JUDGMENT S.H.A. Raza, J.
1. The face of this writ petition hinges on the reply to three questions, which have been posed by the learned Counsel for the petitioner, firstly as to whether the order of punishment is vitiated for the reason that the charges contained in the charge-sheet admittedly served to the petitioner, do not make out a case of dismissal inasmuch as the regulations under which the charges were framed, are invalid, secondly, that the charges are not based upon the imputation of the charges and the material sought to be adduced against the delinquent. Thirdly, that as to whether the action of the disciplinary authority while dismissing the petitioner, in spite of the fact that the petitioner was exonerated from all the charges by the Inquiry Officer, is bad for the reason that the delinquent was not given an opportunity to show cause.
2. With this prelude it is necessary to examine the factual matrix as set out in the petition. The petitioner, who at the relevant time, was working as Branch Manager at Court Road, Sa-haranpur, was suspended from service on the charges as under:
1. Sri V.C. Jain allowed clean overdraft to the firm M/s. Das Raj Ashok Kumar, Saharanpur beyond his delegated power of Rs. 2500/- to the extent of Rs. 69542-28 as on July 31, 1992 and failed to ensure the correct intimation about such over-draft to the higher authorities through F-1 statement. Thus he failed to take all possible steps to ensure and protect the interest of the Bank and discharge his duties with utmost integrity, honesty, diligence and devotion and he thereby contravened Rule 3(1) of Central Bank of India Officers Employees (Conduct) Regulation, 1976.
2. He allowed huge clean overdraft amounting to Rs. 99471/- to Sri Dalip Kumar son of Desh Raj in the name of a non-existing firm M/s. Dalip & Co., Saharanpur, from August 31, 1982 to October 6, 1982 and also failed to ensure the correct intimation to the higher authorities by way of submission of F-l statement. Thus he failed to take all possible steps to ensure and protect the interest of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence which is unbecoming of a Bank Officer under Regulation 3 (1) of the Central Bank of India Officers Employees (Conduct) Regulation, 1976.
3. He failed to intimate the higher authorities about the fact that his wife Smt. Bimla Jain and son Ajay Kumar Jain have entered into a trade business as cloth merchant in the name of the firm M/s. Ajay Textile, Trishla Jain Market, Saharanpur and he thereby contravened Regulation 6(2) of Central Bank of India Officers Employees (Conduct) Regulation, 1976.
3. The petitioner submitted his explanation to the said charges. Thereafter an inquiry proceeded against the delinquent.
4. After examining the relevant record and evidence adduced, the Inquiry Officer as far as the first charge is concerned, gave the following finding.
In reference to the charge No. 1 as levelled in terms of the charge - sheet in question, I do not find any dishonesty mala fide intention on the part of the COE. Thirteen appreciation letters Ex.D-1 to Ex.D-13, Ex.D-14 and Ex.D-18 speak of excellent work done by Sri Jain, COE, It is worth noting that these appreciation letters have been given by various higher authorities in recognition of the work done by Sri V.C. Jain, Branch Manager and under the circumstances it appears that the norms for the overdraft in the account has not been followed and Sri Jain exceeded his delegated lending power of Rs. 2500/-
From the aforesaid finding recorded by the Inquiry officer, it is evident that the delinquent was not held guilty of the said charge.
5. As far as the second charge is concerned, the Inquiry Officer indicated that it was more serious in nature particularly for the reason that it was alleged in the said charge that he allowed huge clean overdraft amounting to Rs. 99471/-to Sri Dalip Kumar S/o Desh Raj, in the name of a non-existing firm M/s. Dalip & Co., Saharnpur from August 31, 1982 to October 6, 1982 and also failed to ensure the correct intimation to the higher authorities by way of submission of F-1 statement. Thus he failed to take all possible steps to ensure and protect the interest of the Bank and discharge his duties with utmost integrity, honesty, devotion and diligence which is unbecoming of a Bank Officer under Regulation 3(1) of Central Bank of India Officers Employees (Conduct) Regulation, 1976.
The part of the charge that the firm M/s. Dalip & Co. was not existing is not at all proved in view of the submissions mentioned above in the case of the defence as put by his D.R. The fact is that none of the management's witness produced to prove this part of the charge could convince me that the firm M/s. Dalip & Co. was not existing. Rather the deposition of the management's witnesses on this point and the document (Ex.D-19 to Ex.d-27) produced by the COE clearly proves that the firm M/s. Dalip & Co., was existing when the account was opened in the Branch and when the overdrafts were allowed by the COE to the firm.
6. As far as the charge No. 3 is concerned, the Inquiry Officer indicated that from the deposition of Sri V.C. Jain, COE (EPP 54) as per deposition of Sri M.P. Jain, MW-15 the charge that Sri. V.C. Jain failed to intimate the higher authorities about the entering into business by the wife and son of Sri V.C. Jain has been proved. Sri V.C. Jain has himself admitted about the non-intimation of the same by him to the Bank's higher authorities. The COE has submitted in his deposition that he was not aware of the provision of the conduct rules for officers in this regard. As the ignorance of the Rules of the Bank is of no excuse, the charge in question is proved.
7. In the light of the aforesaid findings recorded by the Inquiry officer, it was vehemently argued on behalf of the petitioner that although atleast on two charges which were undoubtedly severe in nature, the Inquiry Officer did not hold the petitioner guilty. Hence it was incumbent upon the punishing authority while disagreeing with the report of the Inquiry Officer to give an opportunity to the petitioner to show cause against the same. This argument pertains to proposition No. 3 advanced by the counsel for the petitioner.
8. There is no denial of the fact that the disciplinary authority before passing the order of dismissal while disagreeing with the report of the Inquiry Officer, did not serve the delinquent a show cause notice as to why he may not be punished.
9. In the case of "Narayan Misra v. State of Orissa" decided on March 25, 1969 reported in AIR 1969 NSC 20. The Honb'le Chief Justice Mr. M. Hidayatullah (as he then was) indicated on behalf of the Bench:
"Now if the Conservator of Forests intended taking the charges on which he was acquitted into account, it was necessary that the attention of the appellant ought to have been drawn to this fact and his explanation, if any, called for. This does not appear to have been done. In other words, the Conservator of Forests used against him the charges of which he was acquitted without warning him that he was going to use them. This is against all principles of fair play and natural justice. If the Conservator of Forests wanted to use them, he should have appraised him of his own attitude and given him an adequate opportunity. Since that opportunity was not given, the order of the Conservator of Forests modified by the State Government, cannot be upheld. We accordingly set aside the order and remit the case to the Conservator of Forests for dealing with it in accordance with law. If the Conservator of Forests wants to take into account the other two charges, he shall give proper notice to the appellant intimating to him that those charges would also be considered and afford him an opportunity of explaining them.
The appeal is therefore, allowed. The costs will abide by the ultimate result."
10. The aforesaid observations were made in the light of the circumstances that the Inquiring Officer by his finding dated January 7, 1963 acquitted the appellant of the first two charges, but found him guilty of the third charge. He recommended that the appellant be reinstated in service, and as punishment he suggests that the period of suspension may be treated as punishment. When the matter came up before the Conservator, Forests, he called upon the appellant to show cause why he should not be dismissed from Government service. In this notice he expressed the view that the punishment which was proposed was extremely light for such serious offenses. The appellant showed cause. The Conservator of Forests did not rely upon the third charge only but also upon the other two charges, which he hold were proved against him. In doing so he differed from the findings given by the Enquiry Officer. Later on representations being made to Government, the order of dismissal was modified into one of discharge from service.
11. The appellant filed a petition under Articles 226 and 227 of the Constitution challenging the order of discharge from service. His contention was that the order of the Conservator directing that fresh charges be framed again him was not carried out and that the Conservator of Forests did rely upon the other two charges of which he had been acquitted and differed from the findings of the Inquiring Officer the petitioner ought to have given him an adequate opportunity to explain those charges. The High Court dismissed the writ petition holding both the points against the appellant. Thereafter the appeal was filed before the Hon'ble Supreme Court.
12. The learned Counsel for the respondents argued that the Inquiring Officer did not give a clean chit to the petitioner and disciplinary authority on the basis of the evidence on record and relying upon the same evidence as well as the report of the Inquiry Officer, found the petitioner guilty. He further submitted that the rules governing the conditions of the service of the delinquent do not provide for such an opportunity and in this regard he placed before this Court the Regulation-7 of Central Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976. We read as it is:
Regulation-7. Action on the Inquiry Report.
14. In the case of C.B. Gautam v. Union of India, reported in : (AIR 1994 SC 771), Chapter XX-C of Income-tax Act, Hon'ble Suprem Court was urged to decide that even when there existed no provision for giving the concerned parties an opportunity to be heard, before an order for compulsory purchase of the property by the Central Government is made, the principle of natural justice be read into the said provision or not.
15. A Constitutional Bench of the Hon'ble Supreme Court consisting of five judges held that-
"Courts have generally read into the provisions of the relevant sections a requirement of giving a reasonable opportunity of being heard before an order is made which would have adverse civil consequences for the parties affected. This would be particularly so in a case where the validity of the section would be open to a serious challenge for want of such an opportunity. It is true that the time frame within which the order for compulsory purchases has to be made is a fairly tight one but the urgency is not such as would preclude a reasonable opportunity of being heard or to show cause being given to the parties likely to be adversely affected by an order of purchase under Section 269UD(1)."
16. Regulation 7(2) of the Central Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976 can only be sustained, if we read into the said provision an opportunity to the delinquent to show cause meaning thereby that if the Disciplinary Authority disagrees with the findings of the 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, after giving a notice to the delinquent to show cause as to why he may not be dismissed from service. It was incumbent upon the Disciplinary Authority, if the charges on which the petitioner was exonerated by the inquiring officer, were to be used against him to give a warning to the delinquent that he was going to use those charges. He should have appraised him on his own attitude and given the delinquent an adequate opportunity, as that opportunity was not given, the order of Disciplinary Authority cannot be upheld.
17. In view of what has been indicated hereinabove, the impugned order passed by the Disciplinary Authority as well as the Appellate Authority cannot be sustained and the inquiry deserves to be revived from the stage from where the lapse pointed out above, has occurred, meaning thereby that the Disciplinary Authority will appraise the delinquent, his own attitude by giving a notice to him to show cause as to why he be not dismissed from the post held by him.
18. The learned Counsel for the petitioner has pointed out that the petitioner has attained the age of 56 years and it would be too harsh, if the inquiry proceedings would be again revived. He also submitted that the charges do not make out a case of dismissal inasmuch as the regulation under which the charges were framed, are in valid. Although the petitioner had been charged that he allowed overdraft to certain persons beyond his delegated powers and failed to ensure the correct intimation to the higher authorities and also failed to take all possible steps to protect the interest of the Bank and discharge his duties with utmost integrity, honesty, devotion and diligence, but no where it has been indicated that the Bank has suffered any financial loss. It was also argued that the charges were not based upon the regulation and the charge-sheet does not disclose the material or the evidence sought to be adduced against the delinquent.
19. In view of the fact that the writ petition deserves to be allowed and is allowed in part and the inquiry would be revived after the stage of the submission of the inquiry report, it would be open for him to raise the aforesaid submissions before the Disciplinary Authority. Hence we have not dealt with the propositions 1 and 2, which were advanced by the counsel of the petitioner to challenge the order of dismissal.
20. In view of what we have indicated hereinabove, the impugned order dated November 3, 1987 contained in Annexure-10 and the order dated February 10, 1988 contained in Annexure-12 to the writ petition are quashed, but in consequence thereof the petitioner would not be entitled to be reinstated with full back wages as prayed in the writ petition. The Disciplinary Authority would revive the proceedings from the stage from where the said offence was committed. He would issue a show cause notice and give the petitioner an adequate opportunity to place his case before him. Considering all the facts and circumstances as well as the report of the Inquiry Officer, he would pass the appropriate order. The petitioner would be deemed to remain under suspension with effect from the date of the dismissal till the final orders which may be passed by the Disciplinary Authority and he would be paid the subsistence allowance from [he date of the dismissal till the date on which the final order would be passed. Before reviving the proceedings, it would be obligatory on the part of the Disciplinary Authority to pay to the petitioner the entire subsistence allowance.