Orissa High Court
Ch. Gobinda Rao vs Asst. General Manager State Bank Of ... on 10 March, 2017
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 11653 of 2004
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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Ch. Gobinda Rao ... Petitioner
Versus
Asst. General Manager,
State Bank of India and others ... Opp. Parties
For petitioner : Mr. S. Senapati, Advocate.
For opp. parties : Mr. P.V. Balakrishna,
Advocate
[O.Ps. No. 1 & 2]
PRESENT:
THE HON'BLE DR. JUSTICE B.R.SARANGI
DECIDED ON : 10.03.2017
DR. B.R.SARANGI, J.The petitioner, while working as Head Assistant (Accounts), State Bank of India at Jeypore, was in- charge of pension payment section as an officiating officer in Scale-I cadre from June, 1995 to August, 1998. It is alleged that during the period from 09.12.1996 to 06.11.1997, he committed 2 irregularities of serious nature in respect of pensions, savings bank accounts of the pensioners and dishonestly misappropriated a sum of Rs. 73,000/- by cheating the pensioners fraudulently and forging their accounts. The said fact, having come to the notice of the Bank authorities, was enquired into by an investigating team, which submitted a report against the petitioner in August, 1998. On the basis of such report, the Chief Manager lodged an FIR in writing against the petitioner before the IIC, Town Police Station, Jeypore on 12.11.1998, which was registered as Jeypore Town P.S. Case No. 266 of 1998 under Sections 409/420/468/471/477-A, IPC. During investigation, the Investigating Officer seized various documents, examined witnesses and submitted charge sheet against the petitioner. The petitioner faced trial and, after its completion, was acquitted of the charges levelled against him by judgment dated 27.10.2003 passed in G.R. Case No. 735 of 1998.
2. On the self same matter, simultaneously, a departmental proceeding was initiated against the petitioner and, by letter dated 03.08.1998, he was asked, by the Chief Manager, to show cause. On 31.08.1998, the petitioner, on the 3 basis of the allegations raised on 03.08.1998, was put under suspension. On 29.07.2002, charge sheet was submitted levelling 33 charges against the petitioner. The act of omission and commission in banking transaction, being misconduct as per "Shastry Award", the petitioner was called upon to submit explanation vide memorandum dated 11.05.1999. In response to the same, the petitioner submitted his reply on 10.07.1999. Thereafter, on 12.10.2000, the petitioner submitted a detailed explanation to the charge sheet dated 29.07.2000 denying the allegations made against him. It was contended specifically that the petitioner discharged his duty in good faith. As he was an active union member holding the posts of Branch Chairman and President of S.B.I. Staff Co-operative Credit Society Ltd., Jeypore, the rival union set up and got the charge sheet filed against him. Consequentially, the petitioner was harassed both in criminal and departmental proceedings.
3. Pursuant to order dated 25.10.2000, one Sri P.K. Patnaik was appointed as enquiry officer. Enquiry continued and finally the enquiry officer submitted report on 27.09.2001. The petitioner, on 15.07.2002, submitted explanation to the inquiry report before the disciplinary 4 authority stating inter alia that the enquiry officer was biased, and therefore, the report should not be accepted. But, without appreciating the materials on record and also the objection raised by the petitioner, the disciplinary authority passed an order on 10.08.2002 dismissing the petitioner from the bank service with immediate effect and the period of suspension was directed to be not treated as on duty. Against the said order imposing punishment, the petitioner preferred an appeal, which was rejected by office order dated 04.10.2002, hence this writ application.
4. Mr. S. Senapati, learned counsel for the petitioner strenuously urged before this Court that for the self same charges both criminal and disciplinary proceedings were continuing. After full-fledged trial, the petitioner, having been acquitted of the charges by the competent court of law, the disciplinary authority, for the self same charges, should not have proceeded with the disciplinary proceeding and imposed major penalty like dismissal from service and treated the suspension period as such. It is contended that neither the disciplinary authority nor the appellate authority has passed reasoned orders justifying imposition of penalty against the 5 petitioner. Therefore, the order of punishment dated 10.08.2002 and the order dated 04.10.2002 of the appellate authority, which confirmed the order of punishment, are liable to be quashed.
5. Mr.P.V. Balakrishna, learned counsel appearing for the Bank, on the contrary, strenuously urged before this Court that the petitioner, having indulged in commission and omission of pensionary accounts, the punishment so imposed by the authority concerned is wholly and fully justified. He stated that even though the petitioner has been acquitted of the criminal charges, the same cannot preclude the authority from proceeding against him departmentally. Since on the basis of the materials available on record the petitioner has been penalized with dismissal of service by the disciplinary authority, and the same has been confirmed by the appellate authority, imposition of such penalty being well within the jurisdiction of the competent authority, this Court should not interfere with the order of punishment imposed by the authority concerned.
5. This Court heard Mr. S. Senapati, learned counsel for the petitioner and Mr. P. Balarishna, learned 6 counsel for opposite parties. Pleadings having been exchanged, this writ petition is being disposed of at the stage of admission.
6. The admitted fact being that the petitioner, while working as Head Assistant on State Bank of India, Jeypore Branch in the district of Koraput, was officiating in- charge of Pension Section as an Officer in the cadre of JMGS -I. During the period from June 1995 to August, 1998 he looked after most of the work relating to pension payment through SB Accounts in the Branch, i.e., calculation of pension, arrear pension, putting through pension scroll, passing credit and debit transactions of SB Account holders drawing pension through the Bank, handling medical loans sanctioned to pensioners, maintaining passing scrolls for releasing cash drawals from SB Accounts of pensioners, checking SB Day Book and maintaining SB progressive Balance Book relating to Pension Ledger. While discharging such duties, the petitioner was alleged to have committed financial irregularity and, in order to keep the absolute devotion, diligence, integrity and honesty, as well as to win the confidence of the public in general and depositors in particular, the departmental proceeding was initiated and ultimately, the disciplinary 7 authority imposed the penalty of dismissal from bank service with immediate effect treating the suspension period as not on duty. The petitioner preferred appeal against such order of imposing penalty, which was confirmed by the appellate authority.
7. A perusal of the impugned order dated 10.08.2002 (Annexure-11) passed by the disciplinary authority imposing penalty of dismissal from service with immediate effect and treating the suspension period as not on duty, as well as the order dated 04.10.2002 (Annexure-12) of the appellate authority would show that both are cryptic and no reason has been assigned in support of the same. Imposition of such penalty of dismissal from service, being a major one, on receipt of reply from the delinquent, the authority has to give reason why such major penalty has been imposed. The impugned orders, having not contained any reason in support of imposing such major penalty, cannot sustain in the eye of law.
8. In Mahipal Singh Tomar v. State of Uttar Pradsh, 2013 (12) SCALE 304, the apex Court held that in administrative law, the 'rules of natural justice' have 8 traditionally been regarded as comprising 'audi alteram partem' and 'nemo judex in causa sua'. The first of these rules requires the maker of a decision to give prior notice of the proposed decision to the persons affected by it and an opportunity to them to make representation. The second rule disqualifies a person from judging a cause if he has direct pecuniary or proprietary interest or might otherwise be biased. The first principle is of great importance because it embraces the rule of fair procedure or due process. Generally speaking, the notion of a fair hearing extends to the right to have notice of the other side's case, the right to bring evidence and the right to argue. This has been used by the Courts for nullifying administrative actions. The premise on which the Courts extended their jurisdiction against the administrative action was that the duty to give every victim a fair hearing was as much a principle of good administration as of good legal procedure.
9. In Menaka Gandhi v. Union of India, AIR 1978 SC 597, the apex Court held as follows:
"Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. 9 Natural justice is a great humanizing principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must always be:
Does fairness in action demand that an opportunity to be heard should be given to the person affected?"
10. In Uma Charan v. State of Madhya Pradesh, AIR 1981 SC 1915, the apex Court with regard to assigning reasons held as follows:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinion or decisions recorded be shown to be manifestly just and reasonable."
11. In Tarachand v. Delhi Municipality, AIR 1977 SC 567, the apex Court held as follows:
"While it may be necessary for a disciplinary or administrative authority exercising quasi-judicial functions to state the reasons in support of its order if it differs from the conclusion arrived at and the recommendations made by the inquiring officer in view of the scheme of the particular enactment or the rules made thereunder, it would be laying a proposition a little too broadly to say that even an order of concurrence must be supported by reasons. It cannot be laid down as a general rule that an order is a non-speaking order simply because it is brief and not elaborate. Every case has to be judged in the light of its own facts and circumstances."
Similar view has also been taken by this Court in Chandramohan Singh v. Chairman, Orissa State Handloom Development Corporation Ltd., 2017 (I) OLR 251. 10
12. Franz Schubert said:
" Reason is nothing but analysis of belief."
In Black's Law Dictionary, 5th Edition 'reason' has been defined as:
"faculty of the mind by which it distinguishes truth from falsehood good from evil, and which enables the possessor to deduce inferences from facts or from prepositions."
13. The recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice. The requirement of giving reasons is based on sound principles. The requirement is intended to achieve the following objects and laudable purposes:
In the first instance, the requirement to give reasons ensures application of mind to the material, for, how does one give reasons for an order unless one applied one's mind to the material which it is called upon to consider.
Secondly, it incorporates a built-in safeguard against arbitrariness in the exercise of power. It immediately introduces an element or rationality into an executive decision-making process. The requirement makes the authority pause for a 11 moment and articulate for itself why it was making the order. It feels that it is answerable for its order and the validity of the order would be tested at the touch-stone or reasoning, rationality and logic.
Thirdly, it makes any further examination or review in appeal or other proceedings before courts more meaningful and effective. It enables all subsequent authorities dealing with the matter to know how the mind of the authority, which made the order, was functioning; what is it that appealed to it when it made the order and how it dealt with the objections as to why the order should or should not be made.
Lastly, it is intended to inform the person aggrieved, if an individual, or if it involves wider rights, interest, freedoms the public in general, as to why the action has been taken. This requirement would be particularly important where there remains a superadded requirement of publication in a Gazette. Such an order has to meet the larger public gaze. The authority in such cases is answerable to the people in general because the nature of the order is such that all of them must be informed as to what order has been made and why it has been made.
14. In view of the law discussed above, applying the same to the present fact, it appears that the impugned orders in 12 Annexure-11 and 12 passed by the disciplinary authority, as well as the appellate authority, having been passed without reasons, the same cannot sustain in the eye of law. Accordingly, the same are hereby quashed. The matter is remitted back to the disciplinary authority to consider and pass a reasoned order in accordance with law by affording reasonable opportunity of hearing to the petitioner. Needless to say that it is a year old case, the authority shall do well to dispose of the matter by passing a reasoned order as expeditiously as possible.
15. The writ application is accordingly allowed to the extent indicated above. No order as to cost.
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(DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 10th March, 2017/Ajaya/GDS 13