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2008 DIGILAW 154 (ALL)

O N SRIVASTAVA v. PUNJAB NATIONAL BANK AND

2008-01-22

DEVI PRASAD SINGH, U.K.DHAON

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U. K. DHAON AND DEVI PRASAD SINGH, JJ. Heard Sri B. K. Singh, learned counsel for the petitioner and Sri Sheelendra Kumar, learned counsel appearing on behalf of the opposite parties. 2. The petitioner has filed the instant writ petition against the order dated 25. 11. 1988 by which the petitioner has been dismissed from services. 3. The brief facts of the case are that the petitioner was an employee of Hindustan Commercial Bank which was subsequently merged with Punjab National Bank. Before the merger, on account of the alleged irregularity committed by the petitioner he was placed under suspension. Thereafter a charge-sheet dated 3. 1. 1986 was issued to the petitioner by Hindustan Commercial Bank and on 24. 7. 1986 a supplementary charge-sheet was also issued to the petitioner by Hindustan Commercial Bank. After merger of the Hindustan Commercial Bank with the Punjab National Bank a charge-sheet dated 26. 12. 1987 was served upon the petitioner. The petitioner submitted reply to the charge-sheets and the supplementary charge-sheet and thereafter the Enquiry Officer against the charge-sheet dated 3. 1. 1986 and supplementary charge-sheet dated 24. 7. 1986 submitted the enquiry report on 20. 10. 1988. The Enquiry Officer also submitted enquiry report against the charge-sheet dated 26. 12. 1987 on 12. 10. 1988. The disciplinary authority after considering the enquiry reports submitted by the Enquiry Officer passed the impugned dismissal order dated 25. 11. 1988. The petitioner being aggrieved by the dismissal order filed a statutory appeal before the appellate authority. The said appeal was also dismissed" by the appellate authority by the order dated 31. 3. 1989. 4. The learned counsel for the petitioner submits that the charge-sheet dated 3. 1. 1986 and supplementary charge-sheet dated 24. 7. 1986 were issued to the petitioner by Hindustan Commercial Bank for minor penalties as provided under Regulation 5 of the disciplinary rules governing the services of officers in the Hindustan Commercial Bank Limited. He further submits that the charge-sheet dated 26. 12. 1987 issued by Punjab National Bank to the petitioner was for major penalty and the Enquiry Officer in his report dated 12. 10. 1988 has exonerated the petitioner, but even then the disciplinary authority has imposed major penalty upon the petitioner by passing the impugned dismissal order. He further submits that the charge-sheet dated 26. 12. 1987 issued by Punjab National Bank to the petitioner was for major penalty and the Enquiry Officer in his report dated 12. 10. 1988 has exonerated the petitioner, but even then the disciplinary authority has imposed major penalty upon the petitioner by passing the impugned dismissal order. He further submits that before passing the dismissal order no opportunity was afforded to the petitioner and the impugned dismissal order is in violation of the principles of natural justice. Learned counsel for the petitioner has relied upon the decisions in the cases of K. I. Shephered v. Union of India and others, (1987) 4 SCC 431 ; Punjab National Bank v. Kurt/bihari Mishra, AIR 1998 SC 2713 ; State Bank of India v. K. P. Narayanan Kutty, AIR 2003 SC 1100 : State Bank of India v. Arvind Kumar Shufcla, AIR 2001 SC 2398 ; Yoginath D. Bagdey v. State of Maharashtra and another, (1997) 7 SCC 739; Ranjit Singh v. Union of India, 2006 (4) SCC 153 : 2006 (5) AWC 5274 (SC); Lav Nigam v. Chairman and M. D. I. T. I. Ltd. and another, 2006 (9) SCC 440 and Commissioner of Karnataka Housing Board v. C. Muddaiah, 2007 (7) SCC 689 : 2007 (4) AWC 4028 (SC ). 5. Learned counsel for the opposite parties submits that there is no illegality in the impugned dismissal order passed by the disciplinary authority which is based on the enquiry report submitted by the Enquiry Officer. He further submits that the disciplinary authority has passed the impugned order of dismissal by interpreting the findings recorded by the Enquiry Officer and there is no deviation in the conclusion arrived at by the Enquiry Officer or the disciplinary authority. He further submits that there was no need to give any opportunity to the petitioner by the disciplinary authority before passing the impugned dismissal order as there is no provision under the Regulations of the Bank. He further submits that the effect of the dismissal order was also considered by the appellate authority and the appellate authority also on the basis of the material on record has arrived at a conclusion that the petitioner is not entitled for any relief and the penalty imposed by the disciplinary authority is just. He further submits that the effect of the dismissal order was also considered by the appellate authority and the appellate authority also on the basis of the material on record has arrived at a conclusion that the petitioner is not entitled for any relief and the penalty imposed by the disciplinary authority is just. Learned counsel for the opposite parties has relied upon the decisions of Honble the Supreme Court P. D. Agarwal v. State Bank of India and others, (2006) 8 SCC 776 ; State of Punjab v. Normal Singh, (2007) 8 SCC 108 and Chairman and Managing Director and others v. P. C. Kakkar, (2003) 4 SCC 364 and on the strength of the judgments passed by Honble the Supreme Court learned counsel for the opposite parties submits that the writ petition is devoid of merits and deserves to be dismissed. 6. Learned counsel for the opposite parties submits that the penalty order is based on the two enquiry report submitted by the Enquiry Officer and it is a partly proved case and as such there was no need for issuing any show cause notice to the petitioner by the disciplinary authority. 7. We have considered the submissions made by the learned counsel for the parties and gone through the record. 8. It is the admitted case of the parties that the petitioner was an employee of Hindustan Commercial Bank which was subsequently merged with the Punjab National Bank. While the petitioner was working with Hindustan Commercial Bank he was placed under suspension and thereafter charge-sheet dated 3. 1. 1986 and the supplementary charge-sheet dated 24. 7. 1986 were issued to the petitioner. The petitioner submitted reply to the charge-sheet. Subsequently when the Hindustan Commercial Bank was merged with the Punjab National Bank, another charge-sheet dated 26. 12. 1987 was issued to the petitioner. The charge-sheet dated 26. 12. 1987 was for major penalty. The Enquiry Officer after affording opportunity to the petitioner submitted the enquiry reports dated 20. 10. 1988 and 12. 10. 1988. The enquiry report dated 12. 10. 1988, relates to the second charge-sheet which was issued to the petitioner for imposing major penalty. Against the second charge-sheet dated 26. 12. 1987, the Enquiry Officer exonerated the petitioner. The disciplinary authority has taken a different conclusion on the basis of the enquiry report dated 12. 10. 10. 1988 and 12. 10. 1988. The enquiry report dated 12. 10. 1988, relates to the second charge-sheet which was issued to the petitioner for imposing major penalty. Against the second charge-sheet dated 26. 12. 1987, the Enquiry Officer exonerated the petitioner. The disciplinary authority has taken a different conclusion on the basis of the enquiry report dated 12. 10. 1988 and while arriving at a different conclusion has imposed major penalty of dismissal from service upon the petitioner. Before passing the dismissal order no opportunity was afforded to the petitioner by the disciplinary authority. In the case of Yoginath D. Bagde v. State of Maharashtra, Honble Supreme Court paras 30 and 31 has held as under : (30) Recently, a three-Judge Bench of this Court in Punjab National Bank v. Kunj Bihari Misra, relying upon the earlier decisions of this Court in State of Assam v. Bimal Kumar Pandit, Institute of Chartered Accountants of India v. L. K. Ratna, as also the Constitution Bench decision in Managing Director, E. C. I. L. v. B. Karunakar and the decision in Ram Kishan v. Union of India, has held that : (SCC p. 96 para 17) "it will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the Enquiring Officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority. " The Court further observed as under : (SCC p. 96, para 18) "when the enquiry is conducted by the Enquiry Officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the Enquiry Officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the Enquiry Officer and proposes to come to a different conclusion, there is no reasons as to why ah opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the Enquiry Officer, they are deprived of representing to the disciplinary authority before that authority differs with the Enquiry Officers report and while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. " (31) In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the Enquiry Officer. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311 (2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submissions of findings to the disciplinary authority does not bring about the closure of the inquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. The right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution. " 9. The principles of natural justice demands that when the disciplinary authority is taking a different view on the basis of the report submitted by the Enquiry Officer and proposes to impose the major penalty of dismissal from services, a show cause or reasonable opportunity of being heard to the delinquent officer is required. We are of the view that before passing the impugned dismissal order the disciplinary authority has not afforded any opportunity to the petitioner and no show cause notice was issued before imposing major penalty upon the petitioner. The impugned dismissal order dated 25. 11. 1988 and the order dated 31. 3. 1989, passed by the appellate authority are legally not sustainable. 10. In the result, the writ petition succeeds and is hereby allowed and a writ in the nature of certiorari is issued quashing the impugned order dated 25. 11. 1988 and order dated 31. 3. The impugned dismissal order dated 25. 11. 1988 and the order dated 31. 3. 1989, passed by the appellate authority are legally not sustainable. 10. In the result, the writ petition succeeds and is hereby allowed and a writ in the nature of certiorari is issued quashing the impugned order dated 25. 11. 1988 and order dated 31. 3. 1989 contained in Annexures-8 and 10 respectively to the writ petition with all consequential benefits. However it will be open for the opposite parties to conclude the disciplinary proceedings, in accordance with law, after affording opportunity to the petitioner, from the stage the enquiry report was submitted, and pass a fresh order. The consequential benefits shall be subject to further orders passed by the disciplinary authority. Under the circumstances, there shall be no order as to costs. .