published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40533
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL
APPELALTE JURISDICTION
CIVIL APPEAL NO. 5128 OF 2013
(Arising out of SLP (C) No. 39105 of 2012)
S.P. Malhotra …Appellant
Versus
Punjab National Bank & Ors. …Respondents
O R D E R
1. Leave granted.
2. This appeal has been preferred against the impugned judgment and
order dated 25.9.2012 passed by the High Court of Punjab and Haryana
at Chandigarh in L.P.A.No. 2028 of 2011, by way of which it has
reversed the judgment and order of the learned Single Judge dated
20.5.2011 passed in Writ Petition No. 1201 of 1988, by which and
whereunder the learned Single Judge had awarded the relief to the
appellant herein on the ground that
in case the Disciplinary Authority
does not agree with the findings recorded by the Enquiry Officer in disciplinary proceedings,
the Disciplinary Authority must record reasons for disagreement and communicate the same to the delinquent
and seek his response and only after considering the same, he could pass the order of punishment.
3. Facts and circumstances giving rise to this appeal are that:
A. The appellant was appointed as Clerk/Cashier in the respondent
Bank in the year 1969 and was promoted as Accountant in the year 1977,
and further promoted as Assistant Manager in the year 1981.
The
Disciplinary Authority put him under suspension in November, 1982 for
certain delinquencies and in respect of the same, a chargesheet dated
7.2.1983 was served upon him containing four charges namely:
(i) Tampering with official record to the detriment of the Bank’s
interest;
(ii) Indulging in un-authorized business against the interest of
the Bank;
(iii) Mis-utilising official position to benefit relatives and
friends against the interest of the Bank; and
iv) Concealment of facts from the authorities.
B. The appellant submitted his reply to the said charges in July,
1983 denying all the allegations and further submitting that it was
the Branch Manager who had sanctioned all the loans and advances and all the entries had been made at his behest.
As the Disciplinary
Authority was not satisfied with the reply submitted by the appellant,
an Enquiry Officer was appointed to examine the charges.
C. After conducting and concluding the enquiry, the Enquiry Officer submitted report dated 27.2.1985 exonerating the appellant on all the charges and in support of the findings sufficient reasons had been given on each charge.
D. The Disciplinary Authority partly agreed with the findings on
charge Nos. (ii) and (iii), but disagreed with the findings qua charge
Nos. (i) and (iv), and vide order dated 27.4.1985 imposed the
punishment of dismissal from service.
E. Aggrieved, the appellant preferred the appeal against the said
order under Regulation 17 of the Punjab National Bank
Officers/Employees (Discipline and Appeal) Regulation 1977
(hereinafter referred to as the ‘Regulations), and the appeal was
dismissed vide order dated 14.8.1985 by the Appellate Authority.
The
Appellate Authority also concurred with the findings on two charges
recorded by the Enquiry Officer.
F. Being aggrieved of the order of the Appellate Authority, the
appellant filed review petition under Regulation 18 of the Regulations
and the said review petition was also dismissed vide order dated
19.8.1987.
G. The appellant challenged the said orders of punishment by filing
a Writ Petition No. 1201 of 1988 before the High Court of Punjab and Haryana at Chandigarh. The said writ petition was contested by the respondent Bank. The learned Single Judge allowed the said writ petition vide judgment and order dated 20.5.2011, holding that in case the Disciplinary Authority disagrees with the findings recorded by the Enquiry Officer, he must record reasons for the dis-agreement and communicate the same to the delinquent seeking his explanation and after considering the same, the punishment could be passed. In the
instant case, as such a course had not been resorted to, the punishment order stood vitiated.
H. Aggrieved, the respondent Bank preferred LPA before the Division
Bench which has been allowed taking a view that as the punishment had
been imposed prior to the date of judgment in Managing Director, ECIL,
Hyderabad, etc.etc. v. B. Karunakar etc.etc., AIR 1994 SC 1074, i.e.
20.11.1990, and as there was no requirement of issuing a second show
cause notice before the punishment was imposed, the question of
serving the copy of the reasons recorded for dis-agreement to the
delinquent would not arise.
Hence, this appeal.
4. Mr. P.S. Patwalia, learned senior counsel appearing for the
appellant has submitted that the Division Bench has not examined the
case in correct perspective and failed to appreciate that the judgment
in ECIL (supra) had no application in the instant case. The matter was
squarely covered by the judgment of this court in Punjab National Bank
& Ors. v. Kunj Behari Misra, AIR 1998 SC 2713, and the ratio thereof
had correctly been applied by the learned Single Judge. Thus, the
appeal deserves to be allowed.
5. Per contra, Mr. Rajesh Kumar, learned counsel appearing for the
respondent Bank has defended the judgment of the Division Bench
contending that there was no requirement of serving the recorded
reasons for dis-agreement by the Disciplinary Authority to the
delinquent if such a decision was taken prior to the date of decision
of ECIL (supra) i.e. 20.11.1990, and therefore, no interference is
required in the appeal.
6. We have considered the rival submissions made by learned counsel
for the parties and perused the record.
7. In view of the rival submissions made by the learned counsel for
the parties, two separate issues are involved in the instant case,
namely, (a) requirement of issuing a second show cause notice by the
Disciplinary Authority to the delinquent before imposing the
punishment; and (b) serving the copy of the reasons recorded by the
Disciplinary Authority disagreeing with the findings recorded by the
Enquiry Officer.
In the case of ECIL (supra), only the first issue was involved
and in the facts of this case, only second issue was involved. The
second issue was examined and decided by a three-Judge Bench of this
Court in Kunj Behari Misra (supra), wherein the judgment of ECIL
(supra) has not only been referred to, but extensively quoted, and it
has clearly been stipulated that wherein the second issue is involved,
the order of punishment would stand vitiated in case the reasons so
recorded by the Disciplinary Authority for dis-agreement with the
Enquiry Officer had not been supplied to the delinquent and his
explanation had not been sought. While deciding the said case, the
court relied upon the earlier judgment of this court in Institute of
Chartered Accountants of India v. L.K. Ratna, AIR 1987 SC 71.
8. Kunj Behari Misra (supra) itself was the case where the
Disciplinary Authority disagreed with the findings recorded by the
Enquiry Officer on 12.12.1983 and passed the order on 15.12.1983
imposing the punishment, and immediately thereafter, the delinquent
officers therein stood superannuated on 31.12.1983. In Kunj Behari
Misra (supra), this court held as under:
“19. The result of the aforesaid discussion would be that the
principles of natural justice have to be read into Regulation
7(2). As a result thereof, whenever the disciplinary authority
disagrees with the enquiry authority on any article of charge,
then before it records its own findings on such charge, it must
record its tentative reasons for such disagreement and give to
the delinquent officer an opportunity to represent before it
records its findings. The report of the enquiry officer
containing its findings will have to be conveyed and the
delinquent officer will have an opportunity to persuade the
disciplinary authority to accept the favourable conclusion of
the enquiry officer. The principles of natural justice, as we
have already observed, require the authority which has to take a
final decision and can impose a penalty, to give an opportunity
to the officer charged of misconduct to file a representation
before the disciplinary authority records its findings on the
charges framed against the officer.” (Emphasis
added)
The Court further held as under:
“21. Both the respondents superannuated on 31-12-1983. During
the pendency of these appeals, Misra died on 6-1-1995 and his
legal representatives were brought on record. More than 14 years
have elapsed since the delinquent officers had superannuated. It
will, therefore, not be in the interest of justice that at this
stage the cases should be remanded to the disciplinary authority
for the start of another innings.”
9. The view taken by this Court in the aforesaid case has
consistently been approved and followed as is evident from the
judgments in Yoginath D. Bagde v. State of Maharashtra & Anr., AIR
1999 SC 3734; State Bank of India & Ors. v. K.P. Narayanan Kutty, AIR
2003 SC 1100; J.A. Naiksatam v. Prothonotary and Senior Master, High
Court of Bombay & Ors., AIR 2005 SC 1218; P.D. Agrawal v. State Bank
of India & Ors., AIR 2006 SC 2064; and Ranjit Singh v. Union of India
& Ors., AIR 2006 SC 3685.
10. In Canara Bank & Ors. v. Shri Debasis Das & Ors., AIR 2003 SC
2041,
this Court explained the ratio of the judgment in Kunj Behari
Misra (supra), observing that it was a case
where the disciplinary
authority differed from the view of the Inquiry Officer.
“In that
context, it was held that denial of opportunity of hearing was per se violative of the principles of natural justice.”
11. In fact, not furnishing the copy of the recorded reasons for
disagreement from the enquiry report itself causes the prejudice to
the delinquent and therefore, it has to be understood in an entirely
different context than that of the issue involved in ECIL (supra).
12. The learned Single Judge has concluded the case observing as
under:
“The whole process that resulted in dismissal of the petitioner
is flawed from his inception and
the order of dismissal cannot be sustained.
I am examining this case after nearly 23 years after its institution and the petitioner has also attained the age of superannuation.
The issue of reinstatement or giving him the benefit of his wages for during the time when he did not serve will not be appropriate.
The impugned orders of dismissal
are set aside and the petitioner shall be taken to have retired on the date when he would have superannuated and all the terminal benefits shall be worked out and paid to him in 12 weeks on such basis.
There shall be, however, no direction for
payment of any salary for the period when he did not work.”
13. As the case is squarely covered by the judgment of this court in Kunj Behari Misra (supra), we do not see any reason to approve the impugned judgment rendered by the Division Bench.
Thus, in view of the above, the appeal is allowed. The judgment and order of the Division Bench is set aside and that of the learned Single Judge is restored. No costs.
…….………………….…J.
(Dr. B.S. Chauhan)
………………………….J.
(S.A. Bobde)
New Delhi,
July 4, 2013
?
-----------------------
8
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL
APPELALTE JURISDICTION
CIVIL APPEAL NO. 5128 OF 2013
(Arising out of SLP (C) No. 39105 of 2012)
S.P. Malhotra …Appellant
Versus
Punjab National Bank & Ors. …Respondents
O R D E R
1. Leave granted.
2. This appeal has been preferred against the impugned judgment and
order dated 25.9.2012 passed by the High Court of Punjab and Haryana
at Chandigarh in L.P.A.No. 2028 of 2011, by way of which it has
reversed the judgment and order of the learned Single Judge dated
20.5.2011 passed in Writ Petition No. 1201 of 1988, by which and
whereunder the learned Single Judge had awarded the relief to the
appellant herein on the ground that
in case the Disciplinary Authority
does not agree with the findings recorded by the Enquiry Officer in disciplinary proceedings,
the Disciplinary Authority must record reasons for disagreement and communicate the same to the delinquent
and seek his response and only after considering the same, he could pass the order of punishment.
3. Facts and circumstances giving rise to this appeal are that:
A. The appellant was appointed as Clerk/Cashier in the respondent
Bank in the year 1969 and was promoted as Accountant in the year 1977,
and further promoted as Assistant Manager in the year 1981.
The
Disciplinary Authority put him under suspension in November, 1982 for
certain delinquencies and in respect of the same, a chargesheet dated
7.2.1983 was served upon him containing four charges namely:
(i) Tampering with official record to the detriment of the Bank’s
interest;
(ii) Indulging in un-authorized business against the interest of
the Bank;
(iii) Mis-utilising official position to benefit relatives and
friends against the interest of the Bank; and
iv) Concealment of facts from the authorities.
B. The appellant submitted his reply to the said charges in July,
1983 denying all the allegations and further submitting that it was
the Branch Manager who had sanctioned all the loans and advances and all the entries had been made at his behest.
As the Disciplinary
Authority was not satisfied with the reply submitted by the appellant,
an Enquiry Officer was appointed to examine the charges.
C. After conducting and concluding the enquiry, the Enquiry Officer submitted report dated 27.2.1985 exonerating the appellant on all the charges and in support of the findings sufficient reasons had been given on each charge.
D. The Disciplinary Authority partly agreed with the findings on
charge Nos. (ii) and (iii), but disagreed with the findings qua charge
Nos. (i) and (iv), and vide order dated 27.4.1985 imposed the
punishment of dismissal from service.
E. Aggrieved, the appellant preferred the appeal against the said
order under Regulation 17 of the Punjab National Bank
Officers/Employees (Discipline and Appeal) Regulation 1977
(hereinafter referred to as the ‘Regulations), and the appeal was
dismissed vide order dated 14.8.1985 by the Appellate Authority.
The
Appellate Authority also concurred with the findings on two charges
recorded by the Enquiry Officer.
F. Being aggrieved of the order of the Appellate Authority, the
appellant filed review petition under Regulation 18 of the Regulations
and the said review petition was also dismissed vide order dated
19.8.1987.
G. The appellant challenged the said orders of punishment by filing
a Writ Petition No. 1201 of 1988 before the High Court of Punjab and Haryana at Chandigarh. The said writ petition was contested by the respondent Bank. The learned Single Judge allowed the said writ petition vide judgment and order dated 20.5.2011, holding that in case the Disciplinary Authority disagrees with the findings recorded by the Enquiry Officer, he must record reasons for the dis-agreement and communicate the same to the delinquent seeking his explanation and after considering the same, the punishment could be passed. In the
instant case, as such a course had not been resorted to, the punishment order stood vitiated.
H. Aggrieved, the respondent Bank preferred LPA before the Division
Bench which has been allowed taking a view that as the punishment had
been imposed prior to the date of judgment in Managing Director, ECIL,
Hyderabad, etc.etc. v. B. Karunakar etc.etc., AIR 1994 SC 1074, i.e.
20.11.1990, and as there was no requirement of issuing a second show
cause notice before the punishment was imposed, the question of
serving the copy of the reasons recorded for dis-agreement to the
delinquent would not arise.
Hence, this appeal.
4. Mr. P.S. Patwalia, learned senior counsel appearing for the
appellant has submitted that the Division Bench has not examined the
case in correct perspective and failed to appreciate that the judgment
in ECIL (supra) had no application in the instant case. The matter was
squarely covered by the judgment of this court in Punjab National Bank
& Ors. v. Kunj Behari Misra, AIR 1998 SC 2713, and the ratio thereof
had correctly been applied by the learned Single Judge. Thus, the
appeal deserves to be allowed.
5. Per contra, Mr. Rajesh Kumar, learned counsel appearing for the
respondent Bank has defended the judgment of the Division Bench
contending that there was no requirement of serving the recorded
reasons for dis-agreement by the Disciplinary Authority to the
delinquent if such a decision was taken prior to the date of decision
of ECIL (supra) i.e. 20.11.1990, and therefore, no interference is
required in the appeal.
6. We have considered the rival submissions made by learned counsel
for the parties and perused the record.
7. In view of the rival submissions made by the learned counsel for
the parties, two separate issues are involved in the instant case,
namely, (a) requirement of issuing a second show cause notice by the
Disciplinary Authority to the delinquent before imposing the
punishment; and (b) serving the copy of the reasons recorded by the
Disciplinary Authority disagreeing with the findings recorded by the
Enquiry Officer.
In the case of ECIL (supra), only the first issue was involved
and in the facts of this case, only second issue was involved. The
second issue was examined and decided by a three-Judge Bench of this
Court in Kunj Behari Misra (supra), wherein the judgment of ECIL
(supra) has not only been referred to, but extensively quoted, and it
has clearly been stipulated that wherein the second issue is involved,
the order of punishment would stand vitiated in case the reasons so
recorded by the Disciplinary Authority for dis-agreement with the
Enquiry Officer had not been supplied to the delinquent and his
explanation had not been sought. While deciding the said case, the
court relied upon the earlier judgment of this court in Institute of
Chartered Accountants of India v. L.K. Ratna, AIR 1987 SC 71.
8. Kunj Behari Misra (supra) itself was the case where the
Disciplinary Authority disagreed with the findings recorded by the
Enquiry Officer on 12.12.1983 and passed the order on 15.12.1983
imposing the punishment, and immediately thereafter, the delinquent
officers therein stood superannuated on 31.12.1983. In Kunj Behari
Misra (supra), this court held as under:
“19. The result of the aforesaid discussion would be that the
principles of natural justice have to be read into Regulation
7(2). As a result thereof, whenever the disciplinary authority
disagrees with the enquiry authority on any article of charge,
then before it records its own findings on such charge, it must
record its tentative reasons for such disagreement and give to
the delinquent officer an opportunity to represent before it
records its findings. The report of the enquiry officer
containing its findings will have to be conveyed and the
delinquent officer will have an opportunity to persuade the
disciplinary authority to accept the favourable conclusion of
the enquiry officer. The principles of natural justice, as we
have already observed, require the authority which has to take a
final decision and can impose a penalty, to give an opportunity
to the officer charged of misconduct to file a representation
before the disciplinary authority records its findings on the
charges framed against the officer.” (Emphasis
added)
The Court further held as under:
“21. Both the respondents superannuated on 31-12-1983. During
the pendency of these appeals, Misra died on 6-1-1995 and his
legal representatives were brought on record. More than 14 years
have elapsed since the delinquent officers had superannuated. It
will, therefore, not be in the interest of justice that at this
stage the cases should be remanded to the disciplinary authority
for the start of another innings.”
9. The view taken by this Court in the aforesaid case has
consistently been approved and followed as is evident from the
judgments in Yoginath D. Bagde v. State of Maharashtra & Anr., AIR
1999 SC 3734; State Bank of India & Ors. v. K.P. Narayanan Kutty, AIR
2003 SC 1100; J.A. Naiksatam v. Prothonotary and Senior Master, High
Court of Bombay & Ors., AIR 2005 SC 1218; P.D. Agrawal v. State Bank
of India & Ors., AIR 2006 SC 2064; and Ranjit Singh v. Union of India
& Ors., AIR 2006 SC 3685.
10. In Canara Bank & Ors. v. Shri Debasis Das & Ors., AIR 2003 SC
2041,
this Court explained the ratio of the judgment in Kunj Behari
Misra (supra), observing that it was a case
where the disciplinary
authority differed from the view of the Inquiry Officer.
“In that
context, it was held that denial of opportunity of hearing was per se violative of the principles of natural justice.”
11. In fact, not furnishing the copy of the recorded reasons for
disagreement from the enquiry report itself causes the prejudice to
the delinquent and therefore, it has to be understood in an entirely
different context than that of the issue involved in ECIL (supra).
12. The learned Single Judge has concluded the case observing as
under:
“The whole process that resulted in dismissal of the petitioner
is flawed from his inception and
the order of dismissal cannot be sustained.
I am examining this case after nearly 23 years after its institution and the petitioner has also attained the age of superannuation.
The issue of reinstatement or giving him the benefit of his wages for during the time when he did not serve will not be appropriate.
The impugned orders of dismissal
are set aside and the petitioner shall be taken to have retired on the date when he would have superannuated and all the terminal benefits shall be worked out and paid to him in 12 weeks on such basis.
There shall be, however, no direction for
payment of any salary for the period when he did not work.”
13. As the case is squarely covered by the judgment of this court in Kunj Behari Misra (supra), we do not see any reason to approve the impugned judgment rendered by the Division Bench.
Thus, in view of the above, the appeal is allowed. The judgment and order of the Division Bench is set aside and that of the learned Single Judge is restored. No costs.
…….………………….…J.
(Dr. B.S. Chauhan)
………………………….J.
(S.A. Bobde)
New Delhi,
July 4, 2013
?
-----------------------
8
