Judgment:
ORDER
P.L.N. Sarma, J.
1. This Writ Petition has been filed for quashing the proceedings of the Board of Directors of the State Bank of Hyderabad, dated 7-12-1990 in and by the terms of which the petitioner was inflicted with the penalty of placing him at the start of the basic pay applicable to officers of JMGS-I cadre viz., at Rs. 2,100-00 bringing him down by nine stages from the basic pay the petitioner was drawing viz., Rs. 3,180-00. The Board of Directors also debarred the petitioner from being considered for promotion for a period of five years and also directed recovery of the amount of Rs. 550-00 which amount was said to have been paid by the Bank to one Sri Bandappa Kallappa Gandge. The said order imposing penalty was communicated by the Managing Director in his letter dt.13-2-1991 to the petitioner. The petitioner is seeking a direction from this Court for quashing those proceedings by the issuance of writ of certiorari.
2. The relevant facts are as follows:
The petitioner was appointed as a Clerk in the first respondent-bank on 5-6-1963 and was promoted as an Officer with effect from 1-91970. While so, he was placed under suspension pending departmental enquiry with effect from 9-10-1976 on certain allegations while he was working as Branch Manager, Kamalanagar branch. Several proceedings have taken in the meanwhile which it may not be necessary to refer for the purpose of disposing of this Writ Petition. Suffice it to refer to the two earlier proceedings which were taken in this Court by the petitioner. Charge sheet No. 8/20 dated 8-12-1976 was issued to the petitioner. The Executive Committee at its meeting held on 21-4-1977, considering the explanation of the petitioner, came to the conclusion that the charges were established and resolved to impose on him the penalty of reversion to the clerical cadre etc. Accordingly show cause notice was issued to him. At that stage the petitioner filed a Writ Petition No. 526 of 1978 in this Court questioning the entire proceedings and the matter ultimately disposed of by a Division Bench of this Court in Writ Appeal No. 461 of 1978. This Court directed the Board of Directors of the first respondent-bank and not the Executive Committee, to consider the case afresh by affording the petitioner a fair opportunity to defend his case.
3. Subsequently, the Board of Directors at the meeting held on 28-12-1981 proposed to impose upon the petitioner the penalty of discharge from the Bank's Services, subject to his further explanation, if any and then after considering the explanation submitted by the petitioner at the meeting of the Board of Directors dated 6-8-1982 the penalty of discharge from the Bank's Services was imposed on the petitioner. Questioning those proceedings again the petitioner filed W.P.No. 6754 of 1982 in this Court. Ultimately, this Court while quashing the order discharging the petitioner, directed the .Board of Directors to conduct an enquiry into the charges alleged against the official by confining to the show cause notice dated 30-4-1977 by following the procedure prescribed under the State Bank of Hyderabad (Officers') Service Regulations, 1979.
4. The disciplinary proceedings were conducted accordingly and ultimately the punishment, as aforesaid was imposed on the petitioner and along with the punishment imposed on the petitioner, the report of the Enquiry Officer was also served on the petitioner.
5. Questioning these proceedings imposing the penalty on the petitioner, as aforesaid, this Writ Petition has been filed. One of the grounds raised in the Writ Petition is that the petitioner was not supplied with the findings of the Enquiry Officer before the punishment was imposed and therefore the procedure adopted by the second and third respondents is illegal and in violation of the principles of natural justice.
6. As I stated, the petitioner raised several contentions in the Writ Petition apart from the one which is referred to above. The learned Standing Counsel appearing for the respondents also filed a counter resisting the same. It is not necessary for me to go into the merits of the case in the view I have taken having regard to the judgment of the Supreme Court in Managing Director, ECIL, Hyderabad v. B. Karunakar, 1993 (3) All India S.L.J. 193.
7. Sri A. Panduranga Rao, learned Counsel appearing for the petitioner relying upon the aforesaid judgment contended that non-supply of the Enquiry Officer's report before the imposition of punishment to the petitioner is bad as it is in violation of the principles of natural justice. The petitioner was deprived of making an effective representation as against the findings recorded by the Enquiry Officer before the same was considered by the disciplinary authority. This is in violation of the principles of natural justice and therefore on that ground alone the Writ Petition will have to be allowed and the enquiry to be reopened and conducted with effect from the stage of supply of the. Enquiry Officer's Report viz., he should be given an opportunity to make a representation in respect of the report of the Enquiry Officer and thereafter the further conduct of the disciplinary proceedings will have to take place.
8. Sri Ramesh, appearing for Sri K. Srinivasa Murthy, learned Standing Counsel for the respondents, on the other hand, contended that even though the Supreme Court in the above mentioned judgment stated that the non-supply of the Enquiry Officer's report to the petitioner before disciplinary authority considered the same is opposed to the principles of natural justice, still on that ground alone the Writ Petition need not be allowed and the matter remitted back to the stage of supply of the Report of the Enquiry Officer. It is his contention that it is open to this Court to consider whether the non-supply of the Report of the Enquiry Officer to the petitioner, prejudiced the petitioner or not by going into the record and if the Court comes to the conclusion the petitioner was prejudiced because of the non-supply of the Enquiry Officer's Report, then alone the punishment will have to be set aside and the matter remitted and continued from the stage of the submission of the explanation by the petitioner to the Enquiry Officer's Report and not otherwise. Therefore, the learned Counsel contended that this Court will have to go into the merits of the case to find out whether any prejudice is caused to the petitioner due to non-supply of Enquiry Officer's Report. In support of his contention the learned Counsel drew my attention to paras 30 and 31 of the judgment referred to supra. In this connection, it is well to remember that the learned Judges of the Supreme Court in Union of India v. Mohd. Ramzan Khan, : (1991)ILLJ29SC held that the Report of the Enquiry Officer, when the disciplinary authority is not the Enquiry Officer, is not supplied to the delinquent in a departmental enquiry before the imposition of punishment will be in violation of the principles of natural justice. However, the learned Judges stated therein that the decision is prospective, in the sense, that the ratio of the decision will be applicable prospectively viz., with effect from the date of the Judgment 20-11-1990. In the present case, the order imposing penalty on the petitioner is dated 7-12-1990 and therefore squarely falls within the mischief referred to in Mohd. Ramzan Khan's case : (1991)ILLJ29SC .
9. The judgment of Mohd. Ramzan Khan's case : (1991)ILLJ29SC was the subject matter of consideration by the Supreme Court in Karunakar's case (1 supra). The learned Judges of the Supreme Court on an exhaustive review of the case law held in para 29 as follows:
'Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the Inquiry 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 Inquiry 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.'
The learned Judges stated that denial of the report of the Enquiry Officer is a denial of reasonable opportunity and it is in breach of the principles of natural justice. The learned Judges after referring to the position with regard to different service rules also stated as under:
'Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's Report notwithstanding the nature of the punishment'.
The learned Judges also held that question of waiver does not arise with regard to furnishing of a copy of the Enquiry Officer's report to the employee. The ratio of the decision is based on two stages of enquiry. First stage being to defend himself against the charge levelled against him. The second stage is with regard to whether or not to impose the penalty and if so what penalty to be imposed. Having regard to the two stages of the enquiry the learned Judges felt that the Report of the Inquiry Officer, where the disciplinary authority is not the Inquiry Officer, should be supplied to the delinquent so as to enable him to effectively submit his representation with regard to his guilt.
10. Learned Judges extended the principle laid down in Ramzan Khan's case (2 supra) to all establishments whether Government or non-Government, public or private. Learned Judges also held that the principles laid down in Ramzan Khan's case (2 supra) will apply irrespective of the fact whether there are any rules governing the situation or not. Those principles will apply even in a case where the rules governing the disciplinary proceeding expressly prohibit the furnishing of a copy of the report or even if the said rules are silent on the subject. Ultimately, the learned Judges laid down that whatever may be the nature of objection, whenever the rules require enquiry to be held for inflicting the punishment, the delinquent employee should have the benefit of the report of the Enquiry Officer before the Disciplinary Authority records its findings on the charges levelled against him. Therefore, non-furnishing of the Enquiry Officer's Report before inflicting of punishment on the delinquent is wholly illegal. These are the principles laid down by Karunakar's case (1 supra).
11. But it is then contended by Sri Ramesh, learned Counsel for the respondent in his usual, fair and effective way, relying upon sub-para (v) of para 30 of the report in Karunakar's case (1 supra) that in all cases where the Enquiry Officer's Report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts or Tribunals, as the case may be, before dealing with the proceedings that arise for consideration, should direct a copy of the report of the Enquiry Officer to be furnished to the delinquent if he has not already obtained the same and then give the delinquent an opportunity to show as to how his or her case was prejudiced because of the non-supply of the report. For determining whether any prejudice has been caused to the delinquent Officer due to non-supply of the report of the Enquiry Officer, the Court or Tribunal, as the case may be, will have to go into the merits of the case having regard to the material placed before it. Only when the Court or Tribunal, as the case may be, finds on the material available that the delinquent officer was prejudiced due to non-supply of the Report of the Enquiry Officer, then alone the Court or Tribunal should interfere with the order of punishment. In other words, it is contended that the Court or Tribunal should not interfere with the order of punishment and set aside mechanically the order of punishment only on the ground that the report of the Enquiry Officer was not furnished to the delinquent.
12. I am of the opinion that the contention advanced by Sri Ramesh is attractive on the first impression, but on a deeper consideration, it has no substance. The Judgment of Karunakar's case (1 supra) is clearly to the effect that a denial of the Report of the Enquiry Officer to the delinquent before the Disciplinary Authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and it is in breach of the principles of natural justice and therefore, it is bad. This is the principle laid down by the learned Judges. Having held so, the learned Judges in Para 31 stated that 'in all cases where the Inquiry Officer's Report is not furnished to the delinquent employee in the disciplinary proceedings', the Courts/Tribunals should direct the report to be furnished to the delinquent and give him an opportunity to show how his or her case was prejudiced because of the non-supply of the report and should not set aside mechanically the punishment unless the Court or Tribunal comes to the conclusion that non-service of the report of the Enquiry Officer prejudiced the delinquent. Relying upon these observations, Sri Ramesh, learned Counsel for the respondents contended as aforesaid. The observations of the learned Judges must be understood in the light of the facts arising in the case as the Judgment takes its colour from the facts in the case. The learned Judges when they stated that 'in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings', were only referring to the cases which involved the punishment of dismissal or removal and may be compulsory retirement. In the above mentioned cases, punishment puts an end to the employment and any interference with the same will necessitate an order of reinstatement into service. The punishment referred to above viz., dismissal or removal of an employee from service, is very grave in nature and it will be referable for grave delinquency. The punishment will be commensurate with the delinquency. Therefore, the learned Judges felt in such a case mechanically an order of reinstatement should not be passed on the ground that the Inquiry Officer's Report was not furnished to the delinquent where the Enquiry Officer is different from Disciplinary Authority. In fact, the learned Judges in sub-para (v) of para 30 of the report posed the next question as to what is the effect on the order of punishment when the Report of the Inquiry Officer was not furnished to the employee and what relief should be granted in such cases. After posing the said question, the learned Judges stated that the answer to the said question has to be relative to the punishment awarded. In that context, the learned Judges clearly mentioned that when the employee is dismissed or removed from service and the entire proceedings are set aside on the only ground that the Report of the Inquiry Officer was not furnished, in some cases it may reduce the rules of natural justice to a mechanical ritual. Therefore, the principle was laid down by the learned Judges with reference to the punishment of dismissal and removal where the delinquency is also grave. In that context, the learned Judges used the words 'in some cases' the non-furnishing of the report may prejudice him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. The words 'in some cases' used by the learned Judges are referable to some cases where the punishment of dismissal and removal are inflicted. Therefore, to my mind, the learned Judges were referring to some cases where the punishment of dismissal and removal was awarded, setting aside the punishment only on the ground that the Report of the Enquiry Officer was not furnished to the delinquent may reduce the rules of justice to a mechanical ritual. Therefore, the learned Judges, in that context, observed that in the cases involving the punishment of dismissal and removal, it is not necessary to straight-away set aside the same and direct reinstatement of the delinquent only on the ground that the Inquiry Officer's Report was not furnished to the delinquent. In those cases, it is necessary for the Court/ Tribunal to direct the supply of Inquiry Officer's Report to the delinquent, if not already procured by the delinquent and give an opportunity to him to show that the non-supply of the report prejudiced him and if the Court/Tribunal conies to the conclusion that the non-supply of the report prejudiced the delinquent, then alone it will be set aside and reinstatement will be ordered.
13. Therefore, the observations in sub-para (v) of para 30 as well as para 31 of the report in Karunakar's case (1 supra) are confined and applicable to the cases where punishment of dismissal and removal are involved where setting aside of the same involves re-instatement of the employee into service. The words 'in some cases' used by the learned Judges in sub-para (v) of para 30 and the words 'in all cases' used in para 31 of the report are referrable to the cases where punishment of dismissal and removal are involved which has the effect of terminating the employment and setting aside of the same will involve reinstatement.
14. Having regard to the above, I am of the opinion that in other cases where other punishments are involved excluding dismissal and removal, it is not necessary for the Court to go into the question as to whether the non-supply of the Report of the Inquiry Officer to the delinquent prejudiced him or not. The non-supply of the report of the Inquiry Officer to the delinquent itself vitiates the proceedings and the Court/Tribunal is entitled to set aside the same with a direction to continue the disciplinary proceedings from the stage of furnishing the Inquiry Officer's Report and if the Inquiry Officer's Report was already procured by the delinquent from the stage of giving an opportunity to him to submit the explanation or representation in respect of the Inquiry Officer's Report so as to enable the Disciplinary Authority to take a decision on its own merits and in accordance with law.
15. In the present case, admittedly, the disciplinary authority is different from Enquiry Officer and the punishment that is imposed on the petitioner is not one of dismissal or removal from service. It is also admitted that the report of the Inquiry Officer was not furnished to the petitioner before the imposition of penalty. In fact the report was enclosed to the order where under the punishment was imposed on the petitioner.
16. Learned Counsel appearing for the respondent also drew my attention to Regulation 67 of State Bank of Hyderabad (Officers) Service Regulations, 1979, herein after referred to as 'The Regulations'. Regulations, 1979 was issued under the power concerned by Section 68 of the State Bank of India Subsidiary Banks Act, 1959. Regulation 67 enumerates penalties, both major and minor. Clause (c) of the regulation provides for reduction to lower cadre of post or lower stage in the time scale of pay. Clause (f) provides for compulsory retirement and Clause (g) provides for removal from service. Clause (h) provides for dismissal from service. These four are the major penalties which require an enquiry to be conducted before they are imposed penalties under Regulation 68 (2) (i). Therefore, it is clear that the regulations themselves contemplate holding of an enquiry before the major penalties are imposed. If that is so, the case squarely falls within the principle of Karunakar's case (1 supra). Present case does not fall under Clauses (f) (g) or (h) of Regulation 67 of the Regulations which put an end to the employment.
17. For the reasons mentioned above, the contention of the learned Counsel appearing for the respondents is not sustainable and I am of the opinion that the present case involves reduction in rank. It is not necessary for the petitioner to establish before me that non-supply of the Inquiry Officer's Report prejudiced him. Non-supply of the Inquiry Officer's Report itself vitiates the proceedings.
18. For the reasons mentioned above, the impugned order imposing punishment on the petitioner of the second respondent as communicated by the third respondent is set aside. The petitioner has already been supplied with the copy of the Report of the Inquiry Officer along with the order of punishment. The disciplinary proceedings will now start from the stage of giving an opportunity to the petitioner to submit representation to the report of the Inquiry Officer, to the Disciplinary Authority and the disciplinary proceedings will be continued and the respondents are directed to proceed with the enquiry and complete the same in accordance with law.
19. The petitioner is given time to submit his report as aforesaid within a period of three weeks from the date of receipt of a copy of this order. Respondents are directed to complete and dispose of the enquiry within a period of two months from the date of receipt of the representation/Explanation from the petitioner. It is needless to mention that it is open to the petitioner to raise all such contentions as are open to him under law in the representation to be submitted to the disciplinary authority and the same will be dealt with in accordance with law by the respondents.
20. Having regard to the facts and circumstances and the view I have taken, status quo as on today will be maintained for a period of four months from today. In case, the enquiry is not completed within the aforesaid period, the petitioner will be paid the salary which he was drawing prior to the order suspending him from service pending enquiry.
21. Writ Petition is accordingly disposed of. No costs.