G. S Jha vs Chairman & Managing Director
2023 Latest Caselaw 1945 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
               (Letters Patent Appellate Jurisdiction)
                       L.P.A No. 617 of 2019
                               -------
G. S Jha, s/o late G. N. S. Jha, r/o "Ratanlaya", PNB Colony,
Near-Aadharsh Nagar, 4th Phase, Sonari, PO and PS-Sonari,
District-Jamshedpur, Jharkhand.                       ... Appellant

                             Versus
1. Chairman & Managing Director, Punjab National Bank, having it
office at HO-7, BhikajiCama Place, New Delhi, PO and PS-New
Delhi, New Delhi-1100001.
2. General Manager, PAD, Punjab National Bank, HO-7,
BhikajiCama Place, New Delhi, PO and PS-New Delhi, New Delhi-
1100001.
3. Circle Head, Circle Office, Punjab National Bank, Main Road
Ranchi, PO and PS-Ranchi, District-Ranchi.
4. Assistant General Manager Disciplinary Authority, Circle Office,
Punjab National Bank, Main Road, Ranchi, PO & PS-Ranchi,
District-Ranchi.                                ... Respondents

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant         : Mr. Amit Kumar Tiwary, Advocate
For the Respondents       : Mr. Pratyush Kumar, Advocate
                             --------
                                                  ORDER

th 5 May 2023 Per, Shree Chandrashekhar, J The appellant who was an employee of Punjab National Bank suffered the major penalty of "removal from service which shall not be a disqualification for future employment" and this penalty order dated 31st January 2013 has been approved by the appellate authority by an order dated 26th December 2013.

2. The aforementioned orders were challenged by the appellant in W.P.(S) No. 1957 of 2014 which has been dismissed on the ground that the departmental proceeding was conducted in a fair and proper manner.

3. The writ Court has referred to "Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, U.P & Ors." (2004) 4 SCC 281 to fortify its opinion that the matter need not be remanded back on the ground of violation of the rules of natural justice. The writ Court has further observed that no prejudice was caused to the delinquent bank employee and, therefore, no interference is

warranted in the matter.

4. The writ Court has relied on the decision in "Managing Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors." (1993) 4 SCC 727 wherein the Hon'ble Supreme Court has held as under:

"30. Hence the incidental questions raised above may be answered as follows:

"[i] Since the denial of the report of the enquiry officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject. [ii]The relevant portion of Article 311(2) of the Constitution is as follows:

"(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges." Thus the article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded and when the enquiry officer is not the disciplinary authority the delinquent employee will have the right to receive the enquiry officer's report notwithstanding the nature of the punishment.

[iii] Since it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him.

[iv] In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan case should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.

[v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the

punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice."

5. As held in "Managing Director, ECIL, Hyderabad", the Hon'ble Supreme Court has observed that even where the delinquent employee has not asked for the enquiry report his failure to do so shall not be construed as the waiver of his right and whether or not the employee asked for a report the same has to be furnished to him. The Hon'ble Supreme Court has further held that this requirement in law has to be complied with for the reason that unless the employee has a copy of the enquiry report he cannot effectively defend himself. The Hon'ble Supreme Court has therefore held that right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity to defend. As regards prejudice caused to an employee on failure to supply the enquiry report, the Hon'ble Supreme Court has held that in all cases an order of reinstatement cannot be made as a ritual because in some cases non-furnishing of the report may not make any difference to the ultimate punishment awarded to the delinquent employee.

6. Indisputedly, the domestic enquiry against the appellant was concluded on 31st January 2013 and on the same day the aforesaid order of removal from service has been passed by the disciplinary authority.

7. Clause 14 to Regulation 6 of the Punjab National Bank Officer Employees' (Discipline & Appeal) Regulations, 1977 (in

short, Discipline & Appeal Regulations) provides that before the domestic enquiry is closed the enquiring authority may allow the presenting officer to produce evidence not included in the charge- sheet or may itself call for a new evidence or recall or re-examine any witness. Clause 14 further provides that in such a case the delinquent employee shall be given opportunity to inspect the documentary evidence before it is taken on record or to cross- examine a witness.

8. Clause 18 to Regulation 6 provides that the enquiring authority after completion of the production of the evidence may hear the presenting officer and the delinquent employee or permit them to file written briefs of their respective cases within 15 days of the date of completion of the production of evidence, if they so desire.

9. In "Dharampal Satyapal Ltd. v. CCE" (2015) 8 SCC 519 after considering the judgment in "B. Karunakar" the Hon'ble Supreme Court has held that non-supply of enquiry report to the delinquent government employee does not need any further proof that he has suffered prejudice on account of non-supply of the enquiry report. The findings of the writ Court that the matter need not be remanded back to the departmental authority is seriously flawed in law simply for the reason that the order of punishment which was passed in gross violation of the statutory Regulations and the principles of natural justice was illegal.

10. In "Chairman, Life Insurance Corporation of India & Ors. v. A. Masilamani" (2013) 6 SCC 530 the Hon'ble Supreme Court has observed that in all such cases where the order of punishment is found infirm in law on the ground of the rules of natural justice the matter must be remitted back to the departmental authority to start the proceeding from the stage from where such infirmity has been found in the proceeding.

11. Accordingly, the order dated 29th July 2019 passed in W.P.(S) No. 1957 of 2014 is set-aside. Consequently, the order dated 31st January 2013 and the order dated 26th December 2013 passed by the appellate authority affirming the order dated 31 st

January 2013 are set-aside.

12. The matter is remanded back to the disciplinary authority to afford an opportunity to the appellant after supplying a copy of the enquiry report so as to enable him to make his representation against the adverse findings recorded in the enquiry report.

13. Let this exercise be completed within a period of 3 months.

14. Accordingly, L.P.A No. 617 of 2019 is allowed in the aforesaid terms.

15. I.A No. 654 of 2021 stands disposed of.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.)

Jharkhand High Court, Ranchi Dated: 5th May 2023 Amit/ N.A.F.R