TaxTMI 
TaxTMI 
2008 (5) TMI 649
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....n regard to the said charge. The Enquiry Officer submitted his report dated 11.11.1994 holding that the charge was proved. The Disciplinary Authority furnished a copy of the said report to the respondent and gave him an opportunity to show cause in the matter. 3. Rule 68(3) of the Service Rules required, where the Disciplinary Authority was of the opinion that a major penalty is to be imposed, and where he was lower in rank to the Appointing Authority (in respect of the category of officers to which the delinquent officer belonged), that he should submit to the Appointing Authority, the records of the enquiry together with his recommendations regarding the penalty that may be imposed, and the Appointing Authority should make the order imposing the penalty, which in his opinion was appropriate. In view of the above rule, the Disciplinary Authority after considering the inquiry records and the representation of the respondent, made a recommendation on 2.5.1995 to the Appointing Authority to impose the penalty of 'removal from service' on the respondent. The Appointing Authority considered the entire material and concurred with the recommendation of the Disciplinary Authority....
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....rvice. 5. Feeling aggrieved, both parties filed appeals. Before the First Appellate Court, the respondent did not challenge the finding of the trail court that the domestic enquiry was fair and proper and that his guilt was established. He limited his challenge only to the quantum of punishment (that is, reservation of liberty to the employer to pass a fresh order imposing appropriate penalty) and the denial of back wages. The appellant, in its appeal, contended that the Trial Court, having found that the enquiry was fair and proper and the finding of guilt was justified, ought not to have set aside the order imposing penalty. The two appeals were heard and disposed of by the Additional District Judge, Jind, by a common judgment dated 20.7.2002. The First Appellate Court upheld the decree of the Trial Court, but in addition held that the respondent was entitled to full back wages with interest thereon at 9% per annum. Consequently, the First Appellate Court dismissed the appeal by the appellant and allowed in part the appeal of the respondent. 6. Feeling aggrieved the bank filed the second appeal, which was dismissed by the judgment under appeal. The judgment is short. After refe....
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....ermination. After a cursory wrong reference to the findings of the court below, the High Court wrongly held that the second appeal did not give rise to any substantial question of law, ignoring the several substantial questions of law arising for consideration of the High Court, which were clearly specified in the memorandum of second appeal. We find that the second appeal gave rise to several substantial questions of law including the following : (i) Whether a direction by the Civil Court to reinstate the respondent, amounted to granting specific performance of a contract of personal service which is barred by section 14 of Specific Relief Act, 1963? (ii) In the absence of a pleading that the order imposing penalty was invalid because the Appointing Authority acted on the advice or recommendation of the Chief Vigilance Officer, and in the absence of any issue in that behalf, could the Courts below hold that the order imposing punishment was illegal on that ground? (iii) Whether an order recorded by the Appointing Authority on an office note, to impose the penalty of reduction in pay, which was neither pronounced, published or communicated, is a final decision ....
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....hat the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this court (or by the concerned High Court so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the concerned High Court), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the concerned High Court) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this court (or the concerned High Court) and the same has been followed by the lower court, if the appellant is able to persuad....
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....nvolve any substantial question of law, when the case in fact involves substantial questions of law. (f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law. (g) Deciding second appeals by re-appreciating evidence and interfering with findings of fact, ignoring the questions of law. These lapses or technical errors lead to injustice and also give rise to avoidable further appeals to this court and remands by this court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure that cases involving substantial questions of law are not rejected, as not involving substantial questions of law. 10. In this case, the failure on the part of the High Court to take note of the substantial questions of law involved, has led to unwarranted dismissal of the second appeal and calls for interference. One alternative available to us is to remand the matter to the High Court for formulat....
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....loyer is a non-statutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by courts. (Vide : Dr. S. Dutt vs. University of Delhi AIR 1958 SC 1050; Executive Committee of UP State Warehousing Corporation Ltd. Vs. Chandra Kiran Tyagi 1970 (2) SCR 250; Sirsi Municipality vs. Cecelia Kom Francies Tellis 1973 (3) SCR 348; Executive Committee of Vaish Degree College vs. Lakshmi Narain 1976 (2) SCR 1006; Smt. J. Tiwari vs. Smt. Jawala Devi Vidya Mandir AIR 1981 SC 122; and Dipak Kumar Biswas vs. Director of Public Instruction AIR 1987 SC 1422). 12. In this case the appellant is a statutory body established under the State Bank of India Act, 1955 and the contract of employment was governed by the State Bank of India Officers Service Rules, which are statutory rules framed under section 43(1) of the said Act. The respondent approached the civil court alleging that his removal from service was in violation of the said statutory rules. When an employee of a statutory body whose service is terminated, pleads that such terminatio....
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....penalty of removal. The respondent plaintiff did not amend the plaint to include the averments and grounds to challenge the order of removal on the said additional ground. No issue was framed in that behalf. No amount of evidence on a plea that was not put forward in the pleadings can be looked into. In the absence of necessary pleading and issue, neither the trial court nor the appellate court could have considered the contention and recorded a finding thereon. 14. The learned counsel for the respondent submitted that the order of removal was challenged on the ground that it was opposed to principles of natural justice, and the averments in the plaint were sufficient to enable the plaintiff to establish any ground in support of it and it was not necessary to separately plead each and every fact or ground in support of his contention that the order of removal was vitiated. While there is no need to plead evidence, the grounds of challenge and the facts in support of each ground, will have to be pleaded. In this case, the minimum pleading that was necessary was that the Appointing Authority acted on extraneous material in arriving the decision or acted on the advice or recomm....
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....refore, invalid. 15. Where the enquiry was found to be fair and proper and the finding of guilt in the enquiry in respect of a serious charge was found to be valid, in the absence of any other valid ground of challenge, the courts below ought to have held that the penalty of removal from service did not warrant any interference and dismissed the suit. Be that as it may. We will now consider the matter on merits, on the assumption that the averments in the plaint were sufficient to enable the court to consider this issue. Re : Questions (iii) When did the Appointing Authority became functus officio. 16. Ex.P24 is the note dated 18.1.1995 by which the Disciplinary Authority accepted the finding of guilt recorded arrived at by the Enquiry Officer in regard to the charge against the respondent that he temporarily misappropriated the funds of the customers of the Bank. The Disciplinary Authority though of the view that the respondent deserved a severe punishment, felt that having regard to the length of his service, he should be shown leniency, and therefore, recommended imposition of a lesser punishment of reduction of pay by four stages in the time scale. The Appointing Autho....
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....nce judgment in an open court either at once, or as soon thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders. Sub-rule (3) provides that the judgment may be pronounced by dictation in an open court to a shorthand writer (if the Judge is specially empowered in this behalf). The proviso thereto provides that where the judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced shall, after making such corrections as may be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of the record. Rule 3 provides that the judgment shall be dated and signed by the Judge in open court at the time of pronouncing it and when once signed, shall not afterwards be altered or added to save as provided by section 152 or on review. Thus where a judgment is reserved, mere dictation does not amount to pronouncement, but where the judgment is dictated in open court, that itself amounts to pronouncement. But even after such pronouncement by open court dictation, the Judge can mak....
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.... Thereafter the Disciplinary Authority reconsidered the entire issue again and put up another note dated 23.3.1995/2.5.1995 to the Appointing Authority proposing the punishment of removal from service. After considering the said recommendation, the Appointing Authority passed the following order on the said note on 3.5.1995 : "On a dispassionate and objective evaluation of the facts, circumstances of the case, inquiry proceedings and evidence available, I concur with the recommendations of the disciplinary authority mentioned at serial no.4 of the note and have come to the conclusion that the penalty of "removal from Bank's service" proposed to be inflicted on Sri S.L. Goyal, Officer JMGS-I, is just and appropriate and I, therefore, order imposition of this penalty on the official." 21. It is thus clear that on 18.1.1995, the Appointing Authority had only tentatively approved the proposal of the disciplinary authority that a lenient view be taken by imposing a penalty of reducing the pay by four stages in the time scale; and that on 3.5.1995, a final decision was taken in regard to the penalty and that final order was communicated to the respondent as per letter dated 30.6.1....
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....cial. Yours faithfully, Chief General Manager." 23. The reply dated 7.2.1995 from the Chief Vigilance Officer also makes it clear that he neither issued any direction to the Appointing Authority to impose a higher punishment nor altered the finding regarding guilt. He merely gave his opinion that the gravity of the proved charge did not warrant leniency and therefore, suggested that the quantum of penalty may be examined again. The subsequent note put up by the disciplinary authority on 2.5.1995 and the order passed thereon by the appointing authority on 3.5.1995 imposing the penalty of removal, show that they were on independent consideration of the question. Neither the note dated 2.5.1995 nor the order dated 3.5.1995 refer to the opinion or the view expressed by the Chief Vigilance Officer of the Bank. Nor is there any material to show that the order imposing punishment was on the dictates of the Chief Vigilance Officer. There was no mechanical acceptance of any suggestion or advice by the Chief Vigilance Officer nor consideration of any extraneous material as assumed by the courts below. The Appointing Authority is required to inform the vigilance department in regard to cas....
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.... that the gravity of the charge did not warrant leniency and the authority should examine the matter. Therefore the assumption by the High Court that the Appointing Authority had placed some material not put to the respondent, before the Chief Vigilance Officer and that the Chief Vigilance Officer had issued any direction to the Appointing Authority on the basis of such material, is baseless. 25. The Disciplinary Authority made available the Enquiry Report to the respondent to enable him to make his submissions on the findings of the Enquiry Officer. The respondent made his submissions in regard to the Enquiry Report. The correspondence between the Appointing Authority and Chief Vigilance Officer of the Bank was not 'material' on which the finding regarding guilt/misconduct was based. Such correspondence was subsequent to the Enquiry Report. There was no compulsion or requirement that the Appointing Authority should consult the Chief Vigilance Officer or act as per his recommendations or directions. Nor was there any direction by the Chief Vigilance Officer to impose any specific direction. Therefore non furnishing of copies of the correspondence between the Appointing Aut....
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....d the imposition of major penalty of removal. A copy of the CVC's recommendation was not furnished to the employee. The disciplinary authority acting on the recommendation of the CVC and agreeing with CVC's finding of guilt, passed an order but imposed a punishment lesser than what was directed by CVC. This Court held that the order of the disciplinary authority imposing punishment was vitiated as it violated the principles of natural justice by denying the copy of the recommendation of the CVC which was prepared behind his back. The said decision therefore related to CVC examining the facts of the case and arrived at a finding relating to guilt contrary to the finding of the Enquiry Officer and such finding being accepted by the Disciplinary Authority without giving opportunity to the employee to comment upon the CVC Report finding him guilty. In this case as noticed above, the Enquiry Report relating to guilt was not referred to the opinion of the Vigilance Department at all. The Vigilance Department neither expressed any view in regard to the finding of guilt recorded by the Enquiry Officer nor did it re-assess the evidence or arrive at a finding different from that of t....