JUDGMENT
Vikramaditya Prasad, J.
1. The main question to be answered in this writ petition is whether a delinquent employee, who has not been served with a copy of the enquiry report prior to the order of the disciplinary authority though on the basis of that enquiry report, the Disciplinary Authority punished him and thereafter delivered a copy of the enquiry report along with the punishment order is violative of the principles of natural justice?
2. The aforesaid question arose out of the fact that the petitioner, who was a clerk with respondent Bank, was promoted to the Officers’ Cadre and was ultimately promoted to the post of the Branch Manager on 1.5.1990. On 5.1.1992, the Palamau Kshetriya Gramin Bank Officers’ Association was decided to be established and on 12.1.1992 six office bearers were elected and the petitioner became one of the Executive Members of the newly formed Association and the intimation thereof was given to the authorities. On 22.2.1992, the petitioner was served with a charge-sheet, Annexure 3. The petitioner submitted reply to it and a departmental enquiry was conducted against him and in that, the petitioner participated. The petitioner was assisted in that proceeding by one of his colleagues. He also summoned a number of witnesses. These is no allegation against the Enquiry Ofiicer.
3. The case of the respondents as per the counter-affidavit is that as the petitioner participated in the departmental proceedings and also examined his witnesses, it cannot be said that he was not given any reasonable opportunity to defend himself, as only thereafter, the enquiry was concluded and the Enquiry Officer submitted his report to the disciplinary authority. The Chairman, after considering the enquiry report and the findings of the Enquiry Officer, passed the following disciplinary order (Annexure 7) :
“Janch Adhikari Ke Niskarsh Prastut Sakshion, Gawahan Ke Bayaono Ke Dhyanpurbak Adhyan Awam Apke Dwara Ke Gaye Kadachar Awam Anushashanhinta Ke Gambhirta Ko Dekhte Hue Apko Lipik Sah Rokirya Sah Tankak Ke Nimntar Pad Par Us Pad Ke Betanman Ke 12 We Sthan Ka Betan Nirdharit Karte Hua Awanti Karne Ka Dand Nirdharit Kiya Jata Hai. Sath Hi Aap Ke Nilamban Awadhi Ko Vi Usi Rup Me Samjha Jayega.”
The Disciplinary Authority also annexed the photocopy of the enquiry report, which were in 105 pages and that were served on the petitioner. Thereafter the petitioner preferred a Departmental Appeal and the Departmental Appellate Board directed the petitioner to submit comments on the enquiry report which the petitioner did. This decision was taken by the Board in absence of the Chairman, meaning thereby the Disciplinary Authority was not a party to that decision. After considering the comments and examining the matter the appeal was rejected with modification and the following order was passed :
‘The Board decided that Sri Das be placed in starting basic pay as officer from the date he joined his duty as a clerk after his suspension order was revoked by the disciplinary authority. Sri Das may accordingly be paid the difference of salary for the period from the date of joining upto this date.”
Besides, he was also admonished to be disciplined in future and if any indisciplined behaviour came to the knowledge of the Bank, he would be dealt with severely. This order was communicated. Thereafter the petitioner asked for supply of the confidential reports against him. but it was not supplied on the ground that these were the classified records. The petitioner has also filed another review against the appellate order, which was also rejected on the ground that the mater has already been decided. Annexure 10.
4. Further the stand of the respondents is that there as no question of bias on the part of respondents because the petitioner having joined the Association of the Officers. It was also contended that the departmental enquiry was conducted as per the Departmental Rules and Procedures and there has been no violation of any statutory provisions contained in the Departmental Regulations.
5. On consideration of the matter, I am not in agreement with the view that the departmental proceeding was initiated against the petitioner only because of bias on account of his joining the Association, which had been recently formed, because as per Annexure 1, which contains the name of the all the Office Bearers of the Association and Members, shows that there were 22 Office Bearers. Had there been bias on the part of the administration against the Officers who formed an Association, then all those might have been departmentally proceeded on this or that pretext. Thus, this is not a ground for entertaining a plea of bias against the petitioner by the Administration.
6. I also find that the appellate authority was very fair to the petitioner. The Appellate Board, of which the Disciplinary Authority was a Member (as he was the Chairman) was not present when the Board decided the appeal. Secondly, I find that the Appellate Board gave an opportunity to the petitioner to give his comments on the enquiry report. They were considerate that they even modified the punishment awarded by the Disciplinary Authority though the charge against the petitioner was that he had maneuvered a Gherao of the General Manager and also created some ugly situation in order to get his transfer order cancelled. This charge is a very serious charge of indiscipline, which amounts to serious misconduct, particularly as the petitioner was an Officer of the Bank, he was not expected to act in such a manner.
7. Inspite of all these. I wish to examine the effect of non-supply of the enquiry report to the petitioner prior to taking a decision on punishment against him by the Disciplinary Authority. The Departmental Rule does not provide that the copy of the enquiry report should be given to the delinquent employee. The Enquiry Officer, in his turn, straightaway and rightly submitted of the enquiry report to the Disciplinary Authority. Though not brought on record, a guideline in respect of the Departmental Enquiry issued by the Department was produced during the course of argument. One of the guidelines is that a second show cause be issued against the proposed punishment. The learned counsel appearing for the petitioner relied heavily on this guideline and the learned counsel appearing for the respondents argued that in view of the constitutional amendment of the Article 311, a second show cause is not mandatory and not required.
8. The admitted fact is that the enquiry report was provided to the petitioner after the Disciplinary Authority had awarded its punishment and the enquiry report was supplied to the petitioner along with the punishment order. Obvious it is that before the proposed punishment, the petitioner was not given any opportunity to represent his view. True it is that the appellate authority gave an opportunity to the petitioner to give his comments on the enquiry report, taut the main question is that the Disciplinary Authority, which passed the basic order, gave that opportunity to the petitioner or not, which obviously he did not. The Apex Court in the case of Union of India and Ors. v. Mohd. Ramzan Khan reported in (1991) 1 SCC 588, relied on the decision rendered in Mazharul Islam Hashmi v. State of U.P. reported in (1979) 4 SCC 537. in which it was held that every person must know that he is to meet and he must have opportunity of meeting that case, and that the legislature, however, can exclude operation of these principles expressly or implicitly, but in the absence of any such exclusion, the principle of natural justice will have to be proved.
The Apex Court also held that the (Disciplinary Authority) becomes the first Assessing Authority to consider the evidence directly for finding out whether the delinquent is guilty and liable to be ,punished. In para 18, the Apex Court held that “We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority as the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter.”
9. In the case in hand, exactly the aforesaid situation has arisen. The enquiry report was used by the disciplinary authority behind the back of the delinquent, which is a position not countenanced by a fair proceeding. Ramzan Khan’s case (supra) has a prospective effect and the law was laid down in the year 1991 by the Apex Court. In the case in had, the impugned disciplinary order was passed in the year 1993. Therefore, the law laid down in the Ramzan Khan’s case is applicable in the case in hand.
10. Thus, on the basis of the aforesaid law, the impugned disciplinary order Annexure 7 is quashed with the consequences thereof, but it is made clear that this decision will not preclude the disciplinary authority from revising the proceeding and continuing with it in accordance with law from the stage of the supply of the enquiry report.
11. The answer of the posed question is that the impugned order cannot be sustained in view of the fact that prior to its passing, the copy of the enquiry report had not been made available to the delinquent employee and that report was used behind the back of the employee and consequently, the principles of natural justice is violated,
12. With the aforesaid observations/ directions, this writ petition is allowed.