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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
ORDER
Shaitan Ram Choudhary. Versus General Manager
(Personnel Deptt.),
UCO Bank & ors.
S.B. Civil Writ Petition No. 531/1998
Date of Order: January 30, 2009
PRESENT
HON'BLE MR. JUSTICE H.R. PANWAR
Mr. I.R. Choudhary, for the petitioner.
Mr. Sunil Bhandari for Mr. M.R. Singhvi, for the respondents.
BY THE COURT:
Reportable.
By the instant writ petition under Article 226 of the
Constitution of India, the petitioner seeks to quash the order
Annx. R/2 dated 28-6-1996 awarding the penalty of censure and
a direction to consider his case for promotion on the post of
Lower Division Clerk with all consequential benefits.
I have heard learned counsel for the parties.
During the course of arguments, learned counsel for
the petitioner has confined his argument to the challenge of the
impugned order Annx.R/2 dated 28-6-1996 awarding the
penalty of censure to the petitioner.
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It is contended by the learned counsel for the
petitioner that the petitioner was served with the charge sheet
Annx.R/1 dated 16-6-1993; however after holding an inquiry,
the Enquiry Officer exonerated the petitioner, but without
assigning any reasons for disagreeing with the conclusions
arrived at by the Enquiry Officer, the Disciplinary Authority, vide
impugned order Annx.R/2 dated 28-6-1996, held that the charge
levelled against the petitioner in the charge-sheet certainly gives
an indication that the petitioner is in the habit of indulging in
such acts, omission and commission and thereby causes a
doubtful situation. However, while deciding about the
punishment, the Disciplinary Authority, after taking into account
all the factors and relevant facts of the case and considering the
principles of natural justice, giving benefit of doubt, imposed the
penalty of censure. According to the learned counsel for the
petitioner, there being absolutely no material on record to show
that the petitioner is in the habit of indulging in any act
prejudicial to the interest of the respondent bank, or omission or
commission, mentioned in the impugned order Annx.R/2.
According to the counsel for the petitioner, even there was no
such charge that the petitioner is in the habit of indulging in
such acts, omission and commission and, therefore, in absence
of any material, it cannot be said to have established that the
petitioner is, in fact, in the habit of indulging in such acts,
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omission or commission prejudicial to the interest of the
respondent bank. According to the learned counsel for the
petitioner, in the charge-sheet Annx.R/1 dated 16-6-1993, there
has been no such averment that the petitioner is in the habit of
indulging in such act, omission or commission and the charge-
sheet, as spelled in Annx.R/1 is that on 17-10-1992, while the
petitioner was posted at UCO Bank, Thanwla Branch, one
customer Chhitar Mal, who is said to have taken loan, came to
the bank for depositing the amount of Rs.500/- as against the
loan; the petitioner was asked by the Assistant Branch Manager
Shri B.L. Mittal to take signatures of customer Chhitar Mal as an
acknowledgement to the loan amount, but apart from taking
signatures of Chhittar Mal on the loan acknowledgement, the
petitioner got his signatures on two blank promissory notes.
According to the learned counsel for the petitioner, this fact has
not been established by the respondent bank during the inquiry
and, therefore, the Enquiry Officer exonerated the petitioner.
According to the learned counsel for the petitioner, it is true that
the Disciplinary Authority is not bound to accept the report of the
Enquiry Officer and he could have taken its own view disagreeing
with the conclusions arrived at by the Enquiry Officer, but then
the Disciplinary Authority was required to record the reasons of
such disagreement, whereas in the order Annx.R/2, no such
reasons have been assigned by the Disciplinary Authority.
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Learned counsel for the petitioner has relied on the decisions of
the Hon’ble Supreme Court in Punjab National Bank & ors. Vs.
Kunj Bihari Misra, JT 1998 (5) SC 548 and Nanak Chand Vs.
State of Punjab, AIR 1955 SC 274; and the decisions of this
Court in Bagda Ram Vs. State of Rajasthan & ors., RLR 1992 (2)
579; Gopa Ram Vs. The State of Rajasthan & Anr., WLC 2002
(3) Raj.1 (D.B.); and Prabhu Lal Agarwal Vs. The State of
Rajasthan, 1991 (2) WLC 469.
Learned counsel for the respondent-bank submits
that the Disciplinary Authority, while disagreeing with the
conclusions of the Enquiry Officer and taking the view different
than what has been taken by the Enquiry Officer, had followed
the procedure prescribe and afforded an opportunity of hearing
to the delinquent-petitioner. According to the learned counsel
for the respondent-bank, for differing or disagreeing with the
conclusions of the Enquiry Officer, what is required is to follow
the principles of natural justice by affording an opportunity of
hearing to the delinquent-petitioner, which has been done in the
instant case. In the alternative, it has been submitted by the
learned counsel for the respondent-bank that if for some reason
the impugned order is held to be bad in the eye of law then the
matter may be remitted to the Disciplinary Authority to proceed
afresh from the stage of issuing a fresh notice to the delinquent-
petitioner. Learned counsel for the respondent has relied on the
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decisions of the Hon’ble Supreme Court in Lav Nigam Vs.
Chairman & MD, ITI Ltd., & ors., (2006) 9 SCC 440; and State of
Punjab & ors. Vs. Dr. Harbhajan Singh Greasy, JT 1996 (5) SC
403.
I have given my thoughtful consideration to the rival
submissions made by the learned counsel for the parties.
By the order Annx.6, the Disciplinary Authority
forwarded a Xerox copy of the report of the Enquiry Officer
received from the Enquiry Officer, whereby the Enquiry Officer
concluded that as per the documents and statements of
witnesses recorded, he reached to the conclusion that the charge
levelled against the petitioner vide charge-sheet dated 16-6-
1993 has not been proved. Not only that, a categorical finding
has been arrived at by the Enquiry Officer that neither the
petitioner got the pronotes signed from Chhitar Mal, nor made an
attempt to destroy the same and since the charge levelled
against the delinquent-petitioner has not been proved, therefore,
in view of Clause 19.5 (j) of the Bi-Party Settlement dated 19-
10-1966, the charge has not been proved against the petitioner.
The report of the Enquiry Officer runs in as many as 8 pages
taking note of each piece of the evidence brought before the
Enquiry Officer; yet the Disciplinary Authority, by the order
Annx.6, required the petitioner to make submissions, if any,
within the period of 15 days. Though after elaborate inquiry, the
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Enquiry Officer categorically recorded the finding that the charge
against the petitioner has not been proved and thereafter
without there being any new material before the Disciplinary
Authority to call upon the petitioner to make written submission
and even if the petitioner failed to make any written submission
then too it cannot be construed that the charge stands proved
against him. The petitioner had already made written
submissions before the Enquiry Officer and the Enquiry Officer
has taken into consideration the documents and the evidence
produced before it and without there being any point of
disagreement formulated by the Disciplinary Authority, the
petitioner was hardly required to again make written
submissions and even if the petitioner has not made the written
submission then too for that reason, no adverse inference can be
drawn against him. It was for the Disciplinary Authority to reach
at its own conclusion on the basis of the material on record by
assigning reasons, may be in brief, for disagreeing with the
conclusion arrived at by the Enquiry Officer, which is totally
missing in the instant case.
In Punjab National Bank & ors. Vs. Kunj Bihari Misra
(supra), the Hon’ble Supreme Court held that when the
Disciplinary Authority disagrees with the finding of the Enquiry
Officer, it is required to record its own reason for such
disagreement and also to record its own finding on such charge
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and is also required to give a hearing to the delinquent officer.
In Bagda Ram Vs. State of Rajasthan & ors. (supra),
this Court held as under:-
“Thus, there was not an iota of evidence to prove
that either the petitioner had left his beat duty and
accompanied constable Bhagirath, or that he had
stopped complainant Tulcha Ram and snatched any
money from him. It has also not been proved that
Tulcha Ram had identified the petitioner immediately
after the alleged incident. Thus, the Enquiry Officer
had correctly scanned and evaluated the evidence
recorded before him and given a clear finding that
the charges leveled against the petitioner were not
proved. The respondent No.3 in his order dated 30-
04-1987 (EX.7) after reproducing the report of the
Enquiry Officer ad-verbetum simply gave a finding
that from the statement of PW 2 Onkar Singh and
perusal of F.I.R. (EX.4) and the duty register, Out
Post, Sojati Gate, the charge leveled against both the
delinquent employees, namely the petitioner and
Bhagirath Ram were proved. However, he did not
give his reasons. The respondent No.2 also neither
disagreed with the findings of the Enquiry Officer nor
recorded any reasons nor gave any specific finding
on each charge, which was essential. His findings
are also not based on any evidence. It is, therefore,
clear that the Disciplinary Authority did not discuss,
examine and scan the evidence objectively and
wrongly held the petitioner guilty of the charges
leveled against him. His finding is not based on
record and is clearly perverse, because mere
suspicion cannot take the place of proof.”
In Gopa Ram Vs. The State of Rajasthan & Anr.
(supra), the Enquiry Officer held that the charges against the
delinquents have not been proved, however the Disciplinary
Authority disagreed with the report of the Enquiry Officer and
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ordered compulsory retirement of the delinquents and also
ordered to recover the amount from the delinquents. The order
passed by the Disciplinary Authority came to be set aside by this
Court.
In Prabhu Lal Agarwal Vs. The State of Rajasthan &
ors. (supra), while considering the provisions of rules 14 and 16
of the Rajasthan Civil Services (Classification, Control & Appeal)
Rules, 1958, this Court held that there is an obligation on the
Disciplinary Authority to record reasons in support of the order
of punishment and the reasons required to be recorded must
be good and sufficient.
` The decision in Nanak Chand Vs. State of Punjab
(supra) relied on by the learned counsel for the petitioner deals
with Section 233 of the Code of Criminal Procedure, 1898 (old
Cr.P.C.) for framing of charge and, therefore, in my view, this
decision has no application to the facts and circumstances of the
instant case and as such of no avail to the petitioner.
In Lav Nigam Vs. Chairman & M.D., ITI Ltd. & ors
(supra) relied on by the learned counsel for the respondents, the
Disciplinary Authority issued merely a show cause notice against
the proposed punishment and it was clear that no notice was
given before the Disciplinary Authority recorded its final
conclusion differing with the finding of fact of the Enquiry
Officer. On these premises, the Hon’ble Supreme Court, in view
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of the long line of authorities, held that the decision of the High
Court cannot be sustained and accordingly allowed the appeal
and set aside the decision of the High Court and the proceedings
recommended from the stage of issuance of a fresh show cause
notice by the Disciplinary Authority to the appellant therein
indicating his tentative disagreement with the finding of the
Enquiry Officer.
In State of Punjab & ors. Vs. Dr. Harbhajan Singh
Greasy (supra) relied on by the learned counsel for the
respondents, the respondent therein was charged for remaining
absent from duty. The Enquiry Officer submitted its report that
the respondent therein has admitted that he was having a
private practice at Moga during the period of his suspension in
spite of the directions issued by the Government in the
suspension order to remain at Headquarter. On the basis of the
admission of the respondent therein, the order of removal from
service came to be passed, which was challenged before the
High Court, however the High Court, while allowing the writ
petition, directed the reinstatement of the respondent therein.
On an appeal before the Division Bench, the order of the learned
Single Judge came to be confirmed. On further appeal before
the Hon’ble Supreme Court, the Hon’ble Apex Court noticed that
the Enquiry Officer had not taken the admission of the
respondent therein in writing and subsequently the respondent
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therein denied to have made such admission and, therefore, the
Hon’ble Supreme Court held that the High Court was justified in
setting aside the order of dismissal of the respondent therein.
The Hon’ble Supreme Court further observed as under:-
“It is now well settled law that when the enquiry was
found to be faulty, it could not be proper to direct
reinstatement with consequential benefits. Matter
requires to be remitted to the disciplinary authority
to follow the procedure from the stage at which the
fault was pointed out and to take action according to
law. Pending enquiry, the delinquent must be
deemed to be under suspension.”
In R.R. Gabhane Vs. State of M.P. & ors., (1998) 8
SCC 549, the Hon’ble Suprem Court held as under:-
“In this case the Enquiry Officer’s report was in
favour of the appellant delinquent officer. He had
exonerated the appellant of the charges. The copy of
this report was not communicated to the appellant. A
show cause notice was given proposing to dismiss
him from service for those charges, without
indicating in any manner that the Enquiry Officer had
found the charges not proved. The Enquiry Officer’s
report was also not supplied to the appellant. The
Enquiry Officer’s report came to light only when it
was filed along with the counter-affidavit in the writ
petition. This was not a fair thing to do. We are not
going into the question whether it was obligatory
upon the disciplinary authority to communicate the
reasons for his disagreement with the findings of the
Enquiry Officer to the delinquent officer or not. In
view of the above conduct which prima facie looks to
us unfair, we think it appropriate to interfere in the
matter. The judgment of the Division Bench of the
High Court is set aside and the order of the learned
Single Judge is restored only to the extent the said
order remits the matter to the disciplinary authority
to continue the proceedings from the stage of the
second show cause notice.
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The disciplinary authority shall now communicate the
reasons for his disagreement with the Enquiry
Officer’s findings to the delinquent officer, hear him
and pass orders according to law. All this exercise
shall be completed within six months from today and
for a period of six months, status quo as of today
shall continue.”
In the instant case, indisputably, the Enquiry Officer,
vide its report which was forwarded to the petitioner by the
Disciplinary Authority vide Annx.P/6, categorically held that the
charge against the petitioner, as mentioned in Annx.R/1, has not
been proved. The Disciplinary Authority was not bound to accept
the conclusion arrived at by the Enquiry Officer and he could
have either accepted or have taken a different view, but for
taking a different view, even the Disciplinary Authority was
required to scan and evaluate the materials available on record,
more particularly in the instant case, the documents and the
evidence collected by the Enquiry Officer, and to have taken its
own view supported by the reasons, may be in brief, which, in
my view, in the instant case, the Disciplinary Authority failed to
do so. Therefore, in view of the various decisions referred
hereinabove, the impugned order cannot be sustained in the eye
of law and liable to be quashed. However, keeping in view the
decisions of the Hon’ble Supreme Court in Lav Nigam Vs.
Chairman, M.D., I.T.I & ors. (supra); and in R.R.Gabhane Vs.
State of M.P. & ors. (supra), the matter deserves to be
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remanded to the Disciplinary Authority from the stage of issuing
the show cause notice to the delinquent-petitioner indicating his
tentative disagreement with the Enquiry Officer and deciding the
matter afresh by recording its own reasons.
Consequently, the writ petition is allowed; the
impugned order Annx.R/2 dated 28-6-1996 passed by the
Disciplinary Authority is set aside and uashed and the matter is
remitted to the Disciplinary Authority to afford opportunity of
hearing to the petitioner-delinquent by communicating the
reason for his disagreement with the conclusion of the Enquiry
Officer and thereafter to pass orders afresh in accordance with
law. This exercise be completed within the period of six months
and during that period, the petitioner shall not be entitled to
claim any benefit of quashing the order of imposing the penalty
of censure and status quo as of today shall continue. There shall
be no order as to costs.
(H.R. PANWAR), J.
mcs
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S.B. Civil Misc. Stay Petition No.433/1998
in
S.B. Civil Writ Petition No.531/1998
(Shaitan Ram Choudhary Vs. General Manager (Personnel
Department), UCO Bank & Ors.)
Date of Order: January 31, 2009
HON’BLE MR. H.R. PANWAR, J.
Mr. I.R. Choudhary, for the petitioner.
Mr. Sunil Bhandari for Mr. M.R. Singhvi, for the respondents.
Since the writ petition itself has been disposed of, the
stay petition also stands disposed of.
(H.R. PANWAR), J.
mcs