NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 1 NATHU SINGH VS. BOARD OF DIRECTORS, MARWAR GRAMIN BANK, PALI & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) Dated:- 24th March, 2009. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr. K.S.Rathore, for the appellant. Mr. Jagdish Vyas, for the respondents. BY THE COURT(PER HON'BLE MR.SANGEET LODHA,J.) 1. This special appeal is directed against order dated 3.3.2000 passed by the learned Single Judge of this court, whereby the writ petition preferred by the appellant assailing the validity of the order passed by the Disciplinary Authority imposing punishment of withholding one annual grade increment without cumulative effect, confirmed by the appellate authority, stands dismissed. 2. The appellant was posted as Branch Manager, Marwar Gramin Bank, Branch at Rohit, District Pali. The audit inspection of the said branch of the Bank was conducted by the audit party wherein, certain irregularities committed by the appellant were detected. A preliminary inquiry was conducted by an officer appointed by the respondent Bank wherein the irregularities committed were confirmed. After going through the preliminary inquiry report as also the audit report, the competent authority vide communication dated 9.5.95 sought explanation of the NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 2 appellant regarding the allegations summarised therein. On 10.8.95, the appellant submitted his reply denying the allegations levelled and requested to close the disciplinary proceedings sought to be initiated against him. The explanation submitted by the appellant was not found satisfactory therefore, vide memorandum dated 10.9.96 the appellant was served with the statement of allegations alongwith the charge sheet issued by the Disciplinary Authority wherein four charges of misconduct were levelled against him. The appellant did not file reply to the charge sheet however, vide letter dated 18.5.98 he submitted that the reply dated 10.8.95 already filed by him may be treated to be his explanation and further action may be taken accordingly. The Disciplinary Authority without holding any regular inquiry into the charges of misconduct levelled against the appellant, after considering the material on record including the statement of witnesses recorded during preliminary inquiry and the explanation submitted the appellant vide reply dated 10.8.95, found all the four charges duly proved against the appellant and accordingly, vide order dated 8.7.98 proposed to impose punishment of withholding one annual grade increment without cumulative effect for the year 1999 upon the appellant in terms of Regulation 30(1)(b) of the Marwar Gramin Bank Staff Service Regulations,1980(in short “Regulations 1980” NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 3 hereinafter). The appellant was directed to show cause against the proposed punishment and was called for personal hearing on 18th August,1998. The appellant submitted his written explanation and also availed the opportunity of personal hearing. After considering the submissions made on behalf of the appellant, the Disciplinary Authority vide order dated 8.9.98 (Annexure 12) holding the appellant guilty of all the four charges imposed the punishment of withholding one grade increment without cumulative effect for the year 1999 as proposed. 3. Aggrieved by the punishment order dated 8.9.98 , the appellant preferred an appeal before the appellate authority i.e. the Board of Directors of the respondent Bank. After considering the grounds of appeal, the Appellate Authority while agreeing with the findings and decision of the Disciplinary Authority in imposing the penalty of withholding the one annual grade increment without cumulative effect imposed upon the appellant , rejected the appeal preferred by the appellant vide resolution No. 16 adopted in the meetings of the Board of Directors of the respondent Bank on 17.12.98. 4. The legality and propriety of the order dated 8.9.98 passed by the Disciplinary Authority and the appellate order dated 17.12.98 passed by the Appellate Authority was assailed by the appellant by way of writ petition before this court inter alia on NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 4 the ground that as per the provisions of Regulation 30(3) read with clause 5 of the “Guidelines for The procedure to be adopted for Disciplinary Action in the Regional Rural Banks” (in short 'the Guidelines') even the preliminary inquiry into the allegations levelled is required to be conducted by an officer who is superior of the delinquent official and who is administratively authorised in this behalf whereas, the preliminary inquiry in the instant case was conducted by an officer Mr. G.B.Goswami, who is junior to the appellant, which vitiates the entire inquiry. That apart, it was submitted that the orders impugned passed by the Disciplinary Authority and the Appellate Authority are solely based on preliminary inquiry report submitted by Mr.G.B.Goswami and no other evidence or record was collected by the Disciplinary Authority during the departmental inquiry and thus, the order impugned passed without holding a proper inquiry are illegal, improper , unjust and without jurisdiction. It was submitted that in view of the provisions of Regulation 30(2) of the Regulations 1980 read with the paras 11 to 19 of the Guidelines laying down the procedure for disciplinary action against the delinquent official the requirement of holding the regular inquiry into the charges of misconduct levelled against the appellant could not have been dispensed with and therefore, the orders impugned passed by the Disciplinary Authority and the Appellate Authority NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 5 are not sustainable in eye of law. 5. The learned Single Judge has dismissed the writ petition by the order impugned in this appeal holding that the concurrent orders by which punishment was imposed for certain misconduct suffers from no jurisdictional error of substantive nature . The learned Single Judge opined that minor infraction of the disciplinary rules do not require interference by this court under Article 226 of the Constitution of India. 6. It is submitted by the learned counsel for the appellant that the learned Single Judge has erred in holding that the orders impugned passed by the Disciplinary Authority and the Appellate Authority of the respondent Bank does not suffer from any jurisdictional error of substantive nature. The learned counsel submitted that admittedly, the charge sheet was issued to the appellant on the basis of the preliminary inquiry conducted at the back of the appellant by a person though of equal rank but junior to him . It is submitted by the learned counsel that the charges levelled against the appellant were denied by him therefore, the Disciplinary Authority was under an obligation to hold a proper inquiry into the charges of misconduct levelled against the appellant in accordance with the procedure laid down under Regulation 30(2) read with para 11 to 19 of the Guidelines laying down the procedure for disciplinary action but admittedly, NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 6 after submission of the explanation by the appellant denying the charges , no inquiry whatsoever worth the name was conducted by the Disciplinary Authority and the findings of guilt recorded against the appellant for the each charge is solely based on the material collected during the preliminary inquiry. In this view of the matter, it is submitted by the learned counsel that the orders impugned passed in gross violation of the provisions of the Regulation 30(2) of the Regulation 1980 read with the Guidelines prescribing the procedure for the disciplinary action against a delinquent official so also the principles of natural justice, are not sustainable in eye of law and deserves to be quashed and set aside. In support of his contentions, the learned counsel has relied upon a Bench decision of this Court in the matter of “Rampal Chouhan vs. Marwar Gramin Bank & Anr.”, RLW 2004 (4) Raj., 2700. The learned counsel submitted that the grounds raised by the appellant regarding infraction of the provisions governing the disciplinary action against an official of the respondent Bank have simply not been considered by the Appellate Authority. It is submitted by the learned counsel that the order passed by the Appellate Authority is a non speaking order and the same deserves to be set aside on this count alone. 7. Per contra, learned counsel appearing on behalf of the respondents while reiterating the submissions made by the NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 7 respondents in the reply to the writ petition filed in this special appeal, submitted that it is incorrect that Shri G.B.Goswami is the person junior to the appellant inasmuch as, the seniority list Annexure 1, annexed with the writ petition was kept in abeyance vide order dated 27.5.92. However, it is not disputed by the learned counsel for the respondents that Shri G.B.Goswami was an officer of the equal grade and not an officer superior to the appellant. It is submitted by the learned counsel that Regulation 30(3) of the Regulations 1980 providing for the proceedings to be taken against a delinquent official by an officer who is in a grade higher then, such official deals with the formal disciplinary inquiry and the same cannot be invoked for the purpose of preliminary inquiry i.e. at the stage prior to commencement of the disciplinary inquiry into the charges of misconduct levelled against a delinquent official. Regarding not holding the regular inquiry into the charges according to the procedure laid down under Regulation 30(2) of the Regulations, 1980 and the Guidelines , the learned counsel submitted that for imposing minor penalty, no regular inquiry in accordance with the procedure prescribed under the Guidelines is required to be conducted and the appropriate order can be passed by the Disciplinary Authority straight away after considering the explanation of the delinquent official to the charges of NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 8 misconduct levelled against him, therefore, the order impugned passed by the Disciplinary Authority, confirmed by the Appellate Authority does not suffer from any infirmity or illegality. It is further submitted by the learned counsel that vide communication dated 18.5.98 while adopting the explanation to the allegation submitted on 10.8.95 as a reply to the charge sheet, the appellant had requested to take further action accordingly, therefore, it was not incumbent upon the Disciplinary Authority to make further inquiry into the charges of misconduct levelled against the appellant and for this reason also, the order passed by the Disciplinary Authority imposing the punishment after due consideration of the explanation of the appellant cannot be faulted with. The learned counsel submitted that the Appellate Authority has duly considered the submissions made by the appellant even with regard to alleged violation of the procedure laid down for holding the disciplinary inquiry, therefore, the contention of the learned counsel for the appellant that the Appellate Authority has not considered the grounds of appeal is ex facie incorrect. 8. We have considered the rival submissions and perused the material on record. 9. Admittedly, the disciplinary action against a delinquent official of the respondent Bank is governed by Regulation 30 of NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 9 the Regulations 1980. It will be beneficial to reproduce sub- regulation 1 to 3 of Regulation 30 which are germane to the controversy involved in this appeal:- “30.(1) Without prejudice to the provisions of other regulations, an officer or employee who commits a breach of these regulations or who displays negligence, inefficiency or indolence, or who knowingly does anything detrimental to the interests of the Bank or in conflict with its instructions or who commits a breach of discipline or is guilty of any other act or misconduct, shall be liable to the following penalties- (a) reprimand: (b) delay or stoppage of increments or promotion; ( c) degradation to a lower post or grade or to a lower stage in his incremental scale; (d) recovery from pay of the whole or part of any pecuniary loss caused to the Bank by the officer or employee; (e)Removal from service which shall not be a disqualification for future employment; (f) dismissal. (2) No officer or employee shall be subjected to the penalties referred to in clause(b), (c ), (d) or (f) of sub- regulation (1) except by an order in writing signed by the Chairman and no such order shall be passed without the charge being formulated in writing and given to the said officer or employee so that he shall have reasonable opportunity to answer them in writing or in person, as he prefers and in the latter case his defence shall be taken down in writing and read to him: Provided that the requirements of this sub- regulation may be waived, if the facts on the basis of which action is to be taken have been established in a court of law or court martial, or where the officer or employee has absconded or where it is for any other reason impracticable to communicate with him or where there is difficulty in observing them and the requirements of this sub-regulation are waived, the reasons for so doing shall be recorded in writing. NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 10 (3) The inquiry under this regulation and the procedure with the exception of the final order, may be delegated in case the persons against whom proceedings are taken is an officer to any officer who is in a grade higher than such officer and in the case of an employee to any officer. For purposes of the inquiry, the officer or employee may not engage a legal practitioner. (4) ..... xxxxx ..... xxxxxxxx” 10. A bare perusal of Regulation 30 goes to show that the minor and major penalties have not been separately defined and as per sub-regulation 2 of the Regulation 30 , the procedure to be adopted for imposition of any of the penalties referred to in clause (b) to (f) of sub-regulation 1, is the same and no separate procedure has been prescribed with regard to the imposition of the penalties which are treated to be minor penalties. It is not in dispute that under the Regulations 1980 , the detailed procedure for the inquiry has not been prescribed but the same stands supplemented by way of the Guidelines. Clause 5 of the Guidelines which deals with the “Preliminary Action” specifically provides that as soon as an act of misconduct is brought to the bank's notice , an officer who is superior of the official and who is administratively authorised in this behalf should conduct a preliminary investigation and on the basis of the results of such investigation,issue to the delinquent official a memorandum/ letter stating therein a clear and precise manner the facts and circumstances of the incident and advising the official to submit his explanation in regard to the alleged misconduct by a specified NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 11 date. It is only after due consideration of the explanation of the delinquent employee that the decision to initiate or to drop the disciplinary proceedings against the official concerned is taken by the Disciplinary Authority. As per clause 10 of the Guidelines, in every case of disciplinary action, where a charge sheet has been issued, it is necessary to have a formal inquiry. However, if the official admits the charges unconditionally and does not plead extenuating circumstances, the Disciplinary Authority may decide to dispense with the formal inquiry and proceed to record his findings and proposed such penalty or penalties as may be considered fit and proper and issue notice of the proposed penalties to the delinquent officials and call upon him why such penalty should not be imposed. But, it is specifically provided that if the admission of the charges by the official is subject to conditions or subject to certain extenuating circumstances mentioned in the admission or the charges involved a major misconduct then, it may be necessary and advisable to hold a formal inquiry. 11. In the instant case, it is not even the stand taken by the respondents that by way of explanation dated 10.8.95 which was adopted by the appellant as reply to the charge sheet , the appellant had admitted the charges levelled against him. To the contrary, a bare perusal thereof reveals that all the allegations NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 12 levelled were specifically denied by the appellant and he had categorically stated that he has not committed the irregularities as alleged. Merely because, the appellant had made a prayer to consider the explanation submitted by him in response to the allegations levelled after the preliminary inquiry as reply to the charge sheet and to take further action accordingly, in no manner, it can be inferred that the appellant had admitted the charges or that he desired that no formal inquiry into the charges of misconduct levelled against him is required to be taken and the Disciplinary Authority may pass an appropriate order without holding any formal inquiry. In this view of the matter, the order impugned passed by the Disciplinary Authority, affirmed by the Appellate Authority without holding a formal inquiry into the charges of misconduct levelled against the appellant, is ex facie illegal , arbitrary, unjust & unreasonable and therefore, deserves to be quashed and set aside. 12. It is to be noticed that the preliminary inquiry into the alleged irregularities said to have been committed by the appellant was conducted by an officer not superior to the appellant which is ex facie in contravention of para 5 of the Guidelines. Moreover, a bare perusal of the order passed by the Disciplinary Authority goes to show that the findings arrived against the appellant on each charge is solely based on the NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 13 material collected during the preliminary inquiry including the statement of the witnesses which were recorded at the back of the appellant and no opportunity whatsoever was afforded to him to cross examine them. In our considered opinion, the statements of the witnesses recorded during the preliminary inquiry which were not subjected to cross examination have no evidentiary value and the same could not have been relied upon by the Disciplinary Authority while arriving at the finding of guilt against the appellant. 13. It is true that the strict rules of evidence do not apply to the disciplinary proceedings but then it is fundamental principle of the administration of the justice that every man must be afforded an opportunity to cross-examine the witnesses whose evidence is to be used against him. As laid down by a Bench of this Court in the Rampal Chouhan's case (supra) the normal rule is that the statement of the witness should be recorded in presence of the delinquent officer even if there is departure to the normal rule, such a statement has to be subjected to cross- examination. In this view of the matter, in our considered opinion, the disciplinary proceedings taken against the appellant in gross violation of the principle of natural justice is total farce and stands vitiated on this count alone. 14. Coming to the Appellate order , it is to be noticed that in NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 14 the appeal preferred, the appellant has taken the specific ground regarding infraction of the provisions of Regulation 30 and the various clauses of the Guidelines governing the procedure for disciplinary action against a delinquent official. However, a perusal of the appellate order reveals that though the Appellate Authority has noticed the contentions of the appellant but while passing the order impugned, no findings whatsoever have been recorded thereupon and the same have been brushed aside without consideration. Thus, the order passed by the Appellate Authority suffers from vice of the non application of the mind and deserves to be quashed for this reason alone. 15. In view of the discussion above, in our considered opinion, the learned Single Judge has fallen in error in holding that there is no jurisdictional error of substantial nature has been committed by the authorities concerned in passing the orders impugned. To the contrary, in our opinion, the infraction of the relevant provisions noticed above governing the disciplinary action against the delinquent official goes to the root of the matter and vitiates the entire disciplinary proceedings. 16. In the result, the special appeal succeeds, it is hereby allowed. The order under appeal is set aside. The writ petition is allowed. The order dated 08.9.98 passed by the Disciplinary Authority and order dated 17.12.98 passed by the Appellate NATHU SINGH VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO. 296/2000) 15 Authority are quashed. The appellant shall be entitled for consequential benefits. No order as to costs. (SANGEET LODHA),J. (A.M.KAPADIA),J. Aditya/-