JUDGMENT
C.M. Nayar, J.
(1) The petitioner has moved this Court by means of writ petition under Article 226 of the Constitution of India for issuance of an appropriate writ or direction in the nature of certiorari calling for the records relating to charge sheet No. PD/DIR/2321/89 dated 7/12th August, 1989 issued by the General Manager (Credit), Disciplinary Authority, United Bank of India, the enquiry proceedings and the order of punishment No.PD/DIR/890A dated 30.3.1991 issued by the Disciplinary Authority and quash the same.
(2) The brief facts are that the petitioner joined the respondent Bank on June 1, 1974 as Law Officer. He was holding the post of Assistant General Manager (Legal) in the Legal Department of the respondent bank at the relevant time. It is further stated that the petitioner is entitled to the use of an office car and in case an office car was not available, he could hire a car on the basis of office circular dated April 16, 1982. The petitioner received a letter dated September 11, 1988, from the Chief Officer ( Premises) making certain allegations with regard to the discrepancies of car bill for the month of September, 1988. The petitioner replied to the same by letter dated October 15, 1988. The Chief Manager (Premises) by letter dated February 4, 1989, again made further allegations for the months of September and November, 1988, with respect to the discrepancies in the car bills. The petitioner filed his reply with respect to the charges and ultimately the petitioner was proceeded against in the matter and charge sheet dated 7/12th August, 1989 was served on the petitioner on August 14, 1989. The Disciplinary Authority passed an order that an enquiry should be held into the charges levelled against the petitioner by order dated November 18, 1989 (Annexure F to the writ petition). The petitioner represented and requested the Disciplinary Authority to re-examine the entire matter and to drop the proceedings. This request was not acceded to and the petitioner was intimated the date for holding of the preliminary enquiry. The Disciplinary Authority earlier passed an office order dated November 18, 1989, appointing Shri D.Prakash, Commissioner for Departmental Enquiries, Central Vigilance Commission, New Delhi, respondent no.2 herein to enquire into the charges levelled against the petitioner.
(3) It is contended in the writ petition that the said Departmental Enquiry was held on the basis of the report of the Vigilance Department behind the back of the petitioner and the charge sheet had been issued on the basis of the above said report. The petitioner was provided no opportunity and the whole matter was hurried through which caused great prejudice as no proper notice had been received by him for holding an enquiry despite the fact that the petitioner was busy in a Departmental case which was pending before the Hon’ble High Court at Calcutta. The petitioner, however, participated in the proceedings before the Enquiry Officer and filed his defense statement. The Articles of charge and the findings of the Inquiry are filed as Annexure `N’ to this writ petition. The petitioner was served with the impugned order of punishment by Communication dated March 30, 1991. The operative part of this letter may be reproduced as follows: “A departmental enquiry was held into the charges levelled against you in bank’s letter bearing No. PD/DIR/2296/89 dated 7/12.8.89, providing you with all reasonable opportunities to defend your case and you had participated in the said enquiry proceedings. The Enquiry Officer has submitted his report dated 29.1.91, a copy of which is enclosed. 2.I have gone through and considered the findings of the Enquiry Officer, the proceedings of the enquiry, evidence both oral and documentary, produced and provided at the enquiry and also other connected papers and I have applied my mind. 3.It has been found in the enquiry report that the charges have been proved and I concur with the findings of the Enquiry Officer. 4.The nature of misconduct committed and the charges proved against you at the enquiry necessitates in my opinion imposing of penalty as contained in Regulation 4 of the United Bank of India Officer Employees’ (Discipline & Appeal) Regulations, 1976. 5.Accordingly in terms of Regulation 7(3) of the United Bank of India Officer Employees’ (Discipline & Appeal) Regulations, 1976 I hereby impose upon you the major penalty of reducing your basic pay by 4 (four) stages lower of your present scale of pay in Scale/V with effect from the date of this order. 6.Your present basic pay of Rs.5,950.00 (reached on 1.9.90) is therefore reduced to Rs.5,350.00 with effect from the date of this order.”
(4) The petitioner was, accordingly, awarded major penalty of reducing his basic pay by four stages lower to his existing scale of pay. This punishment was imposed on the basis of the provisions of Regulation 7.3 of the United Bank of India Officer Employees’ (Discipline and Appeal) Regulations, 1976. The petitioner filed an appeal against the order of punishment and the same was rejected by order dated 1/2nd November, 1991.
(5) The main contention of the petitioner is incorporated in paragraph 2 of the writ petition and the same reads as follows: “THERE is serious violation of the principles of natural justice in this case, in as much as the petitioner has not been supplied a copy of the Enquiry Report before imposing the major penalty of reducing the basic pay of the petitioner by four stages lower in the scale. The copy of the Enquiry Report was supplied with the order imposing punishment. This is in gross violation of the principles of natural justice. The Hon’ble Supreme Court of India in the case of Union of India v. Mohd. Ramzan Khan has held that disciplinary inquiry is quasi-judicial in nature and it attracts the principles of natural justice. The Hon’ble Supreme Court in para 13 observes as under: “There is a charge and a denial followed by an enquiry at which evidence is led and assessment of the material before conclusion is reached. These facets do make the matter quasi-judicial and attract the principles of natural justice. As this Court rightly pointed out in the Gujarat case , the disciplinary authority is very often influenced by the conclusions of the Inquiry Officer and even by the recommendations relating to the nature of punishment to be inflicted. With the Forty-second Amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the Inquiry Officer to come to his conclusions. In case his conclusions are kept away from the delinquent officer with or without recommendations to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusions, rules of natural justice would be affected.”
The reply to this paragraph is contained in the counter affidavit and it is not denied that the copy of the Enquiry Report was not forwarded to the petitioner before imposing the punishment of reduction of his basic pay by four stages, which was awarded as a major penalty. The respondents have, however, contended that the Regulation 9 only envisages that copy of the Enquiry Report shall be handed over to the petitioner with the order of Disciplinary Authority and there is no requirement that the copy has to be supplied prior to the passing of the order by the Disciplinary Authority. The petition can be disposed of on the short question as to whether it was mandatory for the respondents to furnish copy of the enquiry report before passing of the order of major penalty in the facts of the present case. The matter is now squarely covered by the Constitution Bench judgment of the Hon’ble Supreme Court, as reported in Managing Director, Ecil, Hyderabad, etc. etc.v. B. Karunkakar, etc. etc. . The relevant portion from page 1089 reads as follows: “WHILE the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead fo r either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment. The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also a principal of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer Along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer’s findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it. It will thus be seen that where the Inquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, Inquiry Officer’s report and the delinquent employee’s reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee’s right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings”.
The learned counsel for the respondents, however, contends that no injustice has been caused to the petitioner by non furnishing of the Enquiry Report. He has placed strong reliance on the following paragraph of the above said judgment at page 1092, which reads as under: “(V)The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “un-natural expansion of natural justice” which in itself is antithetical to justice”.
(6) The propositions as laid down by the Supreme Court have settled the position of law. The principles of natural justice have been held to require that the employee should have a fair opportunity to explain and controvert the allegations against him before he is condemned. The earlier part of the judgment as cited supports this proposition. There is no doubt that “in some cases the non furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. In this situation to direct reinstatement of an employee with back wages in all cases iks to reduce the rules of justice to a mechanical ritual.”
(7) The facts of the present case, however, indicate that the petitioner was not terminated from service. He was only imposed major penalty of reduction in his basic pay of four stages and the penalty was imposed by an order dated March 30, 1991, which indicated that the copy of the Enquiry Report was furnished to him only by means of that order. Therefore, the petitioner had no opportunity to explain his case before the penalty was imposed upon him. In this view of the matter, it would have been better if the respondent had furnished him a copy of the Enquiry Report before passing of the impugned order of major penalty. The petitioner continues to remain in service and in all fairness he should have been provided an opportunity to make his submissions before passing of the impugned order. The learned counsel for the petitioner fairly states that the petitioner does not want any immediate relief which may accrue as a result of quashing of the order of punishment. He only contends that he has now been provided with the copy of the Enquiry Report and the respondents must have a fresh look in the matter and pass an order after providing an opportunity to reply to the findings of the Inquiry Officer.
(8) In view of the facts and circumstances of the present case, I hold that copy of the Enquiry Report should have been furnished to the petitioner before the order of penalty was imposed upon him and it was futile to enclose a copy with the order of punishment. The respondent-Disciplinary Authority shall apply its mind afresh after providing due opportunity to the petitioner to present his case. The petition is disposed of in the above terms. There will be no order as to costs.