ORDER
1. The petitioner in this petition is presently working as Officer in Junior Management Grade Scale-I in the respondent-Bank. For the misconduct stated to have been committed by the petitioner, disciplinary proceedings were initiated against the petitioner. It appears, the Enquiry Officer, after conducting necessary enquiry, has found the petitioner not guilty of the charges levelled against him. The Disciplinary Authority did not accept the Report of the Enquiry Officer and instead decided to reopen the domestic enquiry by his order dated 28-1-1991, a copy of which has been produced as Annexure-F to this petitioner. In this petitioner the order at Annexure-F passed by the Disciplinary Authority rejecting the enquiry report and directing reopening of the disciplinary proceedings has been called in question.
2. Sri Rajagopal, learned Counsel appearing for the petitioner, submitted that the order of the Disciplinary Authority in not accepting the Report of the Enquiry Officer and directing reopening of the enquiry is totally illegal, inasmuch as, the said order came to be passed without hearing the petitioner and without giving him an opportunity. According to the learned Counsel for the petitioner since the Enquiry Officer had found that the charges levelled against the petitioner were not proved, if the Disciplinary Authority wanted to reject the Report of the Enquiry Officer and direct conducting of fresh enquiry, it was incumbent on the Disciplinary Authority to have given an opportunity to the petitioner before rejecting the Report of the Enquiry Officer and directing reopening of the enquiry. Sri Rajagopal, learned Counsel for the petitioner, in support of his submission that the petitioner was entitled for an opportunity before passing the order impugned, relied upon the decision of the Supreme Court in the case of Ram Kishan v. Union of India and others, 1996 I CLR 26, and a D.B. decision of this Court in the case of Karnataka Agro Industries Corporation v. Vittaldas, W.A. Nos. 2809 and 2810 of 1991, DD : 20-10-1995.
3. Sri Subba Rao, learned Counsel appearing for respondent-1, submitted that since the Disciplinary Authority was required to take a final decision in the matter on the basis of the enquiry report and since the Disciplinary Authority had only rejected the Report of the Enquiry Officer and remitted the matter for fresh enquiry, it was not obligatory for the Disciplinary Authority to give an opportunity to the petitioner. In support of his contention, the learned Counsel placed reliance on a decision of the Supreme Court in the case of A. K. Kraipak and Others v. Union of India & Ors, : [1970]1SCR457 , and in the case of State Bank of India, Bhopal v. S. S. Koshal, 1994 Supp. (2) SCC 468.
4. In the light of the rival contentions advanced by the learned Counsel for the parties, the short question that would arise for consideration in this petition is whether the Disciplinary Authority was required to hear the petitioner-delinquent official before rejecting the report of the Enquiry Officer regarding the finding that the charges levelled against the petitioner were not proved and directing further enquiry.
5. It is not in dispute that the Enquiry Officer has found that the charges levelled against the petitioner were not proved. It is well-settled that it is open to the Disciplinary Authority either to accept the Report or reject it. The S.C. in the case of Managing Director, ECIL Hyderabad v. B. Karunakar, 1993 II CLR 1129, has taken the view that the copy of the enquiry report is required to be furnished to the delinquent official before the Report furnished by the Enquiry Officer finding the delinquent official is guilty, is acted upon. The object of the principle enunciated by the S.C. in the decision referred to above is that the copy of the enquiry report should be made available to the delinquent official and that the delinquent official should be given an opportunity to make his submissions with regard to the finding recorded against him before a final decision is taken by the Disciplinary Authority. It is useful to refer to Paragraph 7 of the said decision which reads as hereunder :
'The right to receive the Inquiry Officer's Report and to show-cause against the findings in the report was independent of the right to show cause against the penalty proposed.
.................................................................
While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the Disciplinary Authority takes into consideration the findings in the report, the right to show-cause against the penalty proposed belongs to the second stage when the Disciplinary Authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusion. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment.
The reason why the right to receive the Report of the inquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the Disciplinary Authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the Disciplinary Authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the Disciplinary Authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the Disciplinary Authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the Disciplinary Authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the Disciplinary Authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the Disciplinary Authority, that would not constitute any additional material before the Disciplinary Authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the Disciplinary Authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the Disciplinary Authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. The Disciplinary Authority is then required to consider the evidence, the Report of the Inquiry Officer and the representation of the employee against it.
It will thus be seen that where the Inquiry Officer is other than the Disciplinary Authority, the disciplinary proceedings break into two stages. The first stage ends when the Disciplinary Authority arrives at its conclusions on the basis of the evidence, Inquiry Officer's Report and the delinquent employee's reply to it. The second stage begins when the Disciplinary Authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings.
6. In the case of Ram Kishan, supra, relied upon by the learned Counsel for the petitioner, the question that came up for consideration was whether the conclusion of the Disciplinary Authority disagreeing with the Report of the Inquiry Officer requires to be quashed on the ground that the show-cause notice issued by the Disciplinary Authority for disagreeing with the findings of the Inquiry Officer did not indicate the reasons on the basis on which the Disciplinary Authority proposed to disagree with the conclusions reached by the Inquiry Officer. While considering the said question, the Supreme Court at Paragraph 10 of the judgment has observed thus :
'10. The next question is whether the show-cause notice is valid in law. It is true, as rightly contended by the Counsel for the appellant that the show-cause notice does not indicate the reasons on the basis of which the Disciplinary Authority proposed to disagree with the conclusions reached by the Inquiry Officer. The purpose of the show-cause notice, in case of disagreement with the findings of the Inquiry Officer, is to enable the delinquent to show that the Disciplinary Authority is persuaded not to disagree with the conclusions reached by the Inquiry Officer for the reasons given in the inquiry report or he may offer additional reasons in support of the finding by the Inquiry Officer. In that situation, unless the Disciplinary Authority gives specific reasons in the show-cause on the basis of which the findings of the Inquiry Officer in that behalf is based, it would be difficult of the delinquent to satisfactorily give reasons to persuade the Disciplinary Authority to agree with the conclusions reached by the Inquiry Officer. In the absence of any ground or reason in the show-cause notice it amounts to an empty formality which would cause grave prejudice to the Delinquent Officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the Disciplinary Authority cannot cure the defect. But on the facts in this case, the only charge which was found to have been accepted is that the appellant had used abusive language on the Superior Authority. Since the Disciplinary Authority has said that it has agreed partly to that charge the provisional conclusion reached by the Disciplinary Authority in that behalf even in the show-cause notice cannot be said to be vague. Therefore, we do not find any justification to hold that the show-cause notice is vitiated by an error of law, on the facts in this case.
7. A Division Bench of this Court in the case of Karnataka Agro Industries, supra, while considering the scope of interference by this Court with regard to the finding recorded by the Disciplinary Authority has observed thus :
'In the present case, as mentioned above, the Enquiry Officer has found the delinquent guilty of certain charges. The Disciplinary Authority did not accept the findings and gave reasons for disagreement with the findings of the Enquiry Officer. It hardly requires to be stated that the findings of the Enquiry Officer are merely recommendatory and are not binding on the Disciplinary Authority. The Disciplinary Authority is entitled to come to its own conclusion on the material available and the only limitation is that before recording a finding against the delinquent in cases of disagreement with the recommendation, show-cause notice is required to be served on delinquent to explain why findings should not be rejected. Such is the well-settled position about the ambit of enquiry and it is difficult to appreciate how the learned Judge could peruse the Report of the Enquiry Officer and hold that the findings of the Enquiry Officer are perverse'.
8. The decisions of the Supreme Court and of this Court, in the case of Ram Kishan, supra and Karnataka Agro Industries, supra, clearly indicate if the Disciplinary Authority intends to disagree with the finding of the Inquiry Officer, the Disciplinary Authority is required to serve show-cause notice to the delinquent official. It is so because when a finding has been recorded by the Enquiry Officer on the basis of the materials on record, if the Disciplinary Authority intends to disagree with the said finding, an opportunity is required to be given to the delinquent official as any contrary finding that would be reached by the Disciplinary Authority would seriously affect the rights of the delinquent official - The right being right to employment which may in certain cases result in deprivation of right to livelihood. There cannot be any dispute that any adverse finding recorded by the Disciplinary as against the finding recorded by the Enquiry Officer holding that the charges levelled against the delinquent official are not proved would result in civil consequence. Under these circumstances, as pointed out by the Supreme Court in the case referred to above and also by a Division Bench of this Court, I am of the view that the delinquent official should be given an opportunity before the Disciplinary Authority disagrees with the finding recorded by the Enquiry Officer. Then the only other question that would arise for consideration is, if the Disciplinary Authority is only remitting the matter for further enquiry and not proceeding to impose penalty, whether such a delinquent official is entitled for an opportunity, as contended by the learned Counsel for the petitioner. I am of the view that the same would not make any difference. No doubt, the decision of the Supreme Court in the case of S. S. Koshal, supra supports the contention of the respondent that the Disciplinary Authority is not required to give a fresh notice to be delinquent official before the Disciplinary Authority records a finding disagreeing with the finding of the Enquiry Officer. However, from the facts of the said case, it is seen that the finding was recorded by the Disciplinary Authority in the said case on 8-5-1984 which is prior to cut off date of 20-10-1990, prescribed by the Supreme Court in the case of Karunakar, supra. The question as to whether the delinquent official was entitled for a notice before the Disciplinary Authority intends to disagree with the finding recorded by the Enquiry Officer, was considered by the Supreme Court in the said case in the back drop of the contentions advanced that the copy of the Enquiry Officer was not furnished to the delinquent official in the said case and under those circumstances the Supreme Court took the view that the finding recorded by the Disciplinary Authority disagreeing with the findings recorded by the Enquiry Officer and imposing punishment on that basis was not vitiated. The decision of the Supreme Court in the case of Ram Kishan, supra, which is a subsequent decision of the Supreme Court, clearly lays down that it is not sufficient if the show-cause notice is issued by the Disciplinary Authority, but the said show cause notice also should give reasons for disagreeing with the finding of the Enquiry Officer. Further, the decision of the Supreme Court in the case of Karunakar, supra, has a direct bearing on the question raised in this petition. The law laid down in the case of Karunakar, supra, makes it clear that in respect of the report submitted by the Enquiry Officer subsequent to 20-10-1990, the delinquent official is entitled for the copy of the report and he should be given an opportunity to explain the finding in the report. Therefore, the learned Counsel for the respondent cannot get any assistance from the principle laid down by the Supreme Court in the case of S. S. Koshal, supra, as the principle laid down in the said case will not apply to the facts of the present case as the report was given by the Enquiry Officer after 20-10-1990. Under these circumstance, I am of the view that there is no merit in the contention of the learned Counsel for the respondent that it was not obligatory on the part of the Disciplinary Authority to give an opportunity or show-cause notice to the petitioner before passing the order impugned disagreeing with the finding recorded by the Enquiry Officer and directing further enquiry into the charges levelled against the petitioner. Merely because the Disciplinary Authority has remitted the matter for further enquiry would not make any difference on principle, whether the Disciplinary Authority propose to direct further enquiry on his coming to the conclusion that he does not agree with the finding recorded by the Enquiry Officer or proposes to impose punishment by itself. In both the cases the Disciplinary Authority takes a decision adverse to the interest of the delinquent official. As pointed out by the Supreme Court in the case of Ram Kishan, supra, at that stage if an opportunity were to be given to the delinquent official, it would be possible for him to satisfy that there is no reason for the Disciplinary Authority to disagree with the finding recorded by the Enquiry Officer not only on the basis of the finding recorded by the Enquiry Officer but also on other valid grounds. If an opportunity is denied at that stage to the delinquent official, the delinquent official will have to undergo ordeal of facing further enquiry or fresh enquiry as in the present case. When a favourable finding has been recorded by the Enquiry Officer, though the power of the Disciplinary Authority to disagree with the finding recorded by the Enquiry Officer is unquestionable, the Disciplinary Authority, in my view, is required to hear the delinquent official before he disagrees with the finding recorded by the Enquiry Officer, either for the purpose of imposing punishment by himself or for remitting the matter for fresh enquiry or further enquiry to the Enquiry Officer. If the Disciplinary Authority is required to furnish the copy of the enquiry report to the delinquent official even in cases when he is inclined to accept the report of the Enquiry Officer finding the delinquent official guilty of the charge levelled against him, as laid down by the Supreme Court in the case of Karunakar, supra, to explain the finding recorded against him by the Enquiry Officer. I do not find any justification or any good reason as to why the Disciplinary Authority should not hear the delinquent official before he disagrees with the finding recorded by the Enquiry Officer in favour of the delinquent official. In my view the principle laid down by the Supreme Court in the case of Karunakar, supra, would apply with greater force where the Disciplinary Authority wants to disagree with the finding recorded by the Enquiry Officer. It is also necessary to point out that the decision of the Supreme Court in the case of A. K. Kraipak, supra, relied upon by the learned Counsel for the respondent, also has of no assistance to the respondent. On the other hand, Paragraph 20 of the said judgment supports the case of the petitioner. It is useful to extract paragraph 20 of the said judgment, which reads as hereunder :
'20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet esse judex in propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial inquiries. Enquiries which were considered administrative at one time now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala, : [1969]1SCR317 , the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case'.
Therefore, if the present case is examined in the background of the principle enunciated by the Supreme Court in the case of A. K. Kraipak, supra, I have no hesitation to take the view that the delinquent official is entitled for an opportunity before the Disciplinary Authority disagrees with the finding recorded by the Enquiry Officer in favour of the delinquent official and remits the matter either for fresh enquiry or further enquiry. I may also point out that if such a course is adopted, it would be in furtherance of justice, no prejudice would be caused to any one. If an opportunity is given to the delinquent official and on the basis of the explanation that may be submitted by the delinquent official, if the Disciplinary Authority accepts the report of the Enquiry Officer which is favourable to the delinquent official, apart from the fact that it would protect the rights and reputation of the delinquent official and save him of the embarrassment of facing either fresh or further enquiry, it would save lot of public time which could be more usefully utilised for the benefit of the public in an organisation like the first respondent-Bank.
9. In the light of the conclusion reached above, the order at Annexure-F dated 28-1-1997, is liable to be quashed. However, it is necessary to make it clear that quashing of the order impugned should not be understood by the Disciplinary Authority of the first respondent-Bank that I have expressed any opinion on the merits of the finding recorded by the Enquiry Officer or on the merits of the case of the petitioner. The Disciplinary authority is entitled to take an independent decision in the matter after giving an opportunity to the petitioner, as stated above.
10. Therefore, I make the following order :
(i) The order at Annexure-F dated 28-1-1997, is hereby quashed and the Disciplinary Authority of the first respondent-Bank is directed to reconsider the report of the Enquiry Officer after furnishing the same to the petitioner and after giving an opportunity to him.
(ii) The Disciplinary Authority is directed to reconsider the matter and take fresh decision, as stated above, within two months from the date of receipt of a copy of this order.
(iii) Rule is issued and made absolute.
11. This petition is disposed of in the terms stated above. No order as to costs.