K. Prabhakar Hegde vs Bank of Baroda

Held: The Inquiry Officer by not generally questioning the appellant on the circumstances available in the evidence, which were unfavourable or adverse to such officer, failed to perform a mandatory duty – In the present case, the appellant did not raise any objection in this behalf before the disciplinary authority but raised the point, generally, of non-adherence to Regulation 6 before the appellate authority – Be that as it may, the appellant is justified in voicing a grievance that he had not been extended fair, reasonable and adequate opportunity to defend himself in terms of Regulation 6 which, in turn, infringed his right protected by Article 14 of the Constitution – In normal circumstances, the obvious direction that could follow the foregoing discussions is a remand to the disciplinary authority to re-start the inquiry from the stage the same stood vitiated, i.e., requiring the Inquiry Officer to scrupulously follow Regulation 6(17) of the 1981 Regulations – However, there are circumstances that impede an order for remand – The foremost being the lack of accessibility to the records because of the merger of Vijaya Bank with the respondent and the distance of time since the disciplinary proceedings came to a close – It is also to be noted that the disciplinary proceedings were continued beyond the date on which the appellant attained the age of superannuation – Because of the ultimate order this Court propose to make, this Court has not dealt with the third question in the three broad issues framed and such question is kept open – No useful purpose, therefore, would be served in ordering a remand. [Paras 55, 58, 72]

Vijaya Bank Officer Employees’ (Discipline and Appeal) Regulations, 1981 Regn. 6(17) – Appellant dismissed from service – Whether the proposed punishment of compulsory retirement could have been altered to dismissal from service based on the Central Vigilance Commission recommendation: Held: The proposed punishment of compulsory retirement could not have been altered to dismissal from service based on the CVC recommendation without furnishing the same to the appellant – To this extent, the appellate order is legally flawed and cannot be sustained. [Para 71]

Vijaya Bank Officer Employees’ (Discipline and Appeal) Regulations, 1981 Regn. 6(17) – Appellant dismissed from service – Directions issued by the Supreme Court: Held: Considering the age of the appellant (he is now an octogenarian) as well as the fact that there were other disciplinary proceedings pending against him which were not taken to its logical conclusion because he stood dismissed from service, in considered view of this Court, interest of justice would be sufficiently served if this Court makes the following directions: (i) the appellant shall not be entitled to any terminal benefits except to the extent indicated hereafter; (ii) he shall only be entitled to a lump-sum amount equal to the quantum of gratuity which would have been payable to him had he not been fastened with the order of dismissal; (iii) such lump-sum amount may be released in favour of the appellant within a period of eight weeks from date; (iv) no amount on account of interest shall be payable to the appellant on the said amount; (v) however, interest @ 9% p.a. shall be payable on such amount if not released within the period stipulated above; and (vi) the order of dismissal, in the circumstances, shall stand quashed. [Para 73] Vijaya Bank Officer Employees’ (Discipline and Appeal) Regulations, 1981 – Regn.6(17) – All India Services (Discipline and Appeal) Rules, 1969 – R. 8(19) – The use of ‘may’ and ‘shall’: Held: Regn.6(17) as well as r.8(19) refers to both ‘may’ and ‘shall’ – While the first part of reg.6(17) refers to ‘may’, the second part refers to ‘shall’ – To enable the charged officer to explain circumstances in the evidence appearing against him, the provision confers a discretion on the Inquiry Officer as well as imposes a mandatory duty on him – It is discretionary for the Inquiry Officer, to put questions to the charged officer if he is himself a witness for the defence, whereas, if the charged officer has not examined himself as a witness for the defence, the mandate of the law is that the Inquiry Officer shall generally question the charged officer on the circumstances appearing in the evidence against him – The use of ‘may’ and ‘shall’ in the same provision does imply that Regn. 6(17) means what it says – The words ‘may’ and ‘shall’ have been used to mean ‘may’ and ‘shall’, respectively, and we cannot possibly conceive of any rule of construction which would lead us to assume that the framers intended that ‘shall’ in the second part of Regn. 6(17) should also be read and understood as ‘may’ – Use of the word ‘shall’, is deliberate to denote that it is not interchangeable with ‘may’; if it were so, the framers would have straightaway used ‘may’ instead of ‘shall’ having known that ‘may’ has been used in the first part – Couching of the provision in such language with ‘may’ and ‘shall’ having distinct connotations and consequences and bringing about different outcomes in the course of one and the same inquiry unhesitatingly signals that while the first part of regn.6(17) is directory, the second part thereof is mandatory. [Paras 53, 54]

Service Law – Departmental inquiry – Preliminary inquiry report – When it is to be provided to the delinquent employee: Held: i) A preliminary inquiry is conducted for the purposes of determining whether regular disciplinary proceedings are called for or not; ii) A preliminary inquiry report is an internal document; iii) A preliminary inquiry report or the findings therein cannot be used to come to conclusions recorded in the report of inquiry if such preliminary inquiry report/findings are based on oral and/or documentary evidence which are obtained behind the back of the charged employee and such oral/documentary evidence are not presented in the inquiry in the presence of such employee; iv) If a preliminary inquiry report or the findings therein are sought to be relied on, the witnesses whose evidence was relied on in preparing the same ought to be brought before the inquiry officer and the charged officer afforded an opportunity to cross-examine them; v) If a preliminary inquiry report is sought to be relied upon in the inquiry report, then such preliminary inquiry report must be provided to the delinquent employee; vi) Once a charge-sheet is drawn up and has been provided to the charged officer detailing the charges, the preliminary inquiry report is of no consequence and need not be provided to him. [Para 25]

Service Law – Dismissal from service – Principle of Natural Justice – When CVC recommendation is considered by the disciplinary authority for the purpose of deciding punishment: Held: The CVC recommendation weighed heavily enough upon the disciplinary authority so as to convince him to alter the proposed punishment of compulsory retirement to dismissal of the appellant – Receipt of the CVC recommendation behind the back of the appellant and no opportunity having been provided to him to plead for a lesser punishment, the inquiry stood vitiated – The CVC recommendation constituted material which was considered by the disciplinary authority at least for the purpose of deciding on the punishment that needed to be imposed on the appellant – Once such recommendation fell for consideration of the disciplinary authority, a copy of the same could not have been denied to the appellant – Compliance with the principles of natural justice – A charged officer cannot be denied any material that the disciplinary authority looks into for imposing punishment. [Para 64] Service Law – Disciplinary proceedings – Non-disclosure of the CVC recommendation – Claim of privilege:

Held: In the instant case, the claim of privilege made by the appellate authority in defending non-disclosure of the CVC recommendation to the appellant – The claim of privilege was utterly misconceived – The claim of privilege cannot be invoked as a matter of reflexive recourse but must be limited to instances wherein an actual concern to public interest is envisaged – Each instance must be evaluated on a case-by-case basis and the State must be wholly convinced that the disclosure of the documents would cause grave harm and injury to public interest – The recommendation of the CVC did not have anything to do with the “affairs of the State” or, if one were not to be guided by Section 123 of the Evidence Act, anything to do with national security. [Paras 66, 70]