TMI Blog2011 (1) TMI 1346X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 29 th February, 1978 to 21st 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner 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 dated 31st 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 to the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 nonproduction 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 Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court in the case of State Bank of India and Ors. Vs. D.C. Aggarwal and Anr. (1993) 1 SCC 13 held that the nonsupply 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. Goyal (2008) 8 SCC 92 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 Patnaik (1996) 9 SCC 69 and Regional Manager, U.P. SRTC, Etwah and Ors Vs. Hoti Lal and Anr. . (2003) 3 SCC 605 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 subclause 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is taken on the basis of a recommendation or advice, not 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Novem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 nonsupply 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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