IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1384 of 2009 With I.A. No. 1636 of 2011 (Cross-objection) …………… 1. THE STATE BANK OF INDIA THROUGH THE ZONAL MANAGER null ZONAL OFFICE, REGION-II, MUZAFFARPUR, REPRESENTED THROUGH THE CHIEF MANAGER (ADMINISTRATION), MADHUSUDAN SAHAY, S/O SHRI KISHORI NANDAN SAHAY, R/O MULKTAR, P.O. & P.S. HAVELI KHARAGPUR, DISTT. MUNGER, UNDER REGULATION 77 READ WITH REGULATION 76 OF THE STATE BANK OF INDIA GENERAL REGULATION, 1955 2. THE CHIEF GENERAL MANAGER, STATE BANK OF INDIA null JUDGES COURT ROAD, PATNA, REPRESENTED THROUGH THE CHIEF MANAGER (ADMINISTRATION), MADHUSUDAN SAHAY, S/O SHRI KISHORI NANDAN SAHAY, R/O MULKTAR, P.O. & P.S. HAVELI KHARAGPUR, DISTT. MUNGER, UNDER REGULATION 77 READ WITH REGULATION 76 OF THE STATE BANK OF INDIA GENERAL REGULATION, 1955 3. THE DY. GENERAL MANAGER, STATE BANK OF INDIA null JUDGES COURT ROAD, PATNA, REPRESENTED THROUGH THE CHIEF MANAGER (ADMINISTRATION), MADHUSUDAN SAHAY, S/O SHRI KISHORI NANDAN SAHAY, R/O MULKTAR, P.O. & P.S. HAVELI KHARAGPUR, DISTT. MUNGER, UNDER REGULATION 77 READ WITH REGULATION 76 OF THE STATE BANK OF INDIA GENERAL REGULATION, 1955 4. THE ASSISTANT GENERAL MANAGER, REGION-II, STATE BANK OF INDIA null ZONAL OFFICE, MUZAFFARPUR, REPRESENTED THROUGH THE CHIEF MANAGER (ADMINISTRATION), MADHUSUDAN SAHAY, S/O SHRI KISHORI NANDAN SAHAY, R/O MULKTAR, P.O. & P.S. HAVELI KHARAGPUR, DISTT. MUNGER, UNDER REGULATION 77 READ WITH REGULATION 76 OF THE STATE BANK OF INDIA GENERAL REGULATION, 1955 ………………..Appellants/ Respondents. Versus 1. RAMESH PRASAD S/O LATE BAIDYNATH PRASAD MOH- CHANDWARI, P.S. MOTIHARI, DISTT. EAST CHAMPARAN [PRESENTLY POSTED AT STATE BANK OF INDIA, ARERAJ BRANCH, P.S. GOBINDGANJ, DISTT. EAST CHAMPARAN …………………Petitioner/ Respondent. ----------- For the Appellants:- Mr. S.D. Sanjay & Mr. Gopal Pd. Gupta, Advocates. For the Respondent:-Mr. B.K. Shukla, Mr. Prashant Kumar & Mr. Amresh Kr. Sinha, Advocates. 2 9 11.03.2011 Having heard counsel for both the parties on the point of limitation as also on a perusal of the contentions raised in the affidavit in support of the cross-objection, the delay in filing the appeal is condoned and the cross-objection, with consent of the parties, has been taken up for hearing along with the present L.P.A. filed by the Appellants/ Respondents. This L.P.A. has been filed against the order dated 7.4.2009 passed in C.W.J.C. No.13821 of 2002. In the said writ application the writ petitioner, respondent herein has chosen to question the final order contained in DPS/ 20/ 321 dated 24.5.2000 passed by the disciplinary authority, i.e. the Bank imposing major penalty of scaling down two stages of pay for a period of two years with the stipulation that the period of suspension shall not be treated as on duty except what has been paid during the suspension. Case of the writ petitioner, respondent herein, is that the impugned order was passed in a most arbitrary manner and in complete violation of the natural justice. It appears that the disciplinary authority even without hearing of the petitioner has issued second show cause notice and passed final order on 24.5.200 which was also affirmed by the appellate order dated 3.10.2000. The said writ petition was opposed by the Bank. The learned Single Judge having gone into the merits of the case has held that the disciplinary authority after recording his conclusion issued a show cause notice for hearing on the 3 proposed punishment as with regard to ex-party conclusion. The learned Single Judge has further held that the disciplinary authority has not discussed the explanation submitted by the writ petitioner, respondent herein, and recorded his ex-parte conclusion without application of mind and having held so the learned Single Judge has set aside the order passed by the disciplinary authority dated 24.5.2000 and the order of the appellate authority dated 3.10.2000. Being aggrieved by the same the Bank has preferred the present L.P.A. Learned counsel appearing on behalf of the Bank has vehemently contended that the disciplinary authority was perfectly right in issuing notice to the writ petitioner calling upon an explanation on the point of proposed punishment and therefore it cannot be said that the findings of the disciplinary authority is in violation of principles of natural justice. Learned counsel appearing on behalf of the Cross Objector has contended that the learned Single Judge was perfectly right in quashing the order passed by the disciplinary authority as well as the appellate authority as the disciplinary authority has not applied its mind on the explanation given by the writ petitioner on the proposed punishment in pursuance to the notice issued to him and on that ground the order passed by the disciplinary authority is in violation of the principles of natural justice. We had the occasion to go through the regulation, 4 namely, “Reference Book on Staff Matters” and find that the said regulation do not provide for continuation of a disciplinary proceeding after retirement of an employee. More so, the order passed by the disciplinary authority which was also affirmed by the appellate authority would show that even though notice has been issued by the disciplinary authority but he has not applied his mind before passing of the proposed punishment of scaling down of pay of two stages for a period of two years. Paragraph 3 of the order of the disciplinary authority is extracted hereinbelow:- “Having regard to the nature and gravity of misconduct proved against you, I propose to inflict upon you, the penalty of “bringing down to two stage in the scale of your pay for two years” in terms of paragraph 21 (iv) of VIth Bipartite Settlement dated 14.2.95 with stipulation that period of suspension will be treated as such i.e. not on duty…………. However, before I take a final decision, I would like to give you an opportunity for a personal hearing regarding the nature of proposed penalty to show cause why the proposed penalty should not be inflicted upon you……” Even though notice has been issued by the disciplinary authority to the petitioner which is within its parameter, but the order has been passed without considering the explanation submitted by the petitioner and therefore the same is in violation of the principles of natural justice. The disciplinary authority was duty bound to consider the explanation submitted by the writ petitioner, respondent herein before passing of the order, in absence of which the order passed by the disciplinary authority is in violation of the principles of natural justice. In this connection reference may be made to the 5 judgment of the Apex Court in the case of “Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and others’ reported in AIR 1999 Supreme Court 1841, in which in paragraph 6 the following observations have been made:- “In view of the absence of such provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to may any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired frkom service on 30.6.95, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.” From a perusal of the regulations it would appear that there is no provision to continue the disciplinary enquiry after retirement of the delinquent employee. No such power is vested to the disciplinary authority to pass any order after retirement of the delinquent employee. In that view of the matter, we are of the opinion that the order passed by the disciplinary authority imposing the punishment of scaling down of pay in two stages for a period of two years even without considering the show cause submitted by the writ petitioner, respondent herein, would itself go to show that the disciplinary authority has taken ex-parte decision without considering the show cause. 6 Accordingly, following the law laid down by the Apex Court in the case of Bhagirathi Jena (Supra), the cross-objection filed is allowed and this L.P.A. is dismissed. Abhay Kumar (A.F.R.) ( T. Meena Kumari, J.) (Shyam Kishore Sharma, J.)