DBSAW NO.401/08. DBSAW NO.1042/08. { 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. J U D G M E N T 1) D.B. CIVIL SPECIAL APPEAL (WRIT) NO.401/2008. IN S.B. CIVIL WRIT PETITION NO.326/1998. The Ajmer Central Cooperative Bank Ltd. & Anr. Vs. Amrik Singh Garcha & Anr. 2) D.B. CIVIL SPECIAL APPEAL (WRIT) NO.1042/2008. IN S.B. CIVIL WRIT PETITION NO.326/1998. The Ajmer Central Cooperative Bank Ltd. & Anr. Vs. Amrik Singh Garcha & Anr. Date of Judgment:- May 29, 2008. QUORUM HON'BLE THE CHIEF JUSTICE SHRI NARAYAN ROY HON'BLE SHRI JUSTICE MOHAMMAD RAFIQ Shri Ashok Mishra for the appellants. Shri Sunil Samdaria for respondent No.1. ***** BY THE COURT : (Per Hon'ble Mr.Mohammd Rafiq, J.) Heard learned counsel for the parties. 2) These two appeals have been preferred at the instance of Ajmer Central Cooperative Bank Ltd. and its Managing Director challenging the validity of the order passed by the learned Single Judge of this Court dated 3/7/2007 whereby, the writ petition filed by respondent No.1 was allowed DBSAW NO.401/08. DBSAW NO.1042/08. { 2 } and the subsequent order dated 15/2/2008 whereby, certain clarifications were made by the learned Single Judge in that judgment. 3) Shri Ashok Mishra, learned counsel for the appellants has argued that charges against the writ-petitioner were proved inasmuch as, he was guilty of embezzling amount of Rs.9000/-. Learned Single Judge therefore ought to have examined the merits of the case, whereas, the writ petition has been allowed only on technical ground of not providing a defence nominee to the respondent and also for non-supply copy of the enquiry report. It was argued that if at all the writ petition was allowed on those grounds, learned Single Judge ought to have given liberty to the appellants to hold a de-novo enquiry against the respondent. Learned counsel further argued that learned Single Judge in the impugned judgment though directed that the post retiral benefits shall be paid to the respondent within a period of three months but there was no specific direction for grant of consequential benefits thereof. Such direction could not be issued by the subsequent order dated 15/2/2008 by way of clarification. Learned counsel sought to support his argument on this aspect by citing judgment of Supreme Court in Brij Mohan Singh Chopra : Vs. State of Punjab : AIR 1987 SC 948. DBSAW NO.401/08. DBSAW NO.1042/08. { 3 } 4) Shri Sunil Samdaria, learned counsel for respondent No.1 opposed the appeals and submitted that appellant-bank had by their resolution dated 29/3/1991 adopted the provisions of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short “Rules of 1958”) for its employees and, therefore, departmental enquiry which was held against the respondent ought to have conformed to the provisions contained in Rule 16 of the Rules of 1958. Provisions of sub-rules (5) to (12) of the Rules of 1958 were not at all followed. It was argued that, if the department was represented before the enquiry officer by a presenting officer, it was incumbent on the part of the disciplinary authority/enquiry officer to permit delinquent to plead his case through defence nominee. Inspite of request, defence nominee was not provided as per Rule 16(5) of the Rules of 1958 and hence, defence of the respondent has been prejudiced. It was argued that copy of the enquiry report was also not provided to the respondent although, as per sub-rule (12) of Rule 16 supra, disciplinary authority was mandated by law to provide copy of the enquiry report. For a charge which was not grave enough, respondent has been awarded major penalty of removal which was highly disproportionate to the gravity of the charges. DBSAW NO.401/08. DBSAW NO.1042/08. { 4 } Had the copy of the enquiry report been provided to the respondent, he would have in all probabilities persuaded the disciplinary authority to take a different view. It was argued that enquiry in the present matter was initiated in the year 1982 vide order dated 11/9/1982 and was completed with enormous delay in 1986 when show cause notice was issued to the respondent on 17/2/1986 and it was thereafter that order of removal was belatedly issued on 24/11/1997. The petitioner in the meantime having attained the age of superannuation, retired from service in the year 2002. So-called amount alleged to have embezzled was in fact never embezzled by the respondent and it was held that disbursement of amount to few members was short by a certain amount. And that amount in fact has already been recovered from delinquent Kailash. In such a situation, when the matter pertains to period dating back to 1982, permission for de-novo enquiry could not be granted. Learned counsel argued that subsequent order passed by the court on 15/2/2008 was merely an order of clarification as in para 28 of the judgment, due to over sight, direction with regard to consequential benefits was omitted and thus the same was directed by a fresh order. The matter does not deserve any interference by this court. DBSAW NO.401/08. DBSAW NO.1042/08. { 5 } 3) We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the impugned judgment as also other materials forming part of the record. 4) A perusal of the impugned-judgment would reveal that learned Single Judge has upon consideration of the principles of law enunciated by the Supreme Court in Union of India Vs. Mohd.Ramzan Khan : (1991) 1 SCC 588 and Managing Director ECIL, Hyderabad Vs. B.Karunakar : (1992) 1 SCC 709 wherein, Supreme Court found that non- supply of copy of the enquiry report prejudiced the respondent in a grave manner inasmuch as, Rule 16(12) of the Rules of 1958 required the disciplinary authority to supply copy of the enquiry report to the delinquent. 5) We have gone through the copy of the enquiry report. 6) On perusal of the enquiry report especially the findings recorded therein by the enquiry officer on charges which have been found proved, we find that findings have not been recorded in a satisfactory manner inasmuch as, the enquiry officer in a cursory manner has given the findings without giving any specific determination of the point as to how much of the amount was embezzled, if so, by whom. Even if, the charges DBSAW NO.401/08. DBSAW NO.1042/08. { 6 } are examined, we find that charges were not grave enough as to warrant removal of the respondent from service and in the face of such findings, which are absolutely vague and unspecific, removal at any rate could not have been made. 7) We are, therefore, in agreement with the view taken by the learned Single Judge that non- supply of enquiry report to the respondent certainly prejudiced his defence. Had the copy of the enquiry report been supplied to the respondent, he would have definitely made a representation against the proposed penalty detailing out his submissions on the correctness and manner of the findings aforesaid. In that event, disciplinary authority, in all probabilities, would have been persuaded to take a different view of the matter than directing removal of the respondent. Moreover, when the appellant bank was represented before the enquiry officer through presenting officer, there was no reason for the disciplinary authority/enquiry officer not to permit the respondent-delinquent to represent his case through defence nominee. 8) Supreme Court in Bhagat Ram Vs. State of Himachal Pradesh : AIR 1983 454 has held that where disciplinary authority is represented by presenting officer, it was the duty of the disciplinary authority to inform the delinquent DBSAW NO.401/08. DBSAW NO.1042/08. { 7 } and grant him opportunity to defend his case. Non- providing copy of enquiry report to the respondent despite his request, certainly resulted in violation of the provisions of Rule 16(5) of the Rules of 1958 inasmuch as, violation of principles of natural justice. 9) Subsequent order which is separately assailed, in DBSAW No.1042/2008, is an order which merely seeks to clarify first judgment and does not in substance modify the main judgment. Learned Single Judge categorically noted that direction with regard to grant of consequential benefits w.e.f. 24/11/1997 i.e. the date of removal till 31/1/2002 i.e. the date when respondent retired, escaped his notice while delivering the judgment and when this inadvertent omission came to notice, both the counsels were made aware of the same. Learned Single Judge also noted that consequential benefits flows from the main reliefs and on reading para 28 of the judgment dated 3/7/2007, we find that learned Single Judge while delivering the impugned-judgment indeed intended granting consequential benefits to the respondent writ- petitioner since he directed the appellant herein to release post retiral benefits to the writ- petitioner within a period of three months. The judgment of the Supreme Court on which reliance has been placed by the appellant in Brij Mohan, DBSAW NO.401/08. DBSAW NO.1042/08. { 8 } supra, was rendered in all together different facts situation where application for clarification was made two years after the date of impugned-judgment and that too, on subsequent developments. Aforesaid judgment therefore has no application to the facts of the present case. 9) In the facts of the case when the writ- petitioner having attained the age of superannuation retired in 2002 and the event pertaining to which charge-sheet was served upon the respondent writ-petitioner relates to the year 1981, at this stage, we are not persuaded to accept the prayer of the appellant to now permit them to hold de-novo enquiry against respondent writ petitioner. 10) In view of what we have discussed above, we do not find any merit in both the appeals. Both the appeals are accordingly dismissed with no order as to costs. (MOHAMMAD RAFIQ), J. (NARAYAN ROY), CJ. anil