Sec.354 of I.P.C. - Offence took place in the year 2000 - whether compoundable- amendment was taken place in the year 2008 declaring as non-compoundable offence - Both parties are living in peace - victim personally impleaded and sought for compromise free of force, coercion etc., -Apex court permitted them to compound and as such set aside the lower court orders and acquit the accused = Bharti ...Appellant Vs. State of Haryana & Anr. …Respondents = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41265

 Sec.354 of I.P.C. - Offence took place in the year 2000 - whether compoundable- amendment was taken place in the year 2008 declaring as non-compoundable offence - Both parties are living in peace - victim personally impleaded and sought for compromise free of force, coercion etc., -Apex court permitted them to compound and as such set aside the lower court orders and acquit the accused =

In the year 2000 when the offence was committed, Section  451  of  the
IPC was compoundable with the permission of  the  Court  by  the  person  in
possession of the house trespassed upon.  At that time Section  354  of  the
IPC was also compoundable with the permission of  the  Court  by  the  woman
assaulted to whom the criminal force was used.   By  the  Code  of  Criminal
Procedure (Amendment) Act, 2008 (5 of 2009), Section  354  of  the  IPC  was
made non-compoundable. The question is, therefore, whether in  view  of  the
compromise this Court should permit compounding of the offence.

5.    We notice from  the  judgment  of  the  Sessions  Court  that  in  the
Sessions Court affidavits were filed by respondent No.  2  and  her  husband
stating that the matter was settled.  The  Sessions  Court  did  not  accept
those affidavits and proceeded to convict the  appellant.   The  High  Court
confirmed the conviction.

6.    We are mindful of the fact that Section 354  of  the  IPC  is,  as  of
today, non-compoundable.  But, as noticed by us, it  was  compoundable  when
the instant offence was committed with the permission of  the  court.   Even
then, we would have hesitated to permit compounding of  the  offence.   But,
facts of this case are very  peculiar.   Respondent  No.2  and  her  husband
have, even today, maintained their stand taken in the trial court that  they
have entered into a compromise with  the  appellant.   As  we  have  already
noted, respondent No.2 has filed an affidavit to that effect in this  Court.
 Compromise is, therefore, not an afterthought.  Pertinently,  the  incident
in question  took-place way back in the year  2000.   About  13  long  years
have gone-by. In  her  affidavit  respondent  No.  2  has  stated  that  the
appellant is her neighbour and they are staying peacefully since  2000  till
date.  We are of the opinion that since the appellant and respondent  No.  2
are neighbours it would be in the interest of justice to permit the  parties
to compound the offences.  If the conviction  is  confirmed,  the  relations
may get strained and the peace, which is  now  prevailing  between  the  two
families, may be disturbed. In the peculiar facts of this  case,  therefore,
in order to accord  quietus  to  the  disputes  between  the  appellant  and
respondent No. 2 and  in  the  larger  interest  of  peace,  we  permit  the
appellant and respondent No.  2  to  compound  the  offences.   Accordingly,
offences under Sections  451  and  354  of  the  IPC  are  permitted  to  be
compounded.   The  impugned  judgment  is  set  aside.   The  appellant   is
acquitted. The appellant-Bharti is in jail.  The appellant-Bharti should  be
released forthwith, unless he is required in any other case.
7.    The appeal is disposed of in the afore-stated terms.

2014(Feb.Part) judis.nic.in/supremecourt/filename=41265
RANJANA PRAKASH DESAI, MADAN B. LOKUR

                                                              NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.509  OF 2014
        [Arising out of Special Leave Petition (Crl.) No.371 of 2014]

Bharti                                             ...Appellant

            Vs.

State of Haryana  & Anr.                           …Respondents

                                O  R  D  E  R

1.    Leave granted.

2.    The appellant was  convicted  by  the  Sessions  Judge,  Faridabad  in
Sessions Case No. 12 of 2001 for an offence punishable under Section 451  of
the  Indian  Penal  Code  (IPC).   He  was  sentenced  to  suffer   rigorous
imprisonment for one year and a fine of Rs. 500/-,  in  default,  to  suffer
further rigorous imprisonment for a period of  two  months.   The  appellant
was also convicted under Section 354 of the IPC  and  sentenced  to  undergo
rigorous imprisonment for one year and a fine of Rs. 500/-, in  default,  to
further suffer  rigorous  imprisonment  for  two  months.   The  substantive
sentences were ordered to run concurrently.  Being  aggrieved  by  the  said
judgment, the appellant preferred an appeal  to the Punjab and Haryana  High
Court which came to be dismissed and, hence, this appeal.

3.    During the hearing of this appeal, this Court was  informed  that  the
appellant and the complainant Smt. Mukesh w/o Shri Rakesh have entered  into
a compromise.   The  appellant  filed  an  application  for  impleadment  of
complainant Smt. Mukesh w/o Shri Rakesh. On 27/1/2014 this  Court  permitted
impleadment.   Thus,  the  complainant  Smt.  Mukesh  w/o  Shri  Rakesh   is
respondent No. 2 in the present  appeal.   Affidavit   dated  3/10/2013  has
been filed by  the  complainant  stating  that   with  the  intervention  of
respectable persons of the  village  and  relatives  from  both  sides,  the
matter has been compromised between her and the appellant and now  there  is
no dispute between them, at all.  It is further stated that  respondent  No.
2 and the  appellant  are  neighbours  and  are  living  peacefully  and  no
untoward incident has taken place since 2000.  It  is  further  stated  that
respondent No. 2 will have no objection if the FIR lodged  by  her  and  all
the consequential proceedings arising out of  the  said  FIR  including  the
judgments rendered by the  courts  below  against  the  appellant,  are  set
aside.  Respondent No.  2  has  further  stated  that  she  is  filing  this
affidavit  without  any  pressure  or  coercion.  Learned  counsel  for  the
appellant and respondent No. 2 have confirmed that the parties have  entered
into a compromise.

4.    In the year 2000 when the offence was committed, Section  451  of  the
IPC was compoundable with the permission of  the  Court  by  the  person  in
possession of the house trespassed upon.  At that time Section  354  of  the
IPC was also compoundable with the permission of  the  Court  by  the  woman
assaulted to whom the criminal force was used.   By  the  Code  of  Criminal
Procedure (Amendment) Act, 2008 (5 of 2009), Section  354  of  the  IPC  was
made non-compoundable. The question is, therefore, whether in  view  of  the
compromise this Court should permit compounding of the offence.

5.    We notice from  the  judgment  of  the  Sessions  Court  that  in  the
Sessions Court affidavits were filed by respondent No.  2  and  her  husband
stating that the matter was settled.  The  Sessions  Court  did  not  accept
those affidavits and proceeded to convict the  appellant.   The  High  Court
confirmed the conviction.

6.    We are mindful of the fact that Section 354  of  the  IPC  is,  as  of
today, non-compoundable.  But, as noticed by us, it  was  compoundable  when
the instant offence was committed with the permission of  the  court.   Even
then, we would have hesitated to permit compounding of  the  offence.   But,
facts of this case are very  peculiar.   Respondent  No.2  and  her  husband
have, even today, maintained their stand taken in the trial court that  they
have entered into a compromise with  the  appellant.   As  we  have  already
noted, respondent No.2 has filed an affidavit to that effect in this  Court.
 Compromise is, therefore, not an afterthought.  Pertinently,  the  incident
in question  took-place way back in the year  2000.   About  13  long  years
have gone-by. In  her  affidavit  respondent  No.  2  has  stated  that  the
appellant is her neighbour and they are staying peacefully since  2000  till
date.  We are of the opinion that since the appellant and respondent  No.  2
are neighbours it would be in the interest of justice to permit the  parties
to compound the offences.  If the conviction  is  confirmed,  the  relations
may get strained and the peace, which is  now  prevailing  between  the  two
families, may be disturbed. In the peculiar facts of this  case,  therefore,
in order to accord  quietus  to  the  disputes  between  the  appellant  and
respondent No. 2 and  in  the  larger  interest  of  peace,  we  permit  the
appellant and respondent No.  2  to  compound  the  offences.   Accordingly,
offences under Sections  451  and  354  of  the  IPC  are  permitted  to  be
compounded.   The  impugned  judgment  is  set  aside.   The  appellant   is
acquitted. The appellant-Bharti is in jail.  The appellant-Bharti should  be
released forthwith, unless he is required in any other case.
7.    The appeal is disposed of in the afore-stated terms.


                             ….…………………………………….J.
                           (RANJANA PRAKASH DESAI)


                             ………………………………………..J.
                              (MADAN B. LOKUR)
NEW DELHI;
FEBRUARY 27, 2014.
-----------------------
5

Land Acquisition -Sec. 18 of L.A.Act - enhancement of compensation basing earlier judgement which is a continuous chunk of acquired land and which was situated in same geographical possession and adopted the method of 10% per year in market value - Apex court held that nothing found wrong and confirmed the order of High court = Defence Research & Development Organization ….Appellant VERSUS Anjanappa & Anr. ….Respondents= 2014(Feb.Part) judis.nic.in/supremecourt/filename=41274

   Land Acquisition -Sec. 18 of L.A.Act - enhancement of compensation basing earlier judgement which is a continuous chunk of acquired land and which was situated in same geographical possession and adopted the method of 10% per year in market value - Apex court held that nothing found wrong and confirmed the order of High court =
 The High  Court
      further enhanced the market value of land at the rate of Rs. 7,70,000/-
       in respect of land acquired under Notifications  dated  4.3.1993  and
      13.5.1993 and enhanced the market value of the land covered under  the
      Notification dated 2.6.1995  to Rs.8,40,000/-.
            Hence, these appeals and special leave petitions.


      3.    The High Court had adopted the method of 10  per  cent  increase
      every year in the market value of the land and used  the  exemplar  to
      conclude that the appellant cannot be permitted to acquire the land of
      the respondents at the price lesser than the  market  value  of  their
      land.  The Court placed reliance  on  the  earlier  judgments  of  the
      Division Bench of the High Court of Karnataka and held that  the  land
      was comparable to the lands wherein the  award  dated  13.11.2002  had
      been delivered in LAC No. 263 of 1996.  The land  in  question  had  a
      potential value on the date of preliminary Notification as was evident
      from the oral evidence adduced before the Reference Court.  There  was
      no dispute that the land which was subject matter of LAC 263  of  1996
      and the lands in question were in  contiguous  and  same  geographical
      situation.  After reaching the conclusion by the court, the award  was
      given as per the market value as referred to hereinabove.
      4.    The High Court relied upon the judgment in earlier case  in  LAC
      No. 263 of 1996 and reached the aforesaid conclusion. Considering  the
      geographical  situation  of  the  land,  it  cannot   be   held   that
      compensation awarded is not justified.


            We do not see any cogent reason to interfere with  the  impugned
      judgment and order, the appeals and special leave petitions lack merit
      and are accordingly dismissed.

2014(Feb.Part) judis.nic.in/supremecourt/filename=41274
B.S. CHAUHAN, J. CHELAMESWAR
                                                              REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 7269 OF 2013




      Defence Research & Development Organization         ….Appellant


                                   VERSUS
      Anjanappa & Anr.                                        ….Respondents


                                    WITH


                      SLP (C) NO (s). 1046-1059 of 2009
                      SLP(C) NO(s).  17875-17881 of 2009
                      SLP(C) NO(s).  29763-29765 of 2010
                     SLP(C) NO(s).  31805-31806 of 2010
                      SLP(C) NO(s). 35767-35778 of 2010
                      SLP(C) NO(s). 14378-14379 of 2013
                       SLP(C) NO(s).  767-768 of 2011
                      SLP(C) NO(s). 23294-23337 of 2012
                        SLP (C) NO(s). 22532 of 2010
                      SLP(C) NO(s). 22533-22534 of 2010
                      SLP(C) NO(s). 22535-22536 of 2010
                      SLP(C) NO(s). 22538-22539 of 2010
                      SLP(C) NO(s). 25647-25648 of 2010
                      SLP(C) NO(s). 25649-25652 of 2010
                        CIVIL APPEAL NO. 1425 of 2013


                                  O R D E R


      1.     All  these  appeals  and  Special  Leave  Petitions  have  been
      preferred against various impugned judgments and orders passed by  the
      High Court of Karnataka at Bangalore in various appeals including M.A.
      No. 2588 of 2004 by which the High Court has enhanced  the  amount  of
      compensation.


      2.    The facts and circumstances giving rise  to  these  appeals  and
      special leave petitions  mostly  disposed  of  by  a  common  judgment
      impugned before us had been that:
      A.    A huge chunk of land stood notified under Section 4 of the  Land
      Acquisition Act, 1894  (hereinafter  referred  to  as  the  Act)  vide
      Notifications dated 4.3.1993, 13.5.1993 and 2.6.1995 for  the  use  of
      Defence Research and Development Organisation and the  possession  was
      taken after completing  all  the  requirements  under  the  Act.   The
      persons interested therein filed their claims under Section 5  of  the
      Act and  led  evidence,  on  the  basis  of  which  the  Special  Land
      Acquisition Officer (hereinafter called as the  `SLAO’)  had  assessed
      the market value of the land as Rs. 60,000/- per acre.
      B.  Aggrieved, the  respondents  approached  the  Reference  Court  by
      filing applications under Section 18 of  the  Act  and  the  Reference
      Court vide award dated 30.11.2002 assessed the  market  value  at  the
      rate of Rs. 3,15,000/- per acre and Rs.3,45000/- per acre with respect
      to Notifications dated 4.3.1993, 13.5.1993 and 2.6.1995 respectively.
      C.    Aggrieved, the Union of India filed appeals under Section 54  of
      the Act for reducing the amount of compensation before the High Court.
       Respondents preferred cross-objections which have  been  allowed  and
      the appeals of the Union of India have been dismissed. The High  Court
      further enhanced the market value of land at the rate of Rs. 7,70,000/-
       in respect of land acquired under Notifications  dated  4.3.1993  and
      13.5.1993 and enhanced the market value of the land covered under  the
      Notification dated 2.6.1995  to Rs.8,40,000/-.
            Hence, these appeals and special leave petitions.


      3.    The High Court had adopted the method of 10  per  cent  increase
      every year in the market value of the land and used  the  exemplar  to
      conclude that the appellant cannot be permitted to acquire the land of
      the respondents at the price lesser than the  market  value  of  their
      land.  The Court placed reliance  on  the  earlier  judgments  of  the
      Division Bench of the High Court of Karnataka and held that  the  land
      was comparable to the lands wherein the  award  dated  13.11.2002  had
      been delivered in LAC No. 263 of 1996.  The land  in  question  had  a
      potential value on the date of preliminary Notification as was evident
      from the oral evidence adduced before the Reference Court.  There  was
      no dispute that the land which was subject matter of LAC 263  of  1996
      and the lands in question were in  contiguous  and  same  geographical
      situation.  After reaching the conclusion by the court, the award  was
      given as per the market value as referred to hereinabove.
      4.    The High Court relied upon the judgment in earlier case  in  LAC
      No. 263 of 1996 and reached the aforesaid conclusion. Considering  the
      geographical  situation  of  the  land,  it  cannot   be   held   that
      compensation awarded is not justified.


            We do not see any cogent reason to interfere with  the  impugned
      judgment and order, the appeals and special leave petitions lack merit
      and are accordingly dismissed.




                                                     ….………………………..........J.
                                                                (Dr.    B.S.
      CHAUHAN)




                                ……….......................................J.
                                                                         (J.
      CHELAMESWAR)


      NEW DELHI;
      February 26, 2014.








-----------------------
4

Principles of Natural Justice - verses - National security -Powers of court - Whether any reasonable restriction or limitation or exception to this principle is permissible in the interest of national security, is the issue we are called upon to consider in this case. - Apex court held that Thus, in a situation of national security, a party cannot insist for the strict observance of the principles of natural justice. In such cases it is the duty of the Court to read into and provide for statutory exclusion, if not expressly provided in the rules governing the field . Depending on the facts of the particular case, it will however be open to the court to satisfy itself whether there were justifiable facts, and in that regard, the court is entitled to call for the files and see whether it is a case where the interest of national security is involved. Once the State is of the stand that the issue involves national security, the court shall not disclose the reasons to the affected party.= Ex. Armymen’s Protection Services P. Ltd. … APPELLANT (S) VERSUS Union of India and others … RESPONDENT (S)= 2014(Feb.Part) judis.nic.in/supremecourt/filename=41264

   Principles of Natural Justice - verses - National security -Powers of court - Whether any reasonable restriction or limitation or exception to  this principle is permissible in the interest of national security, is  the issue we are called upon to consider in this case. - Apex court held that Thus, in a situation of national security, a party cannot  insist  for the strict observance of the principles of natural  justice.  In  such cases it is the duty of  the  Court  to  read  into  and  provide  for statutory exclusion, if not expressly provided in the rules  governing the field . Depending on the facts of the  particular  case,  it  will however be open to the court to  satisfy  itself  whether  there  were justifiable facts, and in that regard, the court is entitled  to  call for the files and see whether it is  a  case  where  the  interest  of national security is involved. Once the State is of the stand that the  issue involves national security, the court  shall  not  disclose  the reasons to the affected party.=

 Natural justice is a principle of universal application.  It  requires
      that  persons  whose  interests  are  to  be  affected  by  decisions,
      adjudicative and administrative, receive a fair and  unbiased  hearing
      before the decisions are made.  
The  principle  is  traceable  to  the
      Fundamental Rights under  Part  III  of  the  Constitution  of  India.
      Whether any reasonable restriction or limitation or exception to  this
      principle is permissible in the interest of national security, is  the
      issue we are called upon to consider in this case.=

The appellant was granted business  of  ground  handling  services  on
      behalf of various airlines at different airports in the  country.  The
      ground handling service is subject  to  security  clearance  from  the
      Central Government.
 On
      27.11.2008, the appellant  company  was  informed  that  the  security
      clearance had been withdrawn in national interest. That was challenged
      by the appellant company before the High Court of Judicature at  Patna
      in CWJC No. 758 of 2009. =
The  BCAS  accordingly  passed  order  dated  20.04.2009,
      holding the view that documents available in the file were  classified
      as ‘secret’ and the same could not be shared with the  appellant  and,
      thus, order dated 27.11.2008 withdrawing the  security  clearance  was
      affirmed. That was challenged by  the  appellant  in  the  High  Court
      leading to judgment dated 27.10.2009.
Single judge of High court allowed the writ and dismissed the order of BCAS
where as
the Division Bench of the High  Court  also
      called for the files and after minute perusal of the  same,  took  the
      view that there were many more materials available in the files  which
      could not be disclosed in  national  interest  to  the  appellant  and
      hence, the impugned action was justified. It was held that:
      “… The learned single judge, after perusal of the allegations  in  the
      sealed cover, we are disposed to think, has not taken it seriously  on
      the ground that the allegations were to please the  politicians,  etc.
      the same is not actually correct. We have already,  after  perusal  of
      the report, stated earlier that it contains many more things  and  the
      basic ingredients of security  are  embedded  in  it.  The  report  is
      adverse in nature. It cannot be  said  to  be  founded  on  irrelevant
      factors. We are  disposed  to  think  that  any  reasonable  authority
      concerned with security measures and public interest could have  taken
      such a view. The emphasis laid  in  the  report  pertains  to  various
      realms and the cumulative effect  of  the  same  is  the  irresistible
      conclusion that it is adverse to security as has  been  understood  by
      the authority. This court cannot disregard the same  and  unsettle  or
      dislodge it as if it is adjudicating an appeal.”

                                                         (Emphasis supplied)



and thus, the appeal was allowed setting  aside  the  order  passed  by  the
learned Single Judge.

   8. Thus aggrieved, the appellant is before us.
Apex court conclusion 

Thus, in a situation of national security, a party cannot  insist  for
      the strict observance of the principles of natural  justice.  In  such
      cases it is the duty of  the  Court  to  read  into  and  provide  for
      statutory exclusion, if not expressly provided in the rules  governing
      the field.  Depending on the facts of the  particular  case,  it  will
      however be open to the court to  satisfy  itself  whether  there  were
      justifiable facts, and in that regard, the court is entitled  to  call
      for the files and see whether it is  a  case  where  the  interest  of
      national security is involved. Once the State is of the stand that the
      issue involves national security, the court  shall  not  disclose  the
      reasons to the affected party.



  18. Be that as it may, on  facts  we  find  that  the  security  clearance
      granted to the appellant by order dated 17.04.2007  for  a  period  of
      five years has already expired. To quote:


           “I am directed to  inform  you  that  background  check  or  the
      company  has  been  conducted  and  nothing  adverse  has  been  found
      Companies security clearance shall be valid for a period of five years
      from the date of this letter at the end of which a fresh  approval  of
      this Bureau is mandatory.”
2014(Feb.Part) judis.nic.in/supremecourt/filename=41264

        SUDHANSU JYOTI MUKHOPADHAYA, KURIAN JOSEPH

                                                   REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CIVIL  APPELLATE  JURISDICTION

                       CIVIL APPEAL NO. 2876    /2014
              [Arising out of S.L.P. (Civil) No. 15000 of 2010]


Ex. Armymen’s Protection Services P. Ltd.    … APPELLANT (S)

                                   VERSUS

Union of India and others                    … RESPONDENT (S)



                               J U D G M E N T


KURIAN, J.:

      Leave granted.


   2. Natural justice is a principle of universal application.  It  requires
      that  persons  whose  interests  are  to  be  affected  by  decisions,
      adjudicative and administrative, receive a fair and  unbiased  hearing
      before the decisions are made.  The  principle  is  traceable  to  the
      Fundamental Rights under  Part  III  of  the  Constitution  of  India.
      Whether any reasonable restriction or limitation or exception to  this
      principle is permissible in the interest of national security, is  the
      issue we are called upon to consider in this case.

   3. The appellant was granted business  of  ground  handling  services  on
      behalf of various airlines at different airports in the  country.  The
      ground handling service is subject  to  security  clearance  from  the
      Central Government. Section 5 of the Aircraft Act, 1934  empowers  the
      Government to make  rules  providing  for  licensing,  inspection  and
      regulation of aerodromes and, thus, Aircraft  Rules,  1937  have  been
      framed. Rule 92 proves for ground handling services. The Rule reads as
      follows:
      “92.  Ground Handling Services-   The licensee shall, while  providing
      ground handling service by itself, ensure a competitive environment by
      allowing the airline operator at the airport to  engage,  without  any
      restriction, any of  the  ground  handling  service  provider  who  is
      permitted by the Central Government to provide such service:


      Provided that such ground handling service provider shall  be  subject
      to the security clearance of the Central Government.”
                                                         (Emphasis supplied)



   4. For processing the security clearance, the Central Government  created
      a Bureau of  Civil  Aviation  Security  (hereinafter  referred  to  as
      ‘BCAS’). As per circular No. 4 of  2007  dated  19.02.2007  issued  by
      BCAS, no ground handling agency  shall  be  allowed  to  work  in  any
      airport without prior  security  clearance  obtained  from  BCAS.  The
      appellant company was granted security clearance for a period of  five
      years w.e.f. 17.04.2007.  On  the  strength  of  such  clearance,  the
      appellant company entered into a contract with  Jet  Airways  for  the
      ground handling services in various  aerodromes  including  Patna.  On
      27.11.2008, the appellant  company  was  informed  that  the  security
      clearance had been withdrawn in national interest. That was challenged
      by the appellant company before the High Court of Judicature at  Patna
      in CWJC No. 758 of 2009. The said writ petition  was  disposed  of  by
      judgment  dated  25.03.2009  directing  the  BCAS  to  afford  a  post
      decisional hearing. There was also  a  direction  that  the  appellant
      should be  furnished  materials  relied  on  by  the  respondents  for
      withdrawal of the security clearance, without disclosing the source of
      information. The  BCAS  accordingly  passed  order  dated  20.04.2009,
      holding the view that documents available in the file were  classified
      as ‘secret’ and the same could not be shared with the  appellant  and,
      thus, order dated 27.11.2008 withdrawing the  security  clearance  was
      affirmed. That was challenged by  the  appellant  in  the  High  Court
      leading to judgment dated 27.10.2009.

   5. The learned Single Judge called for the files and they  were  produced
      in a sealed cover. According to the Single Judge “the information that
      is available is an apology in support of the action. There was nothing
      at all to justify any  such  emergent  action  so  as  to  avoid  pre-
      decisional  hearing”.  The  court  was  also  of  the  view  that  the
      principles of natural justice would have to be read into wherever  any
      administrative action visits a person with civil consequences,  unless
      such procedure is excluded by any Statute.  However,  the  court  also
      held that if there are  justifiable  facts  and  there  is  threat  to
      national security, then, nobody, let alone the court,  can  insist  on
      the compliance of principles of natural justice as a pre condition for
      taking any action resulting even in adverse civil consequences.

   6. Learned Single Judge was also of  the  view  that  at  least  gist  of
      allegations should be disclosed so that the  affected  party  gets  an
      opportunity to meet the same at the time of hearing. In the absence of
      any such justifiable reason, the impugned order was set aside and  the
      writ petition was allowed.

   7. In the intra court appeal, the Division Bench of the High  Court  also
      called for the files and after minute perusal of the  same,  took  the
      view that there were many more materials available in the files  which
      could not be disclosed in  national  interest  to  the  appellant  and
      hence, the impugned action was justified. It was held that:
      “… The learned single judge, after perusal of the allegations  in  the
      sealed cover, we are disposed to think, has not taken it seriously  on
      the ground that the allegations were to please the  politicians,  etc.
      the same is not actually correct. We have already,  after  perusal  of
      the report, stated earlier that it contains many more things  and  the
      basic ingredients of security  are  embedded  in  it.  The  report  is
      adverse in nature. It cannot be  said  to  be  founded  on  irrelevant
      factors. We are  disposed  to  think  that  any  reasonable  authority
      concerned with security measures and public interest could have  taken
      such a view. The emphasis laid  in  the  report  pertains  to  various
      realms and the cumulative effect  of  the  same  is  the  irresistible
      conclusion that it is adverse to security as has  been  understood  by
      the authority. This court cannot disregard the same  and  unsettle  or
      dislodge it as if it is adjudicating an appeal.”

                                                         (Emphasis supplied)



and thus, the appeal was allowed setting  aside  the  order  passed  by  the
learned Single Judge.

   8. Thus aggrieved, the appellant is before us.

   9. By order dated 17.05.2010, while issuing notice, this Court stayed the
      operation of the impugned judgment of the Division Bench.

  10. Heard the counsels on both sides.  The  learned  Single  Judge,  after
      going through the files, has taken one view and  the  Division  Bench,
      after going through the entire files,  some  of  which  had  not  been
      noticed by the learned Single Judge, has taken another view. We do not
      find it necessary for this Court to go into the  disputed  contentions
      or on the different views taken by the High Court.  We  find  that  on
      principle of law, the High Court, be it  through  the  learned  Single
      Judge or the Division Bench, is of the same  view.  According  to  the
      learned Single Judge, if there  are  justifiable  facts  and  national
      security is threatened, then, a party cannot insist nor any court  can
      insist on compliance of principle of natural justice  as  a  condition
      precedent to take adverse action. Though  in  different  words,  after
      having gone through the entire files, it is the  same  principle  that
      has been restated and reiterated by the Division Bench in the impugned
      judgment.

  11. It is now settled law that there are some special  exceptions  to  the
      principles of natural justice though  according  to                Sir
      William  Wade[1],  any  restriction,  limitation   or   exception   on
      principles of natural justice is  “only  an  arbitrary  boundary”.  To
      quote further:
           “The right to a fair hearing may have  to  yield  to  overriding
      considerations of national security. The  House  of  Lords  recognized
      this necessity where civil servants at the  government  communications
      headquarters, who had to handle secret information vital  to  national
      security, were abruptly put under  new  conditions  of  service  which
      prohibited membership of national trade unions. Neither they nor their
      unions were consulted, in disregard of an  established  practice,  and
      their complaint to the courts would have  been  upheld  on  ground  of
      natural justice, had there not been a threat to national security. The
      factor which ultimately prevailed was the danger that the  process  of
      consultation itself would have precipitated further strikes, walkouts,
      overtime bans and disruption generally of a kind which had plagued the
      communications headquarters shortly beforehand and which were a threat
      of national security.  Since  national  security  must  be  paramount,
      natural justice must then give way.


           The  Crown  must,  however,  satisfy  the  court  that  national
      security is at risk.  Despite  the  constantly  repeated  dictum  that
      ‘those who are responsible for the national security must be the  sole
      judges of what the national security requires’, the court  will insist
      upon evidence that an issue of national security arises, and only then
      will it accept the opinion of the Crown that it  should  prevail  over
      some legal right. …”

                                                         (Emphasis supplied)




  12. In Council of Civil Service Union and others v. Minister for the Civil
      Service[2], the House  of  Lords  had  an  occasion  to  consider  the
      question. At page-402, it has been held as follows:


      “… The decision on  whether  the  requirements  of  national  security
      outweigh the duty of fairness  in  any  particular  case  is  for  the
      Government and not for the courts; the Government alone has access  to
      the necessary information, and in any even  the  judicial  process  is
      unsuitable for reaching decisions on national  security.  But  if  the
      decision is successfully challenged, on the ground that  it  has  been
      reached by a process which is unfair, then the Government is under  an
      obligation to produce evidence that the decision was in fact based  on
      ground of national security. …”

                                                         (Emphasis supplied)



  13. The Privy Council in The Zamora[3], held as follows at page-107:
      “… Those who are responsible for the national  security  must  be  the
      sole judges of what  the  national  security  requires.  It  would  be
      obviously undesirable that such matters should be made the subject  of
      evidence in a Court of law or otherwise discussed in public.”




  14. According to Lord Cross  in  Alfred  Crompton  Amusement  Machines  v.
      Customs and Excise Commissioners (No.2)[4]:

      “… In a case where  the  considerations  for  and  against  disclosure
      appear to be fairly evenly balanced the courts should I think uphold a
      claim to privilege on the grounds of public interest and trust to  the
      head of the department concerned to do whatever he can to mitigate the
      effects of non-disclosure. …”




  15. It is difficult to define in  exact  terms  as  to  what  is  national
      security.    However,    the    same    would    generally     include
      socio-political stability, territorial integrity, economic  solidarity
      and strength,  ecological  balance,  cultural  cohesiveness,  external
      peace, etc.

  16. What is in the interest of national security is not a question of law.
      It is a matter of policy. It is not for the court  to  decide  whether
      something is in the interest of State or not. It should be left to the
      Executive. To quote Lord Hoffman in Secretary of State  for  the  Home
      Department v. Rehman[5]:

      “… in the matter of national security is not a question of law. It  is
      a matter of judgment and policy. Under the Constitution of the  United
      Kingdom and most other countries, decisions as to whether something is
      or is not in the interest of national security are not  a  matter  for
      judicial decision. They are entrusted to the executive.”




  17. Thus, in a situation of national security, a party cannot  insist  for
      the strict observance of the principles of natural  justice.  In  such
      cases it is the duty of  the  Court  to  read  into  and  provide  for
      statutory exclusion, if not expressly provided in the rules  governing
      the field.  Depending on the facts of the  particular  case,  it  will
      however be open to the court to  satisfy  itself  whether  there  were
      justifiable facts, and in that regard, the court is entitled  to  call
      for the files and see whether it is  a  case  where  the  interest  of
      national security is involved. Once the State is of the stand that the
      issue involves national security, the court  shall  not  disclose  the
      reasons to the affected party.



  18. Be that as it may, on  facts  we  find  that  the  security  clearance
      granted to the appellant by order dated 17.04.2007  for  a  period  of
      five years has already expired. To quote:


           “I am directed to  inform  you  that  background  check  or  the
      company  has  been  conducted  and  nothing  adverse  has  been  found
      Companies security clearance shall be valid for a period of five years
      from the date of this letter at the end of which a fresh  approval  of
      this Bureau is mandatory.”

                                                         (Emphasis supplied)







  19. In that view of the matter, it has become unnecessary for  this  Court
      to go into more factual details and consideration  of  the  appeal  on
      merits. The same is accordingly disposed of.

  20. There is no order as to costs.



                                         ………..…………………….…..…………J.
                         (SUDHANSU JYOTI MUKHOPADHAYA)


                                       ………….………..…………………………J.
                                   (KURIAN JOSEPH)

New Delhi;
February 26, 2014.































-----------------------
[1]    Administrative Law, 10th Edition, H.W.R. Wade & C.F. Forsyth, Pages-
468-470.
[2]    (1985) AC 374
[3]    (1916) II AC 77
[4]    (1974) AC 405, Page- 434
[5]    (2003) 1 AC 153

-----------------------
10

Service matter - Senior manger was awarded with punishment of reducing him in two stages in pay scale with cumulative effect as the charge one was partly proved after consultation with CVC - High court set aside the same and further directed to give promotion - Apex court partly allowed the appeal and partly set aside the order of High court as his record is not satisfactory one , High court can not give such direction for promotion =Oriental Bank of Commerce & Ors. … Appellant (s) Versus S.S. Sheokand & Anr. … Respondent (s) =2014(Feb.Part) judis.nic.in/supremecourt/filename=41263

  Service matter - Senior  manger was awarded with punishment of reducing him in two stages in pay scale with cumulative effect as the charge one was partly proved  after consultation with CVC - High court set aside the same and further directed to give promotion - Apex court partly allowed the appeal and partly set aside the order of High court as his record is not satisfactory one , High court can not give such direction for promotion =
 Division Bench  of  Punjab  and  Haryana  High
Court in Civil Writ Petition  No.18847  of  2001,  allowing  the  said  Writ
Petition filed by the respondent, a Senior Manager  in  the  appellant-bank.
That judgment and  order  quashed  the  disciplinary  order  passed  by  the
appellant-bank reducing him in two  stages  in  pay  scale  with  cumulative
effect and also directed that he be considered for further promotion.=

“Charge No.1 –  Respondent  had  unauthorisedly  purchased  3rd  party
           cheques/drafts of huge amount aggregating to Rs.45.23 crores for
           a number of parties much  beyond  his  discretionary  powers  of
           lending without completing pre-sanction formalities in violation
           of head office guidelines.  Thus he violated Regulation 3(i)  of
           Oriental  Bank   of   Commerce   Officer   Employees   (Conduct)
           Regulation, 1982.

      Charge  No.2  –  Respondent  had  released  advance  under  the  Prime
           Minister  Rojgar  Yojna,  and   unauthorisedly   insisted   such
           borrowers to provide  collateral  securities  in  the  shape  of
           immovable property and  guarantee  in  violation  of  the  above
           scheme.”
As per the head office circular, the  discretionary
powers of the Branch Manager at the relevant time were up to Rs.30 lacs for
purchasing bank drafts and government cheques, and up to  Rs.1.5  lacs  for
third party  cheques.   As  against  this  provision,  the  respondent  had
purchased cheques/drafts aggregating to Rs.45.23 crores as per the  details
produced in the inquiry report. This was done  without  any  authorization,
and particularly when the authority of the respondent in  this  behalf  was
placed under abeyance.  
- were  ratified  and confirmed by the higher authorities.

Charge-1 is held as partly proved.”
Thus, the inquiry officer had held that the acts of omission and commission
on the part of the respondent were essentially in the nature of  procedural
lapses.  He held that  the  charge  of  lack  of  integrity  had  not  been
substantiated. Thus, charge No.1 mentioned above was, partly proved.
As far as charge No.2 is concerned, it was alleged therein that
the respondent had released advances under the Prime Minister Rojgar Yojna,
and  for  that  insisted   on   the   borrowers   to   provide   collateral
securities/guarantees of third party.  The inquiry officer, however,  noted
that the prosecution had not placed on record any single  primary  document
of the collateral securities/guarantees of third party to prove that  part.
He, therefore, held that charge No.2 was not proved.

The  Chief  Vigilance Officer 
thereafter sent a letter to the  disciplinary  authority  that  the
Central Vigilance Commission had advised  to  impose  a  major  penalty  of
reduction of two stages in pay scale, and thereupon the order  came  to  be
passed on 27.10.1999 imposing the punishment of reduction of two stages  in
pay scale. 
       The High Court essentially relied upon the judgment  and  order
rendered by this  Court  in  the  case  of  Nagaraj  Shivarao  Karjagi  vs.
Syndicate Bank Head Office, Manipal reported in AIR 1991 SC 1507.  In  that
matter also the bank had acted as per the advice of the  Central  Vigilance
Commission. The punishment was interfered by this Court.  In  paragraph  19
of its judgment, this Court observed as follows:-
      “19………..The punishment to be imposed whether minor  or  major  depends
           upon the nature of every case and the gravity of the  misconduct
           proved.   The  authorities  have  to  exercise  their   judicial
           discretion having regard to the facts and circumstances of  each
           case.  They cannot  act  under  the  dictation  of  the  Central
           Vigilance Commission or of the  Central  Government.   No  third
           party like the  Central  Vigilance  Commission  or  the  Central
           Government could  dictate  the  disciplinary  authority  or  the
           appellate authority as to how they should exercise  their  power
           and  what  punishment  they  should  impose  on  the  delinquent
           officer. (See. De  Smith’s  Judicial  Review  of  Administrative
           Action, Fourth Edition, p. 309).  The impugned directive of  the
           Ministry of Finance is, therefore, wholly  without  jurisdiction
           and plainly contrary  to  the  statutory  Regulations  governing
           disciplinary matters.”
Apex court conclusion :
Mr.  Bhatt,
learned senior counsel for  the  appellant  submitted  that  the  bank  was
required to refer the matter to the CVC  which  is  constituted  under  the
Central Vigilance Commission Act, 2003. 
Regulation 19 of  1982  Regulations
framed thereunder makes it obligatory whenever there is a  vigilance  angle
involved.  This regulation reads as follows:-
      “19. Consultation with the  Central  Vigilance  Commission:  The  Bank
           shall  consult  the  Central   Vigilance   Commission   wherever
           necessary,  in  respect  of  all  disciplinary  cases  having  a
           vigilance angle.”

      14.        That apart, he submitted that the bank had arrived at  its
decision on its own, and not because of any dictate  by  the  CVC.
We have also been informed that the  respondent  was  considered
for promotion once again in the  year  2005,  and  not  found  fit  for  the
promotion.  Thus, the bank had considered the respondent after the  impugned
judgment which was in favour of the respondent.  
We  are  not  concerned  as
such with this subsequent consideration, but this is only to point out  that
the bank had not declined to consider him.  
We are of course concerned  with
the direction in the impugned judgment to consider him once  again,  on  the
basis of the material prior to the judgment.  
Inasmuch as the record of  the
respondent was not satisfactory, in our view, there was no occasion for  the
High Court to give any such direction on the  footing  that  the  respondent
was denied the consideration only because  he  had  suffered  a  punishment.
That inference was not called for.
20.         In the  circumstances,  we  allow  this  appeal  only  in  part.
Whereas the  judgment  and  order  of  the  High  Court  setting  aside  the
punishment will remain, the direction to consider  him  for  promotion,  and
give him benefits on that footing will  have  to  be  set  aside,  which  we
hereby direct.  The respondent will however get  the  monetary  benefits  on
the footing that the said punishment is quashed.

21.         Appeal is, therefore, allowed in part as  above.   Parties  will
bear their own costs.
2014(Feb.Part) judis.nic.in/supremecourt/filename=41263
H.L. GOKHALE, J. CHELAMESWAR


                                                            REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 3081 OF 2006

Oriental Bank of Commerce & Ors.              …      Appellant (s)

                                    Versus
S.S. Sheokand & Anr.                                     …   Respondent (s)


                          J  U  D  G  E  M  E  N  T

H.L. Gokhale J.

             This Civil Appeal seeks to challenge  the  judgment  and  order
dated 16.3.2004 rendered by a Division Bench  of  Punjab  and  Haryana  High
Court in Civil Writ Petition  No.18847  of  2001,  allowing  the  said  Writ
Petition filed by the respondent, a Senior Manager  in  the  appellant-bank.
That judgment and  order  quashed  the  disciplinary  order  passed  by  the
appellant-bank reducing him in two  stages  in  pay  scale  with  cumulative
effect and also directed that he be considered for further promotion.
The facts leading to this appeal are this wise:-
2.           The respondent at the relevant time was working as the  Senior
Manager in a branch of the appellant-bank at Narwana, Bahadurgarh.  It  was
noticed by the bank that he had purchased  third  party  cheques/drafts  of
huge amounts beyond the discretionary powers of  lending.   This  was  done
without  completing  the  pre-sanction  formalities.   The  appellant-bank,
therefore, served a show cause notice to the respondent  on  26.2.1997  for
committing these unauthorised acts.  The respondent filed a detailed  reply
dated 12.4.1997. Therein the respondent admitted committing of the  alleged
acts.  He, however, stated  that  this  was  done  with  the  intention  of
increasing the profits of the bank.  He also contended that  the  bank  had
not suffered any loss in these transactions.
3.          The appellant-bank, thereafter, charge-sheeted  the  respondent
on 1.12.1997 for two specific irregularities, they were as follows:-
      “Charge No.1 –  Respondent  had  unauthorisedly  purchased  3rd  party
           cheques/drafts of huge amount aggregating to Rs.45.23 crores for
           a number of parties much  beyond  his  discretionary  powers  of
           lending without completing pre-sanction formalities in violation
           of head office guidelines.  Thus he violated Regulation 3(i)  of
           Oriental  Bank   of   Commerce   Officer   Employees   (Conduct)
           Regulation, 1982.

      Charge  No.2  –  Respondent  had  released  advance  under  the  Prime
           Minister  Rojgar  Yojna,  and   unauthorisedly   insisted   such
           borrowers to provide  collateral  securities  in  the  shape  of
           immovable property and  guarantee  in  violation  of  the  above
           scheme.”

4.          The charge-sheet was  followed  by  an  inquiry.   The  inquiry
officer gave a report dated 26.2.1999 which was forwarded by the respondent
on 17.4.1999 to make a representation on the findings.  In paragraph  4  of
the report, the inquiry officer dealt with statement of SW-1 (State Witness
No.1) which stated that as per the head office circular, the  discretionary
powers of the Branch Manager at the relevant time were up to Rs.30 lacs for
purchasing bank drafts and government cheques, and up to  Rs.1.5  lacs  for
third party  cheques.   As  against  this  provision,  the  respondent  had
purchased cheques/drafts aggregating to Rs.45.23 crores as per the  details
produced in the inquiry report. This was done  without  any  authorization,
and particularly when the authority of the respondent in  this  behalf  was
placed under abeyance.  The respondent raised various technical  objections
with respect to the production of the documents, but essentially  contended
that his acts, which went beyond discretionary powers,  were  ratified  and
confirmed by the higher authorities.  He submitted that  these  instruments
were received from the respectable parties to increase the  profit  of  the
branch.  With respect to the instructions issued to  him  by  the  Regional
Manager to stop purchasing these cheques and drafts, he submitted  that  he
had not violated these instructions.
5.          The paragraph 4.3 of the Enquiry report contains the assessment
of evidence on charge No.1.  It reads as follows:-

            “4.3 Assessment of Evidence:-
      Ex. S.27 and S.28  are  head  office  circulars  which  lay  down  the
           discretionary powers of the  branch  incumbent.   SW1  confirmed
           that during the material time  the  powers  of  the  BM  (Branch
           Manager) was 30 lacs for purchase of bank draft and Rs. 1.5 lacs
           for third party cheques.  SW1 also confirmed that the CO(Charged
           Officer) had purchased cheques/drafts beyond  his  discretionary
           powers. He deposed that 77 cheques/drafts amounting to 40 crores
           and 153 cheques/drafts amounting to 14.63 crores were  purchased
           through clearing adjustment  account.   It  was  confirmed  that
           discounting  of  cheques/drafts  through   clearing   adjustment
           account was not permitted as per HO guidelines.   SW1  confirmed
           that Ex. S2 was HO (Head Office) Circular dated  11.12.95  which
           had placed in abeyance the discretionary powers of  the  BM  and
           Regional Heads in respect of loans and advances  except  in  the
           priority sector.  SW1 confirmed that s-15 was HO circular  dated
           23.10.96  releasing  the   aforesaid   restrictions.    It   is,
           therefore, evident that the powers of the BM  and  the  Regional
           Heads had been kept in abeyance between  11.12.95  to  23.10.96.
           On examining Ex. S.3, S4 and S.17, SW1 confirmed that the CO had
           unauthorisedly  purchased  cheques/drafts  during  the   period.
           Furthermore, SW1 confirmed that the  cheques  purchased  through
           clearing adjustment  account  are  that  of  sister  and  allied
           concerns.  Ex. S.27 and 28 would evidence that  this  power  was
           vested with the GM (General Manager) and higher  officers  only.
           SW1 also confirmed that since the parties in question were  also
           enjoying certain credit facilities sanctioned by RO/HO (Regional
           Office/Head  Office),  the  branch  should  not  have  purchased
           cheques/drafts of the parties under its own  powers.   Ex.  S-6,
           S.7, S.8 and S.9 are correspondence which proved that the higher
           formation of the bank had raised serious objections to the  CO’s
           purchase   of   cheques/drafts.    Ex.   S.10   and   S.12   are
           letters/replies of the CO where in he had admitted his mistakes.
            SW1 also confirmed that Ex.S.13 and S.14 are letters  from  the
           GM Personnel giving details  of  the  unauthorised  purchase  of
           cheques  and  drafts  by  the  CO,   which   were   beyond   his
           discretionary powers and made at a time  when  his  powers  were
           placed under abeyance. His non-reporting in the matter to RO has
           also been questioned.  Ex. S14 is a letter from the CO accepting
           the aforesaid matter with an assurance to not to repeat the same
           in future.  In view of the aforesaid evidence the contention  of
           the CO to treat the matter as that of  the  priority  sector  is
           naturally not tenable.  However, the CO has  stated  that  there
           was no loss to the bank.  The PO (Prosecuting Officer)  has  not
           disputed this.  Therefore, the act of omission and commission of
           the CO can essentially be  treated  as  procedural  lapses.  The
           charge of the lack of integrity has not been substantiated.

                 Charge-1 is held as partly proved.”
Thus, the inquiry officer had held that the acts of omission and commission
on the part of the respondent were essentially in the nature of  procedural
lapses.  He held that  the  charge  of  lack  of  integrity  had  not  been
substantiated. Thus, charge No.1 mentioned above was, partly proved.
6.          As far as charge No.2 is concerned, it was alleged therein that
the respondent had released advances under the Prime Minister Rojgar Yojna,
and  for  that  insisted   on   the   borrowers   to   provide   collateral
securities/guarantees of third party.  The inquiry officer, however,  noted
that the prosecution had not placed on record any single  primary  document
of the collateral securities/guarantees of third party to prove that  part.
He, therefore, held that charge No.2 was not proved.
7.          After receiving the inquiry  report  the  respondent  made  his
representation  dated  4.5.1999,  and  pleaded  that  he  deserved  to   be
exonerated.  The bank, thereafter, submitted all these papers to the  Chief
Vigilance Officer of the Bank to forward the same to  the  Chief  Vigilance
Commissioner (CVC). The respondent at that stage wrote  to  the  appellant-
bank on 28.6.1999 seeking this correspondence with the  CVC.   In  that  he
stated as follows:-
      “Now, after giving representation dated  4.5.99  on  the  findings  of
           inquiry officer dated 26.2.99, the stage has come  where  second
           stage advice has  to  be  remitted  to  the  CVC  through  Chief
           Vigilance Officer of  Oriental  Bank  of  Commerce  and  I  also
           understand that the case has been remitted or the same is in the
           process of remitting to the Chief  Vigilance  Officer  alongwith
           recommendations of action proposed for onward submission to  the
           Chief Vigilance Commissioner  (CVC).   In  the  light  of  above
           facts, you are requested to kindly supply me the copies  of  all
           such recommendations meant  for  second  stage  advice  and  the
           advice so received or likely to be received from the CVC for  my
           representation on these recommendations prior to  the  stage  of
           final disposal under  Regulation  ‘7’  of  Discipline  &  Appeal
           Regulations, 1982 so that the interest  of  my  defence  is  not
           jeopardized.”

8.           The  appellant  declined  that  request  of   furnishing   the
correspondence of papers exchanged  with  the  CVC.   The  Chief  Vigilance
Officer thereafter sent a letter to the  disciplinary  authority  that  the
Central Vigilance Commission had advised  to  impose  a  major  penalty  of
reduction of two stages in pay scale, and thereupon the order  came  to  be
passed on 27.10.1999 imposing the punishment of reduction of two stages  in
pay scale.  The respondent filed a departmental appeal, and the appeal came
to be rejected.  The review thereof was  also  rejected  by  the  Board  of
Directors.  The appellate order  dated  26.5.2000  passed  by  the  General
Manager (Personnel) who was the disciplinary authority at  the  end  of  it
stated as follows:-
      “……In this connection it is  submitted  that  awarding  of  punishment
           with cumulative effect falls  within  Regulation  4(f)  and  the
           Disciplinary Authority has independently applied its mind  while
           awarding the punishment.   It  is  further  submitted  that  the
           advice of the CVC is not binding on the Disciplinary  Authority.
           Since the CVC is rendering advice to the Disciplinary  authority
           the correspondence exchanged is not required to be  provided  to
           the charge sheeted employee. The  punishment  has  been  awarded
           keeping in view the gravity of the misconduct committed  by  the
           officer employee alongwith the submissions made by the employee.

                 Submitted for orders please.

                 SD/- General Manager (Per.)

            Disciplinary Authority.”

The Chairman & Managing Director, who was the appellate  authority,  passed
his orders into following words:-
                 “I don’t wish to entertain”
                                  Sd/-
                                  2.6.2000”

9.          Being aggrieved by  the  imposition  of  this  punishment,  the
respondent filed one Writ Petition earlier bearing No.4116 of 2001  to  the
Punjab and Haryana High Court on which an order came to be passed that  the
reviewing authority may consider the review application of the  respondent.
Time to take the decision was also extended on one occasion, and  the  High
Court was informed that the Bank was considering commutation of  the  major
penalty. The Chief Vigilance  Officer  of  the  bank  wrote  to  the  Chief
Vigilance Commission on 18.8.2001 that the penalty imposed deserved  to  be
modified to a minor penalty.  It, however, appears that the request was not
accepted and, the appellant-bank informed the respondent  that  the  review
petition was rejected.  This led the respondent to file Civil Writ Petition
No.18847 of 2001.  Apart from the prayer to quash the order of  punishment,
the respondent also sought a direction that he be  considered  for  further
promotion from the post which he was then holding viz. that of MMGS-III  to
SMGS-VI.  It was his contention that his turn had come up for consideration
for promotion, and it was declined because of this departmental action. The
High Court allowed the Writ Petition by the impugned judgment and order.
10.         The High Court essentially relied upon the judgment  and  order
rendered by this  Court  in  the  case  of  Nagaraj  Shivarao  Karjagi  vs.
Syndicate Bank Head Office, Manipal reported in AIR 1991 SC 1507.  In  that
matter also the bank had acted as per the advice of the  Central  Vigilance
Commission. The punishment was interfered by this Court.  In  paragraph  19
of its judgment, this Court observed as follows:-
      “19………..The punishment to be imposed whether minor  or  major  depends
           upon the nature of every case and the gravity of the  misconduct
           proved.   The  authorities  have  to  exercise  their   judicial
           discretion having regard to the facts and circumstances of  each
           case.  They cannot  act  under  the  dictation  of  the  Central
           Vigilance Commission or of the  Central  Government.   No  third
           party like the  Central  Vigilance  Commission  or  the  Central
           Government could  dictate  the  disciplinary  authority  or  the
           appellate authority as to how they should exercise  their  power
           and  what  punishment  they  should  impose  on  the  delinquent
           officer. (See. De  Smith’s  Judicial  Review  of  Administrative
           Action, Fourth Edition, p. 309).  The impugned directive of  the
           Ministry of Finance is, therefore, wholly  without  jurisdiction
           and plainly contrary  to  the  statutory  Regulations  governing
           disciplinary matters.”

11.         The High Court relied upon another judgment of  this  Court  in
the case of State Bank of India vs. D.C. Aggarwal reported in AIR  1993  SC
1197.  In that matter also, the  High  Court  had  quashed  the  punishment
imposed on the respondent, since the CVC report had not been  furnished  to
him.  In paragraph 5 of the judgment this Court observed as follows:-

      “5…… May be that the Disciplinary  Authority  has  recorded  its  own
           findings and it may be coincidental that reasoning and basis  of
           returning the finding of guilt are same as in the CVC report but
           it being a material  obtained  behind  back  of  the  respondent
           without his knowledge or supplying of any copy to him  the  High
           Court in our opinion did not commit any error  in  quashing  the
           order.”

12.         Therefore, in the present case, the High Court  set  aside  the
punishment imposed on the respondent. It also  issued  a  Mandamus  to  the
appellant-bank to consider the  respondent  for  promotion,  which  he  had
sought.  Being aggrieved by that judgment and order, this appeal  has  been
filed.  Mr. K.N. Bhatt, learned senior counsel appeared for the  appellants
and Mr. Nidhesh Gupta, learned senior counsel appeared for the respondent.
Submissions on behalf of the parties:-
13.         It was submitted on behalf of  the  appellants  that  the  High
Court had erred in interfering  with  the  punishment,  and  in  any  case,
directing consideration  of  the  respondent  for  promotion.   Mr.  Bhatt,
learned senior counsel for  the  appellant  submitted  that  the  bank  was
required to refer the matter to the CVC  which  is  constituted  under  the
Central Vigilance Commission Act, 2003. 
Regulation 19 of  1982  Regulations
framed thereunder makes it obligatory whenever there is a  vigilance  angle
involved.  This regulation reads as follows:-
      “19. Consultation with the  Central  Vigilance  Commission:  The  Bank
           shall  consult  the  Central   Vigilance   Commission   wherever
           necessary,  in  respect  of  all  disciplinary  cases  having  a
           vigilance angle.”

      14.        That apart, he submitted that the bank had arrived at  its
decision on its own, and not because of any dictate  by  the  CVC.   Charge
No.1 was a serious charge.  It  was  already  proved  in  the  Departmental
Enquiry, and although it is true that at some  stage  the  bank  management
thought that a lenient view may be taken, it specifically  arrived  at  its
own decision as can be seen from the appellate order.  In  his  submission,
there was no prejudice caused to the respondent by not making the report of
the CVC available to him.  Conduct of this type required a stringent action
to be taken.  He relied upon the judgment of this  Court  in  the  case  of
Disciplinary Authority-Cum-Regional  Manager  vs.  Nikunja  Bihari  Patnaik
reported in 1996 (9) SCC 69.  This Court has held in that matter that  when
the bank officer acts beyond his authority, it is a misconduct, and a proof
of any loss to the bank is not necessary.  That was a  case  where  also  a
senior officer of the Central Bank of India  had  allowed  over-drafts  and
passed cheques involving substantial amounts beyond his authority, and  the
respondent had been dismissed from his service.  Mr. Bhatt, submitted  that
in the instant case, the appellant-bank  had,  in  fact,  been  lenient  in
imposing the punishment of merely reducing the respondent by two grades.
15.         It was then submitted  by  Mr.  Bhatt,  that  in  any  case  the
direction to  consider  the  respondent  for  the  promotion  could  not  be
sustained.  He pointed out to us  that  the  respondent  had  been  punished
earlier for similar conduct on 27.10.1999.  He was considered for  promotion
in the year 2002, and subsequent to the impugned judgment in the  year  2005
also but was not found fit.  The  learned  counsel  for  the  appellant-bank
submitted that the question of promotion to such a senior  post  had  to  be
decided on merits and suitability of  the  candidate.   Mr.  Bhatt,  further
submitted that even if the punishment was to be interfered with,  there  was
no case for direction for promotion.
16.         It was submitted on behalf of the respondent on the other  hand,
that there was no loss suffered by the bank, and at the  highest  it  was  a
technical  lapse.  The  bank  management  had  also  decided  that  a  minor
punishment was required, and it was only because of the dictate of  the  CVC
that the disputed punishment  had  been  imposed.   Firstly,  there  was  mo
reason to refer the issue to the CVC since  there  was  no  vigilance  angle
involved therein. That apart, the report of CVC was not  made  available  to
the respondent, and it clearly amounted to denial  of  fair  opportunity  to
defend.  Mr. Gupta submitted that the denial of  promotion  was  essentially
because  of  this  punishment,  or  else  the  respondent  would  have  been
promoted. He, therefore, submitted that there was no occasion  to  interfere
with the impugned judgment and order.  Mr.  Gupta  submitted  that  the  two
judgments relied upon by the High Court in  the  case  of  Nagaraj  Shivarao
(supra) and State Bank of India (supra)  squarely  applied  to  the  present
case, and there was no occasion for this Court to take a different  view  or
to interfere with any part of the judgment.
Consideration of the submissions:-
17.         We have considered the submissions of both  the  counsel.   When
we come to the question of imposition of punishment on the respondent,  what
we find is that undoubtedly, there was a  serious  allegation  against  him,
and as it has been held in the case of  Disciplinary  Authority-Cum-Regional
Manager (supra), such acts could not be condoned.   At  the  same  time,  we
have also to note that the bank management itself had taken the view in  the
initial stage that the action did not require a major penalty.  It  is  also
relevant to note that the High Court was  also  informed  at  the  stage  of
review that the Bank was considering imposition of a minor  penalty.  It  is
quite possible to say that the bank management did arrive  at  its  decision
to maintain a major penalty at a later stage on its own, and not because  of
the dictate of the CVC, but at the same time it has got  to  be  noted  that
the CVC  report  had  been  sought  by  the  management  of  the  bank,  and
thereafter the punishment had been imposed.  As  observed  in  the  case  of
State Bank of India (supra), may be  that  the  Disciplinary  Authority  had
recorded its own findings, and had arrived at its  own  decision,  but  when
this advise from CVC was sought, it could not be said that  this  additional
material was not a part of the decision making process.   When  this  report
was not made available to the respondent, it is difficult to  rule  out  the
apprehension about the  decision  having  been  taken  under  pressure.  Any
material, which goes into the decision making process against  an  employee,
cannot be  denied  to  him.   In  view  of  the  judgment  in  the  case  of
Disciplinary Authority-cum- Regional Manager (supra), the  decision  of  the
Bank could have been approved on merits, however, the two judgments  in  the
cases of Nagaraj Shivaraj Karajgi (supra) and State Bank  of  India  (supra)
lay down the requisite procedure in such matters, and in the facts  of  this
case, it will not be appropriate to depart from the dicta therein.  On  this
yardstick alone, a part of the judgment of the High Court  interfering  with
the punishment will have to be sustained.

18.         Then, we come to the issue of direction of  the  High  Court  to
consider the respondent for promotion. The respondent was already in a  post
of a Senior  Manager.   He  was  seeking  a  promotion  to  a  still  higher
position.  Promotion as such, and in any case, to a higher  post  cannot  be
insisted as a matter of right.  In the instant case, it has been brought  to
our notice that the respondent was considered for promotion in 2002 and  was
not found fit.  It was pointed out by Mr. Bhatt that this was not merely  on
the basis of the punishment that was imposed  on  the  respondent.   He  had
previous adverse entry also in his record in the year 1999.   Besides,  even
if we look to the charge independently, purchasing third party  cheques  and
drafts of huge amounts beyond his authority of lending has been held  to  be
proved against the respondent, and  that  finding  has  not  been  seriously
contested and dislodged. Whether he deserved a major punishment or  not,  or
whether a lenient view of the allegations should  be  taken  by  considering
his conduct as a procedural lapse is another aspect.  In the  instant  case,
the decision to impose a major punishment had to be interfered with  because
of the manner in which the decision was taken.  It has also  been  submitted
that the High Court should have referred the matter back to the  appropriate
authority for reconsideration and imposition atleast of a minor penalty.  It
is apparent that it was not a case for  complete  exoneration,  however,  it
will  not  be  desirable  to  give  such  direction  after  so  many  years,
particularly, when the respondent has since  retired.  That  being  so,  the
order quashing the punishment will remain.  That, however,  would  not  mean
that the direction of the High  Court  to  the  appellant  to  consider  the
respondent for promotion should be sustained.

19.         We have also been informed that the  respondent  was  considered
for promotion once again in the  year  2005,  and  not  found  fit  for  the
promotion.  Thus, the bank had considered the respondent after the  impugned
judgment which was in favour of the respondent.  We  are  not  concerned  as
such with this subsequent consideration, but this is only to point out  that
the bank had not declined to consider him.  We are of course concerned  with
the direction in the impugned judgment to consider him once  again,  on  the
basis of the material prior to the judgment.  Inasmuch as the record of  the
respondent was not satisfactory, in our view, there was no occasion for  the
High Court to give any such direction on the  footing  that  the  respondent
was denied the consideration only because  he  had  suffered  a  punishment.
That inference was not called for.
20.         In the  circumstances,  we  allow  this  appeal  only  in  part.
Whereas the  judgment  and  order  of  the  High  Court  setting  aside  the
punishment will remain, the direction to consider  him  for  promotion,  and
give him benefits on that footing will  have  to  be  set  aside,  which  we
hereby direct.  The respondent will however get  the  monetary  benefits  on
the footing that the said punishment is quashed.

21.         Appeal is, therefore, allowed in part as  above.   Parties  will
bear their own costs.

                                       …………..…………………..J.
                                       [  H.L. Gokhale  ]





                                                     ………………………………J.
                                       [ J. Chelameswar ]
New Delhi
Dated : February  26, 2014






































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