G. Ramanujam, J.
1. The petitioner herein was working as Superintendent, Savings Bank Department, in the head office of the State Bank of India till July, 1970. In July, 1970 he was posted as a Branch Manager, Vridhachalam Branch. Before going on transfer, he had applied for a loan of Rs. 8,700 for the purchase of a car. The loan was sanctioned on 18th July, 1970 and credited in his current account. Though as per the conditions of the grant of loan, the petitioner has to purchase the car within one month from the date of the sanction of the loan, the petitioner admittedly did not purchase the car, within that time. He, however, informed the head office by his letter dated 1st March, 1971 that he had paid a sum of Rs. 8,000 to one Ramaswami Odayar for the purchase of an Ambassador Car MSM. 5589 at a price of Rs. 16,500. He later informed the head office by his letter dated 6th March, 1971 that the transaction will be completed before 15th of April, 1971 and that if it is not possible to do so, he will arrange to repay the loan without fail on that date. As the petitioner did not either complete the transaction of purchase of a car by 15th of April, 1971 or repay the loan as stated by him, disciplinary proceedings Were initiated against him by issuing a memo, dated 15th September, 1971 alleging 3 irregularities and calling upon him to submit his written explanation. The petitioner submitted his explanation on 19th June, 1972. Not satisfied with the said explanation, the respondent by its memo, dated 5th February, 1973 informed the petitioner that it has been decided to order an independent investigation into the matter in terms of Rule 50(1) of the State Bank of India (Officers and Assistants) Rules, hereinafter referred as the Rules, that one Section V. Kumar, the Staff Officer, Madras has been appointed as investigating officer and that the petitioner will be given full opportunity at the investigation to present his case. After investigation, the said S.V. Kumar submitted his report to the Bank. After consideration of that report along with the written explanation given by the petitioner, the respondent sent a show cause notice dated 24th October, 1973, holding the petitioner guilty of unauthorised use of bank's funds obtained at considerate rate of interest and of submitting a false receipt for the purpose of the scrutiny of the head office, and proposing to cancel two increments due to him on 24th November, 1973 and 24th November, 1974 as penalty for the said acts of misconduct in terms of Rule 51 of the said rules. The petitioner has approached this Court for the issue of a writ of certiorari to quash the said show cause notice dated 24th October, 1973.
2. The petitioner's case is that the first irregularity for which the proposed, punishment is sought to be imposed is only a breach of the loan agreement and therefore it cannot form the subject-matter of a disciplinary enquiry. As regards the second irregularity, the petitioner's case is that the receipt issued by Ramaswami Odayar and produced by him before the Respondent is a genuine one, and there was no false representation by the petitioner in that regard and that, therefore the second charge is based on no material. The petitioner also contends that the procedure adopted at the stage of enquiry contravenes the safeguards given to him under the Service Rules referred to above, that he was not given an opportunity of oral enquiry and as such the principles of natural justice have been violated before holding the petitioner guilty of the two irregularities set out in the show cause notice. In this connection, the learned Counsel for the petitioner submits that the respondent is a public authority and the employment under it is public appointment that, before a person in public employment is punished, the public authorities are bound to follow the principles of natural justice whether such principles are contained in the rules or not, and that in this case the petitioner not having been given due opportunity to put forward his defence, the Court has to quash the show cause notice and direct the respondent to given opportunity for the petitioner to defend himself in the disciplinary proceedings.
3. The respondent, however, has stated in its counter-affidavit that though as per the conditions of the loan agreement the petitioner is bound to purchase a car within one month, he not only did not purchase the car in time but also gave misleading particulars and. produced a receipt from a person who had no intention of selling his car. As regards the nature of the disciplinary enquiry held in the case of the petitioner, it has been stated that the Chief' Vigilance Officer at the Madras Head Office investigated the matter locally at Vridhachalam and at the stage of enquiry the said Ramaswami Odayar has given a statement that he never sold his car to the petitioner. After such investigation, the Chief Vigilance Officer reported that the petitioner did not purchase a car from Ramaswami Odayar and that the stamped receipt given by Ramaswami Odayar and produced by the petitioner was not a genuine one. Thereafter the petitioner was called upon to explain the irregularities by a notice dated 15th September, 1971. The petitioner in his explanation dated 20th September, 1971 while admitting the delay in the purchase of the car by availing the loan granted by the bank has stated that the sale did not go through due to misunderstanding between Ramaswami Odayar and his financier. Along1 with the reply, he submitted an affidavit from Ramaswami Odayar to show that Odayar initially intended to sell the car but could not complete the transaction because of certain circumstances beyond his control. After considering the explanation given by the petitioner, the respondent decided to have the matter investigated through one of its Officers in terms of Rule 50(1) before taking further action. One Sri S.V. Kumar, investigated the matter and sent a report. After consideration of the report, the respondent took the view that the petitioner is guilty of : (1) not utilising the loan within the stipulated period in violation of the terms of the loan; and (2) fabrication of receipt for Rs. 8,500 dated 22nd September, 1970 and issued a show cause notice dated 24th October, 1973 proposing to cancel two increments of the petitioner as a penalty in terms of Rule 51 read with Rule 49(b). The petitioner submitted his explanation to the show cause notice only on 17th June, 1974. But as the State Bank of India Supervising Staff Association had made certain representations in that regard, the passing of the final orders was delayed and in the meanwhile the petitioner has approached this Court challenging the show cause notice* According to the respondent, there has been no violation of the principles of natural justice in the conduct of the enquiry against the petitioner and that in fact, there has been due compliance with the rules in question.
4. The learned Counsel for the petitioner firstly submits that the non-utilisation of the loan amount for the purchase of the car within the time stipulated cannot fall within the disciplinary jurisdiction, that the breach of a loan agreement, if at all, will expose the petitioner to a claim for damages, and that such a breach can in no case form the basis for disciplinary proceedings. Though there is some force in this contention of the learned Counsel, still the second charge levelled against the petitioner, if proved, will be sufficient to form the basis for a disciplinary action. Therefore, the initiation of disciplinary proceedings against the petitioner cannot be said to be without jurisdiction.
5. The learned Counsel for the petitioner then contends that even assuming that the disciplinary proceedings have been, rightly initiated against the petitioner, the disciplinary proceedings here had. been conducted in violation of not only principles of natural justice in that the petitioner did not have an opportunity of rebutting the statement given by Ramaswami Odayar that he never intended to sell his car, but also the provisions of the relevant Rules framed for the purpose.
6. According to the petitioner, the State Bank of India (Officers and Assistants) Service Rules have been framed by the Central Board by virtue of its power under Section 50 of the State Bank of India Act, 1955 and therefore, they are statutory. Rule 50 of the said rules contemplating somewhat elaborate and fuller enquiry in disciplinary matters had not been followed in his case, and therefore, the petitioner did not have, adequate opportunity as contemplated by Rule 50. The respondent, not the other hand, contends that the said Rules are non-statutory, that in any event the said rules having been duly complied with in the conduct of disciplinary proceedings against the petitioner, the show cause notice is not vitiated for non-observance of either the said rules or the principles of natural justice, that this Court, exercising its extraordinary jurisdiction under Article 226 of the Constitution cannot sit as if it were an appellate Court and set aside the findings of the disciplinary authority that the petitioner is guilty of the two irregularities, except in a case where there is absolutely no material from which the said finding could be arrived at, and that therefore, if the disciplinary enquiry has been conducted after giving reasonable opportunity as per the Rules, the petitioner cannot succeed in challenging the impugned show cause notice. That the State Bank of India (Officers and Assistants) Service Rules are not statutory is clear from the following facts. Section 43(1) of the State Bank of India Act, 1955, enables the State Bank to appoint such number of officers, advisers and employees as it considers necessary or desirable for the efficient performance of its functions, and determine the terms and conditions of their appointment and. service; Section 49(1) enables the Central Government in consultation with the Reserve Bank, to make rules for carrying out the purpose of this Act; Section 50(1) enables the Central Board of Directors of the State Bank, after consultation with the Reserve Bank and with the previous sanction of the Central Government to make regulations not inconsistent with the Act and the Rules framed thereunder. The State Bank of India (Officers and Assistants) Service Rules have not been framed by the Board after consultation with the Central Government or the Reserve Bank of India as required under Section 50. Section 43(1) merely enables the Board to determine the terms and conditions of appointment and service of its employees. The scope of these rules came up for consideration before the Bombay High Court and they have been held to be non-statutory by a Division Bench in Ramesk v. State Bank of India : (1974)IILLJ441Bom .
7. Similar rules framed by the Central Board dealing with the service conditions of Sub-Accountants and Head Cashiers styled 'State Bank of India (Sub-Accountants and Head Cashiers) Service Rules' have been held to be non-statutory by Veeraswami, J. (as he then was) in Ramiah v. State Bank of India : (1963)IILLJ304Mad . In Dattatayva v. State Bank of India : AIR1969MP114 , a somewhat different note was struck and the same rules were held to be bye-laws made by the State Bank though they may not be statutory rules. In the Madras case the Court expressed the view that Section 43 of the State Bank of India Act did not empower the Bank to make service rules and observed:
The Section only empowers the State Bank to appoint its officers, advisers and employees, their number depending upon the necessity or desirability for the efficient performance of the bank's functions. The further power of the State Bank under the Section which is related and incidental to the power to make appointments, is the power to determine the terms and conditions of appointment and service. There is nothing to prevent the State Bank of India from fixing such terms and conditions and changing the same from time to time at its discretion. The power under Section 43 enables the bank no more than to fix the terms and conditions of service by entering into service agreements or otherwise in relation to the officers, advisers and employees appointed by it. There can, therefore, be nothing statutory about or in the determination of the terms and conditions of the service. Such determination of the terms and conditions does not have the effect of making the rules have the force of law. It is under this Section the State Bank is enabled to enter into service agreements with its employees.
In the Madhya Pradesh case he Court expressed:
The decision of the Madras High Court can, therefore, be regarded as supporting the view we have taken that under Section 43 of the Act bye-laws can be made for regulating the terms and conditions of service of the Bank's employees, officers and advisers. If the 'Rules' are bye-laws, then they can be challenged on the ground that they are unreasonable.
The scope of a bye-law made by a Corporate Body has been dealt with in Halsbury's Laws of England, 3rd Edition, Volume 9 at page 40-41:
77. Bye-laws : All regulations made by a corporation and intended to bind not only itself and its officers and servants, but members of the public, who come within the sphere of their operation, may properly be called 'bye-laws' whether they are valid or invalid in point of law; but the term may also be applied to regulations binding only on the corporation, its officers and servants.
78. Extent of power : Every corporation has the power to make bye-laws relative to the purpose for which it is constituted. Such bye-laws however, do not bind persons other than members unless they are made under statutory authority, or unless it is shown that they have been brought to the knowledge of the person sought to be bound by them, and that he has agreed to be so bound....
79. Exercise of power: The power to make bye-laws either by the body at large or by a select part is incident to every corporation....
8. In my view, the Officers and Assistants Service Rules have no statutory basis nor can they be treated as bye-laws made by the bank. The rules in question have binding effect only by virtue of the declaration given by the employees in Form 'A' appended to the Rules and not by their own force. Therefore the rules in question are merely the terms and conditions of employment and service and they bind the employees as a result of the declaration given by them. In Ramesh v. State Bank of India (1974) M.L.J. 1975 : Lab.I.C. 175, earlier referred to, a Division Bench of the Bombay High Court dealing with the scope of the same Rules held that the Officers and Assistants became members of the staff of the State Bank not by virtue of the rules framed by the Central Board but by reason of the contract of employment entered into by them with the bank, that by giving a declaration in the prescribed form 'A' in Appendix 1 to the Rules, the Service Rules become the terms and conditions of the contract of employment and, therefore, the Service Rules partake the nature of being contractual terms of employment. The learned Judges have not accepted the view of the Madhya Pradesh High Court in Dattatraya v. State Bank of India : AIR1969MP114 , that the Service Rules can be regarded as bye-laws framed by the Corporation, on the ground that even if they were to be treated as bye-laws framed by the Bank in exercise of its inherent power they cannot be taken to have the force of law and that the rules have no binding force proprio vigore but have such binding force by reason of consent of both the employee and the employer. The learned Judges ultimately took the view that as it is not obligatory for the Bank to frame rules, bye-laws or regulations for fixing the conditions and terms of service. Service Rules will have to be regarded as a. set of Rules embodying the terms and conditions of service on contractual basis. With respect, I am inclined to agree with the said decision of the Bombay High Court and hold that even if the Service Rules are taken to be bye-laws framed by the State Bank, they cannot have the force of law, for the applicability of the rules is made dependent on the employee concerned signing the declaration to be bound by the rules and that but for such a declaration it will have no application to that employee.
9. The question then is whether the said rules had been duly followed in this case by the respondent. Two contentions that have been advanced by the learned Counsel for the petitioner for questioning the validity of the show cause notice proposing to impose the penalty of stoppage of increment are: (1) Rule 51 is unreasonable in that it does not provide for an effective opportunity for the officer concerned to defend himself and it takes away the right to have such an opportunity provided under Rule 50. (2) In any event the show cause notice is in violation of the principles of natural justice.
10. As regards the first contention, the petitioner's learned Counsel submits that in respect of minor penalties set out in Clauses (a) and (b) of Rule 49, Rule 51 does not contemplate an oral enquiry and as such, the said rule should be taken to be unreasonable. I am not able to accept this contention. It is true, Rules 50 and 51 make a distinction between disciplinary enquiries which result in major punishments, such as termination of service, dismissal or reduction in rank, and those resulting in minor penalties such as censure, cancellation, withholding, reducing or delaying of the increments. Rule 50 provides for a fuller opportunity in cases falling under the former category, while in respect of the latter category only an opportunity of filing a written statement to charges levelled against the delinquent officer is contemplated under Rule 51. It is not possible to say that such a distinction is unreasonable. In respect of disciplinary enquiries resulting in minor penalties, it cannot be expected that the disciplinary authority should embark on a detailed and full enquiry involving considerable time and energy as it is expected of him in relation to enquiries resulting in major penalties. Such a distinction has necessarily to be made to avoid unnecessary waste of time in relation to minor matters which merely involve the imposition of very minor punishments. Such a distinction has been made even under the statutory rules framed under Article 309.
11. Rule 50 so far as it is relevant for the purpose of this case is as follows:
50(1). Where the Managing Director in the case of an employee serving1 in or under the Central Office or the Secretary and Treasurer in the Case of an employee serving in a Circle is satisfied that there is a prima facie case for proceeding against an employee, he may investigate the case himself or appoint the Chief Inspector or the Deputy Secretary and Treasurer or any other officer to investigate the case and submit an independent report thereon in writing.
(2) A brief statement of the charges together with the grounds on which they are based shall then be communicated in writing to the employee. The employee shall be required to submit a written statement in defence and also given an opportunity to be heard in person if desired by him. He shall also be given facilities for access to the records of the Bank for the purpose of preparing his written statement but the Managing Director or the Secretary and Treasurer may, for reasons to be recorded in writing, refuse him such access if in his opinion such records are not strictly relevant or it is not desirable in the interests of the Bank to allow such access.
(3) The report of the Officer who investigated the case, together with the employee's statement and a further report in writing by the Managing Director or the Secretary and Treasurer, indicating the specific charge or charges against the employee shall be laid for consideration, in the case of an employee serving in or under the Central Office before the Executive Committee and in the case of an employee serving in a Circle, before the Local Board.
(4) The Executive Committee or the Local Board, as the case may be, shall make such order as they may consider proper in the circumstances, but if they consider it to be a fit case for imposing a penalty mentioned in Clause (c) or Clause (f) of Rule 49, the employee shall be given a further opportunity to state in writing by a specified date why such penalty should not be imposed against him. For this purpose the charge or charges against him together with a copy of the report of the Officer who investigated the case and specific penalty proposed to be imposed shall be communicated to him by the Managing Director or the Secretary and Treasurer, as the case may be.
(5) The Managing Director or the Secretary and Treasurer, as the case may be, will then lay the employee's statement together with his report thereon before the Executive Committee or the Local Board, as the case may be. In the case of an employee serving in a Circle, the recommendation of the Local Board shall be laid with all the relative papers before the Executive Committee.
(6) The Executive Committee shall then take the matter into their consideration and shall make such order as they consider proper in the circumstances.
Rule 51 however says that when it is proposed to cancel withhold, reduce or delay the increment due to an employee the procedure prescribed in Rule 50 shall not be followed and it is enough if the employee concerned is given an opportunity to make a written statement in his defence as regards the proposed punishment.
According to the learned Counsel Rule 51 is bad as it dispenses with all the formalities contemplated by Rule 50 and prescribes instead only for an opportunity to file a written statement as regards the proposed penalty. It is true as the learned Counsel points out that Rule 51 dispenses with all the formalities in cases of minor punishments, except the opportunity of filing a written statement as regards the proposed penalty. A conjoint reading of Rules 50 and 51 indicates that in cases involving minor penalties a show cause notice against the proposed penalty is sufficient. The minimum requirement of communicating the charges to the concerned officer and obtaining an explanation from him on those charges before deciding to impose a punishment does not appear to be contemplated in Rule 51.
12. Though Rule 51 does not contemplate any opportunity being given to the officer concerned before proposing to inflict a minor punishment, in this case, the petitioner has been given more than one opportunity to make his representations in relation to the charges before they were held proved. Therefore, it cannot be said that the petitioner was not given an opportunity to put forward his representations to the charges before the penalty of stoppage of increment was; proposed in the impugned show cause notice. I do not, therefore, consider it necessary to invalidate Rule 51 as being unreasonable.
13. As regards the second contention the learned Counsel for the petitioner says that the petitioner was not given an opportunity of personal or oral hearing and therefore, the principles of natural justice have been violated. It is said that in relation to the second charge the statement given by Ramaswami Odayar that he did not intend to sell the car when he gave the receipt, can be rebutted only at an oral enquiry, that the conclusion arrived, at by the disciplinary authority without conducting any such enquiry violates the principles of natural justice and that the service under the State Bank being in the nature of public employment before a penalty is imposed on an employee all the principles of natural justice have to be followed, whether they have been incorporated in the rules or not. The learned Counsel refers to the decision of the Supreme Court in Sukhdev Singh v. Bhagatrarn : (1975)ILLJ399SC , in support of his submission that the State Bank of India is an authority coming within the definition of 'State' under Article 12 of the Constitution and, therefore, it is bound to follow the principles of natural justice while dealing with its employees.
14. The learned Counsel for the, respondent does not dispute that the State Bank of India is an authority under the control of the Government of India and hence a State as defined in Article 12, in view of the decision in Ramiah v. State Bank of India : (1968)IILLJ424Mad , wherein it has been held that the State Bank of India is a public authority coming within the scope of Article 226 of the Constitution, but he demurs to the petitioner's contention that his employment under the respondent is a public employment and, therefore it is bound by the principles of natural justice while dealing with disciplinary matters, even if the rules relating to their conditions of service do not provide for them. According to the learned Counsel there are three categories of employees (1) governed by the rules framed under Article 309, (2) industrial employees to whom the Industrial laws had been applied, and (3) employees who are purely governed by the terms and conditions of their employment, and the employees of the State Bank fall under the last category and are governed only by the terms and conditions of service which are set out in the rules in question. It is said that as the law of 'master and servant' continues to apply to the petitioner he cannot claim the benefit of the general principles of natural justice in the matter of disciplinary enquiry and that if the conditions of service which have been put in the form of the above rules which the petitioner has agreed to be bound by virtue of the declaration given by him in Form A contained in Appendix 1 to those rules have been followed, there is no question of the disciplinary proceedings being violative of the principles of natural justice.
15. The learned Counsel for the respondent refers to the decision of the Supreme Court in Indian Airlines Corporation v. Sakhdeo Rai : (1971)ILLJ496SC , in support of the above submission. In that case an employee of the Indian Airlines Corporation who had been dismissed from service challenged the order of dismissal on the ground that it was in breach of the procedure laid down in the regulations framed by the corporation. The Supreme Com t, after examining a number of decisions, particularly the decision in Section R. Tiwari v. District Board, Agra : (1964)ILLJ1SC , laid down that there were three well recognised exceptions to the general rule under the law of master and servant where a declaration that an order of dismissal is a nullity cannot be given, namely, (1) cases of public servants falling under Article 309 of the Constitution, (2) cases falling under the industrial law, and (3) cases where acts of statutory bodies are challenged for breach of a mandatory and statutory obligation. In that case the Supreme Court approved the view of the Allahabad High Court in Ram Babu Rathaur v. Life Insurance Corporation : AIR1961All502 and of the Calcutta High Court in Life Insurance Corporation v. V. Banerjee (1971) I L.L.J. 1, that though a Corporation was a statutory body the relationship between it and its employees was governed by a contract, and the law of master and servant, and not subject to any statutory obligation.
16. The learned Counsel for the petitioner would, however, refer to the following passage in the decision of the Supreme Court in Sukkdev Singh v. Bhagatram : (1975)ILLJ399SC
This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute
in support of his stand that the petitioner being an employee under a public Corporation is entitled to all the protection which pertains to public employment, one such protection being the due compliance with the principles of natural justice. The learned Counsel refers to the following passage of Lord Wilberforce in Mattock v. Adardeen (1971) 1 W.L.R. 1578, dealing with the anomaly created by judicial decisions in the area of contractual and statutory employments:
A comparative list of situations in which persons have been held entitled or not entitled to a hearing or to observation of rules of natural justice, according to the master and servant test, looks illogical and even bizarre. A specialist surgeon is denied protection which is given to a hospital doctor, a University Professor as a servant has been denied the right to be heard, a dock labourer and an undergraduate have been granted it; examples can be multiplied. One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assume that this is inevitably so), these must be confined to what have been called pure master and servant cases, 'I take it to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection.' If any of these elements exist, then in my opinion whatever the terminology used, and even though in some inter partes aspects the relationship may be called that of master and servant, there my be essential procedural requirements to be observed, and failure to observe them may result in a dismissal being declared to be void.
It is true, the above passage indicates that the requirement of the observance of the rules of natural justice can be excluded only in cases of pure master and servant and not in cases where an element of public employment or service is involved. But, the judgment of the Supreme Court in Sukhdev Singh v. Bhagatrarn : (1975)ILLJ399SC however, proceeds on the basis that though the employees of the statutory corporations have a statutory status, they are not servants of the Union or the States but are entitled to a declaration of being in employment when their dismissal or removal is in contravention of statutory provisions. Here there are no statutory provisions which have been violated.
17. As already stated, the petitioner has been given an opportunity for giving his explanation in writing to the authorities and also an opportunity to put forward his objections to the proposed punishment though there was no oral enquiry preceding the impugned show cause notice proposing the stoppage of increment. I do not think that an oral inquiry is a necessary requirement in all disciplinary proceedings irrespective of the nature of the charges and the proposed punishment. The principles of natural justice are not abstract principles and he same have to vary with reference to the nature of the charges, the punishment proposed therefor and the rules relating to the enquiry. In this case the rules contemplate an elaborate enquiry in the case of major penalties and such an elaborate enquiry is not contemplated in relation to minor penalties such as stoppage of increments. The petitioner insists that an elaborate enquiry as is contemplated in the case of major penalties should also be held in relation to the said minor penalty. If under the Service Rules or the terms and conditions of service an oral enquiry is not contemplated in cases of minor penalties, the minor penalty imposed cannot be questioned as violating the principles of natural justice.
18. In my view, the petitioner has not, therefore, made out a case for quashing the impugned show cause notice proposing stoppage of increment. The writ petition therefore fails and it is dismissed. There will be no order as to costs.