After service of charge sheet, petitioner submitted his
reply
Process of Dismissal from Service: Court observed that
‘holding of an inquiry being mandatory requirement of a disciplinary inquiry’
in case where charges are refuted.
- Neither Inquiry Officer fixed any date of oral inquiry nor
any inquiry was held
- Mandatory requirement i.e. holding of inquiry when charges
are refuted, breached
- Dismissal quashed.
In the present case, the order passed by the Division Bench
of High Court in writ petition was in challenge through appeal.
In the facts of the case, appellant- bank is a district co-
operative Bank registered under the U. P. Co- Operative Society Act, 1965.
Respondent no. 1- employee was working as a Branch manager
in the said Bank.
In the year 1992 a charge- sheet was issued to the employee
booking him for 19 charges, and asked the respondent no. 1 to file reply in a
month period on the allegations that he made payments to the bearers of cheques
without its prior collection and made payment to the bearer of the cheques,
causing loss to the Bank.
And also he was alleged that he did not brought actions
against the concerned persons which resulted in serious irregularities on his
part.
Also, charges of issuing overdrafts/ loans against by him
against the provisions of the Act of 1965, were levelled against him.
However, Respondent- employee denied allegations and then
after conducting of the enquiry, the reports of the Inquiry Officer considered
and employee was placed under suspension.
Moreover, later the employee was dismissed.
The employee thereafter filed a writ petition and sought the
quashing of the order of his dismissal and also claimed his reinstatement in
service with full wages and salary.
He claimed that no enquiry have been held as per provisions
provided under the statutory regulations.
Thus, Division bench of the High Court quashed the dismissal
order, holding that there was no required enquiry done for passing dismissal
order.
As such, now this bench observed that the U. P. Co-
Operative Societies Employees Service Regulations, 1975 were framed under the
Act of 1965 and these regulations are applicable with regard to the conduct of
Disciplinary enquiry against the respondent no. 1.
This bench decided that after service of charge sheet (1993)
although the petitioners submitted his reply, but Inquiry officer did not fix
any date of oral inquiry and no inquiry was held.
Holding of an inquiry is mandatory requirement of a
disciplinary inquiry, when the charges are refuted and serving the inquiry
report to delinquent, and it was breached.
Also, the Regulation 85 (i)(b) had been violated for not
giving opportunity to employee.
Thus, the bench held that the High Court has rightly quashed
the dismissal order giving liberty to bank to hold de- novo inquiry within six
months period.
Moreover, as the petitioner- respondent no.1 is held up be
under suspension, he shall be paid suspension allowance as per rules.
Thus, bench decided as appeal dismissed.
_____________________________________________
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2265 OF 2011
CHAMOLI DISTRICT CO-OPERATIVE BANK LTD.
THROUGH ITS SECRETARY/MAHAPRANDHAK & ANR. APPELLANT(S)
VERSUS
RAGHUNATH SINGH RANA & ORS. RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
1. This appeal has been filed against the order dated
01.12.2010 of the Division Bench of the High Court of Uttrakhand by which
judgment, the writ petition filed by the respondent – Raghunath Singh Rana has
been disposed of after quashing the dismissal order dated 01.02.2002. Aggrieved
by the judgment, the Chamoli District Co-operative Ltd., is in appeal before
this Court. The short facts necessary for deciding this appeal are: the Chamoli
District Co-operative Bank Ltd. (hereinafter referred to as ‘the appellant/
Bank’) is a District Co-operative Bank registered under the U.P. Co-operative
Societies Act, 1965 (hereinafter referred to as ‘the Act’). The Raghunath Singh
Rana, respondent No.1 (hereinafter referred to as ‘the employee/Respondent
No.1’) at the relevant time, was working as a Branch Manager at Ghat Branch of
the Chamoli District. A charge
Page 2
2
sheet dated 03.07.1992 was issued to the employee leveling
19 charges against him. The employee/respondent No.1 was asked to reply upto
3rd August, 1992. There was allegation against the employee/respondent No.1
that he made payments to the bearers of cheques without its prior collection
and made payment to the bearer of the cheque, causing loss to the
appellant/Bank. Further charges were that he had not taken any action against
the persons concerned and had thus committed serious irregularities. Another
set of charges were imputation that the respondent–employee has issued
overdrafts/loans against the provision of the Act.
2. The employee/respondent No.1 submitted a reply on
31.07.1992 denying the allegations. On 05.8.1992, an Inquiry Officer was
appointed to conduct the inquiry. The Inquiry Officer also submitted a report
on 21.09.1992. The employee/respondent No.1 was placed under suspension by
order dated 21.10.1992. No further steps were taken on the inquiry report dated
21.09.1992.
However, a fresh charge sheet containing the charges which
were levelled in the charge sheet dated 03.07.1992 as well as six additional
charges was issued on 16.01.1993. The employee/respondent No.1 submitted a
reply dated 04.02.1993 to the charge sheet denying the allegations. After
submission of the reply by the employee/respondent No.1, a show-cause notice
was issued to the petitioner by the District Co-operative Bank Ltd. dated
04.05.1993 asking the employee/respondent No.1 to submit a reply, failing which
action under Regulation 84 of the U.P. Co-operative Societies Employees Service
Regulations Act, 1975
Page 3
3
was to be taken. The Disciplinary Authority passed a
Resolution dated 11.07.2000 that charges against the employee/respondent No.1
have been proved and further action to be taken. The Disciplinary Authority
passed an order on 01.02.2002, dismissing the employee/respondent No.1 with
immediate effect. Aggrieved by dismissal order, writ petition was filed by the
employee-respondent No.1 praying for quashing the order dated 01.02.2002 with
further prayer that employee/respondent No.1 be reinstated in service with full
back wages and salary.
3. The employee/respondent No.1's case in the writ petition
was that after receipt of the charge sheet dated 18.01.1993, reply was
submitted by the employee but without holding an inquiry, the Disciplinary
Authority took a decision to dismiss the petition. No Inquiry have been held as
provided by statutory regulations, hence, the entire proceedings are liable to
be set aside.
4. The appellant-Bank filed a counter affidavit in the writ
petition. In the counter affidavit no inquiry report subsequent to charge sheet
dated 18.01.1993 was referred to.
5. The Division Bench of the High Court heard the matter and
vide judgment dated 01.12.2010 quashed the dismissal order. The Division Bench
took the view that dismissal orders have been passed without holding an inquiry
which deserves to be set aside.
Page 4
4
6. Learned senior counsel appearing for the appellant-Bank
contends that Inquiry Officer had issued a letter dated 11.09.1992 to the
employee/respondent No.1 asking the employee/respondent No.1 to appear on
18.09.1992 at 10.00 AM, but employee/respondent No.1 failed to appear in the
inquiry, hence, the view of the High court that no inquiry was held is not
correct. He further submits that inquiry report dated 21.09.1992 was submitted
by the Inquiry Officer which has been brought on record as Annexure P3. Learned
counsel for the appellant-Bank further submits that there were serious
allegations against the employee/ respondent No.1 on the basis of which the
employee/ respondent No.1 was dismissed from service.
7. It is further contended that First Information Reports
have been lodged against the employee/respondent No.1 and criminal cases are
pending.
8. We have considered the submissions and perused the
record.
9. The statutory regulations have been framed under the Act,
namely, U.P. Co-operative Societies Employees Service Regulations, 1975, which
regulations are applicable with regard to the conduct of Disciplinary enquiry
against the employee/respondent No.1 and where governing the field at the
relevant time. Regulation 84, Chapter-VII of the Regulation deals
Page 5
5
with Penalties, Regulation 85 deals with Disciplinary
proceedings, and Regulation 86 deals with Appeal. Regulation 85 which deals
with Disciplinary proceedings, is as follows:-
“85. Disciplinary Proceedings.-
(i) The disciplinary proceedings against an employee shall
be conducted by the Inquiring Officer (referred to in clause (iv) below) with
due observance of the principles of natural justice for which it shall be
necessary -
(a) The employee shall be served with a charge-sheet
containing specific charges and mention of evidence in support of each charge
and he shall be required to submit explanation in respect of the charges within
reasonable time which shall not be less than fifteen days;
(b) Such an employee shall also be given an opportunity to
produce at his own cost or to cross-examine witnesses in his defence and shall
also be given an opportunity of being heard in-person, if he so desires;
(c) If no explanation in respect of charge sheet is received
or the explanation submitted is unsatisfactory, the competent authority may
award him appropriate punishment considered necessary.
(ii)(a) Where an employee is dismissed or removed from
service on the ground of conduct which has led to his conviction on a criminal
charge; or
(b) Where the employee has absconded and his whereabouts are
not known to the society for more
than three months; or
(c) Where the employee refuses or fails without sufficient
cause to appear before the Inquiring Officer when specifically called upon in
writing to appear; or
(d) Where it is otherwise (for reasons to be recorded) not
possible to communicate with him, the competent authority may award appropriate
punishment without taking or continuing disciplinary proceedings.
(iii) Disciplinary proceedings shall be taken by the society
against the employee on a report made to this
Page 6
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effect by the inspecting authority or an officer of the
society under whose control the employee is working.
(iv) The inquiring officer shall be appointed by the
appointing authority or by an officer of the society authorised for the purpose
by the appointing authority:
Provided that the officer at whose instance disciplinary
action was started shall not be appointed as an inquiring officer nor shall the
inquiring officer be the appellate authority. ….......”
10. From the facts, as noted above, it is clear that charge
sheet dated 03.07.1992 was issued to the employee/respondent No.1
to which he submitted a reply on 31.07.1992. Inquiry report
dated 21.09.1992 was issued and submitted. However, without proceeding any
further on the basis of the inquiry report dated 21.09.1992, a fresh charge
sheet dated 18.01.1993 was issued to the employee/respondent No.1 containing 24
charges. The employee/respondent No.1 was asked to submit a reply within 15
days. Reply to the subsequent charge sheet was again filed by the
employee/respondent No.1 on 04.02.1993. The second charge sheet having been
issued on 18.01.1993 which included all the charges which were contained in the
earlier charge sheet, the earlier proceedings consequent to charge sheet dated
03.07.1992 stood abandoned. The appellant-Bank decided to proceed with the
Disciplinary Inquiry on the basis of charge sheet dated 18.01.1993. After
18.01.1993 charge sheet reply was submitted by the employee/respondent No.1 on
04.02.1993 but there is no material on the record brought by the appellant-Bank
indicating that any inquiry proceedings were conducted.
Page 7
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11. It is relevant to note that in the writ petition filed
by the employee/respondent No.1, specific averments were made that disciplinary
proceedings against him were conducted in violation of principles of natural
justice and against the procedure prescribed in Regulation 85, which averments
were made in paragraphs 19 and 25 of the writ petition, to the following
effect:-
“19. That since the whole of the procedure adopted in
conducting of the disciplinary proceeding is against the principle of natural
justice and procedure mention in regulation 85, In fact, no inquiry worth to
name has been conducted by the respondents. The so called inquiry was a mere
eye-wash. It is a farce and fraud played on the statutory rights of the
petitioner.”
25. That the disciplinary proceeding held against the
petitioner was not conducted in accordance with the provisions of natural
justice and procedure prescribed under the Regulations of 1975. Serious
objections were raised by the petitioner through his replies dated 31.07.1993,
04.02.1993 and 21.03.1993 but no heed was given to the objections raised by the
petitioner. Once the charge sheet has been issued to the petitioner, second
charge sheet cannot be sent by the Inquiry Officer in the same disciplinary
proceeding. But this objections was also not considered by the Inquiry Officer
or disciplinary authority. After the reply dated 04.02.1993 to the charge-sheet
dated 18.01.1993, no inquiry was held by the Inquiry Officer. Instead of
holding the inquiry in accordance with the provisions, the disciplinary
authority sent the letter dated 04.05.1993 saying that the charges were proved
against the petitioner. Between 18.01.1993 to 04.05.1993 no inquiry was held
and the petitioner was never called upon to cross examine the witnesses. No
records or
documents which the petitioner has requested to inspect were
summon or made available to the petitioner. Even these documents were not
available to the petitioner.
Even those documents were not inspected or considered by the
disciplinary authority and inquiry officer. The way the Disciplinary Proceeding
were conducted it cost serious doubt and aspersion against the respondents. It
Page 8
8
appears that before the conduct of the inquiry the
respondents made up their mind to get rid of the
petitioner and for that reason they have conducted the
inquiry in such a perfunctory manner, which is not known to services
jurisprudence.”
12. In the counter affidavit, the averments made in
paragraph 19 and 25 were replied by the appellant-Bank in paragraph 18 and 24,
which are to the following effect:-
“18. That in reply to the contents of para nos.18 & 19
of the writ petition it is submitted that the grounds on which the charges
issued were found proved was supplied to the petitioner vide letter no.251-52 annexure
no.7 to the writ petition, instead of a copy of the enquiry report. The letter
of charges serves the purpose of an enquiry report. That it is incorrect to say
that no reasonable opportunity was given to the petitioner by the Inquiry
Officer a letter dated 6-1-93 Annexure No.5 to the writ petition was sent to
the petitioner to know whether he wanted to be cross-examined by his witnesses,
but the petitioner did not want any such opportunity.
Further, the petitioner was directed to appear before the committee
of management in person, but he did not appear at all. Another opportunity was
given as per resolution no.14 dated 25.11.1993 which was also not available by
him. Petitioner was again given an opportunity to appear before the committee
on 3-8-2000 Annexure No.10 to the writ petition to explain his case personally,
but he did not appear. It is therefore, totally false to say that no
opportunity of being heard was given to the petitioner. Copy of the resolution
no.14 dated 25.11.1993 is annexed herewith and is marked as
Annexure No. CA.5 to this counter affidavit.”
24. That the contents of para nos.25, 26, 27 & 28 of the
writ petition are denied. It is incorrect to say that the second charge sheet
dated 18-1-93 was sent in the same disciplinary proceedings as a matter of fact
this was the first and the only chargesheet issued.
Disciplinary proceedings were initiated on 21.10.92 and,
therefore, charge sheet was issued to the petitioner on 18.1.93 to which reply
was submitted by the petitioner on 4.2.93. It is wrong to allege that records
were not made available to the petitioner as the petitioner did not want to
refer to any record and he did not make any request even during the course of
the cross examination
Page 9
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of the witness. It is further incorrect to state that
opportunity was not given to the petitioner. That the answering respondent is
justified a dismissing the services of the petitioner as heavy loss of
Rs.35,00,000/- approximately was caused to the bank, exceeding all his powers
and overlooking all the norms laid down by the bank in making unsecured
advances to various customers/parties. Therefore, the order of the respondents
dismissing the services of the petitioner is lawful and in the interest of
justice and the writ petition of the petitioner is liable to be dismissed on
this ground alone.”
13. As noted above, learned counsel for the appellant/Bank
has referred to the letter issued by the Inquiry Officer dated 11.09.1992,
calling the employee/respondent No.1 to appear before the Inquiry Officer on
18.09.1992. The inquiry report dated 21.09.1992 mentioned that the
employee/respondent No.1 did not appear, hence the inquiry report was
submitted. The letter dated 11.09.1992 and the inquiry report dated 21.09.1992
looses all its importance when the bank decided to issue a fresh charge sheet
on
18.11.1993 which includes all earlier charges. The
petitioner submitted a reply on 04.02.1993 but thereafter no inquiry proceeding
seems to have taken place. The employee/respondent No.1 made a specific complaint
that inquiry proceeding has not been held and there is violation of Regulation
85. No specific reply have been made, by the appellant/bank referring to any
inquiry proceeding before the Inquiry Officer or the date of any inquiry.
14. As noted above, Regulation 85 is a statutory Regulation
according to which an opportunity to the employee to produce at his own cost or
to cross-examine witnesses in his defence and
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10
shall also be given an opportunity of being heard in person,
if he so desires. Regulation 85 (i)(b) is specifically mandates the said
requirements.
15. From the pleadings and the materials on record, it is
clear that no inquiry was conducted by the appellant/Bank in conformity with
Regulation 85 (i)(b) after issuance of charge sheet dated 16.01.1993. The High
Court has set aside the dismissal order after coming to the conclusion that
without holding an inquiry the employee/respondent No.1 has been dismissed. No
materials have been brought in the appeal to indicate that any inquiry was
conducted or inquiry report was submitted subsequent to the charge sheet dated
16.01.1993.
16. Learned counsel for the appellant/Bank has submitted
that in the Resolution passed by the Disciplinary Authority that inquiry report
has been mentioned.
17. Imposing of any penalty on an employee of the bank that
too major penalty of dismissal from service can only be done after following
the statutory provisions governing the disciplinary proceedings.
18. It is also relevant to note that after submission of
reply dated 04.02.1993, Disciplinary Authority issued a show-cause notice on
04.05.1993 asking the employee/respondent No.1 to submit his reply. When the
Inquiry Officer was appointed,
Page 11
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conducting of the inquiry was mandatory and without
conducting of an inquiry and without any inquiry report having been served on
the employee/respondent No.1, Disciplinary Authority could not have proceeded
to impose any punishment. The compliance of principles of natural justice by
the appellant-Bank is not a mere formality, more so when the statutory
provisions specifically provides that disciplinary proceedings shall be
conducted with due observations of the principles of natural justice.
19. The compliance of natural justice in
domestic/disciplinary inquiry is necessary has long been established. This
Court has held that even there are no specific statutory rule requiring
observance of natural justice, the compliance of natural justice is necessary.
Certain ingredients have been held to be constituting integral part of holding
of an inquiry. The Apex Court in Sur Enamel and Stamping Works Pvt. Ltd. v.
Their Workmen reported in (1964) 3 SCR 616 has laid down following:-
“... An enquiry cannot be said to have been properly held
unless,
(i) the employee proceeded against has been
informed clearly of the charges levelled against him,
(ii) the witnesses are examined – ordinarily in the presence
of the employee – in respect of the charges,
(iii) the employee is given a fair opportunity to
cross-examine witnesses,
(iv) he is given a fair opportunity to examine witnesses
including himself in his defence if he so wishes on any relevant matter, and
(v) the inquiry officer records his findings with reasons
for the same in his report.”
20. The Apex Court again in State Bank of India Vs. R.K.
Jain and Ors., reported in (1972) 4 SCC 304 held that if an inquiry is
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vitiated by violation of principles of natural justice or if
no reasonable opportunity was provided to the delinquent to place his defence,
it cannot be characterized as a proper domestic inquiry held in accordance with
the rules of natural justice. In paragraph 23, the following was laid down:-
“......As emphasised by this Court in Ananda Bazar Patrika
(P) Ltd. v. Its Workmen, (1964) 3 SCR 601, the
termination of an employee's service must be preceded by a
proper domestic inquiry held in accordance with the rules of natural justice.
Therefore, it is evident that if the inquiry is vitiated by violation of the
principles of natural justice or if no reasonable opportunity was provided to a
delinquent to place his defence, it cannot be characterized as a proper
domestic inquiry held in accordance with the rules of natural justice......”
21. The Apex Court in State of Uttranchal & Ors. Vs.
Kharak Singh reported in (2008) 8 SCC 236 had occasion to examine various
contours of natural justice which need to be specified in a departmental
inquiry. The Apex Court noticed earlier judgments where principles were laid
down as to how inquiry is to be conducted. It is useful to refer paragraphs 9,
10, 11, 12, 13 and 15, which are to the following effect:-
“…..9. Before analyzing the correctness of the above
submissions, it is useful to refer various principles laid down by this Court
as to how enquiry is to be conducted and which procedures are to be followed.
10. The following observations and principles laid down by
this Court in Associated Cement Co. Ltd. vs. The Workmen and Anr. [1964] 3 SCR
652 are relevant:
"... ... In the present case, the first serious
infirmity from which the enquiry suffers proceeds from the fact that the three
enquiry officers claimed that they themselves had witnessed the alleged
misconduct of Malak Ram. Mr. Kolah contends that if the Manager and the other
officers saw Malak Ram committing the act of misconduct, that itself would not
disqualify them from holding the
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domestic enquiry. We are not prepared to accept this
argument. If an officer himself sees the misconduct of a workman, it is
desirable that the enquiry should be left to be held by some other person who
does not claim to be an eye- witness of the impugned incident. As we have
repeatedly emphasised, domestic enquiries must be conducted honestly and bona fide
with a view to determine whether the charge framed against a particular
employee is proved or not, and so, care must be taken to see that these
enquiries do not become empty formalities. If an officer claims that he had
himself seen the misconduct alleged against an employee, in fairness steps
should be taken to see that the task of holding an enquiry is assigned to some
other officer. How the knowledge claimed by the enquiry officer can vitiate the
entire proceedings of the enquiry is illustrated by the present enquiry itself.
... .....
..... It is necessary to emphasise that in domestic
enquiries, the employer should take steps first to lead evidence against the
workman charged, give an opportunity to the workman to cross-examine the said
evidence and then should the workman be asked whether he wants to give any
explanation about the evidence led against him. It seems to us that it is not
fair in domestic enquiries against industrial employees that at the very
commencement of the enquiry, the employee should be closely cross-examined even
before any other evidence is led against him. In dealing with domestic
enquiries held in such industrial matters, we cannot overlook the fact that in
a large majority of cases, employees are likely to be ignorant, and so, it is
necessary not to expose them to the risk of cross-examination in the manner
adopted in the present enquiry proceedings. Therefore, we are satisfied that
Mr. Sule is right in contending that the course adopted in the present enquiry
proceedings by which Malak Ram was elaborately cross-examined at the outset
constitutes another infirmity in this enquiry."
11) In ECIL v. B. Karunakar (1993) 4 SCC 727, it was held:
"(1) Where the enquiry officer is other than the
disciplinary authority, the disciplinary proceedings break into two stages. The
first stage ends when the disciplinary authority arrives at its conclusions on
the basis of the evidence, enquiry officer's report
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and the delinquent employee's reply to it. The second stage
begins when the disciplinary authority decides to impose penalty on the basis
of its conclusions. If the disciplinary authority decides to drop the
disciplinary proceedings, the second stage is not even reached.
While the right to represent against the findings in the report
is part of the reasonable opportunity available during the first stage of the
inquiry viz., before the disciplinary authority takes into consideration the
findings in the report, the right to show cause against the penalty proposed
belongs to the second stage when the disciplinary authority has considered the
findings in the report and has come to the conclusion with regard to the guilt
of the employee and proposes to award penalty on the basis of its conclusions.
The first right is the right to prove innocence. The second right is to plead
for either no penalty or a lesser penalty although the conclusion regarding the
guilt is accepted. It is the second right exercisable at the second stage which
was taken away by the Forty-second Amendment. The second stage consists of the
issuance of the notice to show cause against the proposed penalty and of
considering the reply to the notice and deciding upon the penalty. What is
dispensed with is the opportunity of making representation on the penalty
proposed and not of opportunity of making representation on the report of the
enquiry officer. The latter right was always there. But before the Forty-second
Amendment of the Constitution, the point of time at which it was to be
exercised had stood deferred till the second stage viz., the stage of
considering the penalty.
Till that time, the conclusions that the disciplinary
authority might have arrived at both with regard to the guilt of the employee
and the penalty to be imposed were only tentative. All that has happened after
the Forty-second Amendment of the Constitution is to advance the point of time
at which the representation of the employee against the enquiry officer's
report would be considered. Now, the disciplinary authority has to consider the
representation of the employee against the report before it arrives at its
conclusion with regard to his guilt or innocence in respect of the charges.
* * *
Article 311(2) says that the employee shall be given a
"reasonable opportunity of being heard in respect
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of the charges against him". The findings on the
charges given by a third person like the enquiry officer, particularly when
they are not borne out by the evidence or are arrived at by overlooking the
evidence or misconstruing it, could themselves constitute new unwarranted
imputations. The proviso to Article 311(2) in effect accepts two successive
stages of differing scope. Since the penalty is to be proposed after the
inquiry, which inquiry in effect is to be carried out by the disciplinary authority
(the enquiry officer being only his delegate appointed to hold the inquiry and
to assist him), the employee's reply to the enquiry officer's report and
consideration of such reply by the disciplinary authority also constitute an
integral part of such inquiry.
Hence, when the enquiry officer is not the disciplinary
authority, the delinquent employee has a right to receive a copy of the enquiry
officer's report before the disciplinary authority arrives at its conclusions
with regard to the guilt or innocence of the employee with regard to the
charges levelled against him. That right is a part of the employee's right to
defend himself against the charges levelled against him. A denial of the
enquiry officer's report before the disciplinary authority takes its decision
on the charges, is a denial of reasonable opportunity to the employee to prove
his innocence and is a breach of the principles of natural justice.”
12) In Radhey Shyam Gupta vs. U.P. State 1Agro Industries
Corporation Ltd. and Another, (1999) 2 SCC 2, it was held:
"34. But in cases where the termination is preceded by
an enquiry and evidence is received and findings as to misconduct of a
definitive nature are arrived at behind the back of the officer and where on
the basis of such a report, the termination order is issued, such an order will
be violative of the principles of natural justice inasmuch as the purpose of
the enquiry is to find out the truth of the allegations with a view to punish
him and not merely to gather evidence for a future regular departmental
enquiry. In such cases, the termination is to be treated as based or founded
upon misconduct and will be punitive. These are obviously not cases where the
employer feels that there is a mere cloud against the employee's conduct but
are cases where the employer has virtually accepted the definitive and clear
findings of the enquiry officer, which are all arrived at behind the back of
the employee -- even though such acceptance
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of findings is not recorded in the order of termination.
That is why the misconduct is the foundation and not merely
the motive in such cases."
13) In Syndicate Bank and Others vs. Venkatesh Gururao
Kurati, (2006) 3 SCC 150, the following conclusion is relevant:
"18. In our view, non-supply of documents on which the
enquiry officer does not rely during the course of enquiry does not create any
prejudice to the delinquent.
It is only those documents, which are relied upon by the
enquiry officer to arrive at his conclusion, the non-supply of which would
cause prejudice, being violative of principles of natural justice. Even then,
the non-supply of those documents prejudice the case of the delinquent officer
must be established by the delinquent officer. It is well-settled law that the
doctrine of principles of natural justice are not embodied rules. It cannot be
put in a straitjacket formula. It depends upon the facts and circumstances of
each case. To sustain the allegation of violation of principles of natural
justice, one must establish that prejudice has been caused to him for
non-observance of principles of natural justice."
15. From the above decisions, the following principles would
emerge:
i) The enquiries must be conducted bona fide and care must
be taken to see that the enquiries do not become empty formalities.
ii) If an officer is a witness to any of the incidents which
is the subject matter of the enquiry or if the enquiry was initiated on a
report of an officer, then in all fairness he should not be the Enquiry
Officer. If the said position becomes known after the appointment of the
Enquiry Officer, during the enquiry, steps should be taken to see that the task
of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take
steps first to lead evidence against the workman/delinquent charged and give an
opportunity to him to cross-examine the witnesses of the employer. Only
thereafter, the workman/delinquent be asked whether he wants to lead any
evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding
further, it is incumbent on the
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part of the disciplinary/punishing authority to supply a
copy of the enquiry report and all connected
materials relied on by the enquiry officer to enable him to
offer his views, if any.”
22. From the proposition of law, as enunciated by Apex Court
as noted above, and the facts of the present case, we arrive at the following
conclusions:-
(a) After service of charge sheet dated 16.01.1993 although
the petitioners submitted his reply on 04.02.1993 but neither Inquiry Officer
fixed any date of oral inquiry nor any inquiry was held by the Inquiry Officer.
(b) Mandatory requirement of a disciplinary inquiry i.e. is
holding of an inquiry when the charges are refuted and serving the inquiry
report to the delinquent has been breached in the present case.
(c) The employee/respondent No.1 having not been given
opportunity to produce his witnesses in his defence and having not been given
an opportunity of being heard in person, the statutory provisions as enshrined
in Regulation 85 (i)(b), have been violated.
(d) The Disciplinary Authority issued show case notice dated
04.05.1993 to the employee/respondent No.1 without holding of an inquiry and
subsequent resolution by Disciplinary Authority taken
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in the year 2000 without their being any further steps is clearly
unsustainable. The High Court has rightly quashed the dismissal order by giving
liberty to the bank to hold de-novo inquiry within a period of six months, if
it so desires.
(e) The bank shall be at liberty to proceed with the
Disciplinary Inquiry as per directions of the High Court in paragraph (1) of
the judgment. The High Court has already held that petitioner shall be deemed
to be under suspension and shall be paid suspension allowance in accordance
with rules.
23. In view of the foregoing discussion and our
conclusion,as noted above, we do not find any merit in this appeal.
In the result, the appeal is dismissed.
....................J.
(ABHAY MANOHAR SAPRE)
....................J.
(ASHOK BHUSHAN)
MAY 17, 2016
NEW DELHI
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