Arbind Kumar vs The State of Bihar

Chandramauli Kr. Prasad, J.—In both the writ applications common questions of law and fact arise for consideration and as such they are being disposed of by this common order.

Petitioners are members of Bihar Subordinate Education Service and they have been put under suspension on the ground that they have not carried out the orders of transfer. Enquiries were conducted and the Enquiry Officer exonerated the Petitioners from all the charges. The report of the Enquiry Officer was placed for consideration before the disciplinary authority, who by his order dated 15th of May, 2000 and order dated 1.6.2000 (Annexure-4 in both the writ petitions) passed orders for revocation of order of suspension but imposed penalty of withholding of two annual increments with non-cumulative effect. He also directed that the aforesaid punishment imposed on the Petitioners shall be entered in their service book. It is the assertion of the Petitioners that before passing the impugned orders the disciplinary authority did not give any opportunity to the Petitioners. This assertion of the Petitioners has not been denied.

Mr. Shukla appearing on behalf of the Petitioners submits that once the Enquiry Officer has exonerated the Petitioners from the charge, the disciplinary authority may have the power to disagree with the same and impose punishment but before doing so it is incumbent upon him to indicate tentative reason for disagreement with the inquiry report and also to give opportunity to the Petitioners to show cause. He submits that no reasons have been indicated nor Petitioners have been given any show cause. In support of his submission learned Counsel has placed reliance on a judgment of the Supreme Court in the case of S.B.I. and Ors. v. Arvind M. Shukla AIR (2001 SCW 2472) and my attention has been drawn to a passage of paragraph 2 of the judgment, which reads as follows:

To appreciate this contention, we have been taken through the findings of the enquiring officer and charges 1 (a) and 1 (d) as well as the reasoning and ultimate conclusion of the disciplinary authority on those two charges. On examining the same, we are not persuaded to accept the submission of the learned Counsel and in our view, the disciplinary authority has disagreed with the conclusion and findings arrived at by the enquiring officer. The next question therefore is, as has been formulated earlier, whether the disciplinary authority was required to record its tentative reasons for disagreement and give to the delinquent Qfficer and opportunity to represent before it recorded its ultimate findings. This question is concluded by a 3-Judge Bench decision of this Court in the case of Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, The Bench in the aforesaid case relied upon the earlier decision in the Institute of Chartered Accountants of India Vs. L.K. Ratna and Others, as well as the Ram Kishan Vs. Union of India and others, and came to hold that the view expressed in S.S. Koshal (1994 AIR SCW 2901) and State of Rajasthan Vs. M.C. Saxena, cases do not lay down the correct law. Mr. Sundravardan, however, brought to our notice yet another 3-Judge Bench decision in the case of Union Bank of India Vs. Vishwa Mohan, and contended that a different view has been taken in the aforesaid cases. But on examining the aforesaid decision in Union Bank of India case, we find that the question which arose for consideration in the Punjab National Bank case was not really there before the Court and the Court was examining the question as to what would be the effect, if copy of the enquiry report is not furnished to the delinquent employee. The Court obviously relied upon the Constitution Bench decision of this Court in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., . In the absence of any contrary decision of a 3-Judge Bench decision on the question in issue, we are bound by the earlier judgment of this Court in Punjab National Bank case, necessarily, therefore we do not find any merit in this appeal, which stands dismissed.

Learned Counsel appearing on behalf of the State, however, submits that the Petitioners having not carried out the order of transfer, nothing prevented the disciplinary authority from passing the impugned order.

Having appreciated the rival contention, I find substance in the submission of Sri Shukla. Inquiry Officer has exonerated the Petitioners from all the charges. The disciplinary authority had not indicated any reason disagreeing with the conclusion of the Enquiry Officer nor has given any opportunity to the Petitioner to show cause. These infirmities itself vitiate the impugned orders.

The disciplinary authority if so advised, may give notice to the Petitioners indicating the tentative reason for his disagreement with the conclusion of the Enquiry Officer and further after giving opportunity to the Petitioner may take action in accordance with law.

In the result the applications are allowed and the impugned orders dated 15.5.2000 and dated 1.6.2000 (Annexure-4 in both the/writ petitions) are quashed. No cost.