(A) Banking Companies (Acquisition and Transfer of Undertakings) Act (40 of 1980) , S.19— Vijaya Bank Officer Employees Discipline and Appeal Regulations (1981) , Regn.6— Disciplinary proceedings – Non-furnishing of preliminary inquiry report – Effect – Appellant was duly provided with deposition of witness as per rules and was allowed to cross-examine witness on basis of statements made by him – Inquiry officer placed no reliance upon preliminary inquiry report, but only upon statements of such witness recorded during chief examination and cross-examination – There was no violation of principles of natural justice – No prejudice was caused to appellant due to non-furnishing of preliminary inquiry report – No rule applicable to the case, mandated furnishing of preliminary inquiry report – Non-furnishing of inquiry report to appellant was inconsequential.
(B) Banking Companies (Acquisition and Transfer of Undertakings) Act (40 of 1980) , S.19— Vijaya Bank Officer Employees Discipline and Appeal Regulations (1981) , Regn.6(17)— Disciplinary proceedings – Nature of duty cast on Inquiry Officer – Inquiry Officer by not generally questioning delinquent on circumstances available in evidence, which were unfavourable or adverse to such officer, failed to perform a mandatory duty – Any such circumstance, which was unfavourable or adverse to delinquent, should have been excluded from consideration of Inquiry Officer.
AIR 1980 SC 1170-DistinguishedAIR 2010 SC 2735-Distinguished
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.
The use of ‘may’ and ‘shall’ in the same provision does imply that Regn.6(17) means what it says. The words ‘may’ and ‘shall’ have been used to mean ‘may’ and ‘shall’, respectively, and cannot possibly conceive of any rule of construction which would lead to assume that the framers intended that ‘shall’ in the second part of Regn.6(17) should also be read and understood as ‘may’. Use of the word ‘shall’, 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 inquiry unhesitatingly signals that while the first part of Regn.6(17) is directory, the second part thereof is mandatory.
Regn.6(17) 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 Regn.6 being quasi- judicial in nature, Regn.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 Regn.6(17).
It was held that Inquiry Officer by not generally questioning the delinquent 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 delinquent, should have been excluded from the Inquiry Officer’s consideration.
(C) Constitution of India , Art.14— Banking Companies (Acquisition and Transfer of Undertakings) Act (40 of 1980) , S.19— Vijaya Bank Officer Employees Discipline and Appeal Regulations (1981) , Regn.6(17)— Dismissal from service -Raising an issue before Supreme Court – Permissibility – Appellant did not raise any objection regarding failure of Inquiry Officer to strictly adhere to Regn. 6(17) before disciplinary authority but raised point, generally, of non-adherence to Regn. 6 before appellate authority – Said issue was missed and not addressed – Appellant was justified in raising issue before Supreme Court that he was not extended fair, reasonable and adequate opportunity to defend himself in terms of Regn.6 which, in turn, infringed his right protected by Art.14.
(D) Banking Companies (Acquisition and Transfer of Undertakings) Act (40 of 1980) , S.19— Vijaya Bank Officer Employees Discipline and Appeal Regulations (1981) , Regn.6— Dismissal from service – Failure to supply copy of CVC recommendation – Effect – CVC had rejected proposal of disciplinary authority and CVO to impose punishment of compulsory retirement and recommended dismissal from service – CVC recommendation constituted material which was considered by disciplinary authority at least for purpose of deciding on punishment -Said recommendation having been considered by disciplinary authoirty, copy of same could not be denied to appellant – Claim of privilege made by bank, was misconceived since recommendation of CVC did not have anything to do with “affairs of the State” or, anything to do with national security – Inquiry was vitiated on account of receipt of CVC recommendation behind back of appellant and failure to give opportunity to plead for a lesser punishment – Proposed punishment of compulsory retirement could not have been altered to dismissal from service based on CVC recommendation without furnishing same to appellant – To said extent, appellate order was legally flawed and was unsustainable – Order of dismissal was set aside.
2022 (1) AKR 589 (KAR)-ReversedAIR 1993 SC 1197-Relied on(Paras59647071)
(E) Constitution of India , Art.226— Disciplinary proceedings – Preliminary inquiry and report – Principles regarding – Summarised.
The principles emerging from decided cases, regarding preliminary inquiry and report, are as follows:-
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 preliminary inquiry report/findings are based on oral and/or documentary 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 charge sheet 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.