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P. VIJAYARANGAM versus STATE BANK OF INDIA

High Court of Madras

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P. Vijayarangam v. State Bank of India - WRIT PETITION NO.7988 OF 1995 [2002] RD-TN 203 (28 March 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:28.03.2002

CORAM

THE HONOURABLE MR. JUSTICE P.K. MISRA

WRIT PETITION NO.7988 OF 1995

P. Vijayarangam .. Petitioners Vs.

1. State Bank of India, rep. by its General Manager

(Operations), Rajaji Salai,

Madras 1.

2. State Bank of India

rep. by its Deputy Managing

Director (Personnel)

Appellate Authority,

Vigilance Department,

Central Office, Bombay 21. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus as stated therein.

For Petitioner : Mr.M.P. Subbiah for M/s. Row and Reddy For Respondent : Mr.S. Jayaraman : J U D G M E N T

Petitioner has challenged the order of punishment imposed by the first respondent as confirmed by the second respondent in appeal.

2. Petitioner joined State Bank of India (hereinafter called as " the Bank") in the year 1956. In December 1988, the petitioner was called upon to explain certain allegations. Though the petitioner denied the allegations, subsequently the bank issued charge-sheet dated 3.1 0.1989 containing 8 charges. A departmental enquiry was held and the enquiry officer held that out of 8 charges, three charges had not been established, three charges had been fully established and two charges had been partially established against the petitioner. On the basis of the report of the enquiry officer, disciplinary authority imposed punishment of reduction in basic pay of the petitioner by five stages. The appeal preferred by the petitioner having been dismissed, the present writ petition has been filed.

3. Learned counsel appearing for the petitioner has contended that punishment imposed is not contemplated in the Regulations and as such cannot be sustained. It has been further contended that enquiry conducted was in violation of principles of natural justice and statements made by persons behind the back of the petitioner were utilised as materials without producing such persons. It was also contended that punishment imposed is grossly disproportionate to the alleged misdemeanour.

4. Learned counsel appearing for the respondents has supported the order passed by the disciplinary authority as confirmed in the appeal.

5. Rules have been framed by the State Bank of India known as ' State Bank of India (Supervising Staff) Service Rules. Chapter 6 deals with the question of conduct and disciplinary action. Section 1 of the Chapter 6 consisting of Rules 32 to 48 deals with conduct.

Rule 48 lays down

"a breach of any of the provision of these rules shall be deemed to constitute misconduct punishable under Rule 49." Section 2 of the Chapter 6 deals with discipline and appeal. Rule 49 in Section 2 provides :-

" 49. Without prejudice to any other provisions contained in these rules, any one or more of the following penalties may be imposed on an employee, for an act of misconduct or for any other good and sufficient reason:-

Minor Penalties

(a) censure;

(b) withholding of increments of pay with or without cumulative effect;

(c) withholding of promotion;

(d) recovery from pay or such other amount as maybe due to him of the whole or part of any pecuniary loss caused to the Bank by negligence or breach of orders.

Major Penalties

(e) reduction to a lower grade or post, or to a lower stage in a time scale;

(f) compulsory retirement;

(g) removal from service;

(h) dismissal."

By referring to aforesaid provisions, it has been submitted by the learned counsel appearing for the petitioner that penalties indicated do not contemplate imposition of penalty of reduction in basic pay by five stages.

6. I am afraid the above contention of the learned counsel for the petitioner is merely to be stated to be rejected. The penalty envisaged under clause (e) of Rule 49, namely reduction to a lower stage in a time scale, obviously includes the present penalty imposed. There cannot be any iota of doubt that the petitioner was in a time scale of pay and by directing reduction of basic pay by five stages there has been reduction to a lower stage in the time scale. Learned counsel for the petitioner suggested that reduction can be only to a lower stage meaning thereby there can be singular reduction and not by five stages. This is again based upon a misconception. The expression ' reduction to a lower stage' does not necessarily mean the previous stage only but to any lower stage. Moreover, as expressed in General Clauses Act, reference to a singular would always include a reference to plural,unless the context is to the contrary. In view of the above conclusion, the first contention of the learned counsel for the petitioner fails.

7. Learned counsel for the petitioner then submitted that at the enquiry, instead of examining the witnesses, enquiry officer allowed the management to mark previous statements made by various persons behind the back of the petitioner during some preliminary enquiry. It has been further submitted that even though this procedure was objected, enquiry officer and subsequently the disciplinary authority have relied upon such previous statement of the persons concerned and the punishment imposed on the basis of such illegal procedure against the principles of natural justice cannot be sustained.

8. In support of such contention, the learned counsel appearing for the petitioner has relied upon several decisions of the Supreme Court. It is unnecessary to refer to all the decisions relied upon by the counsel for the petitioner as most of the decisions have been analysed in A.I.R. 1969 S.C. 983 (CENTRAL BANK OF INDIA Vs. P.C. JAIN). It was observed in the aforesaid decision as follows:- " . . . It is true that, in numerous cases, it has been held that domestic tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Indian Evidence Act; but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act."

9. Similar view has been subsequently expressed by a Division Bench of this Court reported in 1978(II) LLJ 437 (INDIAN AIRLINES AND OTHERS Vs. W.B. CORREYA)

10. Learned counsel for the respondents however relied upon a decision reported in 1982 (1) LLJ 46 (STATE OF HARYANA AND ANOTHER Vs. RATTAN SINGH)in support of the contention that the strict and sophisticated rules of evidence under the Indian Evidence Act do not apply to the domestic enquiry and even hearsay evidence can be relied upon. He has particularly placed emphasis on the following observation:- " . . . It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and creditability. It is true that departmental authorities and administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic Tribunal, cannot be held good."

11. The question in the present case is not as to whether hearsay evidence can be relied upon or not. The basic question is whether the enquiry has been vitiated due to non-observance of principles of natural justice. In the present case it appears that statement of several persons which have been recorded earlier during some preliminary enquiry behind the back of the petitioner were tendered as evidence through the mouth of other persons in whose presence earlier statements have been recorded without calling for the persons who had made such previous statements. In other words, the persons whose statements were utilised were not examined and obviously no opportunity could be given to the petitioner to cross-examine such persons. The procedure adopted was obviously contrary to what has been stated in A.I.R. 196 9 S.C. 983 and several other decisions of the Supreme Court referred to in the aforesaid Supreme Court decision. Observations made in 19 82 (I) LLJ 46 do not have any application to the facts of the present case.

12. Learned counsel for the respondents has also relied upon a subsequent decision of the Supreme Court reported in 1996(II) CLR 29 ( STATE BANK OF PATIALA & OTHERS Vs. S.K. SHARMA). In the aforesaid case, an officer of the bank had been dismissed pursuant to the disciplinary proceedings held against him. Such order of dismissal was challenged before the Civil Court mainly on the ground that there had been non-compliance of Rule 68(b)(iii), which provided that copies of the statement of witnesses previously recorded should be given at least 3 days in advance before the enquiry. The trial court, first appellate court and the High Court were of the view that since copies of the statements had been furnished about half an hour before the enquiry, Rule 68(b)(iii) had been vitiated. The Supreme Court observed that even though Rule 68(b)(iii) had not been strictly complied with, the delinquent had not been prejudiced as he had cross-examined those witnesses without any demur and as such the disciplinary action was not illegal or void. The Supreme Court emphasised on the distinction between the absence of any opportunity and absence of proper opportunity and it was observed that when the delinquent was not prejudiced, the absence of proper opportunity would not vitiate the enquiry.

13. In the present case, no opportunity at all had been given to cross-examine the persons whose statements have been ultimately relied upon by the disciplinary authority. Even assuming the test laid down in this latest decision is applicable, one can come to a conclusion without any hesitation whatsoever that prejudice was writ large in the method adopted by the enquiry officer. The enquiry officer seems to have placed reliance on the statement of those persons even though those persons were not examined by the enquiry officer and obviously no opportunity of cross-examination has been given. The procedure adopted as already indicated was contrary to what had been emphatically stated by the Supreme Court in A.I.R 1969 SC 983 and other decisions of the Supreme Court noticed in the said decision.

14. Learned counsel appearing for the respondent then submitted that even assuming that the statement of the witnesses were not to be relied upon due to the aforesaid defect in the procedure, the conclusions reached by the enquiry officer are supportable on the basis of other materials on record and as such there is no necessity to interfere in the punishment imposed. Even though such a contention prima facie appears to be attractive, on a closer scrutiny I am not able to accept such submission.

15. A perusal of the report of the enquiry officer and the subsequent order passed by the disciplinary authority and the appellate authority makes it clear that the conclusions are primarily based on the statement of the persons which had been recorded behind the back of the petitioner and who had not been produced for cross-examination by the petitioner. If those materials are taken out, the residue of the materials appear to be grossly insufficient to uphold the conclusion of the respondents.

16. For the aforesaid reasons, I allow the writ petition and quash the order of punishment dated 5.5.1992. It is made clear that it would be open to the Bank if it so decides to revive the disciplinary proceeding and decide the matter afresh in accordance with law. There would be no order as to costs.

28.03.2001

Index : Yes / No

Internet : Yes

dpk

To

1. State Bank of India,

rep. by its General Manager

(Operations), Rajaji Salai,

Madras 1.

2. State Bank of India

rep. by its Deputy Managing

Director (Personnel)

Appellate Authority,

Vigilance Department,

Central Office, Bombay 21.

Judgment in WP.No.7988 of 1995

28.03.2002




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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