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Court No. 4
Writ Petition No.90 (S/B) of 2002
A.K. Gaur vs. Central Bank of India & Ors.
Hon. Sunil Ambwani, J.
Hon. Dr. Satish Chandra, J.
Heard learned counsel for the petitioner. Shri Gopal Kumar Srivastava appears for
the respondent-bank.
The petitioner was serving as Chief Cashier at Nakkhas Branch, Central Bank of
India, Lucknow. A shortage of Rs. 70,000/- was reported on the opening of the cash box,
when he reported at the bank on 11.7.1986, and proceeded on leave after handing over the
keys without opening the cash box. The petitioner was dismissed from service by the
Disciplinary Authority on 2.11.1989 after the departmental enquiry in which charges were
not proved. He filed a Writ Petition No. 10213 of 1989 (S/B) A.K. Gaur vs. Central Bank
of India and others. The writ petition was allowed by this Court on 30.11.2000, with the
findings “…before proceeding further after disagreeing with the findings of the inquiry
officer the disciplinary authority should have granted an opportunity to the petitioner
before recording of his own findings. The disciplinary authority should also have recorded
its tentative reasons of disagreement after giving an opportunity to the petitioner to
represent his case before him.”
On 13.2.2001 the Regional Manager, Central Bank of India, Lucknow gave a fresh
memo purportedly recording reasons of disagreement with the enquiry report. The
petitioner submitted a reply to the memo. By a fresh order dated 4.5.2001 the petitioner
was again dismissed from service in terms of Regulation 4 (6) of Central Bank of India
Officers Employees (Discipline and Appeal) Regulations, 1976, giving rise to this writ
petition.
A preliminary objection has been taken, that an appeal is provided under the
Regulations and thus the Court should not interfere in the matter.
We agree with the submissions of learned counsel of the petitioner, that the
disciplinary authority has again committed same mistake, which goes to the root of the
findings of the disciplinary authority. This Court had earlier held that the disciplinary
authority should have granted an opportunity to the petitioner before recording of his own
findings. The disciplinary authority should also have recorded its tentative reasons of
disagreement after giving an opportunity to the petitioner to represent his case before him.
Regulation 7 (2) of the Central Bank of India Officer Employees’ (Discipline and
Appeal) Regulations, 1976 provides as follows:-
“7 (2) The Disciplinary Authority shall, if it disagrees with the findings of the
2Inquiring 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.”
It is submitted by learned counsel for the petitioner, that the same regulation came
up for consideration of the Supreme Court in Punjab National Bank and others vs.
Kunj Behari Misra, (1998) 7 SCC 84. The Supreme Court held that where the
disciplinary authority does not agree with the findings recorded by the enquiry officer, he
should record the reasons for disagreeing with such findings. The Supreme Court relied
upon Ram Kishan v. Union of India (1995) 6 SCC 157 in reiterating the law as
follows:-
“14. In Ram Kishan case disciplinary proceedings on two charges were initiated
against Ram Kishan. The enquiry officer in his report found the first charge not
proved and the second charge partly proved. The disciplinary authority disagreed
with the conclusion reached by the enquiry officer and a show cause was issued as
to why both the charges should not be taken to have been proved. While dealing
with the contention that the disciplinary authority had not given any reason in the
show cause to disagree with the conclusions reached by the enquiry officer and
that, therefore, the finding based on that show cause notice was bad in law, a two-
Judge Bench at pl 161 observed as follows: (SCC para 10)
“The purpose of the show cause notice, in case of disagreement with the
findings of the enquiry officer, is to enable the delinquent to show that the
disciplinary authority is persuaded not to disagree with the conclusions
reached by the enquiry officer for the reasons given in the enquiry report or
he may offer additional reasons in support of the finding by the enquiry
officer. In that situation, unless the disciplinary authority gives specific
reasons in the show cause on the basis of which the findings of the enquiry
officer in that behalf is based, it would be difficult for the delinquent to
satisfactorily give reasons to persuade the disciplinary authority to agree
with the conclusions reached by the enquiry officer. In the absence of any
ground or reason in the show cause notice it amounts to an empty formality
which would cause grave prejudice to the delinquent officer and would
result in injustice to him. The mere fact that in the final order some reasons
have been given to disagree with the conclusions reached by the disciplinary
authority cannot cure the defect.”
In the present case the Regional Manager by his memo dated 13.2.2001 has not
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recorded any reasons for disagreeing with the findings recorded by the Inquiring
Authority. In fact the Regional Manager recorded his conclusion namely that Shri Gaur, if
fact, avoided to open the cash on 11.7.86 at Branch Office Nakhas, because he was aware
of the shortage of Rs. 70,000/- which was made by himself on 9.7.86 at the time of closing
the cash; he therefore left the branch premises on the forenoon of 11.7.86 intentionally
after giving his bunch of cash keys to Sh. Rakesh Mishra, the Asstt. Cashier, in an
unauthorised manner and not following the set norm and procedure of the bank in this
regard. The contents of the memo do not give either the reason or reasoning for
disagreeing with the report of the Inquirying Authority. The Regional Manager has instead
recorded his conclusion for giving a notice to the petitioner to give a reply. The Regional
Manager not only violated the terms of the order of this Court but also Regulation 7 (2) of
the Regulations of 1976, and thus committed breach of principles of natural justice, which
is the essence of any disciplinary proceedings before awarding any punishment.
We therefore again come to a conclusion that the petitioner was not afforded
effective opportunity to give a reply as the reason in the disagreement in the memo dated
13.2.2001 was missing. The case thus falls in the exceptions to invoke remedies under
Article 226 of the Constitution of India, without availing alternative remedies.
The writ petition is allowed. The order dated 4.5.2001 passed by Disciplinary
Authority, Central Bank of India is set aside.
Ordinarily, we would have remanded the matter back to the Disciplinary Authority
to give a fresh show cause notice with the reasons of disagreement with the report of
Inquiring Authority. Learned counsels for parties inform us that the petitioner expired on
30.9..2005, and has been substituted by his widow, and two sons by the order of the Court
dated 6.4.2006. They are not competent to defend the allegations of misconduct against
late Shri A.K. Gaur. We are informed that the petitioner was at the verge of retirement.
The proceedings therefore must rest.
We therefore issue a writ of mandamus to respondent-bank to treat the petitioner to
have completed his entire service without any benefit of pay and allowances, which he
would have drawn for the remaining period of service. The heirs of the petitioner
impleaded in his place will be entitled to all the benefits of service of late Shri A.K. Gaur
as if he was not dismissed and had retired after completing his service. The mandamus
shall be complied with within a period of three months from the date of communication of
this order.
Dt.4.01.2010
RKP/