (supra) would apply with equal force to the instant case.
10. It was next urged that after the amendment of Art. 311(2) by the Constitution (Forty second Amendment) Act, 1976 there is no question of giving second opportunity before the disciplinary authority and, therefore, there will not be any question of supplying the inquiring Authority’s report to the delinquent. In support of this argument reliance was sought to be placed on the decision of the Supreme Court in Kailash Chander Asthana v. State of U. P. & Ors (1988-II-LLJ-219). In that case delinquent was not supplied with copy of the report of Administrative Tribunal, which was placed before the Full Bench of the High Court. The High Court approved the findings of the Administrative Tribunal, holding petitioner in that case to be guilty of the third charge and requested the Government to remove the petitioner from service. Impugned order terminating the services of the petitioner was accordingly passed. It was urged before the Supreme court that a copy of the report of the Administrative Tribunal having not been made available to the petitioner, the proceedings subsequent to the said report including the impugned order were vitiated Petitioner sought to place reliance on Explanation to sub-rule (3) of Rule 9 of the relevant Rules stating that a copy of the recommendation of the tribunal as to the penalty should be furnished to the charged Government servant. It was, however, pointed out to the Supreme Court by the learned Counsel for the respondents that after the amendment of Art. 311(2) of the Constitution by the Constitution (Forty-second Amendment) Act, the Explanation was dropped. Supreme Court held that the question of service of copy of the report arose on account of a right of a second show cause notice to the Government servant before the Forty-second Amendment and since the disciplinary proceedings in question were held later, the petitioner could not legitimately demand a second opportunity. That being the position, non-service of a copy of the report was immaterial. It would, therefore, appear that it was in the context of the opportunity of being heard to be given against the proposed penalty that the question of non-supply of the copy of the Administrative Tribunal’s report was raised. It was not urged before the supreme court that failure to supply copy of the Administrative Tribunal’s report amounted to denial of reasonable opportunity therefore as contemplated by Art. 311(2) of the Constitution. In my opinion, this decision of the Supreme Court will be of no assistance to the respondents.
11. In Secretary, Central Board of Excise and Customs v. K. S. Mahalingam (AIR) (1986-II-LLJ-434) also the question which arose before the Supreme Court was whether it was necessary to give second show cause notice against the proposed punishment before the same was imposed on the Government employee and to furnish him with a copy of the report of Inquiry Officer in view of the amendment of clause (2) of Art. 311 of the Constitution of India by the Constitution (Forty-second Amendment) Act, 1976. The Supreme Court held that the delinquent officer could not claim a second opportunity to show cause against the punishment either under Art. 311(2) of the Constitution or under Rule 15(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In this case also it was not urged that failure to supply copy of the Inquiring Authority’s report would amount to denial of reasonable opportunity before the disciplinary authority.
12. The respondents sought to place reliance on the decision of the Supreme Court in Suresh Koshy v. University of Kerala (AIR) 1969 S.C. 198. That case arose from the disciplinary action taken by the Kerala University against the appellant before the Supreme Court, who was a student in 1st year Degree Course of the Five Year Integrated course of Engineering, in the Engineering College, Trichur during the academic year 1964-1965. The Vice-Chancellor of the said University came to the conclusion that he was guilty of mal-practice during the examination held in April 1965 and consequently debarred him from appearing in any examination till April 1966. In that case the Vice Chancellor did not make available to the appellant a copy of the report submitted by the Inquiry Officer. It was urged that there was breach of principles of natural justice by failure to supply the copy of the report of the Inquiry Officer. The Supreme Court held that the Rules of natural justice are not embodied Rules. The question whether the requirements of natural justice have been met by the procedure adopted in given case must depend to a great extent on the facts and circumstances of the case in points, the constitution of the Tribunal and the rules under which it functions. The Supreme Court observed that requirements of natural justice in case of an inquiry of the kind, which was considered, are, first, that the person accused should know the nature of the accusation made; secondly that he should be given an opportunity to state his case; and thirdly, of course, that the Tribunal should act in good faith. Thus where in the case of misconduct of a student in a University Examination there was a fair inquiry against the student the officer appointed to inquire was an impartial person; he could not be said to have been biased against the student; the charge against the student was made known to him before the commencement of the inquiry; the witnesses who gave evidence against him were examined in his presence and he was allowed to cross-examine them and lastly he was given every opportunity to present his case before the Inquiry Officer, it would not be contended that there was an breach of the principles of natural justice even if the Vice Chancellor did not make available to the student a copy of the report submitted by the Inquiry Officer particularly when the examine had not asked for that. It would thus appear that it was in the facts and circumstances of that case that the Supreme Court came to the conclusion that there was no breach of principles of natural justice, if the Vice Chancellor did not make available to the appellant-student a copy of the report of the Inquiry Officer. This decision, in my opinion, will have no application to the facts of the present case, especially when there is a direct decision of the Supreme Court in State of Maharashtra v. B. A. Joshi, (supra) wherein it has been held that non-supply of the inquiry Officer’s report would result in denial of reasonable opportunity as contemplated by Art. 311 of the Constitution.
13. It may, however, be pointed out that in Suresh Koshy’s case (supra) the Supreme Court had quoted with approval the following observations made by Tucker, L.J., in Russel v. Duke of Norfolk 1949 (1) ALL ER 109 page 118 :
“There are, in my view, no words which are of Universal application to every kind of inquiry and every kind of domestic Tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject matter that is being dealt with and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but whatever standards adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case”.
It would thus be clear that whatever standard is adopted, the requirement of natural justice is that the person concerned should have a reasonable opportunity of presenting his case. It is no doubt true that as held by the Supreme Court in Suresh Koshy’s case (supra) the question whether the requirements of natural justice have been met with by the procedure adopted in a given case must depend to a great extent, on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions. In the instant case Regulation 6 does provide for giving reasonable opportunity of defending himself to the concerned officer employee before the disciplinary authority. But apart from that having regard to the nature of functions, which the disciplinary authority has to discharge, the delinquent officer concerned should have reasonable opportunity of presenting his case. In the light of what is discussed above, failure to supply a copy of the Inquiring Authority’s report would amount to denial of reasonable opportunity. In my opinion therefore, having regard to the facts and circumstances of the case, disciplinary authority has committed breach of principle of natural justice by non-supply of copy of the Inquiring Authority’s report to the petitioner.
14. Respondents next placed reliance on the decision of the Bombay High Court in Felix Antony Lawyarance v. Union of India & Ors. 1986 LIC 127. In that case a Division Bench of the Bombay High Court held that failure to supply copy of the Report of the Inquiring Authority would not result in violation of Art. 311(2) of the Constitution and principles of natural justice. In view of what is discussed above, with respect, I find myself unable to agree with the view taken by the Bombay High Court. This decision of the Bombay High Court is also therefore, of no assistance to the respondents.
15. In the instant case admittedly petitioner was not supplied with a copy of the report of the Inquiring Authority nor was he given opportunity of being heard before the disciplinary authority after submission of the report by the Inquiring Authority. It must, therefore, be held that the petitioner had been denied reasonable opportunity of representing his case as contemplated under Regulation 6 of the Regulations. Under the circumstances, the order dismissing the petitioner from service passed by the disciplinary authority must be held to be illegal. It has been held by this Court in Hasmukhbhai Dhanjibhai Zaveri v. R. Parthasarthy (1971) XII GLR 128 that the vice that attaches to an order passed in contravention of the Rules of natural justice cannot be cured ex post facto by affording to the person affected thereby an opportunity to represent his case after the order is passed. An order made in breach of the principles given to the affected person to represents his case after such an order is made cannot have the effect of resuscitating a still-born order. Applying the ratio of the above decision to the facts of the present case, it must be held that no life can be infused in the order passed by the disciplinary authority, which is void, by supplying to the petitioner copies of the inquiring Authority’s report and the disciplinary authority’s order containing reasons recorded by it, before he approached the appellate authority and giving him an opportunity to represent his case before the appellate authority. Therefore, the order passed by the appellate authority will be of no consequence and the action taken against the petitioner of dismissing him from service must be held to be illegal and void. It must, however, be made clear that the proceedings upto the stage of Inquiring Authority’s report cannot be held to be illegal. It is only the orders passed by the disciplinary authority and the appellate authority, which are held to be illegal and void.
16. In the result this petition is allowed and the order dismissing the petitioner from service passed by the disciplinary authority and confirmed by the appellate authority is quashed and set aside. The respondents are directed to reinstate the petitioner in service and the status quo ante as it existed before the passing of the impugned order dated October 29, 1985 passed by the disciplinary authority, shall stand restored. There is no evidence to show that the petitioner was gainfully employed after his dismissal from service. The respondents are directed to pay to the petitioner arrears of salary/subsistence allowance in accordance with the relevant Rules or Regulations for the period from October 29, 1985 to the date of his retirement from service, within three months from the date of the receipt of the writ of this Court. The respondents are further directed that in case it is permissible to continue inquiry against the petitioner after his superannuation under the relevant Rules and Regulations and decision is taken by the appropriate authority to continue inquiry against him, inquiry shall be continued from the stage of Inquiring Authority’s report, in the light of the observations made above. Such inquiry shall be completed within three months from the date of the receipt of the writ of this Court. In case, however, decision is taken not to continue the inquiry against the petitioner as aforesaid, the respondents shall pass appropriate orders as regards the payments of full salary to the petitioner for the period during which he was under suspension and the pensionary benefits such as gratuity, Provident Fund etc. The order dated September 10, 1987 passed in Civil Application No. 1215 of 1987 in the Special Civil Application shall continue to remain in operation until the completion of the inquiry and/or the passing of the appropriate orders as aforesaid. Rule made absolute accordingly with no order as to costs.