Dismissed

Itishree Nath v. Bank of Baroda

Orissa HC11 Sept 2024WP(C)/5688/2022

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a confirmed order of removal from service against a Bank of Baroda officer. Addressing claims of coercion and procedural lapses regarding adjournment, the Court held that the petitioner had waived her right to present evidence by admitting the sufficiency of documents on record. Finding no violation of natural justice and reiterating that the Court acts as a reviewer rather than an appellate body, it upheld the removal punishment.

What did the court decide?

The writ petition stands dismissed being devoid of merit. The impugned orders regarding the confirmation of removal punishment are upheld. No order as to costs.

Itishree Nath Vs Bank of Baroda — Service and Employment | Orissa HC (2024)

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ORISSA HIGH COURT : CUTTACK

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W.P.(C) No.5688 of 2022

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In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950

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Itishree Nath Aged about 44 years Daughter of Dr. Rajkishore Nath House No.H1 MIG/158, K9/A At: Kalinga Bihar, Patrapada Bhubaneswar – 751 019 District: Khordha. … Petitioner. -VERSUS-

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1. Bank of Baroda Represented through its Managing Director & Chief Executive Officer Corporate Centre, C-26, G. Block Bandra Kurla Complex, Bandra East Mumbai – 400 051 State of Maharashtra.

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2. Executive Director Bank of Baroda, Baroda Corporate Centre C-26, G Block, Bandra Kurla Complex Bandra East, Mumbai – 400 051 State of Maharashtra.

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3. Deputy General Manager Bank of Baroda, Zonal Office Baroda Zone, 5^th Floor, Baroda Bhawan A.C. Dutta Road, Alkapuri

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Baroda – 390 007 State of Gujarat.

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4. Regional Manager, Bank of Baroda Godhra Region, Regional Office Godhra, Kalindi, 1 Mahavir Jain Society Near S.T. Depot, Godhra – 389 001 State of Gujarat.

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5. Regional Manager Bank of Baroda Regional Office, Bhubaneswar Region 1^st Floor, Bivav Gulmohar, Nayapalli Bhubaneswar – 751 012 District: Khordha. … Opposite Parties.

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Counsel appeared for the parties:

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For the Petitioner : M/s. Sidheswar Mallik Prahallad Chandra Das, Mamata Mallik, Sidharth Mallik and Amar Prasad Mohanty, Advocates For the Opposite party : Mr. K.M.H. Niamati, No.3 Advocate P R E S E N T:

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HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

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Date of Hearing : 16.07.2024 :: Date of Judgment : 11.09.2024

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JUDGMENT

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Assailing the appellate order dated 27.01.2022 passed by the Executive Director & Appellate Authority under Regulation 17 confirming the punishment of ―REMOVAL FROM SERVICE WHICH SHALL NOT BE DISQUALIFICATION FROM

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FUTURE EMPLOYMENT‖ awarded by the Deputy Zonal HeadDeputy General Manager and Disciplinary Authority in exercise of powers under Regulation 5(3) read with Regulation 6 of the Bank of Baroda Officer Employees‘ (Discipline and Appeal) Regulations, 1976, the petitioner questioned propriety of institution of the disciplinary proceeding by way of the instant writ petition and made the following prayer(s):

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“Under the aforesaid facts and circumstance the petitioner humbly prays that this Hon‟ble court may graciously be pleased to,

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I) Quash the impugned order of punishment dated 05.05.2021 as at Annexure-12 and the consequential order in appeal dated 27.01.2022 as at Annexure-14.

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II) Direct/order that the petitioner shall be reinstated into services with all consequential service and monetary benefits.

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III) Pass such other orders as may be deemed fit and proper in the interest of justice.

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And for this act of kindness the petitioner as in duty bound shall ever pray.”

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Facts:

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2. As it emanated from the narration of facts as adumbrated by the writ petitioner, so far as relevant, runs thus:

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2.1. The petitioner entered into service on 26.05.2011 as Junior Manager Group (JMG) Scale-I at the Bank of Baroda in Cuttack, and being transferred worked at Bhubaneswar from 06.12.2012 to 26.05.2017 and retransferred to Cuttack where she worked from 27.05.2017 to 26.06.2019.

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2.2. Her representation dated 07.06.2019 against proposed transfer in terms of Circular No.72—HO:BR:111, dated 29.03.2019 stipulating policy of ―posting of employees who have differently-abled dependants‖ has been turned down and on 29.06.2019, the petitioner was transferred to Godhra Region under Banks‘ Inter-Zonal Transfer Policy. The petitioner stood relieved on the same day, i.e ., 29.06.2019.

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2.3. While the matter stood thus, alleging to have ―committed irregularities in respect of prolonged unauthorised absence continuously with effect from 30.06.2019‖, disciplinary proceeding under Regulation 6 of the Bank Baroda Officer Employees‘ (Discipline & Appeal) Regulations, 1976 (―Regulations, 1976‖, for convenience) was drawn up on 03.12.2020 against the petitioner with the following charges:

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“e) She knowingly and wilfully violated and flouted established rules, Regulations and procedures of the Bank.

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f) She flouted instructions of higher authority.

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g) She adopted such steps and took such actions as were derogatory, prejudicial, detrimental or injurious to the interest of the Bank.

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h) She did acts unbecoming of a Bank Officer.”

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2.4. Memorandum of Charges was communicated on 20.10.2020 in her address at Bank of Baroda, Regional Office, Godhra where she did not join; however, on 04.01.2021 the Memorandum of Charges was communicated to her personal e-mail ID, responding to which she submitted statement of defense on 01.02.2021 denying the allegations.

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2.5. Having appointed the Chief Manager of Godhra Region, Baroda Zone as Inquiring Authority on 01.02.2021 and the Presenting Officer on 03.02.2021, the Disciplinary Authority intimated the fact to the petitioner and instructed her to engage defense assistant, if she so wishes.

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2.6. As scheduled, the petitioner appeared before the Inquiring Authority on 25.02.2021 for the purpose of inquiry on the charges. It is alleged by the petitioner that flouting the mandate of Clause 9 of Regulation 6 of the Regulations, 1976 to adjourn the inquiry to a later date not exceeding 30 days or within such extended time in the event the delinquent employee does not plead guilty, the Inquiring Authority recorded that the petitioner denied the allegations. Instead of adjourning the case to

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a later date, the Inquiring Authority proceeded with the inquiry and concluded the entire inquiry proceeding.

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2.7. It is alleged by the petitioner that the Inquiring Authority obtained an application/letter from the petitioner under coercion to the effect that she does not want any further time, she does not dispute the genuineness of the documents relied upon by the prosecution.

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2.8. The Inquiring Authority submitted his report to the Disciplinary Authority on 18.03.2021, which was communicated to the petitioner on 22.03.2021. The petitioner was asked to submit her representation against the inquiry report within 10 days. After conclusion of the Inquiry on 25.02.2021 the petitioner was allowed to join in the Regional Office at Godhra. The petitioner joined the Regional Office at Godhra on 16.03.2021 and she was accommodated in a hotel and was in search of a rented house. It is stated by the petitioner that certain staff of the bank being found COVID positive, the bank was closed for some days. Due to pandemic situation the petitioner was asked to vacate the hotel as there was no other occupant. As she had no other accommodation in Godhra, she was constrained to leave the place and return to Bhubaneswar with an application to reconsider her case for transfer to Bhubaneswar region in terms of the Circular dated 29.03.2019. On 01.04.2021 the petitioner submitted her

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representation against the inquiry report. On 18.04.2021 the petitioner submitted further representation requesting for her deputation to Bhubaneswar Region on the plea that he was to look after her old ailing father and it was not possible to leave her father alone at Bhubaneswar especially due to the pandemic situation.

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2.9. The order of punishment passed on 30.04.2021 was communicated to her on 05.05.2021. Aggrieved by such order of punishment under Regulation 4 read with Regulation 5 of the Regulations, 1976, the petitioner preferred appeal before the Appellate Authority under Regulation 17 on 03.06.2021, which came to rejected by the Appellate Authority by order dated 27.01.2022.

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2.10. Against said appellate order, the petitioner filed this writ petition for showing indulgence in exercise of power of judicial review under Article 226/227 of the Constitution of India.

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Response of the opposite parties:

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3. Strongly refuting the allegation of non-adherence to the principles of natural justice, the opposite parties by way of counter affidavit submitted that on the basis of transfer policy of the bank, after eight years of service of the petitioner in Cuttack Branch, Bhubaneswar-II Region, Bhubaneswar (now Cuttack Region), on

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29.06.2019, she was to report to Godhra Region on 30.06.2019. As the representation of the petitioner being rejected and her request to cancel the transfer in terms of Circular dated 29.03.2019 was refused by the competent authority, with advisory to report to her duties, Letters bearing Nos. BZ/GR/HRM/36/3423 dated 04.11.2019, BZ/GR/HRM/37/1684 dated 09.09.2020, BZ/GR/HRM/37/1701 dated 14.09.2020 were issued to her informing that her absence is treated as unauthorized. After giving ample opportunities to her for joining, further proceeding was initiated by issuance of the Articles of Charge and Statement of Allegations against the petitioner vide Memorandum No.598—BZHRM-09, dated 03.10.2020.

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3.1. In the disciplinary proceedings on appreciation of evidence available on record, order dated 30.04.2021 was passed with the following punishment as enumerated in Regulation 4 of the Regulations, 1976:

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“REMOVAL FROM SERVICE WHICH SHALL NOT BE DISQUALIFICATION FROM FUTURE EMPLOYMENT”.

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3.2. In the appeal preferred by the petitioner-delinquent (charged officer, referred as CSO) under Regulation 17 ibid. , such order of punishment got affirmed by order dated 27.01.2022.

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Hearing:

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4. As the petitioner has been removed from service since 30.04.2021 by order the disciplinary authority, which was also upheld in the appeal on 27.01.2022, and pleadings being completed in the matter, on consent of the counsel for the parties, the present matter is taken up for final disposal at the stage of admission.

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4.1. Accordingly, this Court heard Sri Sidheswar Mallik, Advocate and Sri K.M.H. Niamati, learned Advocate for the opposite parties. Hearing being concluded on 16.07.2024, the matter stood reserved for preparation and delivery of Judgment/Order.

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Rival contentions and submissions:

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5. Sri Sidheswar Mallik, learned Advocate appearing for the petitioner submitted that knowing fully well that the petitioner being relieved from duties on 29.06.2019 did not join at the place of transfer, the opposite parties with oblique motive sent the Memorandum of Charges to the Regional Office address at Godhra and she was not well acquainted with handling e-mail.

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5.1. On a flimsy ground that her case for consideration of cancellation of transfer does not fall within the parameters of Circular dated 29.03.2019 has been turned down. The learned Advocate referring to copy of Medical Certificate issued from Akhyam Sahayak Kendra, Indian Red Cross Society, Odisha, State Branch,

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Bhubaneswar by order of Chief Medical Officer of the Capital Hospital, Bhubaneswar (Annexure-3) in favour of the father of the petitioner submitted that the opposite parties have failed to take into account the guidelines prescribed under said Circular issued in the perspective of the Rights of Persons with Disabilities Act, 2016 in proper perspective. Since the father of the petitioner was having disability, which is undisputed, the bank authorities ought not to have denied the benefit of Circular by cancelling the inter-zonal transfer to Godhra.

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5.2. Advancing argument further, Sri Sidheswar Mallik, learned counsel placed reliance on Regulation 6 of the Regulations, 1976, which deals with ―Procedure for imposing major penalties‖. In course of inquiry the Inquiring Authority did not examine any witness. The inquiry proceeding was concluded within an hour. Subclause (a) of Clause 8 of Regulation 6 stipulates the Inquiring Authority shall by notice in writing specify the day on which the officer employee shall appear in person before the Inquiring Authority. Sub-clause (d) of Clause 8 of Regulation 6 provides that the Inquiring Authority shall record a finding of guilt in respect of those articles of charges to which the officer employee concerned pleads guilty. Clause 9 of Regulation 6 provides that if the officer employee does not plead guilty, the Inquiring Authority shall adjourn the case to a later date not

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exceeding 30 days or within such extended time as may be granted by the Inquiring Authority. The purpose/intention behind the provisions of said Clause 9 is to give ample opportunity to prepare for defense. In the present case, the Inquiring Authority concluded the inquiry on the same day of its commencement.

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5.3. Though the use of word ‗shall‘ in Clause 9 is mandatory in nature which leaves no discretion to the Inquiring Authority to conclude the proceeding on the same day without adjourning the matter, the said Authority obtained an application/letter from the petitioner (under coercion) to the effect that she does not dispute the documents produced and she would not examine any witness on her defense. The Inquiring Authority was obligated to follow the procedure prescribed in Clause 9 of Regulation 6 and there was no scope for the Inquiring Authority to waive the provision of law and adopt his own procedure at his whims. Thus argued, Sri Sidheswar Mallik, learned Advocate urged that for infraction of procedure laid in Regulation 6, the inquiry proceeding would be a nullity, thereby it would render the order passed in disciplinary proceeding non est in the eye of law. Such fact being not considered in its right earnest, the appellate order would require to be set at naught. Therefore, he requested to accede to the prayers made in the writ petition.

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6. Sri K.M.H. Niamati, learned Advocate for the opposite parties would submit that details of compliance of principles of natural justice has been elaborately narrated in the counter affidavit. In order to protract the proceeding further, a lame excuse has been made in the writ petition that the petitioner was not acquainted with e-mail. Rather responding to the e-mail, she had filed written statement of defense which was taken note of by the appropriate authorities. Taking this Court to Annexure-I/1 of the counter affidavit, Sri K.M.H. Niamati, learned Advocate submitted that the petitioner has sought to proffer explanation on each point cited in the Memorandum of Charges. A false plea has been set up by the counsel for the petitioner in this respect. This fact would be manifest from the following written statement of defense filed before the Disciplinary Authority by the petitioner:

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“ I was always in touch with Godhra Regional Office

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through e-mail and letters. Sir, My plight may not please be construed as disobedience, nor did I intend to cause any difficulties.”

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6.1. He submitted that the story to draw compassion of the bank authorities alluded to by the petitioner is tell-tale. Attention of this Court is drawn by Sri K.M.H. Niamati, learned Advocate to Annexure-O/1, which is an application addressed to the Branch Manager, Gandhi

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Chowk Branch, Godhra, Bank of Baroda wherein it has been stated thus:

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“*** In spite of all my personal difficulties I joined my new place of posting on 16.03.2021 and is discharging my duties since then. ***

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As I am an outsider and resident of Odisha, Bhubaneswar, I was staying in a hotel near the Branch since 26.03.2021. I was sitting idle in the hotel which (is) creating mental stress.

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To add to my woes further, my ailing old aged father who is also staying all alone since my joining here is suffering from mental agony having COVID positive cases in my branch, fearing for my health as I am an unmarried lady staying alone in a hotel at Godhra.

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Moreover on 29.03.2021, i.e., today morning unfortunately I have sprained my ankle as I slipped in the bathroom.”

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6.2. The said application does not reveal that the officials of the hotel have ever instructed her to vacate but contrary fact has been asserted in the writ petition. It is also inconceivable that during the pandemic (COVID-19) any person having given shelter ever asked any person to vacate. It is concocted story built up by the petitioner that a hotel at Godhra (Gujarat) would have asked her to vacate during the pandemic. The fact of non-joining at Godhra (Gujarat) has been admitted at different paragraphs of writ petition.

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6.3. As regards major allegation of non-observance of principles of natural justice in terms of Regulation 6 of the Regulations, 1976, it is urged that mere presence of the term ―shall‖ is not indicative that the provision is mandatory. Rather, such a provision is directory in nature in view of Bhavnagar University Vrs. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111. Every infraction of principles of natural justice may not lead to infer that the entire proceeding is vitiated inasmuch as no prejudice has been pleaded by the petitioner.

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6.4. It is fact that the petitioner was afforded ample opportunities vide Letters dated 04.11.2019, 09.09.2020 and 14.09.2020 advising her to report to duty. Referring to what has been asserted in paragraph 7 of the counter affidavit it has been urged by Sri K.M.H. Niamati, learned Advocate that, ―all the procedures were followed in a disciplined manner and no violation was made by the bank. The allegation regarding obtaining a letter under coercion is nothing but a blatant lie and a product of after-thought and is averred just to make out a false and frivolous case.‖ The learned counsel has emphatically submitted that such allegation was never made either during inquiry or at any subsequent level.

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6.5. Sri K.M.H. Niamati, learned Advocate referred to the Inquiry Finding Report dated 18.03.2021 (Annexure-8), wherein the following has been recorded:

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“Undersigned asked the Presenting Officer whether she wants to submit any additional document in support of the case, Presenting Officer informed that she does not want to submit any other documents .

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***

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Undersigned further asked CSO (Charged Officer) whether she wants to bring any witness in her case. CSO informed that she does not want to bring any witness in the case to defend.

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advised the CSO that no Undersigned further opportunities will be given to demand additional defence documents or to bring any witness in this case. The CSO agreed for the same and submit a letter dated 25.02.2021 and marked as DE-7/1-2. In same letter CSO accepted the genuineness of the documents submitted today by Presenting Officer and confirmed that no need of verification from original.

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Undersigned has given equal opportunities to both the parties. Both the parties Presenting Officer and CSO are not having anything to submit/say in the case (matter). Therefore, regular hearing is finally concluded with the consent of all concerned.

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The parties have been allowed to submit their written briefs. First the PO has to submit her written brief by 05.03.2021. CSO has also been instructed to submit his written brief to undersigned within ten days from date of receiving of written brief from PO, latest by 15.03.2021.”

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6.6. Faced with such situation, the Inquiring Authority had no occasion to adjourn the matter for further inquiry and accordingly as conceded by the petitioner and the

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Presenting Officer, he has concluded the inquiry affording reasonable opportunity to the charged officer (petitioner). Therefore, at this stage, in this writ proceeding such factual details could not have been disputed by the petitioner. The Disciplinary Authority having taken into consideration all the evidence available on record vis-à-vis each allegation contained in the Memorandum of Charges, there is no scope for this Court to show indulgence in the instant matter.

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6.7. Under the aforesaid premise, Sri K.M.H. Niamati, learned counsel insisted for not to entertain this writ petition as nothing is demonstrated by the petitioner to show that there was flaw in decision making process. He submitted that reappreciation of evidence is inappropriate inasmuch as this Court does not sit in appeal against the orders of the Disciplinary Authority or the Appellate Authority. At this stage if the confirmed order of punishment in appeal is interfered with, it would tantamount to exceeding the jurisdiction conferred under Article 226/227 of the Constitution of India.

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Analysis and discussion:

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7. As to the issue raised by Sri Sidheswar Mallik, learned counsel that under coercion the letter/application was furnished to the Inquiring Authority by the petitioner

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during inquiry is a disputed fact, which, in the opinion of this Court need not be gone into. Furthermore, the factual finding recorded by the Inquiry Authority could successfully be demolished neither before the Disciplinary Authority nor before the Appellate Authority.

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7.1. Having the occasion to go through the contents of ―appeal for review against imposition of penalty under Regulation 17 of Bank of Baroda Officer Employees‘ (Discipline and Appeal) Regulations vide Letter No.BZ:HRM:10:333, dated 30.04.2021‖ placed at Annexure-13 of the writ petition, this Court could ascertain that no denial is made with regard to finding of the Inquiring Authority that she admitted not to present any further documents and not to examine any witness in her defense. Further nothing whatsoever is found in the appeal memo to suggest that the letter/application obtained under coercion as alleged in the writ petition. The fact that such application was obtained under coercion is manifestly fallacious. It is also not disputed nor denied in the appeal memo that she did not have ―access to the e-mail ID‖. Rather it was admitted fact vide statement of defense of the petitioner available at Annexure-I/1 to the counter affidavit that she was in constant touch with Godhra Regional Office via e-mail and letters. Reading of said document filed in defense

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reveals that it is a statement of the petitioner that ―my conscience did not allow me to resume duties leaving my handicapped father to his fate during the pandemic time‖. This Court, therefore, finds force in the submission of Sri K.M.H. Niamati, learned Advocate that Inquiry Finding Report was prepared and submitted to the Disciplinary Authority after inquiry is conducted duly and affording reasonable and sufficient opportunities.

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7.2. Further factual aspect which got confirmed in the appeal is that the terms of Circular dated 29.03.2019 would not be attracted to the present fact-situation. Medical Certificate of empanelled Medical Officer of Bank of Baroda at Annexure-N/1 to the counter affidavit reveals as follows:

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“This is to certify that the document presented before me for candidate Dr. Raj Kishor Nath, certified by Dr. S.C. Mishra for disability states that he is disabled and having short limb.

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The disability of Dr. Raj Kishor Nath is due to multiple malunited fractures.

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The Circular of Bank of Baroda dated 29.03.2019 describes disabilities due to various reasons does not include disabilities due to bone related issues.”

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7.3. Going by the rejoinder affidavit it is not forthcoming that such an opinion of the panel Medical Officer has been

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disputed before none of the authorities (Inquiring Authority/Disciplinary Authority/Appellate Authority) nor before this Court.

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7.4. Apt here to refer to Bharat Singh Vrs. State of Haryana, AIR 1988 SC 2181 , wherein it has been laid down that when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.

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7.5. This Court vide Order dated 19.01.2009 passed in the matter of Steel Authority of India Ltd. Vrs. State of Orissa, O.J.C. Nos. 675 & 4568 of 1996 observed that writ petition must contain all necessary pleadings disclosing all facts and the rights in favour of the petitioner. It

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must disclose as to when and how the cause of action had arisen and any action or order passed by the opposite parties which has created any hindrance to the rights of the petitioner. If the aforesaid particulars are not disclosed, the Court should not entertain the writ petition.

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7.6. The benefit of ―exemption from routine transfer/ rotational transfer by employees who are care giver of dependent daughter/son/parents/spouse/brother/sister and have bearing on the systematic rehabilitation of parents with disabilities, subject to administrative constraints‖ in terms of Circular dated 29.03.2019 has application to such persons having ―specified disabilities‖ as enumerated in the Schedule appended to the Rights of Persons with Disabilities Act, 2016. Since the nature of disabilities certified by the doctor based on which the petitioner had submitted her representation for consideration of cancellation of transfer did not fall with the ambit of ―specified disabilities‖, Sri K.M.H. Niamati, learned Advocate for the opposite parties has seemly contended that the competent authority has rejected the representation citing plausible reason.

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7.7. The aforesaid factual position and contents of the Inquiry Finding Report as taken care of in the Disciplinary Proceeding leading to award of punishment

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which culminated in rejection of appeal does not deserve indulgence in the writ jurisdiction.

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8. The next contention of Sri Sidheswar Mallik, learned Advocate for the petitioner that the inquiry could not have been concluded on one day in contravention of Clause 9 of Regulation 6 of the Regulations, 1976, though seems attractive, is liable to be repelled for the reason that every infraction of procedure does not vitiate or invalidate proceeding which is properly initiated.

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8.1. In Clause 9 of Regulation 6, it has been stipulated that,

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“if the officer employee does not plead guilty, the Inquiring Authority shall adjourn the case to a later date not exceeding 30 days or within such extended time as may be granted by the Inquiring Authority”.

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8.2. It is provided in Clause 10 of Regulation 6 as follows:

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“10. (a) The Inquiring Authority shall, where the officer employee does not admit or any of the articles of charge, furnish to such officer employee a list of documents by which, and a list of witnesses by whom, the articles of charges are proposed to be proved.

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(b) The Inquiring Authority shall also record an order that the officer employee may for the purpose of preparing his defense

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(i) inspect within 5 days of the order or within such further time not exceeding

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five days as the Inquiring Authority may allow the documents listed;

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(ii) submit a list of documents and witnesses that he wants for the Inquiry;

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(iii) be supplied with copies of statements of witnesses, if any, recorded earlier, and the Inquiring Authority shall furnish such copies not later than three days before the commencement of examination of the witnesses by the Inquiring Authority;

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(iv) give a notice within 10 days of the order or within such further time not exceeding 10 days as the Inquiring Authority may allow for the discovery or production of documents referred to in item (ii).

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NOTE:

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The relevancy of the documents and the examination of the witnesses referred to in Item (ii) shall be given by the officer employee concerned.”

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8.3. With the factual scenario already discussed in the foregoing paragraphs it is settled that the petitioner was specifically asked during the course of inquiry with respect to examination of witness and production of documents to adduce evidence, but she declined. It is fact on record that an application/letter to this effect was also submitted by the petitioner, which closes all possibilities of affording further opportunity. This Court is satisfied that there was substantial compliance of

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provisions of the Regulations, 1976, particularly so when there was no challenge with respect to such aspect before the higher Authorities.

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8.4. In the case of Rajendra Singh Vrs. State of Madhya Pradesh, (1996) Supp.4 SCR 393 = (1996) 5 SCC 460 it has been observed as follows:

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“It has been held by a Constitution Bench of this Court in Har Shankar Vrs. Dy. Excise and Taxation Commr., (1975) 1 SCC 737 = AIR 1975 SC 1121 that: (SCC p. 748, para 22)

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„[T]he writ jurisdiction of High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred.‟

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*** While examining complaints of violation of statutory rules and conditions, it must be remembered that violation of each and every provision does not furnish a ground for the court to interfere. The provision may be a directory one or a mandatory one. In the case of directory provisions, substantial compliance would be enough. Unless it is established that violation of a directory provision has resulted in loss and/or prejudice to the party, no interference is warranted. Even in the case of violation of a mandatory provision, interference does not follow as a matter of course. A mandatory provision conceived in the interest of a party can be waived by that party, whereas a mandatory provision conceived in the interest of the public cannot be waived by him. In other words, wherever a complaint of violation of a mandatory provision is made, the court should enquire— in whose interest is the

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provision conceived. If it is not conceived in the interest of the public, question of waiver and/or acquiescence may arise— subject, of course, to the pleadings of the parties. This aspect has been dealt with elaborately by this Court in State Bank of Patiala Vrs. S.K. Sharma, (1996) 3 SCC 364 and in Krishan Lal Vrs. State of J&K, (1994) 4 SCC 422 on the basis of a large number of decisions on the subject. Though the said decisions were rendered with reference to the statutory rules and statutory provisions (besides the principles of natural justice) governing the disciplinary enquiries involving government servants and employees of statutory corporations, the principles adumbrated therein are of general application. It is necessary to keep these considerations in mind while deciding whether any interference is called for by the court— whether under Article 226 or in a suit. The function of the Court is not a mechanical one. It is always a considered course of action.”

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8.5. Reliance is placed by Sri Sidheswar Mallik, learned Advocate on Bilaspur Raipur K.G. Bank Vrs. Madan Lal, (2015) 8 SCC 461 wherein it has been laid down that

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“onus lies on the prosecution to prove the allegation made in the charge memo. The prosecution/department did not examine any witness to prove the documents”.

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8.6. Further case law, viz., Roop Singh Negi Vrs. Punjab National Bank, (2009) 2 SCC 570 cited by him indicates that,

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“13. The High Court noticed the decision of this Court in Kuldeep Singh Vrs. Commr. of Police, (1999) 2 SCC

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10, Narinder Mohan Arya Vrs. United India Insurance Co. Ltd., (2006) 4 SCC 713 and Bhagwati Prasad Dubey Vrs. Food Corpn. of India, 1987 Supp SCC 579 = AIR 1988 SC 434 whereupon reliance has been placed by the learned counsel appearing on behalf of the appellant, and held:

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„All the aforesaid decisions are not directly attracted to the present facts though the law laid down applies to the present facts. But in the facts of the case it is not a case of no evidence but only in regard to the conclusions drawn based upon the evidence which reappraisal cannot be done by this Court.

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Coming to the arguments that there can be no reappraisal of the evidence by this Court once the findings have been given by the enquiry officer considering the evidence, it is not the case of the petitioner that there was no evidence at all as against him led before the enquiry officer, but the dispute is in regard to the conclusion drawn by the enquiry officer based upon evidence. According to law even if two views are possible to be drawn against the petitioner on the basis of the enquiry report one which has been drawn by the enquiry officer cannot be held to be wrong taking the plea that the second view was also possible to be drawn based upon evidence.

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The decision of the Hon‟ble Apex Court in Narinder Mohan Arya case, (2006) 4 SCC 713 clearly lays down that the proceedings of departmental enquiry report are quasi-criminal in nature. Therefore, the guilt of the delinquent official is not required to be proved beyond any reasonable doubt as in a criminal case.

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We have considered the report of the enquiry officer and the penalty imposed by the Bank is based upon evidence as such it is not open to this Court to consider that some other view was also possible and since it was not a case of no evidence therefore there cannot be reappraisal of evidence or draw its own conclusion by this Court based upon evidence. The findings recorded by the enquiry officer and the punishment imposed by the respondent Bank or its officers call for no interference by this Court and as such there is no merit in the petition which is dismissed accordingly.‟

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14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.”

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8.7. Yet another decision cited by the counsel for the petitioner was State of U.P. Vrs. Saroj Kumar Sinha, (2010) 2 SCC 772, which runs thus:

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“27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the Government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.

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28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

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29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.

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30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a Government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/ removal from service.

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31. In Shaughnessy Vrs. United States, 97 L Ed 956 = 345 US 206 (1952) (Jackson, J.), a Judge of the United States Supreme Court has said: (L Ed p. 969)

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„*** Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied.‟

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32. The affect of non-disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, 5th Edn., p. 442 as follows:

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„If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked.‟

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In our opinion the aforesaid maxim is fully applicable in the facts and circumstances of this case. ***”

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8.8. By referring to Nirmala J. Jhala Vrs. State of Gujarat, (2013) 4 SCC 301 and Kasinath Vrs. Union of India, AIR 1986 SC 2118, it has been submitted by the learned counsel for the petitioner that disciplinary proceeding being in the nature of quasi judicial and quasi criminal proceeding, findings of the Inquiring Authority could not be based on no evidence and failure to supply the documents to the delinquent on which prosecution relies to establish charges would vitiate inquiry.

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8.9. There is no cavil with respect to such legal position as set forth in the case laws referred to by the learned counsel for the petitioner. The decisions relied on by Sri

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Sidheswar Mallik, learned Advocate for the petitioner are distinguishable on facts and the principles enunciated by the Hon‘ble Supreme Court in the said cases goes against the cause of petitioner. It has not been disputed nor denied that the petitioner was present before the Inquiring Authority for the purpose of inquiry. She was instructed to examine the witnesses and adduce evidence by producing documents, which she refused. She has also replied with affirmatively that there is no necessity to verify the genuineness of the documents available on record. Therefore, the decisions relied upon by the learned counsel for the petitioners being rendered on different set of facts, they are not applicable to the present context.

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8.10. At this juncture, it may be apt to have reference to Union of India Vrs. Arulmozhi Iniarasu, (2011) 9 SCR 1 = (2011) 7 SCC 397 wherein it has been made explicitly clear that observations of Courts are neither to be read as Euclid‘s theorems nor as provisions of Statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases. Reference can be had to Bhavnagar

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University Vrs. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 wherein it has been laid down as follows:

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“A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. [See Ram Rakhi Vrs. Union of India, AIR 2002 Del 458 (FB), Delhi Admn. (NCT of Delhi) Vrs. Manohar Lal, (2002) 7 SCC 222 = AIR 2002 SC 3088, Haryana Financial Corpn. Vrs. Jagdamba Oil Mills, (2002) 3 SCC 496 and Nalini Mahajan (Dr) Vrs. Director of Income Tax (Investigation), (2002) 257 ITR 123 (Del).]”

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8.11. In the present case, this Court has already been taken to the Inquiry Finding Report as referred to by Sri K.M.H. Niamati, learned Advocate for the opposite party to drive home that ample opportunities have been afforded to the petitioner to examine witnesses as also furnish additional documents. When the Inquiry Authority during the inquiry has specifically asked the petitioner to substantiate her claim by adducing evidence to which she declined, before this Court learned counsel for the petitioner has made unwarranted request to hold that entire proceeding is vitiated for want of adherence to procedures prescribed under Regulation 6 of the Regulations, 1976. It is noteworthy to quote from the Inquiry Finding Report that:

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“Read out the minutes of the inquiry proceedings of today, understood and found correct by the PO and CSO and accepting by putting signatures hereunder in sound state of mind and without any pressure.”

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8.12. Noteworthy here to have reference to Galada Power & Telecommunication Ltd. Vrs. United India Insurance Co. Ltd. , (2016) 14 SCC 161, cited by Sri K.M.H. Niamati, learned Advocate for the opposite parties, wherein the following is the observation of the Hon‘ble Supreme Court of India:

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“14. In this context, we may with profit, reproduce a passage from Halsbury‟s Laws of England, Vol. 16(2), 4^th Edn., Para 907, which reads as follows:

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„The expression „waiver‟ may, in law, bear different meanings. The primary meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may arise from a party making an election, for example, whether or not to exercise a contractual right … Waiver may also be by virtue of equitable or promissory estoppel; unlike waiver arising from an election, no question arises of any particular knowledge on the part of the person making the representation, and the estoppel may be suspensory only … Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver,

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but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it.‟

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15. In Manak Lal Vrs. Prem Chand Singhvi, AIR 1957 SC 425, it has been held: (AIR p. 431, para 8)

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„8. *** It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. As Sir John Romilly, M.R. has observed in Vyvyan Vrs. Vyvyan (1861) 30 Beav 65 = 54 ER 813] : (Beav p. 75 : ER p. 817)

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„*** Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim.‟ ***‟

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16. Yet again, in Krishna Bahadur Vrs. Purna Theatre, (2004) 8 SCC 229, it has been ruled that: (SCC p. 233, para 10)

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„10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory

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right, however, may also be waived by his conduct .‟

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17. In State of Punjab Vrs. Davinder Pal Singh Bhullar, (2011) 14 SCC 770, a two-Judge Bench speaking about the waiver has opined: (SCC pp. 41-42, paras 41-42)

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„41. Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. (Vide Dawsons Bank Ltd. Vrs. Nippon Menkwa Kabushiki Kaisha, AIR 1935 PC 79 = (1934-35) 62 IA 100 = 1935 SCC OnLine PC 8, Basheshar Nath Vrs. CIT, AIR 1959 SC 149, Mademsetty Satyanarayana Vrs. G. Yelloji Rao, AIR 1965 SC 1405, Associated Hotels of India Ltd. Vrs. S.B. Sardar Ranjit Singh, AIR 1968 SC 933, Jaswantsingh Mathurasingh Vrs. Ahmedabad Municipal Corpn., 1992 Supp (1) SCC 5, Sikkim Subba Associates Vrs. State of Sikkim, (2001) 5 SCC 629] and Krishna Bahadur Vrs. Purna Theatre, (2004) 8 SCC 229)

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42. This Court in Municipal Corpn. of Greater Bombay Vrs. Hakimwadi Tenants‟ Assn., 1988 Supp SCC 55 considered the issue of waiver/

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acquiescence by the non-parties to the proceedings and held: (SCC p. 65, paras 14-15)

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„14. *** In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case. ***

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15. There is no question of estoppel, waiver or abandonment. There is no specific plea of waiver, acquiescence or estoppel, much less a plea of abandonment of right. That apart, the question of waiver really does not arise in the case. Admittedly, the tenants were not parties to the earlier proceedings. There is, therefore, no question of waiver of rights by Respondents 4-7 nor would this disentitle the tenants from maintaining the writ petition.‟ ***”

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8.13. The Hon‘ble Supreme Court of India has expounded with respect to waiver of mandatory requirement in the case of Commissioner of Customs Vrs. Virgo Steels, (2002) 4 SCC 316 , which is to the following effect:

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“9. The next question for our consideration is : can a mandatory requirement of a statute be waived by the party concerned? In answering this question, we are aided by a catena of

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judgments of this Court as well as of the Privy Council. We will first refer to the judgment of the Privy Council which has been consistently followed by the Supreme Court in a number of subsequent cases involving similar points. In Vellayan Chettiar Vrs. Govt. of Province of Madras, AIR 1947 PC 197 = 74 IA 223] the Privy Council held that even though Section 80, CPC is mandatory, still non-issuance of such notice would not render the suit bad in the eye of the law because such non-issuance of notice can be waived by the party concerned. In the said judgment, the Privy Council held that the protection provided under Section 80 is a protection given to the person concerned and if in a particular case that person does not require the protection he can lawfully waive his right.

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10. In the case of Dhirendra Nath Gorai Vrs. Sudhir Chandra Ghosh, AIR 1964 SC 1300 = (1964) 6 SCR 1001 this Court followed the judgment of the Privy Council in Vellayan Chettiar, AIR 1947 PC 197 = 74 IA 223 and held that even though the requirement of Section 35 of the Bengal Moneylenders Act is mandatory in nature, such mandatory requirement could be waived by the party concerned. On a true construction of Section 35 of that Act, this Court held that the said section is intended only for the benefit of the judgment-debtor and, therefore, he can waive the right conferred on him under the said section.

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11. In the case of S. Raghbir Singh Gill Vrs. S. Gurcharan Singh Tohra, 1980 Supp SCC 53 this Court negatived an argument that the requirement of Section 94 of the Representation of the People Act,

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1951 cannot be waived. This argument was based on the principle that public policy cannot be waived. Rejecting the said argument, this Court held that the privilege conferred or a right created by a statute, if it is solely for the benefit of an individual, he can waive it. It also held that where a prohibition enacted is founded on public policy, courts should be slow to apply the doctrine of waiver but if such privilege granted under the Act is for the sole benefit of an individual as is the case under Section 94 of the Representation of the People Act, the person in whose benefit the privilege was enacted has a right to waive it because the very concept of privilege inheres a right to waiver.

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12. In Krishan Lal Vrs. State of J&K, (1994) 4 SCC 422 this Court while considering the requirement of furnishing a copy of inquiry proceedings under Section 17(5) of the J&K (Government Servants) Prevention of Corruption Act, 1962 held following the judgment in V. Chettiar case, AIR 1947 PC 197 = 74 IA 223 and D.N. Gorai, AIR 1964 SC 1300 = (1964) 6 SCR 1001 that though the requirement mentioned in Section 17(5) of the Act was mandatory, the same can be waived because the requirement of giving a copy of the proceedings of the inquiry mandated by Section 17(5) of the Act is one which is for the benefit of the individual concerned.

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13. In Martin & Harris Ltd. Vrs. VIth ADJ, (1998) 1 SCC 732 this Court while considering the provision of Section 21(1)(a) first proviso of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 negatived a contention advanced on behalf of the appellant therein that the said

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provision was for public benefit and could not be waived. It held that it is true that such benefit enacted under the said proviso covered a class of tenants, still the said protection would be available to a tenant only as an individual, hence, it gave the tenant concerned a locus poenitentiae to avail the benefit or not. It also held that the benefit given under the said section was purely personal to the tenant concerned, hence, such a statutory benefit though mandatory, can be waived by the person concerned.

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14. From the ratio laid down by the Privy Council and followed by this Court in the above-cited judgments, it is clear that even though a provision of law is mandatory in its operation if such provision is one which deals with the individual rights of person concerned and is for his benefit, the said person can always waive such a right. ”

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8.14. After the petitioner declined to adduce additional evidence, the Inquiring Authority having read over the minutes of the inquiry closed the matter and submitted the Inquiry Finding Report to the Disciplinary Authority.

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8.15. Significant it is to take notice that the fact as pleaded in the writ petition and admitted by parties shows that the petitioner was occupying a post of Manager (Scale-I). She, being not a rustic nor uneducated or illiterate person, cannot be allowed to say that the letter/application was obtained by the Inquiring Authority under coercion. It is only to be recorded that a false claim has been set up by the petitioner in the writ

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petition. The genuineness of the documents presented before the Inquiring Authority were not alleged to be incorrect. On the contrary, the petitioner did admit such fact before the Inquiring Authority and did not dispute the documents. The point-wise reply in the statement of defense and other documents of the petitioner showing that ―my conscience did not allow me to resume duties leaving my handicapped father to his fate during the pandemic time‖ would speak volumes about her intent to work and resumption in duty. Each ground of allegation has been taken into account with reference to explanation furnished by the petitioner to the Disciplinary Authority. The Disciplinary Authority considering such explanation and weighing the balance meticulously made observations and found that the petitioner did not report to the duty which entailed punishment of ―removal from service which shall not be a disqualification from future employment‖.

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8.16. This Court would wish to put a caveat, a person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim allegans suam turpetudinem non est audiendus . If the petitioner has committed a wrong by not correctly pleading the averment, (s)he cannot be permitted to take the benefit of her own wrong. Regard may be had to G.S. Lamba Vrs. Union of India, AIR 1985 SC 1019; Narender

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Chadha Vrs. Union of India, AIR 1986 SC 638; Jose Vrs. Alice, (1996) 6 SCC 342; T. Srinivasan Vrs. T. Varalakshmi, (1998) 3 SCC 112 . The Court cannot recognize a claim or cause of action based on a turpitude. Therefore, a person approaching the Court has to satisfy that his action/inaction was lawful, otherwise, (s)he cannot be heard. In such an eventuality, the legal maxim ex turpi causa non oritur actio applies. See also, District Basic Education Officer Vrs. Dhananjai Kumar Shukla, Special Appeal No. 1426 of 2005 vide Judgment dated 05.12.2005 of Allahabad High Court, 2006 (2) ILR-All 630 .

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8.17. This Court, having gone through in detail the contents of the orders of the Disciplinary Authority as also the Appellate Authority, finds that each allegation has been considered with reference to submissions made by the petitioner-delinquent vis-à-vis findings of the Inquiring Authority and it is observed that, in order to maintain discipline in the organisation, the petitioner was expected to obey the reasonable and lawful order of her superiors and she was required to obtain prior permission before proceeding on leave. She was under prolonged unauthorised absence from duty which led to initiation of Disciplinary Proceeding and procedure prescribed under Regulation 6 of the Regulations, 1976 has been adopted during each stage till the same

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culminated in award of punishment. Such finding of fact having been affirmed in the appeal, there is little scope for this Court to interfere in exercise of power of judicial review.

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9. It was emphatically argued by Sri Sidheswar Mallik, learned Advocate that as per Clause 9 of the Regulation 6 of the Regulations, 1976, the use of the word ―shall‖ makes the provision mandatory and the Inquiring Authority having not deferred the inquiry on 25.02.2021, he violated said regulation and thereby he urged that entire proceeding, being vitiated, the orders of the Disciplinary Authority as also the Appellate Authority would not be sustained.

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9.1. It is ascertained from paragraph 9 of the writ petition that ―the entire inquiry proceeding was concluded within an hour. The Inquiry Authority submitted his report to the Disciplinary Authority on 18.03.2021‖. It is admitted that copy of said report was also communicated to the petitioner on 22.03.2021 with instruction to submit her response. In the considered view of this Court such a course could not be said to be ignominious.

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9.2. With the background fact that the petitioner declined to adduce further evidence before the Inquiring Authority, now, this Court ventures to examine the true purport of ―shall‖ used in Clause 9 of Regulation 6.

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9.3. In Sainik Motors Vrs. State of Rajasthan , (1962) 1 SCR 517 = AIR 1961 SC 1480, it is expounded as follows:

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“12. It is, however, contended that though the section creates an option, the Rules and the notification make the payment compulsory, and attention is drawn to the word “shall” used both in Rules 8 and 8-A and the notification whereas the words in the two provisos to Section 4 are “may accept”. The word „shall‟ is ordinarily mandatory, but it is sometimes not so interpreted if the context or the intention otherwise demands. In In re Lord Thurlow Ex Parte Official Receiver, 1895 1 QB 724 Lord Esher, M.R. observed at p. 729 that „the word „shall‟ is not always obligatory. It may be directory‟, and Lopes, L.J. at p. 731 added: „It is clear that the word „shall‟ is not always used in a mandatory sense. There is abundance of authority to the contrary in cases where it has been held to be directory only.‟

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13. It was thus that the word “shall” was held to be directory only, in that case, by Coutts Trotter, C.J., in Manikkam Pattar Vrs. Nanchappa Chettiar, (1928) MWN 441 by Russel, J., in In re Rustom, (1901) ILR 26 Bom 396 = (1901) 3 Bom LR 653 by Venkatasubba Rao, J., in Jethaji Peraji Firm Vrs. Krishnayya, (1929) ILR 52 Mad 648, 656 and by the Judicial Committee in Burjore and Bhavani Pershad Vrs. Mussumat Bhagana, (1883) LR II IA 7.”

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9.4. The use of the word ‗shall‘ by itself is not conclusive to determine whether the provision is mandatory or directory. One has to ascertain the object which is required to be served by the provisions contained in the

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statute and its design and context in which it is enacted. The use of the word ‗shall‘ is ordinarily indicative of mandatory nature of the provision, but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. [ Salem Advocate Bar Association Vrs. Union of India, AIR 2005 SC 3353 .]

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9.5. The question as to whether a statute is mandatory or directory would depend upon the statutory scheme. It is now well known that use of the expression ―shall‖ or ―may‖ by itself is not decisive. The Court while construing a statute must consider all relevant factors including the purpose and object the statute seeks to achieve. Refer, P.T. Rajan Vrs. T.P.M. Sahir, (2003) 8 SCC 498; UP State Electricity Board Vrs. Shiv Mohan Singh, (2004) 8 SCC 402; Ashok Lanka Vrs Rishi Dixit, AIR 2005 SC 2821 .

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9.6. A well settled rule of interpretation of the statutes is that the use of the word ―shall‖ in a statute does not necessarily mean that in every case it is mandatory that unless the words of the statute are literally followed, the proceeding or the outcome of the proceeding, would be invalid. It is not always correct to say that if the word ―may‖ has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid and

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that when a statute uses the word ―shall‖, prima facie , it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. The principle of literal construction of the statute alone in all circumstances without examining the context and scheme of the statute may not serve the purpose of the statute. Reference may be had to State of U.P. Vrs. Manbodhan Lal Srivastava, AIR 1957 SC 912; State of U.P. Vrs. Babu Ram Upadhya, AIR 1961 SC 751; Reserve Bank of India Vrs. Peerless General Finance and Investment Co. Ltd., (1987) 1 SCC 424; C. Bright Vrs. District Collector, (2020) 7 SCR 997 .

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9.7. It is in Krishna Kumar Mediratta Vrs. Phulchand Agarwala , (1977) 2 SCC 5 laid down that,

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“All that we have here is the word “shall” used in Rule 9(2). But, this Court has repeatedly held that the use of the word “shall” in imposing a duty is not conclusive on the question whether the duty imposed is mandatory or directory. Moreover, that question was only incidentally involved here. It is not the breach of every mandatory duty in performing a prescribed act that could make an action totally ineffective or void ab initio. The filing of the application is one thing and completion of some annexed duty, which is legally separable, is another unless a statute or a rule provides otherwise.”

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9.8. Mere use of the word ‗shall‘ is not conclusive in every case for holding that the provision is mandatory. If a provision is mandatory, the act contemplated by the said

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provision is to be done in the manner prescribed but in so far as directory provisions are concerned, even though they too are meant to be complied with and not to be ignored, but in a given case, if they have not been adhered to but it is established that there has been substantial compliance of the requirement, the action taken would not be void or illegal. Reference is made to Khanna Scooters Vrs. Assistant STO, (1988) 69 STC 103 (MP) .

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9.9. Considering the argument of Sri Sidheswar Mallik, learned Advocate appearing on behalf of the petitioner that Clause 9 of Regulation 6 of the Regulations, 1976 clearly mandates adjournment of 30 days is required to be granted in every case by Inquiring Authority is incorrect appreciation of provision in the aforesaid conspectus that the meaning of ―shall‖ need not always be construed as mandatory. In the present context it may be fruitful to have reference to Bhavnagar University Vrs. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 wherein it has been held:

¶282

“42. We are not oblivious of the law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on the part of the statutory authorities within such specified time is expressly provided, it must be held to be imperative.

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43. In Sutherland‟s Statutory Construction, 3rd Edn., Vol. 3, at p. 102 the law is stated as follows:

¶286

„*** unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of time must be considered a limitation of the power of the officer.‟

¶287

At p. 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow non-compliance with the provision. At p. 111 it is stated as follows:

¶288

„As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive.‟

¶289

(See also Crawford on Statutory Construction, Article 269 at p. 535.)

¶290

44. In Dattatraya Moreshwar Vrs. State of Bombay, (1952) 1 SCC 372 = AIR 1952 SC 181 it was held as under: (AIR p. 185, para 7)

¶291

„[G]enerally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of statute relate to the performance of a

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public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.‟

¶295

45. In Craies on Statute Law, 8th Edn., at p. 262, it is stated thus:

¶296

„ „***It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.‟ *** that in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory.‟

¶297

46. In the aforementioned backdrop, we may usefully refer to the decision of this Court in Land Acquisition Officer, City Improvement Trust Board case, (1976) 4 SCC 9 wherein it has been stated: (SCC p. 18, para 22)

¶298

„22. There was some argument on the meaning of the words „so far as they are applicable‟, used in Section 27 of the Bangalore Act. These words cannot be changed into „insofar as they are specifically mentioned‟ with regard to the procedure in the Acquisition Act. On the other

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hand, the obvious intention, in using these words, was to exclude only those provisions of the Acquisition Act which become inapplicable because of any special procedure prescribed by the Bangalore Act (e.g. Section 16) corresponding with that found in the Acquisition Act [e.g. Section 4(1)]. These words bring in or make applicable, so far as this is reasonably possible, general provisions such as Section 23(1) of the Acquisition Act. They cannot be reasonably construed to exclude the application of any general provisions of the Acquisition Act. They amount to laying down the principle that what is not either expressly, or, by a necessary implication, excluded must be applied. It is surprising to find misconstruction of what did not appear to us to be reasonably open to more than one interpretation.‟ ***”

¶302

9.10. As Clause 9 of Regulation 6 does not prescribe consequence of non-grant of adjournment of thirty days by the Inquiring Authority, applying said ratio to the language employed in said Clause 9 of Regulation 6 would unequivocally lead to understand that the provision is directory.

¶303

9.11. Thus understood, the perception of the petitioner that notwithstanding her admission that she does not wish to adduce further evidence or examine any witness in course of inquiry, the Inquiring Authority was required

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to defer the inquiry beyond thirty days is misconceived and without proper comprehension.

¶307

Judicial review against confirming appellate order in connection with punishment awarded in the disciplinary proceedings:

¶308

10. The principles regarding exercise of judicial review with respect to disciplinary proceeding are discussed hereunder.

¶309

10.1. It is well known principle that, if two views are possible, then obviously the error will not be an error apparent from the record. See, Maharashtra State Seeds Corporation Ltd. Vrs. Hariprasad Drupadrao Jadhao , (2006) 3 SCC 690.

¶310

10.2. In Central Council for Research in Ayurvedic Sciences Vrs . Bikartan Das , (2023) 11 SCR 731 = 2023 INSC 733 following passage has been quoted from Satyanarayan Laxminarayan Hegde Vrs . Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 = 1960 SCR 890 in order to cull out true purport of certiorari jurisdiction vis-à-vis interference on the ground where two views are possible:

¶311

“An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self-evident

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and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.

¶315

¶316

This Court in Parry and Company Limited Vrs. Commercial Employees‟ Association, Madras, (1952) 1 SCC 449 = AIR 1952 SC 179, held:

¶317

“14. The records of the case do not disclose any error apparent on the face of the proceeding or any irregularity in the procedure adopted by the Labour Commissioner which goes contrary to the principles of natural justice. Thus there was absolutely no grounds here which would justify a superior court in issuing a writ of certiorari for removal of an order or proceeding of an inferior tribunal vested with powers to exercise judicial or quasi-judicial functions. What the High Court has done really is to exercise the powers of an appellate court and correct what it considered to be an error in the decision of the Labour Commissioner. This obviously it cannot do. The position might have been different if the Labour Commissioner had omitted to decide a matter which he was bound to decide and in such cases a mandamus might legitimately issue commanding the authority to determine questions which it left undecided [Board of Education Vrs. Rice, [1911] A.C. 179 (HL)]; but no certiorari is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is

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erroneous. The judgment of the High Court, therefore, in our opinion, is plainly unsustainable.”

¶321

10.3. In Rattan Enterprises Vrs. State of Odisha, 2023 SCC OnLine Ori 2342 reference was made to very many decisions of Hon‘ble Supreme Court of India inter alia General Manager, Electrical, Rengali Hydro Electric Project, Odisha Vrs . Giridhari Sahu , (2019) 10 SCC 695 = (2019) 12 SCR 293 to have clear authority on the issue of writ of certiorari. It has been explained that an erroneous decision in respect of a matter which falls within the authority of the Tribunal would not entitle a writ applicant for a writ of certiorari. However, if the decision relates to anything collateral to the merit, an erroneous decision upon which, would affect its jurisdiction, a writ of certiorari would lie. A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law.

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10.4. In Union of India Vrs. P. Gunasekaran , (2015) 2 SCC 610 = AIR 2015 SC 545 , the Hon‘ble Supreme Court of India propounded the following guidelines:

¶325

“The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:

¶326

a. the enquiry is held by a competent authority;

¶327

b. the enquiry is held according to the procedure prescribed in that behalf;

¶328

c. there is violation of the principles of natural justice in conducting the proceedings;

¶329

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

¶330

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

¶331

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

¶332

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

¶333

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

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i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not:

¶337

(i). re-appreciate the evidence;

¶338

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

¶339

(iii). go into the adequacy of the evidence;

¶340

(iv). go into the reliability of the evidence;

¶341

(v). interfere, if there be some legal evidence on which findings can be based.

¶342

(vi). correct the error of fact however grave it may appear to be;

¶343

(vii). go into the proportionality of punishment unless it shocks its conscience.”

¶344

10.5. In the case of State of Andhra Pradesh Vrs . S. Sree Rama Rao , AIR 1963 SC 1723, the Hon‘ble Supreme Court made the following observations:

¶345

“The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant : it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the

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conclusion that the delinquent Officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or; where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.”

¶349

10.6. Having noticed aforesaid observation as found in S. Sree Rama Rao (supra), in Ram Lal Bhaskar Vrs . State Bank of India, (2011) 12 SCR 1036 , it has been enunciated as follows:

¶350

“8. Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an Appellate Authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some

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evidence the High Court does not re-appreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations levelled against the respondent No. 1 do not constitute misconduct and that the any respondent No. 1 was not guilty of any misconduct”

¶354

10.7. Pertinent here to have regard to the following observations made in State of Karnataka Vrs . N. Gangaraj, (2020) 1 SCR 616:

¶355

“8. In State of Andhra Pradesh Vrs. S. Sree Rama Rao, AIR 1963 SC 1723, a three Judge Bench of this Court has held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Court held as under:

¶356

‗7. *** The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant : it is concerned to determine whether the enquiry is held by an

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authority competent in that behalf, and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the Junction of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. ***‟

¶360

9. In B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC 749, again, a three Judge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under:

¶361

„12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court.

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When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and

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mould the relief so as to make it appropriate to the facts of each case.

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13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the Appellate Authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India Vrs. H.C. Goel, (1964) 4 SCR 781, this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.‟

¶369

10. In High Court of Judicature at Bombay through its Registrar Vrs. Shashikant S. Patil, (2000) 1 SCC 416, this Court held that interference with the decision of departmental authorities is permitted if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry while exercising Jurisdiction under Article 226 of the Constitution. It was held as under:

¶370

„16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/

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disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution. ‟

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11. In State Bank of Bikaner and Jaipur Vrs. Nemi Chand Nalwaya, (2011) 4 SCC 584, this Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are

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based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under:

¶378

„7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations, (vide B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC 749, Union of India Vrs. G. Gunayuthan, (1997) 7 SCC 463, and Bank of India Vrs. Degala Suryanarayana, (1999) 5 SCC 762, High Court of Judicature at

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Bombay Vrs. Shashi Kant S Patil, (2000) 1 SCC 416).

¶382

12. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him.

¶383

*******

¶384

14. On the other hand learned counsel for the respondent relies upon the judgment reported as Allahabad Bank Vrs. Krishna Narayan Tewari, (2017) 2 SCC 308, wherein this Court held that if the disciplinary authority records a finding that is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the Writ Court

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could interfere with the finding of the disciplinary proceedings. We do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the findings recorded by the disciplinary authority. It is not the case of no evidence or that the findings are perverse. The finding that the respondent is guilty of misconduct has been interfered with only on the ground that there are discrepancies in the evidence of the Department. The discrepancies in the evidence will not make it a case of no evidence. The Inquiry Officer has appreciated the evidence and returned a finding that the respondent is guilty of misconduct.

¶388

15. The disciplinary authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the State Government was also dismissed. Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the findings of facts recorded by reappreciating evidence as if the Courts are the Appellate Authority. We may notice that the said judgment has not noticed larger bench judgments in S. Sree Rama Rao and B.C. Chaturvedi as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and thus cannot be sustained in law. Accordingly, appeal is allowed and orders passed by the Tribunal and the High Court are set aside and the order of punishment imposed is restored.”

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10.8. The Hon‘ble Supreme Court in the case of State of Haryana Vrs. Rattan Singh, (1977) 2 SCC 491 while

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dealing with standard of proof and evidence applicable in the domestic inquiry, held as under:

¶393

“4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. *** The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of an ending is certainty available for the

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court to look into because it amounts to an error of law apparent on the record. ***”

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10.9. The Supreme Court in the case of M.V. Bijlani Vrs. Union of India, (2006) 5 SCC 88 laid down as under:

¶398

“25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.”

¶399

10.10. Following observation in General Manager (Operations), State Bank of India Vrs. R. Periyasamy, (2015) 3 SCC 101 may be relevant:

¶400

“It is interesting to note that the learned Single Judge went to the extent of observing that the concept of preponderance of probabilities is alien to domestic enquiries. On the contrary, it is well known that the

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standard of proof that must be employed in domestic enquiries is in fact that of the preponderance of probabilities. In Union of India Vrs. Sardar Bahadur, (1972) 4 SCC 618 this Court held that a disciplinary proceeding is not a criminal trial and thus, the standard of proof required is that of preponderance of probabilities and not proof beyond reasonable doubt. This view was upheld by this Court in State Bank of India Vrs. Ramesh Dinkar Punde, (2006) 7 SCC 212. More recently, in State Bank of India Vrs. Narendra Kumar Pandey, (2013) 2 SCC 740, this Court observed that a disciplinary authority is expected to prove the charges levelled against a bankofficer on the preponderance of probabilities and not on proof beyond reasonable doubt.”

¶404

10.11. Pertinent here to notice the case of Lalit Popli v. Canara Bank, (2003) 3 SCC 583 , wherein the Hon'ble Supreme Court of India has made following observation:

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“While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority. ”

¶406

10.12. Thus, it is clear, as held in Abhiram Samal Vrs. Indian Bank, 128 (2019) CLT 321 , that,

¶407

“*** writ of certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted:

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(i) without jurisdiction by assuming jurisdiction where there exists none, or

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(ii) in excess of its jurisdiction-by overstepping or crossing the limits of jurisdiction, or

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(iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.”

¶413

10.13. The Hon‘ble Supreme Court in Amarendra Kumar Pandey Vrs. Union of India, 2022 LiveLaw (SC) 600 summarised the scope of judicial review as follows:

¶414

“31. When we say that where the circumstances or material or state of affairs does not at all exist to form an opinion and the action based on such opinion can be quashed by the courts, we mean that in effect there is no evidence whatsoever to form or support the opinion. The distinction between insufficiency or inadequacy of evidence and no evidence must of course be borne in mind. A finding based on no evidence as opposed to a finding which is merely against the weight of the evidence is an abuse of the power which courts naturally are loath to tolerate. Whether or not there is evidence to support a particular decision has always been considered as a question of law. [See, Reg. Vrs. Governor of Brixton Prison, Armah, Ex Parte, [1966] 3 WLR 828 at p. 841].

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32. It is in such a case that it is said that the authority would be deemed to have not applied its mind or it did not honestly form its opinion. The same conclusion is drawn when opinion is based on

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irrelevant matter. [See Rasbihari Vrs. State of Orissa, (1969) 1 SCC 414 = AIR 1969 SC 1081].

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33. In the case of Rohtas Industries Ltd. Vrs. S.D. Agarwal, (1969) 1 SCC 325 = AIR 1969 SC 707, it was held that the existence of circumstances is a condition precedent to form an opinion by the Government. The same view was earlier expressed in the case of Barium Chemicals Ltd. Vrs. Company Law Board, AIR 1967 SC 295.

¶420

34. Secondly, the Court can inquire whether the facts and circumstances so found to exist have a reasonable nexus with the purpose for which the power is to be exercised. In other words, if an inference from facts does not logically accord with and flow from them, the Courts can interfere treating them as an error of law. [See Bean Vrs. Doncaster Amalgamated Collieries, [1944] 2 All ER 279 at p. 284]. Thus, this Court can see whether on the basis of the facts and circumstances found, any reasonable man can say that an opinion as is formed can be formed by a reasonable man. That would be a question of law to be determined by the Court. [See Farmer Vrs. Cotton‟s Trustees, [1915] A.C. 922]. Their Lordships observed:

¶421

“*** in my humble judgment where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only.” [See also, Muthu Gounder Vrs. Government of Madras, (1969) 82 Mad LW 1].

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¶424

35. Thirdly, this Court can interfere if the constitutional or statutory term essential for the exercise of the power has either been misapplied or misinterpreted. The Courts have always equated the jurisdictional review with the review for error of law and have shown their readiness to quash an order if the meaning of the constitutional or statutory term has been misconstrued or misapplied. [See, Iveagh (Earl of Vrs. Minister of Housing and Local Govt, [1962] 2 Q.B. 147; Iveagh (Earl of Vrs. Minister of Housing and Local Govt., (1964) 1 AB 395].

¶425

36. Fourthly, it is permissible to interfere in a case where the power is exercised for improper purpose. If a power granted for one purpose is exercised for a different purpose, then it will be deemed that the power has not been validly exercised. If the power in this case is found to have not been exercised genuinely for the purpose of taking immediate action but has been used only to avoid embarrassment or wreck personal vengeance, then the power will be deemed to have been exercised improperly. [See , Natesa Asari Vrs. State of Madras, AIR 1954 Mad 481].

¶426

37. Fifthly, the grounds which are relevant for the purpose for which the power can be exercised have not been considered or grounds which are not relevant and yet are considered and an order is based on such grounds, then the order can be attacked as invalid and illegal. In this connection, reference may be made to Ram Manohar Vrs. State of Bihar, AIR 1966 SC 740; Dwarka Das Vrs. State of Jammu and Kashmir, AIR 1957 SC 164 at p. 168 and Motilall Vrs. State of Bihar, AIR 1968 SC 1509.

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¶429

On the same principle, the administrative action will be invalidated if it can be established that the authority was satisfied on the wrong question: [See [1967] 1 A.C. 13].”

¶430

Conclusion:

¶431

11. In the perspective of the discussed facts coupled with averments and submissions made in course of hearing with reference to the principles enunciated by the Courts, it is the basic challenge by the petitioner that since Inquiring Authority had not adjourned the inquiry made on 25.02.2021 in terms of Clause 9 of Regulation 6 of the Regulations, 1976, the inquiry is vitiated.

¶432

11.1. On this issue, the facts on record reveals that the petitioner declined during course of inquiry to adduce evidence (documentary as also oral through examination of witness), which fact has been made clear by a letter dated 25.02.2021 submitted to the Inquiring Authority (see, Inquiry Finding Report). It is also revealed that the Inquiring Authority had read over the minutes which the petitioner-delinquent as also the Presenting Officer accepted to be correctly drawn up and put their respective signatures.

¶433

11.2. It is queer to notice that in the writ petition complaint has been made that said Letter dated 25.02.2021 was furnished under coercion, but the Inquiring Authority has recorded that after minutes of Inquiry Finding

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¶436

Report being read over on 18.03.2021, the petitioner put her signature ―in sound state of mind and without any pressure‖. Such factual aspect has not been questioned neither before the Disciplinary Authority nor the Appellate Authority. The Disciplinary Authority has returned finding of fact that no clear communication was made by the petitioner with respect to the reporting for duty at Godhra Region, as such administrative difficulty was caused on account of her continuous absence from duty since 30.06.2019. It is, therefore, safely concluded that the factual position being questioned in the writ petition, this Court is not inclined to entertain such plea.

¶437

12. Furthermore, the Medical Certificate issued in Odisha in respect of the disability of the father of the petitioner, being placed before the panel Medical Officer of Bank of Baroda, it was opined that such disability does not fall within the ambit of the nature of disabilities specified in the Schedule appended to the Rights of Persons with Disabilities Act, 2016. Therefore, the bank authorities denied to cancel inter-zonal transfer of the petitioner on consideration of representation in terms of Circular dated 29.03.2019.

¶438

12.1. No unimpeachable document is placed on record by the petitioner to show that the opinion of the panel Medical Officer vide Annexure-N/1 enclosed to the counter

¶439

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¶441

affidavit is incorrect. No tangible evidence is placed on record to demonstrate that ―short limb‖ and ―multiple malunited fracture‖ as certified by the Akhyam Sahayak Kendra, Bhubaneswar do fall within the nature of disabilities specified in the Schedule to the Rights of Persons with Disabilities Act, 2016.

¶442

12.2. It may be worthwhile to restate the following observation contained in the Inquiry Finding Report:

¶443

“The CSO submitted list of documents marked as DE1/103, DE-2, DE-3/1-2, DE-4/1-3, DE-5, DE-6, one set of each document is handed over to the CSO (petitioner herein) and PO. The third set of the MEs kept with undersigned for keeping the same with the record of the inquiry.

¶444

***

¶445

¶446

12.3. Against aforesaid factual contention of the opposite parties by way of counter affidavit has not been opposed by the petitioner in the rejoinder affidavit filed on 27.06.2023. Such aspects being factual disputes, on this

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¶449

score also this Court does not warrant it expedient to entertain the writ petition.

¶450

13. On the delineated scope of judicial review that this Court is not within its authority to reappreciate evidence in exercise of extraordinary jurisdiction under Article 226 particularly when the findings of the Inquiring Authority are based on material on record and analysed by the Disciplinary Authority which was affirmed by the Appellate Authority under the Regulations, 1976. This Court does not find violation of principles of natural justice in arriving at the conclusions by the Inquiring Authority, the Disciplinary Authority and the Appellate Authority. All the authorities were unanimous to hold that there was long unauthorised absence of the petitioner from duty. Such fact led to award of punishment of ―removal of service which shall not be a disqualification from future employment‖ and such punishment is made effective from the date of order of the Disciplinary Authority, i.e., 30.04.2021. The punishment so awarded is in consonance with Clause (i) enumerated under the heading ―MAJOR PENALTIES‖ vide Regulation 4 of Regulations, 1976.

¶451

14. In the wake of aforesaid discussion on the facts and in the circumstances of the case as well as the settled legal position referred to supra , this Court finds no valid ground to show indulgence in the Appellate Order dated

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¶454

27.01.2022 rejecting the appeal of the petitioner in exercise of powers under Regulation 17 (Annexure-14) confirming the award of punishment as enumerated in Regulation 4 by the Disciplinary Authority under Regulation 5(3) read with Regulation 6 of the Regulations, 1976. As consequence thereto, the writ petition is liable to be dismissed, being devoid of merit and this Court does so.

¶455

15. In the result, having found no infirmity in the impugned orders vide Annexures-12 and 14 nor lapse in adhering to procedure in course of inquiry, the writ petition stands dismissed, but in the circumstances, there shall be no order as to costs.

¶456

(MURAHARI SRI RAMAN) JUDGE

¶457

High Court of Orissa, Cuttack The 11^th September, 2024// Aswini/MRS

¶458

Signature Not Verified

¶459

Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTA CK Date: 12-Sep-2024 14:54:14

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Itishree Nath v. Bank of Baroda

Case brief

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Itishree Nath v. Bank of Baroda

Case brief

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