2006 Supreme(SC) 412

2006(5) Supreme 715
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
S.B. Sinha and P.P. Naolekar, JJ.
P.D. Agrawal — Appellant
versus
State Bank of India & Ors. — Respondents
Civil Appeal No. 7686 of 2004
Decided on 28-4-2006
Counsel for the Parties :
For the Appellant : P.P. Rao, Sr. Advocate, Prakash Shrivastava, Hari Kumar C., Miten Mahapatra and Ms. Anuradha Mutatkar, Advocates.
For the Respondents : V.A. Bobde, Sr. Advocate, Sanjay Kapur, Rajiv Kapur, Mrs. Shubhra Kapur and Ms. Arti Singh, Advocates.

IMPORTANT POINTS
1. In cases of violation of principles of natural justice, the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. The principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility.
2. For the purpose of holding that misconduct was condoned by the employer the Court must come to a definite finding as regard the conduct of the employer. Delay in holding disciplinary proceeding only because the criminal proceeding was pending is no ground to hold that there has been a conscious act on the part of the employer to condone the misconduct.
3. The question as regard the jurisdiction of the Supreme Court to interfere with the quantum of punishment, it is well known, is limited. While exercising the said jurisdiction, the Court only in very exceptional case, interferes therewith.

Headnote:(i) SERVICE LAW — State Bank of India Act, 1955 — State Bank of India (Supervisory Staff) Service Rules — Rules 49, 50(1)(i) — Dismissal from service — Bank employee using abusive and unparliamentary language and threatening to assault the senior officers and others — Appellant had been misbehaving with the Regional Managers and other officers, as well as bank customers while posted in different branches — Delay in holding disciplinary proceeding and/or justifiability thereof had never been raised by the appellant before any forum — It was not his case either before the Appellate Authority or before the High Court that by reason of any delay in initiating the disciplinary proceeding he had been prejudiced in any manner — Appellant not only took part in disciplinary proceedings but also cross examined the witnesses and entered into the defence — Whether there is any violation of principles of natural justice — (No)

       Held : The validity of the disciplinary proceeding and/or justifiability thereof on the ground of delay or otherwise had never been raised by the Appellant before any forum. It was not his case either before the Appellate Authority or before the High Court that by reason of any delay in initiating the disciplinary proceeding he had been prejudiced in any manner whatsoever. It may be true that delay itself may be a ground for arriving at a finding that enquiry proceeding was vitiated in the event it is shown that by reason thereof the delinquent officer has been prejudiced, but no such case was made out. (Para 17)

       The order of suspension was passed as far back in 1986, inter alia, in contemplation of initiation of a disciplinary proceeding. It may be true that no disciplinary proceeding was initiated against the Appellant, as a criminal proceeding was pending against him. But, only because the criminal proceeding was pending, the same itself may not be a ground to hold that there had been a conscious act on the part of the Respondents herein to condone the misconduct on the part of the Appellant herein.(Para 19)

       In this case, as noticed hereinbefore, the Appellant did not raise the question of delay before any forum whatsoever. He did not raise such a question even before the Disciplinary Authority. He not only took part therein without any demur whatsoever, but, as noticed hereinbefore, cross-examined the witnesses and entered into the defence. The Principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change. (Paras 26 and 27)

       In view of the decision of this Court in State Bank of Patiala & Ors. vs. S.K. Sharma [(1996) 3 SCC 364] and Rajendra Singh vs. State of M.P. [(1996) 5 SCC 460], the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula.(Para 35)

       (ii) SERVICE LAW — Misconduct — Condonation of — Delay in holding disciplinary proceedings — No disciplinary proceeding was initiated against appellant, as a criminal proceeding was pending against him — Whether it can be a ground to hold that there had been a conscious act on the part of respondent authorities to condone the misconduct on the part of appellant — (No) — Doctrine of condonation of misconduct is not attracted in this case — For the purpose of holding that misconduct was condoned by the employer the court must come to a definite finding as regard the conduct of the employer — Specific Relief Act, 1963 — Section 14(1)(b).

       The terms and conditions of the employees of the Respondent-Bank are governed by a statute. The Disciplinary Authority, by reason of the Rules framed, was delegated with the power of the Bank to initiate departmental proceeding against the delinquent officer and impose suitable punishment upon him, if the misconduct is proved. In this case concept of contract of personal service as is understood in common parlance is not applicable. The doctrine of condonation of misconduct so evolved by ordinary law of `master and servant is thus, not attracted in this case. Under the common law, as also the provisions contained in Section 14(1)(b) of the Specific Relief Act, a master was entitled to terminate the services of an erring employee at his sweet will. The dismissed employee could have sued his master only for damages and not for his reinstatement in service. It is only for the purpose of grant of damages, a declaration was required to be made that the termination of the service was illegal. Having regard to the said legal position, the doctrine of condonation of misconduct evolved, in terms whereof, it was impermissible for the master to allow an employee to continue in service for a long time despite his knowledge that he had committed a misconduct and then to turn round and contend that his services should have been terminated on the ground that he was guilty of misconduct. (Para 20)

       However, for the purpose of holding that misconduct was condoned by the employer the Court must come to a definite finding as regard the conduct of the employer. It must be held that either expressly or by necessary implication that the employer had knowledge of the misconduct of the employee. It is one thing that despite such knowledge, the delinquent officer is promoted to which he would not have been otherwise entitled to or if the disciplinary proceeding had been initiated as if the misconduct was not committed for and it is another thing to say that such a misconduct was not required to be taken into consideration as by reason of the service Rule, promotion was to be granted on the basis of seniority alone, and, thus, the question of condonation of misconduct on the part of the employer would not arise. (Para 22)

       (iii) SERVICE LAW — Dismissal From Service — Principles of Natural Justice — Effect of the Disciplinary Authority having not given the employee an opportunity of hearing while differing with the findings of the Inquiry Officer — Order of removal from service was passed against appellant on 22-7-1990 — Whether it was necessary for the Disciplinary Authority, keeping in view the law as it then stood, to furnish a copy of the enquiry report to the employee — (No) — Decision in Mohd. Ramzan Khan, decided on 20-11-1990 was given a prospective effect.

       Held : The order of punishment of removal against the Appellant was passed against the Appellant on 22nd July, 1990. The decision of this Court in Mohd. Ramzan Khan (supra), as noticed hereinbefore, was decided on 20th November, 1990 wherein the law laid down by this Court, while holding that a delinquent officer cannot be called upon to make a representation on the quantum of punishment without furnishing a copy of the enquiry report, was expressly given a prospective effect. It was, therefore, not at all necessary for the Disciplinary Authority, keeping in view the law as it then stood, to furnish a copy of the enquiry report to the Appellant.(Para 34)