TMI Blog2003 (3) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... he documents by the expert in terms of Learned Single Judge’s order. The employee shall file originals of the documents on which he relies upon, of which copies were placed before the High Court. - Appeal (civil) 7539 of 1999 - - - Dated:- 12-3-2003 - Shivaraj V. Patil Arijit Pasayat,JJ. JUDGMENT Arijit Pasayat,J. Scope and ambit of Regulation 6(18) and 6(21) of the Canara Bank Officer Employees (Conduct) Regulations 1976 (hereinafter referred to as the Regulations ) fall for determination in this appeal. Filtering out unnecessary details, the factual background relevant for adjudication for the present dispute is as follows:- Four charge-sheets dated 12.12.1987, 5.11.1987, 23.3.1989 and 25.5.1989 were issued to respondent no.1- Debasis Das (hereinafter referred to as the employee ) by the functionaries of the Canara bank, a Government of India undertaking. Disciplinary proceedings were commenced. Charge-sheet dated 5.11.1987 related to the non-vacation of residential quarter by the employee after expiry of the lease period. On completion of inquiry in respect of the said charge, disciplinary authority directed dismissal of the employee from the services of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Nayak, Acting General Manager was produced. Certain witnesses were examined. During the inquiry employee was asked to produce the original letter claimed to have been received by him, but his stand was that he did not desire to part custody of the defence documents since the same are very much required at a later stage. On 1.4.1995 the minutes were accordingly recorded. The employee on that date made a statement that he wanted to make further submissions in his written briefs which he would be submitting in terms of Rule 6(18) and he was closing his evidence/defence. The Presenting Officer was directed by the Inquiry Officer to submit his written briefs within 10 days i.e. before 12.4.1995. He was also instructed to send a copy of his written briefs to the charged officer simultaneously. Employee was further directed to submit his written briefs within 10 days of the receipt of the written briefs from the Presenting Officer. The Presenting Officer submitted his written briefs on 19.4.1995. Since no written briefs were sent by the employee, the inquiry officer sent his report to the disciplinary authority on 2.5.1995. On 19.5.1995 disciplinary authority sent copy of the enquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interim order. Employee filed a Special Leave Petition before this Court which was dismissed. The order of dismissal was given effect on 5.2.1996 operative from 29.1.1996. Employee filed an appeal before the prescribed departmental appellate authority. On 8.1.1997 the employee was informed that the Appellate Authority would give personal hearing to him on 27.1.1997. During personal hearing, employee submitted a written statement and submitted some documents, one of them purported to be copy of letter dated 13.9.1989, which was at variance with one which was produced by the employee earlier and was also at variance with the original letter produced by the management during the inquiry. According to the appellant, this letter was another forged and fabricated document and this time the letter was claimed to have been signed by the Dy. General Manager and not by the Acting General Manager. In any event, it is not necessary to deal with the aspect in detail. The Appellate Authority passed an order upholding the order of dismissal. Employee filed a writ petition No. 9707 (W) of 1997, with application for return of the documents produced by him before the Appellate Authority. Learned S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l hearing is permissible and in fact personal hearing was granted though there was no such requirement. No prejudice has been shown. In response learned counsel for the employee submitted that the Inquiry Officer had permitted filing of the written briefs by the employee after written briefs was submitted by the Presenting Officer. As the employee had not received the copy of written briefs, therefore, there was delay and the Inquiry Officer was duty bound to consider the written briefs of the employee. Merely because the Appellate Authority granted opportunity of personal hearing that did not cure the incurable defect in the proceedings. Furthermore, the directions of the Learned Single Judge for sending the disputed documents to the expert stand and the Bank is not prejudiced in any manner. He in essence supported the High Court s judgment. Since Regulation 6(18) is the provision round which the controversy centers, it would be appropriate to quote the same. So far relevant it reads as follows: "Regulation 6(18): The Inquiring Authority may, after the completion of production of evidence hear the Presenting Officer, if any, appointed and the Officer employee, or permit them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of regulation 6 as far as may be. (2) The Disciplinary Authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. (3) 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 regulation 4 should be imposed on the officer employee it shall notwithstanding anything contained in regulation 8, make an order imposing such penalty. (4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that no penalty is called for, it may pass an order exonerating the officer employee concerned." It is to be noted that both the expressions "may" and "shall" appear in Regulation (7). The former expression is used when the Disciplinary Authority, if it is not the Inquiring Authority can remit the case to the Inquiring Authority for fresh or further inquiry and report and the latter expression is used vis--vis the Inquiring Authority w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where grant of opportunity in terms of principles of natural justice do not improve the situation, "useless formality theory" can be pressed into service. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. The expressions "natural justice" and "legal justice" do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board (1914) 1 KB 160 at p.199:83 LJKB 86) described the phrase as sadly lacking in precision. In General Council of Medical Education Registration of U.K. v. Sanckman (1943 AC 627: (1948) 2 All ER 337), Lord Wright observed that it was not desirable to attempt to force it into any procusteam bed and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give a full and fair opportunity to every party of being heard. Lord Wright referred to the leading cases on the subject. The most important of them is the Board of Education v. Rice (1911 AC 179:80 LJKB 796), where Lord Loreburn, L.C. observed as follows: "Comparatively recent statutes have extended, if they have originated, the practice of imposing upon departments or offices of State the duty of deciding or determining questions of various kinds. It will, I suppose usually be of an administrative kind, but sometimes, it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases, the Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but should be seen to be done . Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression civil consequences encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Lebura (1855(2) Macg. 1.8, Lord Cranworth defined it as universal justice . In J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot act as Judge and at the same time be a party . The form nemo potest esse simul actor et judex , that is, no one can be at once suitor and judge is also at times used. The second rule is audi alteram partem , that is, hear the other side . At times and particularly in continental countries, the form audietur at altera pars is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit that is, he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right (See Bosewell s case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, justice should not only be done but should manifestly be seen to be done . Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Chief Constable of the Thames Valley Police Forces, ex p. Cotton (1990 IRLR 344) by giving six reasons (see also his article Should Public Law Remedies be Discretionary?" 1991 PL. p.64). A detailed and emphatic criticism of the useless formality theory has been made much earlier in Natural Justice, Substance or Shadow by Prof. D.H. Clark of Canada (see 1975 PL.pp.27-63) contending that Malloch (supra) and Glynn (supra) were wrongly decided. Foulkes (Administrative Law, 8th Edn. 1996, p.323), Craig (Administrative Law, 3rd Edn. P.596) and others say that the court cannot prejudge what is to be decided by the decision-making authority. De Smith (5th Edn. 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn. 1994, pp.526-530) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irector, ECIL, Hyderabad and Ors. vs. B. Karunakara and Ors. [1993 (4) SCC 727 at para 31] which reads as follows: "Hence, in all cases where the enquiry officer s report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t after he was promoted as an officer were not of a serious nature. A bare look at these charges would unmistakably indicate that they relate to misconduct of a serious nature. The High Court also committed an error when it assumed that when the respondent was promoted as a bank officer, he must be having a good report otherwise he would not have been promoted. This finding is totally unsustainable because the various acts of misconduct came to the knowledge of the Bank in the year 1989 and thereafter the first charge-sheet was issued on 17.2.1989. The respondent was promoted as a bank officer sometime in the year 1988. At that time, no such adverse material relating to the misconduct of the respondent was noticed by the Bank on which his promotion could have been withheld. We are again unable to accept the reasoning of the High Court that in the facts and circumstances of the case "it is difficult to apply the principle of severability as the charges are so inextricably mixed up". If one reads the four charge-sheets, they all relate to the serious misconduct which includes taking bribe, failure to protect the interests of Bank, failure to perform duties with utmost devotion, dil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has to be quashed so far as it relates to the question of violation of principles of natural justice. But that is not the end of the matter. There was no consideration of the merits of the case as noted above. It would be in the fitness of things to direct examination of the documents by the expert in terms of Learned Single Judge s order. The employee shall file originals of the documents on which he relies upon, of which copies were placed before the High Court. The appellant-Bank shall file originals of the documents on which reliance was placed, if not already done. If the government expert is of the view that documents produced by the employee are forged/fabricated or not authentic the order of dismissal shall stand. If, however, the report of the expert is that the documents produced by the employee are genuine, the order of dismissal has to be vacated. In case the originals, as directed above, are not filed by the employee or the Bank, then the High Court shall pass necessary orders, upholding the order of dismissal or setting aside the order of dismissal, as the case may be. No other point shall be considered by the High Court. The matter shall be heard by the Division Be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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