IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4627 of 2009 BYAS MUNI OJHA, Son of late Suraj Nath Ojha, resident of Village & P.O.-Bara Singhanpura, District-Buxar. ……..Petitioner Versus 1. The Central Bank Of India, through its Chairman-Cum-Managing Director, Central Office, Chandermukhi, Nariman Point, Mumbai-400021. 2. The Chairman-Cum-Managing Director, Central Office, Chandermukhi, Nariman Point, Mumbai-400021. 3. The Chief Vigilance Officer, Central Bank of India, Central Office, Chandermukhi, Nariman Point, Mumbai-400021. 4. The Zonal Manager, Central Bank of India, Zonal Office, Mauryalok Complex, B-Block, 2nd Floor, Dak Bunglow Road, Patna-800001. 5. The Assistant General Manager, Central Bank of India, Regional Office, P.B. No. 89, Yatinchandra Road, Lalpur, Ranchi. 6. Sri. S. C. Shukla, Assistant General Manager-Cum-Disciplinary Authority, Central Bank of India, Regional Office, 73, Hazratganj, Lucknow. 7. The Regional Manager, Central Bank of India, Regional Office, Rameshwar Sinha Path, Bisar Talab, Gaya-823001. ……..Respondents ----------- 04. 02.07.2009 The petitioner who at the time was the Branch Manager of the Aurangabad Branch of the Central bank of India under the Gaya Region, having been compulsorily retired challenges the said order. The major punishment was imposed in terms of Regulation 4(h) of the Central Bank of India Officers & Employees (Discipline & Appeal) Regulation, 1976. The Central Bank of India has entered appearance and filed counter affidavit. The pleadings are complete, with consent of parties, this writ petition has been heard for final disposal at this stage itself. Without going into various controversies, allegations of 2 mala fide, I will notice facts which are relevant for the order that I have propose to pass. Petitioner, for various alleged dereliction was departmentally proceeded against and the Disciplinary Authority imposed the major punishment of compulsory retirement that was affirmed in appeal. Those orders were challenged before this Court by the petitioner in C.W.J.C. No. 5288 of 2005. The parties were heard at length and by judgment and order dated 08.01.2008(Annexure-10), the writ petition was allowed. The order imposing penalty and the appellate order was set aside and the matter remanded for fresh consideration with following observations and directions. “……..If however, the Competent Authority of the Bank decides to inflict punishment on the petitioner he will be required to issue first a show cause notice giving grounds and materials on the basis of which he intends to differ with the finding of the Enquiry Officer. It is made clear that no new material will however be taken into consideration by the Disciplinary Authority. In any event the petitioner must be given an opportunity to show cause as to why finding recorded in his favour by the Enquiry Officer should not be reversed on the basis of tentative reasons/finding of the Disciplinary 3 Authority. It is only after the petitioner’s explanation is examined, that the authority will proceed and pass an order in terms of directions in the judgment of the Apex Court in case of Kunj Bihari Mishra(Supra)………. against the petitioner by way of inflicting minor punishment even then the petitioner will be given a show cause notice indicating the grounds on the basis of which such minor punishment is sought to be inflicted………..” Thus seen the status quo was restored as on the day of submission of enquiry report to the Disciplinary Authority. After this order was passed by this Court, the petitioner was issued a show cause notice dated 17.06.2008 by the Disciplinary Authority, being the then Regional Manager of the Central Bank of India, Regional Office, Gaya which is contained in Annexure-12. A reference to the said would show that the Disciplinary Authority deferred with the enquiry report. While doing so and while issuing the said notice to the petitioner, he not only gave reasons for the deferring but he gave a finding as well holding that the charges were proved as against the petitioner. Having held that the charges were proved against the petitioner, petitioner was asked to file his written submissions on the findings of the Enquiry Officer and the observations of the Disciplinary Authority so that the final orders may be passed. The 4 petitioner then responded and was then visited by the impugned order dated 06.09.2008. By the said order, a consolidated major punishment of compulsory retirement was again awarded by the Disciplinary Authority who had now become the Assistant General Manager having been promoted from the post of Regional Manager. I have noted the designations because the petitioner has asserted and it has not been denied in the counter affidavit that the Disciplinary Authority is the Regional Manager. The Regional Manager who heard the matter on remand from this Court, before he could pass the final order, on 06.09.2008 had been promoted and made the Assistant General Manager with effect from 05.07.2008. Notwithstanding that he continued to hold the file for orders and passed the order when he had ceased to be the Regional Manager. Pertinent to mention that from the order of the Regional Manager in any disciplinary proceedings appeal lies to the Assistant General Manager. In normal course, if the order was passed by the Regional Manager then the appeal would have been before the Assistant General Manager, the post that was now occupied by the same person who passed the order and who was earlier the Regional Manager. This is the reason given by the petitioner for not preferring appeal. Apart from that the petitioner, in my view, rightly submits that once the Regional Manager was promoted and 5 transferred, he ceased to be the Disciplinary Authority and should have demitted the files to the incumbent. He could not hold on the files because he was no more the Disciplinary Authority. But I do not propose to decide the case solely on the basis of the aforesaid gross irregularities. Mr. Chittaranjan Sinha, learned senior counsel appearing in support of the writ petition has raised a very small issue. He submits on basis of judgment of the Apex Court in the case of Managing Director, ECIL, Hyderabad and ors Versus B. Karvnakar & ors since reported in 1993(4) SCC 727, Punjab National Bank & ors Versus Kunj Behari Misra since reported in 1998(7) SCC-84 and Lav Nigam Versus Chairman & MD, ITI Ltd & another since reported in 2006(9) SCC-440 that the entire departmental proceedings stand vitiated for gross procedural impropriety. He submits that once the enquiry report is submitted by an Officer who is other then the Disciplinary Authority and the Disciplinary Authority decides to defer from the enquiry report then a notice has to be issued to the delinquent stating the grounds on which the Disciplinary Authority disagrees with the finding of the Enquiry Officer and grant opportunity to the delinquent to persuade the Disciplinary Authority not to defer from the finding of the Enquiry Officer exonerating the delinquent officer. Upon cause been shown by the delinquent officer, the Disciplinary Authority has to then consider the matter and 6 then communicate to the delinquent officer, its decision whether he accepts the enquiry report in part or in full and gist thereof. If he finds the delinquent officer guilty then he is required to issue a notice being the second notice for proposed punishment and on receipt of cause to be shown by the delinquent, he has to impose punishment. He thus submits that where the Enquiry Officer is different from the Disciplinary Authority and there is a disagreement between the two then before punishment could be imposed, show cause has to be issued in two stages as aforesaid. With reference to the facts of the present case, it is stated that after remand by this Court as aforesaid, only one notice was issued. In that notice the Disciplinary Authority not only gave the reasons for disagreeing with the enquiry report but gave findings of guilt and then after petitioner show cause straight away imposed the penalty which was impermissible. In fairness to Sri. Chittaranjan Sinha, learned senior counsel appearing for the petitioner, I must note another argument as made by him. . He submits that the notice as issued to the petitioner would show that the Disciplinary Authority even before opportunity was granted to the petitioner to show cause had prejudged the issue by finding petitioner guilty even before petitioner could have a say in the matter before him. I do not deem it necessary to decide this 7 issue because on the very first issue the writ petition must succeed. In case of Managing Director, ECIL (Supra) the constitution Bench of the Apex Court reviewed the law in this regard which is held thus: “Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.” Thus the law of the land is that where the Enquiry Officer is differing from the Disciplinary Authority is to decide about guilt of a person, before he does so he has to make available the report to the delinquent officer and give an opportunity in this regards to defend himself. Then we come to the case of Punjab National Bank and Ors Versus Kunj Behari Misra(Supra) where similar regulations were under consideration. In that case the Apex Court clearly held that 8 both before the charges were held to be substituted by the Disciplinary Authority and before punishment was decided to be imposed, the delinquent is required to be heard. In other words, there have to be notices at two stages before punishment can be imposed. I can do no better then quote from the Judgment of the Apex Court in the case of Lav Nigam Versus Chairman and MD, ITI Ltd(Supra) which has referred to the two earlier cases and held as under: “The conclusion of the High Court was contrary to the constitution view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Therefore, the employee would again have to be served with a notice relating to the punishment proposed.” Here in this case the facts would undisputedly show that not only the Disciplinary Authority prejudged the issue, he issued only one notice holding petitioner guilty and then straightaway proceed to impose penalty. This is in gross violation of the procedure established by law in this regard as noted above. Here I may note that even in cases where the 9 Disciplinary Authority choses to accept the adverse enquiry report he, as per the law laid down in the case of Managing Director ECIL(Supra), is required to grant opportunity to the delinquent Officer to show that the enquiry report is wrong and only after consideration thereof the punishment imposed after fresh show cause in that regards. Thus there is to be two notices here again. I have thus no hesitation in setting aside the impugned order as contained in Annexure-1 being order dated 06.09.2008 as communicated to the petitioner on 09.09.2008. The result will be that petitioner would be deem not to have been compulsorily retired and will be entitled to all consequential benefits as if he continues in regular service till his superannuation. The writ petition thus stands allowed. Shageer (Navaniti Prasad Singh, J)