Canara Bank and Others vs Sri Debasis Das

S.K. Sen, J.—This appeal is directed against a Judgment and order dated 30th November, 1998 passed by learned single Judge whereby the writ petition was allowed and the order of the appellate authority, the order of the Disciplinary Authority as also the findings of the Enquiry Officer were set aside and the following directions were passed :--

"As agreed to by the counsel for the parties, for the purpose of examining genuineness of the documents produced before this Court by Mr. Sengupta, the documents may now be sent to the Government handwriting and questioned Documents Expert, whose report may be taken into consideration. All the disputed documents shall be sent to the Government Handwriting and Questioned Documents Expert. Parties shall be at liberty to submit their written briefs upon receipt of the report of the said expert At the request of this Court, learned counsel for the petitioner as also the respondent bank had put their Initials on the said documents. Parties, if they so desire, may pray for adduction of fresh evidence before the Enquiry Officer, which the Enquiry Officer may allow upon taking into consideration the relevance thereof. The Enquiry Officer shall consider the submissions made by the parties in terms of their aforementioned written briefs and submit enquiry report to the disciplinary authority upon considering all the materials in records, pass an a copy whereof may be served upon the petitioner. The petitioner shall, within 2 weeks, from the date of receipt of copy of the enquiry report, may submit his representation in writing there-agalnst, whereafter the disciplinary authority upon considering all the materials on records pass an appropriate order. The respondents shall be at libery to pass an order of suspension as against the petitioner.

Let plain copy of operative portion of this Judgment counter-signed by Assistant Registrar (Court) be given to learned counsel for the parties, on usual undertaking.

Urgent xerox certified copy be supplied on priority basis."

Shortly stated the facts Involved in this appeal fnter alia are that four charge-sheets dated 12.12.1987, 5.11.1988, 23.3.1999 and 35.5.1989 were Issued in quick succession against the writ petitioner/respondent, Debasls Das, Accountant, Canara Bank.

Disciplinary proceedings were initiated with regard to charge-sheet dated 5.11.1988 which contained allegation of not vacating in time, the residential flat provided by the bank culminating in an order of dismissal. This proceeding including the order of dismissal was challenged by the writ petitioner/respondent. Mr. MonoJ Kumar Mukherjee, J. as he then was, was pleased to set aside the order.

The writ petitioner/respondent Debasis Das was reinstated in service, but transferred to Assam.

Disciplinary proceedings were Intended to be proceeded with in regard to three other charge-sheets. The charged employee produced a letter dated 13.9.1989 of the Bank and contended that the Bank having dropped those three charge-sheets, further proceedings with regard thereto were not maintainable.

On the basis of the said letter of the Bank dated 13.9.1989 another chargesheet was served upon the writ petitioner/respondent wherein it was alleged that the letter being B/171 produced by Debasls Das was forged. The Bank took the stand that B/171 letter was never issued by It. The Bank claimed that the letter at page 305 of the Paper Book was Issued by it. Thus the scope of the departmental enquiry really was as to which of the two documents, one at page 171 and the other at page 305 of the paper book is genuine.

Enquiry was started in respect of the charge-sheet dated 21.5.1994. After witnesses were examined, the enquiry officer by his order dated 1.4.1995 directed the presenting officer to file written brief with copy to the charged employee. The charged employee was directed to file written brief by ten days thereafter. The proceedings of this date was produced before the Court during hearing.

The Enquiry Officer gave his findings straight way when the delinquent had not received the written brief of the presenting officer. White sending the delinquent a copy of the said findings, comments of the delinquent on the said findings was asked for.

Debasls Das, the writ petitioner/respondent, wrote several letters alleging violation of regulation 6(18) and (21) of the Discipline and appeal Regulations, Inter alia, on the ground that the opportunity to submit written brief was not given and the findings were arrived at without consideration of the same.

The Disciplinary Authority supplied the written brief of the present-Ing officer and asked the delinquent to submit his written brief.

The charged employee submitted his written brief for consideration of the Enquiry Officer. In the heading of the written brief it was specifically mentioned that the same was in terms of regulation 6(18). In this written brief, more particularly at page 206 of Paper Book, it was Inter alia mentioned: "The author of the purported letter dated 13.9.1989 was not called before the Enquiry Forum in spite of demand by the defence."

It may be noted that an interim order was passed in the writ petition against passing of final order which was set aside in appeal filed by the Bank. A SLP of the employee in respect of the said order was also dismissed. The Bank then passed an order of dismissal without any speaking order. Against the said order of dismissal of the disciplinary authority, appeal was preferred before the appellate authority.

The writ petitioner/respondent appeared before the appellate authority pursuant to the notice issued in that regard. He submitted some original documents. The appellate authority dismissed the appeal. The fact that some original documents were produced before the appellate authority as has been mentioned by the delinquent, appears from the appellate order. The delinquent asked for original documents submitted by him which also appears from record.

In the writ petition it has been alleged that there has been violation of natural Justice and of Regulation 6(18) and (21) of Discipline and Appeal Regulations in not giving opportunity to the delinquent to submit his written brief at a stage before the Enquiry Officer prepared his findings. The said Regulation 6(18) and (21) are set out hereinbelow :-

"18. The Inquiring Authority may, after the completion of production of evidence hear the Presenting Officer, if any. appointed and the officer employee, or permit them to file written briefs of the respective cases within 15 days of the date of completion of the production of evidence, if they so desire.

(1) On the conclusion of the inquiry the Inquiring Authority shall prepare a report which shall contain the following :

(a) a gist of the articles of charge and the statement of the Imputations of misconduct of misbehaviour;

(b) a gist of the defence of the officer employee in respect of each article of charge;

(c) an assessment of the evidence in respect of each article of charge;

(d) the findings on each article of charge and the reasons therefor."

On proper construction of the said Regulation 6 in appears that the procedure mentioned in the Regulation is mandatory.

It has been contended on behalf of the appellant that the writ petition has not suffered any prejudice by reason of non-filing of written brief before the Enquiry Officer because of the fact that the ultimate decision was taken by the disciplinary authority and not by the Enquiry Officer. Moreover, it has been contended on behalf of the appellant that from the correspondence it is clear that the written brief has been filed before the disciplinary authority, the writ petitioner/respondent appeared before the disciplinary authority, made his submission and preferred appeal before the appellate authority and as such there was no denial of opportunity to the writ petitioner/respondent.

On perusal of Regulation 6 it appears clearly that the procedure mentioned therein is mandatory, and as such no particular proof of prejudice by reason of violation of those provisions is necessary. Even then the factual foundation of prejudice has been established. It has been pointed out that the author of the two letters in question were not produced as witness at the enquiry in spite of demand made on behalf of the writ petitioner/respondent and further that the specific stand of the delinquent was that the document relied on by the Bank was fake.

The contention of the writ petitioner/respondent is that non-consideration of the case of defence, before the Enquiry Officer had prepared his finding, had resulted in prejudice to the defence which cannot be said to be without any basis. It is setlled law that prejudice is a conclusion to be drawn by the Court from the records produced and the facts pleaded before the Court. The use of the word ''Prejudice'' in the pleadings cannot be decided. In this connection. Judgment and decision in the case of State Bank of Patiala and others Vs. S.K. Sharma, may be taken note of. In the aforesaid decision the Supreme Court laid down the principles to be followed in the context of disciplinary enquires and order of punishment imposed by an employer upon employee and explained the scope thereof.

In the aforesaid decision a disciplinary enquiry was conducted against bank officer for temporary misappropriation. The enquiry officer failed to furnish the copies of statements of two witnesses. However, the delinquent was permitted to peruse them and take notes therefrom more than three days prior to their examination, and of the two witnesses, one witness was examined and delinquent had not raised any objection during the enquiry that the non-furnishing of copies of the statements was disabling him or had disabled him, as to the case may be, from effectively cross-examining the witnesses or to defend himself. It can''t to said in such circumstances that no prejudice was resulted to the delinquent on account of not furnishing him with the copies of the statements of witnesses. On account of the said violation of rule, it was held, it cannot be said that the delinquent did not have a fair hearing or that the disciplinary enquiry against him was not a fair enquiry.

The Supreme Court held that in the aforesaid context it is possible to say that there has been a substantial compliance with the sub-clause (III) of Regn. 68(x) (b), though in the balls and circumstances of the case there might not have been full compliance. Every violation of procedure will not have any effect unless the procedure is of fundamental or mandatory in nature. The Supreme Court, however, observed that the test to be applied is one of prejudice but this statement is subject to a rider that even among procedural provisions, there may be some provisions which are of a fundamental nature in the case of which the theory of substantial compliance may not be applicable. The Supreme Court evolved certain basic principles of natural Justice keeping in view of the context of disciplinary enquires and order of punishment imposed by an employer upon the employee.

In the aforesaid decision, it is stated that an order passed Imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiry should not be set aside automatically. The Court or the Tribunal should enquiry whether (a) the provision violated is of a substantive nature, or (b) whether it is procedural in character. A substantive provision has normally to be complied with and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. In the case of violation of a procedural provision, the position is this : procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are. generally speaking, conceived in his Interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under ''no notice'', ''no opportunity'' and ''no hearing'' categories, the complaint of violation of procedural provision should be examined from the point of view or prejudice, viz. whether such violation has prejudiced the delinquent of fleer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice Including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by Itself proof of prejudice. The Court may not Insist on proof of prejudice in such cases. Take a case where there is a provisions expressly providing that after the evidence of the employer/ Government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, if the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it, the prejudice is self-evident. No further proof of prejudice is required or need be called for in such a case. To repeat, the test is one of prejudice, i.e. whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if any is so inclined. The principle stated hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

In the case of a violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (Including the setting aside of the order of punishment). The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.

The Supreme Court further stated that where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principle of natural Justice or, for that matter, wherever such principles are held to be implied by the very nature and Impact of the order/action the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of aiidl alteram partem) and violation of a facet of the said rule. In other words, a distinction must be made between ''no opportunity'' and no adequate opportunity, i.e., between ''no notlce''/''no hearing'' and ''no fair hearing'', (a) in the case of former, the order passed would undoubtedly be invalid (one may call it Void'' or a nullity if one chooses to). In such cases, normally liberty will be reserved for the Authority to take proceedings afresh according to law. i.e.. In accordance with the said rule (aud( olteram partem). (b) But in the latter case, the effect of violation (of a fact of the rule of audl alteram partem) has to be examined from the standpoint of prejudice; in order words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere).

While applying the rule of audt alteram par tern the primary principle of natural Justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rules, v(z., to ensure a fair hearing and to ensure that there is no failure of Justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

There may be situations were the Interest of State or public Interest may call for a curtailing of the rule of audl alteram partem. In such situations, the Court may have to balance public/state Interest with the requirement of natural justice and arrive at an appropriate decision.

It appears that the provisions of regulation 6 are mandatory in nature. In the pleading before the learned single Judge the Bank did not take the plea that the charged employee had waived or acquiesced in the rights given to him by Regulation 6(18) and (21). However, such a plea was sought to be taken before the Division Bench for the first time. This may not be permitted. Even factually this plea is not available to the Bank as there was no waiver or acquiescence by the charged employee. Even in the written brief, in the appeal petition and in the writ petition the ground of violation of the said Regulation was specifically taken.

Regulation in the Instant case being 6(18) is fundamental and mandatory in nature and as such the principle of substantial compliances overriding procedural provision cannot apply. On the contrary, violation of the said Regulation being fundamental in nature there is no scope to take the plea that there has been specific or substantial compliance with the rules by affording opportunity at a latter stage. The aforesaid decision of the Supreme Court appears to have been relied upon by both the parties in the context of the present case, and the said decision really goes to show that if there is a violation of the fundamental rule the principle of substantial compliance cannot be applied.

Moreover, in the Instant case prejudice here is patent as the author of the disputed documents was not produced to prove or disprove his signature and the contents of the letters in question. Moreover, this is a case where the employer claimed the document produced by the employee to be forged while the charged employee claimed that the document relied on by the Bank to be genuine is fake. No criminal case was started and the Bank took the role of a Judge in Its own cause and did not even address itself to the consideration of the specific case of the employee that the document is fake. This lacunae is throughout the enquiry, in the findings, in the final order and in the appellate order.

The plea taken by the appellant Bank for the first time before this Court that although regulation 6(18) and (21) is not complied with, but by permitted the employee to submit written brief afterwards, the initial defect got cured, cannot be accepted.

In the Instant case, written brief was submitted before the order of dismissal was passed but the order of dismissal shows that the written brief of the charged employee was not at all considered. In this context the law is well settled that an unfair trial cannot be caused by a fair appeal. In this connection Judgment and decision in the case of Institute of Chartered Accountants of India Vs. L.K. Ratna and Others, may be taken note of.

In the aforesaid decision tt was held that in case of an enquiry proceeding delinquent member of the Institute of Chartered Accountant of India is entitled to be afforded an opportunity of the hearing by the council of the Institute before taking decision on the question of his guilt, irrespective of the fact that a hearing had already been given to him in proceedings, before the Disciplinary Committee and that an appeal ties against the council''s decision before High Court it was further held that it is the finding of the council which is the determinative decision as to the guilt of the member and as such the Act requires it to be recorded. The recording of the finding of the council is a Jurlsdictional springboard for the penalty proceeding which follows. The council will take Into consideration the allegations against the member, his case in defence, the recorded evidence and the conclusions expressed by the Disciplinary Committee. Even though the member had participated in the Inquiry before the Declpllnary Committee, there is a range of consideration by the Council on which he has not been heard. Further, the penalty which follows the finding of the council is so harsh that it may result in his removal from the Register of Members for a substantial number of years depriving him of the right to a certificate of practice. Having regard to the character and complexion of the proceeding in conjunction with the structure of power constituted by the Act, the conclusion is that the member is entitled to a hearing by the council before it can find him quality. Accordingly, the Supreme Court was of the view that the decision of the council in the absence of an opportunity of hearing is liable to be quashed.

It may be noted that in the aforesaid decision also it was specifically urged that since opportunity of hearing was given by the Disciplinary Committee the fact that absence of hearing at the stage of enquiry of hearing before the council does not affect the result and as such is not necessary and the same was rejected by the Supreme Court.

On perusal of Regulation 6(18) it appear as that the said Regulation is mandatory and fundamental in the sense that it has provided for two alternative procedures which are required to be followed by the Inquiring Authority. In other words, the said sub-rule (18) makes it obligatory on the part of the Inquiring Authority after the completion of the production of evidence to hear the Presenting Officer and the Officer employee or permit them to file written briefs of the respective cases within 15 days of the date of completion of the production of evidence if they so desire.

In the instant case, after production of evidence the Inquiring Authority did not give hearing to permit them to file written briefs of their respective cases. So the second alternative was sought for which, however, was not really followed since it is admitted position that the respondent could not get the opportunity to file written briefs. In this connection minutes of the proceedings dated 1st April, 1995 may be taken note of. A xerox copy of the concluding portion of the said proceeding after the evidence was concluded before the Inquiring Officer, was produced before us which are set out herelnbelow :--

"CSO stated examination of Dev-I of Debasls Das was over.

1A to CSO whether you are producing any other witnesses or documents/evidence in this matter? CSO--No.

1 A to CSQ: Whether you have any other submissions you want to make before me and whether you are closing your evidence?

CSO : I will make further submissions in my written brlef-whlch I will be submitting in terms of Reg 6 (18) of (Illegible) I am also closing my evidence/defence.

1 A. : The Presenting Officer is hereby Instructed to submit his written brief to me within 10 days I.e. before 12.4.95 (12.4.95). He is also instructed to send a copy of his written brief to CSO simultaneously--CSO should submit his written brief to me within 10 days of receipt of PO''s written brief. No further instructions will be given to P.O or CSO in this regard of the written brief should be submitted within the above stipulated time. With this the enquiry is concluded today and is closed.

Sd/-Hllglble.

01.4.95.

Inquiring Authority."

It appears from the said minutes of the concluding portion of the proceeding dated 1.4.1995 that after the evidence was taken the CSO submitted before the Inquiring Authority that he would make further submission in his written brief which would be submitted in terms of Regulation 6(18) and accordingly the Inquiring Authority Instructed the Presenting Officer to submit his writ the brief within 10 days i.e. before 12.4.1995. He was also Instructed to furnish a copy of the written brief to the writ petitioner and within 10 days of receipt of Presenting Officer''s written brief writ petitioner to file his written brief. No. further Instruction was given to Presenting Officer and CSO in this regard and the enquiry was accordingly concluded.

It appears that the CSO did not receive copy of the written brief filed by the Presenting Officer although it has been submitted on behalf of the appellant that the Presenting Officer sent the written brief by ordinary post.

The contention of the learned Advocate on behalf of the appellant was that even assuming that the copy of the written brief was not furnished and as such the respondent could not file his written brief that by Itself does not cause any prejudice to him since he got all opportunities, to take his submissions before the Disciplinary Authority and in fact he filed his written brief before the Disciplinary Authority.

The learned Advocate for the appellant further submitted that the writ petitioner/respondent had waived his rights, if any. under the said Regulation 6(18) since he has already submitted written brief to the Disciplinary Authority and participated in the proceedings. It may, however, be noted that the correspondence disclosed in this proceeding being annexures to the writ petition which shows that the writ petitioner/ respondent protested against the action of the Inquiring authority that he preferred to submit his finding/report to the Disciplinary authority without giving him the scope to represent his case by submitting his written brief in terms of Regulation 6(18).

He has further recorded in his letter dated 31.5,1995 addressed to the Deputy General Manager, Canara Bank, that such report |,i the aforesaid context should be treated as a perfunctory and one sided and is tainted with the blemish of ulterior motive.

In the letter dated 12.7.1995 addressed to the Deputy General Manager the writ petitioner/respondent again pointed out that the said enquiry report was prepared in most perfunctory manner and contained perverse findings and the same was made with deliberate non-compliance of Regulation 6(18) of the aforesaid Regulations.

In the letter dated 25.7.1995 addressed to the Deputy General Manager the writ petitioner/respondent further pointed out that the he had been furnished with the copy of the written brief. Now he may be permitted to submit his written brief in terms of Regulation 6(18). In reply to the same the Assistant General Manager by his letter dated 2.8.1995 addressed to the writ petitioner/respondent permitted him to submit written brief by 10.8.1995.

It may be noted that by letter dated 4.8.1995 addressed to the Deputy General Manager the writ petitioner/respondent annexed the written brief containing seven pages for consideration of the Enquiry Officer in the matter of charge-sheet and compiling enquiry report/findings. The heading of the written brief is as follows :--

Written brief in terms of section 6(18) of the CMCE (D & A) Regulations, 1976 in the matter of charge-sheet No. CC/DAC/E.37/361/94/CH(0-2/ 94) dated 21.5.94"

It is clear from the aforesaid heading that the written brief was submitted in terms of Regulation 6(18) and for consideration by the Enquiry Officer. The said position has been made further clear from annexure ''O'' to the .application for slay being the letter of the respondent to the Deputy General Manager. It has been pointed in the said letter that the said written brief was submitted in terms of Regulation 6(18). The contents of the said letter is quoted :

"I understand my above letter along with my written brief in the matter of charge-sheet No. CC/DAC/�.37/361/94/CH(0-2/94) dated 21.5.94 had reached your hands. As you are aware, such written brief has been submitted in terms of Regulation 6(18) of the CBOE (D & A) regulations, 1976, the Enquiry Officer in the above matter has to consider this written brief of mine in Its findings as envisaged under Regulation 6(21) (ii) (d) the aforesaid Regulations. Kindly send the findings/report of the Enquiry Officer when received and permit time upto thirty days from the date of delivery of findings/report to enable me to give my submission on such findings/report"

It also appears from the order of the Disciplinary Authority itself that the writ petitioner/respondent did not make any submission. The Disciplinary Authority, however, did not consider the question that the written brief could not be filed before the enquiry authority by the concerned employee although specific complaint was made that he was not given such opportunity and he sent his written brief to the Deputy General Manager tn terms of Regulation 6(18) for consideration by the Enquiry Officer. The Disciplinary Authority when dealing with the said question passed an order of dismissal which does not record any reason although the said order of dismissal, however, records that the writ petitioner/respondent did not make any submission before the Disciplinary Authority.

In that view of the matter, were are unable to accept the contention that the writ petitioner/respondent waived his right to file written brief in terms of Regulation 6(18) before the Enquiry Officer.

It does not also appear from the order of the Disciplinary Authority that the Disciplinary Authority also considered the report or written brief when it passed the order of dismissal or noted the contents there of although it is true that the appeal was filed against the said order of the Disciplinary Authority. It further appears that the Appellate Authority dismissed the appeal and confirmed the orders passed by the Enquiry authority and the Disciplinary Authority without recording any specific reason.

In the premises, the contention of the appellant that the writ petitioner/respondent did not suffer any prejudice also does not appear to be correct. In that view of the matter. Judgment and decision relied upon by learned Advocate for the appellant does not appear to apply in the facts of this case. The order of the appellant authority suffers from inherent Infirmity since it could not appreciate the mandatory and fundamental nature of regulation 6(18) and 6(21). The Appellate Authority in fact, misconstrued the provisions of the Regulation in Its findings. It also failed to appreciate that the written brief is Intended for consideration of Inquiring Officer in terms of Regulation 6(18).

Judgment and decision in the case of Union Carbide Corporation, etc., etc. Vs. Union of India, etc. etc., relied upon by learned Advocates for the appellant may be taken note of. In the aforesaid decision it was held that omission to comply with the requirements of the rule of audl alteratn partcm, as a general rule, villates a decision. Where there is violation of natural Justice no resultant or Independent prejudice need be shown, as denial of natural Justice Is, in Itself, sufficient prejudice and it is not answer to say that even with observance of natural Justice the same conclusion would have been reached. The citizen "Is entitled to be under the Rule of Law and not the Rule of Discretion" and "to remit the maintenance of constitutional right to Judicial discretion is to shift the foundations of freedom from the rock to the sand."

Megarry. J in Leary v. National Union oJVchlcle Builders (1971) Ch 34, which were referred to in Institute of Chartered Accountants of India Vs. L.K. Ratna and Others, as to the effect of non-observance of natural Justice observed as follows :--

"If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural Justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural Justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will never the less have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law in a mere nullity; and it is no mere triviality that might be justified on the ground that natural Justice does not mean perfect justice. As a general rule, at all events, I hold that failure of natural Justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body."

Observation of Prof. Wade in his treatise on Administrative Law has been noted in the aforesaid Judgment which is to the effect as follows :--

"If natural Justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected Initial hearing: Instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial."

Judgment and decision in the case of Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., and judgment and decision reported in Union Bank of India Vs. Vishwa Mohan, are relied upo" by learned Advocate for the appellant to show that prejudice is required to be specifically proved before the Court. The said Judgments, in our view, are distinguishable since those decision were passed at a situation where the report of the Inquiring Officer had not been supplied to a charged employee asking for his comments thereon. There the report dealt with an aspect not provided for in the Rules/Regulations, not to speak of any mandatory provision like Regulation 6(18) as in this case.

That apart, in the Instant case it appears to us that the prejudice is patent and appears on the face of the record. The author of the disputed documents was not produced to prove or disprove his signature and the contents of the letters in question. Moreover, this is a case where the employer claimed the document produced by the employee to be forged while the charged employee claimed that the document relied on by the Bank to be genuine is fake. No criminal case was started and the Bank took the role of a Judge in its own cause and did not even address itself to the consideration of the specific case of the employee that the document at page 305 is fake. This lacunae is apparent through out the enquiry, the findings, in the final order and in the appellate order.

The contention of the learned Advocates for the appellant that urged for the first time before this Division Bench that although regulation 6(18) and (21) were not complied with but by permitting the employee to submit written brief afterwards, the initial defect got cured. We are unable to accept such contention since the said contention is factually incorrect and legally unsustainable. It appears to us that the written brief was submitted before the order of dismissal was passed but the order of dismissal shows that the written brief of the charged employee was not at all considered.

It is well settled that an unfair trial cannot be cured by fair appeal.

It has also been contained that proceeding, may be quashed from the Finding/Enquiry Report stage only. By such submission the Bank is trying to get away from that part of the judgment of the learned trial Judge which was with consent of parties, namely, that the disputed documents be sent to an Expert of questioned documents and handwriting expert. The object of this part of the agreed order is obviously to start the enquiry de novo. The agreed part of the order is binding on the appellant Bank and there is no appeal nor can there be any from this part of the Judgment and order.

Learned Advocates for the appellant-Bank has relied upon the Judgment and decision in the case of Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., and has contended that no backwages should be directed to be paid. The said judgment, in our view, is distinguishable on facts. It appears to us that the said judgment also does not lay down the general law on the aspect of payment or non-payment of backwages. In the aforesaid decision no backwages was directed to be paid in the peculiar situation of the said case. In fact, the aforesaid decision was passed on a reference to a larger Bench of the Supreme Court wherein the Supreme Court for the first time laid down the law on consideration of previous conflicting decisions, that copy of the enquiry report has to be supplied to a delinquent employee asking for his comments thereon before any final order of punishment is passed. In the aforesaid context, the Supreme Court also took into consideration what is the effect on the order of punishment when the report of the Enquiry Officer is not furnished to the employee and what relief should be granted to him in such case. The answer to this question has to be related to the punishment awarded.

The Supreme Court has also observed that when the employee is dismissed or removed from service and the Inquiry is set aside because the report is not furnished to him, in some cases the-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with backwages in all case is to reduce the rules of Justice to a mechanical ritual. The theory of reasonable opportunity and the principle of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his Just rights. They are not Incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore even after the furnishing of the report, no different consequence would have followed. It would be a perversion of Justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the quality and thus to stretching the concept of Justice to Illogical and exasperating limits. It amounts to an ''unnatural expansion of natural justice'' which in Itself is antithetical to Justice.

It therefore appears that the Supreme Court observed that if no prejudice is caused of non-furnishing of the report or in other words the effect of furnishing of report would be immaterial, it would be perversion of justice to permit the employee to resume duty and to get all the consequential benefits.

The aforesaid decision therefore does not in any way, in our view, assist the appellant and the said decisions cannot be taken to mean that the employer has a right not to pay backwages as a matter of right in case reinstatement is granted by the Court. On the contrary, payment of backwages upon quashing of a disciplinary proceeding is the normal consequential direction passed by a Court of Law. In this connection the following decisions may be taken note of :

(I) Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh,

(II) Murari Mohan Deb Vs. Secretary to The Government of India and Others,

In the case of Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh, it was held by the Supreme Court that the effect of the decree declaring the dismissal of the employment as Invalid was that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was therefore superfluous. The effect of the adjudication of Civil Court is to declare that the appellant had been wrongfully prevented from attending to his duties as a public servant. It would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work.

The Supreme Court in the said decision, however, confirmed the order of the High Court directing payment of salary from the date of filing of the suit.

In the case of Murari Mohan Deb Vs. Secretary to The Government of India and Others, it was held that once the order of compulsory retirement is set aside, the appellant continues to be in service. Since he reached the age of superannuation in the meantime reinstatement in service was not directed. The Supreme Court however held that he would have entitled to back wages from the date of compulsory reUrement on October 16. 1962 till the date of superannuation on December 6, 1978.

It therefore appears to us there is no Infirmity in the order passed by the learned single Judge and there is no scope for interference in appeal.

The appeal accordingly falls and is dismissed. There will be no order as to costs.

Learned Advocate for the appellants prays for stay of operation of the Judgment and order. Considering the facts and circumstances of the case, we are not Inclined to grant any stay.

Let certificated xerox copies of the judgment and order be given to the learned Advocates for the parties on usual terms.

S. Barman Roy, J.

I agree.

Appeal dismissed