R.C. Patnaik, J.
1. The petitioner, an employee of Dena Bank, has assailed in this writ application under Article 226 of the Constitution of India an order passed by the Regional Manager keeping his promotion from clerical cadre to officers cadre in abeyance as per his letter dated 30st June 1981, which has been appended to the writ application as Annexure-1, and the order of stoppage of two annual increments with cumulative effect by way of punishment in a disciplinary proceeding as per Annexure-15 dated 4th April 1984 and the order confirming the order of the disciplinary authority as per Annexure-16 dated 27th June 1984.
2. The petitioner entered service under Dena Bank as a Clerk with effect from 21st June 1972. When his case was ripe for consideration for promotion, he took the competitive examination. By letter dated 30th June 1981 (Annexure-1), he was informed by the Regional Manager, Calcutta Region, that his promotion was kept in abeyance pending enquiry into the irregularities as reported by the Inspectors who inspected Cuttack Branch in April, 1981.
3. On receipt of the aforesaid letter from the Regional Manager, the petitioner by his letter dated 10th July 1981 (vide Annexure-2) wrote to the Regional Manger denying the vague allegations and asked for a copy of the report submitted by the Inspectors to enable him to know the circumstances which appeared against him. By Annexure-3 dated 27th November 1981, a notice to submit explanation to the allegations contained therein was served on the petitioner. The petitioner reiterated his request for a copy of the inspection report vide Annexure-4(b), dated 8th December 1981. On 18th December 1981, he was informed that a copy of the report could not be supplied to him, the report being confidential in nature. The petitioner showed cause vide Annexure-4(a) dated 19th December 1981. He was served with a charge-sheet vide Annexure-6 dated 16th February 1982. He filed his statement in defence vide Annexure-7(a) dated 26th February 1982 and prayed for a copy of the Inspectors' report and assistance of a lawyer vide his application dated 9th July 1982 (Annexure-7(b). His prayer for assistance was refused by the employer vide Annexure-8 dated 10th August 1982. Enquiry into the charges was held and vide Annexure-9 dated 10th August 1983 the Enquiry Officer exonerated the petitioner from all charges. The disciplinary authority, while agreeing with the conclusions of the Enquiry Officer as regards the charges, disagreed as regards one of the charges and proposed the punishment of stoppage of two annual increments with cumulative effect as per Annexure-13 dated 13th March, 1984. The petitioner showed cause and the final order was passed by the disciplinary authority confirming the punishment proposed vide Annexure-15 dated 4th April 1984. The petitioner was not successful in appeal vide appellate order dated 27th June 1984 (Annexure-17).
4. He has assailed the order of the employer keeping his promotion in abeyance as per Annexure-1 and in the punishment imposed, on the following grounds:--
(a) Having been selected for promotion at the competitive examination, his promotion could not have been kept in abeyance in the facts and in the circumstances of the case
(b) The disciplinary authority's refusal to supply a copy of the inspection report amounted to violation of principles of natural justice and the disciplinary proceeding was vitiated from the inception.
(c) Refusal of assistance of a lawyer was violative of principles of natural justice, and
(d) The findings of the disciplinary authority that the petitioner had altered the sanctioned limit in the Ledger folios of the account of M/s. Kanan Stores, was perverse.
5. In the return submitted, the opposite parties have traversed the allegations and have submitted that as details of allegations were furnished in the preliminary show cause notice as well as in the charges furnished, denial of supply of a copy has not prejudiced the petitioner. Adequate opportunity was provided to the petitioner by granting a privilege of being defended through a defence representative. The allegations were not such as to justify the engagement of a lawyer. The management was not represented by a lawyer. Hence, no prejudice was caused to the petitioner. The disciplinary authority was justified to keep the promotion in abeyance pending enquiry into the allegations. There is no infirmity in the order of the disciplinary authority or the appellate authority holding the petitioner guilty of charges relating to the alteration of the sanctioned limit of the customer.
6. Dr. S.C. Dash, the learned counsel for the petitioner, has drawn our attention to a bi-partite settlement, as per Annnexure-A/4 dated 9th June, 1979, entered into between the All India Dena Bank Employees' Co-ordination Committee and the management of Dena Bank. Paragraph 12 thereof reads as under:
'12, Employees against whom disciplinary proceedings are pending:
Any employee against whom disciplinary proceedings are pending will be eligible for appearing in the written trade test and interview. In case he is found eligible for promotion, his promotion would be kept in abeyance till the enquiry is completed. In case he has been found not guilty in the enquiry proceedings, he shall be promoted with retrospective effect within one month from the date the decision is given after completion of the enquiry.
Any employee who has been punished for gross mis-conduct under the provisions of the bi-partite settlement, shall not be eligible for promotion for a period of three years from the date of such punishment, after the expiry of which he will have to reappear for the next written trade test and interview.
It is agreed, however, that this clause shall not apply in cases where punishment awarded is that of warning, censure, caution or adverse remarks in the service record of the employee.'
The learned counsel has contended that by June, 1981 the petitioner had already taken the promotion test and had been found eligible for promotion. The same could be kept in abeyance pending enquiry. But, inasmuch as no enquiry had been set in motion, there was no pending enquiry to attract paragraph 12 of the bipartite settlement.
7. By 30th of June, 1981 when the petitioner was informed that his promotion was kept in abeyance, no notice had been issued to him calling upon him to show cause to any allegations levelled against him. The first letter calling upon the petitioner to explain certain allegations is dated 27th November 1981 and charge-sheet was served on him on 16th February 1982 as per Annexure-6. In our opinion, no enquiry had commenced till charge had been framed and chargesheet was served on the petitioner. There is difference between the expressions 'pending enquiry' and 'contemplation of enquiry.' The two are different concepts. The former expression implies an enquiry which has already commenced, whereas the latter expression connotes an enquiry yet to commence. The enquiry as on 30st June 1981 was at a contemplation stage but was not pending. The management had, therefore, no authority to keep the promotion of the petitioner in abeyance applying paragraph 12 of the bi-partite settlement (Annexure-A/4).
In support of our view, we refer to an authority to which reference was made by Dr. Dash. In 1984 (2) S.L.R. 323 (B.P. Sharma v. Union of India and Ors.), it was held,
'.....A pending departmental inquiry necessarily means inquiry which has started. The inquiry usually starts with the issuance of the charge-sheet. Unless a charge-sheet has been issued it cannot be accepted that a departmental inquiry is pending against the petitioner.'
On our aforesaid holding, we quash Annexure-1 as invalid and without authority.
8. The next question is, if the departmental proceeding is vitiated by denial of principles of natural justice. Admittedly, there was an inspection by the Inspectors and on the basis of the report submitted, the disciplinary proceeding was initiated. The petitioner repeatedly asked for a copy of the report on the basis of which charges were framed against him. The report was denied to him on the ground that the same was confidential in nature. It is well settled that a report preceding the inquiry with reference to which or on the basis of which the disciplinary proceeding was started should be furnished to the delinquent to enable him to prepare his defence. It is not open to the management, the employer, to say that since the witness or the document on which it would rely would be disclosed to the delinquent, he will suffer no prejudice. In our opinion, such a contention does not satisfy the requirements. The Inspector may have examined witnesses including the officials of the Bank. What was their versions at the earlier stage? Did they give a different version from the one advanced at the inquiry? Did they shift their stand? It is difficult to postulate the manner in which the delinquent would have been benefited by the supply of the report and the extent to which he has been prejudiced by the denial thereof. He should have been supplied the relevant portion pertaining to the allegation which was the subject-matter of the charge. We are of the view that the denial of the management to supply a copy of the report so far as that related to the allegations infracted principles of natural justice. It has been held that where principle of natural justice is violated, the Court need not consider if there is prejudice because violation of principles of natural justice is prejudice by itself.
9. As regards the third point, we see no merit inasmuch as the charge was simple, no complicated facts were involved and the management was not represented by either a lawyer or a person well-versed in law. The petitioner was represented by defence representative from amongst the employees.
10. As regards the fourth question, we are not sitting in appeal so that we could re-assess the evidence for the purpose of ascertaining the sufficiency of evidence or the correctness of the finding though it was a case of statement of the petitioner verses statement of M.W.2 and there are instances where on verbal authorisation limit has been enhanced.
11. We are of the view that assumption of the authorities that the inquiry was pending, as contained in paragraph 12 of the bi-partite settlement, when the order as per Annexure-1 dated 30st June 1981 was passed, is unsustainable and that contravened paragraph 12. Inasmuch as Annexure-1 was not authorised by paragraph 12 of the bi-partite settlement, we quash the same. Further, inasmuch as refusal to supply a copy, of the inspection report so far as that related to the transaction in question violated principles of natural justice, we quash the punishment imposed as per Annexure-15 and the appellate order as per Annexure-17 upholding the order of punishment imposed by the disciplinary authority.
12. In the result, the writ application is allowed. But, in the circumstances, there would be no order as to costs.
V. Gopalaswamy J.
I agree.