Hon. Dr. Satish Chandra, J.
Heard learned counsel for the petitioner. Shri Gopal Kumar Srivastava appears for the respondent-bank.
The petitioner was serving as Chief Cashier at Nakkhas Branch, Central Bank of India, Lucknow. A shortage of Rs. 70,000/- was reported on the opening of the cash box, when he reported at the bank on 11.7.1986, and proceeded on leave after handing over the keys without opening the cash box. The petitioner was dismissed from service by the Disciplinary Authority on 2.11.1989 after the departmental enquiry in which charges were not proved. He filed a Writ Petition No. 10213 of 1989 (S/B) A.K. Gaur vs. Central Bank of India and others. The writ petition was allowed by this Court on 30.11.2000, with the findings "...before proceeding further after disagreeing with the findings of the inquiry officer the disciplinary authority should have granted an opportunity to the petitioner before recording of his own findings. The disciplinary authority should also have recorded its tentative reasons of disagreement after giving an opportunity to the petitioner to represent his case before him."
On 13.2.2001 the Regional Manager, Central Bank of India, Lucknow gave a fresh memo purportedly recording reasons of disagreement with the enquiry report. The petitioner submitted a reply to the memo. By a fresh order dated 4.5.2001 the petitioner was again dismissed from service in terms of Regulation 4 (6) of Central Bank of India Officers Employees (Discipline and Appeal) Regulations, 1976, giving rise to this writ petition.
A preliminary objection has been taken, that an appeal is provided under the Regulations and thus the Court should not interfere in the matter.
We agree with the submissions of learned counsel of the petitioner, that the disciplinary authority has again committed same mistake, which goes to the root of the findings of the disciplinary authority. This Court had earlier held that the disciplinary authority should have granted an opportunity to the petitioner before recording of his own findings. The disciplinary authority should also have recorded its tentative reasons of disagreement after giving an opportunity to the petitioner to represent his case before him.
Regulation 7 (2) of the Central Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976 provides as follows:-
"7 (2) The Disciplinary Authority shall, if it disagrees with the findings of the 2 Inquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose."
It is submitted by learned counsel for the petitioner, that the same regulation came up for consideration of the Supreme Court in Punjab National Bank and others vs. Kunj Behari Misra, (1998) 7 SCC 84. The Supreme Court held that where the disciplinary authority does not agree with the findings recorded by the enquiry officer, he should record the reasons for disagreeing with such findings. The Supreme Court relied upon Ram Kishan v. Union of India (1995) 6 SCC 157 in reiterating the law as follows:-
"14. In Ram Kishan case disciplinary proceedings on two charges were initiated against Ram Kishan. The enquiry officer in his report found the first charge not proved and the second charge partly proved. The disciplinary authority disagreed with the conclusion reached by the enquiry officer and a show cause was issued as to why both the charges should not be taken to have been proved. While dealing with the contention that the disciplinary authority had not given any reason in the show cause to disagree with the conclusions reached by the enquiry officer and that, therefore, the finding based on that show cause notice was bad in law, a two- Judge Bench at pl 161 observed as follows: (SCC para 10) "The purpose of the show cause notice, in case of disagreement with the findings of the enquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the enquiry officer for the reasons given in the enquiry report or he may offer additional reasons in support of the finding by the enquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the enquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the enquiry 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."
In the present case the Regional Manager by his memo dated 13.2.2001 has not 3 recorded any reasons for disagreeing with the findings recorded by the Inquiring Authority. In fact the Regional Manager recorded his conclusion namely that Shri Gaur, if fact, avoided to open the cash on 11.7.86 at Branch Office Nakhas, because he was aware of the shortage of Rs. 70,000/- which was made by himself on 9.7.86 at the time of closing the cash; he therefore left the branch premises on the forenoon of 11.7.86 intentionally after giving his bunch of cash keys to Sh. Rakesh Mishra, the Asstt. Cashier, in an unauthorised manner and not following the set norm and procedure of the bank in this regard. The contents of the memo do not give either the reason or reasoning for disagreeing with the report of the Inquirying Authority. The Regional Manager has instead recorded his conclusion for giving a notice to the petitioner to give a reply. The Regional Manager not only violated the terms of the order of this Court but also Regulation 7 (2) of the Regulations of 1976, and thus committed breach of principles of natural justice, which is the essence of any disciplinary proceedings before awarding any punishment.
We therefore again come to a conclusion that the petitioner was not afforded effective opportunity to give a reply as the reason in the disagreement in the memo dated 13.2.2001 was missing. The case thus falls in the exceptions to invoke remedies under Article 226 of the Constitution of India, without availing alternative remedies.
The writ petition is allowed. The order dated 4.5.2001 passed by Disciplinary Authority, Central Bank of India is set aside.
Ordinarily, we would have remanded the matter back to the Disciplinary Authority to give a fresh show cause notice with the reasons of disagreement with the report of Inquiring Authority. Learned counsels for parties inform us that the petitioner expired on 30.9..2005, and has been substituted by his widow, and two sons by the order of the Court dated 6.4.2006. They are not competent to defend the allegations of misconduct against late Shri A.K. Gaur. We are informed that the petitioner was at the verge of retirement. The proceedings therefore must rest.
We therefore issue a writ of mandamus to respondent-bank to treat the petitioner to have completed his entire service without any benefit of pay and allowances, which he would have drawn for the remaining period of service. The heirs of the petitioner impleaded in his place will be entitled to all the benefits of service of late Shri A.K. Gaur as if he was not dismissed and had retired after completing his service. The mandamus shall be complied with within a period of three months from the date of communication of this order.
Dt.4.01.2010 RKP/