7 & 8 Of The Said Judgment Are ... vs B. Karunakar And Others Reported ...
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                                  WPSS No. 440 of 2023
                                  Hon'ble Manoj Kumar Tiwari, J.

Mr. M.C. Pant, Advocate for the petitioner through Video Conferencing.

Mr. N.S. Pundir, Advocate for the respondents. Petitioner is serving as Junior Branch Manager in District Cooperative Bank, Dehradun. Two charge- sheets were issued to him on 23.12.2022 and 04.01.2023. Enquiry Officer submitted two separate enquiry reports dated 22.07.2022 & 09.12.2022.

Based on these two enquiry reports, a show cause notice has been issued to petitioner on 13.03.2023, which is impugned in this writ petition.

The sole ground of challenge is that enquiry reports, based on which show cause notice has been issued, have not been served upon petitioner.

Learned counsel for petitioner has relied upon a judgment rendered by Division Bench of this Court in Writ Petition (S/B) No. 133 of 2015. Paragraph nos. 6, 7 & 8 of the said judgment are reproduced below:-

"6. As far as suspension is concerned, the power of suspension is vested with the Authority. As far as the issue relating to the framing of charges is concerned, the judgment of this Court, no doubt, has found that the Disciplinary Authority cannot delegate his obligation upon the Inquiry Officer. As far as the question relating to the charges being framed by the Inquiry Officer is concerned, petitioner will be free to raise the objection before the Disciplinary Authority, when he raises explanation to the inquiry report, which opportunity, we intend to vouchsafe to the petitioner. As far as the question relating to infirmity of the show cause notice is concerned, after the decision of the Hon'ble Apex Court in Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others reported in (1993) 4 SCC 727, the matter cannot admit an doubt that before the Disciplinary Authority takes a decision on the Inquiry Report and decides to proceed to take further action on the basis of the inquiry, it is incumbent upon the Disciplinary Authority to supply a copy of the Inquiry Report to the delinquent. We think that it is necessary to notice and extract the following paragraphs from the said judgment:

"26. The reason why the right to receive the report of the Inquiry 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 Inquiry Officer from 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.

27. It will thus be seen that where the Inquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, Inquiry Officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings.

28. The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry Officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that "where it is proposed after such inquiry to impose upon him any such penalty such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed", it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the Inquiry Officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the 42nd Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry Officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges.

29. Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the inquiry 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 Inquiry 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."

7. Also, we notice that in paragraph 30, the Court has, inter alia, further held as follows:

"30(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 inquiry 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 Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly."

8. Therefore, the principle laid down by the Hon'ble Apex Court is law under Article 141 of the Constitution and binding on this Court irrespective of the Rules, which hold the field and irrespective of whether the employee is a government servant or the employee is a non-governmental servant, public or private."

Mr. M.C. Pant, learned counsel for petitioner contends that the controversy involved in the present writ petition is squarely covered by the aforesaid judgment rendered by Division Bench.

Mr. N.S. Pundir, learned counsel appearing for respondents does not dispute the said submission and fairly submits that the present writ petition can be decided in terms of the judgment rendered by Division Bench.

In such view of the matter, writ petition is allowed. Impugned show cause notice dated 13.03.2023 is quashed. Respondent-bank shall supply copy of enquiry report to petitioner within 24 hours.

Learned counsel for petitioner submits that his client will appear in the office of Secretary/General Manager of the bank, on 28.03.2023, at 02:00 p.m. Petitioner may submit representation, if any, against enquiry report, within two weeks thereafter. The Competent Authority shall consider representation, if any, submitted by petitioner, and pass final order, as per law, within two weeks thereafter, without being influenced by any finding/observation made in the impugned show cause notice.

Let a certified copy of this order be issued today itself.

(Manoj Kumar Tiwari, J.) 27.03.2023 Navin