Tapan Kumar Sil vs Bank of India

Amitava Lala, J.—This writ petition is arising out of the show cause notice being reference No. RO: DA: 31 dated June 12, 2000, passed by Chief Regional Manager, Barasat Region and Disciplinary Authority challenging such order, this writ petition was made. According to the Petitioner, the representation as given by the Petitioner has not been considered in conformity with the judgment and order passed by a Division Bench of this Court in earlier occasion. Therefore, I have to look into the relevant part of the judgment and order passed by the said Division Bench as well as appropriate part of the impugned order. I found that the running page 111 internal page 14 of the said judgment delivered in F.M.A. No. 57 of 1997 passed on February 25, 2000 (Tapan Kumar Sil v. Bank of India and Ors.) provides as follows:

Consequently, it is directed that the disciplinary authority shall within two months from the date of communication of this order, if advised, issue an appropriate show cause notice as regards acceptance/non-acceptance of the report of the inquiry officer on the charges which had been held to be disproved by him and upon receipt of such notice the Petitioner shall be afforded reasonable opportunity of submitting his show cause thereto and thereafter a personal hearing should be afforded to him by the disciplinary authority who shall thereafter pass a reasoned speaking order. Based thereon and subject to the findings arrived at by the disciplinary authority, proceedings for second show cause notice and orders thereon may be passed in conformity with principles of natural justice.

Until such orders are passed there shall be status quo as regards the service of the Appellant-writ Petitioner and thereafter the same shall abide by the orders that may be passed by the disciplinary authority.

The Petitioner has made a longish representation. But after stating the facts in paras. 2 and 3, the authority concerned jumped into the conclusion by passing a final order which is available in paras. 4 and 5 to the said impugned order is as follows:

Having considered your representation dated 12.5.2000 on the enquiry findings vis-a-vis materials on Enquiry Record and the findings of Enquiry Officer, the undersigned is of the opinion that the findings dated 6.9.94 of Enquiry Officer are based on the materials on Enquiry Record and, therefore, the undersigned occurs with the said findings of Enquiry Officer that the Charge No. 1 is PROVED and Charge Nos. 2, 3 and 4 are DISPROVED against you.

Considering the gravity of the misconduct proved against you, the undersigned proposes to award you the punishment of "Reduction of your Basic Pay to next lower stage for a period of two years" in terms of Clause 21(v)(c) of the Vlth Bipartite Settlement dated 14.2.1995, for the Charge No. 1 as mentioned in the said Charge Sheet dated 4.8.93 and proved against your in the departmental enquiry.

Therefore, two questions are arising out of the same ; one is as to whether the same can be treated as consideration in conformity of the appeal court''s order and the other is if there is no difference in opinion of the higher authority with the enquiry report in coming to conclusion whether there is any necessity for recording reasons for consideration under the order itself is necessary or not. According to me, the order of the appeal court is to be read with its proper perspective. The material part of the appeal court''s order that "...the Petitioner shall be afforded reasonable opportunity of submitting his show cause notice thereto and thereafter a personal hearing should be afforded to him by the disciplinary authority who shall thereafter pass a reasoned speaking order". According to me, even if the higher authority by passing an order of punishment not in difference with the order of the Enquiring Officer but in view of the observation of the Division Bench of this Court that the higher authority should have given reasons for coming to conclusion. It is well settled principles of law that consideration cannot be bare consideration ; but all opportunities of hearing should be given to consider sympathetically. Consideration postulates that the authority concerned has thought over the matter deliberately and with care and it has been found necessary as a result of such thinking to pass the order. The dictionary meaning of the word ''consider'' is ''to view attentively, to survey, examine, inspect, to look attentively, to contemplate mentally, to think over, mediate on, give heed to, take note of, to think deliberately, be think oneself, to reflect''. At the time of coming to a conclusion, the Learned Counsel appearing for the Respondent stated that no final order has yet been passed. Therefore, this application is premature. Effect is a matter of execution but a person can challenge the order of effect of the order or both. I think that there are certain circumstances when court can intervene on the basis of the prima facie facts and circumstances of the case. It is such type of matter which can be intervened and resolved by final order if I can give an opportunity of consideration by giving reason by the authority concerned.

Under such circumstances, this writ petition stands disposed of with a direction upon the authority concerned to pass a reasoned order in respect of the representation of the Petitioner dated May 12, 2000 on the second show cause notice with a period of four weeks from the date of communication of this order after giving appropriate opportunity of hearing, consideration of representation will be made as it was directed by the Division Bench of this Court. Since a fresh order is to be passed; the order also passed by the authority concerned dated June 12, 2000 stands set aside.

This order of fresh consideration is passed at the suggestion of the parties as it is transpired just as fit, proper and equitable to accommodate the parties to come into an appropriate conclusion in this respect.

All questions as agitated under the representation are kept open.

Since no affidavit has been filed by the Respondents, no allegation is admitted by them.

Thus, this writ petition is disposed of with the above observation.

There will be no order as to costs.

Let urgent Xerox certified copy of this order, if applied for, be given to the learned Advocate for Petitioner as well as the learned Advocate for the Respondents within seven days from the date of filing the requisites.