THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
WRIT PETITION No.22771 of 2021
ORDER:
This writ petition is filed seeking the following relief: "..to issue a Writ, order or direction, more in the nature of Mandamus, declaring the orders issued by the 1st respondent in Ref.Rc.No.825/Estt./F.No.185/2020-21 dt. 30.08.2021 and Rc.No.534/Estt./F.No.185/2020-21 dt. 07.08.2020 as illegal, arbitrary and in utter violation of Article 14, 21 and 311 of the Constitution and contrary to the law laid down by the Supreme Court reported in 1993 (4) SCC 727 and 2010 (13) SCC 427 and consequentially declare that the respondent cannot proceed further in pursuance to the Charge Memo and Show Cause Notice for imposing any major penalty in the interests of justice and to pass such other order or orders as this Hon'ble High Court may deem fit and proper in the circumstances of the case."
2. Heard Sri P.V. Ramana, counsel for the petitioner, Sri P. Srinivas, Standing Counsel for the 1st respondent Bank, and the Government Pleader appearing for the 2nd respondent.
3. It has been contended by the petitioner that he is working as the Assistant General Manager and he has been discharging his duties to the best satisfaction of his superiors and everyone concerned. The petitioner had contended that the 1st respondent had initiated disciplinary proceedings against him and placed him under suspension vide proceedings dated 20.03.2020 on the alleged ground of certain irregularities said to have been committed by him, more importantly in sanctioning loans to the customers. Thereafter, the disciplinary authority had issued a charge memo dated 07.08.2020 against the 2 AKS,J W.P.No.22771 of 2021 petitioner. In all, 18 articles of charges were framed against the petitioner. The petitioner has submitted a detailed explanation on 27.10.2020 denying the charges framed against him. Having not satisfied with the explanation submitted by the petitioner, the disciplinary authority had ordered for regular departmental enquiry and the Enquiry Officer has conducted a detailed enquiry and submitted a report on 05.08.2021. The petitioner had contended that the disciplinary authority has strangely issued a show cause notice dated 30.08.2021 as to why the findings of the Enquiry Officer should not be accepted. Along with the said show cause notice, a copy of the Enquiry Officer's report was also enclosed.
4. Counsel for the petitioner had contended that the disciplinary authority must only communicate the Enquiry Officer's report without expressing any opinion about the findings of the Enquiry Officer's report and invite objections to the Enquiry Officer's report. Counsel for the petitioner had further contended that this issue is squarely covered by the judgment rendered by the Honourable Supreme Court in Managing Director, ECIL v. B. Karunakar1, wherein the Honourable Supreme Court, at para 26 and 29, held as under:
"The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, 1 1993(4) SCC 727 3 AKS,J W.P.No.22771 of 2021 to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the 4 AKS,J W.P.No.22771 of 2021 evidence, the report of the enquiry officer and the representation of the employee against it.
...
Hence it has to be held that 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."
5. Counsel for the petitioner also contended that a perusal of the above judgment rendered by the Honourable Supreme Court makes it abundantly clear that the disciplinary authority must invite objections without expressing any opinion on the Enquiry Officer's report, but, in the instant case, the disciplinary authority has issued a show cause notice as to why the findings of the Enquiry Officer should not be accepted. Counsel for the petitioner had further contended that let the impugned show cause notice dated 30.08.2021 be set aside and let the petitioner be given an opportunity to submit objections to the Enquiry Officer's report within a reasonable period of time i.e., within 30 days from today so that the petitioner could submit his objections to the Enquiry Officer's report and thereafter the disciplinary authority to take appropriate action in accordance with law.
6. Standing Counsel appearing for the 1st respondent Bank had contended that the 1st respondent issued a show cause notice on 5 AKS,J W.P.No.22771 of 2021 30.08.2021 without indicating any opinion on the findings of the Enquiry Officer, and it has only communicated the Enquiry Officer's report inviting objections. Be that as it may, the 1st respondent Bank would withdraw the impugned show cause notice dated 30.08.2021 and let the petitioner submit his objections to the Enquiry Officer's report dated 05.08.2021 within 30 days, as contended by the counsel for the petitioner, and thereafter the disciplinary authority would take appropriate action in accordance with law.
7. This Court, having considered the rival submissions made by learned counsel for respective parties, is of the considered view that the impugned show cause notice dated 30.08.2021 is liable to be set aside, as the same is contrary to the law laid down by the Honourable Supreme Court in the judgment referred supra, and accordingly, the same is set aside. The petitioner shall submit his objections to the Enquiry Officer's report within 30 days from today and, upon such objections being filed by the petitioner, the disciplinary authority shall consider the same without being influenced by the show cause notice dated 30.08.2021 and pass appropriate orders in accordance with law.
8. Accordingly, this writ petition is disposed of. No order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
______________________________ ABHINAND KUMAR SHAVILI, J 25-11-2021 vv