H.K.Lagar vs Chhattisgarh Gramin Bank And Ors
2021 Latest Caselaw 2989 Chatt

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                                                                        AFR
          HIGH COURT OF CHHATTISGARH AT BILASPUR
              Writ Petition (S) No. 5521 of 2012
                 Judgment reserved on 22/09/2021
               Judgment delivered on 01/11/2021

     H.K. Lagar S/o Shri Laxman Rao Lagar, Aged about
     51     years,    Officer       Grade    I    (Terminated),       R/o
     Rukhmani        Vihar    Colony,       Bilaspur,       P.S.     Civil
     Line,        Post         G.P.O.,           Distt.       Bilaspur,
     Chhattisgarh.

                                                          ­­­Petitioner

                                   Versus

   1. Chhattisgarh Gramin Bank, Through the Chairman,
     Head     Office,        15,    Recreation       Road,         Choubey
     Colony,     Post    Rajendra        Nagar,      P.S.     Saraswati
     Nagar, Raipur, Chhattisgarh, Pin 492001.

   2. Regional       Manager,       Chhattisgarh      Gramin         Bank,
     Vyapar    Vihar     Road,       Post    Railway,       P.S.    Civil
     Lines, Bilaspur, 495001.

   3. The Disciplinary Authority, Chhattisgarh Gramin
     Bank, Head Office, 15­Recreation Road, Choubey
     Colony,     Post    Rajendra        Nagar,      P.S.     Saraswati
     Nagar, Raipur 492001.

                                                  ­­­ Respondents

For Petitioner :­ Mr. Prafull Bharat, Senior Advocate with Mr. Keshav Dewangan, Advocate For Respondents:­ Mr. B.D. Guru and Mr. Anuroop Panda, Advocates

Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Order

1. By way of this writ petition, petitioner herein

calls in question the legality, validity and

correctness of appellate order dated 03/09/2012

(Annexure P/9) whereby the appeal preferred by

the petitioner assailing the order dated

24/05/2012 (Annexure P/8) passed by the

Disciplinary Authority imposing the punishment

of dismissal has been dismissed finding no

merit.

2. Petitioner was appointed as Officer Scale I by

respondent No. 1 Bank on 26/02/1985. On

20/08/2008, alleging certain misconduct, a

charge sheet was served upon the petitioner

directing him to file reply within 15 days but

neither the list of witnesses nor the list of

documents were supplied to him along with the

charge sheet. The petitioner submitted his reply

(Annexure P/2) and denied the charges levelled

against him. Thereafter, upon conclusion of

enquiry on 07/04/2012 (Annexure P/5), petitioner

was served with provisional order of dismissal

and simultaneously, show cause notice dated

07/04/2012 (Annexure P/5) was also issued to him

against the proposed major punishment.

3. The case of the petitioner is that he was not

supplied with the copy of enquiry report and so

he made an application under Right to

Information Act, 2005 on 10/09/2012 for supply

of enquiry report, in response of which, the

respondents supplied the copy of enquiry report

to him on 17/09/2012. Thereafter, petitioner

submitted his reply (Annexure P/7) to the show

cause notice and ultimately, vide order dated

24/05/2012 (Annexure P/8), petitioner's order of

dismissal was passed by the Disciplinary

Authority in accordance with Clause 38(1)(b)(v)

of Chhattisgarh Gramin Bank Officers and

Employees Service Regulations, 2007 and Clause

39(1)(b)(v) of Chhattisgarh Gramin Bank Officers

and Employees Service Regulations, 2010 against

which the petitioner preferred an appeal under

Regulation 47 of the Regulations of 2007, but

the Appellate Authority summarily dismissed the

appeal vide order dated 03/09/2012 (Annexure

P/9) finding no merit, which has been questioned

by the petitioner in this writ petition

principally on the ground that he has been

denied reasonable opportunity of hearing to

answer the charges levelled against him and to

defend himself by the act of the respondents in

not supplying the copy of the documents to him

which were relied upon by the Enquiry Officer

and the Disciplinary Authority and even the list

of witnesses was also not supplied to him and a

total of 59 exhibited documents were filed which

were admissible in evidence out of which 5

documents were not even brought on record and

nine of those documents were the photocopies of

the original documents, yet the Disciplinary

Authority has passed the order of dismissal

against the petitioner placing reliance upon

those documents.

4. It is also the case of the petitioner that even

after the conclusion of enquiry, enquiry report

was not supplied to him and when the final order

was passed for dismissal from service, then only

under the Right to Information Act the enquiry

report was obtained by the petitioner. As such,

petitioner has suffered great prejudice in

non­supply of entire documents and even the

findings recorded are perverse, as such, the

order of dismissal passed by the Disciplinary

Authority as well as the order of the Appellate

Authority affirming the order of the

Disciplinary Authority and dismissing

petitioner's appeal, both deserve to be set

aside.

5. Return has been filed by the respondents stating

that the exhibited documents were allowed to be

inspected by the petitioner and witnesses were

also introduced to him at the time of recording

of evidence. It has also been pleaded that by

show cause notice dated 07/04/2012 (Exhibit P/5)

adverse findings in the enquiry report have been

explained to the petitioner, as such, the order

passed by the Disciplinary Authority dismissing

petitioner from service is strictly in

accordance with law.

6. Rejoinder has been filed by the petitioner

controverting the averments made in the return.

7. Mr. Prafull Bharat, learned senior counsel

appearing on behalf of the petitioner, would

make the following submissions :­

(i). that, no documents including the 59

exhibited documents, making the basis for

departmental enquiry, were served to the

petitioner and further no list of witnesses who

were examined was served to him by which the

petitioner has been deprived of reasonable

opportunity to reply to the charges levelled

against him and to defend himself which is in

violation of Regulation 38 of Regulations of

2007. He would rely upon the decisions rendered

by the Supreme Court in the matter of State of

U.P. v. Saroj Kumar Sinha1, Bilaspur Raipur

Kshetriya Gramin Bank and Anr. v. Madanlal

Tandon2 and Shobha Sinha v. State of Bihar and

Ors.3.

(ii). that, the non­supply of the enquiry report

has caused serious prejudice to the petitioner

as he could not defend himself properly and in

view of the decision rendered by the

Constitution Bench of the Supreme Court in the

matter of Managing Director, ECIL, Hyderabad and

Ors. v. B. Karunakar and Ors.4 the supply of

copy of enquiry report to the delinquent

employee is a must. He would also rely upon the

decision rendered by the Supreme Court in Punjab

National Bank and Ors. v. K.K. Verma5.

1 AIR 2010 SC 3131 2 (2015) 8 SCC 461 3 (2013) 16 SCC 456 4 (1993) 4 SCC 727 5 (2010) 13 SCC 494

(iii). that, the photocopy of the 9 exhibited

documents, being inadmissible, could not have

been relied upon by the Disciplinary Authority

to bring home the charges levelled against the

petitioner, when the original documents were

never produced and as such, the findings

recorded by the Disciplinary Authority on the

basis of the photocopy of the said documents is

perverse and is liable to be set aside. He would

further rely upon the decision of the Supreme

Court in the matter of Makhan Singh v.

Narainpura Co­operative Agricultural Service

Society Limited and Anr.6 and S.R. Tewari v.

Union of India and Anr.7.

(iv). that, the show cause notice was issued to

the petitioner on 07/04/2012 (Annexure P/5) but

at the same time, by the same notice­cum­order,

the Disciplinary Authority has provisionally

dismissed the petitioner from service which goes

to show that the Disciplinary Authority was

prejudiced to the petitioner and even without

awaiting the reply to the show cause notice and

even without supplying the copy of enquiry

report to the petitioner, he was provisionally

6 (1987) 3 SCC 571 7 (2013) 6 SCC 602

dismissed whereas there is no such provision of

provisional dismissal either in applicable

regulation or in service jurisprudence, as such,

it shows the bias and prejudice in the mind of

the Disciplinary Authority towards the

petitioner during the course of enquiry.

Therefore, the order dated 24/05/2012 (Annexure

P/8) passed by the Disciplinary Authority

dismissing petitioner from service deserves to

be set aside.

(v). that, in the appeal preferred by the

petitioner, the Board of Directors being the

Appellate Authority did not consider the appeal

in its right prospective and casually affirmed

the order of the Disciplinary Authority without

deciding the appeal on merits, as such, the

Appellate Authority has failed to perform its

duty conferred on it and thus, the order dated

03/09/2012 (Annexure P/9) passed by the

Appellate Authority is liable to be set aside.

8. Mr. B.D. Guru and Mr. Anuroop Panda, learned

counsel for the respondents, would also make the

following submissions :­

(i). The exhibited documents relied upon by the

Respondent No. 1 Bank were allowed to be

inspected by the petitioner during the course of

the enquiry proceeding, as such, it fulfills the

requirement of supplying the copies of said

documents to the petitioner.

(ii). Though the list of witnesses was not

served to the petitioner, yet the witnesses were

introduced to the petitioner during the course

of disciplinary proceedings at the time of

examination.

(iii). Though the copy of enquiry report was not

served to the petitioner but the contents of the

enquiry report were extensively quoted in the

show cause notice dated 07/04/2012 (Annexure

P/5) issued to the petitioner, as such, there

was no need to supply the copy of enquiry report

to the petitioner.

(iv) He would also submit that an affidavit has

been filed by the Disciplinary Authority before

this Court stating that though show cause notice

was issued to the petitioner proposing major

penalty of dismissal from service, but it was

issued to give an opportunity to the petitioner

to make representation on the quantum of

punishment in accordance with the decision of

the Supreme Court in the matter of Boloram

Bordoloi v. Lakhimi Gaolia Bank and Ors.8. As

such, the order passed by the Disciplinary

Authority as well as by the Appellate Authority

are strictly in accordance with law and the

instant writ petition deserves to be dismissed.

9. I have heard learned counsel for the parties,

considered their rival submissions made

herein­above and went through the records with

utmost circumspection.

10. Upon hearing learned counsel for the parties and

after a careful perusal of the record, the

following questions would arise for adjudication

in this writ petition :­

(a). Whether due to the non­supply of the

Bank and non­supply of list of witnesses,

petitioner has been deprived of reasonable

opportunity to answer the charges levelled

against him and to defend himself in the enquiry

proceedings ?

(b). Whether the supply of copy of enquiry

report at the conclusion of the enquiry was

necessary to be made to the petitioner and

whether the non­supply of the enquiry report has

8 2021 SCC Online SC 65

resulted into serious prejudice to the

petitioner ?

(c). Whether the findings of the enquiry report

is based on surmises and conjectures including

the production of photocopy of the 9 exhibited

documents and non­production of 5 exhibited

documents, as such, the order of punishment is

liable to be quashed ?

(d). Whether the provisional order of dismissal

along with the show cause notice dated

07/04/2012 (Annexure P/5) is in accordance with

law ?

(e). Whether the Appellate Authority has decided

the appeal in accordance with Regulation 48(ii)

of the Regulations of 2007 ?

11. In order to answer the aforesaid questions, it

would be appropriate to notice the provisions

contained in Chhattisgarh Gramin Bank Officers

and Employees Service Regulations, 2007. Under

the Regulations of 2007, one of the major

penalty covered under Regulation 38(1)(b)(iv)

has been inflicted upon the petitioner, which

states as under :­

"38. Penalties Without prejudice to foregoing Regulations of this Chapter an officer or employee who commits a breach of these Regulations or who displays negligence, inefficiency or indolence or who commits acts detrimental to the interests of the Bank or in conflict with its instructions, or who commits a breach of discipline of is guilty of any other acts of misconduct, shall be liable for any one or more penalties as prescribed hereinafter.

      1. Officers
      (a) Minor Penalties
      XXX                          XXXX
      (b) Major Penalties
      (I) to (iii)      XXX

(iv) Removal from service which shall be a disqualification for future employment. Explanation :

Provided further that no order imposing any of the major penalties specified above shall be made except by an order in writing signed by the Competent Authority and no such order shall be passed without the charge or charges being formulated in writing and given to the officer and enquiry held so that he shall have reasonable opportunity to answer the charge or charges and defend himself."

12. A careful perusal of the aforesaid Regulation

would show that removal from service which shall

be disqualification for future employment is a

major penalty. The proviso appended to

explanation provides that no order imposing any

of the major penalties specified shall be made

except by an order in writing signed by the

Competent Authority and no such order shall be

passed without the charge or charges being

formulated in writing and given to the Officer

and enquiry held so that he shall have

reasonable opportunity to answer the charge or

charges and defend himself. As such, the officer

concerned has to be given reasonable opportunity

to answer the charges and to defend himself and

in this background, the questions formulated

above have to be answered.

Answer to Question 10 (a) :­

13. It is admitted position on record that the

respondent No. 1 Bank has exhibited 59 documents

in order to bring home the charges levelled

against the petitioner but it is the case of the

petitioner that none of the exhibited documents

were supplied to him and as such, he has been

deprived of the opportunity to defend himself

as no reasonable opportunity of hearing was

afforded to him to answer the charges levelled

against thim whereas it is the case of the

respondents that though the documents were not

supplied to the petitioner but the details of

the said documents were given to him and in the

return filed by the respondents, it has been

stated that petitioner was afforded sufficient

opportunity to examine and inspect the documents

for filing of reply to the charge sheet served

to him.

14. True it is that the Regulations of 2007 do not

expressly contain any provision with regard to

supply of documents, but it fairly provides that

a reasonable opportunity to answer the charges

and to defend himself has to be given to the

petitioner. It has been a long standing rule of

natural justice that if relevant evidentiary

material is not disclosed then the decision

making process would be vitiated.

15. 'Reasonable opportunity' has been interpreted

and considered by Their Lordships of the Supreme

Court in the matter of Indu Bhushan Dwivedi v.

State of Jharkhand9 wherein it has been held

that reasonable opportunity includes the duty to

disclose material adverse to the employee, even

where there is no statutory rule to this effect.

16. The Supreme Court in the matter of Chandrama

Tewari v. Union of India (through General

Manager, Eastern Railways)10 has held that non­

9 (2010) 11 SCC 278 10 1987 (Supp) SCC 518

disclosure of the documents to the delinquent

Government servant would amount to denial of

reasonable opportunity. It has been observed by

Their Lordships as under :­

"It is now well settled that if copies of relevant and material documents including the statement of witnesses recorded in the preliminary enquiry or during investigation are not supplied to the delinquent officer facing the enquiry and if such documents are relied in holding the charges proved against the officer, the enquiry would be vitiated for the violation of principles of natural justice. Similarly, if the statement of witnesses recorded during the investigation of a criminal case or in the preliminary enquiry is not supplied to the delinquent officer, as that would amount to denial of opportunity of effective cross­ examination. It is difficult to comprehend exhaustively the facts and circumstances which may lead to violation of principles of natural justice or denial of reasonable opportunity of defence. This question must be determined on the facts and circumstances of each case."

17. Similarly, in the matter of Saroj Kumar Sinha

(supra), the Supreme Court has held that non­

disclosure of copies of the documents forming

foundation of the charge­sheet having a

potential to cause prejudice to the Government

servant in the enquiry proceedings would clearly

be denial of a reasonable opportunity to submit

a plausible and effective rebuttal to the

charges being enquired into against the

Government servant. Paragraphs 29, 36 and 38

state as under :­

"29. The effect of non disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows:

"If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked."

36. The proposition of law that a government employee facing a department enquiry is entitled to all the relevant statement, documents and other materials to enable him to have a reasonable opportunity to defend himself in the department enquiry against the charges is too well established to need any further reiteration.

Nevertheless given the facts of this case we may re­emphasise the law as stated by this Court in the case of State of Punjab vs. Bhagat Ram (1975) 1 SCC 155: (AIR 1974 SC 2335) :

"The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross­examine the witnesses and during the cross­examination the respondent would have the opportunity of

confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross­ examining the witnesses produced against him. The object of supplying statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the government servant. Unless the statements are given to the government servant he will not be able to have an effective and useful cross­examination. It is unjust and unfair to deny the government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the government servant. A synopsis does not satisfy the requirements of giving the government servant a reasonable opportunity of showing cause against the action proposed to be taken."

38. In our opinion, the appellants have miserably failed to give any reasonable explanation as to why the documents have not been supplied to the respondent. The Division Bench of the High Court, therefore, very appropriately set aside the order of removal. "

18. Thereafter, in the matter of Bilaspur Raipur

Kshetriya Gramin Bank (supra) Their Lordships

have held that if the documents were not

supplied along with the charge­sheet on the

basis of which charges were framed and findings

were recorded, then the order of punishment

cannot be sustained.

19. Reverting to the facts of the instant case in

light of the principle of law laid down by their

Lordships of the Supreme Court in the above­

statement judgments (supra), admittedly, 59

documents were exhibited by the respondent No. 1

Bank and none of them were supplied to the

petitioner. The said documents are said to have

been inspected by the petitioner which appears

to be only a formality as there is no material

produced by this Court to demonstrate that the

petitioner was allowed to inspect those

documents considering the fact that 59 documents

were exhibited and out of them five documents

were not even produced on record and nine

documents were the photocopies of the original

documents. Similarly, it is the case of the

petitioner that list of witnesses was also not

supplied to him, therefore, he could not defend

himself properly whereas it is the stand of the

respondents in paragraph 5 of the return that

though the list of witnesses was not supplied to

the petitioner, however, during the course of

enquiry, the witnesses were introduced to the

petitioner and he was permitted to cross­examine

the said witnesses. As such, the petitioner was

not supplied the exhibited documents which were

the basis of the charges levelled against him

though voluminous documents were filed and

exhibited. It is extremely difficult for a Bank

servant to inspect 59 documents and make a note

of it and cross­examine the Bank's witnesses. No

reason has been assigned by the respondent No. 1

Bank for not furnishing the said documents to

the petitioner and out of those 59 documents,

five documents were not even produced but the

respondent No. 1 Bank relied upon them and nine

documents produced therein were photocopies of

original documents being inadmissible in

evidence, could not have been considered by the

competent authority. Similarly, the list of

witnesses was also not supplied to the

petitioner on account of which, the petitioner

has been deprived of reasonable opportunity to

answer the charges and to defend himself,

thereby suffered serious prejudice as held in

the judgments of the Supreme Court noticed

herein­above.

Answer to Question 10 (b), (c) and (d) :­

20. Admittedly and undisputedly, petitioner was not

supplied the enquiry report along with the show

cause notice issued to him by order dated

07/04/2012 (Annexure P/5) by which provisional

order of dismissal was passed against him under

Section 38(1)(b)(v) of Regulations of 2007. A

copy of the enquiry report has not been served

to the petitioner which is apparent from

paragraph 3.10 of the return filed by the

respondents wherein it has been stated that show

cause notice dated 07/04/2012 itself demonstrate

that the report of the enquiry officer in detail

has been mentioned in the proposed show cause

notice and hence sufficient opportunity of

hearing has been given to the petitioner. As

such, it is quite vivid that copy of enquiry

report has not been supplied to the petitioner

before passing the impugned order of dismissal.

21. The Supreme Court in the matter of Union of

India v. Mohd. Ramzan Khan 11 has held that a

delinquent is entitled to copy of inquiry report

and he will also be entitled to make a

representation against it, if he so desires, and

11 (1991) 1 SCC 588

not furnishing of the report, would amount to

violation of rules of natural justice.

22. In the matter of Managing Director, ECIL

(supra), the Constitution Bench of the Supreme

Court has held that when enquiry officer is

other than the disciplinary authority,

delinquent employee is entitled to a copy of

enquiry report, before the disciplinary

authority takes decision on the question of

guilt of the delinquent. It has been held in

paragraph 26 as under :­

"26. The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity it the first stage and also a principle of natural justice is that the findings recorded by the Inquiry 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, 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 the 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 Inquiry 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 Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry 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 Inquiry 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 Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it. "

23. In the instant case, admittedly and

undisputedly, no enquiry report was served to

the petitioner and second show cause notice

dated 07/05/2012 (Annexure P/5) was issued to

him proposing provisional order of dismissal

from service, which states as under :­

पत्र क्रमममांक/सतकरतम/12/2012-13 ददिनमनाँककः 07.04.2012

शश्री एच.कक. लगर दनलमांदबित अधधिकमरश्री छतश्रीसगढ़ गममश्रीण बिबक शमखम सकक धजिलम दबिलमसपपुर (छ.ग.)

दप्रिय महहोदिय,

कमरण बितमओ नहोदटिस

आपकहो सपुपपुदिर दकयक गयक आककप सह आरहोप पत्र क्र. सतकरतम/01/2008- 09 ददिनममांक 20.08.08 पर सम्पन्न जिममांच कमयर वमहश्री कक समांककदपकम कम ससूक्ष्म अध्ययन करनक तथम दिस्तमवकजिश्री समक्ष्यय, एवमां गवमहय कक बियमनय कम अवलहोकन करनक कक उपरममांत आपकक ऊपर लगमयक गयक अधधिकममांश आरहोपय कहो प्रिममदणत पमतक हह ए अनपुशमसदनक अधधिकमरश्री दमरम आपकहो सकवम सक पदिच्यपुदत (Dismissal from service) करनक कक दिण्ड सक दिणण्डत करनक कम अनणनतम दनणर य धलयम गयम हहै । आपकक दनलमांबिन कमल कहो बिबक कक सकवम मम न ममनतक हह ए उक अवधधि कम वकतन भपुगतमन नहहीं दकयम जिमयकगम । ककपयम इस पत्र कक प्रिमदप्ति कक 15 ददिनय कक अमांदिर अवगत करमयम दक क्यय न आपकहो प्रिस्तमदवत दिण्ड सक दिणण्डत दकयम जिमयक ।

2. दनधिमरररत समयमवधधि मम आपकम उतर प्रिमप्ति न हहोनक पर यह ममनकर दक आपकहो इस दवषय मम कपुछ नहहीं कहनम हहै, अनपुशमसदनक अधधिकमरश्री दमरम अगलश्री कमयर वमहश्री कक जिमवकगश्री जिहो पसूवमरगह सक रदहत ममनश्री जिमयकगश्री ।

3. अनपुशमसदनक अधधिकमरश्री दमरम पमररत अनणनतम आदिकश ददिनममांक 07.04.2012 समांलगन हहै । इस पत्र कक ददतश्रीय प्रिदत पर पमवतश्री स्वरूप दतधथयपुक हस्तमकर कर हमम प्रिकदषत करम ।

भवदिश्रीय, सहश्री/-

अध्यक समांलगकःउपरहोकमनपुसमर ।

24. A careful perusal of the afore­stated show cause

notice would show that the respondent No. 1 Bank

had already decided to dismiss the services of

the petitioner though provisionally and as such,

the show cause notice was a mere formality. In

the matter of Siemens Ltd. v. State of

Maharashtra12 the Supreme Court has clearly held

that, if while issuing the show cause notice,

competent authority has already applied its

mind, hearing pursuant to show cause notice,

would not yield any fruitful result and held in

paragraph 11 as under :­

"11. A bare perusal of the order impugned before the High Court as also the statements made before us in the counter­ affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the realm of a show­cause notice. The writ petition, in our opinion, was maintainable."

25. Thus, the second show cause notice dated

07/04/2012 (Annexure P/5) issued to the

petitioner was only a formality and the

respondent No. 1 Bank had already decided and

imposed a penalty of dismissal from service

12 (2006) 12 SCC 33

though provisionally and when the reply was

filed by the petitioner, respondent No. 1 Bank

concluded that petitioner had failed to make out

a case for interference in the provisional order

of dismissal dated 07/04/2012. As such, the

respondent No. 1 Bank, on its own showing, has

failed to provide a reasonable opportunity to

defend himself to the petitioner by which he

suffered prejudice. Even otherwise, the

provisional order of dismissal/removal is not

contemplated in Regulations of 2007 and is

unknown to service jurisprudence.

Answer to Question 10 (e) :­

26. The Appellate Authority was required to decide

the appeal in accordance with Regulation 48(ii)

of Regulations of 2007, which states as under :­

"48. Appellate authorities An appeal shall lie :­

(i) to the Board where the Chairman or Committee or Directors is the Competent Authority,

(ii) to the Chairman where any other officer is the competent Authority,"

27. The order dated 24/05/2012 passed by the

Disciplinary Authority imposing punishment of

removal from service upon the petitioner states

as under :­

छतश्री स गढ़ गममश्रीण बिब क प्रिधिमन कमयमरल य , रमयपपुर

अमां द तम आदिक श

शश्री एच.कक. लगर (दनलमांदबित अधधिकमरश्री), शमखम सकक कहो शमखम धलमतरम मम शमखम प्रिबिमांधिक कक पदि पर कमयर करतक हह यक बिरतश्री गई गमांभश्रीर अदनयदमततमओमां हकतपु आककप सह आरहोप पत्र क्र. सतकरतम/01/08-09 ददिनममांक 20.08.2008 ददियम गयम थम । शश्री लगर कमक बिचमव कम समपुदचत अवसर प्रिदिमन करनक कक उदकश्य सक एवमां नहैसदगर क नयमय कक धसदममांतय कम पमलन करतक हह यक जिममांच कमयर वमहश्री सम्पन्न करमई गई । जिममांच अधधिकमरश्री दमरम प्रिस्तपुत जिममांच प्रिदतवकदिन एवमां समस्त तथ्यय कक ससूक्ष्य अवलहोकन कक पश्चमतत् अनपुशमसदनक अधधिकमरश्री दमरम शश्री लगर (दनलमांदबित अधधिकमरश्री) कहो छतश्रीसगढ़ गममश्रीण बिबक अधधिकमरश्री एवमां कमर चमरश्री सकवम दवदनयम 2007 कक कमांदडकम 38 (1) ख (V)/2010 कक कमांदडकम 39 (1) ख (V) कक अमांतगर त सकवम सक पदिच्यपुदत (Dismissal from service) करनक कक दिण्ड सक दिणण्डत करनक कम अनणनतम आदिकश ददिनममांक 07.04.2012 कहो पमररत करतक हह ए कमरण बितमओमां नहोदटिस जिमरश्री दकयम गयम हहै ।

शश्री लगर दमरम ददियम गयम कमरण बितमओमां नहोदटिस कम उतर ददिनममांक 19.05.2012 कहो प्रिमप्ति हह आ हहै । शश्री लगर नक अपनक उतर/बिचमव मम ऐसम कहोई नयम तथ्य प्रिस्तपुत नहहीं दकयम हहै धजिसकक कमरण अनणनतम आदिकश मम पररवतर न समांभमव्य हहो । अतकः अनणनतम आदिकश कहो यथमवत रखतक हह ए शश्री लगर कहो सकवम सक पदिच्यपुदत (Dismissal from service) करनक कक दिण्ड सक दिणण्डत करनक कम अमांदतम आदिकश पमररत करतम हह नाँ । मकरम यह आदिकश मकरक पसूवर कक अनणनतम आदिकश ददिनममांक 07.04.2012 कक तमरतम्य मम पढ़म जिमयक । यह आदिकश तत्कमल प्रिभमव सक प्रिभमवशश्रील हहै ।

सहश्री/-

(शकखर शश्रीवमस्तव) स्थमन - रमयपपुर अनपुशमसदनक अधधिकमरश्री ददिनममांक - 24.05.2012 छतश्रीगसढ़ गममश्रीण बिबक प्रिधिमन कमयमरलय, रमयपपुर

28. The aforesaid order dated 24/05/2012 passed by

the Disciplinary Authority was challenged by the

petitioner in an appeal wherein the order of the

Disciplinary Authority was taken up for

consideration before the Board of Directors in

their meeting held on 30/08/2012. The order

dated 30/08/2012 states as under :­

NRrhlx<+ xz k eh.k cS ad iz / kku dk;kZ y ;] jk;iq j ¼N-x-½ funs'kd e.My dh cSBd fnukad 30-08-2012 izLrko Øekad ¼28½ vuq'kklfud dk;Zokgh ds varxZr tkjh n.Mkns'k ds fo:) vihy Jh ,p-ds-yxj

vihy ij fopkj foe'kZ djus ls iwoZ v/;{k Jh losZ'oj ysadk cSBd ls mBdj ckgj pys x,] mudh vuqifLFkfr esa Jh ts-lh- egar dks v/;{k euksuhr fd;k x;k rFkk fuEu lnL; cSBd esa mifLFkr jgs%& 1- Jh ts-lh-egar ¼v/;{k½ 2- Jh vkuan mik/;k;

3- Jh izHkkr xks;y 4- Jh ukjk;.k 5- Jh clar ;kno Jh ,p-ds-yxj dh vihy ij lnL;ksa }kjk lHkh igyqvksa ij ppkZ djrs gq, xgu fopkj foe'kZ fd;k x;kA lnL;ksa }kjk loZ lEefr ls vuq'kklfud vf/kdkjh }kjk fy, x, fu.kZ; dks ;Fkkor j[kus dk fu.kZ; fy;k x;kA

lR;izfrfyfi ofj"B izca/kd v/;{kh; lfpoky;

29. It is well settled position of law that the

Appellate Authority in disciplinary proceeding

acts in quasi­judicial capacity and order passed

has to be reasoned one and showing application

of mind to the question raised by the appellant

and if it is not done, the appellate order is

vitiated. (See Divisional Forest Officer,

Kothagudem and others v. Madhusudhan Rao13).

30. The Supreme Court reiterated this principle of

law by observing that an Appellate Authority by

deciding statutory appeal is not only required

to give hearing to the Government servant, but

pass a reasoned order dealing with the

contention raised in the appeal. (See

Deokinandan Sharma v. Union of India and

others14).

31. Even if the appellate order is in agreement with

that of the Disciplinary Authority, it may not

be speaking order, but the Authority passing the

same must show that there had been proper

application of mind in compliance with the

requirement of law while exercising his

jurisdiction particularly when the rules

required application of mind on several factors

and several contentions had been raised and he

was bound to assign reasons so as to enable the

Court reviewing its decision to ascertain as to

whether it had applied its mind to the relevant

factors which the rule required to do. (See

13 (2008) 3 SCC 469 14 (2001) 5 SCC 340

Narinder Mohan Arya v. United India Insurance

Co. Ltd. and others15).

32. Reverting to the facts of the case in light of

the legal position enumerated herein­above, it

is quite vivid that the appellate authority has

not assigned any reason to indicate that it has

applied its mind on the grounds raised and not

even a brief reason has been indicated in the

appellate order to say that due procedure as per

the regulation has been followed while

conducting departmental enquiry and further that

the findings of the Disciplinary Authority are

based on record and the penalty imposed is just

and proper. As such, the Appellate Authority has

failed to decide the appeal in accordance with

law.

33. As a fallout and consequence of the aforesaid

legal discussion, the impugned order of

petitioner's removal from service dated

24/05/2012 (Annexure P/8) as well as the

appellate order dated 03/09/2012 (Annexure P/9)

are hereby quashed. Respondent No. 1 Bank is

directed to reinstate the petitioner with all

consequential service benefits.

15 (2006) 4 SCC 713

34. Accordingly, this writ petition is allowed to

the extent indicated herein­above. No cost(s).

Sd/­ (Sanjay K. Agrawal) Judge

Harneet HIGH COURT OF CHHATTISGARH, BILASPUR WPS No. 5521 of 2012

Petitioner H.K. Lagar

Versus

Respondents Chhattisgarh Gramin Bank & Ors.

(English)

Provisional order of dismissal from service along with show cause notice is unknown to service jurisprudence.

(Hindi)

FR ककरण बतकओ ननटटस कक सकथ सकवक सक पदचययत ककयक जकनक कक अननततम आदकश कदयक जकनक कक पकवधकन सरवरस जयटरसपयडडस मड नहह हह |