9911796707
TMI Blog2010 (2) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... aid judgment/order of the High Court. The writ petitioner (hereinafter referred to as the respondent) joined Devi Pattan Kshetria Gramin Bank, Gonda (now Sarva U.P. Gramin Bank) as an officer. He was served with two charge sheets dated 9.11.2000 and 8.3.2001 for various acts of omissions and commissions while working at branches Khorhansa and Maharajganj, Trai district Gonda respectively. He was suspended by Order dated 1.3.2001. Respondent submitted reply to the chargesheet. He denied the charges mentioned therein. Thereafter two separate departmental enquiries were held, in which the respondent fully participated. On 19.5.2001 the Enquiry Officer submitted the enquiry report with regard to chargesheet dated 9.11.2000. Charge No.1 has been split up into Charge 1-A and Charge 1-B respectively. Charge No. 1-A has been held to be proved whereas Charge 1-B has been held to be partially proved. Similarly Charges No.2 to 3 have been split up into two parts each, i.e., Charges 2-A, 2-B; 3-A and 3-B. Here also Charge 2-A has been held to be proved, Charge 2-B is held to be partially proved; Charge 3-A is said to be proved, 3-B is held to be partially proved. In chargesheet dated 8.3.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of learned counsel for the petitioner is that non service of enquiry report is violative of principles of natural justice in view of judgment of Hon'ble Supreme Court in the case, reported in JT 1990 (4) SC 456 Union of India v. Mohammad Ramzan Khan service of show cause notice is a part and parcel of proceedings. It is settled law passed in Ramzan Khan case (supra). Accordingly, the impugned order seems to be substantially illegal. The appeal preferred by the petitioner against the order of punishment, was also dismissed by an order dated 9.9.2002 (Annexure-6). In view of the settled proposition of law, the writ petition deserves and is hereby allowed. A writ in the nature of certiorari is issued quashing the impugned orders dated 3.4.2002 (Annexure-4), 3.4.2002 (Annexure-5) and 9.9.2002 (Annexure-6) with consequential benefits. However, liberty is given to the respondents to serve fresh show cause notice alongwith copy of the enquiry report forthwith by giving reasonable time to the petitioner to submit the response and thereafter pass fresh orders in accordance with law. The Bank has questioned the legality of the aforesaid judgment of the High court on a number of grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent was found guilty of charges of fraud and misappropriation. In normal course in such cases punishment of dismissal from service would be imposed. The Board has, however, imposed a much lesser punishment. Therefore, the writ petition ought to have been dismissed by the High Court. Learned counsel relied on judgments of this Court in ECIL v. B. Karunakar [JT 1993 (6) SC 1 : 1993 (4) SCC 727]; and in Haryana Financial Corp. and Anr. v. Kailash Chandra Ahuja [JT 2008 (8) SC 70 : 2008 (9) SCC 31]. According to the learned counsel even if copy of the enquiry report is not given, it was necessary for the High Court to record a finding as to what prejudice had been caused to the respondent. Mere non- supply of the Enquiry Report would not justify quashing of the entire disciplinary proceedings. The writ petition is completely silent as to what prejudice has been caused to the respondent. The respondent did not raise the issue at the personal hearings. He only mentioned it in the memorandums of appeal. Even then he did not specify as to what prejudice, has been caused to him. Therefore, the High Court has passed a wholly erroneous order contrary to the law laid down by this Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport. Since the Enquiry Officer and the disciplinary authority had concluded that some of the charges have been partially proved and others completely proved it was necessary to supply the findings of the enquiry reports. Only on knowing the reasoning of the Enquiry Officer, could the respondent give an effective explanation. It is further pointed out that with regard to the charges relating to Maharajganj, the entire amount has been recovered. This fact is noticed by the disciplinary authority. But quite illegally, it still proceeded to impose punishment, on the ground of proved misconduct. Since the disciplinary authority arrived at the decision on the basis of charges which were partially/completely proved it was not possible to defend, during personal hearings. According to the respondent, this was stated by him at the personal hearing, but it was ignored. In fact the disciplinary authority was adamant to punish the respondent. All these issues could have been highlighted if the High Court had decided the writ petition on merits. Therefore, matter needs to be remanded back to the High Court for a decision on merits, on all the issues raised by the respondent. In our opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llows: In the charge sheet dated 9.11.2000 all out efforts were made by me to remove the deficiencies mentioned in the charge- sheet dated 9.11.2000. Efforts were made for the recovery also. I request to you that in the accounts FDR and in the Savings accounts, where money is there, those may be adjusted in the loan accounts. By me, efforts shall be made in future also for recovery in the accounts. You are requested that in case in future, accounts are regularized, then kindly reconsider on the proposed penalty. Pursuant to the aforesaid request of the respondent, the Chairman discussed the matters with the Branch Manager, Khorhansa over the telephone. The Branch Manager, however, informed that the amount could not be adjusted as the self accounts of the debtors not being there; that of the relation, husband, wife etc. about which order was given to them for furnishing the written details. 20.1 In future not merely in the regularization of account-rather the interest of the bank may be completely safe, or complete recovery be made, on this item also in today's date no assurance can be given. The personal hearing concludes with the following remark. 20.2. Duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and again. After concluding the appeal on merits respondent also highlighted the following facts: Report of Enquiry Officer has not been given and, therefore, I have not got the opportunity to state everything during the course of my personal hearing. No witness has been produced during the course of enquiry proceedings. Presenting Officer has stated so many things without any documentary evidence. Entire amount with interest has been deposited before the date of suspension. Any sort of financial or social loss has not been suffered by the Bank nor it going to occur in future. I have given my full cooperation in the enquiry proceedings. Date of my personal hearing was fixed for 10.08.2001 vide letter dated 04.08.2001, but Disciplinary Authority without any strong reason while showing only unavoidable circumstances, postponed the date fixed for my personal hearing and it was fixed for 01.04.2002 vide letter dated 23.03.2002 which led to extension of my suspension period and I suffered mental and financial hardships. In the appeal against the Order dated 3.4.2002 relating to chargesheet 9.11.2000, the respondent again stated as follows: The punishment has been given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t does not state as to what prejudice was caused by the non-supply of the enquiry report. He also did not seek any adjournment of the personal hearing on the ground that he be supplied the enquiry report. It appears that without taking into consideration the aforesaid facts and circumstances and without scrutinizing the counter affidavit filed by the petitioner Bank, the High Court accepted that non-supply of the enquiry report has rendered the orders of punishment dated 3.4.2002 and the orders and appeal non-est and void. The plea of the respondent before the High Court that no proceedings had taken place in the enquiry is clearly false which is belied by the contents of the enquiry report. At the time when the plea was raised before the High Court that the impugned orders are vitiated on account of the non- supply of enquiry report, it would have been appropriate for the High Court to examine the averments made in the writ petition. A perusal of the writ petition would show that the petitioner has failed to lay any foundation to establish that any prejudice has been caused by the non-supply of the enquiry report, in the case of ECIL (supra) a constitution bench of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as taken a view contrary to the view expressed in E. Bashyan case by a Bench of two learned Judges or to the view taken by three learned Judges in Union of India v. Mohd. Ramzan Khan. 19. In Mohd. Ramzan Khan case the question squarely fell for consideration before a Bench of three learned Judges of this Court, viz., that although on account of the Forty-second Amendment of the Constitution, It was no longer necessary to Issue a notice to the delinquent employee to show cause against the punishment proposed and, therefore, to furnish a copy of the enquiry officer's report along with the notice to make representation against the penalty, whether it was still necessary to furnish a copy of the report to him to enable him to make representation against the findings recorded against him in the report before the disciplinary authority took its own decision with regard to the guilt or otherwise of the employee by taking into consideration the said report. The Court held that whenever the enquiry officer is other than the disciplinary authority and the report of the enquiry officer holds the employee guilty of all or any of the charges with proposal for any punishment or not, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice. 21. In Chairman, Board of Mining Examination v. Ramjee the Court has observed that natural justice is not an unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures. 23. What emerges from the above survey of the law on the subject is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of his right to represent against the findings of guilt as well. The error occurred on account of the failure to distinguish the two rights which were independent of each other. The aforesaid ratio of law has been reiterated by this Court in Haryana Financial Corp. and Anr. (supra). This court again critically examined the entire issue and observed as follows: 21. From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a number of judgments in which the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant. Ultimately, it is concluded as follows: 44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show prejudice . Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down. We have examined the factual situation in this case elaborately to see as to whether any prejudice has been caused to the respondent. We are unable to accept the submissions of the learned counsel for the respondent that any prejudice has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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