JUDGMENT
J.K. Biswas, J.
1.The writ petitioner is challenging the order dated March 18th, 2002 whereby the second respondent, the executive director of UCO Bank, has imposed the penalty, which is:-
“The Basic Pay of Shri Bannan (sic) Ram is lowered by two stages for two years. Further, he will not earn increments of pay during the period of such reduction and on expiry of such period, the reduction will have the effect of postponing the future increments of pay.”
2. While working as chief cashier of the bank a charge-sheet dated December 2nd, 2000 was served on the petitioner, the enquiry officer submitted his report dated June 23rd, 2001 holding that the charge had not been proved. By final order dated July 12th, 2001 the disciplinary authority exonerated the petitioner.
3. On February 4th, 2002 the second respondent, as the reviewing authority, suo motu issued a show cause notice. He stated that, in his opinion, on assessment of the evidence the petitioner did not deserve to be fully exonerated, and that hence he proposed to punish the petitioner. The proposed penalty was the one that he finally imposed.
4. The power to review was exercised by the second respondent under the UCO Bank Officer Employees (Discipline and Appeal) Regulations, 1976 regulation 18, which (excluding its proviso that deals with procedure for enhancing penalty) reads:-
“Notwithstanding anything contained in these regulations, the Reviewing Authority may call for the record of the case within six months of the date of the final order and after reviewing the case pass such orders thereon as it may deem fit.”
5. On February 9th, 2002 the UCO Bank Officer Employees’ (Discipline and Appeal) (Amendment) Regulations, 2002 were published in the Gazette of India. By this amendment regulation 18 was substituted. The substituted regulation 18 (once again excluding its proviso which remained unchanged) is as follows:-
“Notwithstanding anything contained in these regulations, the Reviewing Authority may call for the record of the case within six months of the date of the final order, either on house own motion or otherwise review the said order, when any new material of evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come or has been brought to his notice and pass such orders thereon as it may deem fit.”
6. The petitioner submitted representation dated February 22nd, 2002. He contended that on the facts and evidence there was no reason to punish him. However, the second respondent punished him on the ground that on the evidence on record the disciplinary authority was not right in exonerating him.
7. As to source of his power the second respondent said:
“Hence, in exercise of the powers vested in the undersigned as Reviewing Authority and in terms of regulation 18 as well as regulation 4 of UCO Bank Officer Employees’ (Discipline and Appeal) Regulations, 1976 as amended, the undersigned imposes the following penalty on Shri Babban Ram.”
8. Counsel for the petitioner first contends that once regulation 18 was substituted, the proceeding came to an end; and hence without issuing a fresh show cause notice the second respondent was not competent to proceed and pass the impugned order. He says that the Supreme Court decision in Kolhapur Canesugar Works Ltd. v. Union of India is an authority for the proposition.
9. I am unable to accept the contention of the counsel, and also his submission that the case cited to me is an authority for the proposition that with the amendment of a rule a proceeding pending thereunder does, of course, come to a stop. The proposition may be a sound one when the existing provision stands merely repealed, and the repealing enactment does not save the pending proceeding.
10. In this case the regulation was substituted by amendment; the process never created any void regarding its continuance. The power, the exercise of which gave birth to the proceeding, also never ceased to exist. So the proceeding did not need the help of a saving provision for its survival. I therefore do not see any reason why I should accept the contention, which I reject as without any merit.
11. Counsel for the petitioner then submits that, on the facts, the second respondent acted illegally; for he could have exercised his power to review only if new materials or evidence had been produced before him. Counsel for the respondents has responded by saving that the second respondent did not exercise his power in terms of the amended regulation 18, and the power was exercised on the basis of the provision that existed on February 4th, 2002. He does not lose a moment to refer me to the statements made in para 13 of the opposition filed by the respondents,
12. On the facts, it is very difficult for me to accept the statements made in para 13 of the opposition. I am really asked to say that what the second respondent mentioned in his order dated March 18th, 2002 regarding the source of his power, should not be read and understood as they exactly are; and that they must get the benefits of the explanatory statements made in the opposition.
13. The second respondent has chosen not to file any separate affidavit of his own. The opposition filed has been affirmed by some other authority who has sworn the statements in para 13 of it as true to his information derived from the records. The deponent says that the second respondent passed the order on the basis of regulation 18, as it stood before the amendment dated February 9th, 2002.
14. The question is whether such statements should be accepted as correct. The deponent refers to certain unspecified records as source of his information; but produces before me none. Hence I am unable to get the answer to the question: why should I accept his statements made in para 13 of the opposition in preference to the facts stated by the reviewing authority himself in his order?
15. I see actually no reason to proceed on the basis that the second respondent did pass the order in terms of regulation 18 as it stood before February 9th, 2002. To my mind, it will be an unwarranted extension of the meaning of the expression used by the second respondent in his order, if I hold that by the phrase “as amended ” he either did not want to mean anything at all or wanted to mean that the phrase was enough to imply “as amended till February 4th, 2002”. In my view, there is no reason at all for undertaking such a cumbersome exercise of dissection of the argument; I must not make an endeavour to try to read the mind of the second respondent instead of reading and understanding plainly what he said in his order. So I hold that the second respondent proceeded actually on the basis of regulation 18, as it stood on March 18th, 2002.
16. If I am right in my finding already recorded, then I must accept the contention of counsel for the petitioner that the power was wrongfully exercised by the second respondent. From the provisions of amended regulation 18 it is clear that he could impose the penalty only if new material or evidence, which could not be produced by the bank previously, were produced before him. Admittedly, this is not the basis on which he proceeded. He proceeded on the basis that on the evidence on record the decision of the disciplinary authority was wrong; virtually he exercised the power of the appellate authority.
17. Even if I proceed on the basis that counsel for the respondents is correct when he asserts that the second respondent decided the matter in terms of old regulation 18. I find that the impugned order is unable to survive the petitioner’s challenge, because, as I agree with his counsel, the matter was to be decided on the basis of the amended regulation 18, and not in terms of old regulation 18.
18. I do not think help of the General Clauses Act, 1897, Section 6(e), is correctly sought in this case by counsel for the respondents. He argues that the proceeding initiated suo motu by the reviewing authority under old regulation 18, created a vested right of the bank to get a decision in terms thereof, and hence substitution of the regulation during pendency of the proceeding could not take away such right,
19. I am simply unable to locate any right of the bank in old regulation 18. My reading and understanding of it is that it conferred only a power on the reviewing authority. The power could not be invoked, as a matter of right, by the bank or by the petitioner; it was to be exercised only suo motu. Once the power was exercised, the authority incurred the obligation to give his decision provided he continued to possess the power. Hence the unsaid right of the bank, as seen by it, is unfortunately not visible to me.
20. Lest I should be misunderstood, I make it clear that this may not be my view regarding the amended regulation 18, on which I am not required to express any opinion.
21. I think, I am right in saying that the reviewing authority himself could not claim a vested right in the power. For concluding the proceeding he was to possess the power at the date of the order, and at such date he could not exercise his power that he enjoyed in the past; he was to exercise the power that kept the proceeding alive. What are ordinarily saved are rights, obligations, liabilities, and privileges; a power of an authority to act suo motu is none of them.
22. I do not think the last contention of counsel for the petitioner that the second respondent acted with a closed mind has any real force. He pressed this point by pointing out the proposed punishment in the show cause notice, and on the strength of the Division Bench decision of this Court in Bimalkanta Mukherjee v. State of West Bengal and Ors., (84 CWN 483).
23 That was a case regarding charge-sheet, and I am inclined to agree with counsel for the respondents that that will not be an authority for deciding the issue raised in this case. Here the notice was issued by the reviewing authority after forming the tentative opinion that the petitioner should be punished. So he was necessarily required to say what penalty he proposed to impose; I would say that the action rather showed his open-mindedness. However, nothing turns on this point, since I have already found that the impugned order cannot be sustained.
24. For these reasons I allow the writ petition. The impugned order dated March 18th, 2002 is hereby set aside. The benefits to which the petitioner will be entitled, as a result of this order, shall be given to him within four weeks from the date of receipt of a copy of this judgment and order by the respondents.
There will be no order as to costs.
Urgent certified erox copy of this judgment and order shall be supplied to the parties, if applied for.
