Research › Search › Judgment

Patna High Court · body

2008 DIGILAW 36 (PAT)

Byas Muni Ojha v. Central Bank Of India

2008-01-08

MIHIR KUMAR JHA

body2008
Judgment 1. Heard learned counsel for the petitioner and learned counsel for the Bank. 2. The petitioner, an employee of the Central Bank of India (hereinafter referred to as "the Bank") in this writ application has assailed the order dated 16.4.04 passed by the Regional Manager-cum-Disciplinary Authority of the Bank inflicting punishment of compulsory retirement in terms of Clause 4(h) of the Central Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976 as also the appellate order dated 22.12.2004 passed by the Assistant General Manager-cum-Appellate Authority dismissing the appeal of the petitioner and thereby affirming the aforementioned impugned order of punishment dated 16.4.04 passed by the Disciplinary Authority. A consequential relief has also been sought by the petitioner by way of seeking his reinstatement in service of the Bank as also for treating him to be on duty in the intervening period between 16.4.04 and till the date of joining upon reinstatement. 3. The admitted fact giving rise to the present writ application in brief is that the petitioner, an employee of the bank, was initially appointed on 28.5.70 as a clerk-cum-cashier. He was promoted on 28.2.82 on the post of Sub-Accountant and in the year 1996 he was also confirmed on a redesignated post of Sub-Accountant, namely Assistant Manager. The petitioner claims that he had an unblemished and in fact a satisfactory service record and it was only for the first time in a span of more than 29 years of his service in the bank he was subjected to a departmental proceeding in the year 1999 when he was placed under suspension in contemplation of a departmental proceeding in the month of July, 1999. It appears that a charge-sheet dated 13.4.01 was issued and served on the petitioner and thereafter upon completion of the enquiry, the report of the Enquiry Officer was supplied to him on 14.9.02 eliciting his response to the finding in the enquiry report. The enquiry however was not concluded and no final order was passed in the disciplinary proceedings even when the petitioner has promptly submitted his comments on the findings of the enquiry report and the Bank in fact by an order dated 4.8.03 had taken a decision to hold a de novo enquiry. 4. The enquiry however was not concluded and no final order was passed in the disciplinary proceedings even when the petitioner has promptly submitted his comments on the findings of the enquiry report and the Bank in fact by an order dated 4.8.03 had taken a decision to hold a de novo enquiry. 4. It is also not in dispute that the petitioner had participated in the said de novo enquiry and the Enquiry Officer had submitted his fresh enquiry report, a copy thereof was again given to the petitioner on 29.1.04 directing him to submit his comments on the findings in the aforesaid enquiry report. The petitioner in fact had also submitted reply to the findings in the enquiry report whereafter the impugned order of punishment dated 16.4.04 inflicting punishment of compulsory retirement had been passed against him. Thereafter the appeal of the petitioner against the aforementioned order of punishment filed on 25.5.04 was also rejected by the appellate authority by his order dated 22.12.2004 affirming the order of punishment passed by the disciplinary authority. 5. Mr. Chittaranjan Sinha, learned Senior counsel appearing for the petitioner has submitted that the order of punishment passed against the petitioner cannot be sustained inasmuch as when the Enquiry Officer had exonerated the petitioner on certain charges the Disciplinary Authority could not have inflicted punishment even for those charges without notice and/or affording an opportunity of hearing to the petitioner. Explaining this aspect Mr. Sinha submits that there were seven articles of the charges in which charge nos. 1, 2 and 4 were also having sub-head and the Enquiry Officer in his inquiry report had held that charge nos. 1(a), 2(a), 4(b)(c)(d) & (e), 6 and 7 had not at all been proved and only charge as contained in charge nos. 1(b), 2(b), 3, 4(a) and 5 were found to have been partly proved. Mr. Sinha in this respect has submitted that from perusal of the impugned order of the Disciplinary Authority it would be clear that despite the fact that the petitioner had been exonerated in respect of a number of charges he had been punished even for those charges by differing with the finding of the Enquiry Officer. The submission of Mr. Mr. Sinha in this respect has submitted that from perusal of the impugned order of the Disciplinary Authority it would be clear that despite the fact that the petitioner had been exonerated in respect of a number of charges he had been punished even for those charges by differing with the finding of the Enquiry Officer. The submission of Mr. Sinha in this regard is that while there can be no dispute in law that the Disciplinary Authority can always differ with the findings of the enquiry report for the purpose of inflicting punishment but before doing so he is required to issue a show cause notice to the delinquent employee by giving him an opportunity to explain as to why finding recorded in his favour by the Enquiry Officer should not be reversed/rejected and consequently why the charge on the basis of the materials on record should not be held to be established. 6. Mr. Sinha in this regard had referred to the pleadings in the writ petition containing the specific assertion that Disciplinary Authority in the present case had not issued any show cause notice and/or had afforded an opportunity of hearing to the petitioner prior to his passing the order of punishment dated 16.4.2004. He had also in this context placed his reliance on the letter dated 29.1.2004 of the Disciplinary Authority who while supplying the enquiry report for the purpose of eliciting response/comment of the petitioner on the enquiry report had not even indicated this much that he had decided to differ with the finding of the Enquiry Officer in respect to any of the charges. Mr. Sinha while assailing the correctness of the appellate order affirming the order of the Disciplinary Authority has submitted that unfortunately when this issue was specifically raised by the petitioner in his memo of appeal in an elaborate manner, the appellate authority also did not choose to record any finding in this regard and the whole appeal was disposed of by a cryptic order even without answering the issues raised by the petitioner in the memo of appeal. Mr. Sinha for supporting himself on this proposition has relied on the judgment of the Apex Court in case of Punjab National Bank & Ors. V/s. Kunj Bihari Mishra reported in 1998(7) SCC 84 . 7. Mr. Mr. Sinha for supporting himself on this proposition has relied on the judgment of the Apex Court in case of Punjab National Bank & Ors. V/s. Kunj Bihari Mishra reported in 1998(7) SCC 84 . 7. Mr. Bimlendu Mishra learned counsel appearing for the Bank, however, has submitted that while there can be no denial on the part of the Bank that the Disciplinary Authority had not given notice and/or opportunity of hearing to the petitioner before differing with the finding in favour of the petitioner recorded in the enquiry report, he sought to justify the impugned order of punishment on the ground that the Central Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976 does not contemplate issuance of such notice and/or an opportunity of hearing. In this context he had referred Regulations 7(2) and (3) which according to him does not envisage issuance of a notice and/or affording an opportunity of hearing in case Disciplinary Authority had chosen to. differ with the finding of the Enquiry Officer. Mr. Mishra therefore contended that the authorities of the Bank had scrupulously followed the provision made in the aforementioned Regulations while passing the impugned orders of punishment and thereby it cannot be said that they had committed any mistake in passing the impugned order of punishment. 8. Having given my anxious consideration to the aforementioned submission I am of the view that impugned order of punishment dated 16.4.04 is fit to be set aside on the ground of violation of the principle of natural justice because once the Disciplinary Authority had imposed punishment on the petitioner by treating even those charges namely charge nos. 1(a), 2(a), 4(b), (c)(d)(e), 6 and 7 to have been proved against him even when as a matter of fact he had already been exonerated in respect of them by the Enquiry Officer the petitioner was required to be given a notice and/or an opportunity of hearing. 1(a), 2(a), 4(b), (c)(d)(e), 6 and 7 to have been proved against him even when as a matter of fact he had already been exonerated in respect of them by the Enquiry Officer the petitioner was required to be given a notice and/or an opportunity of hearing. There can be no quarrel on the legal proposition that the Disciplinary Authority can always differ with the finding of the Enquiry Officer for coming to the conclusion that the charge framed in the departmental proceeding on the basis of the material on record had stood proved but before he records such finding he is enjoined by law to issue a show cause notice asking the delinquent to submit his explanation as to why finding recorded in his favour by the Enquiry Officer shouid not be reversed and consequently charge for which he had been exonerated by the Enquiry Officer should not be held to be proved. Admittedly such a recourse was not adopted in case of the petitioner and he was straightway punished by the Disciplinary Authority after service of copy of the enquiry report on him (petitioner) vide letter of the bank dated 29.1.04. The said letter dated 29.1.04 is Annexure-9 to the writ application and it merely recites that the enquiry report of Mr. A.K. Sarkar Enquiry Officer dated 22.8.03 was being sent to the petitioner and he if so advised may submit his written comment to the enquiry report within a period of a seven days. Thus, till 29.1.04 there was nothing to indicate much less substantiate the view of the Disciplinary Authority that he had intended to differ with the enquiry report in respect of any finding for which the petitioner had already been exonerated by the Enquiry Officer. The petitioner in fact has categorically stated in paragraphs 44, 45 and 46 of the writ application that he was never given any notice and/or opportunity of hearing before the Disciplinary Authority chose to differ with the finding of the Enquiry Officer and in fact from the order of punishment dated 16.4.04 for the first time he came to know that he had been punished even for such charge(s) in respect of when he had been exonerated by the Enquiry Officer. Though a counter affidavit has been filed but no specific denial has been made as regard that the contents of paragraphs 44 to 47 of the writ petition and therefore, the fact that the petitioner was not provided with any notice and/or opportunity of hearing by the Disciplinary Authority before he had passed the order of punishment after differing with the finding of the Enquiry Officer stands admitted. In such a situation the consequence of passing such an order of punishment has already been decided by the Apex Court and this court in a large number of cases and in my view the counsel for the petitioner is fully justified in placing his reliance on the case of Kunj Bihari Mishra (supra). 9. Submission on behalf of counsel for the Bank that in terms of Regulations 7(2) and (3) there was no requirement for giving notice and/or opportunity of hearing to the petitioner has also to be noted only for its being rejected. Regulation 7 of the Bank reads as follows: "ACTION ON THE INQUIRY REPORT 7. (1) The Disciplinary Authority, if it is not itself the Inquiring Authority, may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for fresh or further inquiry and report and the Inquiry Authority shall thereupon proceed to hold the further inquiry according to the provisions of Regulation 6 as far as may be. (2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. (3) If the Disciplinary Authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in Regulation 4 should be imposed on the officer employee it shall notwithstanding anything contained in Regulation 8 make an order imposing such penalty. (4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that no penalty is called for it may pass an order exonerating the officer employee concerned." 10. (4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that no penalty is called for it may pass an order exonerating the officer employee concerned." 10. From a bare perusal of the aforementioned portion of the Regulation it is self evident that they prescribed the procedure to be taken in respect of disciplinary proceeding upon receipt of enquiry report in course of passing a final order. These Regulations in fact do not envisage as to what is to be done in the event the findings in the enquiry report favour of the delinquent is sought to be disagreed by the disciplinary authority. In fact they do not rule out expressly issuance of notice and/or opportunity of hearing in case Disciplinary Authority disagrees with the finding of the Enquiry Officer on any article of charge. The non-issuance of notice and/or non-affording of an opportunity of hearing in such case where the Enquiry Officer exonerated delinquent employee by recorded finding in his favour, in fact itself amounts to breach of principle of natural justice because Disciplinary Authority in such case would really take delinquent by surprise by holding him guilty without telling him that he had intended to differ with the finding of the Enquiry Officer and/or was going to punish him even in respect of those charges for which he had been exonerated by the Enquiry Officer. 11. This aspect can also be looked into from another angle namely whether in a rule/regulation in which there is silence with regard to issuance of notice and/or affording opportunity of hearing in case where Disciplinary Authority decides to differ with the finding of the Enquiry Officer for inflicting punishment on a delinquent employee, should the principle of natural justice be treated to have been altogether waived by necessary implication? This issue however is no longer res Integra and the Apex Court in the case of S.L. Kapoor V/s. Jag Mohan reported in AIR 1981 SC 136 it had held that: "One of the submissions of the learned Attorney General was that when the question was one of disqualification of an individual member, Sec. 16 of the Punjab Municipal Act expressly provided for an opportunity being given to the member concerned whereas Sec. 238(1) did not provide for such an opportunity, by necessary implication, it must be considered that the principle audi alteram partem was excluded. We are unable to agree with the submissions of the learned Attorney General. It is not always a necessary inference that if opportunity is expressly provided in one provision and not so provided in another, opportunity is to be considered has excluded from that other provision. It may be a weighty consideration to be taken into account but the weightier consideration is whether the administrative action entails civil consequences. This was also the view taken in Mohinder Singh Gill V/s. The Chief Election Commissioner, New Delhi (1978)2 SCR 272 : AIR 1978 SC 851 , where it was observed (at p. 316): "We have been told that whatever the Parliament had intended a hearing, it has said so in the Act and the Rules and inferentially where it has not specified it is otiose. There is no such sequitur. The silence of a statute has no exclusionary effect except where it flows from necessary implication. Art. 324 vests a wide power and where some direct consequence on candidates emanates from its exercise we must read this functional obligation." 12. Yet again the same view was reiterated by the Apex Court in the case of Dr. Rash LaL Yadav V/s. State of Bihar & Ors. [1994(2) PLJR (SC)76] in the following words: "What emerges from the above discussion is that unless the law expressly or by necessary implication excludes the application of the rule of natural justice, Courts will read the said requirement in enactments that are silent and insisted on its application even in cases of administrative action having civil consequences." 13. [1994(2) PLJR (SC)76] in the following words: "What emerges from the above discussion is that unless the law expressly or by necessary implication excludes the application of the rule of natural justice, Courts will read the said requirement in enactments that are silent and insisted on its application even in cases of administrative action having civil consequences." 13. It is in this background that one has to also appreciate the binding precedent of Kunj Bihari Mishra (supra) where the Supreme Court has held that the principle of natural justice has to be invariably followed and an opportunity by way of notice/hearing has to be given in all such cases where the disciplinary authority chooses to differ with the findings of Enquiry Officer and proposes to pass an order of punishment. Thus, in my considered opinion even when Regulation 7(3) does not provide for issuance of notice to delinquent in case Disciplinary Authority chooses to differ with the finding of the Enquiry Officer for the purpose of holding charge to have been proved for the purpose of inflicting punishment, such provision of notice and/or opportunity of hearing has to be read in the aforementioned Regulation. In that view of the matter, the submission on behalf of the counsel for the Bank that the impugned order is justified in terms of the Regulations 7(2) and (3) is fit to be rejected. 14. Learned counsel for the petitioner in fact is again correct in making a submission that the appellate authority had also miserably failed to decide this question which was raised by the petitioner specifically in his memo of appeal and this court on perusal of the appellate order finds it to be wholly perfunctory inasmuch as relevant part of the appellate order reads as follows: "I also observed main points (given below) raised by the appellant in his appeal/supplementary appeal and also in personal hearing before the undersigned. D.A. has deferred with the findings of the Inquiring Authority and had concluded that charges stands proved in its final order but without giving any second show cause notice to the appellant. The D.A. has awarded penalty with his biased and prejudiced attitude to the appellant. D.A. has deferred with the findings of the Inquiring Authority and had concluded that charges stands proved in its final order but without giving any second show cause notice to the appellant. The D.A. has awarded penalty with his biased and prejudiced attitude to the appellant. D.A. has not shown the reason for disagreeing with the findings of the Inquiring Authority in his order and has not given any opportunity to the appellant of being heard and thus deprived him of basic principle of "NATURAL JUSTICE". Many charges has not been proved in the findings of the Inquiring Authority but the D.A. has awarded the appellant very harsh punishment of Compulsory Retirement. The appellant has appealed to set aside the penalty inflicted upon him by the D.A. based on prejudiceness/biasness despite many charges not being proved. With regard to the contention of the appellant that the Disciplinary Authority was prejudiced to him (appellant) and this penalty of CRS is the result of his prejudiceness. I observe that this is baseless and does not hold good. As regards the contention of the appellant that the D.A. has not given any thorough reasoning over the findings of the Inquiring Authority. I find that in the final order dated 16.4.2004 the D.A. has objectively analysed the evidence on record and has given his specific observation as to how the charges against the appellant stands proved. At the same time I observed that the D.A. has given his specific observation/reasoning of the findings of the Inquiring Authority. As also on the various objections/points raised by the appellant in his defence during the course of enquiry proceedings, written briefs etc., therefore I do not find any reason to believe that the D.A. has not given any reasoning on the findings of the Inquiring Authority. "After going through the grounds of appeal and the record of the enquiry, I do not find any ground to intervene in the orders of the Disciplinary Authority. Keeping in view the gravity of the charges provided the penalty awarded by the Disciplinary Authority is justified. The appeal has no merits and the same is dismissed." 15. "After going through the grounds of appeal and the record of the enquiry, I do not find any ground to intervene in the orders of the Disciplinary Authority. Keeping in view the gravity of the charges provided the penalty awarded by the Disciplinary Authority is justified. The appeal has no merits and the same is dismissed." 15. From aforementioned extract portion of the appellate order it would be clear that even when this question of not giving notice and/or opportunity of hearing by the Disciplinary Authority before differing with the finding of the Enquiry Officer was specifically raised by the petitioner before appellate authority he did not even find it fit to answer them. In my opinion in fact the appellate order is a perverse order which does not deal with any aspect much less the most important aspect. It is true that the appellate authority is not required to go into the detailed reason but when the appellate authority is confronted with a submission raised in the memo of appeal, they have to be at least dealt with in a manner that the appellate order can be said to be speaking order. I am afraid that the impugned appellate order is not at all a speaking order and in any event does not answer the main issue as raised by the petitioner in his memo of appeal. 16. Consequently the order of punishment dated 16.4.2004 as well as the appellate order dated 22.12.2004 are held to be bad and are hereby quashed. As a result of quashing of the two impugned orders the petitioner shall be reinstated in service and will be required to be paid his salary from the date of this order i.e. 8.1.2008. 17. The Disciplinary Authority will thereafter examine as to whether there is any necessity to inflict any punishment on the petitioner in view of the fact there are material on record to show that the Competent Authority of the Bank had initially decided to inflict a minor punishment on those charges which have been found only partly proved by the Enquiry Officer being charge nos. 1(b), 2(b), 3, 4 & 5. The disciplinary authority in fact is said to have inflicted a major punishment by way of compulsory retirement only on the dictate "of vigilance Wing of the Bank. 1(b), 2(b), 3, 4 & 5. The disciplinary authority in fact is said to have inflicted a major punishment by way of compulsory retirement only on the dictate "of vigilance Wing of the Bank. However it is well settled by now in a series of judgments of the Apex Court that the quantum of punishment must be commensurate to the nature of misconduct and thus the disciplinary authority must take his own independent decision in this regard. If however, the Competent Authority of the Bank decides to inflict punishment on the petitioner he will be required to issue first a show cause notice giving grounds and materials on the basis of which he intends to differ with the finding of the Enquiry Officer. It is made clear that no new material will however be taken into consideration by the Disciplinary Authority. In any event the petitioner must be given an opportunity to show cause as to why finding recorded in his favour by the Enquiry Officer should not be reversed on the basis of tentative reasons/finding of the Disciplinary Authority. It is only after the petitioners explanation is examined, that the authority will proceed and pass an order in terms of directions in the judgment of the Apex court in case of Kunj Bihari Mishra (supra). The Disciplinary Authority thus is required to proceed from the stage of submission of enquiry report i.e. stage on which such proceeding was lying on 22.8.03. Even in case, Disciplinary Authority decides to proceed against the petitioner by way of inflicting minor punishment even then the petitioner will be given a show cause notice indicating the grounds on the basis of which such minor punishment is sought to be inflicted. Till a final decision in the disciplinary proceeding is taken the petitioner will continue to get salary from the date of this order dated 8.1.2008 but the decision on his arrears of salary for the period 16.4.04 to 7.1.08 during which he was out of service on account of impugned orders, shall await the result of the decision in the-Disciplinary proceedings. 18. This writ application is allowed to the extent indicated above.