Madras High Court
Prakasa Rao Borugadda vs The General Manager on 1 August, 2024
W.P.Nos.15016 & 15017 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.08.2024
CORAM
THE HON'BLE MR.JUSTICE MUMMINENI SUDHEER KUMAR
W.P.Nos.15016 & 15017 of 2020 and
W.M.P.Nos.18699, 18700, 18701 & 18702 of 2020
Prakasa Rao Borugadda
... Petitioner in both W.Ps
Vs.
1.The General Manager,
Discipline Management Hub (South),
State Bank of India,
7th Floor, State Bank Building,
157, Anna Salai, Chennai - 600 002.
2.The General Manager,
Network-2, State Bank of India,
Local Head Office,
Poojappura P.O. - 695 012,
Thiruvunanthapuram, Kerala.
3.The Chief Manager (Sanctions),
Inquiring Authority,
State Bank of India,
RASMEC - Shoranur,
Ottapalam, Palakkad District, Kerala - 679 101.
... Respondents in both W.Ps
Prayer in both W.Ps: Writ Petitions are filed under Article 226 of the
Constitution of India, to issue a Writ of Certiorari, to call for the records
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W.P.Nos.15016 & 15017 of 2020
on the file of the first respondent in DMHUB(S)/TRI/KR/2020-21/174,
DMHUB(S)/TRI/KR/2020-21/175 dated 07.10.2020 and the second
respondent in VIG/CON/268 dated 28.08.2020 along with his prejudged
views on findings of the third respondent and the unnumbered report of
the third respondent dated 27.08.2020 and to quash the same.
In both W.Ps
For Petitioner : Mr.M.Ravi, for
Mr.M.Velmurugan
For Respondents : Mr.C.Mohan for
Ms.A.Rexy Josephine Mary for
M/s.King & Partridge
COMMON ORDER
These Writ Petitions have been filed seeking issuance of a Writ of
Certiorari, to call for the records on the file of the first respondent in
DMHUB(S)/TRI/KR/2020-21/174and DMHUB(S)/TRI/KR/2020-21/175
dated 07.10.2020 and the second respondent in VIG/CON/268 dated
28.08.2020 along with his prejudged views on findings of the third
respondent and the unnumbered report of the third respondent dated
27.08.2020 and to quash the same.
2. Heard the learned counsel for the petitioner and the learned
Standing Counsel for the respondents.
3. The issue that arise for consideration in both the Writ Petitions is
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one and the same and between the same parties and such, both the Writ
Petitions are heard together and being disposed of by this common order.
4. The petitioner herein initially joined service in the State Bank of
Travancore and subsequently, promoted to the post of Manager (MMGS-
III) in the year 2015. Thereafter, the State Bank of Travancore was
merged with the State Bank of India. While so, in the year 2019, the
petitioner was subjected to disciplinary proceedings by issuing two charge
memos (i.e) charge sheet Ref.No.VIG/CON/1302 and another charge
sheet bearing Ref.No.VIG/CON/1303 dated 18.03.2019. Thereafter, the
petitioner submitted his explanation and an Inquiring Authority was
appointed for conducting enquiry against the charges and a final report of
the Inquiring Authority was submitted on 27.08.2020 to the first
respondent. Thereafter, the first respondent through a letter dated
28.08.2020 communicated the report of the Inquiring Authority to the
petitioner together with the views of the first respondent / Disciplinary
Authority on the charges. In response to the same, the petitioner
submitted his explanation on 08.09.2020.
5. The Disciplinary Authority having received the explanation from
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W.P.Nos.15016 & 15017 of 2020
the petitioner, issued another notice dated 07.10.2020, proposing to
impose major penalty of dismissal from service in terms of regulations
67(J), State Bank of Travancore (Officers') Service Regulations, 1979, in
respect of the first charge memo and another letter dated 07.10.2020
proposing to impose the major penalty of dismissal from service in terms
of Rule 67 (J) of the State Bank of India Officers' Service Rules
(SBIOSR), 1992. It is aggrieved by the said communication dated
07.10.2020, proposing to impose the punishment of dismissal from
service and the communication dated 28.08.2020, the petitioner
approached this Court by way of filing the present Writ Petitions.
6. Though several contentions were raised in the affidavit filed in
support of the Writ Petitions, raising objections on the manner in which
the enquiry was conducted, the manner in which the witnesses were
examined and also on the ground of not affording sufficient opportunity
to the petitioner etc., this Court is not inclined to go into such aspects at
this stage as all such objections would fall within the purview of the
Disciplinary Authority for consideration at the first instance and the
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W.P.Nos.15016 & 15017 of 2020
disciplinary proceedings are yet to be finalised. Hence, this Court at this
stage is inclined to examine the contentions raised by the petitioner to the
limited extent of not following the procedure required to be followed in
law, in the matter of furnishing copy of the report of the Inquiring
Authority and consideration of the objections raised by the petitioner
against the report of the Inquiring Authority and proper consideration of
the same by the Disciplinary Authority.
7. Through communication dated 28.08.2020, the Disciplinary
Authority, while furnishing the report of the Inquiring Authority, also
furnished the views of the Disciplinary Authority and the findings of the
Inquiring Authority against each charge. The relevant paragraphs from
the said communication reads as follows:
"We invite a reference to letter No.VIG/CON/156 dated
24.06.2020 and the subsequent inquiry proceedings.
2. We forward herewith a copy of the Inquiry Report along
with the tabular statement containing the views of the Disciplinary
Authority on the findings of the Inquiring Authority against each
allegation for your final submission on the report."
8. A perusal of the view of the Disciplinary Authority as furnished
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through the above communication makes it clear that the Disciplinary
Authority having taken note of the charge levelled against the petitioner
and the findings of the Inquiring Authority on the respective charge and
under the column 'views of the Disciplinary Authority', the Disciplinary
Authority has recorded a categorical conclusion that he agree with the
views of the Inquiring Authority and treat the charges are proved. The
same is the case in respect of all the charges covered by both charge
sheets.
9. There is no dispute or controversy on the settled legal position as
to whether the delinquent employee is entitled for a copy of the report of
the Inquiring Authority before the Disciplinary Authority acts upon such
report or not irrespective of the fact whether such opportunity is provided
under the relevant Discipline and Appeal Rules or not. By virtue of the
law laid down by the Hon'ble Apex Court, such right of delinquent
employee for receiving the report of the Inquiring Authority and his right
to raise objections on the report of the Inquiring Authority is held to be a
mandatory requirement. As held by the Hon'ble Apex Court in the case of
the Managing Director, ECIL Vs. B.Karunakar, reported in 1993 (4)
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SCC 727 and the decision of this Court in W.A.No.1674 of 2017, the
relevant paragraphs from the order dated 03.01.2023 passed in
W.A.No.1674 of 2017 reads as under:
"8. It is therefore clear that the Disciplinary Authority when
it decides to differ from the conclusions of the Enquiry Officer has
to record the fact that it proposes to differ, the tentative reasons for
such difference and call upon the Delinquent Officer to explain as
to why it should not differ. Then it will be open to the Delinquent
Officer to persuade the Disciplinary Authority to agree with the
conclusions of the Enquiry Officer. If the Disciplinary Authority
records its conclusion, as has been done in the present case the
further opportunity contemplated becomes an empty formality.
9. The Appellate Authority had also not considered this
question and it had merely dismissed the Appeal by a non speaking
order. The question as to whether the opportunity that is to be
given after the Disciplinary Authority records its decision to differ
from the Enquiry Officer?s findings has not been addressed by the
Writ Court also. Though, the Writ Court had pointed out that the
Disciplinary Authority has differed, the Writ Court had found that
such difference is justified on the basis of the evidence. The actual
import of the judgment of the Hon?ble Supreme Court in Punjab
National Bank and Others v. Kunj Behari Misra, is to the effect
that while it is open to the Disciplinary Authority to differ from the
findings of the Enquiry Officer, it shall not conclude and render a
finding on the charges without giving an opportunity to the
delinquent employee. This aspect, we find, has not been
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highlighted before the Writ Court resulting in the Writ Court
dismissing the Writ Petition.
10. Even though this question has not been dealt with by the
Writ Court, we find that once the law laid down by the Hon?ble
Supreme Court is very clear and emphatic, the requirements set
out therein cannot be waived or given up by the parties. We are
therefore left without any other alternative but to interfere and to
set aside the order of the Writ Court as well as the order of the
Authorities imposing the punishment only on the sole ground that
the Disciplinary Authority had chosen to conclude that the charges
are proved without giving an opportunity to the delinquent
employee. The opportunity that has been given after 07.05.2012
had in fact become an empty formality since the decision to
conclude that the charges have been proved has been reached on
07.05.2012."
10. However, the learned Standing Counsel for the respondent
Bank though not disputed the settled legal position as above, contended
that, unless and until the petitioner allege causing of any prejudice and
establish such prejudice caused to the petitioner, he is not entitled to raise
objection on the ground of violation of principles of natural justice or on
the ground that the Disciplinary Authority has recorded his views on the
report of the Inquiring Authority and placed reliance on the decisions of
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the Hon'ble Apex Court in the case of State of Uttar Pradesh Vs. Sudhir
Kumar Singh and Others, reported in (2021) 19 SCC 706 and State
Bank of India and Others Vs. Atindra Nath Bhattacharyya and
Another, reported in (2019) 8 SCC 134 and yet another decision in the
case of State Bank of India and Others Vs. B.R.Saini, reported in
(2018) 11 SCC 83.
11. As there is no controversy that the petitioner is entitled for
receipt of the copy of the report of the Inquiring Authority and his right to
raise his objections on such report, the only question that needs to be
considered is whether there was any prejudice caused to the petitioner by
virtue of the Disciplinary Authority recording his views on the report of
the Inquiring Authority even before the petitioner was afforded with an
opportunity to raise his objections on the report of the Inquiring
Authority.
12. If the Disciplinary Authority itself conducts an enquiry and
then comes to a conclusion either holding that the charges are proved or
not proved, the Disciplinary Authority is always entitled to proceed
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further and pass appropriate orders by following the procedure. But, in
case when any other authority other than the Disciplinary Authority is
entrusted with the responsibility of conducting enquiry and such authority
having conducted the enquiry, submits his report, the delinquent
employee is entitled to raise his objections against the findings recorded
in the enquiry report, the procedure that was followed during the course
of enquiry etc., on receipt of the report of the Inquiring Authority.
13. In terms of the settled legal position, it is only on receipt of the
objections, if any, or the comments of the delinquent employee on the
report of the Inquiring Authority, the Disciplinary Authority is supposed
to consider the conclusions arrived at by the Inquiring Authority and the
objections, if any, raised by the delinquent employee together and then,
arrive at his own conclusion on the charges.
14. But in the instance case, admittedly, the Disciplinary Authority
even before the report of the Inquiring Authority is furnished to the
delinquent employee, examined the views recorded by the Inquiring
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Authority in detail and recorded a reasoned views holding that the
charges framed against the petitioner are proved. While furnishing the
report of the Inquiring Authority itself, the Disciplinary Authority
communicated his views also to the delinquent employee. If the
Disciplinary Authority has already arrived at his conclusion on the
charges and holding such charges as proved, any amount of opportunity
given to the delinquent employee to raise his objections against the report
of the Inquiring Authority are of no consequences and the very purpose of
furnishing the copy of the report of the Inquiring Authority to the
delinquent employee is rendered useless. As already noted above, the
right of the delinquent employee to receive a copy of the Inquiring
Authority's report and to raise objections about the same is held to be
mandatory requirement in concluding the disciplinary proceedings. But in
the instant case, though the copy of the report was furnished to the
delinquent employee, the same is only reduced to an empty formality.
Therefore, the action of the Disciplinary Authority in this regard is liable
to be declared as illegal and contrary to the settled legal position.
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15. The objection raised by the learned Standing Counsel
appearing for the respondent Bank on the ground that the petitioner has
not raised any objection on the ground of any prejudice being caused to
him because of the conclusion arrived at by the Disciplinary Authority on
the charges even before the report of the Inquiring Authority is furnished
to the delinquent employee is concerned, this Court is of the considered
view that the prejudice is apparent on the face of it as the valuable right of
raising objection against the report of the Inquiring Authority was
rendered useless by recording the conclusion of the Disciplinary
Authority even before furnishing a copy of the report of the Inquiring
Authority to the delinquent. Therefore, the question of petitioner
establishing the prejudice or pleading any such prejudice is not required.
16. Then, coming to the communication dated 07.10.2020,
proposing to impose the punishment of dismissal from service under both
the charge memos is concerned, the same has to go as a consequence of
the conclusion arrived at by this Court on the aspect of furnishing of the
report of the Inquiring Authority to the delinquent employee and on the
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conclusions arrived at by the Disciplinary Authority on the charges even
before the report was furnished to the delinquent employee. Even
otherwise, as seen from the impugned communication dated 07.10.2020,
there appears to be non-consideration of the submissions made by the
delinquent employee in response to the communication dated 28.08.2020
through his representation dated 08.09.2020.
17. A perusal of the copy of the said representation dated
08.09.2020 submitted by the petitioner before the Disciplinary Authority
shows that the petitioner has raised several objections running into 35
pages, indicating each and every aspects including the manner in which
the enquiry was conducted by the Inquiring Authority. But the
Disciplinary Authority while issuing show cause notice on the quantum of
punishment through the impugned communication dated 07.10.2020
simply stated that "on consideration of submissions made by the
delinquent employee through the letter dated 08.09.2020" and the
Disciplinary Authority proposed to impose the penalty of dismissal from
service. The relevant paragraphs from the said communication dated
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07.10.2020 reads as under:
"Upon due consideration of the records of
inquiry, the submissions made by you vide letter dated
08.09.2020, I as Disciplinary Authority propose to
impose major penalty of "Dismissal" in terms of
regulation 67(J) of erstwhile State Bank of Travancore
(Officers') Service Regulations, 1979."
18. From the above, it is clear that the Disciplinary Authority has
not applied its mind to the objections raised by the petitioner through his
representation dated 08.09.2020. But, in a mechanical manner, proceeded
to propose a major penalty of dismissal from service. Yet another ground
noticed from the material on record is that on the submission of the report
of the Inquiring Authority dated 27.08.2020 on the very next date (i.e)
28.08.2020, the Disciplinary Authority communicated his view to the
petitioner in an elaborate manner on both the charge memos. This itself
shows that the Disciplinary Authority had acted with undue haste and
issued the impugned communication dated 28.08.2020.
19. In the light of the above, the impugned communications dated
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28.08.2020 and 07.10.2020 are liable to be declared as illegal and
arbitrary and accordingly, the impugned communications are liable to be
quashed. Accordingly, they are quashed. Consequently, the Disciplinary
Authority is directed to consider the objections raised by the petitioner
through his representation dated 08.09.2020 against the report of the
Inquiring Authority dated 27.08.2020 and then take further steps in
accordance with law. The petitioner is also granted liberty to submit any
further objections, if any, against the report of the Inquiring Authority,
within a period of three weeks from the date of receipt of a copy of this
order. In case, if any such objections are submitted by the petitioner
within the time stipulated above, the Disciplinary Authority / first
respondent shall take into consideration such objections also along with
the objection already raised earlier through the representation dated
08.09.2020 and take further steps to conclude the disciplinary
proceedings. It is made clear that the Disciplinary Authority while
deciding the matter as above, shall not take into consideration nor be
influenced by the views that were already expressed by him on
28.08.2020.
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20. Accordingly, these Writ Petitions are allowed to the extent
indicated above. No costs. Consequently, connected miscellaneous
petitions are closed.
01.08.2024
Index : Yes /No
Speaking / Non-speaking
Neutral Citation : Yes / No
gsk
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W.P.Nos.15016 & 15017 of 2020
To
1.The General Manager,
Discipline Management Hub (South),
State Bank of India,
7th Floor, State Bank Building,
157, Anna Salai, Chennai - 600 002.
2.The General Manager,
Network-2,
State Bank of India,
Local Head Office,
Poojappura P.O. - 695 012,
Thiruvunanthapuram, Kerala.
3.The Chief Manager (Sanctions),
Inquiring Authority,
State Bank of India,
RASMEC - Shoranur,
Ottapalam, Palakkad District,
Kerala - 679 101.
https://www.mhc.tn.gov.in/judis
W.P.Nos.15016 & 15017 of 2020
MUMMINENI SUDHEER KUMAR, J.
gsk
W.P.Nos.15016 & 15017 of 2020 and
W.M.P.Nos.18699, 18700, 18701 & 18702 of 2020
01.08.2024
https://www.mhc.tn.gov.in/judis
