IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY EIGHTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION NO.21958 of 2003 Between: A.VISWESHAR REDDY S/O VENKAT REDDY. JUNIOR OFFICER/MANAGER, A.P.STATE CO-OP BANK COPERATIVE TRANING INSTITUTE (CTI) RAJENDRANAGAR, HYDERABAD. ..... PETITIONER AND 1 THE MANAGING DIRECTOR THE A.P.STATE CO-OP BANK LTD. TROOP BAZAR, HYDERABAD. 2 THE GENERAL BODU(GB) OF APCOB APPELLATE AUTHORITY, TROOP BAZAR, HYDERABAD. 3 THE COMMITTEE OF PERSON-IN-CHARGE APCOB/DISCIPLINARY AUTHORITY, TROOP BAZAR, HYDERABAD. 4 THE MANAGING DIRECTOR, AP STATE CO-OPERATIVE BANK LTD. TROOP BAZAR, HYDERABAD. 5 THE COMMISSIONER FOR CO-OPERATION AND REGISTRAR OF CO-OPERATIVE SOCIEITY, HYDERABAD. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction more one in then nature of WRIT OF CERTIORARI calling for the records relating to the impugned proceedings of the 3rd respondent VC/F.NO.983412/98-99/II dt. 21.2.2002 and the orders of the 2nd respondent VC/F.NO.980412/98-99 dated 5.10.2002 as well as the office order No. P1(E) F.30(A) 2002-03 DATED 25/02/2003 fixing the pay of the petitioner in the minimum of the scale of Junior Officer/Manager at Rs.3970/- w.e.f.21/02/2002 as illegal and without jurisdiction and violative of art.14 and 16 of the Constitution of India and quash the same and consequently direct the respondents to reinstate as Junior officer/manager(SPF) with all consequential benefit such as arrears of pay, seniority and promotion etc., and pass such other order or orders as deem fit and proper. Counsel for the Petitioner: Mr.S.LAKSHMA REDDY Counsel for Respondents : SMT.BOBBA VIJAYALAKSHMI FOR R GP FOR COOPERATION FOR R5 MRDADIRADHA KRISHNA FOR R1 The Court made the following : THE HON’BLE SRI JUSTICE C.V. RAMULU W.P.No.21958 of 2003 ORAL ORDER: This Writ Petition is filed seeking a Certiorari to call for the records relating to the Proceedings of the 3rd respondent in VC/F.No.980412/98-99/II, dated 21-2-2002 and the Orders of the 2nd respondent in VC/F No.980412/98-99/II, dated 5-10-2002 as well as the Office Order No.P1(E)/F.30(A)/2002-03, dated 25-2-2003 in fixing the pay of the petitioner in the minimum of the time scale of Junior Officer/Manager at Rs.3970/- with effect from 21-2-2002 as arbitrary and illegal and consequently to direct the respondents to reinstate the petitioner as Junior Officer/Manager (SPP) with all consequential benefits. It appears, while working as ADO/CA at Medak District Cooperative Central Bank Limited, Sangareddy, petitioner was issued with a charge sheet dated 3-10-1998 alleging that he had violated the circular instructions and acted in gross negligence in screening the loan applications. Petitioner submitted his explanation on 29-10- 1998/ 2-11-1998 denying the charges. However, having not satisfied with the same, an Enquiry Officer was appointed. The Enquiry Officer submitted his report on 18-4-2001 holding that the charges levelled against the petitioner were not proved. The disciplinary authority did not agree with the findings of the Enquiry Officer and further issued a show cause notice dated 31-5-2001 asking the petitioner to explain as to why the punishment of demotion should not be inflicted against him, within a period of 15 days; failing which, it would be construed that he has no plausible explanation to offer and further action would be taken as per rules. Thereafter, petitioner submitted his explanation and final order of punishment of demotion was passed on 21-2-2002. Aggrieved thereby, he has filed an appeal and the appellate authority had disposed of the same modifying the punishment of demotion to that of placing him in the minimum of the time scale attached to the post of Junior Officer/Manager. Challenging the same, the present Writ Petition is filed. There is no necessity of going into all the details. Learned counsel for the petitioner raised an important question of law, viz., whether the disciplinary authority is correct, in not issuing any notice/show cause notice calling for explanation of the petitioner as to why the findings recorded by the Enquiry Officer should not be rejected and fresh findings should be recorded on the basis of the evidence on record, while differing with the findings of the Enquiry Officer. A reading of the show cause notice dated 31-5-2001 would indicate that the disciplinary authority was intending to differ with the findings recorded by the Enquiry Officer on 18-4-2001. But straightaway, the said notice was issued proposing the punishment to be inflicted on the petitioner. No opportunity was given to the petitioner for submitting his explanation as to why the disciplinary authority should not differ with the findings of the Enquiry Officer and the findings of the Enquiry Officer are just and proper. In this connection, it is relevant to notice ground (a) of the grounds raised in the writ affidavit, which reads as under: “The orders of the 3rd respondent as well as 2nd respondent in imposing the punishment on the petitioner while disagreeing with the findings of the Enquiry Officer and recording adverse finding without issuing notice and hearing the petitioner is totally illegal and in violation of principles of natural justice and contrary to law laid down by the Hon’ble Apex Court in 1997(7) SCC 84 and 1999(7) SCC 739 and hence the impugned orders are liable to be set aside.” Though a detailed counter has been filed by the 1st respondent denying the allegations made by the petitioner, the allegation that the disciplinary authority did not issue any notice before differing with the Enquiry Officer’s report and arriving its own decision on the basis of evidence available on record is not disputed. It is sought to be explained saying that a notice dated 31-5-2001 was issued to the petitioner communicating the decision of the Persons in charge about their non-acceptance of certain findings of the Enquiry Officer and asked him to show cause, if any, why the proposed punishment should not be imposed against him by furnishing a copy of the Enquiry Officer’s report. Petitioner submitted his explanation to the show cause notice on 27-7-2001. A representation dated 14-8-2001 was also sent requesting for personal hearing. The action of the respondents in not issuing any notice before differing with the findings of the Enquiry Officer is not in consonance with the requirements of law. Whenever a disciplinary authority finds it difficult to agree with the findings of the Enquiry Officer, it is bound to record its tentative reasons for doing so and give an opportunity to the delinquent Officer to represent his case before recording its ultimate findings. In this case, no such effort was made by the disciplinary authority. Learned counsel for the petitioner, in this regard, relied upon a reported Judgment of this Court in A. RAJI REDDY v. GOVT.OF A.P.[1] wherein it was held as under: “2. Before the learned Tribunal reliance on a decision of the Apex Court in State of rajasthan v. M. C. Saxena was placed but the same was distinguished on the ground that it related to a matter where a minor punishment was imposed. The learned tribunal, in our opinion, committed a manifest error insofar as it failed to address itself the right question, namely, as to whether the disciplinary authority while disagreeing with the finding of the enquiry officer was bound to disclose the reasons for such disagreement so as to enable the delinquent officer to meet the same. This aspect of the matter is squarely covered by a recent judgment of the Apex Court in s. B. I. and others wherein the Apex Court has relied upon a large number of decisions including Saxena's case wherein it was held: "the next question, therefore, is as has been formulated earlier, whether the disciplinary authority was required to record its tentative reasons for disagreement and give to the delinquent officer an opportunity to represent before it recorded its ultimate findings. This question is concluded by a 3- Judge Bench decision of this Court in the case of punjab National Bank and others v. Kunj behari Misra (JT 1998 (5) SC 548 ). The bench in the aforesaid case relied upon the earlier decision in the Institute of chartered Accountants' case (JT 1997 (6)sc 607) as well as the Ram Kishan case (JT 1995 (7) SC 43) and came to hold that the view expressed in S. S. Kaushal 1995 (5) SLR 18) and M. C Saxena case (JT 1998 (2) SC 103 = AIR 1998 SC 1150) do not lay down the correct law. Mr. Sundaravadna, however, brought to our notice yet another 3-Judge bench decision in the case of Union bank of India v. Vishwa Mohan (JT 1998 (3) SC 118) and contended that a different view has been taken in the aforesaid decision in Union Bank of india case, we find that the question which arose for consideration in the punjab National Bank case was not really there before the Court and the court was examining the question as to what would be the effect, if copy of the enquiry report is not furnished to the delinquent employee. The Court obviously relied upon the Constitution bench decision of this Court in managing Director, ECIL v. B. Karunakar (JT 1993 (6) SC 1 ). " 3. Having regard to the aforementioned authoritative pronouncement, there cannot be any doubt whatsoever that the disciplinary authority was bound to record its tentative reasons for disagreement while disagreeing with the findings of a enquiry officer and give a delinquent officer an opportunity to represent, before it records its ultimate finding. Learned counsel has also relied upon another judgment of this Court reported in MEMBER-SECRETARY, PUNISHING AUTHORITY, A.P.S.E.B., VIDYUT SOUDHA VS. G. AMRUTHAIAH[2] and drawn attention of the Court to paragraphs 12 and 13, which read as under: “12……The disciplinary authority, undoubtedly, is entitled to differ with such findings, but, before it arrives at a conclusion that the findings arrived at by the Enquiry Officer are not correct and/or perverse, an opportunity of hearing must be given to the delinquent employee. There cannot be any doubt whatsoever that if at that stage the principles of natural justice are not complied with, the delinquent employee will suffer a great prejudice. This aspect of the matter is squarely covered by a decision of the Apex Court in Punjab national Bank's case (supra) wherein it had been categorically held: "18. . . . . . . . . . . It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not to be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the disciplinary Authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in karuakar's case (1994 AIR SCW 1050) (supra ). 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2 ). As a result thereof 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. 13. Yet again, the Apex Court in Yoginath d. Bagde vs. State of Maharashtra held:"29. We have already extracted rule 9 (2) of the Maharashtra Civil services (Discipline and Appeal)rules, 1979, which enables the disciplinary authority to disagree with the findings of the enquiry authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement The rule does not specifically provide that before recording its own findings, the disciplinary authority will give an opportunity of hearing to a delinquent officer. But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9 (2)arid it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiry authority, it would given an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the "tentative" reasons for disagreeing with the findings of the enquiry authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the findings of "not guilty" already recorded by the enquiring authority was not liable to be interfered with. " In view of the above, I am of the opinion that the disciplinary authority has issued the impugned show cause notice in flagrant violation of the established principles in conducting domestic enquiry and accepting the findings of the Enquiry Officer. The disciplinary authority is bound to record its tentative reasons while disagreeing with the findings of the Enquiry Officer and give the delinquent Officer an opportunity to represent before it. No such effort was made in the instant case. Therefore, the impugned Orders are liable to be set aside. However, at this stage, learned counsel for the petitioner stated that the petitioner is attaining the age of superannuation this year. Further, the charges levelled against the petitioner are only some lapse on his part in securing appropriate security and there are no allegations of mala fide intention or misappropriation of any funds or other negligence on his part. In this view of the matter, I deem it appropriate to give a quietus to the litigation at this stage itself, instead of remanding the matter back and putting the petitioner to the ordeal of going through the enquiry etc. Under these circumstances, to meet the ends of justice, the Order of demotion as modified to that of placing the petitioner on the minimum of the time scale attached to the post of Junior Officer/Manager is modified to that of stoppage of three increments with cumulative effect. However, the petitioner is entitled for all other benefits, as per law, including arrears of salary etc. Accordingly, the Writ Petition is disposed of. No order as to costs. 28-3-2008 prk [1] 2001(5) ALT 46 (DB) [2] 2001(4) ALD 240