Allahabad High Court
Nishith Chandra Tiwari vs Uttar Pradesh Sahkari Gramya Vikas Bank ... on 9 May, 2003
Equivalent citations: (2004)IILLJ529ALL
Author: M. Katju
Bench: M. Katju, R.S. Tripathi
JUDGMENT M. Katju, J.
1. Heard learned counsel for the parties.
2. The petitioner was a Branch Manager in the U.P. Sahkari Gram Vikas Bank Limited, Lucknow having been appointed in 1968. It is alleged in Paragraph 3 of the writ petition that a departmental enquiry was instituted against him and charge-sheet dated August 26, 1994 was issued to him vide Annexure 2 to the writ petition. Petitioner submitted his reply on September 15, 1994 denying the charges, vide Annexure 3. It is stated in paragraph 7 that thereafter no formal enquiry was held. The petitioner was neither given an opportunity of personal hearing nor was he afforded an opportunity to explain the alleged documentary evidence enumerated in the charge-sheet. On the contrary, on October 18, 1994 the Inquiry Officer submitted a report, vide Annexure 4. The Managing Director of the Bank, on the basis of so called enquiry report, issued a second show cause notice to the petitioner, vide Annexure 5 to which the petitioner sent a reply 1 dated October 4, 1995, vide Annexure 6. Ultimately, the impugned dismissal order dated June 29, 1995 was passed, vide Annexure, 7.
3. Several points have been urged by Shri Ashok Khare, learned counsel for the petitioner, but, in our opinion, this petition deserves to be allowed on the very first point, namely, no personal/oral hearing was given to the petitioner.
4. The allegation made in paragraphs 7, 17 and 21 of the writ petition that no personal/oral hearing was given to the petitioner has not been denied in the counter-affidavit. In paragraph 21 of the writ petition, it is alleged that the Inquiry Officer never called upon the petitioner in writing to participate or defend himself in it.
5. In paragraphs 8, 15 and 19 of the counter-affidavit, the above averments have not been denied. All that has been stated in paragraph 8 of the counter-affidavit is that whatever document was required by the petitioner was supplied to him and petitioner submitted his explanation which was considered in detail by the Inquiry Officer. It is further alleged in the counter-affidavit that the petitioner never made any request for personal hearing nor made a request for cross-examination. The same averments have been made in paragraphs 15 and 19 of the counter-affidavit.
6. In our opinion, the averments made in the counter-affidavit in fact confirm the allegations of the petitioner that he was not given personal hearing. Merely asking from the petitioner for an explanation, in our opinion, is not sufficient where it is proposed to impose a major punishment. That there are two kinds of hearings, in this connection it may be mentioned a personal hearing and a non-personal hearing. When it is proposed to impose a minor punishment such as with-holding of increments or a fine or warning, a non-personal hearing would suffice. In a non-personal hearing all that has been done is that the delinquent employee is issued a show cause notice to which he gives a written reply, and on that reply, the punishment is straightway imposed giving reasons. In such a case, it is not necessary to hold a full fledged oral enquiry giving the concerned employee an opportunity of leading his witnesses and cross-examining the witnesses against him.
7. However, when it is proposed to impose a major punishment like dismissal, ordinarily a full fledged enquiry must be held. This is because a major punishment has very serious consequences for the employee. It can result in the employee and his whole family been driven to starvation and destitution. Hence, the law imposes a stricter and more elaborate procedure requiring a full fledged oral enquiry in cases of major punishment. In such category of cases, it is ordinarily necessary for the employer to issue a notice to the employee indicating the date, time and place of the enquiry and appointing an Inquiry Officer. On the date and time fixed, the witnesses against the concerned employee must be examined ordinarily in his presence and he must be given an opportunity to cross-examine them. Thereafter he must be allowed to adduce his own witnesses and produce other evidences whether oral or documentary. It is only after completing this procedure that a major punishment can be imposed. This is the view which this Court has taken in Subhash Chandra Sharma v. Managing Director, U. P. Cooperative Spinning Mills, 1999 (4) All WC 3227 against which judgment S.L.P, has been dismissed by the Supreme Court. The judgment in the case of Subhash Chandra Sharma (supra) has been followed by this Court in several decisions, e.g. Sahngoo Ram Arya v. Chief Secretary, State of U.P., Lucknow, 2002 All LJ 993 against which SLP has been dismissed by the Supreme Court on March 10, 2003. Subhash Chandra Sharma v. U. P. Co-operative Spinning Mills, 2000-I-LLJ-990 (All-DB).
8. Learned counsel for the respondent submitted that the petitioner had admitted his guilt as stated in the reply to the show cause notice, copy of which is Annexure to this petition. We have carefully perused the reply and in our opinion it does not amount to admission of guilt. In fact in the reply the petitioner had denied that he was guilty of the offence alleged against him, but, has stated that it is natural that small mistakes can occur and the proposed punishment of dismissal is severe.
9. In our opinion, when an employee is informed that it is proposed that he will be dismissed from service, it is natural that he will be submissive and will try that his services may not be terminated. The reply of the petitioner to the show cause notice, in our opinion, does not indicate that he admitted the guilt. It is thus evident that no oral enquiry was held against the petitioner and he was not given a personal hearing as required by law.
10. For the reasons given above, this writ petition is allowed. The impugned order, dated June 29, 1995 is quashed. Learned counsel for the petitioner submits that the petitioner attained the age of superannuation on December 31, 2001. Hence, we direct that he shall be paid his entire salary and allowances from June 29, 1995 till December 31, 2001 within two months from the date of production of a certified copy of this judgment with interest at the rate of 10% per annum, from the date when it was due to the date of payment. Petitioner shall also be given all retiral benefits expeditiously.
11. Parties will bear their own costs.