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PETITIONER: STATE BANK OF BIKANER & JAIPUR

       Vs.

RESPONDENT: SRINATH GUPTA & ANR.

DATE OF JUDGMENT:       25/10/1996

BENCH: J.S. VERMA, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      KIRPAL.J.      This appeal  by special  leave arises from the judgment of the  Division Bench  of the  Rajasthan High  Court  which dismissed the  appeal filed  by the  appellant  against  the judgment of  the Single  Judge  who  had  allowed  the  writ petition filed by respondent No. 1 quashing the order of the Central Government Industrial Tribunal (hereinafter referred to as  ’the Tribunal) which had upheld dismissal of the said respondent No.  1 pursuant  to the proceeding which had been held.      Respondent No. 1 was initially appointed as cashier-cum -godown keeper  by the  appellant bank  in the year 1961. He was promoted  as Head-Cashier on 25.3.1970 and was posted at Sunel Branch  of the Bank. In June, 1973, he was transferred to Sangod Branch.      On 31.3.1975  the appellant  lodged  with  the  Central Bureau  of   Investigation  (hereinatter   referred  to   as ’C.B.I.’) an  F.I.R. in  which it  was, inter  alia, alleged that while working as the cashier at the Sunel Branch during the year  1970-1971, the  said respondent  had demanded  and accepted illegal  gratification from  a number of persons in consideration of  his showing  favours to  them  in  getting their loans  sanctioned.  The  C.B.I.  submitted  its  final report on  21.2.1977 stating  that no  reliable evidence was available  in  support  of  the  allegations  and  that  the evidence against  the said  respondent was scanty. The final report was  accepted  by  the  Court  on  2.11.1977  and  no prosecution of the respondent took place.      In the  meantime departmental disciplinary proceeadings were commenced by the appellant. On 22.3.1976 a charge-sheet was served on the respondent. Those charge wee as follows:      "1)    You  demanded  and  accepted      bribe from the following persons as      mentioned    against    each    for      arranging sanction of bank loans in      their favour:      NAME                AMOUNT OF BRIBE     S/Shri                 Rs.     Ashraf Ali             50/-

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   Dhana Lal              50/-     Raghu Nath            100/-     Mitthu Lal             50/-     Mohan Lal             350/-     Bapu Lal              300/-     Ram Singh             350/-     Kanhi Ram             350/-     Mangu                 375/-      ii)   You demanded and accepted Rs.      20/- in  the month  of may  1973 as      bribe from  smt. Phuli Bai sweepers      at  Sunel   Branch  for   arranging      payment of  bonus amounting  to Rs.      80/- payable to her.      iii)   You  demanded  and  accepted      bribe of  Rs. 500/-  (Rs. 50/-  per      month) w.e.f.  August, 1972 to May,      1973  from   Shri  Nemi  Chand  for      arranging  for   him  a   temporary      appointment of a Peon at the branch      on 5th August, 1972.      iv)   You  raised a fictitious loan      of Rs.  1000/- at the branch in the      name  of  one  Shri  Panna  Lal  by      getting the same guaranteed by your      brother Shri Jagdish Chandra."      After the  Inquiry Officer  was appointed,  the inquiry proceedings commenced. Deposition of a number of prosecution witnesses was  recorded including  the statements  of Ashraf Ali and Dhanna Lal, from whom bribe was alleged to have been demanded for  getting the loan sanctioned. Some of the other witnesses,  however,   turned  hostile.  Statements  of  the concerned witnesses including those of Ashraf Ali and Dhanna Lal had earlier been recorded by the appellant under Section 161 Cr.P.C. During the examination of these witnesses before the inquiry officer, these statements were brought on record as part  of the  deposition. It appears that copies of these statements were  given to  the respondent workman in advance and the  contents of the same were admitted by the witnesses and opportunity  was given  to the  said workman  to  cross- examine them.      The Inquiry  Officer submitted  his report on 10.2.1979 and as  a  consequence  thereof,  a  notice  was  issued  to respondent No.  1  to  show  cause  why  he  should  not  be dismissed from service. A reply was submitted by the workman on 11.3.1979 and on 27.6.1979, the appellant passed an order dismissing him from service. An appeal, against the order of dismissal  filed   before  the   appropriate  authority  was dismissed on 2.8.1979.      The  respondent   then  approached   the   Conciliation Officer,  Kota   and  a  failure  report  was  sent  to  the Government. Thereupon  the Central  Government referred  the following dispute to the Tribunal :      "Whether   the    action   of   the      management of State Bank of Bikaner      & Jaipur  in dismissing  Shri  S.N.      Gupta, Head Cashier, Pipalda Branch      in District  Kota with  effect from      6.7.1979 is  justified If  not,  to      what   relief    is   the   workman      concerned entitled ?"      Vide  Award  dt.  9.4.1984,  the  Tribunal  upheld  the dismissal of  the said  respondent. The workman then filed a writ petition  number 631  of 1984 before the Rajasthan High Court at  Jaipur. By  judgment dated 17.12.1984 the Award of

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the Tribunal  was set  aside  and  the  case  remanded  with certain directions,  inter alia, relating to the question as to whether  the domestic  enquiry was  defective or  not and whether the punishment awarded was justified. Thereafter the Tribunal again  passed an  award dated  29.5.1985 confirming its earlier decision and it upheld the dismissal of the said respondent.      The respondent  No. 1  then filed a fresh writ petition in the Rajasthan High Court. Vide judgment dated 5.8.1992, a Single Judge  of the  High Court  allowed the writ petition. The award  dated 29.5  1985 was quashed and respondent No. 1 was directed  to be  taken on  duty forthwith.  In regard to back wages,  it was  held that  respondent No.  1  would  be entitled to  50% of  the total amount which may be found due to him  subject to  any deduction therefrom if he had worked during that  period. The  appellant  then  filed  an  appeal before the Division Bench of the High Court but the same was dismissed on  21.10.1992 with a modification that respondent be paid 30% of salary or the period during which the inquiry had remained  pending. Aggrieved  by the  said judgment, the appellant has preferred the present appeal.      The respondent  had succeded  before the  High Court on two grounds,  firstly; the High Court came to the conclusion that the  statements which  had been  recorded  under  under Section 161  Cr.P.C. were not admissible and, therefore, the dacision of  the  Tribunal  stood  vitiated.  Secondly,  the Single Judge  had  also  held  that  during  the  course  of disciplinary  proceedings,  C.B.I.  Inspector  had  remained therein and  his  presence  itself  had  also  vitiated  the proceedings because the witnesses were under a fear to state the whole  truth contrary  to what had been recorded earlier by the C.B.I. Inspector.      As regards the statements under Section 161 Cr.P.C. are concerned, we find that the said statements were supplied to the respondent  on 1.11.1976. The evidence of these persons, we are  informed, was  recorded on  5.4.1977. The  procedure which was  followed by  the Inquiry Officer, relating to the taking on  record of  these  statements  under  Section  161 Cr.P.C. would be evident from the proceedings of the Inquiry Officer which are as follows:      "The bank  representative  produced      his  witness   Sri  Dhannalal   s/o      Mangilal  residence  of  Sunel  for      evidence. At  this moment  Sri S.L.      Gupta,   employees   representative      raised   his   objection   to   the      procedure of  reading the statement      of   the    witnesses    by    bank      representative previously recorded.      With  a   view   to   offer   equal      opportunity to  both the  sides and      to enable  the bank  to present the      case in  the proper  manner,  as  a      norm of  the  domestic  enquiry,  I      allow this  Procedure  to  continue      and proceed further in the case.      The  statement   of  Dhannalal  s/o      Mangilal previously recorded by the      CBI Inspector  was read over to him      by  the  bank  representative.  Sri      Dhannalal admitted  the contents of      the statement.      Cross        examination         by      defence.........."      According to  the appellant  in respect  of Ashraf  Ali

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also a  similar procedure  was followed.  It  is  now  well- settled that strict rules of evidence are not applicable and are not  required to  be followed in domestic inquiry [ e.g. see State  of Haryana  Vs. Rattan  Singh 1982  (1) LLJ.46 ]. What has  to be  ensured is  that the  principles of natural justuce are complied with and the delinquent workman has the opportunity of defending himself.      The statements  under Section  161 Cr.P.C.  may not  be admissible in  the criminal  trial, but  the said statemetns can be  produced in a disciplinary inquiry like the present. The person  who made  the statement has been examined before the inquiry  officer. It  was open  to the  witness to  have stated orally  the entire  contents of  what was recorded in his statement under Section 161 Cr.P.C. Instead of following this time  consuming procedure,  the said statement recorded under Section  161 Cr.P.C.  was read over to the witness who admitted the  contents thereof.  In  this  way  the  earlier statement under  Section 161  Cr.P.C. became  a part  of the examination-in-chief  of  the  witness  before  the  Inquiry Officer. It  is not  in dispute that the said statements had been given to the respondent in advance and full opportunity was granted  to the  respondent  to  crossexamine  the  said witnesses.  This   being  the   case,  it  is  difficult  to appreciate as  to how  the High Court could have come to the conclusion that the inquiry proceedings stood vitiated.      In coming to the aforesaid conclusion, we are fortified by the decision of a Constitution Bench of this Court in the case of  STATE OF MYSORE VS. S.S. MAKAPUR, 1963 [2] SCR 943. In that  case also,  statements of  witnesses which had been recorded behind  the back  of the  delinquent  officer  were taken on  record and an opportunity of cross-examination was given. The  High Court  had come  to the conclusion that the principles of  natural justice had not been followed because of the  admission in  evidence  of  such  statements.  While allowing the  appeal and  rejecting the  contention  of  the respondent  therein,  this  Court  in  S.S.  Makapur’s  case (supra) at page 951 observed as follows:      "When   the   evidence   is   oral,      normally  the  examination  of  the      witness will  in its entirety, take      place before the party charged, who      will  have   full  opportunity   of      cross-examining him.  The  position      is  the  same  when  a  witness  is      called,   the    statement    given      previously by  him behind  the back      of the  party is  put to  him,  and      admitted  in   evidence,   a   copy      thereof is  given to the party, and      he  is   given  an  opportunity  to      cross-examine him.  To  require  in      that case  that the contents of the      previous   statement    should   be      repeated by  the  witness  word  by      word, and  sentence by sentence, is      to insist  on bare  technicalities,      and rules  of natural  justice  are      matters  not   of   from   but   of      substance. In  our Opinion they are      sufficiently  complied   with  when      previous   statements    given   by      witnesses are  read over  to  them,      marked on  their admission,  copies      thereof  of  given  to  the  person      charged,  and   he  is   given   an

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    opportunity to cross-examine them."      The aforesaid  obervations apply in the present case as well. In  KHATRI &  ORS. ETC.  Vs. STATE  OF  BIHAR  &  ORS. 1981(3) SCR  145 dealing  with petition  under Article 32 of the Constitution,  the question arose whether the statements made  before   the  police   officer  in   the   course   of investigation could  be directed  to be produced and whether the bar  of Section  162 Cr.P.C.  applied or  not.  In  this connection, it was observed, at page 152, as follows:      "It bars  the use  of any statement      made before a police officer in the      course of  an  investigation  under      Chanter XII,  whether recorded in a      police diary  or otherwise,  but by      the express  terms of  the  Section      this bar  is applicable  only where      such statement is sought to be used      at any  inquiry or trial in respect      of any  offence under investigation      at the time when such statement was      made’. If the statement made before      a police  officer in  the course of      an investigation  under chapter XII      is  sought   to  be   used  in  any      proceeding other than an inquiry or      trial or  even  at  an  inquiry  of      trial but  in respect of an offence      other than  that  which  was  under      investigation at the time when such      statement  was  made,  the  bar  or      Section   162    would    not    be      attracted."      Mr.  Tarkunde,  learned  counsel  for  the  respondent, however,   placed   strong   reliance   on   the   following observations of this court in M/S. KOSORAM COTTON MILLS LTD. VS. GANGADHAR AND OTHERS, 1964(2) SCR 809 at page 827:      "Further  we   can  take   judicial      notice of the fact that many of our      industrial workers  are  illiterate      and     sometimes      even     the      representatives of labour union may      not be  present tc  defend them. In      such a case to read over a prepared      statement in a few minutes and then      ask the  workmen to  cross- examine      would  make   a  mockery   of   the      opporturity  that    the  rules  of      natural justice  require  that  the      workmen  should   have  to   defend      themselves.   It    seems   to   us      therefore that  when one is dealing      with    domestic    inquiries    in      industrial  matters,   the   proper      course for  the  management  is  to      examine  the   witnesses  from  the      beginning  to   the  end   in   the      presence  of  the  workman  at  the      enquiry  itself.  Oral  examination      always takes  much  longer  than  a      mere   reading    of   a   prepared      statement of  the same  length  and      brings  home   the  evidence   more      clearly to  the person against whom      the   inquiry    is   being   held.      Generally  speaking   therefore  we

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    should expect a domestic inquiry by      the  management   to  the  of  this      kind."      The  aforesaid   observations  do   imply   that   oral examination should  take place  and reading  of  a  prepared statement may  cause prejudice  but the  Court did  not hold that the  procedure which  was referred to in SHIBAVASAPPA’S CASE (supra) was illegal. In fact in the very next sentence, it was observed in the said case as follows:      "Even so  we recognise the force of      the  argument   on  behalf  of  the      appellant that  the main principles      of natural  justice  cannot  change      from  tribunal   to  tribunal   and      therefore, it  may be  possible  to      have another method of conducting a      domestic inquiry  (though we  again      repeat that  this should not be the      rule but the exception) and that is      in  the   manner   laid   down   in      Shibavasappa’s  case.  The  minimum      that   we    shall   expect   where      witnesses are not examined from the      very beginning  at the  enquiry  in      the presence  of the person charged      is that  the person  charged should      be given  a copy  of the statements      made by  the witnesses which are to      be used  at  the  inquiry  well  in      advance before  the inquiry  begins      and when  we say  that the  copy of      the statements should be given well      in advance  we mean  that it should      be given  at least  two days before      the inquiry is to begin."      In the  present  case,  statements  under  Section  161 Cr.P.C. had  been given  to respondent  No, 1  a  number  of months before  the witnesses  were examined. Therefore, even the minimum  requirement which  is referred  to  in  KESORAM COTTON MILLS LTD. case (supra) was complied with.      From the aforesaid discussion the only conclusion which could  be  arrived  at  is  that  in  the  present  case  no illegality had  been  committed  by  taking  on  record  the statements which had been made under Section 161 Cr.P.C. and the conclusion  of the  High Court  which has  held that the disciplinary proceedings stood vitiated, is not correct.      Coming to the question with regard to the presence of a C.B.I. Inspector  during the  disciplinary proceedings,  Mr. G.L Sanghi, learned counsel for the appellant, has drawn our attention to the observation in the award of the Tribunal in which it  is stated that the C.B.I. Inspector was one of the witnesses in  the enquiry.  When the objection regarding his presence was  raised then  he was  removed from  there. This being so,  one of  the reasons given by the single Judge for setting aside  the award,  was based  on a wrong premise. In fact, the  Division Bench  did not base its decision on this ground.      For the  aforesaid reasons, this appeal is allowed. The Judgments of  the Single Judge and the Division Bench of the Rajasthan High  Court are  set aside. During the pendency of this appeal,  by reason  of the interim order passed by this Court, certain payments have been made to the respondent. In the circumstances  of the  case we direct that the amount so paid is not required to be refunded. There will be, however, no order as to costs.

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