ORDER
H.L Dattu, J.
1. Petitioner was appointed as Clerk in respondent Bank in October 1967. He was promoted to the post of Head Clerk and later promoted to the post of Officer Grade-ll and after vationalisation of posts and pay scales in 1979, he was place in the post of Officer, Junior Management Grade Scale-l. While posted as Officer, Junior Management Grade at Hospet Branch, Hospet, he was served with a charge sheet dated 21st January 1983, containing charges of misconduct as Clerk at Sambra Branch of respondent Bank. It was alleged in the said charge sheet that petitioner did not remit a sum of Rs.800/- handed over to him by Wg.Cdr. Beddoe on 27.2.1978 for credit into his account and on 13.3.1978 had made fictitious credit entries in the Pass Book and ledger sheet as on 27.2.1978, by interlineations and had obtained the initials of the Branch Manager by falsely confirming that the petitioner had verified the relative Voucher. This was first charge sheet. Petitioner, while working at Dooravaninagar Branch, Bangalore and just before the commencement of inquiry precedings on the basis of first charge sheet, petitioner was served with yet another charge sheet dated 1.1.1985, containing three charges. In the charge memo, it was alleged that:
(i) the petitioner had issued cheques on six occasions with out maintaining sufficient Balance and thus contravened Rule 32(4) and 42(2) of the State Bank of India (Supervising Staff) Service Rules, (ii) that he had guaranteed in his private eapacity without prior permission of the Bank, a loan taken by a private person from another private person and the Court attachment order in respect of this, when his friend principal debtor did not clear the loan, was received in the Bank and the petitioner cause its disappearance and thus contravened Rules 32(4) of the said Service Rules, (iii) that the petitioner in eight cases failed to repay the debts and thus contravened Rule 41(1) of the Service Rules. 2. To enquire in to the charges framed in the first charge sheet, disciplinary authority, appointed A.J.M. Anthraper as Inquiry Officer. While enquiry was in progress, one Mr. J.M.D' Souza was appointed as Enquiry Officer to enquire into the allegations made in the second charge sheet dated 1.1.1985 by an order dated 25.3.1985.
3. In the pleadings filed -before the Court, it is not very dear, whether the charge sheeted officer had filed any reply to any of the charge memos served on him by the disciplinary authority. The inquiry officer held his first sitting to enquire in to allegations made in the first charge memo on 29.1.1985 and after preliminaries, the proceedings were adjourned to 19.2.1985. On the adjourned date, before the commencement of enquiry proceedings, the delinquent official filed a letter dated 19.2.1985, interalia stating that the articles of charge against him, pertains to the period when he was working as Award staff and as such governed by Conduct, Discipline and Appeal Rules, applicable to Award staff and he cannot be proceeded under the Conduct Rules applicable to supervisory staff. In support of his plea, petitioner also produced a copy of the Judgment of High Court of Judicature, MADRAS, in the case of M.W. PAVITHRAN v. CHAIRMAN/MANAGING DIRECTOR, CENTRAL BANK OF INDIA, BOMBAY, 1988 I LLJ 26. To consider the objections raised, the proceedings were adjourned by the enquiry officer, with information that further communication in the matter will be informed in due course. Proceedings once again commenced on 17.5.1985 and on that day defence representative was supplied with all the copies of exhibits sought for by him in his earlier representation and such of those exhibits which could not be supplied, he was permitted to inspect the same. Significantly netiher the charge sheeted officer nor his representative sought for any reply for their letter dated 19.2.1985 from the enquiry officer, but participated in the enquiry proceedings by cross examining all the management witnesses and also entering into the witness box to load their defence. On this aspect, petitioner has not made any grievance even before the Appellant Authority in his elaborate and lengthy Memorandum of Appeal. I have a purpose in referring to these aspects, which I will advert to it a little later. The enquiry was completed on 17.5.1985 and the enquiry officer submitted his report, his findings thereon together with the records of the enquiry proceedings and other documents on the first charge sheet dated 21.1.1983, to the disciplinary authority on 10.6.1985. Proceedings of the enquiry officer in so far as charge alleged in the second charge memo was also completed by the inquiry officer within the time set by disciplinary authority. The report and the findings thereon was also had been placed before the disciplinary authority for further action in the matter. The findings of the enquiry office on the charges alleged in the charge memo dated 21.1.1983 is as under:
“In conclusion I am of the view that the charges against the C.S.O. that he did not remit the amount of Rs.800/- received from the depositor on 27.2.1978 has not been proved. But, the other charge that he had made an interlineated entry of Rs.800/ – in the Pass Book and the ledger account of the depositor on 13.3.1978 has been proved. However, no evidence has been produced or come up during the enquiry to substantiate that the interlineated entries were made by the C.S.O. with a fraudulent intention. The only thing I can say against the C.S.O. is that he had acted in a very negligent manner while posting the entries in the Pass Book and the ledger account of the depositor overlooking the usual precautions which are required to be observed by the operating staff in such situations.”
In sum and substance, the findings of the enquiry officer was that the management failed to prove the charge that the charge sheeted officer did not remit the amount of Rs.800/- received from the depositor on 27.2.1978 and that there was no evidence to substantiate that the interlineated entries were made by charge sheeted officer with a fraudulent intention and the only ‘sin’, according to the enquiry officer committed by the delinquent official was that he had acted in a very negligent manner while posting the entries in the Pass Book and the ledger account of the depositor over looking the usual precautions.
4. In so far as the findings of the other enquiry officer, on the charges levelled against the petitioner in the charge memo dated 1.1.1985, was that charge No. 1 and 2 are proved and the third charge partly proved. The disciplinary authority after considering both the reports and the findings of the enquiry officers and the record of the proceedings in his composit order, disagreeing with the finding of the enquiry officer on the first charge memo dated 21.1.1983 and coming to his own conclusion without notice to the deliquent official, with the available material on record and concurring with the findings of the enquiry officer on the second charge memo, passed a composite order, mostly taking into consideration the gravity and seriousness of the charges alleged, and alleged to have been proved against the deliquent official, dismissing the petitioner from the services of the Bank in terms of Rule 4a(h) of State Bank of India (Supervising Staff) Service Rules (hereinafter referred to as “Staff Rules”), by his order dated 21st September 1985. Petitioner challenged the said order of dismissal from service, by filing an appeal before the ‘Appellate Authority’ as provided under Rule 51 of the Staff Rules. In the said appeal, petitioner raised several grounds, but, mostly confirming to the facts of the case and the perverse finding of the enquiry officer on the second charge memo and that of the disciplinary authority and also with regard to major penalty imposed. In the lengthy Memorandum of Appeal, and even a whisper is made by the petitioner in so far as procedure adopted by the disciplinary authority and the proceedings of the enquiry officer being opposed to rules of natural justice. To put it very mildly, the appellate authority in its most cryptic, mechanical and arbitrary order has rejected the appeal and confirmed the order of dismissal from service passed by disciplinary authority. It is these two orders, which have brought the petitioner to this Court, being aggrieved by the same.
5. Some grievances have been made by the petitioner in the Writ Petition, touching upon the legalities in the conduct of the enquiry proceedings, such as that (i) the enquiry proceedings should have been done under Conduct, Discipline and Appeal Rules applicable to Award Staff and not under Staff Rules applicable to supervisory staff, since the misconduct alleged against the petitioner relates to the period when he was working as Clerk in the respondent-Bank and in the alternative, it is contended, when two procedures are available, the one which is less onerous should be applied, (ii) Charges are vague and general, since it has failed to furnish particulars of the offence, (iii) On whose complaint the enquiry had been initiated has not been examined and the same has vitiated the entire enquiry proceedings, (iv) That, when the disciplinary authority disagrees with the findings of the enquiry officer, a show cause notice indicating the reasons on the basis of which the disciplinary authority proposes to disagree with the conclusions’ reached by the enquiry officer ought to have been given to the delinquent official. (v) Allegations contained in the second charge memo are very minor in nature which have nothing to do as an employee of the respondent-Bank, should not have been serious by viewed and no penalty could have been imposed basing on the finding of the enquiry officer, (vi) Appellate authority should have afforded an opportunity of hearing to the petitioner, when a specific request in that regard was made in the memorandum of appeal and further the order passed by the appellate authority suffers from the vis of non-speaking order. (vii) Examination of material witnesses being the back of the petitioner, without giving an opportunity to cross examine them has vitiated the entire enquiry proceedings and several other contentions. However, it may not be necessary for me to go into details of the merits of the submissions made and several case laws’ relied on by the Learned Counsel for parties to the Lis, since I intend to remand the matter to the disciplinary authority on the sole ground that the petitioner was deprived of an opportunity to present his case before Punishing authority before he disagreed with the findings of the enquiry officer, since it goes to the root of the order of dismissal made by the Punishing authority. Before taking up this important issue into consideration, let me first deal with the preliminary and an ancillary issue raised by Learned Counsel for petitioner about the improper procedure adopted by the disciplinary authority in the enquiry proceedings. On this aspect, the Learned Counsel for petitioner would submit that the allegations levelled-against the petitioner in the charge memo dated 21.1.1983 pertains to the period when charge sheeted officer was working as Award Staff in the respondent-Bank and the procedure that could have been adopted was only the Bipartite settlement between Bank’s Association and Employees’ Association and not the Staff Rules of Supervisory Staff as has been done by the disciplinary authority. In view of the improper procedure adopted by the disciplinary authority, it has caused serious prejudice to the defence of delinquent official and the same is opposed to principles of natural justice. In support of his submission, the Learned Counsel would invite my attention to letter filed by charge sheeted officer dated 19.2.1985 before the enquiry officer and elaborately explains the difference between the procedure prescribed for disciplinary action under the Bipartite settlements and under Supervisory Staff Rules. In support of this contention, the Learned Counsel relies upon the decision of Learned Single Judge of Madras High Court in the case of M.N. Pavithran and also decision of this
Court in the case of SHAMANNA K. v. STATE BANK OF MYSORE, 1982(1) KLJ 264. In Pavithran’s case, Madras High Court was considering a situation wherein charge sheeted officer had joined the services of Central Bank of India as a Clerk and was promoted as an Officer. While working as an Officer in the Bank, he was informed that the Bank proposes to hold a departmental enquiry under Regulation 6 of Officers Discipline Regulations in relation to certain acts of misconduct on the part of the petitioner while he was working as Award Staff. The charge sheeted officer took objection to the improper procedure adopted by the disciplinary authority by contending that the enquiry could not be held under the Officers Discipline Regulations, since the acts of misconduct related to the period when he was working as a Clerk. The preliminary objection raised by C.S.O. was negatived by the enquiry officer. The C.S.O. without participating in further proceedings, approached the Court in a petition filed under Article 226 of the Constitution for a direction for bearing the Bank from proceedings with the enquiry in accordance with Central Bank of India Officers Employees (Discipline and Appeal) Regulations, 1976. The Court, after a detailed analysis of the different procedures for Award Staff and Supervisory Staff was pleased to observe as under:
“7. It is in the light of the above provisions regarding disciplinary proceedings found both in the bipartite settlement and the Officer Empolyee Regulation that the question of the procedure to be followed has to be considered. As already stated, the article of charges framed against the petitioner relates to acts of misconduct committed by him while he was employed as a clerk and at the time when he was governed by the bipartite settlement. If the proceedings had been initiated then and there, the Bank would have been obliged to follow the procedure laid down under bipartite settlement. In my opinion, the provisions regarding disciplinary proceedings contained in the bipartite settlement are more favourable in the employees than the provisions contained in the Officer Employees’ Regulations. The absence of a definition between gross misconduct and minor misconduct in the Officer Employees’ Regulation, the differentiation between the nature of major and minor penalties in the Officer Employees’ Regulation and bipartite settlement and the absence of a second opportunity being given as regards the punishment to be imposed in the Officer Employees Regulation, cannot be said to form part of procedural law. On the other hand, there are very valuable rights conferred on an award staff under the bipartite settlement. Under the bipartite settlement, the reasonable opportunity envisaged to a delinquent employee include (a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges against him are and the allegations on which such charges are based, (b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence and finally (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the workman tentatively proposes to inflict one of the punishments and communicates the same to him. This is a very valuable protection given to an award staff, which protection is not found to be given under the Officer Employees’ Regulation. Further, the question whether the articles of charge framed against the petitioner and if found to be proved against him, fall within the category of gross misconduct or minor misconduct will depend upon the date on which the misconduct was committed and can only be tested in the tight of the provisions in the bipartite settlement as, on the date of the alleged commission of offence, the petition was governed only by the provisions of the bipartite settlement. Similarly, the right to be represented by a lawyer with the permission of the Bank which is conferred under the bipertite settlement is a very valuable right. That would have been available to the petitioner if the disciplinary proceedings had been initiated at the time when the alleged misconduct was committed. Taking all these circumstances, into consideration, I am of the view that the procedure to be adopted in the case of the petitioner is the procedure prescribed under the bipartite settlement and not the procedure prescribed under the Officer Employees’ Regulation.”
In the case of R. SHAMANNA v. STATE BANK OF MYSORE,1982(1) KLJ 264 the learned Single Judge of this Court was pleased to observe that failure on the part of the Bank to specifically refer to the Rules under which the disciplinary proceedings were being held is itself opposed to justice and fair play, as the official is not made aware of his rights. That was a case where disciplinary proceedings had been initiated against an officer of the Bank for certain acts of misconduct said to have been committed by him while working as Branch Manager. One of the contentions that was raised was that non-furnishing of the enquiry report to the delinquent official before imposing a major penalty along with second show cause notice is opposed to rules of natural justice and fair play in action and the entire proceedings from the stage of second show cause notice is vitiated was the contention. Accepting the submission made, this Court was pleased observe as under:
“(3) In this behalf I must observe that the petitioner was not even aware that he could apply for copies of documents as the fact that the rules such as those enclosed to Annexure T had been adopted for holding disciplinary proceedings against the officers of the bank, was not at all made known to him. If the bank had furnished a copy of the rules to the petitioner, or at least invited his attention to Chapter 19 of the Bipartite settlement (Clause 19(1) to 19(12) which were being followed in holding the disciplinary proceedings against the officers, the petitioner could have been expected to apply for a copy of the inquiry report. As stated earlier, copy of the rules was furnished after the completion of the inquiry.
(4) In fact the failure on the part of the bank of specifically by refer to the rules under which the disciplinary proceedings were being held against the petitioner was itself opposed to justice and fairplay. As stated earlier, one of the grievances of the petitioner has been that he was not even aware that he could make a request for taking the assistance of a lawyer to defend himself, He pointed out to para 6 of the Article of Charges, Annexure-F. It reads:
“6. It will also be in order for you to be defended by a representative of the Officer’s Association of which you are a member.”
In alt fairness, in the charge memo the Enquiry Officer should have set out Clauses (i) to (iii) of rule 19-12(a), according to which, permission could be given to an employee to be defended by a representative of an association or by a lawyer. As that was
not done, the petitioner did not even know that he could seek the permission of the Enquiry Officer to be defended by a lawyer and for that reason he remained undefended in the enquiry after, for some reason or the other, the employee of the bank who appeared at the earlier stages, did not defend the petitioner in the further proceedings of the case. This circumstance also shows that the petitioner was kept in dark even about the rules which governed the disciplinary proceedings which had been initiated against him.”
6. Per contra, the Learned Counsel for respondents would contend that at the time when enquiry commenced against the petitioner, he was an officer and he could only be proceeded against under Supervisory Staff Service Rules, even though the enquiry proceedings relate to the misconduct committed by him while serving as a clerk. Even otherwise, he would submit that having raised the preliminary objection with regard to the improper procedure adopted by the disciplinary authority, the delinquent official could not have stopped at that and he should have taken it to its logical end as was done in M.N. Pavithran’s case before Madras Court and he would further submit that having participated in the enquiry proceedings without a murmur and having allowed the enquiry officer to give his findings on the enquiry proceedings, having allowed disciplinary authority to pass the impugned order and having not even raised the issue before the Appellante Authority, the petitioner should not be permitted to raise this technical plea at this belated stage on this aspect. The teamed Counsel would submit that the petitioner has Acquirence in the proceedings and now he cannot contend that the entire proceedings are either bad or illegal. In support of his contention, the Learned Counsel would rely upon the law laid down by Apex Court in the case of PRASAN ROY v. THE CALCUTTA METROPOLITAN DEVELOPMENT AUTHORITY AND ANR., . In the said case the Court was pleased to observe that acquirence of a party to proceeding by participating for a long time cannot be allowed to contend thereafter, that the proceedings are either bad or illegal. In support of his other contention, the Learned Counsel would rely upon certain observations made by Andhra Pradesh High Court in the case of MARAKAIAH v. TRIBUNAL FOR DISCIPLINARY PROCEEDINGS, GOVERNMENT OF ANDHRA PRADESH, HYDERABAD, AIR 1962 AP 303. In the said case, contention before the Court was that the case against non-Gazetted officer cannot be referred to the Tribunal at all and by such reference in the case of any non-Gazetted Officer, a discrimination is made out. The contention was that the appellant there in was charged with alleged acts of misconduct when he was a non-Gazetted Officer and he must be dealt with has a non-Gazetted Officer for the purposes of enquiry though it transpired that at the time of reference and the enquiry following it, he is a Gazetted Officer. On these facts, the Court was pleased to observe as under:
“12. We do not consider that the said assumption is right. In every case the status of the officer at the time of the reference and the enquiry following it is the deciding factor and not what the delinquent officer was at the time of the alleged misconduct. Ordinarily, when enquiries are made expeditiously, such a contingency may not arise. But there could be cases where a non-gazetted officer might have been promoted subsequently to a gazetted rank. It is neither propriety, nor is there any express rule, that the enquiry into the charges should be as the delinquent official was in the past. Sri. Chennakesava Reddy has not placed before us any authority in support of this assumption. Our learned brother, has rejected the assumption expressing thus:-
“In my view, the relevant time, factor is not the date of the commission of the offence, but the date of the reference and what determines that reference to the Tribunal is the office that the miscreant holds on the date of the reference, that is, whether he holds a gazetted post or not.”
We consider that this is a correct statement or the position. So, this assumption fails, the argument that he has been discriminated against and his case has been singled out of other cases of non-gazetted officer fails also.”
The Learned Counsel also brings to my notice the decision of a Single Judge of Andhra Pradesh Court in the case of R.P. UPENDRA v. CHIEF GENERAL MANAGER (DISCIPLINARY AUTHORITY), STATE BANK OF INDIA, HYDERABAD, WP No. 8967/82 dt. 16.2.1984 (AP). In this case, charge sheeted officer was working as Award Staff Member during the periods 1975 and 1976. Acts of misconduct attributed to him pertains to this period. The charge sheeted officer was promoted as officer some time in the month of October 1978 and the Banks Service Rules for the first time came into existence from April 1, 1977. A contention was raised before the Court that the rules of 1977 cannot be applied to the reason that the enquiry into acts of misconduct pertains to the period 1975-76 when the Supervisory Staff Rules were not in existence. It is relevant at this stage to notice that the charges were framed and served on the charge sheeted officer sometime during 1978. In answering the contention raised by the charge sheeted officer, the Court was pleased to observe as under:
“The Learned Counsel urged, 1977 rules are enforced from April 1, 1977. The charges pertains to years 1975 and 1976. Sri. Upendra was in the Award Staff, therefore, the enquiry coufd not have been held under 1977 rules. This argument of the Learned Counsel, ex facie, is without substance. The writ petitioner was promoted on October 1, 1978. The charges were served on him on October 10, 1978. The rules are enforced from April 1, 1977. Therefore, nothing further need be expounded on the question to hold the enquiry was properly held under 1977 rules. The contention thus is stated and rejected.”
7. The contention of Learned Counsel for petitioner cannot be accepted for more than one reason. In my view the Bipartite Settlement will apply only to employees who are workmen within the meaning of the said definition, So long they remain workmen, the procedure of departmental enquiry prescribed under the Bipartite settlement cannot be applied to an officer who has been promoted from the cadre of Award Staff even though the acts of misconduct alleged against him was committed while serving as a clerk. The relevant date is not the date of misconduct, but, the date of enquiry and it is immaterial what was the status of the charge sheeted person at the time of commission of misconduct and according to me what is relevant is what is the status of the person at the time of issuance of charge memo. The reason being that, in a departmental enquiry proceedings which is a quasi judicial function what is enquired into is the conduct vis-a-vis misconduct of a person. It has no relevance whatsoever, whether this misconduct was committed when the person was working as workmen or as Officer. The enquiry is in respect of
the conduct of person not as a workmen or as Officer, but, as a person serving in an establishment. To find out whether he is suitable to be continued in the employment when the conduct of the workman has to be judged, a particular procedure is prescribed and the conduct of a person who has become an officer, a particular procedure is envisaged. In a departmental enquiry, the quasi-judicial authority is not deciding the conduct of the workmen/officer, but conduct of a person. On the date of enquiry whatever/whichever position the person holding is a determinative factor to adopt different procedures, if it is so prescribed. On the date of enquiry, if the charge sheeted person is a workmen, it is the Bipartite Settlement that is applicable to the enquiry and on the crucial date if he is an officer even though the acts alleged in the charge memo was committed by him while serving as a Award Staff, it is Supervisory Staff Rules which would be applicable. In this view of the matter, I respectfully disagree with the view expressed by the learned Single Judge of Madras Court in the case of M.N. Pavithran and prefer to the line of thinking of Andhra Pradesh High Court in R. MARAKAIAH v. TRIBUNAL FOR DISCIPLINARY PROCEEDINGS, GOVERNMENT OF ANDHRA PRADESH for the reason, what is enquired into in a departmental proceedings is the acts of misconduct of person not as a workman or an officer. In such an enquiry, a procedure has to be adopted when there are two different procedures for a workman and an officer, the status of the person on the date of enquiry has to be taken into consideration. In the present case, the respondent-Bank has taken into consideration the status of the person whose misconduct as a person has to be enquried has adopted the procedure prescribed for Superviosry Staff. I do not find any ground to take exception to the procedure adopted by the disciplinary authority. Lastly, the purpose of having different procedures for conducting enquiry for Award Staff and Officers does not require a detailed discussion. It is suffice to say that the rule making authority would have taken into consideration the educational background, the social status, the experience in the worldly affairs of a workman to provide for him a detailed and an elaborate procedure of enquiry to provide for him sufficient opportunity to defend himself before the enquiry officer and this elaborate safeguard may not be required for an officer of an establishment. Hence, 1 reject the contention of the Learned Counsel for the petitioner on this aspect of the matter and
I also reject the stand of Learned Counsel for respondent, when he contends that just because the charge sheeted officer has attended the proceedings, he has waived his initial objection. It is necessary for the delinquent official to raise objection at the appropriate stage. The mere fact that objection is raised does not mean that the delinquent official should not thereafter attend the enquiry and if attends the subsequent proceedings, that does not in any way shows that he has waived objection. The party does not waive his objection merely because he continues to attend the proceedings. Before parting from this issue, I should express my unhappiness the way in which the enquiry officer has ignored the preliminary objection raised by charge sheeted officer in his letter dated 19.2.1985, that too when the matter was specifically adjourned to consider the objection of delinquent official. The enquiry officer was bound to decide the preliminary objection raised by the charge sheeted officer, instead of ignoring it and thereby preventing the officer to agitate his grievance at a highly belated stage.
8. Having noticed the ancillary issue raised by Learned Counsel for petitioner, let me now come to the main question, namely whether the disciplinary authority was obliged to issue a notice to the delinquent official in case the disciplinary authority gives its own finding disagreeing with the finding of enquiry officer and whether the non-issue of such notice would be in contravention of rules of natural justice and would it vitiate the findings of the disciplinary authority and the punishment imposed thereon. Before adverting to this important issue, let me first peep into service rules of the respondent Bank in so far as Discipline and Appeal matters are concerned. Sub-rule(xxi) of Rule 50 prescribes steps to be taken by the inquiry authority after conclusion of the inquiry proceedings. It reads as under:
“(xxi) (a) On the conclusion of the inquiry, the Inquiring Authority shall prepare a report which shall contain the following:-
(1) a gist of the articles of charge and the statement of the imputations of misconduct;
(2) a gist of the defence of the employee in respect of each article of charge;
(3) an assessment of the evidence in respect of each article of charge;
(4) the findings on each article of charge and the reasons therefore.
Explanation: If, in the opinion of the Inquiring Authority, the proceedings of the inquiry establish any article of charge different from the original article of charge, it may record its findings on such article of charge.
Provided that the findings on such article of charge shall not be recorded unless the employee has either admitted specifically and not be inference the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.
(b) The Inquiring Authority, where it is not itself the Disciplinary Authority, shall forward to the Disciplinary Authority the records of inquiry which shall include:-
(1) the report of the inquiry prepared by its under (a) above;
(2) the written statement of defence if any, submitted by the employee referred to in clause (xv);
(3) the oral and documentary evidence produced in the course of the inquiry;
(4) written briefs referred to in clause (xviii), if any; and
(5) the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry.
(3) (i) The Disciplinary Authorty, if it is not itself the Inquiring Authority, may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority-whether the Inquriting Authority is the same or ditferent-for fresh or further inquiry and report, and the Inquiring Authority shall thereupon proceed to hold further inquiry according to the provisions of sub-rule (2) as far as may be.
(ii) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring 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.”
The sub-rule (xxi) of Rule 50 of the Service Rules envisages that if the disciplinary authority disagrees with the finding of the inquiring authority on any article of charge, record its reasons for such disagreement and its own findings on such of the evidence on record, is sufficient for the purpose. This rule is in parimateria with the K.C.S. Rules, which the Karnataka Agro Industries Corporation had adopted for its purpose.
9. Keeping in view the provisions under Service Rules of respondent-Bank, let me now consider the submissions made by the Learned Counsel for parties. There were two charge memos issued against the petitioner. The disciplinary authority had appointed different enquiry officers to enquire into allegations made in those two charge memos. The enquiry officers after a detailed inquiry into the allegations levelled against the charge sheeted officer, had submitted their report and findings thereon to the disciplinary authority. The enquiry officer appointed to enquire into the charges alleged in the first charge memo had exonerated the charge sheeted officer, however, the other enquiry officer who was appointed to inquire into the charges in the second charge memo had found the charge sheeted officer guilty of all the charges. The disciplinary authority in his composite order disagreed with the findings of the enquiry officer on the first charge sheet and gave his own finding with the available evidence on record, holding that the charge sheeted officer is guilty of the charges alleged in the charge memo dated 21.1.1983 (first charge memo) and had no difficulty in agreeing with the finding of the enquiry officer on the charge memo dated 1.1.1985 (second charge memo). Taking into consideration the seriousness and gravity of the charges in both the charge memo, proceeded to pass the order, dismissing the petitioner from services of the respondent-Bank. This action of the disciplinary authority is being questioned by the Learned Counsel for the petitioner, interalia contending that the same is opposed to rules of natural justice and would vitiate the entire inquiry proceedings. In support of this contention the Learned Counsel relies upon the decision of this Court in the case of KARNATAKA AGRO INDUSTRIES CORPORATION LIMITED v. K. VITTAL DAS, W.A. 2809 and 2816/91 DD 20.10-1995. In the said case, the enquiry officer was of the view that the charge sheeted officer was not guilty of charges 1, 2 and 3 of the charge sheet dated September 4, 1979 and found the delinquent official guilty of other charges. However, disciplinary authority did not agree with the findings of the enquiry officer and assigned his own reasons for disagreeing with the findings of the enquiry officer without notice to the delinquent official and proceeded to impose punishment. Taking exception to the action of disciplinary authority, the Court was pleased to observe as under:
“In the present case, as mentioned above, the enquiry officer has found the delinquent guilty of certain charges. The disciplinary authority did not accept the findings and gave reasons for disagreement with the findings of the Enquiry Officer. It hardly requires to be stated that the findings of the enquiry officer are merely recommendatory and are not binding on the Disciplinary authority. The disciplinary authority is entitled to come to its own conclusion on the material available and the only limitation is that before recording a finding against the delinquent in cases of disagreement with the recommendation, a show cause notice is required to be served on delinquent to explain why findings should not be rejected.”
(emphasis supplied by me)
In K.N. MISRA v. MANAGING DIRECTOR, STATE BANK OF INDIA-AND ORS.,1991(63)FLR921, the Court following the earlier division bench ruling of the same Court in the case of R.P. SRIVASTAVA v. STATE BANK OF INDIA, 1990 LCD 497 and the decision of Apex Court in the case of NARAYAN MISHRA v. STATE OF ORISSA,1989 SLR 658 was pleased to observe as under:
“In the case of R.P. Srivastava v. State Bank of India same question cropped up before this Court. A Division Bench of this Court in which Hon’ble Mr. Justice U.C. Srivastva, as he then was and myself were the members, held that although there existed no provision in the Rules for giving an opportunity of hearing to a delinquent, in case the disciplinary authority gave its own finding disagreeing with the report of the inquiry officer and imposed the punishment, the principle of natural justice would require that opportunity of hearing should be given to him. Hon’ble Supreme Court in the case of Narain Misra v. State of Orissa held that in case the punishing authority different from the finding -of the inquiry officer and held the delinquent guilty of the charge for which he was exonerated, it is incumbent upon the appointing authority to give an opportunity of hearing to the petitioner. This case was in respect of a Forester who earlier was an employee of the Indian State, but later on became an employee of State of Orissa after the merger of the said State. In this case there is no reference to any Rule one way or the other and the delinquent was acquitted. The punishing authority differing from the finding of the inquiry officer held the official guilty of the charges from which he was exonerated. No notice or opportunity was given to the delinquent officially by the punishing authority. The order of removal was set aside, holding the same to be violative of principles of natural justice and fair play. Very same principle will apply in this case in which rules were framed but under the said rules a person cannot be dismissed from service by the appointing authority, in case on some of the charges he was exonerated by the inquiry officer. The order of dismissal cancertainly be passed if he had differed with the report of the inquiry officer by giving an opportunity of hearing to the delinquent.”
In RAM KISHAN v. UNION OF INDIA AND ORS., 1995 SCC (Lords) 1357 the Hon’ble Supreme Court while explaining the purpose of necessity of issuance of a show cause notice in case of disagreement with the findings of the inquiry officer, was pleased to observe as under;
“The next question is whether the show cause notice is valid in law. It is true as rightly contented by the Learned Counsel for the appellant, that the show cause notice does not indicate the reasons on the basis of which the disciplinary authority proposed to disagree with the conclusions reached by the inquiring officer. The purpose of show cause notice, in case of disagreement with the findings of the inquiring officer, is to enable the’ delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the inquiring officer for the reasons given in the inquiry report or he may offer additional reasons in support of the findings by the inquiring officer.”
10. Per contra, the Learned Counsel for the respondent-Bank would only rely upon the service rules of the Bank and contend that the Staff Rules does not provide for issuance of a show cause notice by Disciplinary authority, whenever he disagrees with the findings of the inquiring officer before he comes to his own conclusion with the available material on record. The Learned Counsel would submit by implication the uncodified rules of natural justice are excluded in a situation like this. In support of this contention, the counsel would strongly rely upon the observation made by Hon’ble Supreme Court in the case of R.S. DASS v. UNION OF INDIA AND ORS
11. 1986 SCC (supp) 617 . In the said case the Court was considering a situation where if during the process of selection a Senior Officer is proposed to be superseded by virtue of not being in the select list, whether an opportunity for making representation should be granted to him in the absence of specific Rules in that regard. On this aspect, the Court was pleased to observe as under:
“25. It is well established that rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and the background of statutory provisions, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case. These principles do not apply to all cases and situations. Applications of these uncodified rules are often excluded by express provision or by implication. In Union of India v. Tulsiram Patel, a Constitutional Bench of this Court considered the scope and extent of applicability of principles of natural justice to administrative actions, Madon, J. summarised the position of law on this point and observed as follows:(SCC p. 479, SCC (LAS) p. 753, para 101)
So far as the audi alteram partam rule is concerned, both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. This right can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partam rule be invoken if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands, as pointed out in Maneka Gandhi case.
In the instant cases statutory Regulations do not expressly or by implication apply the rule of audi alteram partem in making the selection. On the other hand the scheme contained under the Regulations exclude the applicability of the aforesaid rule by implication. Select List is prepared each year which ordinarily continues to be effective for a year or till the fresh Select List, is prepared. If during the process of selection a senior officer is proposed to be superseded by virtue of not being included in the Select List, and if opportunity is afforded to him to make representation and only thereafter the list is finalised, the process would be cumbersome and time consuming. In this process it will be difficult for the Committee to prepare and finalise the Select List within a reasonable period of time and the very purpose and preparing the Select List would be defeated. Scheme of the Regulations therefore dearly warrants exclusion of principle of audi alteram partem. No vested legal right of a member of the State Civil Service who after being considered, is not included in the Select List, is adversely affected. Non-inclusion in the Select List does not take away any right of a member of the State Civil Service that may have accrued to him as a government servant; therefore no opportunity is necessary to be afforded to him for making representation against the proposed supersession.”
Keeping in view the law laid down by Apex Court in the case of NARAYAN MISHRA v. STATE OF ORISSA and also in the case of RAM KISHAN v. UNION OF INDIA AND ORS., let me now examine the contention of the learned Counsel for the parties to the Lis. Here is a case where disciplinary authority differs with the findings of the inquiring officer on the first charge memo, but, concurs with the findings of inquiring officer on the second charge memo, but, the order passed by disciplinary authority is a composite order. It is difficult to dissect the said order and still hold that the punishing authority without intimating the delinquent official his intention of disagreement with the findings of enquiry officer, he could base his decision on the finding of the inquiring officer on the second charge memo. It is now well established that Disciplinary Authority is not bound to accept the finding of the enquiry officer since the finding of the enquiry officer is merely recommendatory in nature and the disciplinary authority is expected to apply his mind independently to the report of the enquiry officer. The findings and recommendations of the enquiry officer is intended only to supply the appropriate material for consideration of the disciplinary authority. The disciplinary authority when he concurs with the findings of the inquiring officer, he need not give detailed reasons, but, when he differs with the findings, and gives his own finding, then certainly he is obliged to give reasons and the only question that remains should there be a notice to the delinquent official to make representation before disciplinary authority differs from the findings of the enquiry officer in the absence of any such provision in the Rules. This question is no more a resintegra, in view of the law laid down by Apex Court in the case of Narayan Mishra and in the case of Ram Kishan and also the decision of this Court in the case of K. Vittaldas. Respectfully following the ratio of these decision, I hold that, though there is no provision in the Staff Rules for giving an opportunity to the delinquent official, in case the disciplinary authority gave its own finding disagreeing with the report of the enquiry officer, rules of natural justice requires that an opportunity to make representation should be given to the delinquent official and in the absence of which the order is liable to be set aside.
11. In view of what has been indicated hereinabove, the petition succeeds and the impugned order of dismissal and order of appellate authority dated 21.9.1985 and 9.1.1986 respectively are quashed with liberty to the disciplinary authority/respondents to proceed in accordance with law and in accordance with the observations made in this order. Liberty is also reserved to the petitioner to urge all such grounds which are available, to him before the disciplinary authority if and when a notice is issued to make representation. The effect of setting aside the impugned orders, would definitely entitle the petitioner for all consequential benefits including reinstatement, but, as observed by Apex Court in B. KARUNAKARAN’S , :
“xxxx The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariable be left to be decided by the authority concerned according to law, after the culmination of the proceedings and
depending on the final out income. If the employee succeeds in the fresh enquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position of law.”
12. For the reasons stated, Writ Petition is allowed in part. The impugned orders dated 21.9.85 and 9.1.1986 passed by the Disciplinary Authority and the Appellate Authority respectively are quashed and the matter is remanded to the Disciplinary Authority to redo the matter in accordance with law and in accordance with the observations made in this order. In so far as reinstatement and backwages, the authorities are directed to apply the observations made by Apex Court in Karunakar’s case. To this limited extent, rule made absolute. In the facts and circumstances of the case, the parties are directed to bear their own costs.