Narbadeshwar Shukla vs Palamu Kshetriya Gramin Bank and Others

Sujit Narayan Prasad, J.—Instant writ petition has been filed on behalf of petitioner for quashing order dated 11.7.2005 contained in letter No. Karmik/12(D.P.S.)/331 whereby and whereunder punishments of lowering down pay scale of the petitioner by six stages in initial basic pay scale has been inflicted.

Pay scale of the petitioner has been reduced from Rs. 13,900/- to 12,540/- per month.

Order dated 7.4.2006 passed by the appellate authority is also under challenge.

Counsel appearing on behalf of petitioner has submitted that the petitioner was posted at Garhwa Branch of Palamu Kshetriya Gramin Bank as Branch Manager on 7.12.1997 and thereafter transferred to Chhatarpur Branch on the post of Branch Manager on 9.11.2000 and then transferred to Garhwa Bazar Branch in July, 2003. It has further been submitted that an inspection was conducted in Garhwa Branch on 20.1.2001 and on the basis of audit inspection report a show cause notice was issued to the petitioner on 18.7.2003 wherein altogether six allegations have been levelled against the petitioner seeking explanation from him. In terms of said show cause petitioner has given reply rebutting allegations made against him but the respondents authority being not satisfied with the explanation given by the petitioner decided to initiate a departmental proceeding. The petitioner was directed to appear before the enquiry officer. Accordingly, petitioner appeared before him and submitted his reply. Enquiry officer has submitted his report in which charges No. 1 and 5 have not been found to be proved, Charge No. 2 has been found to be proved, Charge No. 3,4 and 6 have been found to be partially proved.

Enquiry officer has submitted its report to the disciplinary authority. The disciplinary authority had accepted the findings given by the enquiry officer with respect to charge No. 2and 5 but, differed with the findings of enquiry officer with respect to charge Nos. 1,3,4 and 6 and came to conclusion that these charges are also found to be proved in its entirety and passed final order in exercise of power conferred under Rule 38 (1)(b)(2) of the service condition of the employees of Palamau Kshetriya Gramin Bank Officers and Staffs Rule 2001 by which the pay scale of the petitioner has been reduced to six stages and in terms thereof the pay scale of the petitioner has been reduced from Rs. 13,900/- to 12,540/-.

It has been submitted that petitioner preferred an appeal before the appellate authority i.e. the Board of Directors who has passed an order on 7.4.2006 and the order passed by the disciplinary authority has been decided to be affirmed.

Petitioner while assailing the impugned order has taken the following grounds:

(i) The inquiry officer although has found the charge No. 2 proved but charges No. 3,4 and 6 have been found to be partially proved but the disciplinary authority while passing the final order has come to the conclusion that these charges are also found to be proved without assigning reasons contained in the impugned order.

It is the requirement of law that an opportunity should be given to the petitioner for making representation against the difference of opinion by the disciplinary authority so, that delinquent employee would be able to defend himself even in the later stage i.e. after inquiry, but, since it has not been followed by the respondents authority by passing impugned order as such, impugned order is perverse and is in gross violation of principals of natural justice. In this regard learned counsel appearing on behalf of petitioner relied upon judgment rendered in the case of Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, and Yoginath D. Bagde Vs. State of Maharashtra and Another, .

(ii) The punishment imposed upon the petitioner is very harsh in nature. Considering the nature of allegation and also considering the fact that the inquiry officer has only found charge No. 2 to be proved, charges No. 1 and 5 have not been found to be proved and other charges have been found to be partially proved.

(iii) That the petitioner has not been provided sufficient and adequate opportunity to defend himself by not supplying the relevant documents which is also in violation of principals of natural justice.

(iv) That the appellate order is cryptic and without any application of mind because the petitioner has filed a detailed reply before the appellate authority giving entire aspect of the matter inspite of that appellate authority has come to the conclusion that the decision taken by the disciplinary authority will remain intact.

Learned Counsel appearing on behalf of petitioner submits that when there is a provision of appeal provided under the Statute the authority is supposed to pass speaking order by giving specific finding otherwise the said order cannot be said to be the order in accordance with law.

On the other hand learned counsel appearing on behalf of respondents has submitted that the petitioner being an employee of bank holding the post of Branch Manager is supposed to discharge his duty with sincerity protecting the interest of the bank. Considering this aspect of the matter minor punishment has been imposed. Further submission has been made that the petitioner himself has admitted his guilt which has been recorded by the disciplinary authority in the order of punishment hence, the order cannot be challenged by the petitioner.

Heard the parties and on perusal of documents on record it transpires from the inquiry report that Charge No. 2 has been found to be proved, Charges No. 1 and 5 have not been found to be proved. Further Charge No. 3, 4 and 6 have been found to be partially proved.

On perusal of impugned order it appears that disciplinary authority has differed with the findings of the enquiry officer with respect to to Charge Nos. 1,3,4 and 6 and came to the conclusion that these charges are also found to be proved against the petitioner.

Law is settled that the disciplinary authority can accept the finding of the inquiry officer or he has got authority to differ with the finding by assigning reason of difference before passing final order of punishment and by quoting difference of opinion the same must be supplied to the petitioner for giving reply within reasonable period.

It is requirement of law that if the disciplinary authority wants to differ with the finding he should provide an opportunity to the delinquent employee by giving reason of difference of opinion so that the delinquent employee may give his reply by referring the said opinion and thereafter the disciplinary authority may consider it or may not consider it.

From perusal of impugned order it appears that Charge No. 2 was found to be proved but, Charge No. 1, 3, 4 and 6 found to be partially proved but the disciplinary authority while passing punishment order has differed with the enquiry report and thereafter imposed punishment.

In this regard reliance has been placed by counsel appearing on behalf of petitioner on a judgment rendered in Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, wherein at Paragraph No. 17 it has been stated that:

"These observations are clearly in tune with the observations in State of Assam and Another Vs. Bimal Kumar Pandit, quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the inquiry officer had given an adverse findings, as per Karunakar''s case ( 1994 AIR SCW 1050) (Supra) the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the inquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiring officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings what is of ultimate importance is the findings of the disciplinary authority." Learned Senior Counsel appearing on behalf of petitioner also placed reliance upon a judgment rendered in Yoginath D. Bagde Vs. State of Maharashtra and Another, .

In that view of the matter and proposition of law as stated above I find support in the arguments advanced on behalf of petitioner that impugned order is not said to be in accordance with law.

So far as the argument that the order passed by the appellate authority is cryptic and without any application of mind, on perusal of the same it appears that no reason has been assigned by the appellate authority meaning thereby the point which has been raised by the petitioner has not at all been considered and without considering the same the decision has been taken to remain the order of punishment as it is.

The petitioner has been proceeded departmentally under the statutory provision in which the provision of appeal has been made as such, the same ought to have been considered by the appellate authority.

In this regard judicial pronouncement of Hon''ble Apex Court rendered in case of Chairman, LIC of India and Others Vs. A. Masilamani, needs to be referred wherein Hon''ble Apex Court has said word ''consider'' is of great significance. Hon''ble Apex Court further said that formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. Para 19 of this case is quoted hereinbelow:

"19. The word "consider" is of great significance. The dictionary meaning of the same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order. (Vide Indian Oil Corpn. Ltd. V. Santosh Kumar and Bhikhubhai Vithlabhai Patel V. State of Gujarat.)" 18. From perusal of order dated 7.4.2006 it appears that appellate authority has not applied its mind hence, the order cannot be said to be in accordance with law.

Considering the grounds, facts narrated hereinabove, the impugned order cannot be said to be justified as such, order dated 11.7.2005 and 7.4.2006 are hereby quashed.

Matter is remanded to the disciplinary authority to pass an appropriate order on the basis of the findings of the enquiry officer in accordance with law preferably within a period of ten weeks from the date of receipt of copy of this order.

With above observations instant writ petition stands disposed of.