1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Shaitan Ram Choudhary. Versus General Manager (Personnel Deptt.), UCO Bank & ors. S.B. Civil Writ Petition No. 531/1998 Date of Order: January 30, 2009 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr. I.R. Choudhary, for the petitioner. Mr. Sunil Bhandari for Mr. M.R. Singhvi, for the respondents. BY THE COURT: Reportable. By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks to quash the order Annx. R/2 dated 28-6-1996 awarding the penalty of censure and a direction to consider his case for promotion on the post of Lower Division Clerk with all consequential benefits. I have heard learned counsel for the parties. During the course of arguments, learned counsel for the petitioner has confined his argument to the challenge of the impugned order Annx.R/2 dated 28-6-1996 awarding the penalty of censure to the petitioner. 2 It is contended by the learned counsel for the petitioner that the petitioner was served with the charge sheet Annx.R/1 dated 16-6-1993; however after holding an inquiry, the Enquiry Officer exonerated the petitioner, but without assigning any reasons for disagreeing with the conclusions arrived at by the Enquiry Officer, the Disciplinary Authority, vide impugned order Annx.R/2 dated 28-6-1996, held that the charge levelled against the petitioner in the charge-sheet certainly gives an indication that the petitioner is in the habit of indulging in such acts, omission and commission and thereby causes a doubtful situation. However, while deciding about the punishment, the Disciplinary Authority, after taking into account all the factors and relevant facts of the case and considering the principles of natural justice, giving benefit of doubt, imposed the penalty of censure. According to the learned counsel for the petitioner, there being absolutely no material on record to show that the petitioner is in the habit of indulging in any act prejudicial to the interest of the respondent bank, or omission or commission, mentioned in the impugned order Annx.R/2. According to the counsel for the petitioner, even there was no such charge that the petitioner is in the habit of indulging in such acts, omission and commission and, therefore, in absence of any material, it cannot be said to have established that the petitioner is, in fact, in the habit of indulging in such acts, 3 omission or commission prejudicial to the interest of the respondent bank. According to the learned counsel for the petitioner, in the charge-sheet Annx.R/1 dated 16-6-1993, there has been no such averment that the petitioner is in the habit of indulging in such act, omission or commission and the charge- sheet, as spelled in Annx.R/1 is that on 17-10-1992, while the petitioner was posted at UCO Bank, Thanwla Branch, one customer Chhitar Mal, who is said to have taken loan, came to the bank for depositing the amount of Rs.500/- as against the loan; the petitioner was asked by the Assistant Branch Manager Shri B.L. Mittal to take signatures of customer Chhitar Mal as an acknowledgement to the loan amount, but apart from taking signatures of Chhittar Mal on the loan acknowledgement, the petitioner got his signatures on two blank promissory notes. According to the learned counsel for the petitioner, this fact has not been established by the respondent bank during the inquiry and, therefore, the Enquiry Officer exonerated the petitioner. According to the learned counsel for the petitioner, it is true that the Disciplinary Authority is not bound to accept the report of the Enquiry Officer and he could have taken its own view disagreeing with the conclusions arrived at by the Enquiry Officer, but then the Disciplinary Authority was required to record the reasons of such disagreement, whereas in the order Annx.R/2, no such reasons have been assigned by the Disciplinary Authority. 4 Learned counsel for the petitioner has relied on the decisions of the Hon'ble Supreme Court in Punjab National Bank & ors. Vs. Kunj Bihari Misra, JT 1998 (5) SC 548 and Nanak Chand Vs. State of Punjab, AIR 1955 SC 274; and the decisions of this Court in Bagda Ram Vs. State of Rajasthan & ors., RLR 1992 (2) 579; Gopa Ram Vs. The State of Rajasthan & Anr., WLC 2002 (3) Raj.1 (D.B.); and Prabhu Lal Agarwal Vs. The State of Rajasthan, 1991 (2) WLC 469. Learned counsel for the respondent-bank submits that the Disciplinary Authority, while disagreeing with the conclusions of the Enquiry Officer and taking the view different than what has been taken by the Enquiry Officer, had followed the procedure prescribe and afforded an opportunity of hearing to the delinquent-petitioner. According to the learned counsel for the respondent-bank, for differing or disagreeing with the conclusions of the Enquiry Officer, what is required is to follow the principles of natural justice by affording an opportunity of hearing to the delinquent-petitioner, which has been done in the instant case. In the alternative, it has been submitted by the learned counsel for the respondent-bank that if for some reason the impugned order is held to be bad in the eye of law then the matter may be remitted to the Disciplinary Authority to proceed afresh from the stage of issuing a fresh notice to the delinquent- petitioner. Learned counsel for the respondent has relied on the 5 decisions of the Hon'ble Supreme Court in Lav Nigam Vs. Chairman & MD, ITI Ltd., & ors., (2006) 9 SCC 440; and State of Punjab & ors. Vs. Dr. Harbhajan Singh Greasy, JT 1996 (5) SC 403. I have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties. By the order Annx.6, the Disciplinary Authority forwarded a Xerox copy of the report of the Enquiry Officer received from the Enquiry Officer, whereby the Enquiry Officer concluded that as per the documents and statements of witnesses recorded, he reached to the conclusion that the charge levelled against the petitioner vide charge-sheet dated 16-6- 1993 has not been proved. Not only that, a categorical finding has been arrived at by the Enquiry Officer that neither the petitioner got the pronotes signed from Chhitar Mal, nor made an attempt to destroy the same and since the charge levelled against the delinquent-petitioner has not been proved, therefore, in view of Clause 19.5 (j) of the Bi-Party Settlement dated 19- 10-1966, the charge has not been proved against the petitioner. The report of the Enquiry Officer runs in as many as 8 pages taking note of each piece of the evidence brought before the Enquiry Officer; yet the Disciplinary Authority, by the order Annx.6, required the petitioner to make submissions, if any, within the period of 15 days. Though after elaborate inquiry, the 6 Enquiry Officer categorically recorded the finding that the charge against the petitioner has not been proved and thereafter without there being any new material before the Disciplinary Authority to call upon the petitioner to make written submission and even if the petitioner failed to make any written submission then too it cannot be construed that the charge stands proved against him. The petitioner had already made written submissions before the Enquiry Officer and the Enquiry Officer has taken into consideration the documents and the evidence produced before it and without there being any point of disagreement formulated by the Disciplinary Authority, the petitioner was hardly required to again make written submissions and even if the petitioner has not made the written submission then too for that reason, no adverse inference can be drawn against him. It was for the Disciplinary Authority to reach at its own conclusion on the basis of the material on record by assigning reasons, may be in brief, for disagreeing with the conclusion arrived at by the Enquiry Officer, which is totally missing in the instant case. In Punjab National Bank & ors. Vs. Kunj Bihari Misra (supra), the Hon'ble Supreme Court held that when the Disciplinary Authority disagrees with the finding of the Enquiry Officer, it is required to record its own reason for such disagreement and also to record its own finding on such charge 7 and is also required to give a hearing to the delinquent officer. In Bagda Ram Vs. State of Rajasthan & ors. (supra), this Court held as under:- “Thus, there was not an iota of evidence to prove that either the petitioner had left his beat duty and accompanied constable Bhagirath, or that he had stopped complainant Tulcha Ram and snatched any money from him. It has also not been proved that Tulcha Ram had identified the petitioner immediately after the alleged incident. Thus, the Enquiry Officer had correctly scanned and evaluated the evidence recorded before him and given a clear finding that the charges leveled against the petitioner were not proved. The respondent No.3 in his order dated 30- 04-1987 (EX.7) after reproducing the report of the Enquiry Officer ad-verbetum simply gave a finding that from the statement of PW 2 Onkar Singh and perusal of F.I.R. (EX.4) and the duty register, Out Post, Sojati Gate, the charge leveled against both the delinquent employees, namely the petitioner and Bhagirath Ram were proved. However, he did not give his reasons. The respondent No.2 also neither disagreed with the findings of the Enquiry Officer nor recorded any reasons nor gave any specific finding on each charge, which was essential. His findings are also not based on any evidence. It is, therefore, clear that the Disciplinary Authority did not discuss, examine and scan the evidence objectively and wrongly held the petitioner guilty of the charges leveled against him. His finding is not based on record and is clearly perverse, because mere suspicion cannot take the place of proof.” In Gopa Ram Vs. The State of Rajasthan & Anr. (supra), the Enquiry Officer held that the charges against the delinquents have not been proved, however the Disciplinary Authority disagreed with the report of the Enquiry Officer and 8 ordered compulsory retirement of the delinquents and also ordered to recover the amount from the delinquents. The order passed by the Disciplinary Authority came to be set aside by this Court. In Prabhu Lal Agarwal Vs. The State of Rajasthan & ors. (supra), while considering the provisions of rules 14 and 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958, this Court held that there is an obligation on the Disciplinary Authority to record reasons in support of the order of punishment and the reasons required to be recorded must be good and sufficient. ` The decision in Nanak Chand Vs. State of Punjab (supra) relied on by the learned counsel for the petitioner deals with Section 233 of the Code of Criminal Procedure, 1898 (old Cr.P.C.) for framing of charge and, therefore, in my view, this decision has no application to the facts and circumstances of the instant case and as such of no avail to the petitioner. In Lav Nigam Vs. Chairman & M.D., ITI Ltd. & ors (supra) relied on by the learned counsel for the respondents, the Disciplinary Authority issued merely a show cause notice against the proposed punishment and it was clear that no notice was given before the Disciplinary Authority recorded its final conclusion differing with the finding of fact of the Enquiry Officer. On these premises, the Hon'ble Supreme Court, in view 9 of the long line of authorities, held that the decision of the High Court cannot be sustained and accordingly allowed the appeal and set aside the decision of the High Court and the proceedings recommended from the stage of issuance of a fresh show cause notice by the Disciplinary Authority to the appellant therein indicating his tentative disagreement with the finding of the Enquiry Officer. In State of Punjab & ors. Vs. Dr. Harbhajan Singh Greasy (supra) relied on by the learned counsel for the respondents, the respondent therein was charged for remaining absent from duty. The Enquiry Officer submitted its report that the respondent therein has admitted that he was having a private practice at Moga during the period of his suspension in spite of the directions issued by the Government in the suspension order to remain at Headquarter. On the basis of the admission of the respondent therein, the order of removal from service came to be passed, which was challenged before the High Court, however the High Court, while allowing the writ petition, directed the reinstatement of the respondent therein. On an appeal before the Division Bench, the order of the learned Single Judge came to be confirmed. On further appeal before the Hon'ble Supreme Court, the Hon'ble Apex Court noticed that the Enquiry Officer had not taken the admission of the respondent therein in writing and subsequently the respondent 10 therein denied to have made such admission and, therefore, the Hon'ble Supreme Court held that the High Court was justified in setting aside the order of dismissal of the respondent therein. The Hon'ble Supreme Court further observed as under:- “It is now well settled law that when the enquiry was found to be faulty, it could not be proper to direct reinstatement with consequential benefits. Matter requires to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law. Pending enquiry, the delinquent must be deemed to be under suspension.” In R.R. Gabhane Vs. State of M.P. & ors., (1998) 8 SCC 549, the Hon'ble Suprem Court held as under:- “In this case the Enquiry Officer's report was in favour of the appellant delinquent officer. He had exonerated the appellant of the charges. The copy of this report was not communicated to the appellant. A show cause notice was given proposing to dismiss him from service for those charges, without indicating in any manner that the Enquiry Officer had found the charges not proved. The Enquiry Officer's report was also not supplied to the appellant. The Enquiry Officer's report came to light only when it was filed along with the counter-affidavit in the writ petition. This was not a fair thing to do. We are not going into the question whether it was obligatory upon the disciplinary authority to communicate the reasons for his disagreement with the findings of the Enquiry Officer to the delinquent officer or not. In view of the above conduct which prima facie looks to us unfair, we think it appropriate to interfere in the matter. The judgment of the Division Bench of the High Court is set aside and the order of the learned Single Judge is restored only to the extent the said order remits the matter to the disciplinary authority to continue the proceedings from the stage of the second show cause notice. 11 The disciplinary authority shall now communicate the reasons for his disagreement with the Enquiry Officer's findings to the delinquent officer, hear him and pass orders according to law. All this exercise shall be completed within six months from today and for a period of six months, status quo as of today shall continue.” In the instant case, indisputably, the Enquiry Officer, vide its report which was forwarded to the petitioner by the Disciplinary Authority vide Annx.P/6, categorically held that the charge against the petitioner, as mentioned in Annx.R/1, has not been proved. The Disciplinary Authority was not bound to accept the conclusion arrived at by the Enquiry Officer and he could have either accepted or have taken a different view, but for taking a different view, even the Disciplinary Authority was required to scan and evaluate the materials available on record, more particularly in the instant case, the documents and the evidence collected by the Enquiry Officer, and to have taken its own view supported by the reasons, may be in brief, which, in my view, in the instant case, the Disciplinary Authority failed to do so. Therefore, in view of the various decisions referred hereinabove, the impugned order cannot be sustained in the eye of law and liable to be quashed. However, keeping in view the decisions of the Hon'ble Supreme Court in Lav Nigam Vs. Chairman, M.D., I.T.I & ors. (supra); and in R.R.Gabhane Vs. State of M.P. & ors. (supra), the matter deserves to be 12 remanded to the Disciplinary Authority from the stage of issuing the show cause notice to the delinquent-petitioner indicating his tentative disagreement with the Enquiry Officer and deciding the matter afresh by recording its own reasons. Consequently, the writ petition is allowed; the impugned order Annx.R/2 dated 28-6-1996 passed by the Disciplinary Authority is set aside and uashed and the matter is remitted to the Disciplinary Authority to afford opportunity of hearing to the petitioner-delinquent by communicating the reason for his disagreement with the conclusion of the Enquiry Officer and thereafter to pass orders afresh in accordance with law. This exercise be completed within the period of six months and during that period, the petitioner shall not be entitled to claim any benefit of quashing the order of imposing the penalty of censure and status quo as of today shall continue. There shall be no order as to costs. (H.R. PANWAR), J. mcs 13 S.B. Civil Misc. Stay Petition No.433/1998 in S.B. Civil Writ Petition No.531/1998 (Shaitan Ram Choudhary Vs. General Manager (Personnel Department), UCO Bank & Ors.) Date of Order: January 31, 2009 HON'BLE MR. H.R. PANWAR, J. Mr. I.R. Choudhary, for the petitioner. Mr. Sunil Bhandari for Mr. M.R. Singhvi, for the respondents. Since the writ petition itself has been disposed of, the stay petition also stands disposed of. (H.R. PANWAR), J. mcs