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 xxx¼l½ 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
