Vinayak Balchandra Ghanekar v. Punjab National Bank

6. It is settled that while conducting a departmental enquiry, a reasonable opportunity of defence has to be given to the Charge-Sheeted Employee (CSE). So also, the principles of Natural Justice have to be adhered to while conducting the departmental enquiry.

7. Considering the Forty-Second amended to the Constitution in relation to Article 311 and keeping in view the law laid down by the Hon’ble Supreme Court in Managing Director, 7 of 31 ECIL, Hyderabad and Others Versus B. Karunakar and Others[1], the law as it applies to public sector employees in the light of Article 311, would also equally apply to the employees working in the private sector. The law laid down by the Hon’ble Supreme Court in Union of India v. Mohd. Ramzan Khan[2], was considered and it was held in B. Karunakar (supra) that an employee has a right to the Enquiry Officer’s Report along with a second show cause notice calling upon the CSE to explain as to why the findings of the Enquiry Officer should not be accepted by the Management and as to why the Management should not impose/ inflict the punishment mentioned in the notice upon the CSE. A reasonable opportunity of hearing has to be granted for tendering the reply to the second show cause notice.

8. In B. Karunakar (supra), the Honourable Supreme Court has held in paragraph Nos.26, 28 and 29 as under:- “26. The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the

8 of 31 evidence is taken into consideration by it to come to its conclusion. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee 9 of 31 but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusion, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.” “28. The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the Inquiry Officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputation. What is further, when the proviso to the said Article states that "where it is proposed after such inquiry to impose upon him any such penalty such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed", it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the Inquiry Officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it 10 of 31 consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the 42nd Amendment of the Constitution is to advance the point of time at which the representation of the employee against the Inquiry Officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilty or innocence of the charges.” “29. Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the Inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.” 11 of 31

9. The Hon’ble Supreme Court has concluded in State Bank of Patiala and Others Versus S.K. Sharma[3], that if the procedural rights are violated, a departmental enquiry may not necessarily be vitiated. However, if substantive rights of the employee are violated, the departmental enquiry can be declared to be unfair and vitiated.

10. In State Bank of Patiala (supra), the Honourable Supreme Court concluded in paragraph Nos.24, 25, 28, 29, 32 and 33, as under:- “24. In K.L. Tripathi v. State Bank of India and Ors., Sabyasachi Mukharji, J., speaking for a three- Judge Bench, considered the question whether violation of each and every facet of principles of natural justice has the effect of vitiating the enquiry. The learned Judge observed (SCC pp. 58-59, paras 32-34): “The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept of fair play in action must depend upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified, is, in dispute, right of crossexamination must inevitable form part of fair play in action but where there is no lis regarding the facts but certain explanation of

12 of 31 the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of crossexamination per se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version of the credibility of the statement. The party who does not want to controvert the veracity of the evidence from or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination specially when it was not asked for and there was no dispute about the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation to the acts, absence of opportunity to cross-examination does not create any prejudice in such cases. The principles of natural justice will, therefore, depend upon the facts and circumstances of each particular case. We have set out hereinbefore the actual facts and circumstances of the case. The appellant was associated with the preliminary investigation that was conducted against him. He does not deny or dispute that. Information and materials undoubtedly were gathered not in his presence but whatever information was there and gathered namely, the versions of the persons, the particular entries which required examination were shown to him. He was conveyed the information given and his explanation was asked for. He participated in that investigation. He gave his explanation but he did not dispute any of the facts nor did he 13 of 31 ask for any opportunity to call any evidence to rebut these facts.” It was accordingly held that the enquiry held and the punishment imposed cannot be said to have been vitiated on account of an opportunity to cross-examine certain witnesses not having been afforded to him.

25. In Managing Director, E.C.I.L. v. B. Kamnakar, a Constitution Bench did take the view that before an employee is punished in a disciplinary enquiry, a copy of the enquiry report should be furnished to him (i.e., wherever an enquiry officer is appointed and he submits a report to the Disciplinary Authority). It was held that not furnishing the report amount to denial of natural justice. At the same time, it was held that just because it is shown that a copy of the enquiry officer's report is not furnished, the punishment ought not be set aside as a matter of course. It was directed that in such cases, a copy of the report should be furnished to the delinquent officer and his comments obtained in that behalf and that the court should interfere with the punishment order only if it is satisfied that there has been a failure of justice. The following paragraph (applicable in cases where the order of punishment is subsequent to November 20, 1990, the date of judgment in Union of India v. Mohd. Ramzan Klian is apposite: “Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured. it before coming to the court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the nonsupply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that 14 of 31 the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The court should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report.” “28. The decisions cited above make one thing clear, viz., principles of natural justice cannot be to reduced to any hard and fast formula. As said in Russell v. Duke of Norfolk [1949] All. E.R. 109, way back in 1949, these principles cannot be put in a straight-jacket. Their applicability depends upon the context and the facts and circumstances of each case. (See Mahender Singh Gill v. Chief Election Commissioner. The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be affected. (See A.K. Roy v. Union of India and 15 of 31 Swadeshi Cotton Mills v. Union of India). As pointed out by this Court in A.K Kraipak and Ors. v. Union of India and Ors., the dividing line between quasi judicial function and administrative function (affecting the rights of a party) has become quite thin and almost indistinguishable - a fact also emphasised by House of Lords in C.C.C.U. v. Civil Services Union (supra) where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the case, it is from the standpoint of fair hearing applying the test of prejudice, as it may be called that any and every complaint of violation of the rule of audi alteram pattern should be examined. Indeed, there may be situations where observance of the requirement of prior notice/hearing may defeat the very proceeding - which may result in grave prejudice to public interest. It is for this reason that the rule of post-decisional hearing as a sufficient compliance with natural justice was evolved in some of the cases, e.g., Liberty Oil Mills v. Union of India. There may also be cases where the public interest or the interests of the security of State or other similar considerations may make it inadvisable to observe the rule of audi alteram partem altogether [as in the case of situations contemplated by Clauses (b) and (c) or the proviso to Article 311(2)] or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of the facet of the said principle. In other words, distinction is 16 of 31 between "no notice"/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity". To illustrate take a case where the person is dismissed from service without hearing him altogether [as in Ridge v. Baldwin]. It would be a case falling under the first category and the order of dismissal would be invalid or void, if one chooses to use that expression (Calvin v. Carr). But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer's report (Managing Director, E.C.I.L. v. B. Kanmakar) or without affording him a due opportunity of cross-examining a witness (K.L. Tripathi) it would be a case falling in the latter category - violation of a facet of the said rule of natural justice in which case, the validity of the order has to be tested on the touch-stone of prejudice, i.e., whether, all in all, the person concerned did nor did not have a fair hearing. It would not be correct - in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B. Kanmakar should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hearing (i.e., adequate or a full hearing) or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as aforesaid.

29. The matter can be looked at from the angle of justice or of natural justice also. The object of the principles of natural justice - which are now understood as synonymous with the obligation to provide a fair hearing is to ensure that justice 17 of 31 is done, that there is no failure of justice and that every person whose rights are going to be affected by the proposed action gets a fair hearing. The said objective can be tested with reference to Sub-clause (iii) concerned herein. It says that copies of statements of witnesses should be furnished to the delinquent officer "not later than three days before the commencement of the examination of the witnesses by the inquiring Authority". Now take a case - not the one before us - where the copies of statements are supplied only two days before the commencement of examination of witnesses instead of three days. The delinquent officer does not object; he does not say that two days are not sufficient for him to prepare himself for cross-examining the witnesses. The enquiry is con- eluded and he is punished. Is the enquiry and the punishment awarded to be set aside on the only ground that instead of three days before, the statements were supplied only two days before the commencement of the examination of witnesses? It is suggested by the Appellate Court that Sub-clause (iii) is mandatory since it uses the expression "shall". Merely because, word "shall" is used, it is not possible to agree that it is mandatory. We shall, however, assume it to be so for the purpose of this discussion. But then even a mandatory requirement can be waived by the person concerned if such mandatory provision is conceived in his interest and not in public interest, vide Dhirendra Nath Gorai v. Sudhir Chandra Ghosh and Ors.. Subba Rao, J., speaking for the Court, held: “Where the court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can only be waived 18 of 31 if it is not conceived in the public interests, but in the interests of the party that waives it. In the present case the executing court had inherent jurisdiction to sell the property. We have assumed that Section 35 of the Act is a mandatory provision. If so, the question is whether the said provision is conceived in the interests of the public or in the interests of the person affected by the non-observance of the provision. It is true that many provisions of the Act were conceived in the interests of the public, but the same cannot be said of Section 35 of the Act, which is really intended to protect the interests of a judgment-debtor and to see that a larger extent of his property then is necessary to discharge the debt is not sold. Many situations may be visualized when the judgment-debtor does not seek to take advantage of the benefit conferred on him under Section 35 of the Act.” “32. Now, coming back to the illustration given by us in the preceding paragraph, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of Sub-clause

(iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise.

33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment 19 of 31 imposed by an employer upon the employee): (1) 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 enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature of (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) 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 of prejudice, viz., whether such violation has prejudiced the delinquent officer/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 in 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 20 of 31 itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision 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, the enquiry officer does not give that opportunity inspite of the delinquent officer/employee asking for it. The prejudice is sell- evident. No proof of prejudice as such need be called for in such a case. To report, 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 one is so inclined. The principle slated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4)(a) 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 a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) In the case of 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 21 of 31 officer/employee has not it or that the provision could not be waived by him, then the Court on Tribunal should make appropriate directions (include the setting aside of the order of punishment) keeping in mind the approach adopted by the Constitution Bench in B. Kaninakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles 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 audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/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 (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule audi alteram partem) has to be examined from the standpoint of prejudice; in other 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 22 of 31 behalf are laid down elsewhere. (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/ Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., 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 arises before them. (7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi 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.”

11. In the above backdrop, in the case in hand, what we find is that a chargesheet was issued to the Petitioner on 15th June, 2018, wherein voluminous record was adverted to and not supplied to him. The alleged misdemeanor was in reference to the stint of the Petitioner as Incumbent In-charge at Shirdi. He, therefore, asked for two days’ time on 18th June, 2018 to visit the branch at Shirdi and verify the records since the issue pertained to his tenure at Shirdi as in 2015. This request was over-looked and the Internal Enquiry was initiated immediately on 20th June, 2018.

12. The learned Advocate for the Respondent Bank hastens 23 of 31 to add that the Petitioner had been to Shirdi on 20th June, 2018 and returned to participate in the Internal Enquiry on 21st

13. We are intrigued by the fact that though the Petitioner confirmed of having received the chargesheet, pleaded innocence and had to take inspection of the voluminous documents presented in the enquiry, the Bank did not lead evidence of any witness to prove the contents of the purported voluminous record produced before the Enquiry Officer.

14. Normally, an Enquiry Officer is appointed and this fact is conveyed to the employee vide a communication, in which the scheduled date, time and venue of the enquiry is mentioned. The Petitioner is said to have gone to Shirdi on 20th June, 2018, returned on 21st June, 2018 and on the same day participated in the Internal Enquiry.

15. The following are glaring facts: (a) The Enquiry Officer is said to have been appointed vide order dated 19th June, 2018. He directed the Petitioner to inspect the entire records on 24 of 31 21st (b) On, 27th June, 2018, the Presenting Officer requested for time to produce all the documents and serve them on the Petitioner, as there were around 381 accounts involved in the enquiry.

(c) The next date of the enquiry was scheduled after 48 hours, on 29th

(d) On 29th June, 2018, the Bank produced voluminous record, which the Petitioner received. (e) The Enquiry Officer granted exhibit numbers to the said documents on 29th June, 2018 and recorded that the Petitioner did not raise an objection. (f) The Bank did not produce any witness. (g) Since the Bank did not lead any evidence, the Petitioner also did not lead any evidence. 25 of 31 (h) The Respondent Bank filed its written submissions by 4.30 pm on 29.06.2018 and the Petitioner was granted time to file his submissions by

5.30 pm, on the same day.

(i) On the next date, that is, 30th June, 2018, the

16. In the light of the above and on perusal of such undisputed facts, we have no hesitation to record that we have never come across such a departmental enquiry, which was conducted in such undue haste. To say that it was completed with electric speed, would be an understatement.

17. Practically, in one single day, this entire enquiry has been conducted by tendering voluminous documents, without examining any witness, the Bank submitting it’s written submissions, the Petitioner being granted only 1 hour to submit his written submissions and the Enquiry was concluded. The Petitioner has been held guilty of financial irregularities on the basis of such an Enquiry. 26 of 31

18. The Enquiry Officer is said to have tendered his Enquiry Report, running into 169 pages, which was prepared overnight. The Petitioner is yet to see the colour of the Enquiry Report. Even the said Report is not on record. We, therefore, requested the learned Advocate for the Bank to let the Court have a glimpse of this report. He has graciously tendered a copy of the report and the same is taken on record and marked as ‘X’ for identification. The said entire report appears to be in an excel spread sheet format and remarks of the Enquiry Officer are below the extreme right column of the report. All this is said to have been done overnight. There is no analysis of the documentary evidence and there are no reasons to draw a conclusion that the Petitioner is guilty.

19. The Respondent Bank submits in its affidavit-in-reply that it is recorded in the order of punishment dated 30th June, 2018 that a copy of the report was supplied to the Petitioner, a notice was issued to him, he submitted his reply to the report and the order was passed. We called upon the learned Counsel to justify this statement on the basis of the record. He was unable to establish that the 27 of 31 Enquiry Officer’s report was served upon the Petitioner. He could not point out his explanation on the Report.

20. We are shocked to find such statements of the Punjab National Bank to be not only unbelievable, but, false. We can surely say that our judicial conscience is shocked. This is an unfair and dishonest recording that the report was supplied to the Petitioner; he was given an opportunity to show cause and after accepting his reply, the order of dismissal is passed. There is nothing on record to prove this.

21. The learned Advocate for the Petitioner is right in submitting that the actual reason behind the Bank rushing through this enquiry with great haste and concluding the enquiry in one single day, getting the report of the Enquiry Officer prepared overnight in between 29th June and 30th June, 2018 and dismissing the Petitioner from service on 30th June, 2018, was only because the Petitioner was to superannuate on 30th

22. Considering all these factors, we have no hesitation in concluding that the Bank has created a farce of conducting a 28 of 31 departmental enquiry. This could be one of the worst kinds of any departmental enquiry. No prudent employer would have conducted an enquiry in such a manner. No prudent Enquiry Officer could have acted in a manner as is visible from the undisputed facts before us.

23. The Petitioner is before us for assailing the order dated 30th June, 2018 and is litigating for the last six years and nine months. Save and except the gratuity amount, no other benefits have been paid to him, apparently because the Petitioner has been dismissed from service. The Bank needs to compensate the Petitioner for the grave injustice caused to him.

24. In view of the above, this Writ Petition is allowed. The impugned order of dismissal, as well as the impugned orders passed by the Appellate Authority and the Reviewing Authority, are quashed and set aside.

25. Needless to state, we have come to the above conclusion since the enquiry is vitiated. So also, the findings of the Enquiry Officer are perverse. Since the Petitioner has been dismissed from service on the last day of his employment, we direct 29 of 31 notional reinstatement of the Petitioner in service with effect from 30th

26. Notwithstanding the above, there is no dispute that the Respondent Bank can conduct a departmental enquiry after the superannuation of an employee, since the chargesheet has been issued to him prior to his superannuation. We are told that the Bank service rules so permit. In the present case, the chargesheet has been issued and the Enquiry Officer has also been appointed prior to the superannuation of the Petitioner.

27. In the light of these facts, it would be open to the employer to commence the enquiry afresh since we have concluded that the Petitioner was not granted an opportunity even to show cause on the chargesheet since the documents were not supplied him and which were supplied only in between 27th and 29th June, 2018 when the enquiry was closed on 29th June, 2018. From that stage, the enquiry can be commenced by ensuring that the principles of Natural Justice are fully adhered to.

28. Considering the role of the Enquiry Officer, which is 30 of 31 under a thick cloud, for allowing himself to be manipulated by the Bank in the manner in which he has acted while conducting the enquiry, we would expect the Bank to appoint a new Enquiry Officer and preferably a practicing Advocate, unconnected with the Bank, to conduct the enquiry from the stage it has been vitiated.

29. In the alternative, it is open to the parties to come together and resolve this issue if they desire a golden handshake and give a quietus to this matter.

30. Considering the rigors of litigation suffered by the Petitioner and the manner in which the enquiry was conducted, to soften the rigors and reduce his pain and agony, we are granting Rs. 5 lacs compensation to the Petitioner. This amount of Rs. 5 lacs shall be paid to the Petitioner directly by the Bank, within a period of 30 days from today.

31. Rule is made partly absolute in the above terms. (ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)