Patna High Court
Ranjan Kumar vs Nalanda Gramin Bank And Ors. on 10 February, 2003
Equivalent citations: 2003(2)BLJR1113
Author: Chandramauli Kumar Prasad
Bench: Chandramauli Kr. Prasad
JUDGMENT Chandramauli Kumar Prasad, J.
1. This application has been filed for issuance of a writ in the nature of certiorary for quashing the order dated 2-6-1999 (Annexure 1) passed by the disciplinary authority whereby the petitioner has been visited with the penalty of withholding one annual increment without cumulative effect and it has also been directed that the period of suspension shall not be treated as the period spent on duty. Further prayer of the petitioner is to quash the order 12-5-2000 (Annexure 2) whereby the appellate authority had affirmed the order of the disciplinary authority.
2. Shorn of unnecessary details, facts giving rise to the present application are that at the relevant time, petitioner was working as Clerk-cum-cashier of Nalanda Gramin Bank, hereinafter referred to as the Bank. By order dated 3-12-1993 (Annexure 4), he was put under suspension for the purported misconduct committed by him on 2-12-1993 allegedly for not following the rules of the Bank and disobedience of the orders of the superior authority. By letter dated 5-1-1994 (Annexure 5) petitioner was asked to submit his explanation and in reply thereto, petitioner submitted his reply. It seems that the petitioner's Union approached the Assistant Labour Commissioner making complaint in regard to the suspension of the petitioner and on account of understanding reached before the Assistant Labour Commissioner, the respondent Bank by order dated 18-2-1994, revoked the suspension of the petitioner with retrospective effect with caution and warning to him that he shall not repeat the disobedience of the nature in future.
3. The petitioner was again suspended by order dated 15-3-1994 and a departmental proceeding was initiated against him. He was served with memo of charges dated 22-2-1994 and 4-4-1994 (Annexure 2). In the departmental proceeding one Shri Birendra Kumar was appointed as Inquiry Officer who submitted an ex parte inquiry report. Thereafter, a show cause notice was issued to the petitioner to which he submitted his reply. However, the disciplinary authority set aside the Inquiry report ordered re-inquiry and appointed Shri Paras Kumar Jha as the Inquiry Officer. The Inquiry Officer submitted its report dated 4-8-1997 (Annexure 8). The Inquiry Officer exonerated the petitioner from charges No. 1 but held him, guilty of charge Nos. 2 and 3. First charge related to the petitioner entering the chambers of the General Manager and abusing him whereas charges Nos. 2 and 3 related to refusal of the petitioner to receive confidential letters issued to him on 7-3-1994 and 15-3-1994. On receipt of the report of the Inquiry Officer, the disciplinary authority gave him show cause notice against the proposed punishment. While doing so, it observed that he is in disagreement with the conclusion of the Inquiry Officer in respect of charge No. 1 and after assigning the reasons, he held the petitioner guilty of charge No. 1 also and then gave to the petitioner the second show cause notice in respect of the proposed punishment. In response to the aforesaid second show cause notice, petitioner filed his reply dated 15-7-1999 (Annexure 9) and prayed for exonerating him from all the charges. The disciplinary authority, on consideration of the show cause filed by the petitioner and in agreement with the conclusion of the Inquiry Officer in respect of charge Nos. 2 and 3 and on disagreement in respect of charge No. 1 imposed on the petitioner the penalty of withholding of one annual increment with cumulative effect and further directed that the period of suspension shall not be treated as period spent on duty and for that period, petitioner shall not be entitled to other monetary benefit excepting the subsistence allowance, Petitioner aggrieved by the aforesaid order, preferred appeal and the appellate authority, by the impugned order dated 12-1-2000 (Annexure 2), dismissed the same. In this writ application prayer of the petitioner is to quash the aforesaid orders.
4. Mr. Ashutosh Kumar, learned Counsel appearing on behalf of the petitioner raises a very short point. He submits that the petitioner was exonerated of charges No. 1 by the Inquiry Officer and the discilinary authority disagreed with the same and gave to the petitioner the opportunity to show cause only against the punishment and this renders the impugned order of the disciplinary authority vitiated in the eye of law. Learned Counsel submits that on this ground alone, orders of the disciplinary authority and the appellate authority are fit to be quashed.
5. Mr. Sunil Kumar, however, appearing on behalf of the respondents submits that the petitioner was given show cause notice against the proposed punishment and while doing so, the disciplinary authority had assigned reasons for disagreement with the conclusion of the Inquiry Officer in respect of charge No. 1 and that meets the requirement of the principle of natural justice. Hence, no fault can be found out in the orders impugned.
6. Having appreciated the rival submissions, I find substance in the submission of Mr. Kumar. It is relevant here to state that three charges have been levelled against the petitioner. The Inquiry Officer has held him guilty of only two charges and exonerated him of charge No. 1. The disciplinary authority, in the show cause notice, has stated that he is not in agreement with the conclusion of the Inquiry Officer in respect of charge No. 1 and after indicating the reasons, he held the petitioner guilty of charge No. 1 and thereafter, issued show cause notice on the proposed punishment directing the petitioner to file his show cause. Thus, he had not given opportunity to the petitioner to show that the finding recorded by the Inquiry Officer in respect of charge No. 1, is lawful and correct. This is in the teeth of principle of natural justice and this itself vitiates the impugned order. The view which I have taken flows from the judgment of a constitution, bench of the Supreme Court in the case of The State of Assam and Anr. v. Bimal Kumar Pandit, (AIR 1963 SC 1612), in which it has been held as follows:
"8. We ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311 (2). In such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer, without such an express statement in the notice, it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on other issues. That is precisely what has happened in the present case. If the dismissing authority accepts all the said findings in their entirety, it is another matter but if the dismissing authority accepts the findings recorded against the delinquent officer and differs from some or all of the those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions, it would be necessary that the said conclusion should be briefly indicated in the notice. In this category of cases, the action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer are according to the dismissing authority, proved, in order to give the delinquent officer a reasonable opportunity to show cause under Article 311 (2), it is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the notice."
(underlining mine)
7. Same view has been expressed by the Supreme Court in the case of Punjab Nation Bank and Ors. v. Kunj Behari Misra and Ors., (1998)7SC 84 and paragraph 19 of the judgment which is relevant for the purpose reads as follows:
"19 The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charge framed against the officer."
Further, in the case of Yoginath D. Begde v. State of Maharastra and Anr., (1999) 7 SCC 739, the disciplinary authority having taken the final decision in regard to the charge in disagreement with the enquiry officer, gave notice to the delinquent employee against the proposed punishment. This procedure adopted was found to be in violation of the principle of natural justice by the Supreme Court which would be evident from paragraph 37 of the judgment which reads as follows:
"37. The contention apparently appears to be sound but a little attention would reveal that it sound like the reverberations from an empty vessel, What is ignored by the learned Counsel is that a final decision with regard to the charges levelled against the appellant had already been taken by the Disciplinary committee without providing any opportunity of hearing to him, After having taken that decision, the members of the Disciplinary committee merely issued a notice to the appellant to show cause against the major punishment of dismissal mentioned in Rule 5 of the Maharastra Civil Services (Discipline and Appeal) Rules 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank in which it had been categorically provided, following earlier decisions, that if the disciplinary authority does not agree with the findings of the enquiry officer that the charges are not proved, it has to provide, at that stage, an opportunity of hearing to the delinquent so that there may still be some room left for convincing the disciplinary authority that the findings already recorded by the enquiry officer were just and proper. Post Decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case."
This point also came up for consideration before a Division Bench of this Court in L.P.A. No. 792 of 1999 Jai Kumar Singh v. State Bank of India and Ors., disposed of on 1 -2-2000. The Divisional Bench in the said case after noticing that the delinquent employee was given show cause notice against the proposed punishment without giving opportunity to him to represent that the findings of the enquiry officer was justified, held the order of punishment imposed to be bad. In the said case, it was observed as follows:
"xxx He thereafter gave an opportunity of hearing regarding nature of proposed punishment and called upon the appellant to show cause why the proposed punishment should not be inflicted upon him.
xxx There was, therefore, no scope for the appellant to represent that the finding of the enquiry officer was justified in the facts and circumstances of the case and that the reasons for disagreement as recorded in the order were not adequate to disturb the finding recorded by the enquiry officer. All that the notice provided was that the appellant should represent against the proposed punishment."
8. The effect of giving opportunity only against the proposed punishment and not giving opportunity to the delinquent employee to satisfy the disciplinary authority that the finding of exoneration is correct and lawful, came up for consideration before a learned single Judge of this Court in the case of Jitendra Kumar v. Central Bank of India and Ors., 2000 (4) P.L.J.R. 216 and relying on the judgment of the Supreme Court in the case of Kunj Behari Misra (supra), this Court held as follows:
"7. This Court is unable to accept the said submission of the learned Counsel for the Bank. Admittedly, the petitioner was not given opportunity before the Disciplinary Authority passed order dated 7-1-1994 (Annexure 6) differing with the findings of the Enquiry Officer. I n view of the law settled in the case of Punjab National Bank v. Kunj Behari Misra (supra), the Disciplinary Authority was obliged to give opportunity while differing with the findings of the Enquiry Officer. By the order contained in Annexure 6, the petitioner was simply given an opportunity as against the proposed punishment and not to meet the ground for differing with the findings of the Enquiry Officer. As such the impugned orders on this ground alone cannot be sustained, xxx"
9. Similar is the view taken by this Court in the case of Braj Kishore Singh v. the State of Bihar and Ors., 2000 (4) P.L.J.R. 411, in which it has been observed as follows:
"6. It is not the case of the respondents that the disciplinary authority while disagreeing with the findings of the enquiry officer ever gave such opportunity to the petitioner except that after recording finding the petitioner was given second show cause notice only against the proposed punishment. Learned Counsel for the respondents has also failed to show that the petitioner was ever given any such opportunity as per the aforementioned principle decided by the apex Court. Thus, the impugned orders are vitiated on this ground alone."
From the authorities of the Supreme Court and the decisions of this Court referred to above, it is evident that in case, the disciplinary authority disagrees with the findings of the enquiry officer, he has to record tentative reasons and communicate the same to the delinquent employee giving opportunity to him to satisfy that the findings recorded by the enquiry officer is just and proper. At this stage, the disciplinary authority cannot record a conclusive finding even after assigning the reasons and in case, he does so and gives opportunity to the delinquent employee, to show cause only against the proposed punishment, same shall vitiate the order of punishment as in such a situation, the disciplinary authority had recorded the finding of guilt in disagreement with the conclusion of the enquiry officer without giving opportunity to the delinquent employee in my opinion, mere recording of reasons of disagreement does not satisfy the requirement of principles of natural justice but the principle of natural justice demands that before recording the finding of guilt in disagreement with the opinion of the enquiry officer, opportunity must be given to the delinquent employee. Here, in the present case, the disciplinary authority had stopped into the second stage of asking show cause against the proposed punishment without taking the first step of giving opportunity to the delinquent employee to satisfy that the finding of the enquiry officer is correct.
10. There discussions aforesaid necessarily lead to the conclusion that the disciplinary authority had passed the order in breach of the principles of natural justice and that itself, vitiates his order, so also is the order of the appellate authority. The disciplinary authority, if so advised, after indicating the reasons for disagreement, give show cause notice to the petitioner as to why he be not held guilty of charge No. 1 also and also giving show cause notice in regard to the proposed punishment, may passed order in accordance with law.
11. In the result, the orders of the disciplinary authority and the appellate authority are quashed and the writ application is allowed with the aforesaid observation. No costs.