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2015 DIGILAW 1421 (RAJ)

Bheru Lal v. Chairman, Udaipur Central Co-operative Bank Limited

2015-07-29

GOVIND MATHUR, JAISHREE THAKUR

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Hon'ble MATHUR, J.—By the order dated 11.12.2008, learned Single Bench dismissed the petition for writ preferred by the appellant-petitioner giving challenge to the order dated 31.12.1991 passed by the disciplinary authority imposing a penalty of dismissal upon the appellant-petitioner. Learned Single Bench while dismissing the writ petition arrived at the conclusion that adequate opportunity was allowed to the delinquent employee to inspect the record and further that there was no breach of the principles of natural justice on part of the respondent-employer in holding enquiry against the appellant-petitioner for the charges of embezzlement. 2. In appeal, the arguments advanced by learned counsel for the appellant are that :- (1) The order passed by the disciplinary authority is absolutely non-speaking and unreasoned order. (2) The disciplinary authority has not given his own findings against the charges levelled. (3) The disciplinary authority before imposing the severest punishment has not supplied a copy of the enquiry report to the delinquent officer. (4) The appellate authority dismissed the appeal preferred by the appellant without assigning any reason and without examining merits of the case. 3. In brief, facts of the case are that while serving as Manager with the Multipurpose Agriculture Co-operative Society in the capacity of Manager a memorandum was served upon the appellant-petitioner to explain the charges levelled against him in the annexed charge-sheet. The delinquent petitioner was charged for misappropriation of funds and further for causing economic loss to the Society due to negligence in discharging official duties. A detailed explanation was submitted by the delinquent employee with assertion that no loss was caused by him to the co-operative society and further that the allegations levelled against him were ill-founded. It was also stated by him that as a matter of fact, all the transactions on which the allegations are based were under the control of the Assistant Manager of the cooperative society Mr. Shankar Lal and therefore, he is the person responsible for causing economic loss to the society, if any. 4. The disciplinary authority after examining the explanation given conducted regular enquiry and he himself acted as the enquiry officer. During the course of enquiry, a detailed statement of the delinquent employee was recorded. The enquiry officer also examined the original record of the society and then submitted his report on 09.11.1991. 4. The disciplinary authority after examining the explanation given conducted regular enquiry and he himself acted as the enquiry officer. During the course of enquiry, a detailed statement of the delinquent employee was recorded. The enquiry officer also examined the original record of the society and then submitted his report on 09.11.1991. After having the report of enquiry, a decision was taken on 26.11.1991 to serve a notice upon the delinquent employee to have his version about the findings arrived and the penalty proposed. Pursuant to the decision aforesaid, a notice dated 17.12.1991 was served upon the delinquent employee mentioning the findings arrived as a consequence of regular enquiry, however, a copy of the report of enquiry was not supplied to him. An opportunity of personal hearing was also given to the delinquent employee, which he availed of on 30.12.1991. The delinquent employee also submitted a written explanation reiterating whatever he stated in his earlier explanation and further that whatever loss caused to the society has also been satisfied as a consequence to the order passed under Section 74 of the Rajasthan Co-operative Societies Act, 1965. 5. The disciplinary authority after examining the reply given by the delinquent employee passed the impugned order dated 31.12.1991 and imposed the penalty of dismissal from service. Aggrieved by the same, the appellant-petitioner preferred an appeal, but that came to be dismissed being not maintainable because the Rules of 1977 under which the appeal was preferred was struck down by the Rajasthan High Court. 6. As already stated, learned Single Bench dismissed the writ petition by observing that there was no violation of the principles of natural justice and further that adequate opportunity was given to the delinquent employee to inspect the relevant record. The relevant portion of the findings arrived by learned Single Bench reads as under :- “4. The learned counsel for the respondents has produced the record before this Court in which in the order-sheet dtd. 18.9.1991, it is recorded that the said petitioner Bheru Lal, Manager was allowed to inspect the entire record and he has duly inspected the said record and his defence nominee Shankar lal had produced 9 documents which were marked as Ex.P/1 to P/9 and were taken on record. 5. 18.9.1991, it is recorded that the said petitioner Bheru Lal, Manager was allowed to inspect the entire record and he has duly inspected the said record and his defence nominee Shankar lal had produced 9 documents which were marked as Ex.P/1 to P/9 and were taken on record. 5. Having gone through the record of the case and upon perusal of the impugned order, this Court is satisfied that there was no breach of principles of natural justice on the part of the respondents in holding enquiry against the petitioner on the charges of embezzlement and he was supplied or atleast allowed to inspect the relevant record before the Enquiry report was furnished. On the basis of said enquiry report, the impugned penalty order was passed against the said petitioner. Therefore, this Court is not inclined to interfere with the impugned orders on the grounds raised by the petitioner.” 7. Heard learned counsel for the parties. 8. The first submission of learned counsel for the appellant is that learned Single Bench failed to appreciate that the disciplinary authority is required to give a definite finding against each and every charge levelled against a delinquent employee. In the instant matter, the allegation No.1 is having 3 parts and every allegation relates to misappropriation of funds by the appellant-petitioner. The appellant-petitioner explained his version while responding to the charge-sheet and also by deposing before the enquiry officer. He reiterated the same while answering the notice given by the disciplinary authority. 9. From perusal of the order impugned, it is apparent that the disciplinary authority did not choose to give any definite finding against the charges levelled. Under the order imposing penalty of dismissal, the disciplinary authority simply mentioned that as a consequence to regular enquiry, the delinquent officer was found guilty for committing misappropriation of funds. The conclusion arrived by the disciplinary authority is not substantiated by any reason. Under the order imposing penalty of dismissal, the disciplinary authority simply mentioned that as a consequence to regular enquiry, the delinquent officer was found guilty for committing misappropriation of funds. The conclusion arrived by the disciplinary authority is not substantiated by any reason. For ready reference, we deem it appropriate to quote the findings arrived by the disciplinary authority :- ^^pwWfd Jh HkS:yky ukbZ ij jksdM iksrk lEHkkydj ugha j[kuk] fglkc ugha feykuk ykijokgh ls pksjh gksuk] lnL;ksa ls jkf'k olwy djds lfefr esa tek ugha djds lfefr o lnL; ds lkFk /kks[kk/kM+h djuk] moZjd diM+k] QkWe vkby vkfn dk fglkc v/khuLFk ls ugha ekWxuk] foØ; dh jkf'k dk C;kSjk ugha ekWxuk] lgk;d ls foØ; dh jkf'k tek djkus dk ugha dg dj ykijokgh cjrus] jksdM+ jkf'k tek ugha djds xcu djuk] m/kkj Ø; dks jksdM+ Ø; ntZ djus] fcuk ckmplZ ds osru Hkqxrku djus] v/khuLFk ls xsgwW fcØh jkf'k izkIr dj tek ugha djuk] /kks[kk/kM+h o xcu vkfn ds xEHkhj vkjksi izekf.kr gq, gSA** 10. It is well-settled that the disciplinary authority while giving his findings is required to give reasons. The order passed by the disciplinary authority affecting civil right of an employee having evil consequences should always have reasons and should be speaking enough to substantiate the conclusions arrived. In the instant matter, from perusal of the findings quoted above, it is apparent that no reason has been given by the disciplinary authority and findings are given ipse dixit. 11. We also find force in other argument of learned counsel for the appellant that the order imposing penalty by the disciplinary authority is bad as before imposing penalty, copy of the enquiry report was not supplied to him. Hon'ble Supreme Court in the case of Union of India & Ors. vs. Mohd. Ramzan Khan reported in AIR 1991 SC 471 held that the enquiry report holding an employee guilty is an adverse material, therefore, if the disciplinary authority relies upon that, then copy of the same is required to be given to the employee concerned before imposing punishment. In the case in hand, admittedly the report of enquiry was not supplied to the delinquent employee and therefore, the order impugned is erroneous. 12. Looking to the conclusion arrived by us on the two grounds mentioned above, we do not find any just reason to adjudicate other issues raised by the appellant. In the case in hand, admittedly the report of enquiry was not supplied to the delinquent employee and therefore, the order impugned is erroneous. 12. Looking to the conclusion arrived by us on the two grounds mentioned above, we do not find any just reason to adjudicate other issues raised by the appellant. The appeal for the reasons given above deserves acceptance. Accordingly, the same is allowed. The judgment dated 11.12.2008 passed by learned Single Bench is set aside. The petition for writ preferred by the appellant-petitioner is allowed. The order dated 31.12.1991 is set aside. It is stated by learned counsel for the parties that during pendency of this litigation, the appellant-petitioner has already attained the age of super-annuation, therefore, he cannot be reinstated in service. Having considered this fact, we deem it appropriate to reinstate the appellant-petitioner from the date of his dismissal with entitlement to remain in service till date of his superannuation. However, for the period aforesaid, he shall not be entitled for actual payment of wages. His pay is required to be fixed on notional basis to make him entitled to have post retiral benefits including gratuity.