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2000 DIGILAW 77 (CAL)

CENTRAL BANK OF INDIA v. VIKRAM SINGH BAXLA

2000-02-16

D.P.KUNDU, S.K.SEN

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S. K. SEN, J. ( 1 ) THE two appeals are directed against the judgment and order dated August 26, 1998 allowing the writ petition No. 293 of 1998 and judgment and order dated August 21, 1998 dismissing the application for review passed by Altamas Kabir, J. In the writ petition, the writ petitioner/respondent challenged a decision of the respondent No. 3, Chief Manager, Central Bank of India, Main Office, in the capacity of disciplinary authority to inflict the punishment of dismissal from service by order dated January 12, 1998. The said order clearly records that disciplinary authority did not concur with the findings of the Enquiring Officer and recording reasons therefor passed an order of dismissal. By the said order, a punishment of dismissal was inflicted upon the writ petitioner/respondent, although no indication in the said order with regard to the compliance of the procedure has been given as provided in the Disciplinary action procedure of Central Bank of India. The learned single Judge felt that the said order is in the nature of a final order inflicting punishment and there was non-compliance of the provisions of the procedure as mentioned in the Central Bank of India in terms of paragraphs 8. 2 and 8. 8. The learned Judge set aside the said order and directed the Bank to follow the said procedure. Being aggrieved the Bank thereafter also made an application for review of the judgment of the learned single Judge which was also dismissed. Hence both the above appeals were filed against the said judgment allowing the writ petition as also of the dismissal of the review petition. ( 2 ) WE have considered the submissions of the parties. Both the appeals were taken up for hearing together. In our view, Orders of the learned Judge: one allowing the writ petition dated August 28, 1998 and the order of dismissal for review do not call for any interference. Paragraph 8. 2 of the Disciplinary Action Procedure of the Central Bank of India provides as follows :-"where the Disciplinary Action disagrees with findings of the Enquiry officer it may- (a)for reasons to be recorded by it in writing, remit the case to the enquiry officer for fresh or further enquiry and report and the enquiry officer shall thereupon proceed to hold further enquiry. (b)record its reasons for such disagreement and record its own findings on such charge is the evidence on record is sufficient for the purpose. "paragraph 8. 8 also provides as follows :-"having decided on the punishment the Disciplinary Authority should issue a show-cause memo to the employee giving in brief his findings and as to why the punishment proposed should not be imposed say within a period of 15 days. A date for personal hearing may also be given. If the employees avails of the opportunity given to him for personal hearing and makes his submission, the Disciplinary Authority may keep the same in view while inflicting the punishment. If he does not come for the personal hearing, the Disciplinary Authority will issue an order imposing the punishment and convey it to the employee under advice to the administrative authority. He shall also forward a report of the case to the Regional Office, Central Office in the prescribed form. " ( 3 ) IT is clear from the said paragraph 8. 8 that in the event the Disciplinary Authority decideds to award punishment, the Disciplinary Authority should issue a show cause memo to the employee giving in brief the finding and as to why the punishment should not be provided. In other words, the said procedure clearly indicates that a personal hearing should also be given. ( 4 ) IN the instant case, it is clear that the procedure in terms of paragraph 8. 2 and 8. 8 have not been indicated. It is well settled if a particular procedure has been prescribed for taking an action by authority that procedure should be strictly adhered to or no action should be taken at all. ( 5 ) IT is also well settled rule of administrative law that an Executive Authority must be rigorously held to the standards by which it professes its action to be judged and it must scrupulously observe those standards on the pain of invalidation of an act inviolation of them. ( 6 ) IT appears that Rule 29. 1 of CDA Rules confers power upon the concerned authority to impose any major penalty upon an erring employee only after scrupulous compliance of the procedures laid down in Rule 29 of the CDA Rules. ( 6 ) IT appears that Rule 29. 1 of CDA Rules confers power upon the concerned authority to impose any major penalty upon an erring employee only after scrupulous compliance of the procedures laid down in Rule 29 of the CDA Rules. ( 7 ) IT is well settled rule of interpretation that when power is given to do certain thing in a certain way the thing must be done in that way or not at all. ( 8 ) IN Vitarelli v. Seation, 359 US 535, 3 Led 2d 1012, 79 section 968. Justice Frankfuter in his separate opinion (at page 1012) laid down the following principles:-"an executive agency must be rigorously held to the standards by which it professes its action to be judged. See Securities and Exch. Com. v. Cheneray Corp. 318 US 80, 87, 88, 87 Led 626, 632, 633, 63 S Ct 454. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. See Service v. Dulles, 354 US 363, 1 Led 2d 1403, 77 S Ct. 1152. This judicially evolved rule of administrative law is now firmly establishment and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. Therefore, I unreservedly join in the Court's main conclusion, that the attempted dismissal of Vitarelli in September 1954 was abortive and of no validity because the procedure under Department of the Interior Order No. 2738 was invoked but not observed. " ( 9 ) THE above quoted principle laid down by Mr. Justice Frankfurter has been accepted as applicable in India by the Supreme Court in A. S. Alluwalia v. Punjab State ( AIR 1975 SC 984 ). Sukhdev v. Bhagatram ( AIR 1975 SC 1331 ), Ramana Dayaram Shetty v. International Airport Authority of India (AIR 1979 S. C. 1628 ). B. S. Minhas v. Indian Statistical Institute (AIR 1984 SC 368) Ranjit Thakur v. Union of India reported in ( AIR 1987 SC 2386 ). Sukhdev v. Bhagatram ( AIR 1975 SC 1331 ), Ramana Dayaram Shetty v. International Airport Authority of India (AIR 1979 S. C. 1628 ). B. S. Minhas v. Indian Statistical Institute (AIR 1984 SC 368) Ranjit Thakur v. Union of India reported in ( AIR 1987 SC 2386 ). ( 10 ) IN view of the proposition of law laid down as aforesaid we are of the view that the learned Judge was correct in allowing the writ petition and also granting liberty to the authorities to proceed against the writ petition in accordance with law in terms of the provisions of paragraph 2. 8 for the Disciplinary Action and thereafter to pass final order. ( 11 ) WE are also of the view that the learned Judge was correct in dismissing the application for review since there is no scope for the same. Both the appeals accordingly fail and are dismissed. There will be no order as to costs.