Supreme Court of India
K. Prabhakar Hegde vs Bank Of Baroda on 19 August, 2025
Author: Dipankar Datta
Bench: Prashant Kumar Mishra, Dipankar Datta
REPORTABLE
2025 INSC 997
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6599 OF 2025
[ARISING OUT OF SLP (CIVIL) NO. 6358 OF 2022]
K. PRABHAKAR HEGDE … APPELLANT
VS.
BANK OF BARODA … RESPONDENT
JUDGMENT
DIPANKAR DATTA, J.
PREFACE
1. S.L. Kapoor v. Jagmohan1 is a landmark decision of this Court,
delivered more than half a century back, delineating the contours of the
principles of natural justice, more particularly the right to be heard
before one is condemned. The supersession of the New Delhi Municipal
Committee was challenged on the ground that it was in violation of the
principles of natural justice, since no show cause notice was issued
before the order of supersession was passed. Linked with that question
was the question whether the failure to observe the principles of natural
justice matters at all, if such observance would have made no difference,
Signature Not Verified the admitted or indisputable facts speaking for themselves. The golden
Digitally signed by
NITIN TALREJA
Date: 2025.08.19
13:04:48 IST
Reason:
1
(1980) 4 SCC 379
1
words of Hon’ble O. Chinappa Reddy, J., speaking for the three-Judge
Bench, rings in our ears:
“24. … In our view the principles of natural justice know of no
exclusionary rule dependent on whether it would have made any
difference if natural justice had been observed. The non-observance of
natural justice is itself prejudice to any man and proof of prejudice
independently of proof of denial of natural justice is unnecessary. It ill
comes from a person who has denied justice that the person who has
been denied justice is not prejudiced. …”
(emphasis ours)
2. The above passage from S.L. Kapoor (supra) came to be noticed in the
Constitution Bench decision of this Court in Olga Tellis v. Bombay
Municipal Corporation2 and met with an unconditional approval.
Hon’ble Y.V. Chandrachud, CJI. speaking for the Bench (which
incidentally included Hon’ble O. Chinappa Reddy, J.) ruled that the said
observations sum up the true legal position regarding the purport and
implications of the right of hearing.
3. Close on the heels of Olga Tellis (supra), another Constitution Bench
upon a survey of precedents on the point of fair and impartial hearing
observed in Union of India v. Tulsiram Patel3 as follows:
“95. The principles of natural justice have thus come to be recognized
as being a part of the guarantee contained in Article 14 because of the
new and dynamic interpretation given by this Court to the concept of
equality which is the subject-matter of that article. Shortly put, the
syllogism runs thus: violation of a rule of natural justice results in
arbitrariness which is the same as discrimination; where discrimination
is the result of State action, it is a violation of Article 14: therefore, a
violation of a principle of natural justice by a State action is a violation
of Article 14. Article 14, however, is not the sole repository of the
principles of natural justice. What it does is to guarantee that any law or
State action violating them will be struck down. The principles of natural
justice, however, apply not only to legislation and State action but also
where any tribunal, authority or body of men, not coming within the
definition of State in Article 12, is charged with the duty of deciding a2
(1985) 3 SCC 545
3
(1985) 3 SCC 398
2
matter. In such a case, the principles of natural justice require that it
must decide such matter fairly and impartially.”
(emphasis ours)
4. In another seminal decision, i.e., A.R. Antulay v. R. S. Nayak4, a
seven-Judge Constitution Bench while acknowledging that it had
committed an error earlier which needed rectification, went on to assert
that:
“55. … No prejudice need be proved for enforcing the fundamental
rights. Violation of a fundamental right itself renders the impugned
action void. So also the violation of the principles of natural justice
renders the act a nullity. …”
5. It has recently been held by us in State of Uttar Pradesh v. Ram
Prakash Singh5 that just as Articles 14, 19 and 21 constitute a
triumvirate of rights of citizens conceived as charters on equality,
freedom and liberty, the trio of the Constitution Bench decisions in Olga
Tellis (supra), Tulsiram Patel (supra) and A.R. Antulay (supra) form
the bedrock of natural justice principles being regarded as part of Article
14 and, thereby, obviating the need to demonstrate prejudice if a
challenge were thrown on the ground of violation of Article 14.
6. Reference to these decisions has been made at the inception because of
the particular view we propose to take on consideration of decisions of a
three-Judge Bench in Sunil Kumar Banerjee v. State of West Bengal
& Ors.6 and a coordinate Bench in Union of India v. Alok Kumar7.
Notably, these decisions were relied on by the Division Bench of the High
4
(1988) 2 SCC 602
5
2025 SCC OnLine SC 891
6
(1980) 3 SCC 304
7
(2010) 5 SCC 349
3
Court of Karnataka at Bengaluru8 while insisting on the requirement to
demonstrate prejudice in a claim of breach of principles of natural justice
notwithstanding that the employer before it had violated a statutory
regulation by which it was bound.
THE APPEAL
7. The challenge in this civil appeal, by the appellant K. Prabhakar Hegde,
is to the judgment and order dated 14th December, 20219 in Writ Appeal
No. 975 of 2009 (S-DE). Vide the impugned order, the High Court
allowed the writ appeal carried by the respondent here, Bank of Baroda.
Consequently, the judgment and order of the Single Judge dated 24th
February, 2009 in WP No. 27936/2003, which was under challenge,
stood set aside with the result that the writ petition of the appellant was
dismissed.
BRIEF FACTS
8. The facts relevant for the purpose of deciding this appeal are these:
i. In 1959, the appellant joined Vijaya Bank (which merged with the
respondent in the year 2019) as a clerk.
ii. Between 1959 and 1998, the appellant was promoted several times.
At the relevant time, the appellant was the ‘Zonal Head’ of the Delhi
Zonal Office of Vijaya Bank.
iii. On 4th of January, 1999, the appellant was served with a notice issued
by his disciplinary authority. It was alleged that the appellant was
8
High Court
9
impugned order
4
responsible for certain irregularities and lapses committed inapproving temporary overdrafts (TOD) on the accounts of various
parties involving substantial amounts. The notice also alleged that the
appellant had instructed the Assistant General Manager at the
Barakhamba Branch of Vijaya Bank to grant a TOD of Rs. 15,00,000/-
to one M/s Kunal Travels Pvt. Ltd. via telephone. Another notice was
sent on 22nd January, 1999 in respect of a separate incident
containing more or less similar allegations.
iv. Appellant replied to the said notices through letters dated 1st
February, 1999 and 24th February, 1999.
v. On 30th January, 2001, disciplinary proceedings under Regulation 6 of
the Vijaya Bank Officer Employees’ (Discipline and Appeal)
Regulations, 198110 were drawn up by issuing a charge sheet.
Appellant replied to the said charge sheet vide letter dated 17 th
February, 2001 denying the charges.
vi. The disciplinary authority of the appellant appointed an officer holding
the post of General Manager of Vijaya Bank as the Inquiry Officer.
vii. The report of the inquiry officer dated 28th November, 2001 was
submitted to the Disciplinary Authority holding that the charges
against the appellant stand proved.
viii. Vide an order dated 17th May, 2002, the Disciplinary Authority held
that though the appellant was due to retire upon superannuation on
30th June, 2002, disciplinary proceedings initiated against him vide
10
1981 Regulations
5
chargesheet dated 30th January, 2001 would continue. It was furtherordered that the appellant shall not be entitled to any retirement
benefits till final orders are passed in the disciplinary proceedings.
ix. Appellant superannuated from service on 30th January, 2006.
x. Vide an order dated 4th July, 2002, the Disciplinary Authority imposed
on the appellant the punishment of ‘dismissal from service’.
xi. Aggrieved by the punishment imposed on him, the appellant
approached the Appellate Authority by presenting an appeal. It was
dismissed vide an appellate order dated 27th March, 2003.
xii. Appellant then challenged this order of the Appellate Authority before
the High Court in its writ jurisdiction. A Single Judge of the High Court
allowed the writ petition vide judgment and order dated 24th February,
2009. The order of dismissal stood quashed and the appellant held
entitled to “consequential benefits on his having attained the age of
superannuation, to which he would have been entitled in the usual
course and in law”.
xiii. Vijaya Bank, aggrieved by the judgment and order of the Single
Judge, carried the same in a writ appeal before the Division Bench
which, as noted above, succeeded. While the appellant’s writ petition
stood dismissed, the order of dismissal passed by the Disciplinary
Authority against the appellant was, thus, confirmed.
IMPUGNED ORDER
9. The Division Bench of the High Court framed two issues for its
determination: (i) whether the denial of the preliminary investigation
6
report prejudiced the charged officer (appellant before us) and vitiated
the proceedings and (ii) whether the stipulation of generally questioning
the charged officer regarding the circumstances appearing against him
in the evidence was a mandatory requirement under Regulation 6(17) of
the 1981 Regulations.
10. While deciding issue (i), reliance was placed by the High Court on the
decisions of this Court in Vijay Kumar Nigam v. State of MP11 and
Syndicate Bank & Ors. v. Venkatesh Gururao Kurati 12 to hold that
the preliminary report is only to decide and assess whether it would be
necessary to take any disciplinary action against the delinquent officer
and it does not form any foundation for passing the order. The High Court
further held that since all the documents relied upon by the Inquiry
Officer had been made available to the appellant and the appellant’s
representative having cross-examined the sole witness for the
management in extenso, furnishing of the preliminary investigation
report was not necessary; hence, no prejudice to the appellant was
caused thereby.
11. Regarding issue (ii), the Division Bench held: first, Regulation 6(17) of
the 1981 Regulations is pari materia Rule 8(19) of the All India Services
(Discipline & Appeal) Rules, 1955; hence, the decision of this Court in
Sunil Kumar Banerjee (supra), which has since been followed by this
Court in the decision in Alok Kumar (supra) is squarely applicable and
compliance with such a regulation is merely directory and not
11
(1996) 11 SCC 599.
12
(2006) 3 SCC 150.
7
mandatory. Secondly, the High Court held, on facts, that the Inquiry
Officer had asked the appellant if he wished to make any submission and
in pursuance thereof, he did utilise the opportunity by making detailed
submissions; hence, though the appellant was not generally questioned
as required by Regulation 6(17), such provision had been substantially
complied with.
12. As a sequitur, the High Court allowed the writ appeal and set aside the
order of the Single Judge.
CONTENTIONS OF THE PARTIES
13. The appellant has laid siege to the impugned order on, inter alia, the
following grounds:
a. The High Court did not consider the decision rendered by this Court
in ECIL v. B. Karunakar13 and UCO Bank v. Rajinder Lal
Capoor14.
b. The High Court erroneously interpreted the principles of law laid
down in Venkatesh Gururao Kurati (supra).
c. The High Court did not consider that non-furnishing of the report
of preliminary inquiry has itself caused prejudice to the appellant
as the appellant was unable to defend himself in respect of the
charges against him.
d. Reliance placed by the High Court on Sunil Kumar Banerjee
(supra) was misplaced. The said decision, rendered by a three-
Judge Bench referred to coordinate Bench decisions in K.C.
13
(1993) 4 SCC 727.
14
(2007) 6 SCC 694.
8
Mathew v. State of Travancore-Cochin15 and Bibhuti Bhusan
Das Gupta v. State of W.B.16 without, however, noticing an
earlier decision of a four-Judge Bench in Tara Singh v. State17
where it was held to be important to faithfully and fairly observe
Section 342 of the 1898 Code, the object whereof was to afford
the accused a fair and proper opportunity of explaining the
circumstances which appear against him. Though it was held that
every error or omission would not vitiate a trial and that the
question in each case would depend on the degree of the error and
upon whether prejudice had been occasioned or likely to have been
occasioned, in the present case, the degree of error was at its peak
since the Inquiry Officer did not put a single question to the
appellant in respect of the circumstances appearing in the
evidence against him and the High Court failed to consider that
calling upon the appellant to place his version does not in any
manner amount to compliance of Regulation 6(17) of the 1981
Regulations, not to speak of substantial compliance.
e. The authorities could not have considered the appellant to be
“deemed to be in service” post superannuation and ordering him
to be dismissed from service in the absence of any regulation in
the 1981 Regulations permitting such course of action is absolutely
illegal.
15
AIR 1956 SC 241
16
AIR 1969 SC 381
17
1951 SCC 903
9
f. The actions of the appellant of giving oral sanctions for the TOD
was normal practice and was done in good faith.
14. Based on the aforesaid contentions, Mr. Nuli, learned senior counsel for
the appellant ably assisted by Ms. Akhila Wali, learned counsel urged
that the entire disciplinary proceedings including the order of dismissal
and the appellate order be set aside and the respondent be ordered to
release to the appellant full benefits as if he had never been dismissed.
15. Per contra, Mr. Patil, learned senior counsel appearing on behalf of the
respondent, defended the administrative actions challenged in the writ
petition and the impugned order on, inter alia, the following grounds:
a. The High Court rightly decided that since the report of preliminary
inquiry was only to assess and decide whether disciplinary
proceedings should be initiated or not and had not formed the
foundation for passing the order of dismissal from service, denial
of the same to the appellant did not prejudice him.
b. The author of the preliminary inquiry report was the sole witness
for the management in the inquiry and whatever was recorded by
such witness in the preliminary inquiry report was spoken to by
him in course of the inquiry; whereafter the appellant had cross-
examined extensively. There was, thus, no question of the
appellant to feel aggrieved by non-furnishing of the report of
preliminary inquiry.
c. Qua Regulation 6(17) of the 1981 Regulations, the appellant has
not demonstrated any prejudice; moreover, the appellant utilised
10
the opportunity of making submissions when called upon by theInquiry Officer and, therefore, the High Court was right in holding
that the concerned regulation is not mandatory and requires only
to be substantially complied with.
d. The appellant did not ever raise any grievance in course of the
inquiry and even subsequently, in his representation against the
inquiry report or the appeal petition that non-compliance with
Regulation 6(17) of the 1981 Regulations had prejudiced him in
his defence. For the first time, the appellant raised such a
grievance in the writ petition which is nothing but an afterthought.
e. The decision in Tara Singh (supra) and Sunil Kumar Banerjee
(supra) operate in different legal domains and, therefore, Tara
Singh (supra) being a decision rendered in the criminal appellate
jurisdiction is not applicable in the present proceedings; on the
contrary, Sunil Kumar Banerjee (supra) is pat on the point and
propriety demands that we follow the same.
f. Continuation of disciplinary proceedings even after the appellant
had attained superannuation cannot be faulted because the
appellant was continued in service till such time the final order of
dismissal from service was passed and this is a permissible course
of action, not warranting interdiction.
ISSUES
16. Three broad issues emerge for decision:
11
(i) Whether denial of the report of preliminary inquiry prepared by the
officer entrusted by Vijaya Bank to conduct such inquiry, who happened
to be the sole management witness, was sufficient to vitiate the regular
inquiry that followed against the appellant?
(ii) Whether the failure/omission of the Inquiry Officer to generally
question the appellant on the circumstances appearing against him in
the evidence, as per Regulation 6(17) of the 1981 Regulations, vitiated
the inquiry?
(iii) Whether continuation of disciplinary proceedings against the
appellant beyond superannuation was a permissible course of action
under the 1981 Regulations?
17. If indeed the answer to any or all the aforesaid issues is in favour of the
appellant, the relief that he could be entitled would then fall for our
consideration.
ANALYSIS
18. We begin with issue no.1. Unlike the extensive jurisprudence available
on the furnishing of the final enquiry report, our research reveals that
there is significantly less jurisprudence on the issue of furnishing a
preliminary inquiry report. However, the decisions referred to below
provide sufficient light for us to rule on the question before us.
19. At the outset, we refer to the Constitution Bench decision in Champaklal
Chimanlal Shah v. Union of India18. The said decision succinctly
18
1963 SCC OnLine SC 42
12
delineates the purpose of a preliminary inquiry, albeit in the context of
government employees. Hon’ble K.N. Wanchoo, J. (as the Chief Justice
then was) speaking for the Bench observed as follows:
“13. Generally therefore a preliminary enquiry is usually held to
determine whether a prima facie case for a formal departmental enquiry
is made out, and it is very necessary that the two should not be
confused. Even where government does not intend to take action by way
of punishment against a temporary servant on a report of bad work or
misconduct a preliminary enquiry is usually held to satisfy government
that there is reason to dispense with the services of a temporary
employee or to revert him to his substantive post, for as we have said
already government does not usually take action of this kind without any
reason. Therefore when a preliminary enquiry of this nature is held in
the case of a temporary employee or a government servant holding a
higher rank temporarily it must not be confused with the regular
departmental enquiry (which usually follows such a preliminary enquiry)
when the government decides to frame charges and get a departmental
enquiry made in order that one of the three major punishments already
indicated may be inflicted on the government servant. Therefore, so far
as the preliminary enquiry is concerned there is no question of its being
governed by Article 311(2) for that enquiry is really for the satisfaction
of government to decide whether punitive action should be taken or
action should be taken under the contract or the rules in the case of a
temporary government servant or a servant holding higher rank
temporarily to which he has no right. In short a preliminary enquiry is
for the purpose of collection of facts in regard to the conduct and work
of a government servant in which he may or may not be associated so
that the authority concerned may decide whether or not to subject the
servant concerned to the enquiry necessary under Article 311 for
inflicting one of the three major punishments mentioned therein. Such a
preliminary enquiry may even be held ex parte, for it is merely for the
satisfaction of government, though usually for the sake of fairness,
explanation is taken from the servant concerned even as such an
enquiry. But at that stage he has no right to be heard for the enquiry is
merely for the satisfaction of the government and it is only when the
government decides to hold a regular departmental enquiry for the
purpose of inflicting one of the three major punishments that the
government servant gets the protection of Article 311 and all the rights
that that protection implies as already indicated above. There must
therefore be no confusion between the two enquiries and it is only when
the government proceeds to hold a departmental enquiry for the purpose
of inflicting on the government servant one of the three major
punishments indicated in Article 311 that the government servant is
entitled to the protection of that Article. That is why this Court
emphasised in Parshotam Lal Dhingra case [(1958) SCR 828] and
in Shyam Lal v. State of Uttar Pradesh [(1955) 1 SCR 26] that the
‘motive or the inducing factor which influences the government to take
action under the terms of the contract of employment or the specific
service rule is irrelevant’.”13
20. A coordinate Bench in Krishna Chandra Tandon v. Union of India19
incontrovertibly held that there is no requirement to furnish a
preliminary inquiry report when the enquiry officer has not relied upon
the same to reach the conclusions recorded in the inquiry report after a
regular inquiry. The relevant passage reads as follows:
“16. … It is very necessary for an authority which orders an enquiry to
be satisfied that there are prima facie grounds for holding a disciplinary
enquiry and, therefore, before he makes up his mind he will either
himself investigate or direct his subordinates to investigate in the matter
and it is only after he receives the result of these investigations that he
can decide as to whether disciplinary action is called for or not.
Therefore, these documents of the nature of inter-departmental
communications between officers preliminary to the holding of enquiry
have really no importance unless the Enquiry Officer wants to rely on
them for his conclusions. In that case it would only be right that copies
of the same should be given to the delinquent. It is not the case here
that either the Enquiry Officer or the CIT relied on the report of Shri R.N.
Srivastava or any other officer for his finding against the appellant.
Therefore, there is no substance in this submission.”
21. The concept of a preliminary inquiry and its ramifications have been
neatly summed up in Chandrama Tewari v. Union of India20. There,
a coordinate Bench of this Court held that:
“4. We have given our anxious consideration to the submissions made
on behalf of the appellant and we have further considered the aforesaid
authorities referred to by the learned counsel for the appellant but we
do not find any merit in the appellant’s submissions to justify
interference with the High Court’s judgment. Article 311 of the
Constitution requires that reasonable opportunity of defence must be
afforded to a government servant before he is awarded major
punishment of dismissal. It further contemplates that disciplinary
enquiry must be held in accordance with the rules in a just and fair
manner. The procedure at the enquiry must be consistent with the
principles of natural justice. Principles of natural justice require that the
copy of the document if any relied upon against the party charged should
be given to him and he should be afforded opportunity to cross-examine
the witnesses and to produce his own witnesses in his defence. If findings
are recorded against the government servant placing reliance on a
document which may not have been disclosed to him or the copy whereof19
(1974) 4 SCC 374
20
1987 Supp SCC 518
14
may not have been supplied to him during the enquiry when demanded,
that would contravene principles of natural justice rendering the enquiry,
and the consequential order of punishment illegal and void. These
principles are well settled by a catena of decisions of this Court. We need
not refer to them. However, it is not necessary that each and every
document must be supplied to the delinquent government servant facing
the charges, instead only material and relevant documents are
necessary to be supplied to him. If a document even though mentioned
in the memo of charges is not relevant to the charges or if it is not
referred to or relied upon by the enquiry officer or the punishing
authority in holding the charges proved against the government servant,
no exception can be taken to the validity of the proceedings or the order.
If the document is not used against the party charged the ground of
violation of principles of natural justice cannot successfully be raised.
The violation of principles of natural justice arises only when a document,
copy of which may not have been supplied to the party charged when
demanded is used in recording finding of guilt against him. On a careful
consideration of the authorities cited on behalf of the appellant we find
that the obligation to supply copies of a document is confined only to
material and relevant documents and the enquiry would be vitiated only
if the non-supply of material and relevant documents when demanded
may have caused prejudice to the delinquent officer.
***
9. It is now well settled that if copies of relevant and material documents
including the statement of witnesses recorded in the preliminary enquiry
or during investigation are not supplied to the delinquent officer facing
the enquiry and if such documents are relied in holding the charges
framed against the officer, the enquiry would be vitiated for the violation
of principles of natural justice. Similarly, if the statement of witnesses
recorded during the investigation of a criminal case or in the preliminary
enquiry is not supplied to the delinquent officer that would amount to
denial of opportunity of effective cross-examination. It is difficult to
comprehend exhaustively the facts and circumstances which may lead
to violation of principles of natural justice or denial of reasonable
opportunity of defence. This question must be determined on the facts
and circumstances of each case. While considering this question it has
to be borne in mind that a delinquent officer is entitled to have copies of
material and relevant documents only which may include the copy of
statement of witnesses recorded during the investigation or preliminary
enquiry or the copy of any other document which may have been relied
on in support of the charges. If a document has no bearing on the
charges or if it is not relied on by the enquiry officer to support the
charges, or if such document or material was not necessary for the cross-
examination of witnesses during the enquiry, the officer cannot insist
upon the supply of copies of such documents, as the absence of copy of
such document will not prejudice the delinquent officer. The decision of
the question whether a document is material or not will depend upon the
facts and circumstances of each case.”
15
22. A three-Judge Bench of this Court in Narayan Dattatraya
Ramteerthakhar v. State of Maharashtra21 observed that:
“3. … It is then contended that the preliminary enquiry was not properly
conducted and, therefore, the enquiry is vitiated by principles of natural
justice. The preliminary inquiry has nothing to do with the enquiry
conducted after issue of charge-sheet. The former action would be to
find whether disciplinary enquiry should be initiated against the
delinquent. After full-fledged enquiry was held, the preliminary enquiry
had lost its importance.”
23. Considering the aforesaid decisions as well as other decisions, a
coordinate Bench in Nirmala J. Jhala v. State of Gujarat22 held that:
“45. In view of the above, it is evident that the evidence recorded in
preliminary inquiry cannot be used in regular inquiry as the delinquent
is not associated with it, and opportunity to cross-examine the persons
examined in such inquiry is not given. Using such evidence would be
violative of the principles of natural justice.”
24. We may also profitably refer to the decision in Manoj Kumar v. State
of U.P.23 wherein it was held:
“6. …The order also states that a preliminary inquiry was held to
determine if a full-fledged departmental enquiry was required after
which the charge memo was served with full opportunity of defence. The
non-furnishing of the preliminary inquiry report has therefore not
prejudiced the appellant in any manner or vitiated the departmental
proceedings.”
25. The upshot of the aforesaid decisions is that:
i. A preliminary inquiry is conducted for the purposes of determining
whether regular disciplinary proceedings are called for or not;
ii. A preliminary inquiry report is an internal document;
iii. A preliminary inquiry report or the findings therein cannot be used
to come to conclusions recorded in the report of inquiry if such
21
(1997) 1 SCC 299
22
(2013) 4 SCC 301
23
(2018) 13 SCC 161
16
preliminary inquiry report/findings are based on oral and/ordocumentary evidence which are obtained behind the back of the
charged employee and such oral/documentary evidence are not
presented in the inquiry in the presence of such employee;
iv. If a preliminary inquiry report or the findings therein are sought to
be relied on, the witnesses whose evidence was relied on in
preparing the same ought to be brought before the inquiry officer
and the charged officer afforded an opportunity to cross-examine
them;
v. If a preliminary inquiry report is sought to be relied upon in the
inquiry report, then such preliminary inquiry report must be
provided to the delinquent employee;
vi. Once a chargesheet is drawn up and has been provided to the
charged officer detailing the charges, the preliminary inquiry
report is of no consequence and need not be provided to him.
26. Having noted the purpose and reason for conducting a preliminary
inquiry, we now proceed to answer the question as to whether non-
furnishing of the report to the appellant led to the disciplinary
proceedings being vitiated.
27. In the instant case, a perusal of the inquiry report reveals that no
reliance upon the preliminary inquiry report has been placed by the
inquiry officer. Therefore, non-furnishing of the inquiry report to the
appellant is inconsequential.
17
28. However, an interesting argument that has been made is that the non-
furnishing of the preliminary inquiry report has caused prejudice to the
appellant because such non-furnishing of the report disabled him to
effectively cross-examine the witness. This argument, while novel, is not
impressive. We come to this ineluctable conclusion since the appellant
was duly provided with the deposition of the witness as per the rules,
was allowed to cross-examine the witness on the basis of the statements
made by him and the inquiry officer placed no reliance upon the
preliminary inquiry report, but only upon the statements of such witness
recorded during chief examination and cross-examination.
29. We, therefore, find no violation of the principles of natural justice; also,
no prejudice has been caused to the charged officer for non-furnishing
of the preliminary inquiry report.
30. This conclusion, is however, premised on the caveat that no rule,
statutory or otherwise, mandates the furnishing of the preliminary
inquiry report in this particular case.
31. We now proceed to answer the next question which is central to the
dispute, i.e., what is the nature of duty that Regulation 6(17) of the 1981
Regulations casts on an Inquiry Officer? Is the provision directory or
mandatory, or is it both directory and mandatory depending on the fact
situation in each case?
32. In Sunil Kumar Banerjee (supra), a three-Judge Bench of this Court
had the occasion to consider Rule 8(19) of the All India Services
18
(Discipline and Appeal) Rules, 196924, which is pari materia Rule 6(17)
of the 1981 Regulations. A point having been taken before the Bench by
the delinquent officer that Rule 8(19) was observed in the breach by the
Inquiry Officer, it was ruled by Hon’ble O. Chinappa Reddy, J. as follows:
“3. … It may be noticed straightway that this provision is akin to Section
342 of the Criminal Procedure Code of 1898 and Section 313 of the
Criminal Procedure Code of 1973. It is now well established that mere
non-examination or defective examination under Section 342 of the
1898 Code is not a ground for interference unless prejudice is
established, vide, K.C. Mathew v. State of Travancore-Cochin (AIR 1956
SC 241); Bibhuti Bhusan Das Gupta v. State of W.B. (AIR 1969 SC 381).
We are similarly of the view that failure to comply with the requirements
of Rule 8(19) of the 1969 Rules does not vitiate the enquiry unless the
delinquent officer is able to establish prejudice. In this case the learned
Single Judge of the High Court as well as the learned Judges of the
Division Bench found that the appellant was in no way prejudiced by the
failure to observe the requirement of Rule 8(19). The appellant cross-
examined the witnesses himself, submitted his defence in writing in
great detail and argued the case himself at all stages. The appellant was
fully alive to the allegations against him and dealt with all aspects of the
allegations in his written defence. We do not think that he was in the
least prejudiced by the failure of the Enquiry Officer to question him in
accordance with Rule 8(19).”
33. It follows from the above passage that the Bench in Sunil Kumar
Banerjee (supra), while overruling the contention of the delinquent
officer, held that (i) Rule 8(19) of the 1969 Rules was akin to Section
342 of the Code of Criminal Procedure, 189825 and Section 313 of the
Code of Criminal Procedure, 197326; and (ii) in terms of the law laid
down in K.C. Mathew (supra) and Bibhuti Bhusan Das Gupta (supra),
mere non-examination or defective examination under Section 342 of
the 1898 Code is not a ground for interference unless prejudice is
24
1969 Rules
25
1898 Code
26
1973 Code
19
established. On facts, the Bench was of the opinion that though the
Inquiry Officer had not examined the delinquent officer, he was not
prejudiced at all thereby since he was alive to the allegations against
him, had cross-examined the witnesses himself, submitted his defence
in writing in great detail and argued the case himself at all stages.
34. Sections 342 and 313 of the 1898 and 1973 Codes, respectively, though
bear close resemblance, are not exactly the same. We may, for ease of
understanding, quote the same below:
342. (1) For the purpose of enabling the accused to explain any
circumstances appearing in the evidence against him, the court may, at
any stage of any inquiring or trial without previously warning the
accused, put such questions to him as the court considers necessary,
and shall, for the purpose aforesaid, question him generally on the case
after the witnesses for the prosecution have been examined and before
he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing
to answer such questions, or by giving false answers to them; but the
court and the jury (if any) may draw such inference from such refusal or
answers as it thinks just.
(3) The answers given by the accused may be taken into consideration
in such inquiry or trial, and put in evidence for or against him in any
other inquiry into or trial for, any other offence which such answers may
tend to show he has committed.
(4) No oath shall be administered to the accused when he is examined
under sub-section (1).
313. Power to examine the accused.—
(1) In every inquiry or trial, for the purpose of enabling the accused
personally to explain any circumstances appearing in the evidence
against him, the Court—
(a) may at any stage, without previously warning the accused put
such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been
examined and before he is called on for his defence, question him
generally on the case: Provided that in a summons-case, where
the Court has dispensed with the personal attendance of the
accused, it may also dispense with his examination under clause
(b).
(2) No oath shall be administered to the accused when he is examined
under sub-section (1).
(3) The accused shall not render himself liable to punishment by refusing
to answer such questions, or by giving false answers to them.
20
(4) The answers given by the accused may be taken into consideration
in such inquiry or trial, and put in evidence for or against him in any
other inquiry into, or trial for, any other offence which such answers may
tend to show he has committed.
(5) The Court may take help of Prosecutor and Defence Counsel in
preparing relevant questions which are to be put to the accused and the
Court may permit filing of written statement by the accused as sufficient
compliance of this section.
35. In K.C. Mathew (supra), a three-Judge Bench while considering the
impact of breach of Section 342 of the 1898 Code observed as follows:
“7. The next argument was that the examination of each accused under
Section 342 of the Criminal Procedure Code was defective and that that
caused prejudice. We agree that the examination was not as full or as
clear as it should have been but we are not satisfied that there was any
prejudice.
8. It is to be noted that the question of prejudice was not raised in either
of the courts below nor was it raised in the grounds of appeal to this
Court. The point was taken for the first time in the arguments before us
and even there counsel was unable to say that his clients had in fact
been prejudiced; all he could urge was that there was a possibility of
prejudice.
9. We agree that the omission to take the objection in the grounds of
appeal is not necessarily fatal; everything must depend on the facts of
the case; but the fact that the objection was not taken at an earlier
stage, if it could and should have been taken, is a material circumstance
that will necessarily weigh heavily against the accused particularly when
he has been represented by counsel throughout. The Explanation to
Section 537 of the Criminal Procedure Code expressly requires the Court
to
‘have regard to the fact whether the objection could and should
have been raised at an earlier stage in the proceedings’.
10. Another strong circumstance is this : the petition for appeal does not
set out the questions that, according to the appellants, they should have
been asked nor does it indicate the answers that they would have given
if they had been asked. Again, though that is not necessarily fatal
ordinarily it will be very difficult to sustain a plea of prejudice unless the
Court is told just where the shoe pinches. It is true that in certain
exceptional cases prejudice, or a reasonable likelihood of prejudice, may
be so patent on the face of the facts that nothing more is needed; but
that class of case must be exceptional. After all, the only person who can
really tell us whether he was in fact prejudiced is the accused; and if
there is real prejudice he can at once state the facts and leave the Court
to judge their worth. But if the attitude of the accused, whether in person
or through the mouth of his counsel, is: ‘I don’t know what I would have
said. I still have to think that up. But I might have said this, that or the
other’, then there will ordinarily be little difficulty in concluding that there
neither was, nor could have been, prejudice. Here, as elsewhere, the
Court is entitled to conclude that a person who deliberately withholds
facts within his special knowledge and refuses to give the Court that21
assistance which is its right and due, has nothing of value which he can
disclose and that if he did disclose anything that would at once expose
the hollowness of his cause.”
(emphasis ours)
36. Bibhuti Bhusan Das Gupta (supra) is also a decision of a three-Judge
Bench. The question arising for decision is neatly summed up in
paragraph 4, reading as follows:
“4. … The point in issue is whether the pleader can represent the accused
for purposes of Section 342 and whether the examination of the pleader
in place of the accused is sufficient compliance with the section in a case
where the Magistrate has dispensed with the personal attendance of the
accused and permitted him to appear by a pleader. On this question
there is a sharp conflict of judicial opinion. Most of the decisions up to
1962 are referred to in Prova Debi v. Mrs Fernandes (AIR 1962 Cal 203).
In that case a Full Bench of the Calcutta High Court by a majority
decision held that the Magistrate may in his discretion examine the
pleader on behalf of the accused under Section 342. This view is
supported by numerous decisions of other High Courts, but from time to
time many judges expressed vigorous dissents and came to the opposite
conclusion. The two sides of the question are ably discussed in the
majority and minority judgments of the Calcutta case. After a full
examination of all the decided cases on the subject, we are inclined to
agree with the minority opinion.”
(emphasis ours)
37. Section 342 of the 1898 Code was considered and it was explained in
the following words:
“5. Sub-section (1) of Section 342 consists of two parts. The first part
gives a discretion to the court to question the accused at any stage of
an inquiry or trial without previously warning him. Under the second part
the court is required to question him generally on the case after the
witnesses for the prosecution have been examined and before he is
called for his defence. The second part is mandatory and imposes upon
the court a duty to examine the accused at the close of the prosecution
case in order to give him an opportunity to explain any circumstances
appearing against him in the evidence and to say in his defence what he
wants to say in his own words. He is not bound to answer the questions
but if he refuses to answer or gives false answers, the consequences
may be serious, for under sub-section (2) the court may draw such
inference from the refusal or the false answer as it thinks fit. Under sub-
section (3) the answers given by the accused may be taken into
consideration in the inquiry or trial. His statement is material upon which
the court may act, and which may prove his innocence, (see State of
Maharashtra v. Laxman Jairam (1962 Supp 3 SCR 230). Under sub-
section (4) no oath is administered to him. The reason is that when he
is examined under Section 342, he is not a witness. … ”
22
(emphasis ours)
38. Having read the extracted passages of the larger Bench decisions in
between the lines, it appears to us imperative to highlight certain points.
In K.C. Mathew (supra), the plea of defective examination was raised
for the first time in course of arguments before this Court and not at any
previous stage, though fully available to be raised since the accused
were being represented by a counsel. The Bench, having expressly
referred to the provision in Section 537 of the 1898 Code, which was
akin to Section 465(1) of the 1973 Code, considered the inability of the
accused to demonstrate the prejudice suffered by him in the process of
conviction and sentence as one of the grounds for declining relief.
Obviously, on the face of Section 537 of the 1898 Code, a failure of
justice had to occasion by any error or irregularity for being interdicted
which was not the case in K.C. Mathew (supra). Similarly in Bibhuti
Bhusan Das Gupta (supra), this Court observed that mere non-
examination or defective examination under Section 342 is not a ground
for interference unless prejudice is established and, therefore, even in
that case, since such plea of prejudice was not raised in previous rounds
of litigation and the non-examination under Section 342 did not cause
any prejudice, the conviction and sentence was not interfered with
looking to the facts in that case. What is important and stands out for
the present case is that the second limb of Section 342 of the 1898 Code
was interpreted by the three-Judge Bench to be mandatory.
39. This interpretation of Section 342 of the 1898 Code in Bibhuti Bhusan
Das Gupta (supra) also appears to align with the previous larger Bench
23
decision of four Judges in Tara Singh (supra) wherein, Hon’ble Vivian
Bose, J. (as His Lordship then was) speaking for the Bench, had the
occasion to explain in detail the requirements of examination of an
accused under Section 342. The relevant passage is extracted below:
“18. It is important therefore that an accused should be properly
examined under Section 342 and, as their Lordships of the Privy Council
indicated in Dwarkanath Varma v. Emperor (AIR 1933 PC 124), if a point
in the evidence is considered important against the accused and the
conviction is intended to be based upon it, then it is right and proper
that the accused should be questioned about the matter and be given an
opportunity of explaining it if he so desires. This is an important and
salutary provision and I cannot permit it to be slurred over. I regret to
find that in many cases scant attention is paid to it, particularly in the
Sessions Courts. But whether the matter arises in the Sessions Court or
in that of the Committing Magistrate, it is important that the provisions
of Section 342 should be fairly and faithfully observed.
23. Section 342 requires the accused to be examined for the purpose of
enabling him “to explain any circumstances appearing in the evidence
against him”. Now it is evident that when the Sessions Court is required
to make the examination under this section, the evidence referred to is
the evidence in the Sessions Court and the circumstances which appear
against the accused in that court. It is not therefore enough to read over
the questions and answers put in the Committing Magistrate’s Court and
ask the accused whether he has anything to say about them. In the
present case, there was not even that. The appellant was not asked to
explain the circumstances appearing in the evidence against him but was
asked whether the statements made before the Committing Magistrate
and his answers given there were correctly recorded. That does not
comply with the requirements of the section.
38. The whole object of Section 342 is to afford the accused a fair and
proper opportunity of explaining circumstances which appear against
him. The questioning must therefore be fair and must be couched in a
form which an ignorant or illiterate person will be able to appreciate and
understand. Even when an accused person is not illiterate, his mind is
apt to be perturbed when he is facing a charge of murder. He is therefore
in no fit position to understand the significance of a complex question.
Fairness therefore requires that each material circumstance should be
put simply and separately in a way that an illiterate mind, or one which
is perturbed or confused, can readily appreciate and understand. I do
not suggest that every error or omission in this behalf would necessarily
vitiate a trial because I am of opinion that errors of this type fall within
the category of curable irregularities. Therefore, the question in each
case depends upon the degree of the error and upon whether prejudice
has been occasioned or is likely to have been occasioned.
24
39. In my opinion, the disregard of the provisions of Section 342,
Criminal Procedure Code, is so gross in this case that I feel there is grave
likelihood of prejudice. But this is not the only error. … ”
40. Further reference can profitably be made to the decision of another
three-Judge Bench in Rama Shankar Singh v. State of West Bengal27
where the scope of Section 342 of the 1898 Code was examined in the
light of the relevant Sessions Judge rolling up several distinct matters of
evidence in a single question. It was held thus:
“15. In our view, the learned Sessions Judge in rolling up several distinct
matters of evidence in a single question acted irregularly. Section 342 of
the Code of Criminal Procedure by the first sub-section provides, insofar
as it is material: “For the purpose of enabling the accused to explain any
circumstances appearing in the evidence against him, the Court … shall
… question him generally on the case after the witnesses for the
prosecution have been examined and before he is called on for his
defence”. Duty is thereby imposed upon the Court to question the
accused generally in a case after the witnesses for the prosecution have
been examined to enable the accused to explain any circumstance
appearing against him. This is a necessary corollary of the presumption
of innocence on which our criminal jurisprudence is founded. The object
of the section is to afford to the accused an opportunity of showing that
the circumstance relied upon by the prosecution which may be prima
facie against him, is not true or is consistent with his innocence. The
opportunity must be real and adequate. Questions must be so framed as
to give to the accused clear notice of the circumstances relied upon by
the prosecution, and must give him an opportunity to render such
explanation as he can of that circumstance. Each question must be so
framed that the accused may be able to understand it and to appreciate
what use the prosecution desires to make of the evidence against him.
Examination of the accused under Section 342 is not intended to be an
idle formality, it has to be carried out in the interest of justice and
fairplay to the accused : by a slipshod examination which is the result of
imperfect appreciation of the evidence, idleness or negligence the
position of the accused cannot be permitted to be made more difficult
than what it is in a trial for an offence.”
(emphasis ours)
41. At this juncture, it would be worthwhile to notice the decision of another
three-Judge Bench of this Court in Sharad Birdhichand Sarda v. State
27
AIR 1962 SC 1239
25
of Maharashtra28, where Section 313 of the 1973 Code was considered
and it was held by Hon’ble S. Murtaza Fazal Ali, J. (as His Lordship then
was) that it is vital that any circumstance adverse to the accused must
be put to him under Section 313; otherwise it must be completely
excluded from consideration because the accused did not have any
chance to explain them. Much the same view was expressed by Hon’ble
A. Varadarajan, J. (as His Lordship then was) in his concurring opinion
to the effect that the circumstances not put to the appellant in his
examination under S. 313 of the 1973 Code have to be completely
excluded from consideration.
42. Quite recently, another three-Judge Bench in Maheshwar Tigga v.
State of Jharkhand29 had the occasion to rule that:
“8. It stands well settled that circumstances not put to an accused under
Section 313 CrPC cannot be used against him, and must be excluded
from consideration. In a criminal trial, the importance of the questions
put to an accused are basic to the principles of natural justice as it
provides him the opportunity not only to furnish his defence, but also to
explain the incriminating circumstances against him. A probable defence
raised by an accused is sufficient to rebut the accusation without the
requirement of proof beyond reasonable doubt.”
43. Mr. Patil is correct that Sunil Kumar Banerjee (supra) is a precedent
that provides adequate guidance for deciding the point under
consideration, since it dealt with a pari materia provision applicable in
course of a departmental inquiry. Obviously, he hinted that we are bound
by such precedent and there is no way a different view could be taken.
28
(1984) 4 SCC 116
29
(2020) 10 SCC 108
26
44. In normal circumstances, there could be little reason not to accept such
a contention being bound by the precedent of a larger bench. However,
the vast and expansive development of law in the field of administrative
law in our country since the time Sunil Kumar Banerjee (supra) was
decided (almost four and half decades back), especially on the rule of
fairness in administrative action which is now acknowledged in the
Indian context as the third limb of natural justice, cannot be overlooked.
Coupled with that is the decision in S.L. Kapoor (supra), authored by
none other than Hon’ble O. Chinappa Reddy, J. himself and the
subsequent trio of Constitution Bench decisions in Olga Tellis (supra),
Tulsiram Patel (supra) and A. R. Antulay (supra) upholding that
violation of a mandatory provision of law relating to fair hearing is in
itself prejudice to the person proceeded against and no need to
demonstrate prejudice would arise. It is of particular importance when
His Lordship frowned that “it ill comes from a person who has denied
justice that the person who has been denied justice is not prejudiced.”
(emphasis ours). It is indeed paradoxical for someone who has denied
justice to a person to claim that that person, who was denied justice, is
not prejudiced.
45. With the utmost respect and reverence at our command for the three-
Judge Bench that had the occasion to decide Sunil Kumar Banerjee
(supra), our analysis of the legal position reveals that the precedential
value of the said decision stands significantly diminished for reasons
27
more than one and that such decision must be treated to be an authority
for what it decided based on the reasons assigned therein.
46. First, there was no independent consideration of Rule 8(19) of the 1969
Rules in the context of the procedural safeguards that delinquent officers
under such relevant rules are entitled to claim and enforce.
Consequently, and most significantly, the impact of the words “may” and
“shall” appearing in the same provision do not appear to have been
considered. We propose to interpret Regulation 6(17) of the 1981
Regulations a little later.
47. Secondly, the approach of the larger Bench in interpreting Rule 8(19) of
the 1969 Rules was completely based on consideration of Section 342 of
the 1898 Code and the decisions in K.C. Mathew (supra) and Bibhuti
Bhusan Das Gupta (supra). The law on Section 313 of the 1973 Code,
which replaced Section 342 of the 1898 Code, and the rights of an
accused have been explained in detail in several subsequent decisions
of this Court, some of which are noticed above. Since examination under
Section 313 of the 1973 Code has been recognised as a part of natural
justice, failure of the court to place the circumstances appearing in the
evidence to the accused by putting appropriate questions resulting in his
improper examination in a given case could result in the trial being held
to be vitiated. To make the examination under Section 313 of the 1973
Code more effective, the Parliament has even amended such provision
on the last day of the year 2009. In view thereof and by passage of time,
the prejudice theory in criminal trials qua Section 313, Cr. PC
28
examination seems to have suffered some dilution; however, since we
are not dealing with an appeal arising out of a criminal trial, we may not
be understood to have laid down any law in this judgment that could be
cited as a precedent before courts trying criminal offences. Nonetheless,
we hold that K.C. Mathew (supra) was not the only decision providing
guidance. There were other decisions of high authority which might not
have been cited before the Bench in Sunil Kumar Banerjee (supra).
48. Thirdly, assuming that the prejudice theory does have relevance, it is
reasonable to assume that the principle on the basis of which Rama
Shankar Singh (supra) and K.C. Mathew (supra) were decided by
Their Lordships must have been predicated on a consideration of Section
537 of the 1898 Code in terms whereof, it has to be demonstrated by
the accused, to secure a declaration that the trial or inquiry stood
vitiated, that a failure of justice had occasioned arising out of the
procedure adopted by the court. Insofar as the 1969 Rules or the 1981
Regulations are concerned, there is no such provision therein like Section
537 of the 1898 Code or Section 465 of the 1973 Code. This marks a
significant distinction in trials under the 1898 Code/1973 Code and
inquiries under the 1969 Rules/1981 Regulations. In our considered
opinion, this vital aspect cannot be excluded from our consideration.
49. Fourthly, Bibhuti Bhusan Das Gupta (supra) is a decision which
appears to have been referred only in passing in Sunil Kumar Banerjee
(supra) without noting the law declared therein. The trial was held to be
vitiated for breach of Section 342 of the 1898 Code since the court had
29
examined the counsel for the accused instead of the accused.
Additionally, the decision in Bibhuti Bhusan Das Gupta (supra) spelt
out in clear terms which parts of Section 342 were directory and which
parts were mandatory. Section 342, as explained by the Bench in such
decision, would have a bearing on our thought process as would be
evident from the discussions that follow.
50. Fifthly, the still larger Bench decision in Tara Singh (supra) went
unnoticed in Sunil Kumar Banerjee (supra).
51. Fifthly, it cannot escape notice that in a criminal trial, fate of the accused
is decided by a judicial officer who is an impartial and neutral arbiter
whereas, more often than not, fate of a delinquent officer/employee
hangs on the decisions of inquiry officers who are members of the same
organisation and function under the same employer. Not that we are
sceptical of members of the same organisation functioning as inquiry
officers, which could be dictated by necessity, but the level of impartiality
and neutrality can, in certain cases, be questionable. This is a vital
circumstance which does not appear to have been considered.
52. Finally, and most importantly, there is a significant difference between
the stages where Section 342, 1898 Code/Section 313, 1973 Code on
the one hand and Rule 8(19) of the 1969 Rules/Regulation 6(17) of the
1981 Regulations on the other, apply. In a criminal trial, putting
questions to the accused by the court to enable him to explain any
circumstance appearing in the evidence against him under the relevant
provision (Sections 342/313) is contemplated at two stages – (a) before
30
the prosecution concludes its evidence and (b) after evidence is
concluded by the prosecution but before the accused leads evidence in
defence. While in respect of (a) above it is discretionary for the court to
question the accused, qua (b) above, it is mandatory for the court – as
explained in Bibhuti Bhusan Das Gupta (supra). However, the
procedure is not exactly the same in a domestic inquiry of the nature
under consideration. In terms of the procedure for holding inquiry, the
examination of the nature contemplated by Regulation 6(17) is not to be
resorted to in the midst of evidence being led by the management. After
the management closes its evidence, the charged officer has to be given
opportunity to lead evidence in defence. The charged officer is under no
obligation to lead evidence but if he opts therefor, he does so at his own
risk and peril and has to bear the consequences, viz. he cannot then
claim that the Inquiry Officer is bound to question him generally on the
circumstances available in the evidence against him. If the charged
officer elects to lead defence evidence, it could include witnesses other
than the charged officer; or, it could include him as well along with the
other witnesses. The charged officer may even opt not to examine any
other witness but only himself. After the evidence of the defence
witnesses is recorded and evidence of the defence stands closed, the
stage for Regulation 6(17) of the 1981 Regulations, or for that matter
Rule 8(19) of the 1969 Rules, is reached. The difference is significant,
as we presently propose to explain in the light of the aforesaid options
available to the charged officer.
31
53. Interestingly, Regulation 6(17) as well as Rule 8(19) refers to both ‘may’
and ‘shall’. While the first part of Regulation 6(17) refers to ‘may’, the
second part refers to ‘shall’. To enable the charged officer to explain
circumstances in the evidence appearing against him, the provision
confers a discretion on the Inquiry Officer as well as imposes a
mandatory duty on him. It is discretionary for the Inquiry Officer, to put
questions to the charged officer if he is himself a witness for the defence,
whereas, if the charged officer has not examined himself as a witness
for the defence, the mandate of the law is that the Inquiry Officer shall
generally question the charged officer on the circumstances appearing
in the evidence against him.
54. The use of ‘may’ and ‘shall’ in the same provision does imply that
Regulation 6(17) means what it says. The words ‘may’ and ‘shall’ have
been used to mean ‘may’ and ‘shall’, respectively, and we cannot
possibly conceive of any rule of construction which would lead us to
assume that the framers intended that ‘shall’ in the second part of
Regulation 6(17) should also be read and understood as ‘may’. Use of
the word ‘shall’, in our opinion, is deliberate to denote that it is not
interchangeable with ‘may’; if it were so, the framers would have
straightaway used ‘may’ instead of ‘shall’ having known that ‘may’ has
been used in the first part. Couching of the provision in such language
with ‘may’ and ‘shall’ having distinct connotations and consequences and
bringing about different outcomes in the course of one and the same
32
inquiry unhesitatingly signals that while the first part of Regulation 6(17)
is directory, the second part thereof is mandatory.
55. We, therefore, unhesitatingly hold that the Inquiry Officer by not
generally questioning the appellant on the circumstances available in the
evidence, which were unfavourable or adverse to such officer, failed to
perform a mandatory duty. Any such circumstance, which was
unfavourable or adverse to the appellant, should have been excluded
from the Inquiry Officer’s consideration. It would not commend
acceptance that though the Inquiry Officer acted in derogation of the
1981 Regulations, nevertheless, his action must to be upheld on the
specious ground that the appellant has failed to demonstrate prejudice.
Neither Sunil Kumar Banerjee (supra) nor Alok Kumar (supra)
examined the issue from our standpoint and in view of the trio – the
Constitution Bench decisions in Tulsiram Patel (supra), Olga Tellis
(supra) and A.R. Antulay (supra) – which were rendered after Sunil
Kumar Banerjee (supra) and were not noticed in Alok Kumar (supra),
the ratio of the latter decisions may not bind us. Alok Kumar (supra)
relied on Haryana Financial Corporation v. Kailash Chandra
Ahuja30. In Ram Prakash Singh (supra), we have considered the
entire issue of the prejudice theory threadbare and articulated, as per
our understanding, how incomplete reading of the Constitution Bench
decision in B. Karunakar (supra) has resulted in dilution of its ratio.
True it is, the High Court was bound by Sunil Kumar Banerjee (supra)
30
(2008) 9 SCC 31
33
and Alok Kumar (supra) but, in our opinion, the said decisions cannot
come to the aid of the respondent.
56. We have considered the reasoning of the High Court that the appellant
was extended an opportunity by the Inquiry Officer to make his
submissions before the evidence was closed. However, such an
opportunity does not really match the nature of duty cast on the Inquiry
Officer under Regulation 6(17). Such regulation requires the Inquiry
Officer to question the charged officer, if he has not examined himself in
defence, on the circumstances appearing in the evidence that are
unfavourable or adverse to him. The purpose thereof is to extend an
opportunity to the charged officer to explain away such unfavourable or
adverse circumstances. This is one of the several procedural safeguards
that the 1981 Regulations envisages. The duty cast and the opportunity
extended are not equivalent. The inquiry under Regulation 6 being quasi-
judicial in nature, Regulation 6(17) places an onerous duty on the
Inquiry Officer (who is generally untrained in law) to seriously apply his
mind to the evidence on record and to indicate to the charged officer, as
part of the process of his decision making, that circumstances exist
which could weigh in his mind while arriving at the final findings in the
report of inquiry. Once indicated, the charged officer may or may not
explain away the circumstances but to offer an opportunity to have his
say recorded without indication of the circumstances existing does not
and would not amount to substantial compliance of Regulation 6(17).
34
57. Having said that, we cannot be oblivious of the fact that the appellant
did not raise any effective objection as to the failure of the Inquiry Officer
to strictly adhere to Regulation 6(17) at any stage prior to invoking the
writ jurisdiction of the High Court. There being a failure of the Inquiry
Officer to question the charged officer, the appellant ought to have
raised the same before the disciplinary authority at the first instance;
and, even if he did not so raise, he ought to have raised such objection
before the appellate authority while he presented his appeal. If such an
objection is not raised at any of the two tiers and the omission to do so
is not explained in the writ petition, the court may infer that the charged
officer was not seriously affected by non-adherence to Regulation 6(17)
and it would be open to it to pass an appropriate order based on the
inference drawn.
58. In the present case, the appellant did not raise any objection in this
behalf before the disciplinary authority but raised the point, generally,
of non-adherence to Regulation 6 before the appellate authority.
Unfortunately, the issue was missed and not addressed because, as we
propose to elaborately refer in the following paragraphs, the appellate
authority devoted its attention more to deal with another significant
objection raised by the appellant and negatived it by assigning lengthy
reasons which, however, do not appeal to us to be convincing. Be that
as it may, the appellant is justified in voicing a grievance before us that
he had not been extended fair, reasonable and adequate opportunity to
35
defend himself in terms of Regulation 6 which, in turn, infringed his right
protected by Article 14 of the Constitution.
59. The other important aspect, which merits our consideration and touched
upon by us in the earlier paragraph in very brief, admittedly, was not
argued before us by Mr. Nuli. We have noted that such point was raised
before the Single Judge, but, without success. However, we had the
appeal listed once again after reserving judgment to ascertain Mr. Patil’s
view on such point bearing in mind the power of an appellate court under
Order XLI Rule 33, Code of Civil Procedure, 1908. The appellant had
vehemently contended before the appellate authority that initially, the
disciplinary authority had proposed to impose upon the appellant the
penalty of compulsory retirement from service. The Chief Vigilance
Officer31 concurred with such proposal of the disciplinary authority. The
file was then placed before the Central Vigilance Commission 32.
However, the CVC rejected the proposal of both the disciplinary authority
and the CVO and instead recommended that the charged officer be not
shown any leniency since he has been found guilty of financial
irregularities and, therefore, be ‘dismissed’ from service. According to
the appellant, the disciplinary authority acting on the dictates of the CVC
proceeded to dismiss him from service. Appellant’s gravamen was that
the recommendation of the CVC was never made available to him,
affecting his right to a fair opportunity of defence. When challenged
before the appellate authority, such challenge was rejected on the
31
CVO
32
CVC
36
ground that the CVC recommendation is a privileged document and that
the appellant has violated the expected code of conduct by referring to
such internal documents which he could not have accessed in normal
due course.
60. In SBI v. D.C. Aggarwal33, the question arising for decision was noted
in paragraph 1. The same reads:
“Can disciplinary authority while imposing punishment, major or minor,
act on material which is neither supplied nor shown to the delinquent is
the only issue of substance, which arises for consideration in this appeal,
filed by …?
61. In a case almost identical to the present one, this Court while answering
the aforesaid question held that when the disciplinary authority accepts
the recommendation of the CVC which is at variance with the original
proposal of the disciplinary authority, it is incumbent upon the authority
to furnish a copy of the CVC recommendation to the charged employee
before acting on such recommendation. It was held thus:
“5. Reliance was placed on sub-rule (5) of Rule 50 which reads as under:
‘(5) Orders made by the Disciplinary Authority or the Appointing
Authority as the case may be under sub-rules (3) and (4) shall be
communicated to the employee concerned, who shall also be
supplied with a copy of the report of inquiry, if any.’
It was urged that copy of the inquiry report having been supplied to the
respondent the rule was complied with and the High Court committed an
error in coming to conclusion that principle of natural justice was
violated. Learned Additional Solicitor General urged that the principle of
natural justice having been incorporated and the same having been
observed the Court was not justified in misinterpreting the rule. The
learned counsel urged that the Bank was very fair to the respondent and
the disciplinary authority after application of mind and careful analysis
of the material on record on its own evaluation, uninfluenced by the CVC
recommendation passed the order. It was emphasised that if the
exercise would have been mechanical the disciplinary authority would
not have disagreed with CVC recommendations on punishment. Learned
counsel submitted that, in any case, the disciplinary authority having
passed detailed order discussing every material on record and the
respondent having filed appeal there was no prejudice caused to him.
33
(1993) 1 SCC 13
37
None of these submissions are of any help. The order is vitiated not
because of mechanical exercise of powers or for non-supply of the
inquiry report but for relying and acting on material which was not only
irrelevant but could not have been looked into. Purpose of supplying
document is to contest its veracity or give explanation. Effect of non-
supply of the report of Inquiry Officer before imposition of punishment
need not be gone into nor it 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. From the letter produced
by the respondent, the authenticity of which has been verified by the
learned Additional Solicitor General, it appears the Bank turned down
the request of the respondent for a copy of CVC recommendation as ‘The
correspondence with the Central Vigilance Commission is a privileged
communication and cannot be forwarded as the order passed by the
appointing authority deals with the recommendation of the CVC which is
considered sufficient’. Taking action against an employee on confidential
document which is the foundation of order exhibits complete
misapprehension about the procedure that is required to be followed by
the disciplinary authority. May be that the disciplinary authority has
recorded its own findings and it may be coincidental that reasoning and
basis of returning the finding of guilt are same as in the CVC report but
it being a material obtained behind back of the respondent without his
knowledge or supplying of any copy to him the High Court in our opinion
did not commit any error in quashing the order. Non-supply of the
Vigilance report was one of the grounds taken in appeal. But that was so
because the respondent prior to service of the order passed by the
disciplinary authority did not have any occasion to know that CVC had
submitted some report against him. The submission of the learned
Additional Solicitor General that CVC recommendations are confidential,
copy of which, could not be supplied cannot be accepted.
Recommendations of Vigilance prior to initiation of proceedings are
different than CVC recommendation which was the basis of the order
passed by the disciplinary authority.”
(emphasis ours)
62. A similar principle was reiterated in Mohd. Quaramuddin v. State of
A.P.34 as follows:
“3. On merits the tribunal came to the conclusion that the principle of
natural justice had been violated in that the delinquent was not supplied
a copy of the Vigilance Commission Report although it formed part of the
record of the enquiry and material which the disciplinary authority had
taken into consideration. The tribunal observed that where such a
material which the disciplinary authority relies on is not disclosed to the
delinquent it must be held that he was denied the opportunity of being34
(1994) 5 SCC 118
38
heard, meaning thereby that the audi alteram partem rule had been
violated. In the present case the tribunal found that the directions to this
effect found in the Government Memorandum No. 821/Services-C/69-8
dated 30-3-1971 had not been adhered to. Had the tribunal not come to
the conclusion that the suit was barred by limitation, it would have
allowed the appeal preferred by the delinquent.”
63. In an even earlier decision, i.e., Brij Nandan Kansal v. State of U.P.35,
this Court was seized of a similar question. The brief facts therein were
that the appellant, Brij Nandan Kansal, was in the service of the State of
Uttar Pradesh as a member of the U.P. Civil Service (Executive Branch).
He was posted as Regional Transport Magistrate at Bareilly between June
1962 to October 1964. A number of charges were framed against the
appellant and the State Government referred the matter to the U.P.
Administrative Tribunal constituted under the U.P. Disciplinary
Proceedings (Administrative Tribunal) Rules, 1947 for enquiry into those
charges. Out of six charges framed against the appellant therein, the
Tribunal recorded the finding that the first charge was not proved but it
recorded findings against the appellant therein in respect of the
remaining five charges. The Governor issued a show-cause notice to the
appellant therein calling upon him to show cause as to why he should
not be dismissed from service. A detailed reply was submitted by the
appellant commenting on the findings recorded by the Tribunal on each
and every charge. The Tribunal considered the reply to the show-cause
notice and the comments on the findings recorded by it earlier on the
charges and thereupon it submitted detailed findings to the Governor.
35
1988 Supp SCC 761
39
In that report, on a detailed analysis of the evidence recorded, the
Tribunal the finding that there was no convincing evidence to uphold the
charges framed against the appellant. On receipt of the report of the
Tribunal, the State Government appears to have referred the matter to
the Legal Remembrancer for his opinion. The Legal Remembrancer
disagreed with the findings recorded by the Tribunal in its report, and
opined that there was in fact sufficient evidence on record to hold
Charges 2 to 5 against the appellant to have been established. In view
of the opinion submitted by the Legal Remembrancer, the Governor
disregarded the findings recorded by the Tribunal and issued the
impugned order dismissing the appellant from service. This Court,
allowing the appeal, held that:
“7. …The Tribunal was entrusted with the primary duty of making inquiry
and record its findings on the charges. In that process it could enter into
adequacy, insufficiency or credibility of evidence on record. The Legal
Remembrancer was of the opinion that the Tribunal could not enter into
the realm of adequacy or sufficiency of evidence and for that purpose he
relied upon the well established principles of judicial review of
administrative actions. The Tribunal was not discharging the functions of
a court but on the other hand it was acting as the inquiring authority and
it had full power to reappraise the evidence and record its findings and
in that process it was open to it to hold that the evidence on record was
not sufficient to sustain the charges against the appellant. The whole
approach of the Legal Remembrancer was misconceived as a result of
which he opined that the findings recorded by the Tribunal in appellant’s
favour could be ignored. We are of opinion that the State Government
could not ignore the findings of the Tribunal applying the principles of
judicial review of administrative actions by a court of law. The State
Government committed serious error of law in ignoring the findings of
the Tribunal without giving an opportunity to the appellant to showcause
against the proposed view of the government and passing the impugned
order on the basis of the report of the Legal Remembrancer. The
Tribunal’s findings dated 7-7-1970 clearly indicated that there was no
evidence to sustain the charges against the appellant and in that view
the impugned order of dismissal could not legally be passed against the
appellant.
(emphasis ours)
40
64. We are certain that the CVC recommendation weighed heavily enough
upon the disciplinary authority so as to convince him to alter the
proposed punishment of compulsory retirement to dismissal of the
appellant. Receipt of the CVC recommendation behind the back of the
appellant and no opportunity having been provided to him to plead for a
lesser punishment, the inquiry stood vitiated. The CVC recommendation
constituted material which was considered by the disciplinary authority
at least for the purpose of deciding on the punishment that needed to
be imposed on the appellant. Once such recommendation fell for
consideration of the disciplinary authority, a copy of the same could not
have been denied to the appellant. That being said, we do not propose
to inculcate a standing requirement upon all disciplinary authorities that
a hearing, before punishment is imposed, should be provided if such
requirement is not present in the relevant rules. What we are insisting
upon is compliance with the principles of natural justice which, in view
of the Constitution Bench decision in B. Karunakar (supra),
acknowledges and asserts that a charged officer cannot be denied any
material that the disciplinary authority looks into for imposing
punishment. Such officer is entitled to access any document that was
either used to determine his blameworthy conduct amounting to
misconduct or considered while imposing punishment.
65. We now turn to deal with another important aspect, i.e., the claim of
privilege made by the appellate authority in defending non-disclosure of
the CVC recommendation to the appellant. While the Indian Evidence
41
Act, 187236 is not applicable to disciplinary proceedings, the principles
enshrined therein can provide sufficient guidance on the validity of the
claim. In State of Punjab v. Sodhi Sukhdev Singh37, this Court had
the opportunity to trace the colonial law on the point and its development
in Indian law. The relevant passages read as follows:
“13. The principle on which this departure can be and is justified is the
principle of the overriding and paramount character of public interest. A
valid claim for privilege made under Section 123 proceeds on the basis
of the theory that the production of the document in question would
cause injury to public interest, and that, where a conflict arises between
public interest and private interest, the latter must yield to the former.
No doubt the litigant whose claim may not succeed as a result of the
non-production of the relevant and material document may feel
aggrieved by the result, and the court, in reaching the said decision, may
feel dissatisfied; but that will not affect the validity of the basic principle
that public good and interest must override considerations of private
good and private interest. Care has, however, to be taken to see that
interests other than that of the public do not masquerade in the garb of
public interest and take undue advantage of the provisions of Section
123. Subject to this reservation the maxim silus populi est supreme
les which means that regard for public welfare is the highest law is the
basis of the provisions contained in Section 123. Though Section 123
does not expressly refer to injury to public interest that principle is
obviously implicit in it and indeed is its sole foundation.
14. Whilst we are discussing the basic principle underlying the provisions
of Section 123, it may be pertinent to enquire whether fair and fearless
administration of justice itself is not a matter of high public importance.
Fair administration of justice between a citizen and a citizen or between
a citizen and the State is itself a matter of great public importance; much
more so would the administration of justice as a whole be a matter of
very high public importance; even so, on principle, if there is a real, not
imaginary or fictitious, conflict between public interest and the interest
of an individual in a pending case, it may reluctantly have to be conceded
that the interest of the individual cannot prevail over the public interest.
If social security and progress which are necessarily included in the
concept of public good are the ideal then injury to the said ideal must on
principle be avoided even at the cost of the interest of an individual
involved in a particular case. That is why courts are and ought to be
vigilant in dealing with a claim of privilege made under Section 123.
15. If under Section 123 a dispute arises as to whether the evidence in
question is derived from unpublished official records that can be easily
resolved; but what presents considerable difficulty is a dispute as to
whether the evidence in question relates to any affairs of State. What
are the affairs of State under Section 123? In the latter half of the
36
Evidence Act
37
1960 SCC OnLine SC 38
42
nineteenth century affairs of State may have had a comparatively narrow
content. Having regard to the notion about governmental functions and
duties which then obtained, affairs of State would have meant matters
of political or administrative character relating, for instance, to national
defence, public peace and security and good neighbourly relations. Thus,
if the contents of the documents were such that their disclosure would
affect either the national defence or public security or good neighbourly
relations they could claim the character of a document relating to affairs
of State. There may be another class of documents which could claim
the said privilege not by reason of their contents as such but by reason
of the fact that, if the said documents were disclosed, they would
materially affect the freedom and candour of expression of opinion in the
determination and execution of public policies. In this class may
legitimately be included notes and minutes made by the respective
officers on the relevant files, opinions expressed, or reports made, and
gist of official decisions reached in the course of the determination of the
said questions of policy. In the efficient administration of public affairs
Government may reasonably treat such a class of documents as
confidential and urge that its disclosure should be prevented on the
ground of possible injury to public interest. In other words, if the proper
functioning of the public service would be impaired by the disclosure of
any document or class of documents such document or such class of
documents may also claim the status of documents relating to public
affairs.
16. It may be that when the Act was passed the concept of
governmental functions and their extent was limited, and so was the
concept of the words ‘affairs of State’ correspondingly limited; but, as is
often said, words are not static vehicles of ideas or concepts. As the
content of the ideas or concepts conveyed by respective words expands,
so does the content of the words keep pace with the said expanding
content of the ideas or concepts, and that naturally tends to widen the
field of public interest which the section wants to protect. The inevitable
consequence of the change in the concept of the functions of the State
is that the State in pursuit of its welfare activities undertakes to an
increasing extent activities which were formerly treated as purely
commercial, and documents in relation to such commercial activities
undertaken by the State in the pursuit of public policies of social welfare
are also apt to claim the privilege of documents relating to the affairs of
State. It is in respect of such documents that we reach the marginal line
in the application of Section 123; and it is precisely in determining the
claim for privilege for such border-line cases that difficulty arises.
17. It is, however, necessary to remember that where the legislature
has advisedly refrained from defining the expression ‘affairs of State’ it
would be inexpedient for judicial decisions to attempt to put the said
expression into a straight jacket of a definition judicially evolved. The
question as to whether any particular document or a class of documents
answers the description must be determined in each case on the relevant
facts and circumstances adduced before the court. ‘Affairs of State’,
according to Mr Seervai, are synonymous with public business and he
contends that Section 123 provides for a general prohibition against the
production of any document relating to public business unless permission
for its production is given by the head of the department concerned. Mr
Seervai has argued that documents in regard to affairs of State
43
constitute a genus under which there are two species of documents, one
the disclosure of which will cause no injury to public interest, and the
other the disclosure of which may cause injury to public interest. In the
light of the consequence which may flow from their disclosure the two
species of documents can be described as innocuous and noxious
respectively. According to Mr Seervai the effect of Section 123 is that
there is a general prohibition against the production of all documents
relating to public business subject to the exception that the head of the
department can give permission for the production of such documents
as are innocuous and not noxious. He contends that it is not possible to
imagine that the section contemplates that the head of the department
would give permission to produce a noxious document. It is on this
interpretation of Section 123 that Mr Seervai seeks to build up similarity
between Section 123 and the English law as it was understood in 1872.
In other words, according to Mr Seervai the jurisdiction of the court in
dealing with a claim of privilege under Section 123 is very limited and in
most of the cases, if not all, the court would have to accept the claim
without effective scrutiny.
18. On the other hand it has been urged by Mr Sastri that the expression
‘documents relating to any affairs of State’ should receive a narrow
construction; and it should be confined only to the class of noxious
documents. Even in regard to this class the argument is that the court
should decide the character of the document and should not hesitate to
enquire, incidentally if necessary, whether its disclosure would lead to
injury to public interest. This contention seeks to make the jurisdiction
of the court wider and the field of discretion entrusted to the department
correspondingly narrower.
19. It would thus be seen that on the point in controversy between the
parties three views are possible. The first view is that it is the head of
the department who decides to which class the document belongs; if he
comes to the conclusion that the document is innocuous he will give
permission to its production; if, however, he comes to the conclusion
that the document is noxious he will withhold such permission; in any
case the court does not materially come into the picture. The other view
is that it is for the court to determine the character of the document,
and if necessary enquire into the possible consequences of its disclosure;
on this view the jurisdiction of the court is very much wider. A third view
which does not accept either of the two extreme positions would be that
the court can determine the character of the document, and if it comes
to the conclusion that the document belongs to the noxious class it may
leave it to the head of the department to decide whether its production
should be permitted or not; for it is not the policy of Section 123 that in
the case of every noxious document the head of the department must
always withhold permission. In deciding the question as to which of these
three views correctly represents the true legal position under the Act it
would be necessary to examine Section 162. Let us therefore, turn to
that section.
66. A summary of the decision leads us to one irresistible conclusion – that
the overriding interest must be of a public nature and only in such cases
44
can the claim of privilege be sustained. The claim of privilege cannot be
invoked as a matter of reflexive recourse but must be limited to
instances wherein an actual concern to public interest is envisaged. Each
instance must be evaluated on a case-by-case basis and the State must
be wholly convinced that the disclosure of the documents would cause
grave harm and injury to public interest.
67. We further refer to Amar Chand Butail v. Union of India38 where
Hon’ble P.B. Gajendragadkar, CJI. speaking for this Court held that a
claim for privilege cannot be made merely because it would go against
the defence of the State. A claim for privilege can therefore only be made
if it strictly meets the requirements present in the Evidence Act, failing
which, if the Court after a preliminary enquiry is convinced that the claim
of privilege cannot be sustained, the State may be directed to disclose
the said document.
68. In State of U.P. v. Raj Narain39, this Court held that public interest
which demands that evidence be withheld is to be weighed against the
public interest in the administration of justice that courts should have
the fullest possible access to all relevant materials. When public interest
outweighs the latter, the evidence cannot be admitted. The Court also
held that it must proprio motu exclude evidence the production of which
is contrary to public interest.
38
AIR 1964 SC 1658
39
(1975) 4 SCC 428
45
69. Moving closer to this century, this Court in People’s Union for Civil
Liberties v. Union of India40 while dealing with the disclosure of
certain sensitive information under the Atomic Energy Act, 1962 laid
down the indicative criteria required to be fulfilled for the claim of
privilege. The instructive passage on the issue reads as under:
“70. For determining a question when a claim of privilege is made, the
Court is required to pose the following questions:
(1) whether the document in respect of which privilege is claimed,
is really a document (unpublished) relating to any affairs of State;
and
(2) whether disclosure of the contents of the document would be
against public interest?
71. When any claim of privilege is made by the State in respect of any
document, the question whether the document belongs to the privileged
class has first to be decided by the court. The court cannot hold an
enquiry into the possible injury to public interest which may result from
the disclosure of the document in question. The claim of immunity and
privilege has to be based on public interest.
72. The section does not say who is to decide the preliminary question
viz. whether the document is one that relates to any affairs of State, or
how it is to be decided, but the clue in respect thereof can be found in
Section 162. Under Section 162 a person summoned to produce a
document is bound to
‘bring it to the court, notwithstanding any objection which there
may be to its production or to its admissibility. The validity of any
such objection shall be decided on by the court’.
It further says that:
‘The court, if it seems fit, may inspect the document, unless it
refers to matters of State, or take other evidence to enable it to
determine on its admissibility.’
73. In order to claim immunity from disclosure of unpublished State
documents, the documents must relate to affairs of the State and
disclosure thereof must be against interest of the State or public
interest.”
70. In the present case, the appellate authority did not deny that there was
indeed a recommendation of the CVC. However, the recommendation
was denied by claiming privilege. We are inclined to the view that the
claim of privilege was utterly misconceived. The recommendation of the
40
(2004) 2 SCC 476
46
CVC did not have anything to do with the “affairs of the State” or, if one
were not to be guided by Section 123 of the Evidence Act, anything to
do with national security; at least, no such attempt was made by Mr.
Patil. We appreciate his predicament that at this distance of time (the
appellate order having been made on 27th March, 2003) and Vijaya Bank
having merged in the respondent in 2019, it is well-nigh difficult for him
and the respondents to lay their hands on such recommendation. Yet, it
cannot be ignored that the appellate order apart from claiming that the
recommendation is a privileged document does not go further to assign
any reason, far less cogent reason, as to how the same could at all be
withheld from the appellant. Reasons that have been assigned are
neither here nor there. Whether or not such a recommendation did exist
was the question, not whether the appellant could have premised his
challenge on such recommendation being an internal document.
71. We are ad idem with the view expressed in D.C. Aggarwal (supra) that
the proposed punishment of compulsory retirement could not have been
altered to dismissal from service based on the CVC recommendation
without furnishing the same to the appellant. To this extent, the
appellate order is legally flawed and cannot be sustained.
CONCLUSION
72. In normal circumstances, the obvious direction that could follow the
foregoing discussions is a remand to the disciplinary authority to re-start
the inquiry from the stage the same stood vitiated, i.e., requiring the
Inquiry Officer to scrupulously follow Regulation 6(17) of the 1981
47
Regulations. However, there are circumstances that impede an order for
remand. The foremost being the lack of accessibility to the records
because of the merger of Vijaya Bank with the respondent and the
distance of time since the disciplinary proceedings came to a close. It is
also to be noted that the disciplinary proceedings were continued beyond
the date on which the appellant attained the age of superannuation.
Because of the ultimate order we propose to make, we have not dealt
with the third question noted in paragraph 16 (supra) and such question
is kept open. No useful purpose, therefore, would be served in ordering
a remand.
73. Considering the age of the appellant (he is now an octogenarian) as well
as the fact that there were other disciplinary proceedings pending
against him which were not taken to its logical conclusion because he
stood dismissed from service, in our considered view, interest of justice
would be sufficiently served if we make the following directions:
(i) the appellant shall not be entitled to any terminal
benefits except to the extent indicated hereafter;
(ii) he shall only be entitled to a lump-sum amount equal
to the quantum of gratuity which would have been
payable to him had he not been fastened with the
order of dismissal;
(iii) such lump-sum amount may be released in favour of
the appellant within a period of eight weeks from
date;
48
(iv) no amount on account of interest shall be payable to
the appellant on the said amount;
(v) however, interest @ 9% p.a. shall be payable on
such amount if not released within the period
stipulated above; and
(vi) the order of dismissal, in the circumstances, shall
stand quashed.
74. It is ordered accordingly.
75. In the above result, the impugned order of the High Court is also set
aside.
76. The appeal is disposed of on the above terms, without any order as to
costs.
77. Criminal proceedings, if any, pending against the appellant may be taken
to its logical conclusion in accordance with law.
………………………………….……J.
(DIPANKAR DATTA)
…………………….…………………J.
(PRASHANT KUMAR MISHRA)
NEW DELHI;
AUGUST 19, 2025.
49