Mahavir Prasad Jain vs Sawai Madhopur Kendriya Sahakri … on 13 November, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR

S.B. Civil Writ Petition No. 2793 / 1992

Mahavir Prasad Jain, aged about 45 years son of Shri Sujan Mal
Jain, resident of 59, Jawahar Nagar, Gulab Bagh, Man Town, Sawai
Madhopur.

—-Petitioner
Versus
The Sawai Madhopur Kendriya Sahakri Bank Limited, Sawai
Madhopur through its Administrator.

—-Respondent

__
For Petitioner(s) : Mr.Kamlakar Sharma, Senior Advocate with
Mrs.Alankrita Sharma, Adv.

For Respondent(s) : Mr.A.K.Pareek, Adv.

__
HON’BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
Order reserved on : 31.10.2017

Order pronounced on : 13.11.2017

Reportable

The instant writ petition has been filed by the petitioner

challenging the charge-sheet dated 22.11.1990 and the order

dated 01.04.1992 dismissing the petitioner from service from the

post of Manager, Sawai Madhopur Central Cooperative Bank Ltd.

The case has a chequered history. The writ petition was filed

in the year 1992. The Court vide its order dated 08.02.2006

declined to interfere in the punishment order and dismissed the

writ petition, finding no merit in the case.

(2 of 20)
[CW-2793/1992]

D.B.Special Appeal (Writ) No.1737/2011 was filed by the

petitioner. The Division Bench vide its judgment dated 24.08.2015

allowed the appeal and the order of the learned Single Judge was

set aside and the writ was remanded to the Single Bench for

adjudication afresh on merits of the case.

The facts in nutshell are that the petitioner was initially

appointed as clerk on 03.08.1966 in the Sawai Madhopur Central

Cooperative Bank Ltd., Sawai Madhopur. The petitioner was further

promoted as Branch Manager by order dated 12.06.1981 and this

post was held by the petitioner till the passing of the impugned

order of penalty of dismissal from service.

The petitioner was communicated about an audit objection

for the year 1989-90 informing that there was an entry relating to

overdraft amounting to Rs.10,000/-. The petitioner submitted

detailed reply to the said objection submitting that there was no

irregularity committed by him.

The petitioner was served with an order dated 03.11.1990

placing him under suspension in contemplation of Departmental

Enquiry. The petitioner was served with a charge-sheet dated

22.11.1990. There were five charges which were levelled against

the petitioner but the charges related to one incident of overdraft

of Rs.10,000/- of which entry was made on 05.03.1990. The

charge-sheet served to the petitioner is reproduced as

hereunder:-

“vkjksi u-a 1 % ;g gSa fd mDr Jh egkohj izlkn tSu us fnukad 18-05-
83 ls 16-05-90 rd dh dkykof/k ds nkSjku tcfd ‘kk[kk O;oLFkkid
ekuVkmu ds in ij dk;Zjr Fks] fnukad 5-3-90 dks Lo;a ds cpr [kkrk ua-
102 esa #- 10]000@ v{kjs s nl gtkj ek QthZ tek dj bl
(3 of 20)
[CW-2793/1992]

[kkrs ls mlh jkst Lo;a us eq-10]000@ : dh jkf’k fudkydj cSad
dh /kujkf’k dk xcu fd;k gSA tSlk fd vfHkdFku ds fooj.k i ds iSjk
1 esa crk;k x;k gSaA
vkjksi ua- 2% ;g gS fd mDr Jh egkohj izlkn tSu us fnukad 18-5-83
ls 16-5-90 rd dh dkykof/k ds nkSjku tcfd os ‘kk[kk O;oLFkkid
ekuVkmu ds in ij dk;Zjr Fks] fnukad 17-3-90 dks cpr [kkrk ua- 3670
fodkl vf/kdkjh iapk;r lfefr] lokbZek/kksiqj ds [kkrs esa 10000@ dk
cSysUl de rksM+dj xcu dks Nqikus dk iz;kl fd;k gS tSlk fd
vfHkdFku ds fooj.k i iSjk 2 eS crk;k x;k gSA
vkjksi ua- 3 % ;g gS fd mDr Jh egkohj izlkn tSu us fnukad 18-5-83
ls 16-5-90 rd dh dkykof/k esa tcfd os ‘kk[kk ekuVkmu ij crkSj ‘kk[kk
O;oLFkkid ds dk;Zjr Fks] ‘kk[kk ds izksxszl jftLVj esa vius cpr [kkrk
la[;k 102 ds vkxs 10000@# v{kjs ¼nl gtkj :i;s ½ds ØsfMV esa vkSj
fodkl vf/kdkjh ia- lfefr l- eks/kkiqj ds cpr [kkrk ua- 3670 ds vkxs
2231@ ds ctk; 12231 :- MsfCkV n’kkZdj cSad fjdkMZ esa fEkF;k
izfof”V;ka dh gSa tSlk fd vfHkdFku ds fooj.k i iSjk 3 esa crk;k x;k
gSaA
vkjksi ua- 4% ;g gSa fd mDr Jh egkohj izlkn tSu fnukad 18-5-83 ls
16-5-90 rd cSad dh ‘kk[kk ekuVkmu ij ‘kk[kk O;oLFkkid dk;Zjr Fks rc
tek u gksrs gq;s Hkh vius cpr [kkrk la[;k 102 ls fnukad 5-3-90 dks
10000:- fudkydj ¼vksjoMªkIV½ djds ;g jkf’k fnukad 10-5-90 dks okil
cSad esa tek djokbZA bl izdkj 66 fnol rd cSad dh /ku jkf’k
10000@ dk nq:i;ksx djus vkSj cSad dks gkfu igqp a kus dk vkjkSi gS A
tSlk fd vfHkdFku ds iSjk 4 eSa crk;k x;k gSA
vkjksi ua- 5% ;g gSa fd Jh egkohj izlkn tSu fnukad 18-5-83 ls 16-
5-90 rd ‘kk[kk izcU/kd ] ekuVkmu ¼lŒek/kksiqj½ esa dk;Zjr Fks] rc
fnukad 5-3-90 dks vius cpr la[;k ua- 102 esa okLro esa 10000@ :i;s
tek ugha djokdj vkSj bruh jde cSysUl esa ugha gksus ij Hkh fudkydj
vius in dk nq:i;ksx djus dk vkjkSi gSa tSlk fd vfHkdFku ds iSjk 5
eS crk;k x;k gSA”

The petitioner submitted detailed reply to the charge-sheet

and he denied the allegation. The petitioner explained that on

05.03.1990, amount of Rs.10,000/- was credited in his account

and on the same day i.e. on 05.03.1990, the amount of

Rs.10,000/- was debited from his account. The petitioner

submitted that he had not embezzled any amount and due to loss

of withdrawal form, the said irregularity took place.

(4 of 20)
[CW-2793/1992]

The respondent-Bank after reply of charge-sheet appointed

an Enquiry Officer and started conducting the enquiry. The

petitioner submitted an application before the Enquiry Officer

dated 17.01.1991 for making a search of credit voucher and debit

voucher. The petitioner requested that the said two documents

must be either in the almirah/drawer/record of the bank and as

the petitioner after depositing the amount of 10.05.1990 handed

over the charge, he was not able to get copies of the said credit

and debit voucher.

The Enquiry Officer conducted the enquiry and he found that

charges no.1, 2 3 were not proved and petitioner was not held

guilty for these charges. The Enquiry Officer found the charges

no.4 5 proved. The relevant portion of the Enquiry Report dated

26.03.1991 is reproduced as hereunder:-

“tkap ds nkSjku cSad fjdkMZ] ns[kus ,oa Jh tSu }kjk izLrqr lk{; ds
vk/kkj ij eSa bl fu”d”kZ ij igqapk gwW fd Jh tSu ij vk;n vkjksi
Øekad 1 yxk;r 3 iw.kZ :i ls fl) ugha gksrs gSA vkjksi Øekad 4 o
5 bl gn rd Lor% iqf”V gSa fd
1-+ ds’k dk;Z lekfIr ckn fyfid }kjk [kkrksa ls okmpjksa dk iksfLVax
djus ds i’pkr mUgsa pSd djus ds nkf;Ro dks Jh tSu }kjk Hkyh
izdkj ugha fuHkk;k gSA D;ksafd tc [kkrk la[;k 102 dk MsfCkV
okmpj ystj esa pSd fd;k rks ØsfMV izfof”V dk okmpj D;ks ugha
pSd fd;k ;fn okmpj ystj esa ugha Fkk ryk’k D;ksa ugha djk;k
x;kA
2- Jh tSu }kjk 10000@ : dh jkf’k dk 66 fnu mi;ksx dj cSad
dks C;kt dh gkfu igqapkbZ gSA
vr% Jh egkohj izlkn tSu vius nkf;Ro fuoZgu esa ykijokgh ds
fy;s nks”kh gSA Jh tSu ls 66 fnol dk 10000@ :- dk n.Muh;
C;kt 18%ls tek djk;k tkuk mfpr gSA”

The meeting of the Board of Directors of the Bank passed

resolution dated 22.07.1991. It was resolved that enquiry against

the petitioner has been done and re-enquiry in the matter is not

required. The dissenting note of Managing Director to re-enquire
(5 of 20)
[CW-2793/1992]

the matter was considered. It was further resolved that by giving

warning to the petitioner, he may be reinstated back in service.

The disagreement of Managing Director was also noted.

The petitioner was reinstated back in service by order dated

27.08.1991. However, an observation was made that the result of

pending enquiry will be informed to him and petitioner has alleged

that this observation was contrary to the resolution of Board of

Directors.

The petitioner was served with a show cause notice dated

12.03.1992 for imposing the punishment of dismissal. No reason

for disagreement with Enquiry Officer was communicated to him.

The petitioner submitted reply to the show cause notice and

requested that he has already been reinstated as per the

resolution of the Board decision dated 22.07.1991 and petitioner

was posted at different Branch at Karauli. The petitioner submitted

that he was required to be exonerated completely and there was

no question of imposing any punishment.

The Administrator of the respondent Bank passed impugned

order dated 01.04.1992 and made a mention that by decision of

the Board of Directors dated 22.07.1991, the petitioner was

reinstated but the said resolution of Board of Directors was not

approved by the Joint Registrar of the Cooperative Department,

Bharatpur Division, Bharatpur exercising his powers under Section

32 of the Rajasthan Cooperative Societies Act, 1965 (for short,

“the Act of 1965”) by order dated 18.11.1991.

The respondent has filed the reply to the writ petition and
(6 of 20)
[CW-2793/1992]

justified that charge-sheet was rightly issued to the petitioner as

the petitioner made an embezzlement of Rs.10,000/- by making a

false entry in his own account, and by forging another entry, he

withdrew the amount.

The respondent has further submitted in reply that petitioner

has concocted story in defence to the effect that one Shri

Mathuralal Jain approached the petitioner and gave him a

withdrawal slip from his account amounting to Rs.10,000/-. No

such withdrawal slip was traced in the Bank where the petitioner

was the Branch Manager and in the entire record of the Bank,

there was no entry about such withdrawal. The Bank has

submitted that the petitioner deposited amount of Rs.10,000/- on

10.05.1990 and it proved the charge against him.

It has been averred by the Bank that Board of Directors had

considered the report of enquiry and gave its opinion, however,

the decision of the Board was reversed by Joint Registrar by

invoking powers under Section 32 of the Act of 1965. The Bank

has further submitted that the petitioner appeared before the

Managing Director before imposing the punishment and on

03.03.1992, the petitioner admitted his guilt and the Disciplinary

Authority had full powers to accept the findings of the Enquiry

Officer or not to accept. The note-sheet where the petitioner had

put his signature was also placed on record.

The petitioner filed rejoinder to the reply and placed on

record letter dated 16.09.1993 written by him asking for copies of

vouchers. The letter dated 24.09.1993 is also placed on record as

Annex.16 wherein Joint Registrar, Cooperative Society directed
(7 of 20)
[CW-2793/1992]

Managing Director of the Bank to supply copy of vouchers to the

petitioner.

The petitioner thereafter during the pendency of the writ

petition filed an additional affidavit dated 24.04.2000 wherein he

has annexed letter dated 01.02.2000 (Annex.17) along with the

photo state copies of two documents dated 05.03.1990-withdrawal

slip of Shri Mathurlal Jain and credit voucher dated 05.03.1990.

Mr.Kamlakar Sharma, Senior Advocate for the petitioner has

made the following submissions in support of the writ petition:-

(i) The petitioner was not supplied two vital documents i.e.

credit voucher and debit voucher and as such, non-supply of

such document is denial of reasonable opportunity to

delinquent employee and accordingly, the entire enquiry is

vitiated.

(ii) The appointing authority of the petitioner was Board of

Directors and the Managing Director had no authority/

competence to sit over the resolution of the Board of

Directors and to pass a different order.

(iii) The order dated 18.11.1991 passed by joint Registrar not

approving the resolution of Board of Directors is beyond the

scope of Section 32 of the Act of 1965 and as such, the

impugned penalty order of dismissal based on order dated

18.11.1991 is bad in eye of law.

Alternatively, Mr. Sharma has said that assuming the

powers are said to be conferred under Section 32, no notice
(8 of 20)
[CW-2793/1992]

was given to the petitioner by the said authority i.e. Joint

Registrar before annulling the resolution of the Board of

Directors.

(iv) The reasons of disagreement with the findings of Enquiry

Officer were not communicated to the petitioner by the

Disciplinary Authority. The Disciplinary Authority has taken

into account all the five charges while passing the order. The

charges no.1, 2 3 having not been found proved, the

Disciplinary Authority ought to have supplied reasons for

disagreement with the said finding.

(v) The findings recorded by the Disciplinary Authority are

perverse as the allegation of retaining the money of

Rs.10,000/- for 66 days was without any basis as

Mr.Mathuralal, the person from whose account, money was

said to be withdrawn, himself stated in his statement during

the enquiry that he had authorized the petitioner to withdraw

the money and as such, there was no illegal retention of

money by the petitioner and no embezzlement was

committed by him.

(vi) The Disciplinary Authority ought to have given his

independent reasoning or findings while passing the

impugned punishment order. The penalty order particularly

when disagreeing with the report of Enquiry Officer must

reflect application of mind by the Disciplinary Authority.

(9 of 20)
[CW-2793/1992]

(vii) The petitioner had rendered 20 years of service and he was

Branch Manager since 1981 and he also deposited the

money, the punishment of dismissal from service was

disproportionate to the charge levelled against the petitioner.

Mr. Sharma in support of his arguments has relied upon the

judgments on the issue of recording of reasons and non-supply of

copy of disagreement when Disciplinary Authority disagrees with

findings of Enquiry Officer : (i) S.P. Malhotra Vs. Punjab National

Bank Ors., reported in 2013(7) SCC 251, (ii) CSHA University

Anr. Vs. B.D.Goyal, reported in 2010 (15) SCC 776, (iii) Punjab

National Bank Anr. Vs. K.K.Verma, reported in 2010(13) SCC

494, (iv) Lav Nigam Vs. Chairman MD ITI Ltd. Anr., reported

in 2006(9) SCC 440, (v) National Fertilizers Ltd. Vs. P.K.Khanaa,

reported in 2005(7) SCC 597, (vi) Yoginath D. Bagde Vs. State of

Maharashtra Anr., reported in 1999(7) SCC 739, and (vii) Punjab

National Bank Ors. Vs. Kunj Behari Misra, reported in 1998(7)

SCC 84.

Mr. Sharma has also relied on judgments relating to non-

supply of documents: (i) State of U.P. Os. Vs. Saroj Kumar

Sinha, reported in 2010(2) SCC 772, (ii) Uttar Pradesh

Government Vs. Sabir Hussain, reported in 1975(4) SCC 703, (iii)

Deepak Puri Vs. State of Haryana Ors., reported in 2000(10)

SCC 373, and (iv) State of U.P. Vs. Shatrughan Lal Anr.,

reported in (1998)6 SCC 651.

Per contra, Mr.A.K.Pareek, Adv. has submitted that the

petitioner is guilty of serious charges levelled against him and
(10 of 20)
[CW-2793/1992]

petitioner posted (credited) Rs.10,000/- in his SB account without

voucher then he withdrew (deposited) on the very same day i.e.

05.10.1990 without voucher in his account. Mr. Pareek has further

submitted that credit and debit entries were also not available in

relevant documents like transfer scroll register, progress register,

day book, etc. It is further submitted by Mr.Pareek that in order to

avoid and conceal the difference, when appeared in accounts on

tailing the balance of SBI accounts of Branch due to entry of

Rs.10,000/- in petitioner’s SB account, the petitioner manipulated

the SBI account no.3670 of BDO by adding figure “1” before figure

“2231” on page no.269 to progress register which was on page

no.267 of SBI account no.3670. The petitioner is alleged to have

manipulated the said account no.3670.

Mr. Pareek has submitted that the petitioner submitted a

letter to the Bank after the punishment order was passed that

before few days, vouchers were traced out at the time when other

papers were searched. Mr. Pareek submitted that these vouchers

were made available in dramatic manner as petitioner has filed

them as Annex.17 in the writ petition. It is further submitted that

vouchers have no signature of Branch Manager and as such,

cannot be treated as valid voucher.

Mr. Pareek submitted that as per Clause 13(2)(9)(;) of the

bylaws of the Bank, Managing Director disagreed with the finding

of the Enquiry Officer and same was recorded in the D.E. file at

note no.22. Mr. Pareek submitted that despite serious objection

raised by Managing Director of the Bank, resolution was passed by

the Board of Directors but same was cancelled/rescinded by the
(11 of 20)
[CW-2793/1992]

Registrar under his power vested under Section 32 of the Act of

1965.

Mr. Pareek has submitted that if the vouchers were in

existence then no such blunder would have been committed and

all the entries would have been made accordingly and as such,

due to non-availability of vouchers, the misappropriation of fund

was proved by evidence available on record.

Mr.Pareek has submitted that as per bylaws of the Bank, the

Managing Director was competent to conduct departmental

enquiry and referred the DE to the Administrator for major

punishment. He has further submitted that before imposing the

penalty, the petitioner was given ample opportunity and the

Disciplinary Authority was not bound to accept the reasons and

finding of Enquiry Officer and the Disciplinary Authority is having

full competence to take a decision contrary to the reasons given

by the Enquiry Officer.

Mr.Pareek has relied upon the following cases : (i) Mohan Lal

Jain Vs. The State of Raj., reported in 1998 WLC (Raj.) UC 427,

(ii) Hukumpura GSS Vs. The State of Raj., reported in 2012 (2)

WLN 366, and (iii) Bhura Lal Daroga Vs. The Stte of Raj., reported

in 2011(3) DNJ 1475.

I have heard the learned counsel for both the parties and

considered the entire record.

The first contention raised by the learned counsel for the

petitioner about non-supply of vital documents i.e. credit voucher

and debit voucher, is said to be denial of reasonable opportunity to
(12 of 20)
[CW-2793/1992]

the petitioner and accordingly, the departmental enquiry is said to

be vitiated.

The Court finds that the Enquiry Officer conducted the

enquiry on the basis of documents and oral evidence produced by

both the parties. The petitioner though filed an application for

making search of vouchers before the Enqujiry Officer by

submitting an application dated 17.01.1991, but the perusal of the

enquiry report shows that Enquiry Officer asked the petitioner to

inspect the bank’s record and documents and to obtain the copies

of documents before filing of the reply to the charge-sheet. The

petitioner by letter dated 12.01.1991 requested to inspect the

relevant documents and wanted to produce letter written by

Mathurlal Jain on 15.09.1990. The perusal of the enquiry report

further shows that on 17.01.1991, the petitioner had inspected

the record in presence of Bank’s representative Mr.P.P.Gupta. The

statements were also recorded of the witnesses which were

produced.

The non-availability and non-supply of the two documents

will not vitiate the enquiry by terming it as denial of reasonable

opportunity. The petitioner himself has produced the said vouchers

by filing an additional affidavit in the writ petition and these

documents are supplied to him by letter dated 01.02.2000. The

plea of the respondent-Bank that production of these documents

at belated stage and the manner in which these documents were

missing, raises serious doubt about the authenticity of these

documents.

The Court finds that once these documents were admittedly
(13 of 20)
[CW-2793/1992]

not part of the record of the enquiry and documents were not

traceable at the relevant time during enquiry, no adverse

inference can be drawn and no illegality can be found in the

departmental enquiry on this count.

The second contention raised by Mr.Sharma is about the

competence of Managing Director to sit over the resolution of

Board of Directors and to pass a different order. The Court

reproduces the relevant power of the Managing Director given in

the bylaws of the Cooperative Society in Clause 13(2)(9)( l)(n)(;),

which reads as under:-

“13- drZO; %
xxx xxx xxx
¼2½ izcU/k funs’kd ds drZO; ,oa mRrjnkf;Ro %
¼9½ xxx xxx xxx

¼l½ cSad esa izfrfu;qfDr ij inLFkkfir vf/kdkfj;ksa ,oa deZpkfj;ksa dks
NksMdj cSad ds leLr vf/kdkfj;ksa ,oa deZpkfj;ksa ds fo:)
vko’;rkuqlkj vuq’kklukRed dk;Zokgh djuk ,oa y?kq ‘kkLrh ls]
ftlesa fuyEcu djuk Hkh lfEefyr gS] nf.Mr djukA
¼n½ **n** Js.kh ls uhps ds deZpkfj;ksa ds fo:) vko’;rkuqlkj o`gr~
‘kkLrh ds fy, vuq’kklukRed dk;Zokgh dj ldsxk] ftlesa lsok
lekfIr@c[kkZLrxh Hkh lfEefyr gSA
¼;½ *n** Js.kh ,oa mPp Js.kh ds vf/kdkfj;ksa ds fo:) o`gRk~ ‘kkfLr
¼Major Penalty½ gsrq vuq’kklukRed dk;Zokgh izkjEHk dj ldsxk]
tk¡p djok ldsxk ,oa lsok lekfIr dks NksM dj o`gRk~ ‘kkLrh
¼Major Penalty½ ds vUrxZr vU; n.M ls nf.Mr dj ldsxkA
lsok lekfIr ds fy, izcU/k funs’kd] lapkyd e.My dks izLrko
izLrqr dj lapkyd e.My ds fu.kZ;kuqlkj gh dk;Zokgh djsxkA”

A perusal of Clause (;) shows that the Managing Director has

power to initiate the disciplinary proceedings against class ( n)

category of employees. He can initiate disciplinary proceeding for

imposing major penalty and has power to to impose all major

penalties except termination of services. It is provided that for
(14 of 20)
[CW-2793/1992]

termination of services, the Managing Director would propose to

the Board of Directors and he will act according to the

decision/resolution of Board of Directors. The said provision clearly

reveals that Managing Director has no power to sit over the

resolution of Board of Directors.

Mr. Sharma has raised the contention that impugned penalty

order of dismissal is based on an order dated 18.11.1991 passed

by the Joint Registrar under Section 32 of the Act of 1965.

Section 32 of the Rajasthan Cooperative Societies Act, 1965

is reproduced as hereunder:-

“32. Power of Registrar to rescind certain
resolutions.- (1) If in the opinion of the Registrar, any
resolution passed at the meeting of any co-operative
society or committee thereof is opposed to the objects
of the society or is prejudicial to the interests of the
society, or is in excess of the powers of the society, the
Registrar, after giving the co-operative society an
opportunity of being heard, may by order in writing
rescind the resolution in whole or in part specifying the
reasons therefor.

(2) On receipt of an intimation from the Registrar, of
his proposal to rescind the resolution under sub-
section (1), the said resolution shall cease to have
effect until the Registrar passes final orders in the
matter.”

The Courts finds that the power of Registrar given under

Section 32 is in respect of three contingencies: (i) the resolution

passed is opposed to the objects of the Society, (ii) Prejudicial to

the interest of the Society and (iii) is in excess of the power of the

Society. In the opinion of the Court where disciplinary proceedings

are initiated under Rule 16 of the Rajasthan Civil Services

(Classification, Control and Appeal) Rules, 1958, any order passed

by the competent Disciplinary Authority cannot be subject to
(15 of 20)
[CW-2793/1992]

approval by the Registrar under the powers given to him under

Section 32.

The wide term/power conferred on the Registrar to consider

resolution as prejudicial to the interest of the Society, cannot be

stretched to the extent of bringing the disciplinary proceedings

under the said power. The CCA Rules, 1958 provide the complete

procedure for holding the departmental enquiry and the

“competent/disciplinary authority” are also defined.

The power to initiate the disciplinary proceedings upto the

stage of imposing the penalty or exonerating an employee, cannot

be read as has been pleaded by counsel for the respondent. In the

opinion of the Court, once the resolution of Board of Directors was

passed, the order dated 18.11.1991 is absolutely without

jurisdiction. The Court further finds that before invoking power

under Section 32 by the Joint Registrar, even no notice was given

to the delinquent and decision was taken to rescind the resolution

partially.

The relevant portion of the order dated 18.11.1991 relating

to resolution No.20 dated 22.07.1991 is reproduced as

hereunder:-

” izLrko la[;k 20 fnukad 22-7-91

izLrko la[;k 20 ds }kjk Jh egkohjizlkn dks cgky fd;k tkdj
vuq’kklukRed dk;Zokgh MªkIV djus dk fu.kZ; fy;k x;k gSA bUgsa
[k;kur @xcu ds vkjksi esa fuyfEcr fd;k FkkA bl laca/k esa izLrko
vkaf’kd :i lsa vi[kafMr fd;k tkrk gS fd fuyECku ls cgky rks
fd;k tkos] ijUrq vuq’kklukRed dk;Zokgh MªkWi ugha dh tkos] D;ksafd
bl izdkj dk;Zokgh MªkWi djus ls xcu@[k;kurdrkZvksa dks laj{k.k
izkIr gksrk gS] D;ksafd blls iwoZ gh 2 cSad vf/kdkjh Jh xxZ ,oa Jh ih-
Mh-xqIrk bl izdkj dk d`R; dj pqdsa gS ”

(16 of 20)
[CW-2793/1992]

The perusal of decision from the order dated 18.11.1991 in

respect of Resolution no.20 further reveals that Joint Registrar had

also mentioned that petitioner was to be reinstated back in service

but disciplinary proceedings were not to be dropped because such

kind of dropping of the proceedings encourage the persons who

commit embezzlement/misappropriation and an example of two

more persons, who did the same thing, was given. In the opinion

of the Court, even the decision of Joint Registrar exercising powers

under Section 32, did not permit the respondent-Bank to pass the

impugned order of dismissal from service.

Mr. Sharma has submitted that the Disciplinary Authority did

not give the reasons of disagreement with the Enquiry Officer and

no communication was made about own conclusions drawn by the

Disciplinary Authority and reasons of disagreement thereof.

The Court finds that the Disciplinary Authority has acted

illegally by passing the impugned order. The Disciplinary Authority

was required to communicate the reasons of disagreement and

petitioner ought to have been given an opportunity to file his

objection/reply/explanation in respect of such disagreement. The

communication of such disagreement-note was further more

required in the instant case as the charges no.1, 2 3 which were

not found to be proved by Enquiry Officer, have all been found to

be proved by the Disciplinary Authority while passing the

impugned order. It is trite law that the Disciplinary Authority is

required to supply reasons of disagreement with Enquiry Officer to

the delinquent employee. In absence of same, the impugned order
(17 of 20)
[CW-2793/1992]

cannot be sustained in eye of law.

The Apex Court in the case of S.P.Malhotra Vs. Punjab

National Bank Ors. (supra) has laid down the law that non-

furnishing copy of recorded reasons for disagreement from

enquiry report prejudices delinquent. The relevant paras are

reproduced as hereunder:-

“7. The appellant challenged the said orders of
punishment by filing a Writ Petition No. 1201 of 1988
before the High Court of Punjab and Haryana at
Chandigarh. The said writ petition was contested by the
respondent Bank. The learned Single Judge allowed the
said writ petition vide judgment and order dated
20.5.2011, holding that in case the Disciplinary Authority
disagrees with the findings recorded by the Enquiry
Officer, he must record reasons for the dis-agreement
and communicate the same to the delinquent seeking his
explanation and after considering the same, the
punishment could be passed. In the instant case, as
such a course had not been resorted to, the punishment
order stood vitiated.”

“17 In Canara Bank Ors. v. Shri Debasis Das Ors.,
AIR 2003 SC 2041, this Court explained the ratio of the
judgment in Kunj Behari Misra (supra), observing that it
was a case where the disciplinary authority differed from
the view of the Inquiry Officer.

“26. ….In that context, it was held that denial of
opportunity of hearing was per se violative of the
principles of natural justice. (Debasis Das case,
(2003) SCC p. 578, para26)”

18. In fact, not furnishing the copy of the recorded
reasons for disagreement from the enquiry report itself
causes the prejudice to the delinquent and therefore, it
has to be understood in an entirely different context
than that of the issue involved in ECIL (supra).”

Mr. Sharma has pointed out that there is another glaring

illegality in the impugned order as the Disciplinary Authority did

not give his finding on each charge, and the penalty order reflects
(18 of 20)
[CW-2793/1992]

non-application of mind. The Court finds that the Disciplinary

Authority has reproduced the charges and did not give specific

finding how the charges no.1, 2 3 were proved. It is trite law

that in disciplinary proceedings, the Disciplinary Authority is

required to apply its mind to the entire facts of the record of

enquiry and has to give separate findings on the each charge, if

delinquent has committed misconduct relating to the charge

levelled against him.

The contention of learned counsel for the respondent that

the petitioner was given ample opportunity and the Disciplinary

authority was not bound to accept the reasons and findings of

Enquiry Officer, the Court finds that the Disciplinary Authority can

always differ with the finding of the Enquiry Officer, however, there

is a necessity to record reasons and to communicate the same to

the delinquent employee. The office file containing the note-sheets

produced by counsel for the respondent-Bank wherein para 22

reveals that on 04.04.1991 after receipt of report of Enquiry

Officer dated 26.03.1991, the Managing Director by his order

dated 04.04.1991 had recommended de-novo enquiry.

The plea of counsel for the respondent that the petitioner

had appeared in response to the show-cause notice of proposed

penalty before the respondent and admitted his guilt, the perusal

of para 38 of the record of enquiry shows that the petitioner had

admitted that he had received the copy of the enquiry report and

the petitioner is alleged to have said that the finding of the

enquiry report is accepted by him and he admitted that there was

an error and negligence on his part, and he expressed his regret,
(19 of 20)
[CW-2793/1992]

the Court finds that such kind of recording of admission of the

petitioner, is of no significance as the impugned order has already

been found to be illegal and not sustainable.

The learned counsel for the respondent has relied upon the

judgment of Mohan Lal Jain Vs. State of Rajasthan Ors. (supra).

The Court in the said judgment was dealing with scope of Sections

32 and 75 of the Rajasthan Cooperative Societies Act, 1965 and

the primary question was with respect to the abolition of post of

Assistant Secretary and Accountant. The Court found that after

abolition of post of Accountant, the Bank could dispense with

service of the petitioner in that case. The said case did not deal

with the scope of powers of the Registrar under Section 32

relating to the disciplinary matters.

The judgment relied upon by the learned counsel for the

respondent in the case of of Hukumpura Gram Sewa Sehkari

Samiti Ltd. Vs. State of Rajasthan Ors. (supra), relates to power

exercised by the Deputy Registrar, Cooperative Societies under

Section 125(1) of the Rajasthan Cooperative Societies Act, 2001,

where the resolution of the Society was stayed, about pay-scale to

be given to its employees. The Court in the said case directed the

parties to approach the Tribunal to exercise its power under

Section 125(3) of the Rajasthan Cooperative Societies Act, 2001.

The said case also does not apply to the present controversy in

the instant case.

The case reported in Bhura Lal Daroga Vs. State of Rajasthan

Ors. (supra) also relates to dispute with regard to the salary of

an employee and resolution being passed by the Society, where
(20 of 20)
[CW-2793/1992]

the Deputy Registrar exercising his power under Section 125(1) of

the Rajasthan Cooperative Societies Act, 2001, stayed the

resolution of the governing body of Cooperative Society. The said

case also does not apply to the present controversy.

In view of the above discussions, the writ petition deserves

acceptance and the same is allowed. The impugned order dated

01.04.1992 (Annx.13) is quashed and set aside. The petitioner is

held entitled for 50% of back-wages till his age of superannuation.

The petitioner would further be entitled for his post retiral benefits

in accordance with law.

(ASHOK KUMAR GAUR)J.

NK

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