Elipe Dharma Rao, J.@mdashThe legal principle to be adhered to by the disciplinary authority, while disagreeing with the opinion offered by the Enquiry Officer on any article of charge in the matter of domestic enquiry, is the subject matter in this writ appeal.
2. The Respondent was working as Assistant (Cash) in Srivilliputhur Branch of Appellant Bank (State Bank of India). While so, the following three charges were framed against him:
CHARGE No. 1:
On 7.6.2000, you have received a sum of Rs. 96,894/= from Shri K. Kalyanasundaram, a Subedhar and in charge of ATNKK&G Canteen, Srivilliputur for credit of Canteen''s C/A. No. 56002, maintained at the branch. However, you have taken advantage of the error reportedly committed by the said Shri K. Kalyanasundaram in writing the amount on the face of the voucher and the counterfoil erroneously as Rs. 86,894/= instead of Rs. 96,894/=, thus misappropriated a sum of Rs. 10,000/= and accounted for only Rs. 86,894/=.
CHARGE No. 2:
The Credit voucher which reportedly contained on the reverse thereof the denominations of notes for Rs. 96,894/= has been found missing at the Branch at the time of balancing of clean cash book and consequently a duplicate of the voucher had to be prepared based on the entry in the Cash Receipt Scroll. You have caused the disappearance of the voucher.
CHARGE No. 3:
When you were confronted by Shri K. Kalyanasundaram, the remitter of cash referred to above at the branch on 14.6.2000, you have consented to execute a Demand Promissory Note in favour of Shri K. Kalyanasundaram for Rs. 10,000 for repaying the money which you had not accounted for.
3. During enquiry proceedings, five witnesses were examined on behalf of the department as P. Ws.1 to 5. They were also cross-examined by the defence representative, appearing on behalf of the Respondent/delinquent employee. Ultimately, after analysis of the entire materials, the Enquiry Officer found charge Nos. 1 and 2 not proved, but held charge No. 3 proved. The enquiry officer has submitted his report dated 14.12.2001 to the disciplinary authority. Thereupon, on independent examination of the enquiry proceedings, enquiry officer''s report and the documentary evidence let in at the enquiry, the disciplinary authority, has arrived at the conclusion that the charges No. 1 and 2 also proved. A statement furnishing his observations in respect of the charges No. 1 and 2 were communicated to the delinquent officer, by the proceedings of the disciplinary authority dated 9.2.2002. The delinquent employee has submitted his reply dated 22.3.2002. By the proceedings dated 23.4.2002, a show-cause notice was issued to the delinquent employee, proposing the punishment of dismissal without notice from service, further requiring the delinquent to appear before the disciplinary authority for personal hearing on 30.4.2002 at 3.00 p.m. But, the delinquent, offering health grounds, did not avail the opportunity of personal hearing. Thereupon, the disciplinary authority has passed the order of dismissal from service with immediate effect, on 2.5.2002. In the said order, it has been mentioned that against the order of dismissal, the delinquent is having an appellate remedy before the Appellate Authority (Deputy General Manager) within 45 days from the date of receipt of the dismissal order. Accordingly, the delinquent preferred an appeal on 14.6.2002. The appellate authority, after giving personal hearing to the delinquent officer on 22.6.2002, by his order dated 27.6.2002, has dismissed the appeal, thus confirming the order of dismissal of the delinquent. Challenging the said orders passed by the disciplinary authority and the appellate authority, the delinquent officer has initiated the present writ proceedings, by filing W.P. No. 31270 of 2002.
4. A learned single Judge of this Court, by the order dated 6.11.2009, observed that ''only after taking a decision (that charge Nos. 1 and 2 are also proved), the disciplinary authority has given notice to the Petitioner calling upon him to submit written submission within fifteen days as to why the matter may not be proceeded further and thus, there is violation of principles of natural justice''. The learned single Judge has also observed that ''the decision taken by the disciplinary authority (imposing the capital punishment of dismissal from service) holding the charge Nos. 1 and 2 also proved, without even communicating the differing view and getting the explanation from the Petitioner'', is illegal and placing reliance on the judgment of the Honourable Apex Court in
5. This order passed by the learned single Judge is under challenge before us at the instance of the Appellants/employer.
6. The Learned Counsel appearing for the Appellants would strongly argue that the disciplinary authority, has communicated his reasonings dated 7.2.2002 to differ from the view of the enquiry officer, along with the letter dated 9.2.2002, to show cause as to why appropriate action should not be taken and the delinquent also, availing the said opportunity, submitted his detailed explanation vide his letter dated 14.6.2002 and therefore, the principles laid down by the Honourable Apex Court in
7. Continuing his arguments, the Learned Counsel for the Appellants would further argue that since the disciplinary authority has given detailed reasonings, thus affording the delinquent an opportunity to give his full-fledged explanation, the principles of natural justice have been fully complied with in this case and therefore, the order passed by the learned single Judge is not sustainable in law. In support of his contentions, the Learned Counsel for the Appellants would place reliance on a judgment of the Honourable Apex Court in
Relying on these decisions, the counsel for the Appellants contended that after the receipt of the report from the enquiry officer, the disciplinary authority should have given notices to the Appellants with its tentative conclusion and an opportunity be given to the delinquent before the report of the enquiry officer is reversed by the disciplinary authority. It was also argued that the Appellants should have been heard by the disciplinary authority before such a decision was rendered. Even though the rule as such does not contemplate giving an opportunity to the Appellant delinquents before the disciplinary authority takes a final decision to disagree with the reasons given by the enquiry officer, such a provision could be read into the rule but even then the Appellants cannot be heard to say that there shall be a personal hearing by the disciplinary authority. In the instant case, the Appellants were given a copy of the tentative decision of the disciplinary authority and the Appellants furnished detailed explanation and we are of the view that the principles of natural justice have been fully complied with and we do not find any infraction of rules or infirmity in the said decision.
8. The counsel further contended that from the tentative decision it could be spelt out that the disciplinary authority had already taken a final decision in the matter and the details have been given therein and the opportunity which was given to the Appellants was only an exercise in futility. We are not inclined to accept this contention. It is true that the disciplinary authority gave its reasons for disagreement with the report of the enquiry officer and the Appellants had given their full-fledged explanation and if at all the disciplinary authority gave detailed tentative decision before seeking explanation from the Appellants, it enabled them to give an effective representation and the principles of natural justice were fully complied with and it cannot be said that the Appellants were not being heard in the matter.
9. Lastly, it was contended that the punishments imposed on the Appellants are disproportionate as there was no evidence at all to prove that these Appellants received any illegal gratification. It was prayed that the Appellants are innocent and the drastic punishment of dismissal should not have been imposed on them. In view of the present-day situation of rampant corruption in public life, the High Court rightly imposed the punishment of dismissal on erring officers.The Learned Counsel for the Appellants would further contend that the delinquent/respondent, being a Bank employee, is expected to maintain utmost integrity and once the employer lost the faith about his honesty and integrity, there is no compulsion on the part of the employer/Bank to continue such dishonest employee in service. He would further argue that even presuming, without admitting, that the disciplinary authority has not afforded opportunity to the delinquent officer, it is for the employee to show any prejudice caused to him. In support of his contentions, the Learned Counsel for the Appellants would rely on the following judgments:
1.
2. Union of India and Ors. v. Bishamber Das Dogra 2010 (1) AISLJ 100 and
3.
10. In the first judgment cited above, the Honourable Apex Court has
held:
Where, however, there are no rules/Regulations/statutory provisions incorporating the principles of natural justice, but those principles are implicit in the very nature of the action/order, if there is total violation of those principles i.e. no opportunity/hearing was given, then the action/order would be invalid but if there is violation of only a facet of the principles i.e. no adequate opportunity/no fair hearing was given, test of prejudice should be applied and if no prejudice caused, no interference would be called for.
11. In the second judgment cited above, the Honourable Apex
Court has held as follows:
we are of the considered opinion that in case the enquiry report had not been made available to the delinquent employee it would not ipso facto vitiate the disciplinary proceedings as it would depend upon the facts and circumstances of the case and the delinquent employee has to establish that real prejudice has been caused to him by not furnishing the enquiry report to him.
12. In this judgment, answering the point argued on behalf of the delinquent that past record was considered without mentioning it in the show-cause notice, the Honourable Apex Court has held that
(For) charges of habitual absence which is a grave misconduct, it is not necessary that it should be a part of charge sheet as past conduct is relevant for imposing penalty only.
13. In the third judgment cited above, the Honourable Apex Court
has observed as follows:
The Respondent was given personal hearings on 30.7.2001 and 1.4.2002 as regards the proposed punishment by the Chairman of the Bank, wherein grievances of the Respondent were addressed with an open mind. The Respondent did not protest about being handicapped by non-supply of enquiry report then.
Further, perusal of enquiry report shows that various dates were fixed for enquiry proceedings. Thus, allegation by the Respondent that no date was fixed by the enquiry officer and notices were issued, found baseless. After completion of evidence, the presenting officer and Respondent were granted time upto 30.4.2001 for giving their respective briefs. Thereafter there was a detailed discussion on their respective evidence. The Respondent did not make any protest about not being permitted to cross-examine witnesses then. Thus, enquiry proceedings were held in accordance with principles of natural justice. If the Respondent was genuinely aggrieved he would have raised the issue at earliest possible stage.
The charges proved against the Respondent pertain to financial irregularities, fraud and misappropriation. The issue with regard to non-supply of the enquiry report was raised for the first time in appeal. Even at that stage the Respondent did not state as to what prejudice was caused by the non-supply of the enquiry report. He also did not seek any adjournment of the personal hearing on the ground that he be supplied the enquiry report.
In absence of any prejudice having been caused to the Respondent, no failure of justice has occasioned by non-supply of enquiry report. Hence, impugned judgment quashing orders dated 3.4.2002 and 9.9.2002 imposing punishment is unsustainable.
14. On the above arguments and placing reliance on the above judgments, the Learned Counsel for the Appellants would pray to set aside the order passed by the learned single Judge.
15. On the contrary, the Learned Counsel appearing for the Respondent/delinquent would argue that before the disciplinary authority proceeds to record his differing view, he must communicate his tentative reasons to the delinquent employee and only after due consideration of the same, the disciplinary authority has to pass orders regarding the punishment to be imposed. He would further argue that in the process of recording his tentative reasons, the disciplinary authority should not act like an appellate or revisional authority over and above the opinion offered by the enquiry officer. Since in the case on hand, the disciplinary authority has violated both these conditions, the learned single Judge has rightly allowed the writ petition filed by the delinquent officer and would pray to dismiss this appeal. In support of his arguments, the Learned Counsel for the Respondent/delinquent would place reliance on a judgment of the Honourable Apex Court in
16.The Learned Counsel for the Respondent/delinquent officer would also rely on a judgment of the Honourable Apex Court in
To say that when the Disciplinary Committee differs from the finding of the Inquiry Officer it is imperative for the disciplinary authority to discuss the materials in detail and contest the conclusion of the Inquiry Officer, is quite unsound and contrary to the established principles in administrative law. The disciplinary committee is neither an appellate nor a revisional body over the Inquiry Officer''s report. It must be borne in mind that the inquiry is primarily intended to afford the delinquent officer a reasonable opportunity to meet the charges made against him and also to afford the punishing authority with the materials collected in such inquiry as well as the views expressed by the Inquiry Officer thereon. The findings of the Inquiry Officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision making authority is the punishing authority and, therefore what authority can come to its own conclusion, of course bearing in mind the views expressed by the Inquiry Officer. But it is not necessary that the disciplinary authority should ''discuss materials in detail and contest the conclusions of the Inquiry Officer". Otherwise the position of the disciplinary authority would get relegated to a subordinate level.
17. On such arguments, the Learned Counsel appearing for the Respondent/delinquent would pray to dismiss this appeal.
18. As has been observed supra, the learned single Judge has observed that the disciplinary authority should have communicated only his tentative reasons to the delinquent officer before passing his orders. No doubt, this is what, precisely, the proposition laid down in the Kunj Behari Misra case, whereupon reliance has been placed by the learned single Judge. But, in the subsequent judgment reported in
19. In the case on hand, the enquiry officer has submitted his report dated 14.12.2001 to the disciplinary authority. Thereupon, on independent examination of the enquiry proceedings, enquiry officer''s report and the documentary evidence let in at the enquiry, the disciplinary authority, has arrived at the conclusion that the charges No. 1 and 2 also proved. A statement furnishing his observations in respect of the charges No. 1 and 2 were communicated to the delinquent officer, by the proceedings of the disciplinary authority dated 9.2.2002, available at Page No. 37 of the typed set of papers. The delinquent employee has submitted his reply dated 22.3.2002, which is available at Page No. 41 of the typed set of papers. On 23.4.2002, a show-cause notice was issued to the delinquent employee by the disciplinary authority, proposing the punishment of dismissal without notice from service, further requiring the delinquent to appear before the disciplinary authority for personal hearing on 30.4.2002 at 3.00 p.m. But, the delinquent, offering health grounds, did not avail the opportunity of personal hearing. Thereupon, the disciplinary authority has passed the order of dismissal from service with immediate effect, on 2.5.2002. In this order, available at Page No. 63 of the typed set of papers, itself it has been mentioned that against the order of dismissal, the delinquent is having an appellate remedy before the Appellate Authority (Deputy General Manager) within 45 days from the date of receipt of the dismissal order. Accordingly, the delinquent preferred an appeal on 14.6.2002. The appellate authority, after giving personal hearing to the delinquent officer on 22.6.2002, by his order dated 27.6.2002, has dismissed the appeal, thus confirming the order of dismissal of the delinquent.
20. Curiously, neither in the explanation offered to the show cause notice sent by the disciplinary authority nor in the appeal grounds raised by him before the appellate authority, the delinquent officer has taken the stand that the disciplinary authority did not afford him the opportunity before inflicting the punishment. This argument has been advanced for the first time before the learned single Judge in the writ proceedings, which, cannot be accepted. Therefore, the principles laid down by the Honourable Apex Court in J.A. Naiksatam''s case alone will apply to the case on hand and not that of the Kunj Behari Misra''s case. In view of such a specific observations by the Honourable Apex Court in J.A. Naiksatam''s case, the principles laid down in
21. Further, since the above discussed facts would also clearly establish the fact that before inflicting the punishment, a show-cause notice has been issued by the disciplinary authority to the delinquent, who has also made use of the same, the other observation made by the learned single Judge that the disciplinary authority has taken the decision (holding that charge Nos. 1 and 2 are also proved), without even communicating the differing view and getting the explanation from the delinquent, also cannot be accepted.
22. Even presuming, without admitting, that the disciplinary authority should have offered only his tentative reasons and only after getting the explanation from the delinquent, the order of punishment, should have been passed, as has been held by the Honourable Apex Court in catena of cases, the delinquent must plead and prove the prejudice caused to him. But, in the case on hand, as has already been pointed out by us supra, neither in the explanation offered by him to the disciplinary authority or even in the appeal grounds, the delinquent has raised such a plea. Having submitted his explanation to the show-cause notice issued by the disciplinary authority and having also availed the appellate remedy, without raking up such a plea, the Respondent/delinquent has failed to establish any prejudice having been caused to him, by such an action of the delinquent officer in offering his detailed reasons, instead of tentative reasons. Therefore, it goes without saying that no prejudice, whatsoever, has been caused to the delinquent employee in the case on hand.
23. Therefore, our above discussion, would lead us to the conclusion that in matters of disciplinary proceedings, if the enquiry officer, finds all or any of the articles of charges not proved against the delinquent officer and in case the disciplinary authority is disagreeing with such opinion offered by the enquiry officer on one or any of the articles of charges, then, the disciplinary authority must send his tentative reasons to the delinquent employee for differing from the view of the enquiry officer, seeking to show cause as to why he should not differ from the opinion of the enquiry officer. After the delinquent officer submitting his explanation, the disciplinary authority must consider the same in the manner known to law. But, if the disciplinary authority offers his detailed reasons (instead of tentative reasons) and the delinquent officer also submits his explanation to the same, without pleading and proving any prejudice caused to him by such of the action of the disciplinary authority (like the case in hand), the mere fact of offering detailed reasons by the disciplinary authority, ipso facto, does not render his action illegal.
24. Since, in the case on hand, as has been explained by us supra, no prejudice has been shown to have been caused to the delinquent officer, even on this count, the case of the Respondent/delinquent must fail. No other point has been urged before us by either side. Therefore, since none of the other points urged by the delinquent employee in the writ petition were dealt with by the learned single Judge (as he was only remitting the matter back to the disciplinary authority), we are of the considered view that ends of justice would be met, if the matter is remitted back to the learned single Judge to deal with other aspects, concerned with the merits of the case, urged on behalf of the delinquent employee, barring the two legal points discussed by him viz. 1. regarding the maintainability (since not challenged by the Appellant/employer) and 2. regarding lack of opportunity by the disciplinary authority.
In the result, this appeal is allowed. The order of the learned single Judge is set aside. The matter is remitted back to the learned single Judge for hearing and deciding the matter on other aspects urged by the Respondent/delinquent in the writ petition, concerning with the merits of the case, and rendering his finding on such aspects, without being influenced by any of our observations in this order, as we have not gone into the merits of the case.
No costs. Consequently, connected Miscellaneous Petition is closed.
