THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.1567 OF 2007 Dated: 19.01.2010 Between: J. Mohanreddy … Petitioner And Andhra Pragathi Grameena Bank, rep. by its Chairman, Head Office, Kadapa., and another. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.1567 OF 2007 ORDER: The petitioner herein joined the services of Rayalaseema Grameena Bank in the year 1977. The said Bank was merged with Andhra Pragathi Grameena Bank in the year 2006. Prior to merger, while the petitioner was working at Idupulapadu Branch of Rayalaseema Grameena Bank he was placed under suspension on 29.05.1997 pending enquiry into certain irregularities allegedly committed by him. A charge-sheet dated 10.10.1997 was served on him framing 17 charges. However, the proceedings were not concluded for a long time in spite of the directions of this Court dated 28.06.2004 in W.P.No.10628 of 2004 and the petitioner was continued under suspension. In the circumstances, the petitioner was constrained to file W.P.No.27970 of 2005 seeking a declaration that the inaction on the part of the respondents in finalizing the disciplinary proceedings pursuant to the Charge memo dated 10.10.1997 was arbitrary and illegal. The said writ petition was disposed of by order dated 7.9.2006 directing the respondents to pass appropriate final orders within two months. Thereafter, vide proceedings of the 1st respondent dated 20.12.2006 the petitioner was awarded the punishment of withholding of two immediate future increments with cumulative effect. It was also ordered that the suspension of the petitioner shall continue till the disposal of the disciplinary proceedings initiated vide charge memos dated 15.10.1994 and 25.10.1994. Aggrieved by the same, the present writ petition is filed contending inter alia that the impugned order which emanated from the findings recorded by the 1st respondent contrary to the findings of the Inquiry Officer without giving an opportunity of being heard to the petitioner before proposing to differ with the conclusions of the Inquiry Officer is arbitrary, illegal and in violation of principles of natural justice. I have heard the learned counsel for both the parties. The learned counsel for the petitioner while drawing the attention of this Court to the Inquiry report dated 09.12.2004 wherein the Inquiry Officer held that none of the charges framed against the petitioner were proved, vehemently contended that it was not open to the 1st respondent – Disciplinary Authority – to differ with the said conclusions of the Inquiry Officer without giving an opportunity of being heard to the petitioner. In support of the said submission, the learned counsel relied upon the decisions of the Supreme Court in PUNJAB NATIONAL BANK v. KUNJ BEHARI MISRA[1] and YOGINATH D. BAGDE v. STATE OF MAHARASHTRA[2]. In the counter-affidavit filed on behalf of the respondents, the specific plea of the petitioner that no opportunity of hearing was provided to the petitioner by the 1st respondent before differing with the findings recorded by the Inquiry Officer could not be disputed. However it is stated that pursuant to the interim order dated 20.12.2006 the petitioner was reinstated into service on 3.4.2007. The law is well-settled that where the Inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then an opportunity of being heard must be given to the delinquent officer before a decision is taken by the disciplinary authority. In KUNJ BEHARI MISRA‘S case ( 1 supra) the Supreme Court held as under : “… …. whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such 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 inquiry 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 inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer.” The said view has been reiterated in YOGINATH D. BAGDE’S case (2 supra) holding as under : “In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311 (2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away in any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution.” In the instant case, it is not in dispute that all the charges against the petitioner were held not proved by the Inquiry Officer in his report dated 9.12.2004. While serving a copy of the said Inquiry report on the petitioner, the disciplinary authority vide proceedings dated 30.05.2005 called upon the petitioner to appear for a personal hearing and submit his view in writing on 8.6.2005 as to why re- enquiry should not be ordered observing that after careful examination of the enquiry report it was found that the enquiry proceedings were concluded without bringing all the evidence on record. The petitioner appeared before the 1st respondent / disciplinary authority and requested to close the matter pleading that the findings of the Inquiry Officer were based on proper appreciation of the evidence on record and there was no need for re-enquiry. However, the 1st respondent, on re-appreciation of the material available on record as well as the Inquiry report, concluded that the findings of the Inquiry Officer so far as Charge No.4 and Charge No.12 (b) were not in accordance with the evidence available on record. Accordingly the impugned order dated 20.12.2006 was passed holding that the said two charges were proved and imposing the penalty of withholding of two immediate future increments with cumulative effect. Apparently the procedure followed by the 1st respondent while imposing the penalty under the impugned order is contrary to the settled principles of law. The 1st respondent/disciplinary authority is bound to record his tentative reasons for differing with the findings of the Inquiry Officer on Charge No.4 and Charge No.12 (b) and give an opportunity of being heard to the petitioner before arriving at his own conclusions. However, the 1st respondent’s proceedings dated 30.05.2005 neither revealed the basis upon which he proposed to differ with the report of the Inquiry Officer nor an reasons were assigned for proposing to direct re-enquiry in the matter. For the aforesaid reasons and in the light of the law laid down in the above decisions of the Supreme Court, the impugned order dated 20.12.2006 is ex facie illegal and is in violation of the principles of natural justice. Accordingly, the impugned order is hereby set aside and the Writ Petition is allowed leaving it open to the respondents to pass appropriate orders afresh following due process of law. No costs. ____________ G. ROHINI, J. Dt. 19.01.2010 gbs [1] (1998) 7 SCC 84 = 1998 Supreme Court Cases (L&S) 1783 [2] (1999) 7 SCC 739 = 1999 Supreme Court Cases (L&S) 1385