Ram Awatar v. Bhojpnr Rohtash Gramin Bank — 1988 DIGILAW 110 (PAT)

Judgment S. B. Sinha, J. 1. In this writ petition the petitioner has prayed for issuance of an appropriate writ for quashing an order dated 7-8-1982 and as contained in annexure-6 to the writ petition whereby and whereunder he was intimated that the Board of Directors of the Bhojpur Rohtash Gramin Bank resolved to an award the following punishments to the petitioners :- - (a) No loaning power should be vested in the petitioner for one year. He will be withdrawn from inspection department and will be posted as Additional Officer (Recovery) in the branches to realise bank dues with an instruction to submit the detailed progress report every fortnight to Head Office. (b) The petitioners salary will be reduced by three increments with immediate effect, 2. The petitioner at present is holding the post of Branch Manager under the respondent No.1-Bank. It is alleged that while he was working as Inspector, head Quarters Sasaram, he was served with copy of charge-sheet dated 23-9-1981. By reason of the said charge-sheet the petitioner was directed to show cause in respect of the charges mentioned therein within 15 days from the date of issue thereof. The said charge-sheet contained 14 items and all of them were based on the Audit report. 3. The petitioner by a letter dated 13-10-1981 prayed for a copy of the said Audit report as he submitted that in absence thereof it would be difficult for him to answer the said charges. A copy of the said letter is contained in annexure-2 to the writ petition. In reply to the said letter, the General Manager by a letter dated 28-ll-1981 expressed his opinion that a copy of the Audit report is not necessary for filing the show cause by the petitioner. The petitioner was therefore again directed to submit his show cause within 15 days. The said letter dated 28-11-1981 is contained in Annexure-3 to the writ petition. 4. The petitioner again drew the attention of the General Manager by a letter dated 5-12-1981 (Annexure-4) that in absence of a copy of the Audit report he is facing difficulty in submitting his show cause. The said letter dated 28-11-1981 is contained in Annexure-3 to the writ petition. 4. The petitioner again drew the attention of the General Manager by a letter dated 5-12-1981 (Annexure-4) that in absence of a copy of the Audit report he is facing difficulty in submitting his show cause. By a letter dated 11-12-1981 as contained in Annexure-5 to the writ petition the General Manager in reply to the petitioners aforementioned letter dated 5-12-1961 (Annexure-4)observed that the charges served against the petitioner continue all the details and it was further stated therein that the case of the petitioner in not filing the show cause is being considered seriously and more delay the petitioner causes in submitting the show cause more harmful the same would prove to him. A copy of the said letter dated 11-12-1981 is contained in Annexure-5 to the writ petition, 5. The petitioner has asserted in the writ petition that in view of the aforementioned threatening as contained in the said letter dated 11-12-1981 he submitted his show cause to the Chairman on 31-12-1981. The petitioner has further asserted that non-supply of audit report has caused seriously prejudice to the case of the petitioner as he has not been able to submit his explanation ir right earnest. 6. The petitioner thereafter was informed by the General Manager by a latter dated 7-8-1982 that the Board of Directors of the respondent No.1-Bank awarded the aforementioned punishments to him. 7. According to the petitioner the departmental enquiry in relation to the said charge was delegated to an officer junior to him and further the Board of directors was cot competent to take the impugned decisions as communicated to him by the letter of the General Manager date 7-8-1982 (Annexure-6) as it was pased by the Appellate Authority and not the disciplinary authority. 8. In this case a counter affidavit has been filed on behalf of the respondent No.1 Bank. In the said counter affidavit it has been asserted that on the basis of the audit report itself a prima facie case was established as against the petitioner. 8. In this case a counter affidavit has been filed on behalf of the respondent No.1 Bank. In the said counter affidavit it has been asserted that on the basis of the audit report itself a prima facie case was established as against the petitioner. It has further been asserted therein that no enquiry as such was conducted as against the petitioner but the Board of Directors adopted a resolution after considering the relevant papers in terms of Regulation 30 (2) of bhojpur-Rohtash Gramin Bank Staff Service Regulation, 1980 framed under section 30 of the Regional Rural Banks Act, 1976 (Act No.21 of 1976 ). 9. It has further been asserted in the said counter affidavit that as the charges were clear the petitioner was not prejudiced in any manner in not having a copy of the audit report. It has further been stated that the petitioner did not make any effort to inspect the said audit report. It has further been asserted that the petitioner allegedly admitted most of the charges levelled against him. 10. In reply to the aforementioned counter affidavit the petitioaer has inter alia contended that he has not admitted any charges whatsoever. It has further been asserted that he was never asked to inspect nor was given any opportunity to inspect the audit report. It has also been asserted therein that the petitioner has not been given a reasonable opportunity of defending his case and no proper enquiry was held in relation thereto. 11. It has further been asserted that he was never asked to inspect nor was given any opportunity to inspect the audit report. It has also been asserted therein that the petitioner has not been given a reasonable opportunity of defending his case and no proper enquiry was held in relation thereto. 11. Before proceeding to consider the respective submissions of the parties ; Regulation 30 of the aforementioned Regulation may be noticed which reads as follows :- "30 (1) Without prejudice to the provisions of other regulations, an officer or employee who commits a breach of these regulations or who displays negligence, inefficiency or indolence, or who knowingly does anything detrimental to the interests of the Bank or in conflict with its instructions or who commits a breach of discipline or is guilty of any other act of misconduct shall be liable to the following penalties:- (a) reprimand ; (b) delay or stoppage of increments or promotion ; (c) degradation to a lower post or grade or to a lower stage in the incremental scale ; (d) recovery from pay of the whole or pat; of any pecuniary loss caused to the Bank by the officer or employee ; (e) removal from servics which shall not be a disqualification for future employment ; (f) dismissal. (2) No officer or employee shall be subjected to the penalties referred to in clauses (b), (c), (d), (e) or (f) of sub-regulation (1) except by an order in writing signed by the Chairman and no such order shall be passed without the charge being formulated in writing and given to the said officer or employee so that he shall have reasonable opportunity to answer them in writing or in person, as he prefers and in the latter case his defence shall be taken down in writing and read him ; provided that the requirements of this sub-regulation may be waived, if the facts on the basis of which action is to be taker have been established in a court of law or court material, or where the officer or employee has absconded or where it is for any other reason impracticable to communicate with him or where there is difficulty in observing them and the requirements can be waived without injustice to him. In every case where all or any of the requirements of this sub-regulation are waived, the reasons for so doing shall be recorded in writing. (3) The enquiry under this regulation and the procedure with the exception of the final order, may be delegated in case the person against whom proceedings are taken is an officer to any officer who is senior to such officer and in the rase of an employee to any officer. For purpose of the inquiry, the officer or employee may not engage a legal practitioner. " 12. Learned counsel for the petitioner raised three fold contentions :- (a) The Board of Directors being the Appellate Authority it had no jurisdiction to pass the impugned order as contained in Annexure-6 to the writ petition as thereby the petitioner has been denied a right to prefer an appeal. (b) The Enquiry Officer who was appointed to enquire into the allegations as against the petitioner was an officer junior to him. (c) There has been a violation of principle of audi altarem partem as the petitioner admittedly was not supplied with the relevant document i. e. audit report. 13. In view of the statements made in the counter affidavit that no enquiry was held as against the petitioner and the Board of Directors passed a resolution to award the punishments on the petitioner on the basis of the audit report and the show cause filed by him it is not necessary to consider the second submission raised on behalf of the petitioner. 14. So far as the first submission raised on behalf of the petitioner is concerned, it is true that normally the disciplinary authority at the initial stage is required to take into consideration as to whether the charges have been proved or not and not the appellate authority so as to give an opportunity to a delinquent officer to prefer an appeal before the appellate authority which would naturally consist of an authority other than the disciplinary authority. In the instant case, the Chairman of the Board of Directors was the disciplinary authority and the board of Directors was the appellate authority. 15. In the counter affidavit it has clearly been mentioned that while the board of Directors adopted the resolution as against the petitioner the same was presided over by the Chairman of the Board. In the instant case, the Chairman of the Board of Directors was the disciplinary authority and the board of Directors was the appellate authority. 15. In the counter affidavit it has clearly been mentioned that while the board of Directors adopted the resolution as against the petitioner the same was presided over by the Chairman of the Board. If the Chairman himself passed an order inflicting punishments on the petitioner in such an event it would have been possible for the petitioner to prefer an appeal before the Board of Directors which could not have been presided over by the Chairman himself. This has resulted in grave prejudice to the petitioner. In this connection a recent Supreme court in decision in Institute of Chartered Accountants of India V/s. L. K. Ratna and others, reported in 1987 SC 71 may be referred to where the Supreme Court has held as follows :- "the function of the Disciplinary Committee of holding an enquiry under section 21 (1) of the Act into the conduct of the member calls for a recording of evidence by the Committee. Its duty does not end there. It must consider the evidence and come to its conclusions. As Sec.21 (2) of the Act plainly says, it must report the result of its enquiry to the Council. In the absence of express or implied statutory intendment to the contrary, it appears that the members of such a Committee would be disqualified from participating in the deliberations of the Council when it proceeds to consider the report in order to find whether the member is guilty of misconduct. For that alone would be considered with the fundamental principle that justice must not only be done but must also appear to be done. The nature of the function discharged by the Council in rendering its quasi judicial. 16. In this view of the matter it has to be held that there has been a procedural infirmity and in passing the impugned order and the petitioner has been denied his statutory right of appeal. The order as contained in Annexure-6 to the writ petition is liable to be quahed on this ground alone. 17. So far as the violation of principel of natural justice is concerned, the same is writ large on the face of the records. Admittedly the copy of the audit report was not supplied to the petitioner. The order as contained in Annexure-6 to the writ petition is liable to be quahed on this ground alone. 17. So far as the violation of principel of natural justice is concerned, the same is writ large on the face of the records. Admittedly the copy of the audit report was not supplied to the petitioner. Admittedly the entire charges were based upon a copy of the said audit report and the Board of Directors evidently have awarded the punishments on the petitioner on the basis of the audit report itself. As would appear from the facts and as mentioned hereinbefore, the general Manager of the respondent No.1 had at no point of time even indicated that the said audit report is available for inspection and the petitioner being a delinquent employee would be afforded an opportunity to do that. Even no suggestion to the aforementioned effect was given to the petitioner. Surprisingly in the counter affidavit the respondents took the stand that the said audit report was a confidential document. From the tenor of the letters as contained in annexures 3 and 5 to the writ petition it is clear that the bank had adopted a hostile attitude towards the petitioner. 18. There was absolutely no reason as to why the right of the petitioner to the effect that he was entitled to make an inspection of the audit repjrt and make notes therefrom should not have been made known to him. On the other hand he was threatened by the General Manager as is apparent from Annexure-5 to file his show cause immediately. Admittedly after the show cause was filed by the petitioner, no further step was taken in that matter and straight way the impugned order (Annexure- 6) was passed. This attitude on the part of the respondent-Bank, to say the least, is most unfortunate. 19. Further, admittedly no departmental enquiry was initiated, no witness was examined nor the petitioner was asked to examine his own witnesses. The petitioner admittedly was even not given an opportunity of being personally heard in the matter. 20. On the face of the statements made in the counter affidavit it is apparent that the Board of Directors adopted a peculiar stand. The petitioner admittedly was even not given an opportunity of being personally heard in the matter. 20. On the face of the statements made in the counter affidavit it is apparent that the Board of Directors adopted a peculiar stand. The respondent has not even brought on records the resolution of the Board of Directors or the documents which were before it and which were allegedly considered for the purpose of taking action against the petitioner. 21. From a perusal of Annexure-6 to the writ petition it is evident that no reason has been assigned as to on what ground the Board of Directors found the petitioner guilty and on what materials they did so. 22. As noticed hereinbefore the respondents stand is that the petitioner admitted most of the charges. Although the respondents have filed a counter affidavit as also an affidavit replying to the rejoinder filed on behalf of the petitioner it has not been stated as to what charges the petitioner has not been brought on record so as to bring to the notice of this Court the correctness or otherwise of the aforementioned statements made in the counter affidavit. 23. Even if the petitioner admitted most of the charges it was necessary for the respondent to disclose toe said materials in detail so as to enable this court to take into consideration as to whether in fact the petitioner admitted most of the charges levelled against him or not as alleged or at all. 24. Plainly enough there has been a clear violation of the principles of natural justice. The petitioner has also been denied a fair trial and reasonable opportunity of hearing. 25. In Gopal Singh V/s. State of Bihar and others, reported in 1984 Patna 294, a bench of this Court held that non-furnishing of a copy of the report (enquiry report) while directing the delinquent employee to show cause against proposed punishment Violates the principle of audi altarem partem. In Swadeshi cotton Mills V/s. Union of India and others reported in 1981 SC 818 it has categorically been laid down as to what is needed in complying with the principle of natural justice. The said principles has also been explained in Khem Chand V/s. Union of India and others, reported in 1958 SC 300. 26. In Swadeshi cotton Mills V/s. Union of India and others reported in 1981 SC 818 it has categorically been laid down as to what is needed in complying with the principle of natural justice. The said principles has also been explained in Khem Chand V/s. Union of India and others, reported in 1958 SC 300. 26. In Kashinath Dikshita V/s. Union of and others, reported in 1986 SC 2118, the Supreme Court has held that non-supply of the documents to the delinquent relied upon the disciplinary authority vitiates the enquiry. 27. In the Board of High School and Intermediate Education, U. P. and others V/s. Kumari Chitra Srivastava and others reported in 1970 (1) SC 121 it was held as follows :- "that whether a duty arises in a particular case to issue a show cause notice inflicting a penalty does not depend on the authoritys satisfaction that the person to be penalised has no defence but on the nature of the Order proposed to be passed. The impugned order imposed a penalty. The petitioner (first respondent) had appeared in the examination and answered all the question papers. According to her she had passed. To deny her the fruits of her labour cannot but be called a penalty. The Board was exercising quasi-judicial functions. Principles of natural justice are to some minds burden some but this price small price indeed has to be paid if there is to be a society governed by the rule of law. " 28. In S. L. Kapoor V/s. Jagmohan and others reported in 1981 SC 136 it has been held that even if the allegations are accepted by the proceedee, even then an opportunity of hearing should be given. However, I hasten add that this does not mean that even if a delinquent employee admits all the charges levelled against him, even then it would be necessary to hold a regular domestic enquiry. 29. However, in this case as mentioned hereinbefore allegedly the petitioner admitted only most of the charges and all the charges. 30. As noticed hereinbefore the said assertions besides being vague have also not been proved. In any event as at least in respect of some of the charges the petitioner did not make any admission he was entitled to be heard. In Binny ltd. 30. As noticed hereinbefore the said assertions besides being vague have also not been proved. In any event as at least in respect of some of the charges the petitioner did not make any admission he was entitled to be heard. In Binny ltd. V/s. Their Workmen, reported in 1972 LIC 1141 it has been held as follows :- "before relying upon the past misconduct of the delinquent employee he must be given opportunity to explain the same. It depenns upon the facts and the circumstances of each case whether it is for the delinquent to raise an objection when he finds a point being made against him without an opportunity to him to give evidence by way of explanation. " 31. It has not been stated that their existed a charge as against the petitioner and if the same was proved, the same by itself was sufficient for up-holding the punishments inflicted upon the petitioner. In Town Area Committee, jalalabad V/s. Jagdish Prasad and others, reported in 1974 SC 1407 the Supreme court has held that reasonable opportunity includes examination of the defence witnesses and cross-examination of the department witnesses. In this admittedly no witness was examined whatsoever. Further it is now well known that disciplinary proceedings partakes to character of quasi-judicial proceeding. In such a situation it is obligatory on the part of the disciplinary authority to assign some reason. From a perusal of Annexure-6 to the writ petition it is evident that no reason can be deciphered therefrom. 32. It is also well known that asigning of reason itself is one of the facts of the principle of natural justice. In this connection reference may be made to institute of Chartered Accountants of India V/s. L. K. Ratna and others, reported in 1987 SC 71 wherein it has been held as follows ;- "in fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious that it can attract the harash penalties provided by the Act. Moreover, the member has been given a right of appeal to the High Court under Sec.22-A of the Act. To exercise his right of appeal effectively he must known the basis on which the Council has found him guilty. A finding by the Council is the first determinative finding on the guilt of the member. Moreover, the member has been given a right of appeal to the High Court under Sec.22-A of the Act. To exercise his right of appeal effectively he must known the basis on which the Council has found him guilty. A finding by the Council is the first determinative finding on the guilt of the member. It is a finding by a Tribunal of first instance. The conclusion of the Disciplinary Committee does not enjoy the status of a "finding". Moreover, the reasons contained in the report by the Disciplinary Committee for its conclusion may 06 may not constitute the basis of the finding rendered by the council. The council must, therefore, state the reasons for its finding. " 33. The respondents have relied upon the case of State of Orissa and others v. Bidyabhushan Mohapatra, reported in 1963 SC 779 and The Chairman, Board of Mining Examination and Chief Inspector of Mines and another V/s. Ramjee, reported in 19/7 SC 965. The decision of the Supreme Court in State of Orissa v. Eidyabhushan Mohapatra (Supra) was rendered in absolutely a different situation. In view of the finding of fact it was held therein that the High Court ought not to have directed the Governor of Orissa to reconsider the order of dismissal. In that case the Supreme Court itself has observed as follows :- "the Constitutional guarantee afforded to a public servant is that he shall not be dismissed or removed by an authority sub-ordinate to that by which he was appointed and that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the auction proposed to be taken in regard to lum. The reasonable opportunity contemplated has manifestly to be in accordance with the rules framed under article 309 of the Constitution. But the Court in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. " 34. In the case of the Chairman, Board of Mining Examination and Chief inspector of Mines and others V/s. Ramjee (supra) it has been held that there has been a compliance of regulation 26. " 34. In the case of the Chairman, Board of Mining Examination and Chief inspector of Mines and others V/s. Ramjee (supra) it has been held that there has been a compliance of regulation 26. In the said decision itself it has been held that adjudicating agency must indicate in the order, at least briefly, why it takes the decision it does, unless the circumstances ars so clear that the concluding or decretal part of the order speak for itself even regarding the reasons which have led to it. It has further been held that it is desirable to communicate the report of the Enquiry Officer, including that part which relates to the recommendation in the matter of punishment, so that the representation of the delinquent may be pointed and meaningful. In this case even this minimal requirement has not been complied only. 35. Taking into consideration the facts and circumstances of the case I am of the view that the impugned order cannot be sustained. 36. In the result this writ petition is allowed with costs and the order dated 7-8-1982 as contained in Annexure-6 to the writ petition is hereby quashed. Hearing fee assessed at R.500. Petition allowed.