Appeal is a forum for setting right material errors and consequent miscarriage of justice in an order or a judgement by a subordinate authority. An appeal is addressed and considered by one who is senior in rank and status in relation to the original adjudicator. While submitting an appeal, the applicant-employee does not have the kind of benefits and extension of principles of natural justice in his favour, as would be eligible to him in the first stage oral inquiry. The appeal procedure does not provide for a personal hearing, as is allowed in the oral hearing. The appeal is in fact deemed as an extension of the original hearing. At the end of first stage inquiry, the disciplinary authority deals with the report of the inquiry officer, and the records of the inquiry. As an extension thereto the Appellate Authority again reviews the order of the disciplinary authority in the light of the evidences on record. The charged officer cannot bring in new evidence, or recall old witnesses for further examination. Appeal is a process of reviewing the entire records of inquiry by the appellate authority, who should be senior in status to the disciplinary authority. The appellate authority can modify in either directions (i.e. enhance or reduce the punishment), revoke, or confirm the order of the disciplinary authority, based on the assessment of the records of inquiry.

The procedure for submitting appeal is covered by Regulation No.17, (of PNB) which contains two sub-regulations and two proviso thereto. The gist of these are summarised as under:-

1. Appeal can be preferred against an order imposing any of the penalties (major or minor) or against the order of suspension referred to in regulation 12.

2. Appeal to be preferred within 45 days from the date of receipt of order appealed against.

3. Appeal to be addressed to the Appellate Authority, and submitted to the authority whose order is appealed against.

4. The Authority whose order is appealed against shall forward the appeal, together with his comments and records of the case to the Appellate Authority.

5. The Appellate Authority shall consider if the penalty is excessive or inadequate and pass appropriate orders.

6. The Appellate Authority may pass an order confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty or to any other authority, with such directions as it may deem fit in the circumstances of the case.

7. The Appellate Authority may enhance the penalty and award a major penalty, only after ordering a regular oral inquiry, if such inquiry has not already been held. After holding the inquiry, the appellate authority should consider the report of the inquiry officer with the records of inquiry and pass such orders as it may deem proper.

8. If an inquiry has already been held and the appellate authority decides to enhance the penalty, it shall issue a show cause notice to the officer employee as to why the enhanced penalty should not be imposed upon him and shall pass final order after taking into account the representation, if any, submitted by the officer employee.

It will be seen that the above procedure prescribed for submission of the Appeal is different from the procedure in the first stage oral inquiry. In the oral inquiry the PO submits his evidence first and then only the charged officer lays his evidence. PO has similarly to submit his brief and give a copy of the same to the charged officer. Charged officer submits his brief thereafter, a copy of which is not given to the PO. In the Appeal the charged officer has to first submit his appeal and the disciplinary authority submits his comments on the appeal to the appellate authority, a copy of which is not furnished to the charged officer. That is the burden of proof in the appeal is with the charged office, while the burden of proof in the initial inquiry is with the management.

There is no expressed provision in the regulation stipulating any responsibility on the part of the appellate authority with regards to proper consideration of the appeal. It is not even provided that the appellate authority should give reasons for his conclusions. However there are specific and clear stipulations to this effect in the corresponding provisions in CCS(CCA)Rules, 1964, vide Rule No.27(2), which is quoted as under:-

"In case of an appeal against an order imposing any of the penalties specified in Rule No.11 or enhancing any penalty imposed under the said rules, the appellate authority shall consider-

1. "whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in failure of justice;

2. "Whether the findings of the disciplinary authority are warranted by the evidence on record; and

3. "Whether the penalty or enhanced penalty imposed is adequate, inadequate or severe"

In addition to the directions as above for the guidance of the appellate authority, the Government of India have issued specific guidelines for speedy and proper disposal of appeals by the appellate authorities. Some of them quoted as below:-

Guidelines vide Central Secretariat (Department of Personnel) O.M.No.39/42/70-Ests(A), dated the 15th May, 197l.

Efforts to be made to dispose of appeals within one month from the date of receipt. A separate detailed statement showing appeals pending disposal for over a month should be submitted by the appellate authority to the next higher authority indicating particularly the reasons on account of which the appeals could not be disposed off within a month and the further time likely to be taken for disposal of each such appeal, along with the reasons therefor. This would enable the appropriate higher authority to go into the reasons for the delay in the disposal of appeals pending for more than a month, and take remedial steps wherever necessary to have the pending appeals disposed of without further delay.

Appeal does not involve conducting an oral inquiry and examining records and other detailed formalities that find a place in the initial inquiry. What all needed is to study the existing rec0rds of inquiry and draw out the conclusions. Therefore it is not justified to hold on the representation of Appeal for more than 30 days from the date of submission.

The guidelines hereunder are from the Director General of Posts & Telegraphs in No.101/2/80-Disc. II, dated the 1st October, 1980.

The appellate authority should make an objective assessment of the findings of the disciplinary aurthority and issue detailed orders - what is termed as speaking orders. A number of points are generally raised in the appeal and the appellant reasonably expects that the appellate authority would give weightage to those points before coming to any decision on his request. While it may be that the appellate authorities had made a mental examination of those points, but their brief observation to the effect that they were not tenable cannot satisfy the appellant. It is necessary that all the points raised by the appellant are summarised in the orders and are also logically discussed to show how they are not tenable or acceptable.

Sub-rule(2) of Rule 27 of C.C.S.(C.C.A)Rules* requires that even if the applicant has not brought any new point, it is obligatory on the part of the Appellate Authority to discuss how there has been no procedural flaw or denial of opportunity of defence and that the findings of the disciplinary authority are based on evidences and are just. This is rarely done and the result is obvious. It has also created a feeling (though may not be quite correct) that the decisions of the appellate authority are arbitrary and summary in nature. The appellate authority should bear this mind and issue the appellate orders in such a way that such unjust feelings are not created. This is possible only if the appellate authority discuss thoroughly the following points:-

1. the procedural aspects as well as the justness of the findings of the disciplinary authority with reference to the admissible evidences;

2. A proper discussion of the points raised in the appeal; and

3. any objective assessment of the lapse on the part of the punished official with a view to coming to a decision that the charges(s) had been established and that the penalty is appropriate/adequate and does not require to be either toned down or enhanced

(* Full text of Sub-rule(2) of Rule 27 of C.C.S.(C.C.A) Rules referred above has already been quoted earlier)

The requirement that the appellate authority should give reasons and pass a speaking order is also upheld by judicial courts.

The High Courts of this country and the Supreme Court have time and again emphasised that the appellate authorities must give reasons and there should be some discussion of the evidence on record. An appellate authority has a legal duty to deliberate about merit and adjudge it before confirming, enhancing, reducing or setting aside the penalty[Nathaniel Ghosh v. Union Territory of Arunachal Pradesh, (1980) 2 S.L.R. 733]

Though the procedure for deciding appeals does not provide for personal hearing to the delinquent officer, the appellant authority is bound by the rules of quasi-judicial procedure and objective and unbiased acting.

Some of his obligations are as under:-

1. Appellate authority should have been properly appointed to the post and must hold office on permanent basis.

Appeal should be expeditiously disposed. Government of India has fixed time limit of 30 days. There is no reason for banks to need more time.

2. The appellate authority has to attend the consideration of the appeal exclusively by himself and the job cannot be delegated to juniors as per the bureaucratic or hierarchical system of administration, where files are handled by juniors, who put up notes and the competent authority only reads the notes put up, without generally reading the whole contents of the records concerned and concurs with or revises the course of action suggested.

3. The Appellate Authority should examine and satisfy the procedural rules of the inquiry have been strictly adhered to

4. Appellate authority should consider the issues raised by the appellant exclusively on the basis of the records of inquiry. No material outside the records of inquiry can be considered

5. Appellate Authority should take into account all material issues raised by the appellant-employee, who submits the appeal and should not overlook any material points

6. He must arrive at objective conclusions and give reasons for his conclusions

When a litigant files an appeal in a court with Appellate jurisdiction, he is afforded a personal haring subsequently through his advocate. But it is not so in a departmental inquiry. The ruling given by a judgement of the Gujarat High Court is quoted as under:-

It appears fairly clear that the fundamental basis on which it is thought necessary to include if the concept of "reasonable opportunity" the right of personal hearing and putting forward his case at the first stage is that he must have the opportunity of leading his evidence, cross-examining the prosecution witness, pointing out the demeanor of those witnesses and personal appeal to the Enquiry Officer to appreciate that the evidence in the light in which he would like to be appreciated and urge his case or convince him of the weakness of prosecution case and strength of his own case. At the second stage, however, only the right to make representation has been held to be sufficient compliance with the requirement of constitutional protection of giving a reasonable opportunity and the requirement of personal hearing is not thought necessary because at that stage the authority is merely to take his decision from the record before him. The right of personal hearing is intended to be necessary requirement of the concept of reasonable opportunity to show cause only at the stage when evidence is to be led, cross-examination of the witness is to be done and the demeanor of the witness is to be watched and not at the stage when decision is to be taken from record before the deciding Appellate Authority. The proceedings in the departmental proceedings are only quasi-judicial proceedings. All the procedure of an ordinary trial or proceedings in a Court of Law are not applicable. The principle obtainable in the court of law even at the stage of appeal the right of personal hearing is a necessary right to do justice between the parties cannot be bodily applied to departmental inquiries which are not bound to follow all the procedure and requirement of a judicial trial or proceedings.[State of Gujarat vP.B.Ramalbhai, A.I.R., 1969 Guj, 260]

Where an appeal is preferred by the Government Servant against the order of the disciplinary authority, it is not necessary that he should be given personal hearing at that stage.[F.N.Roy vs. Collector of Customs, Calcutta A.I>R.1957S.C.648]

The proceedings before an appellate authority are a continuation of the proceedings before the enquiry officer and both these proceedings taken together point to the conclusion. That the guarantee under Article 311 is satisfied and the failure to give a personal hearing to the petitioner in appeal by itself will not render proceedings illegal[Bindanath vs. State of Assam A.I.R> 1959 Assam 112]

While the applicant employee is not, as a matter of fact, entitled for a personal hearing, any request for personal hearing has to be properly considered by the Appellate authority and the request either conceded or rejected, with reasons stated for rejection, if that be the case. This is the responsibility of the Appellate Authority. If he ignores the request of the applicant-employee without either acceptance or reasoned rejection, it amounts to violation of the quasi-judicial process of his function. The following decisions of judicial courts upheld this view.

Unless statutory rules so require or a specific prayer for personal hearing is made by the appellant in writing in the petition of appeal itself, it is not incumbent on the appellant authority to afford a personal hearing to a person aggrieved against an order imposing punishment on him in departmental proceedings[Vijay Sing Yadav vs.The State of Haryana and others 197l S.L.R.720 (Punjab and Haryana)].

Where the rules are silent regarding personal hearing but an opportunity is demanded by the delinquent official before the Appellant Authority to represent his case, such a request should not be refused, as it violates principles of natural justice[Ranjit Singh vs. Inspector of Police and others, 1979 AISLJ 57(Punj)

We have tried to understand the legal and conceptual position of Appeals, it now time to shift and to consider how for this remedy is dependable and how best to utilise the same.

1. When you are aggrieved with the order of the Disciplinary authority, Appeal is a handy and inexpensive internal remedy

2. It will not be possible for you on the other hand to avail recourse to Writ remedy, immediately without exhausting all other available remedies. Thus even if you prefer to file a writ petition, first you have prefer an appeal, wait for the outcome, and only after exhausting internal remedies can approach the High Court

On the other hand the disadvantages of Appeal are numerous.

1. Probability of getting justice in this forum, as experience shows is very dim

2. Management indefinitely delay in dealing with the appeal. The disciplinary authority may take anything up to 3 months to put up the case and the appellate authority delays final order by another three months. This appears to be a calculated step to delay the charged officer approaching the High Court with a writ petition

3. The procedure of conducting appeal in Nationalised banks is totally a closed circuit. You do not even know, where the matter stands, whether the file is still with the disciplinary authority, or with the appellate authority, or with someone else on behalf of the appellate authority, under proxy-handling.

4. Requests for personal hearing are mutely ignored, i.e. no order conveyed either granting or rejecting your representation for personal hearing

5. Your appeal is likely to be processed through proxy, (section assistant) and the appellate authority may not go through the entire records of the case, solely depending on the summarised notes put up to him by his subordinate

6. The system of Appeal is one-sided. The disciplinary authority conveys his comments to the appellate authority in confidence without any copy to you and the appellate authority is exposed to the one-sided version, without any opportunity for you to represent against submissions of the disciplinary authority.

The appeal should cover your grievances under two headings as under:-

1. Violation of inquiry procedure, and denial of natural justice, stressing how this has deprived you the full extent of your opportunities, resulting in under-presentation of your case.

2. How the Inquiry Officer has erred in interpreting the evidence on record and drawn a verdict causing injustice to you. On this subject you have already represented to the disciplinary authority, at the time of getting 2nd stage reference from him. You may dwell on the same points.

3. If the disciplinary authority failed to consider your submissions under the 2nd stage reference by ignoring them and passed on his final order, as if your objections did not exist on record, this must be pointed out in the Appeal, as the first item of discrepancy on the part of the Disciplinary Authority.

4. If you had represented for personal hearing at the time of 2nd reference and the disciplinary authority had failed to either concede or reject the request with reasons, this is another ground for pleading denial of natural justice.

5. Any other omissions on the part of the disciplinary authority, over and above those by the inquiry officer.

These matters to be sorted and listed graded according to weightage of each point, as Grounds of Appeal.

Forward the Appeal addressed to the appellate authority and inform him that a copy is submitted by you to the disciplinary authority. You may also send a copy to the disciplinary authority.

1. After waiting for a week, request the appellate authority for a copy of the comments of the disciplinary authority on your appeal submitted to the Appellate Authority and also request him an opportunity of personal hearing to plead the core points of your case. This is needed since the comments are being obtained from the disciplinary authority on your submissions, in your back.

2. After another 7 days send a reminder and after a fortnight issue a legal notice, pointing out that justice is being denied to you, and the Appeal forum is contrived to delay and defeat justice through indefinite holding the matter and keeping everything non-transparent.

3. Consult your lawyer about filing a civil suit in a the appropriate court, under specific Relief Act, a declaratory suit, adding other reliefs by way of restoration of all benefits available to you before the punishment and payment of back wages covering deductions already effected.

4. If on the other hand you want to file a writ petition in the High Court, you have to make out a case, that the Appeal remedy internally available has been tried and that you find the Bank is intransigent and only causing delay through the empty formality of dragging on and on and passing time without a bonafide disposal of the Appeal

5. Writ petition is a spcialised field. You must get a competent lawyer practising in the high Court. But in the civil court, you get other benefits. Please refer to web page on both writ Remedies About Writ Remedy and web page About Filing Civil Suit. Also refer general guidelines in the web pageLegal Awareness. I have quoted guidelines by vakil No.1 and the School of International Training, which may be studied carefully.

DA Regulation 18 provides the remedy of Review. This is done within 6 months of the final order passed in a disciplinary case. The wording of the Regulation indicates that the Bank may also at its own discretion without any reference by the delinquent officer exercise a review of a case by the Review Authority in this period. After the six month period is over, the case becomes once for all closed as the far as the Bank is concerned. It can only be activated by a pending writ or civil litigation.

Regulation No.18 contains the following statements-

1. The reviewing authority may call for the records of the case within 6 months of the date of final order

2. It would conduct a review the case, and

3. Pass such orders there on as it may deem fit

By way of Proviso, the stipulation of conducting a oral inquiry (where it was not conducted earlier) for awarding major penalties and the requirement to issue a show cause notice for enhancing the existing penalty are provided.

A writ remedy can be availed only after exhausting both appeal and review remedies, unless the charged officer on well-founded grounds take the plea that these are empty formalities and intended only to delay his seeking judicial remedies and for redressing his grievance timely and expeditiously.

I will thank anyone if they could inform me of any case, where a charged officer who had lost his case earlier before the disciplinary authority and the appellate authority has been able to get justice from the Reviewing Authority. What is the worth of a remedy, which never reaches anyone.

If you are serious on getting justice, file civil suit, immediately after submitting the appeal, bringing out the emptiness of the formality, as provided in my guidelines earlier.