HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT APPEAL NO. 218 OF 2011 Between: The Chairman and Managing Director, Singareni Collieries Company Limited and one another ………….Appellants AND M. Yadagiri S/o M. Manikaiah ………….Respondent JUDGMENT : (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Appeal is preferred against the judgment rendered by the learned Single Judge, who allowed the Writ Petition preferred by the respondent quashing the orders passed by the appellants imposing upon him the punishment of removal from service. For convenience, we will refer the appellants as Singareni Collieries Company. The respondent initially joined service of the Singareni Collieries Company as Assistant Engineer in the year 1975 and later on earned promotions as Executive Engineer and Divisional Engineer in the year 1980 and 1984 respectively. He was subjected to disciplinary proceedings by drawing a charge sheet against him on 27th April 1993 alleging certain irregularities in the allotment of coal. The explanation submitted by the petitioner did not satisfy the authorities and consequently departmental enquiry was ordered to be conducted and in the said enquiry 14 witness were examined and 62 documents were marked on behalf of the Management, whereas the respondent-employee examined himself was marked 293 exhibits. During the period 1988-89 the respondent worked as Divisional Engineer (Marketing) and was thus in-charge of load movement of coal. Though there was no procedure laid down by the Singareni Collieries Company in the matter for allotment of coal to Small-Scale Industries. However, the following procedure was found to be followed by them. “ The Small Scale Industrial Units (SSIU) had to supply to their respective District Industry Centres (DIC) for recommendation to Singareni Collieries Company Limited for allotment of coal. The Inspection of DICs, then to the SSIU concern and then submit a inspection report to the GMDIC, who in turn would send necessary recommendation for allotment of coal for a period of three months enclosing therewith the inspection report and a copy of the SSIU registration.” On receipt of the recommendation from the DIC, proposals used to be put up for allotment of coal and the said proposals were required to be endorsed by the Divisional Engineer (Marketing), who supposed to check up the enclosures of the proposal and point out the deficiencies, if any. Some of the Small Scale Industrial Units seem to have created false fake recommendation letters from the DIC concern. After considering the entire material, the Enquiry Officer has arrived at a fining that the case appears to be one of negligence of one’s duty rather than that of a grave misconduct and accordingly, submitted the enquiry report on 14.11.1998. The disciplinary authority conquered with the finding of the Enquiry Officer that there was negligence on the part of the charged officer (the writ petitioner) in allotment of coal to five fictitious/bogus consumer units. However, the disciplinary authority proceeded further and held that the findings of the Enquiry Officer that the charges against the petitioner are not proved, are not acceptable to him and assigned six reasons in support of the said disagreements. But at the same time the Chairman and Managing Director, Singareni Collieries Company, who is the authority, had agreed that the charge of acting dishonestly under Rule 5.1 of Company’s Conduct, Discipline and Appeal Rules is, however, hardly established. This disagreement was concluded by the disciplinary authority on 23rd April 1999. Thereafter, a show cause notice was issued to the writ petitioner on 24.4.1999 enclosing thereto the report of the Enquiry Officer dated 14.11.1998 and the findings of the disagreements recorded by the Chairman and Managing Director/Disciplinary Authority dated 23.4.1999. In response to the show cause notice on 3.5.1999, the writ petitioner has clearly pointed out that the findings of the disagreement recorded by the disciplinary authority is contrary to the principles of natural justice inasmuch as the show cause notice has been issued to him after the disagreement is recorded unilaterally. Notwithstanding the objection raised with regard to the disagreement recorded by the disciplinary authority, the disciplinary authority analysed the proceedings on 23.11.2000 imposing the punishment of removal from service on the petitioner, which gave raise to the institution of the writ petition. The learned Single Judge has noticed the principle enunciated by the Supreme Court in PUNJAB NATIONAL BANK VS. KUNJ BEHARI MISRA[1], wherein the Supreme Court has categorically held that if the disciplinary authority differs from the finding recorded in the Enquiry Report, it is necessary that its provisional conclusions in that behalf should be specified in the notice and provide an opportunity to the employee before the disagreement is recorded. Thus the Hon’ble Supreme Court settled the controversy in that regard. In view of the violation of the principles of natural justice, which gravely vitiated the order of punishment imposed on the petitioner, the said order of punishment was set aside and the writ petitioner was declared as entitled for consequential benefits there from. We have heard at great length Ms. Uma, learned Standing Counsel for Singareni Collieries Company. Learned Standing Counsel would contend that a notice was issued to the writ petitioner on 24.4.1999 providing him an opportunity to represent against the disagreement of findings by the disciplinary authority. The petitioner in fact has drawn a detailed explanation on 3.5.1999 and after taking the same into consideration, the order of punishment was passed by the competent authority on 23.11.2000 and hence, the cause of the writ petitioner has not suffered any prejudice. The learned counsel for the appellant also would contend that at the relevant point of time, the judgment rendered by the Supreme Court in STATE BANK OF INDIA, BHOPAL VS. S.S. KOSHAL[2], was holding the field and hence, the learned Single Judge ought not have found fault with the order of punishment imposed by the Singareni Collieries Company. We are not in a position to agree with the contentions canvassed by the learned counsel for the appellants, as by 23.11.2000, the date on which the punishment of removal was imposed on the writ petitioner, the law was crystallized by the judgment of the three Judge bench in PUNJAB NATIONAL BANK VS. KUNJ BEHARI MISRA (supra-1), which has in fact noticed the earlier judgment rendered in RAMKISHAN VS. UNION OF INDIA [3], which took a different view from the STATE BANK OF INDIA, BHOPAL VS. S.S. KOSHAL (supra-2). That is how the matter came to be considered by three Judge bench in PUNJAB NATIONAL BANK VS. KUNJ BEHARI MISRA (supra-1). Therefore, by 1998 itself, the relevant legal principle has been settled by the Supreme Court. Even otherwise, the findings of the Enquiry Officer, are clearly in favour of the writ petitioner. His report was submitted on 14.11.1998. Immediately thereafter, the disciplinary authority has concluded the issue of disagreement. He has not kept his mind open by merely recording any provisional conclusions with regard to the disagreement and on the other hand, the memorandum dated 23rd April 1999 clearly discloses his firm opinion recorded with regard to the disagreements. Therefore, he has concluded the issue with regard to recording of adverse findings against the writ petitioner-employee. On the very next date i.e. on 24.4.1999, the writ petitioner was put on notice by supplying the copy of the enquiry officer’s report as well as the memorandum of disagreement recorded by the disciplinary authority. In other words, after a final decision, with regard to disagreement has been taken by the disciplinary authority, the writ petitioner-employee was put on notice. Clearly such an attempt amounts to putting the cart before the horse. For sheer violation of principles of natural justice by not providing an opportunity to the writ petitioner- employee before adverse findings are recorded against him, the impugned order cannot be held sustainable. Even otherwise, when we have gone through carefully the findings of the Enquiry Officer and the reasons assigned by the disciplinary authority for disagreement therefrom, we observe that the writ petitioner-employee has not played any role in the fictitious bogus claims made by the Small Scale Industrial Units, seeking allotment of coal. At best he can be held negligent in not scrutinising the claims meticulously and instead trusting their veracity on the face of it. Therefore, the punishment of removal from service is too grossly disproportionate to the quantum of misconduct attributable to the writ petitioner-appellant. Therefore, we find no merit in this Writ Appeal, for us to interfere with the order passed by the learned Single Judge and accordingly, the same is dismissed. There shall be no order as to costs. ________________________ GHULAM MOHAMMED, J ________________________________ NOOTY RAMAMOHANA RAO, J DATE: 21.12.2011 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies. [1] (1998)7 SCC 84 [2] 1994 SUPP (2) SCC 468 [3] (1995) 6 SCC 157