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CASE NO.: Appeal (civil)  7686 of 2004

PETITIONER: P.D. Agrawal

RESPONDENT: State Bank of India & Ors.

DATE OF JUDGMENT: 28/04/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

The Appellant herein was working as a Junior Manager, Grade-I in a  Branch office of the 1st Respondent-Bank, herein.  On or about 29.9.1984 he  is said to have misbehaved with the Regional Manager of the Bank.  He was  placed under suspension.  Disciplinary proceedings were also initiated  against him on 26.11.1984.  He was found guilty of the misconduct alleged  against him.  On earlier occasion also, he was found guilty for misbehaviour  wherefor, he had been censured.  He was thereafter allowed to join his  duties.  The Appellant, however, despite imposition of the said penalties on  him, started misbehaving with the senior officers again as also with the  customers by using abusive language and passing derogatory remarks during  the period 8.9.1986 to 27.9.1986.  During the said period, it may be  mentioned, he was posted in different branches.  A disciplinary proceeding  was started against him.  The charges levelled against him were as under:     

"Katni Market Branch

1.      You created an unpleasant scene and atmosphere  by using unparliamentary language against the  local authorities of the Branch in a calculated  attempt to denigrate the said authority, which act  of yours damaged/tarnished the image of the Bank.

Churcha Branch

2.      You disobeyed the lawful and reasonable orders of  the superiors.  You also crossed the boundaries of  decorum and decency.  You have thus acted in a  manner unbecoming of an official of the Bank.

3.      You disregarded the lawful instructions of the  superiors.       

Shahdol Branch

4.(a)   By your acts you have disobeyed the lawful  instructions of the superiors.  You also displayed  gross negligence in performance of your duties.

  (b)  By your acts you disobeyed the lawful and  reasonable orders of the Bank.  You also showed  insubordination to the superior authorities.  Your  acts are unbecoming of officer of the Bank.

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  (c)  By your acts you intentionally showed  insubordination to the superior authorities of the  Bank.  You thus acted in a manner unbecoming of  an official of the Bank.

  (d)  You created a feeling of insecurity amongst the  staff members.  You have acted in a manner  unbecoming of an official of the Bank.

Jabalpur Regional Office

5.      You failed to obey the reasonable and lawful  orders of the Bank and behaved in a manner  unbecoming of an official of the Bank.

       The above charges, if proved, are tantamount to  misconduct in contravention of Rules 32(1) and 32(4)  and (5) of the State Bank of India (Supervising Staff)  Service Rules governing our services."

One Shri R.K. Sharma, Branch Manager, having been abused and  threatened to be hit by shoes by the Appellant, lodged two First Information  Reports (FIR) against the Appellant pursuant whereto two cases under  Section 353 of the Indian Penal Code were initiated in respect of the  incidents which took place on 16.10.1986 and 23.10.1986.  He was placed  under suspension by an order dated 11.11.1986 by the Disciplinary  Authority stating:

"It has been reported that soon after your  reinstatement on 16th August, 1986 on conclusion of  major penalty proceedings against you, you again  misbehaved with your colleagues, senior officer and also  some of the outsiders and used abusive language passing  derogatory remarks during your recent stay at different  branches viz. Katni Market, Churcha and Shahdol  branches.  This has tarnished the image of the bank and  resulted in your arrest by the local police on 16th October,  1986 and thereafter on 23rd October, 1986 under sections  353, 448 and 506 of Indian Penal Code.  The nature and  extent of the misbehaviour indicates that the established  authorities of the Bank and certain other functionaries in  the Regional Office and engendering indiscipline  amongst the staff."

He was, however, acquitted of the charges levelled against him in the  criminal proceedings by a learned Judicial Magistrate by a judgment dated  7.5.1988, inter alia, on the ground that the same could not be proved beyond  reasonable doubt.  

The Disciplinary Authority thereafter issued a charge sheet against  him for his purported misbehaviour during the period 8.9.1986 to 27.9.1986  to which we have referred to hereinbefore.  An Inquiry Officer was  appointed to enquire into the said charges.  Before the said Inquiry Officer  several witnesses were examined.  In relation to each of the charges, the  witnesses, indisputably, were cross-examined.  The Appellant also entered  into defence and several documents on his behalf were exhibited.   

The Inquiry Officer considered all the materials brought on record,  including the judgment passed in his favour in the criminal case.  The  Appellant was found guilty of all the charges except the charge No.2.   

The Disciplinary Authority, however, differed with the findings of the  Inquiry Officer as regards the said charge No.2 and recommended for his

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dismissal from services to the Appointing Authority stating:

"2.     I am in agreement with the findings of the  Inquiring Authority in respect of all the  allegation/charges except allegations/charge No.2.  In  respect of allegation No.2, on perusal of deposition of  Shri K.C. Tiwari (the maker of PEX-3) I find that DEX-1  was written by him under pressure of the charge sheeted  official.  Further PEX-4 was written by Shri Tiwari on  receipt of the letter of Regional Office (DEX-3).   However, nothing has been established during the course  of the enquiry that the letter PEX-3 was written under  pressure.  Therefore, I am not in agreement with the  Inquiring Authority that the letter (PEX-3) was not  written of his own volition, and placing reliance on PEX- 3, I hold the allegation and the charge as fully proved.

3.      In this connection, I have also  perused/examined and considered the past record of the  official.  I find that earlier also the official was placed  under suspension for similar type of acts of misconduct  and was proceeded against for major penalty.  On  conclusion of the enquiry he was inflicted upon the  penalty of "Censure" by the Disciplinary Authority  considering that he suffered mental agony and that the act  was the first riotous act during his service and with a  view to give him an opportunity to reform himself.   Despite this, I find that the official has repeated such type  of misconduct proving that the earlier decision of the  Disciplinary Authority did not have any reformative  impact upon the official.

4.      The ingredients of the proved/partly proved  allegations/charges in the instant case are so grave that  the official does not deserve to be continued in the  Bank’s service.  I, therefore, recommend that the penalty  of "Removal from Bank’s service" as provided for in  Rule No.49(g) of the State Bank of India (Supervising  Staff) Service Rules may be inflicted upon the official  treating his period of suspension as such.  Accordingly,  he will not be eligible for any back wages for the period  of his suspension.  The order shall be effective from the  date of its receipt by the official."

It is not disputed that the Disciplinary Authority, prior to making the  said recommendations, did not assign any reason for expressing his  difference of opinion with the Inquiry Officer as regard the said charge  No.2, nor served the delinquent officer with a show cause nor he was served  with a copy of the enquiry report.  The Appointing Authority, however,  relying on or on the basis of the said recommendations of the Disciplinary  Authority, as also upon consideration of the materials on record, while  forwarding a copy of the report of the Inquiry Officer, imposed upon the  Appellant a punishment of removal from service stating:

"I have perused the records of the enquiry in its  entirety and concur with the reasonings/findings recorded  in the "Note" of the Disciplinary Authority.   Accordingly, I am in agreement with the  recommendations of the Disciplinary Authority that you  do not deserve to be continued in the Bank’s service.   I  have, therefore, decided to inflict upon you the penalty of  "Removal from service" in terms of Rule No.49(g) of the  State Bank of India (Supervising Staff Service Rules  governing your services in the Bank read with Rule

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No.50(3)(iii) ibid., which I hereby do.  Further, you will  also not be paid the salary and allowances for the period  of your suspension except the subsistence allowance  already paid to you, as the period of suspension has been  treated as such by me.  The order shall be effective from  the date of receipt of this letter by you.  Please note that a  copy of this order is being placed in your service file."

The Appellant herein, thereafter, preferred an appeal before the  Appellate Authority.  As regards the opinion of the Disciplinary Authority,  so far as charge No.2 is concerned, he stated:

"The enquiring authority held this charge  disproved but the disciplinary authority reversed the  findings of E/A and deemed the charge as proved.  The  act of disciplinary authority having given weightage to  the CSO pressure on BM Churcha requires to be  reviewed in the light of the fact that the Regional  Manager’s say in the matter was not considered the  pressure to whom BM is subordinate but an OJM on  deputation to the branch could pressurise the BM  Churcha.  The perusal of relative portion of enquiry  proceedings will reveal that the entire issue was framed  by BM Churcha on instance of the respective Regional  Manager.  It is, therefore, requested to your honour to  take an independent view in the matter."

No plea was raised by the Appellant that he was prejudiced in any  manner either by reason of any delay, which might have taken place in  holding the disciplinary proceeding, or by reason of the Disciplinary  Authority’s dissatisfaction as regards thereto and/or non-grant of an  opportunity of hearing to him.  The said appeal, upon consideration of the  contentions raised by the Appellant herein, was dismissed by the Appellate  Authority by an order dated 16.6.1992 stating:

"Discipline and decency will have to be  maintained at all costs and breach thereof will have to be  severely dealt with.  Further, the official was given an  opportunity to reform himself on an earlier occasion but  he failed to eschew his defiant attitude.  I am, therefore,  in full agreement with the appointing Authority’s  decision to impose the exemplary punishment of removal  from service on Shri Agarwal.  However, to reduce the  financial hardships faced by the appellant, I am inclined  to consider the period of suspension from 11.11.1986 to  22.7.1990 on duty."

He filed a writ petition questioning the legality of the said order,  which was dismissed.  A Letters Patent Appeal preferred by the Appellant  thereagainst was also dismissed by a reasoned order.

Mr. P.P. Rao, learned Senior counsel appearing on behalf of the  Appellant has raised the following contentions in support of this appeal:   

(i)     The penalty of removal from service, imposed upon the  Appellant by the Disciplinary Authority, was illegal as prior thereto a copy  of the enquiry report was not furnished to him and thus: (a) the Appellant  was denied an opportunity to present his case against the findings of the  Inquiry Officer; (b) a similar opportunity was denied to him by the  Disciplinary Authority when he differed with the finding of the Inquiry  Officer as regard charge No.2;

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(ii)    As violation of the principle of natural justice itself causes  prejudice, it was not necessary for the Appellant to raise the said contention  expressly, as also for the violation of Article 14 of the Constitution of India;

(iii)   The High Court committed a manifest error in passing the  impugned judgment in so far as it held that the principles of natural justice  had been complied with as the Appellant herein got an opportunity of  hearing before the Appellate Authority;

(iv)    The disciplinary proceedings were initiated after delay of about  three years from the alleged incidents, on the basis whereof the charges had  been framed against him and as such the entire disciplinary proceeding was  vitiated;

(v)     In any event such inaction on the part of the Disciplinary  Authority for a long time would amount to condonation of the acts of alleged  misconduct; (vi)    The disciplinary proceeding, being mala fide, is violated in law;  

(vii)   The punishment imposed upon the Appellant was  disproportionate to the gravity of the misconduct, for which the Appellant  was charged, and, thus, deserve to be set aside by this Court.  

Mr. V.A. Bobde, learned Senior counsel appearing on behalf of the  Respondents, on the other hand, would contend:  

(i)     The Appellant did not plead or prove any prejudice having been  caused to him before the Appellate Authority in view of the fact that he  himself invited it to deal with the matter on merit;

(ii)    It is not a case where delay in initiating the Disciplinary  Authority caused any prejudice to the Appellant as: (a) all witnesses were  available to prove the charges against him; (b) the witnesses were fully  cross-examined; and (c) the Appellant fully defended himself before the  Disciplinary Authority.

(iii)   In respect of findings of the Inquiry Officer vis-‘-vis the other  charges being severable, even if the Appellant was held to be not guilty of  commission thereof, the impugned order of punishment would be  sustainable.   

(iv)    So far as non-furnishing of copy of the enquiry report is  concerned, having regard to the fact that the decision of this Court in Union  of India & Ors. vs. Mohd. Ramzan Khan [(1991) 1 SCC 588], was  rendered on 20th November, 1990, and it having only a prospective  application and the impugned order of punishment having been passed on  20th  July, 1990, in law the Disciplinary Authority was not required to  furnish a copy of the enquiry report to the Appellant;

(v)     Compliance of principles of natural justice not only varies from  case to case, in a situation of the present nature, the same would be deemed  to have been waived as by reason of non-issuance of a show cause notice  upon the Appellant by the Disciplinary Authority, while differing with the  findings of the Inquiry Officer on charge No.2, he was not at all prejudiced  as he himself .had called upon the Appellate Authority to decide the matter  on its own merit and the impugned order may not be interfered with.    (vi)    No case has been made out for interference with the quantum of  punishment by this Court having regard to the fact that despite opportunities  having been granted to the Appellant to reform himself, he continued to  commit similar nature of misconduct, namely, using abusive and  unparliamentary language and threatenings to assault the senior officers and  others.

The Respondent No.1 is a statutory authority, having been created

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under the State Bank of India Act, 1955.    

The terms and conditions of the employees of the 1st Respondent  herein, thus, are governed by the statutory Rules framed in this behalf  including the State Bank of India (Supervisory Staff) Service Rules (the  ’Rules’, for short).   Rule 49 of the said Rules provides for the mode and  manner in which the disciplinary proceedings are required to be initiated.   The said Rules also provide for imposition of minor and major penalties.  In  terms of the proviso appended to Rule 50(1)(i), where the Disciplinary  Authority is lower in rank than the Appointing Authority in respect of the  category of the employees to which he belongs to, no order imposing any of  the major penalties can be passed, except by the Appointing Authority or an  authority higher than it on the recommendations of the Disciplinary  Authority.   

The pattern of charges against the Appellant, categorically point out to  the fact that the Appellant had been misbehaving with the Regional  Managers and other officers, as well as the customers not only while he was  posted in different branches.

Charge No.2 refers to an incident, which took place on 26.9.1986.   The said charge, admittedly, was not proved.  However, it is not disputed  that in respect of charge No.1 witnesses were examined on behalf of the 1st  Respondent.  They were thoroughly cross-examined by the Appellant.   Documentary evidences were also adduced by the parties.  So far charge  No.3 is concerned, only one witness was examined on behalf of the 1st  Respondent.  The Appellant therein exhibited four documents in support of  his case.  The 1st Respondent also exhibited some documents.  Similarly, in  relation to each other charge witnesses were examined on behalf of the 1st  Respondent; they were cross-examined and documents were exhibited.   

The validity of the disciplinary proceeding and/or justifiability thereof  on the ground of delay or otherwise had never been raised by the Appellant  before any forum.  It was not his case either before the Appellate Authority  or before the High Court that by reason of any delay in initiating the  disciplinary proceeding he had been prejudiced in any manner whatsoever.   It may be true that delay itself may be a ground for arriving at a finding that  enquiry proceeding was vitiated in the event it is shown that by reason  thereof the delinquent officer has been prejudiced, but no such case was  made out.      

Mr. Rao urged that the Respondents must have condoned the  misconduct on the part of the Appellant herein as they have not taken any  action and initiated disciplinary proceeding after he was placed under  suspension.  Reliance in this behalf has been placed on State of M.P. &  Ors. vs. R.N. Mishra & Anr. [(1997) 7 SCC 644].   

The order of suspension was passed as far back in 1986, inter alia, in  contemplation of initiation of a disciplinary proceeding.  It may be true that  no disciplinary proceeding was initiated against the Appellant, as a criminal  proceeding was pending against him.  But, only because the criminal  proceeding was pending, the same itself may not be a ground to hold that  there had been a conscious act on the part of the Respondents herein to  condone the misconduct on the part of the Appellant herein.

The terms and conditions of the employees of the Respondent-Bank  are governed by a statute.  The Disciplinary Authority, by reason of the  Rules framed, was delegated with the power of the Bank to initiate  departmental proceeding against the delinquent officer and impose suitable  punishment upon him, if the misconduct is proved.  In this case concept of  contract of personal service as is understood in common parlance is not  applicable.  The doctrine of condonation of misconduct so evolved by  ordinary law of ‘master and servant’ is thus, not attracted in this case.  Under  the common law, as also the provisions contained in Section 14(1)(b) of the  Specific Relief Act, a master was entitled to terminate the services of an

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erring employee at his sweet will.  The dismissed employee could have sued  his master only for damages and not for his reinstatement in service.  It is  only for the purpose of grant of damages, a declaration was required to be  made that the termination of the service was illegal.  Having regard to the  said legal position, the doctrine of condonation of misconduct evolved, in  terms whereof, it was impermissible for the master to allow an employee to  continue in service for a long time despite his knowledge that he had  committed a misconduct and then to turn round and contend that his services  should have been terminated on the ground that he was guilty of misconduct.   

We may notice some decisions cited at the Bar.

In L.W. Middleton vs. Harry Playfair [1925 Calcutta 87], the  Calcutta High Court was concerned with the terms and conditions of service  governed by contract and not by a statute.  The suit was filed by the manager  of a Tea Estate for recovery of arrears of salary and damages for beach of  contract of employment.   

In District Council, Amraoti through Secretary vs. Vithal Vinayak  Bapat [AIR 1941 Nagpur 125], Vivian Bose, J., following L.W. Middleton  (supra), the Nagpur High Court held:

"Once a master has condoned any misconduct  which would have justified dismissal or a fine, he cannot  after such condonation go back upon his election to  condone and claim a right to dismiss him (servant) or  impose a fine or any other punishment in respect of the  offence which has been condoned.  This rule is to be  found in AIR 1925 Cal 87 and in many other cases."  

In R.N. Mishra (supra), this Court, in view of the fact situation  obtaining therein opined that the employer had condoned the misconduct  stating:  

"In the present case, misconduct attributed to the  respondent came to light in the year 1976 when a  preliminary inquiry was ordered and while the inquiry  was continuing, the State Government was required to  consider the case of the respondent for promotion to the  post of Assistant Conservator of Forest.  Under law, the  State Government had no option but to consider the case  of the respondent for promotion.  The State Government  could not have excluded the respondent from the zone of  consideration merely on the ground that a preliminary  inquiry to enquire into the allegations of misconduct  attributed to him was pending.  In such a situation, the  doctrine of condonation of misconduct cannot be applied  as to wash off his acts of misconduct which was the  subject-matter of preliminary enquiry.  We are, therefore,  of the opinion that the promotion of the respondent to the  post of Assistant Conservator of Forest would not  amount to condonation of misconduct alleged against  him which was the subject-matter of preliminary inquiry.   Consequently, the punishment imposed on the respondent  by the State Government was valid and legal.  The  decision relied upon by the Tribunal as well as by the  learned counsel for the respondent in the case of Lal  Audhraj Singh v. State of M.P. is not applicable to the  facts of the present case, as in that case, the employer had  a choice to inflict punishment on the employee but the  employer did not choose to punish the employee and in  that context, it was held by the High Court that the  misconduct attributable to the employee was condoned."

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However, for the purpose of holding that misconduct was condoned  by the employer the Court must come to a definite finding as regard the  conduct of the employer.  It must be held that either expressly or by  necessary implication that the employer had knowledge of the misconduct of  the employee.  It is one thing that despite such knowledge, the delinquent  officer is promoted to which he would not have been otherwise entitled to or  if the disciplinary proceeding had been initiated as if the misconduct was not  committed for and it is another thing to say that such a misconduct was not  required to be taken into consideration as by reason of the service Rule,  promotion was to be granted on the basis of seniority alone, and, thus, the  question of condonation of misconduct on the part of the employer would  not arise.       

In State of M.P. vs. Bani Singh & Anr. [(1990) Supp. SCC 738],  whereupon Mr. Rao placed strong reliance, this Court opined that by reason  of delay of 12 years in initiating the disciplinary proceeding, the delinquent  officer could not defend himself properly.  In that case there was no  satisfactory explanation such a long delay.  There was also doubt as regards  the involvement of the delinquent officer.   

In State of Punjab & Ors. vs. Chaman Lal Goyal [(1995) 2 SCC  570], however, this Court refused to set aside those disciplinary proceeding  which had been initiated after a delay of 5= years.  Distinguishing the  decision of this Court in Bani Singh & Anr. (supra), it was stated:

"Now remains the question of delay. There is  undoubtedly a delay of five and a half years in serving  the charges. The question is whether the said delay  warranted the quashing of charges in this case. It is trite  to say that such disciplinary proceeding must be  conducted soon after the irregularities are committed or  soon after discovering the irregularities. They cannot be  initiated after lapse of considerable time. It would not be  fair to the delinquent officer. Such delay also makes the  task of proving the charges difficult and is thus not also  in the interest of administration. Delayed initiation of  proceedings is bound to give room for allegations of bias,  mala fides and misuse of power. If the delay is too long  and is unexplained, the court may well interfere and  quash the charges. But how long a delay is too long  always depends upon the facts of the given case.  Moreover, if such delay is likely to cause prejudice to the  delinquent officer in defending himself, the enquiry has  to be interdicted. Wherever such a plea is raised, the  court has to weigh the factors appearing for and against  the said plea and take a decision on the totality of  circumstances. In other words, the court has to indulge in  a process of balancing"  

In Additional Supdt. of Police vs. T. Natarajan [1999 SCC (L&S)  646], this Court held:

"In regard to the allegation that the initiation of the  disciplinary proceedings was belated, we may state that it  is settled law that mere delay in initiating proceedings  would not vitiate the enquiry unless the delay results in  prejudice to the delinquent officer. In this case, such a  stage as to examine that aspect has not arisen."

In this case, as noticed hereinbefore, the Appellant did not raise the  question of delay before any forum whatsoever.  He did not raise such a  question even before the Disciplinary Authority.  He not only took part  therein without any demur whatsoever, but, as noticed hereinbefore, cross-

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examined the witnesses and entered into the defence.   The Principles of natural justice cannot be put in a straight jacket  formula.  It must be seen in circumstantial flexibility.   It has separate facets.   It has in recent time also undergone a sea change.   

In Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corpn.  Ltd., Haldia & Ors. [(2005) 7 SCC 764], a Three Judge Bench of this Court  opined:

"We are aware of the normal rule that a person  must have a fair trial and a fair appeal and he cannot be  asked to be satisfied with an unfair trial and a fair appeal.  We are also conscious of the general principle that pre- decisional hearing is better and should always be  preferred to post-decisional hearing. We are further  aware that it has been stated that apart from Laws of  Men, Laws of God also observe the rule of audi alteram  partem. It has been stated that the first hearing in human  history was given in the Garden of Eden. God did not  pass sentence upon Adam and Eve before giving an  opportunity to show cause as to why they had eaten the  forbidden fruit. (See R. v. University of Cambridge18.)  But we are also aware that the principles of natural  justice are not rigid or immutable and hence they cannot  be imprisoned in a straitjacket. They must yield to and  change with exigencies of situations. They must be  confined within their limits and cannot be allowed to run  wild. It has been stated: " ’To do a great right’ after all, it  is permissible sometimes ’to do a little wrong’." [Per  Mukharji, C.J. in Charan Lal Sahu v. Union of India19  (Bhopal Gas Disaster), SCC p.   705, para 124.] While  interpreting legal provisions, a court of law cannot be  unmindful of the hard realities of life. In our opinion, the  approach of the Court in dealing with such cases should  be pragmatic rather than pedantic, realistic rather than  doctrinaire, functional rather than formal and practical  rather than "precedential".

In Canara Bank & Ors. vs. Debasis Das & Ors.  [(2003) 4 SCC  557], this Court referred to the prejudice doctrine stating:

"Additionally, there was no material placed by the  employee to show as to how he has been prejudiced.  Though in all cases the post-decisional hearing cannot be  a substitute for pre-decisional hearing, in the case at hand  the position is different."   

The question as to whether in this case there has been a gross  violation of principles of natural justice will have to be considered from two  different angles.   

Firstly, the effect of the Disciplinary Authority having not given him  an opportunity of hearing while differing with the findings of the Inquiry  Officer as has been laid down in Punjab National Bank & Ors. vs. Kunj  Behari Mishra [(1998) 7 SCC 84] may be noticed.   

In Ranjit Singh vs. Union of India & Ors. [2006 (4) SCALE 154],  following Punjab National Bank (supra), it was held:

"In view of the aforementioned decisions of this  Court, it is now well settled that the principles of  natural justice were required to be complied with  by the Disciplinary Authority.  He was also

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required to apply his mind to the materials on  record.  The Enquiry Officer arrived at findings  which were in favour of the Appellant.  Such  findings were required to be over turned by the  Disciplinary Authority.  It is in that view of the  matter, the power sought to be exercised by the  Disciplinary Authority, although not as that of an  appellate authority, but akin thereto.  The inquiry  report was in favour of the Appellant but the  Disciplinary Authority proposed to differ with  such conclusions and, thus, apart from complying  with the principles of natural justice it was  obligatory on his part, in absence of any show  cause filed by the Appellant, to analyse the  materials on records afresh.  It was all the more  necessary because even the CBI, after a thorough  investigation in the matter, did not find any case  against the Appellant and thus, filed a closure  report.  It is, therefore, not a case where the  Appellant was exonerated by a criminal court after  a full fledged trial by giving benefit of doubt.  It  was also not a case where the Appellant could be  held guilty in the disciplinary proceedings  applying the standard of proof as preponderance of  the probability as contrasted with the standard of  proof in a criminal trial, i.e., proof  beyond all  reasonable doubt.  When a final form was filed in  favour of the Appellant, the CBI even did not find  a prima facie case against him.  The Disciplinary  Authority in the aforementioned peculiar situation  was obligated to apply his mind on the materials  brought on record by the parties in the light of the  findings arrived at by the Inquiry Officer.  He  should not have relied only on the reasons  disclosed by him in his show cause notice which, it  will bear repetition to state, was only tentative in  nature.  As the Appellate Authority in arriving at  his finding, laid emphasis on the fact that the  Appellant has not filed any objection to the show  cause notice; ordinarily, this Court would not have  exercised its power of judicial review in such a  matter, but the case in hands appears to be an  exceptional one as the Appellant was exonerated  by the Inquiry Officer.  He filed a show cause but,  albeit after some time the said cause was available  with the Disciplinary Authority before he issued  the order of dismissal.  Even if he had prepared the  order of dismissal, he could have considered the  show cause as it did not leave his office by then.   The expression "communication" in respect of an  order of dismissal or removal from service would  mean that the same is served upon the delinquent  officer. [See State of Punjab vs. Amar Singh  Harika, AIR 1966 SC 1313]"

Contention of Mr. Bobde in this behalf that he was not prejudiced  thereby cannot be accepted.  There has been a flagrant violation of principles  of natural justice in so far as no show cause notice was issued to the  Appellant by the Disciplinary Authority while differing with the findings of  the Inquiry Officer as regard charge No.2.  We would deal with this aspect  of the matter a little later.

However, the contention of Mr. Rao that only because a copy of the  enquiry report was not furnished to the Appellant by the Disciplinary

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Authority, there has been a violation of the mandatory provisions of the  regulations, cannot also be accepted for the reasons stated hereinafter.   

The order of punishment of removal against the Appellant was passed  against the Appellant on 22nd July, 1990.  The decision of this Court in  Mohd. Ramzan Khan (supra), as noticed hereinbefore, was decided on 20th  November, 1990 wherein the law laid down by this Court, while holding that  a delinquent officer cannot be called upon to make a representation on the  quantum of punishment without furnishing a copy of the enquiry report, was  expressly given a prospective effect.  It was, therefore, not at all necessary  for the Disciplinary Authority, keeping in view the law as it then stood, to  furnish a copy of the enquiry report to the Appellant.   

Decision of this Court in S.L. Kapoor vs. Jagmohan & Ors. [(1980)  4 SCC 379], whereupon Mr. Rao placed strong reliance to contend that non- observance of principle of natural justice itself causes prejudice or the same  should not be read "as it causes difficulty of prejudice", cannot be said to be  applicable in the instant case.  The principles of natural justice, as noticed  hereinbefore, has undergone a sea change.  In view of the decision of this  Court in State Bank of Patiala & Ors. vs. S.K. Sharma [(1996) 3 SCC  364] and Rajendra Singh vs. State of M.P. [(1996) 5 SCC 460], the  principle of law is that some real prejudice must have been caused to the  complainant.  The Court has shifted from its earlier concept that even a  small violation shall result in the order being rendered a nullity.  To the  principal doctrine of audi alterem partem, a clear distinction has been laid  down between the cases where there was no hearing at all and the cases  where there was mere technical infringement of the principal.  The Court  applies the principles of natural justice having regard to the fact situation  obtaining in each case.  It is not applied in a vacuum without reference to the  relevant facts and circumstances of the case.  It is no unruly horse.  It cannot  be put in a straightjacket formula.  [See Viveka Nand Sethi vs. Chairman,  J. & K. Bank Ltd. & Ots. (2005) 5 SCC 337 and State of U.P. vs. Neeraj  Awasthi & Ors. JT 2006 (1) SC 19.  See also Mohd. Sartaj vs. State of  U.P. (2006) 1 SCALE 265.]  

In Union of India & Anr. vs. Tulsi Ram Patel [(1985) Supp.2 SCR  131 : (1985) 3 SCC 398], whereupon again Mr. Rao placed strong reliance,  this Court did not lay down a law in absolute terms that violation of  principle of natural justice would be read into the equality clause contained  in Article 14 of the Constitution of India.  The said decision was rendered  having regard to the fact that by taking recourse to the second proviso  appended to Article 311 of Constitution of India, no disciplinary proceeding  was to be initiated at all and an order of dismissal could be passed only on  the basis of subjective satisfaction of the authority empowered to dismiss or  remove a person or to reduce him in rank wherefor reason was to be  recorded by it in writing that it was not reasonably practicable to hold a  disciplinary proceeding.   The facets of the principle of natural justice was  considered in some details in State Bank of Patiala & Ors. vs. S.K.  Sharma [(1996) 3 SCC 364], wherein this Court categorically held:

"Now, coming back to the illustration given by us  in the preceding para, would setting aside the punishment  and the entire enquiry on the ground of aforesaid  violation of sub-clause (iii) be in the interests of justice  or would it be its negation? In our respectful opinion, it  would be the latter. Justice means justice between both  the parties. The interests of justice equally demand that  the guilty should be punished and that technicalities and  irregularities which do not occasion failure of justice are  not allowed to defeat the ends of justice. Principles of  natural justice are but the means to achieve the ends of  justice. They cannot be perverted to achieve the very  opposite end. That would be a counter-productive  exercise."

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It was opined that in an appropriate case, the said right could also be  waived, stating:

"If it is found that he has been so prejudiced,  appropriate orders have to be made to repair and remedy  the prejudice including setting aside the enquiry and/or  the order of punishment. If no prejudice is established to  have resulted therefrom, it is obvious, no interference is  called for. In this connection, it may be remembered that  there may be certain procedural provisions which are of a  fundamental character, whose violation is by itself proof  of prejudice. The Court may not insist on proof of  prejudice in such cases."

It was further held:

"Where the enquiry is not governed by any  rules/regulations/statutory provisions and the only  obligation is to observe the principles of natural justice \026  or, for that matter, wherever such principles are held to  be implied by the very nature and impact of the  order/action \026 the Court or the Tribunal should make a  distinction between a total violation of natural justice  (rule of audi alteram partem) and violation of a facet of  the said rule, as explained in the body of the judgment.   In other words, a distinction must be made between "no  opportunity" and no adequate opportunity, i.e., between  "no notice"/"no hearing" and "no fair hearing".  (a) In the  case of former, the order passed would undoubtedly be  invalid (one may call it ’void’ or a nullity if one chooses  to).  In such cases, normally, liberty will be reserved for  the Authority to take proceedings afresh according to  law, i.e., in accordance with the said rule (audi alteram  partem).  (b) But, in the latter case, the effect of violation  (of a facet of the rule of audi alteram partem) has to be  examined from the standpoint of prejudice; in other  words, what the Court or Tribunal has to see is whether  in the totality of the circumstances, the delinquent  officer/employee did or did not have a fair hearing and  the orders to be made shall depend upon the answer to  the said query."

It is not a case where there had been a gross violation of principles of  natural justice in the sense no disciplinary proceeding was initiated at all or  no hearing was given.   

In Canara Bank & Ors. (supra), a Division Bench of this Court held:

"It is to be noted that at no stage the employee  pleaded prejudice. Both learned Single Judge and the  Division Bench proceeded on the basis that there was no  compliance with the requirement of Regulation 6(18)  and, therefore, prejudice was caused. In view of the  finding recorded supra that Regulation 6(18) has not been  correctly interpreted, the conclusions regarding prejudice  are indefensible."

Even in Managing Director, ECIL, Hyderabad & Ors. vs. B.  Karunakar & Ors. [(1993) 4 SCC 727], this Court clearly held:

"\005..The theory of reasonable opportunity and the  principles of natural justice have been evolved to uphold

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the rule of law and to assist the individual to vindicate his  just rights. They are not incantations to be invoked nor  rites to be performed on all and sundry occasions.  Whether in fact, prejudice has been caused to the  employee or not on account of the denial to him of the  report, has to be considered on the facts and  circumstances of each case. Where, therefore, even after  the furnishing of the report, no different consequence  would have followed, it would be a perversion of justice  to permit the employee to resume duty and to get all the  consequential benefits. It amounts to rewarding the  dishonest and the guilty and thus to stretching the   concept of justice to illogical and exasperating limits. It  amounts to an "unnatural expansion of natural justice"  which in itself is antithetical to justice."

It was further opined:

"\005..If after hearing the parties, the Court/Tribunal  comes to the conclusion that the non-supply of the report  would have made no difference to the ultimate findings  and the punishment given, the Court/Tribunal should not  interfere with the order of punishment. The  Court/Tribunal should not mechanically set aside the  order of punishment on the ground that the report was not  furnished as is regrettably being done at present. The  courts should avoid resorting to short cuts. Since it is the  Courts/Tribunals which will apply their judicial mind to  the question and give their reasons for setting aside or not  setting aside the order of punishment, (and not any  internal appellate or revisional authority), there would be  neither a breach of the principles of natural justice nor a  denial of the reasonable opportunity. It is only if the  Court/Tribunal finds that the furnishing of the report  would have made a difference to the result in the case  that it should set aside the order of punishment"  

What then would be the consequence of violation of principles of  natural justice, so far as the dicta laid down by this Court in Punjab  National Bank & Ors. (supra) is concerned is the question.

The charges against the Appellant are almost identical.  Primarily,  charges of similar nature in respect of commission of misconduct on nine  different occasions were the subject matter of the disciplinary proceeding.   The charge No.2 constituted an independent charge, as commission of one  misconduct had nothing to do with the commission of similar nature of  misconduct on all other occasions.  The said charge was, therefore,  severable.   

A Constitution Bench of this Court in State of Orissa & Ors. vs.  Bidyabhushan Mohapatra [(1963) Supp.1 SCR 648 : AIR 1963 SC 779]  opined:

"The High Court has held that there was evidence  to support the findings on heads (c) & (d) of Charge (1)  and on Charge (2).  In respect of charge 1(b) the  respondent was acquitted by the Tribunal and it did not  fall to be considered by the Governor.  In respect of  charges 1(a) and 1(e) in the view of the High Court "the  rules of natural justice had not been observed".  \005\005\005   It is not necessary for us to consider whether the High  Court was right in holding that the findings of the

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Tribunal on charges 1(a) and 1(e) were vitiated for  reasons set out by it, because in our judgment the order  of the High Court directing the Government to reconsider  the question of punishment cannot, for reasons we will  presently set out, be sustained.  If the order of dismissal  was based on the findings on charges 1(a) and 1(e) alone  the Court would have jurisdiction to declare the order of  dismissal illegal but when the findings of the Tribunal  relating to the two out of five heads of the first charge  and the second charge was found not liable to be  interfered with by the High Court and those findings  established that the respondent was prima facie guilty of  grave delinquency, in our view the High Court had no  power to direct the Governor of Orissa to reconsider the  order of dismissal."       The Constitution Bench therein has clearly laid down that even if the  charges which have been proved, justify imposition of punishment of  dismissal from service, this Court may not exercise its power of judicial  review.

The said decision was noticed by this Court in Binny Ltd. Vs.  Workmen [AIR 1972 SC 1975 : (1972) 3 SCC 806], in the following terms:

"\005.It was urged that the Court should not have assumed  that the General Manager would have inflicted the  punishment of dismissal solely on the basis of the second  charge and consequently the punishment should not be  sustained if it was held that one of the two charges on the  basis of which it was imposed was unsustainable. This  was rejected following the decision in State of Orissa v.  Bidyabhan Mohapatra, where it was said that if an order  in an enquiry under Article 311 can be supported on any  finding as substantial misdemeanour for which  punishment imposed can lawfully be given, it is not for  the Court to consider whether that ground alone would  have weighed with the authority in imposing the  punishment in question. In our view that principle can  have no application to the facts of this case. Although the  enquiry officer found in fact that the respondent had  behaved insolently towards the Warehouse Master, he  did not come to the conclusion that this act of  indiscipline on a solitary occasion was sufficient to  warrant an order of dismissal."  

Yet again, in Sawarn Singh & Anr. vs. State of Punjab & Ors.  [(1976) 2 SCC 868], this Court held:

"19.    In view of this, the deficiency or reference to some  irrelevant matters in the order of the Commissioner, had  not prejudiced the decision of the case on merits either at  the appellate or revisional stage. There is authority for  the proposition that where the order of a domestic  tribunal makes reference to several grounds, some  relevant and existent, and others irrelevant and non- existent, the order will be sustained if the Court is  satisfied that the authority would have passed the order  on the basis of the relevant and existing grounds, and the  exclusion of irrelevant or non-existing grounds could not  have affected the ultimate decision."

We are, therefore, of the opinion that charge No.2 being severable,

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this Court can proceed on the basis that the charges against the Appellant in  respect of charge No.2 was not proved.

In Orissa Cement Limited vs. Adikanda Sahu reported 1960 (1)  LLJ SC 518 that a verbal abuse may entail imposition of punishment of  dismissal from service.

The said decision has been followed in Mahindra and Mahendra  Ltd. vs.  N.N. Narawade etc. reported in JT 2005 (2) SC 583.

The question as regard the jurisdiction of this Court to interfere with  the quantum of punishment, it is well known, is limited.  While exercising  the said jurisdiction, the Court, only in very exceptional case, interferes  therewith.   

In Chairman & M.D., Bharat Pet. Corpn. Ltd. & Ors. vs. T.K.  Raju JT 2006 (2) SC 624, this Court opined:

"15.    We also do not agree with the submission of Mr.  Krishnamani that two of the eight charges have not been  found to be proved.  The charges levelled against the  respondent must be considered on a holistic basis.  By  reason of such an action, the respondent had put the  company in embarrassment.  It might have lost its image.   It received complaints from the Federation.  There was  reason for the appellant to believe that by such an action  on the part of the respondent the appellant’s image has  been tarnished.  In any event, neither the learned Single  Judge nor the Division Bench came to any finding that  none of the charges had been proved.

16.     The power of judicial review in such mattes is  limited.  This Court times without number had laid down  that interference with the quantum of punishment should  not be one in a routine manner."    

[See also A. Sudhakar vs. Post Master General, Hyderabad &  Anr. (JT 2006 (4) SC 68)]

For the reasons afore-mentioned, we are of the opinion that it is not a  fit case where this Court should exercise its discretionary jurisdiction under  Article 136 of the Constitution of India.  This appeal is, therefore, dismissed.   However, in the facts and circumstances of this case, there shall be no order  as to costs.