Anjani Kumar, Sudhir Agarwal - (1.) -The petitioner Rajendra Kumar Shukla aggrieved by the order dated 7th July, 1989, passed by the respondent No. 2 imposing punishment of removal from service and order dated 16th February, 1990 passed by respondent No. 1 rejecting his appeal has filed this writ petition under Article 226 of the Constitution of India praying for a writ of certiorari quashing the said impugned orders. He has further prayed for a writ of mandamus commanding the respondents 1 and 2 to treat him in service and pay salary, including arrears of salary for the period of suspension and also to decide his review petition.
(2.) THE facts in brief as stated in the writ petition are that petitioner was appointed as clerk in Central Bank of India in 1966 and was promoted as an officer in 1978. While working as Sub-Accountant in the Sachendi Branch of said Bank in District Kanpur, the petitioner was given charge of Branch Manager. In the year 1981 due to great efforts and performance of the petitioner, the said branch upgraded to the status of middle management grade II. By order dated 26th November, 1984, petitioner was transferred and posted as Branch Manager at Yashodanagar, Kanpur, where he joined on 1st December, 1984. THE said branch being new one, no sufficient staff was made available and that too was not very willing workers causing much inconvenience to the petitioner. In respect thereto he sent letters to the higher authorities for providing adequate staff for proper function of the Bank. He also found that the Chief Cashier Sri S. K. Shukla and clerk Ved Prakas Tewari are indulging in various activities against the interest of the Bank. THE petitioner made complaints to the higher authorities on 17th May, 1985, and 22nd May, 1985. THE said two officials were under the patronage of some higher authorities and the complaint made by the petitioner thus resulted in displeasure of the higher authorities causing search and raid of the branch and ultimately the petitioner was transferred on 8th June, 1985 to regional office. THEreafter by order dated 24th June, 1985, passed by the regional manager, petitioner was placed under suspension. He was served with charge-sheets dated 21st May, 1985 and 13th May, 1986 to which to gave reply. THE respondent No. 2 appointed Sri K. K. Gupta as Enquiry Officer. He submitted his report dated 15th April, 1988 holding charges No. 1, 3, 5 and 6 as partly proved charges No. 2 and 4 fully proved and charge No. 7 not proved. THE disciplinary authority agreeing with the finding of the Enquiry Officer, vide order dated 29th June, 1988 imposed punishment of reduction in basic pay at two stages. Against the said order, the petitioner preferred an appeal before the respondent No. 1, which was partly allowed vide order dated 28th November, 1988, imposing punishment was modified to the reduction in basic pay at one stage in time scale. THEreafter the petitioner submitted a review petition but the same has not been decided so far. In the meantime, in another matter the petitioner was served with another charge-sheet dated 7th October, 1987, (Annexure-20 to the writ petition), which contains nine charges. The petitioner replied the same on 17th October, 1987. After completing inquiry, the Enquiry Officer submitted his report dated 11th March, 1989, holding charges No. 1, 2, 3 and 8 not proved, charges No. 5 and 9 partly proved and charge Nos. 4, 6 and 7 proved. The disciplinary authority without giving any further opportunity to the petitioner passed an order on 7th July, 1989. He exonerated the petitioner in charges No. 2, 3 and 8 suggested minor punishment imposing reduction of one step in basic pay against charges No. 4, 5, 6, 7 and 9 and with respect to charge No. 1 he disagreed with the finding of the Enquiry Officer and held the said charge proved and passed order of removal from service. Consequently by the order dated 7th July, 1989, the respondent No. 2 imposed punishment of removal from service based on charge No. 1. Aggrieved, the petitioner submitted an appeal before the appellate authority, which was dismissed by the appellate authority vide order dated 16th February, 1990. Learned counsel for the petitioner while assailing the order dated 7th July, 1989 and the appellate order dated 16th February, 1990 has submitted that the Enquiry Officer exonerated the petitioner and found charge No. 1 not proved. The disciplinary authority however while disagreeing by the said finding and held that charge No. 1 is proved, did not afford any opportunity to the petitioner by communicating to the petitioner the copy of the enquiry report, alongwith his reasons of disagreement and since he was not afforded any opportunity to submit his reply, hence the impugned orders are vitiated for violation of principles of natural justice.
(3.) LEARNED counsel for the respondents however contended that under the Regulations, there is no such requirement warranting communication of reasons of disagreement, if any, arrived at by the disciplinary authority in respect to the findings of the Enquiry Officer before imposing punishment and therefore, he submitted that there is no error warranting any interference in this writ petition. It is not disputed that the procedure for disciplinary enquiry is governed by the Central Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976, (here-in-after referred to as 'Regulation, 1976'). It is also agreed by the learned counsel for the parties that Regulation, 1976, provides a reasonable opportunity to defend to the delinquent employee before imposing any punishment. The question where the Enquiry Officer records a finding exonerating the delinquent employee, but the disciplinary authority disagree with the said finding whether it is incumbent upon it to record its disagreement with reasons and communicate to the delinquent employee giving him an opportunity of submission of his reply before imposing any punishment came up for consideration before a three Judge Bench of the Apex Court in Punjab National Bank and others v. Kunj Behari Misra, (1998) 7 SCC 84 : AIR 1998 SC 2713. Regulation 7 (2) of Punjab National Bank Officer Employees (Discipline and Appeal) Regulations, 1977 is pari materia with the Regulations applicable in the present case. The Apex Court considered the aforesaid provision in the light of the law laid down by the Constitution Bench in Managing Director, E.C.I.L. v. B. Karunakar, (1993) 4 SCC 727 : 1993 SCC (LandS) 1184 and in paragraphs 17, 18 and 19 held as under : "17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the Enquiry Officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the Enquiry Officer. It will not stand to reason that when the finding in favour of the delinquent officer 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. 18. Under Regulation 6, the enquiry proceedings can be conducted either by an Enquiry Officer or by the disciplinary authority itself. 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 reason as to why an 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 Officer's 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. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case. 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the Enquiry Officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the Enquiry Officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged or misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer." ;