IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.1201 of 1988 (O&M) Date of decision:20 .05.2011 Shri S.P.Malhotra ...Petitioner versus The Punjab National Bank and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. N.K.Shekhawat, Advocate, for the petitioner. None for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. The writ petition challenges the order of dismissal from service of the petitioner, who was an Assistant Manager in the respondent's Bank. The petitioner was removed after instituting an enquiry for misconduct during his service as an Assistant Manager. The Enquiry Officer had found the petitioner guilty of two charges partially while exonerating the petitioner of two other charges. The disciplinary authority differed with the view of the Enquiry Officer and sought to reverse the finding to hold that all the charges had been established. The petitioner's contention at the time when he preferred the appeal was that the order was passed by the disciplinary authority without following the procedure laid down under Regulation 7 dealing with discipline and Civil Writ Petition No.1201 of 1988 (O&M) - 2 - appeal regulations of 1977. The appellate authority rejected the appeal by a cryptic order affirming the decision of the disciplinary authority. A right of review given to the higher officer was also rejected by a mere order of affirmation and without detailing the grievances that the petitioner had. 2. The point involved in the writ petition is whether the action taken by the disciplinary authority for removal was vitiated by its failure to follow the principles of natural justice and whether the findings regarding proof of charges were rendered with no evidence available at all for entering such a conclusion. 3. The petitioner joined the Bank in the year 1969 as a Clerk and promoted as an Assistant in the year 1977. He gained further promotion as Assistant Manager in the year 1981 and during his tenure as such, he was suspended in the year 1982 preparatory to institution of an enquiry and later an enquiry was constituted and a charge-sheet levied against the petitioner on 07.02.1983. 4. The charges were that (i) he had tampered with official records to undermine the Bank's interest; (ii) he had indulged in an unauthorized business against the interest of the Bank; (iii) he had misutilized his official position to benefit his relatives and friends against the interest of the Bank; and (iv) he concealed facts from authorities. Each one of the charges were sought to be buttressed with instances given as to how the charges were to be substantiated. The Enquiry Officer found the charges 1 and 4 as not established but held that charges 2 and 3, partially proved. If the findings of the Enquiry Civil Writ Petition No.1201 of 1988 (O&M) - 3 - Officer had been put through to the petitioner and his explanation called for, perhaps the matter would have concluded when the disciplinary authority took a decision on the basis of the Enquiry Officer's findings and in the light of the explanations that could have been given by the delinquent. The report of the Enquiry Officer was given on 27.02.1985. The disciplinary authority differed with the findings of the Enquiry Officer and chose to pass an order on 27.04.1985 by setting out his own inferences. It is this order of the disciplinary authority that differed with a view of the Enquiry Officer and the order of removal from service that is the focal point of attack by the petitioner. 5. I will not find it necessary to detail the facts adverted to by the Enquiry Officer in his report and I will stay confined to examine whether the impugned order suffers from fundamental vice of violation of principles of natural justice in the manner canvassed by the counsel for the petitioner. 6. The learned counsel refers me to Regulation 7 that deal with the procedure when a disciplinary authority has differed a view of the Enquiry Officer's report. Regulation 7 reads as follows:- Regulation 7 : Action on the Inquiry Report: “(1) ....... (2) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.” Civil Writ Petition No.1201 of 1988 (O&M) - 4 - 7. The very same regulation was the subject of examination by the Hon'ble Supreme Court in Punjab National Bank and others Versus Kunj Behari Misra-(1998) 7 Supreme Court Cases 84. The Hon'ble Supreme Court held, referring to a 5-Member Bench decision of the Supreme Court in Managing Director, ECIL, Hyderabad Versus B. Karunakar-1993(4) SCC 727 that a disciplinary authority that disagrees with the findings of the inquiring authority on any article of 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. It is an admitted situation emanating from the records that no such opportunity was given to the petitioner to join issues on points of differences that the disciplinary authority held against the report of the Inquiring Officer. 8. The differences themselves are in some sense fundamental, (i) he had found fault with the finding that there was no error in disbursement of term loan to Smt. Kamla Devi, who incidentally was the mother of the petitioner; (ii) yet another area of difference was the allegation that the petitioner had unauthorizedly allowed for clean overdrafts to parties and allowing credit facilities to its relatives and friends and indulging in unauthorized purchase of DDs and (iii) the disciplinary authority made a sweeping statement that the petitioner's unauthorized business and misutilization had resulted in a loss to the Civil Writ Petition No.1201 of 1988 (O&M) - 5 - tune of Rs.8,58,000/-. For each one of these differences, the petitioner had a grievance. He sought to explain that he was not a disbursing authority at all and that he had not issued any term loan to his mother. It was also his contention that he had not allowed for any clean overdrafts to parties, nor he did extend any credit facilities. He denied that he was in any way responsible for the alleged loss of Rs.8,58,000/-. There was really an occasion for the Management to redeem itself to show to the petitioner that he was really at fault and the charges had been proved, if only an attempt had been made by the appellate authority to substantiate to what the disciplinary authority was saying or if he had met with the grounds which he raised in his appeal. The appellate authority, however, decided to dismiss the appeal by a laconic order without going into any details but observing that he had gone through the records and that he was convinced that the decision taken by the disciplinary authority was correct. The reviewing authority did no better, for, he also disposed of the review application without any meaningful effort of subjecting the decisions already taken by his subordinate officers to any form of appraisal. 9. 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 Civil Writ Petition No.1201 of 1988 (O&M) - 6 - 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. 10. The writ petition is allowed but subject to the directions as above. (K.KANNAN) JUDGE 20 .05.2011 sanjeev