vinod kumar pandita
18 October 2009 at 12:46
Sir/Madam,
I am a kashmiri hindu who were terrorised & forced to flee the valley.I am Working as C/C in R.R.Bank.In 1994-95 central Govt.allowed our bank to open some branchs in Jammu & Udhampur Distts.to adjust the Hindu migrant staff & the persons Who migrated outside jammu were adjusted in our sponsor bank i.e SBI till there retirement.Now our chairman who happens to be a muslim is adamant in opening the branches in militancy infested areas thus posing threat to our lives & forcing us for 2nd migration can we legally restrain him for opening brnchs.in militancy areas
PJANARDHANA REDDY
17 October 2009 at 11:07
DEAR EXPERT AN IMPORTANT SC JUDGMENT ON SERVICE MATTER OF S.B.I
PETITIONER:
STATE BANK OF INDIA
Vs.
RESPONDENT:
SAMAREDRA KISHORE ENDOW
DATE OF JUDGMENT08/01/1994
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
HANSARIA B.L. (J)
JUDGMENT:
ORDER
1. This appeal is preferred by the State Bank of India
against the decision of the Gauhati High Court allowing the
writ petition filed by the respondent.
2. The respondent was appointed as a cashier in the
appellant bank in the year 1968. He was promoted to Officer
Grade-11 and then to Grade-1. While he was working at Phek
Branch in Nagaland, he was promoted to the rank of Branch
Manager and was transferred to Amarpur Branch in the State
of Tripura in January 1981. The appellant joined at Amarpur
and claimed certain amount by way of reimbursement for the
expenses incurred by him in shifting his belongings and
other articles to Amarpur from Phek. An inquiry was made
into the correctness of the receipts and other documents
produced by him in that connection (and into some other
alleged irregularities committed by him) and he was
subjected to a disciplinary inquiry on five charges. The
charges read as follows:
"CHARGE 1
That on February 10, 1982, you submitted a Travelling
Allowance Bill for Rs 12,194.80 in connection with your
permanent transfer from Phek Branch to Amarpur Branch. In
the said bill you make a claim of Rs 9500.00 being the
hiring charges incurred by you for a full truck and in
support of your claim you submitted a false money receipt
dated January 9, 1982 for Rs 9500.00 obtained from M/s
Balram Hariram, Church Road, Dimapur, whereas you neither
engaged a full truck nor spent Rs 9500.00 for the transport
of household goods. By your above act you failed to
discharge your duties with utmost integrity, honesty,
devotion and diligence and have violated Rule 32(4) of the
State Bank of India (Supervising Staff) Service Rules.
CHARGEII
That in your Travelling Allowance Bill for Rs 12,194.80
dated February 10, 1982 you made another claim for Rs 120
supported by two false separate money receipts dated
February 9, 1982 for Rs 60 each obtained from one Shri Ram
Prasad being the loading and unloading charges incurred for
household goods at Phek and Amarpur respectively. By your
above act again you have failed to discharge your duties
with
540
utmost integrity, honesty, devotion and diligence and
violated Rule 32(4) of the State Bank of India (Supervising
Staff) Service Rules.
CHARGEIII
That along with the Travelling Allowance Bill for Rs
12,194.80 dated February 10, 1982 you furnished a list of 19
packages of household items claimed to have been transported
from Phek to Amarpur whereas only 8 packages of household
goods were transported. Thus you knowingly famished an
inflated list of goods transported with an intention to
derive undue pecuniary benefit and thereby infringed Rule
32(4) of the State Bank of India (Supervising Staff) Service
Rules.
CHARGEIV
That during the period of your posting at our Phek Branch
your S.B. Account thereat showed frequent deposits by means
of cash as well as transfer transactions. These deposits
and various T.D. Rs., S.T.D. Rs. and other assets acquired
as detailed in the Statement of Allegation enclosed
herewith, indicate that you were having assets
disproportionate to your known sources of income the fact
which reflect adversely on your conduct with is unbecoming
of a bank official and thus you infringed Rule 32(4) of the
State Bank of India (Supervising Staff) Service Rules.
CHARGE V
That while you were holding temporary charge of the Phek
Branch you disbursed a construction loan to Shri A song
Snock in two instalments i.e. Rs 90,000.00 on May 7, 1981
i.e. as soon as you received the sanction from Regional
Office and Rs 10,000.00 on May 10, 1981, without taking into
account the progress of the construction of the building as
instructed by Regional Office. The said loan was not
utilised for the construction of the building and as a
result of which the account had become irregular. Thus you
have infringed Rules 32(1), 32(4) of the State Bank of India
(Supervising Staff) Service Rules."
3. An Inquiry Officer was appointed by the Disciplinary
Authority (the Chief General Manager) who held, after due
inquiry that all the five charges are proved. The
Disciplinary Authority perused the entire material and
agreed with the findings of the Inquiry Officer on charges
1, 2, 3 and 5 but did not agree with the finding on charge
4. He imposed the penalty of removal upon the respondent.
An appeal preferred by the respondent was dismissed by the
Board whereupon the respondent approached the High Court by
way of a writ petition. The High Court allowed the writ
petition on three grounds, namely (1) non-supply of Inquiry
Officer's report before imposing the penalty vitiates the
order of punishment, (2) the appellate order is not a
speaking order and is therefore not in conformity with Rule
51(2) of the S.B.I. (Supervisory Staff) Service Rules and
(3) the findings of the Inquiry Officer and the Disciplinary
Authority on charges 1 to 3 and 5 are based on no evidence
and must therefore be characterised as perverse.
541
4. in this appeal, Mr Goswami learned counsel for the
appellant bank assailed the correctness of all the said
three findings. So far as the first ground given by the
High Court is concerned, it must be held to be not
sustainable in law in view of the recent decision of the
Constitution Bench of this Court in Managing Director, ECIL,
Hyderabad v. B. Karunakarl inasmuch as the order of
punishment in this case is prior to November 20, 1990.
5. Before dealing with the second ground, we think it
appropriate to deal with the third ground in the facts and
circumstances of this case. So far as the charge 1 is
concerned, the respondent had produced a receipt in a sum of
Rs 9500 claiming that to be the expenses incurred by him for
transporting his belongings. It appears that when he came
to know that certain inquiries were being made by the bank
into the correctness of the receipts produced by him, he
produced the second receipt (in June 1982) in a sum of Rs
2755. (The first receipt was produced in January 1982). The
respondent's case was that though initially the transporter
charged him the sum of Rs 9500, which he paid partly in cash
and partly through a post-dated cheque, the transporter
later revised the charges downwards to Rs 2755. PW 1-the
transporter examined by the Bank, supported the respondent's
case in full. However, the Inquiry Officer refused to
believe his evidence for the various reasons given by him in
his report. After examining the evidence of PW 1 and other
documentary evidence at length, the Inquiry Officer found
that "there was no actual movement of household goods
belonging to Shri S.K. Endow on the dates represented by the
documents". The High Court, however, proceeded on the
assumption that the finding of the Inquiry Officer was to
the effect that there was no actual movement of household
goods belonging to him at all. In other words, it ignored
the words "on the dates represented by the documents" in the
above finding. The High Court held on that basis that the
Inquiry Officer was in error in holding that there was
absolutely no oral evidence in support of the finding that
there was no movement of goods. We are not satisfied with
the reasoning of the High Court. Firstly, it is based upon
an incomplete reading or if we may call it, misreading
of the finding recorded by the Inquiry Officer. Secondly,
it cannot be said that the finding of the Inquiry Officer
was based on no evidence. Once the explanation offered by
the respondent is disbelieved, there are two contradictory
receipts produced by him the earlier one claiming a far
higher amount and the latter one claiming a far lesser
amount. Apart from that the Inquiry Officer has relied upon
several documents, namely P.Ex-23, P.Exs-10 and 9 in support
of his finding. It cannot therefore be said that the
Inquiry Officer's finding is based on no evidence.
6. Charge 2 relates to claim of Rs 120 towards loading and
unloading charges, evidenced by two receipts dated January
9, 1982. The Inquiry Officer found that in view of the
grave discrepancies with respect to the dates of
transportation and also because Ram Prasad who is said to
have
1 (1993) 4 SCC 727: 1993 SCC (L&S) 11 84: (1993) 25 ATC
704: JT (1993) 6 SC 1
542
accompanied the goods in the truck was not examined, the
charge must be held proved. The Inquiry Officer found that
the loading and unloading did not take place on the dates
mentioned therein. This finding is again based upon the
documentary evidence and cannot be said to be not supported
by any evidence. The High Court was of the opinion that
there was no evidence in support of the Inquiry Officer's
finding that Ram Prasad is a fictitious person. We have
perused the finding of Inquiry Officer closely. The finding
is not that Ram Prasad is a fictitious person but that his
non-examination goes to show that the respondent's case that
the said person accompanied the goods is not established.
No doubt, he also added that Ram Prasad appears to be a
fictitious person, but that is only by way of an additional
reason; it is not the main reason.
7.With respect to charge 3, the reasoning of the High Court
is the same as is assigned by it with respect to charge 2.
The High Court has further proceeded on the assumption that
the finding of the Inquiry Officer is to the effect that
there was no movement of goods. We have pointed out
hereinabove that the finding is not that movement of goods
did not take place but that it did not take place on the
dates assigned by the respondent.
8. Now coming to charge 5, the Inquiry Officer has found
that the respondent has acted in violation of the
instructions of the bank that a loan sanctioned to be
disbursed in instalments, must be released in instalment/
instalments after verifying that the previous
instalment/instalments have been properly utilised. The
charge is that he released two instalments in a sum of Rs
90,000 on a single day, namely May 7, 1981 and again
released the balance amount of Rs 10,000 on May 10, 1981,
i.e. within three days, without verifying the progress of
construction of the building for which the loan was
sanctioned. The Inquiry Officer found that Ex. 20 which
contained terms and conditions of the loan does specifically
provide for disbursement of a loan in a phased manner and
that the release of the entire amount almost at once was in
violation of the said condition. The High Court found fault
with the Inquiry Officer for not recording the finding that
the account became irregular due to the said disbursement
and that there was no finding also that the building was not
constructed. The High Court concluded that the finding of
Inquiry Officer on this charge too is not based on evidence.
We are unable to agree with the approach and opinion of the
High Court. The finding of the Inquiry Officer is certainly
based upon the terms and conditions of the loan contained in
the loan document and the fact that the entire amount of
loan was disbursed. in the course of three days. We are
unable to see how it can be said that the said finding is
based on no evidence.
9. For the above reasons, the judgment of the High Court
is liable to be set aside and is accordingly set aside.
10. On the question of punishment, learned counsel for the
respondent submitted that the punishment awarded is
excessive and that lesser punishment would meet the ends of
justice. It may be noticed that the
543
imposition of appropriate punishment is within the
discretion and judgment of the Disciplinary Authority. It
may be open to the appellate authority to interfere with it
but not to the High Court or to the Administrative Tribunal
for the reason that the jurisdiction of the Tribunal is
similar to the powers of the High Court under Article 226.
The power under Article 226 is one of judicial review. It
"is not an appeal from a decision, but a review of the
manner in which the decision was made". (Per Lord Bright man
in Chief Constable of the North Wales Police v. Evans2 and
H.B. Gandhi, Excise and Taxation Officer-cum-Assessing
Authority v. Gopinath & Sons3.) In other words the power of
judicial review is meant "to ensure that the individual
receives fair treatment and not to ensure that the authority
after according fair treatment, reaches on a matter which it
is authorised by law to decide for itself, a conclusion
which is correct in the eyes of the Court". (Per Lord
Marylebone in Chief Constable v. Evans2). In fact in service
matters, it was held by this Court as far back as 1963 in
State of A. P. v. S. Sree Rama Rao4, that:
"The High Court is not constituted in a
proceeding under Article 226 of the
Constitution a court of appeal over the
decision of the authorities holding a
departmental inquiry against a public servant;
it is concerned to determine whether the
inquiry is held by an authority competent in
that behalf, and according to the procedure
prescribed in that behalf, and whether the
rules of natural justice are not violated.
Where there is some evidence, which the
authority entrusted with the duty to hold the
inquiry has accepted and which evidence may
reasonably support the conclusion that the
delinquent officer is guilty of the charge, it
is not the function of the High Court in a
petition for a writ under Article 226 to
review the evidence and to arrive at an
independent finding on the evidence. The High
Court may undoubtedly interfere where the
departmental authorities have held the
proceedings against the delinquent in a manner
inconsistent with the rules of natural justice
or in violation of the statutory rules
prescribing the mode of inquiry or where the
authorities have disabled themselves from
reaching a fair decision by some
considerations extraneous to the evidence and
the merits of the case or by allowing
themselves to be influenced by irrelevant
considerations or where the conclusion on the
very face of it is so wholly arbitrary and
capricious that no reasonable person could
ever have arrived at that conclusion, or on
similar grounds. But the departmental
authorities are, if the inquiry is otherwise
properly held, the sole judges of facts and if
there be some legal evidence on which the
findings can be based, the adequacy or
reliability of that evidence is not a matter
which can be permitted to be canvassed before
the High Court in a proceeding ... under
Article 226 of the Constitution."
2 (1982) 3 All ER 141,155:(1982) 1 WLR 1155
3 1992 Supp (2) SCC 312
4 AIR 1963 SC 1723: (1964) 3 SCR 25: (1964) 2 LLJ 150
544
11. Now, coming to the power of the Court exercising
judicial review to interfere on the question of penalty, it
was held by a Constitution Bench in State of Orissa v.
Bidyabhushan Mohapatra5 thus:
"But the Court in a case in which an order of
dismissal of a public servant is impugned, is
not concerned to decide whether the sentence
imposed, provided it is justified by the
rules, is appropriate having regard to the
gravity of the misdemeanour established. The
reasons which induce the punishing authority,
if there has been an inquiry consistent with
the prescribed rules, are not justiciable: nor
is the penalty open to review by the Court.
If the High Court is satisfied that if some
but not all of the findings of the Tribunal
were 'unassailable', the order of the Governor
on whose powers by the rules no restrictions
in determining the appropriate punishment are
placed, was final, and the High Court had no
jurisdiction to direct the Governor to review
the penalty for as we have already observed
the order of dismissal passed by a competent
authority on a public servant, if the
conditions of the constitutional protection
have been complied with, is not justiciable
misdemeanour for which the punishment can
lawfully be imposed, it is not for the Court
to consider whether that ground alone would
have weighed with the authority in dismissing
the public servant. The Court has no
jurisdiction if the findings of the inquiry
officer or the Tribunal prima facie make out a
case of misdemeanour, to direct the authority
to reconsider that order because in respect of
some of the findings but not all it appears
that there had been violation of the rules of
natural justice."
This principle was reiterated in Railway Board, Delhi v.
Niranjan Singh6. The same view was reiterated by this Court
in Union of India v. Parma Nanda7. It was an appeal from
the judgment and order of an Administrative Tribunal. K.
Jagannatha Shetty, J. speaking for the Bench observed in the
first instance that the jurisdiction of the Tribunal is
similar to the jurisdiction of the High Court in a writ
proceeding and then dealt with the power of the Tribunal to
interfere with the penalty imposed by the Disciplinary
Authority. The learned Judge referred to the holding in
State of Orissa v. Bidyabhushan Mohapatra5 (quoted by us
hereinabove) and after referring to several other judgments
of this Court, concluded thus: (SCC p. 189, para 27)
"We must unequivocally state that the
jurisdiction of the Tribunal to interfere with
the disciplinary matters or punishment cannot
be equated with an appellate jurisdiction.
The Tribunal cannot interfere with the
findings of the Inquiry Officer or competent
authority where they are not arbitrary or
utterly perverse. It is appropriate to
remember that the power to impose penalty on a
delinquent officer is conferred on the
competent authority either by an Act of
legislature or rules made under the proviso
5 AIR 1963 SC 779: 1963 Supp 1 SCR 648:
(1963) 1 LLJ 239
6 (1969) 1 SCC 502: AIR 1969 SC 966
7 (1 989) 2 SCC 177: 1989 SCC (L&S) 303:
(1989) 1 0 ATC 30: AIR 1989 SC 1185
545
to Article 309 of the Constitution. If there
has been an inquiry consistent with the rules
and in accordance with principles of natural
justice what punishment would meet the ends of
justice is a matter exclusively within the
jurisdiction of the competent authority. If
the penalty can lawfully be imposed and is
imposed on the proved misconduct, the Tribunal
has no power to substitute its own discretion
for that of the authority. The adequacy of
penalty unless it is mala fide is certainly
not a matter for the Tribunal to concern
itself with. The Tribunal also cannot
interfere with the penalty if the conclusion
of the Inquiry Officer or the competent
authority is based on evidence even if some of
it is found to be irrelevant or extraneous to
the matter." (emphasis supplied)
12. It is significant to mention that the learned Judge
also referred to the decision of this Court in Bhagat Ram v.
State of H.P.8 and held, on a consideration of the facts and
principle thereof, that, "This decision is, therefore, no
authority for the proposition that the High Court or the
Tribunal has jurisdiction to impose any punishment to meet
the ends of justice". And then added significantly "it may
be noted that this Court exercised the equitable
jurisdiction under Article 136 (in Bhagat Ram8) and the High
Court and Tribunal has no such power or jurisdiction". The
learned Judge also quoted with approval the observations of
Mathew, J. in Union of India v. Sardar Bahadur9 to the
following effect: (SCC p. 624, para 19)
"Now it is settled by the decision of this
Court in State of Orissa v. Bidyabhushan
Mohapatra5 that if the order of a punishing
authority can be supported on any finding as
to substantial misdemeanour for which the
punishment can be imposed, it is not for the
Court to consider whether the charge proved
alone would have weighed with the authority in
imposing the punishment. The Court is not
concerned to decide whether the punishment
imposed, provided it is justified by the
rules, is appropriate having regard to the
misdemeanour established."
13. It would perhaps be appropriate to mention at this
stage that there are certain observations in Union of India
v. Tulsiram Patel0 which, at first look appear to say that
the Court can interfere where the penalty imposed is
"arbitrary or grossly excessive or out of all proportion to
the offence committed or not warranted by the facts and
circumstances of the case or the requirements of that
particular government service". It must however be
remembered that Tulsiram Patel10 dealt with cases arising
under proviso (a) to Article 311(2) of the Constitution.
Tulsiram Patel10 overruled the earlier decision of this
Court in Chellappan . While holding that no notice need be
given before imposing the penalty in a case dealt with under
the said proviso, the Court held that if a disproportionate
or harsh punishment is
8 (1983) 2 SCC 442: 1983 SCC (L&S) 342: AIR 1983 SC 454
9 (1972) 4 SCC 618: (1972) 2 SCR 218
10 (1985) 3 SCC 398: 1985 SCC (L&S) 672: AIR 1985 SC 1416
11 Divisional Personnel Officer, Southern Rly. v. TR.
Chellappan, (1976) 3 SCC 190: 1976 SCC (L&S) 398: AIR 1975 S
C 2216
546
imposed by the disciplinary authority, it can be corrected
either by the appellate court or by the High Court. These
observations are not relevant to cases of penalty imposed
after regular inquiry. Indeed this is how the said
observations have been understood in Parma Nanda7 referred
to above (vide para 29). The same comment holds with
respect to the decision in Shankar Das v. Union of India12
which too was a case arising under proviso (a) to
Article 311(2).
14. Now coming to the facts of this case it would appear
that the main charge against the respondent is putting
forward a false claim for reimbursement of expenditure
incurred for transporting his belongings from Phek to
Amarpur. So far as charge 5 is concerned there is no
finding that the account become irregular or that any loss
was incurred by the bank on account of the irregularity
committed by the respondent. In the circumstances it may be
that the punishment of removal imposed upon the respondent
is harsh but this is a matter which the Disciplinary
Authority or the Appellate Authority should consider and not
the High Court or the Administrative Tribunal. In our
opinion, the proper course to be adopted in such situations
would be to send the matter either to the Disciplinary
Authority or the Appellate Authority to impose appropriate
punishment.
15. For the above reasons, the appeal is allowed and the
order of the High Court is set aside, with the observation
that the Appellate Authority shall consider whether a lesser
punishment is not called for in the facts and circumstances
of the case. The Appellate Authority shall pass orders in
this behalf within four months of the receipt of the copy
this Order. No costs.
547
PJANARDHANA REDDY
17 October 2009 at 10:35
PLEASE READ AN LAND MARK JUDGMENT ON SERVICE MATTER OF AN EMPLOYEE OF S.B.H
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4
PETITIONER
STATE BANK OF HYDRABAD
Vs.
RESPONDENT:
RANGACHARY
DATE OF JUDGMENT12/01/1994
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
HANSARIA B.L. (J)
CITATION:
1994 SCC Supl. (2) 479 1994 SCALE (1)633
ACT:
HEADNOTE:
JUDGMENT:
ORDER
1. Leave granted.
2. This appeal is preferred against the order of the
Division Bench of the Andhra Pradesh High Court allowing the
writ petition on the only ground that copy of the Enquiry
Officer’s report was not supplied to the respondent
delinquent officer before imposing the punishment. A few
facts need be stated.
3.The respondent was appointed as a clerk in the
appellant-Bank (State Bank of Hyderabad). On 16-10-1976, he
was promoted to the post of Officer Grade II. In the year
1981, he was working as Grade I Officer at Sangareddy
Branch. With respect to his work at the said branch certain
complaints were received and after obtaining his
explanation, three charges were framed against him. An
Enquiry Officer was appointed to inquire into those charges.
After holding the inquiry, the Enquiry Officer held that
charges 1 and 2 are not proved but charge 3 is proved.
4.The matter was placed before the disciplinary authority
as required by sub-regulation (3) of Regulation 68 of State
Bank of Hyderabad (Officers) Service Regulations, 1979. The
disciplinary authority agreed with the findings of the
Enquiry Officer and since he was not competent to impose
major penalty, which in his opinion was called for in the
case, he placed the entire record along with his
recommendations before the appointing authority as required
by sub-regulation (3) of Regulation 68. The appointing
authority, however, disagreed with the findings of the
Enquiry Officer on charges 1 and 2 (which were concurred in
by the disciplinary authority). The appointing authority
found charges 1 and 2 also proved. Accordingly, he imposed
the punishment of compulsory retirement.
5.The respondent approached the High Court by way of a
writ petition against the said order of punishment. It was
heard by a learned Single Judge in the first instance who
referred the matter to a Division Bench on the question
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whether it is necessary to give an opportunity to the
delinquent officer to show cause where the disciplinary
authority/appointing authority disagrees with the findings
recorded by the Enquiry Officer on some or all the charges.
The Division Bench considered the said question at length
and held that there is no such requirement in the rules nor
such a requirement can be deduced from the principles of
natural justice. Having so expressed itself, the Division
Bench allowed the writ petition on the ground that the copy
of the Enquiry Officer’s report was not supplied to the
respondent before imposing the punishment. This it did
purporting to follow the decision of this Court in Union of
India v. Mohd. Ramzan Khan1.
1 (1991) 1 SCC 588: 1991 SCC (L&S) 612:(1991) 16 ATC 505
481
6.The question whether the non-supply of Enquiry
Officer’s report vitiates the order of punishment and, if
so, in what manner, has been fully considered by the
Constitution Bench in Managing Director, ECIL, Hyderabad v.
B. Karunakar2. It is pursuant to the said judgment that
this matter is placed before us. Since the order of
punishment in this case is earlier to the date of judgment
in Ramzan Khan case’, it must be held that the non-supply of
Enquiry Officer’s report does not vitiate the order of
punishment.
7.Learned counsel for the respondent, however, raised
another contention based upon the language of sub-regulation
(3) of Regulation 68 aforesaid. Regulation 68 describes the
procedure to be followed in the disciplinary inquiry. It is
a very lengthy regulation and need not be reproduced in
full. It is enough if we notice sub-clause (b) of clause
(xxi) of sub-regulation (2) of Regulation 68 and subregulation
(3) of Regulation 68. ’ They read as follows:
"Regulation 68(2)(xxi)(b) : The inquiring
authority, where it is not itself the
disciplinary authority, shall forward to the
disciplinary authority the records of inquiry
which shall include
(1) the report of the inquiry prepared by it
under (a) above;
(2) the written statement of defence, if
any, submitted by the officer
referred to in clause (xv);
(3)the oral and documentary evidence
produced in the course of the inquiry;
(4) written briefs referred to in clause
(xviii) if any; and
(5) the orders, if any, made by the
disciplinary authority and the inquiring
authority in regard to the inquiry.
3.(i) The disciplinary authority, if it is not itself the
inquiring authority, may, for reasons to be recorded by it
in writing, remit the case to the inquiring authority in the
same or different for fresh or further inquiry and report,
and the inquiring authority shall thereupon proceed to hold
further inquiry according to the provisions of subregulation
(2) as far as may be.
(ii)The disciplinary authority shall, if it 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.
(iii)If the disciplinary authority, having regard to
its findings on all or any of the article of charge, is of
the opinion that any of the penalties specified in
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Regulation 67 should be imposed on the officer, it shall
notwithstanding anything contained in sub-regulation (4),
make an order imposing such penalty,
Provided that where the disciplinary authority is of the
opinion that the penalty to be imposed is any of the major
penalties specified in clauses (e), (f), (g) and (h) of
Regulation 67 and if it is lower in rank to the appointing
authority in respect of the category of officers to which
the officer belongs, it shall submit to the appointing
authority the records of the inquiry specified in clauses
(xxi)(b) of sub-regulation (2), together with its
recommendations regarding the penalty that may be imposed
and the
2 (1993) 4 SCC 727: 1993 SCC (L&S) II 84: (1993) 25 ATC 704:
JT (1993) 6 SC 1
482
appointing authority shall make an order
imposing such penalty as it considers in its
opinion appropriate.
(iv)If the disciplinary authority or the
appointing authority as the case may be,
having regard to its findings on all or any of
the articles of charge, is of the opinion that
no penalty is called for, it may pass an order
exonerating the officer concerned."
8.A reading of the above provisions shows that the
Enquiry Officer has to submit the record and his findings
along with his recommendation to the disciplinary authority.
If the disciplinary authority agrees with the findings it
can impose the punishment which it is competent to do.
However, if, disciplinary authority disagrees with the
findings of the enquiring authority on any article of charge
it is under an obligation to record its reasons for
disagreement and record its own findings on such charges.
If, however, the disciplinary authority is of the opinion
that any of the major penalties mentioned in clauses (e),
(f), (g) and (h) of Regulation 67 ought to be imposed, which
he cannot impose, he has to make over the entire record
along with his recommendations to the appointing authority.
It is open to the appointing authority to impose such
penalty as it considers appropriate in its opinion. Clause
(iv) of sub-regulation (3) shows that it is open to the
appointing authority as well as the disciplinary authority
to come to their own findings on all or any of the article
of charges and if they are of the opinion that no penalty is
called for notwithstanding the report of the Enquiry
Officer, they can pass an order exonerating the delinquent
officer. Now the contention of Mr B. Parthasarthy, learned
counsel for the respondent is that the appointing authority
cannot differ from the findings recorded by the Enquiry
Officer which have been agreed to by the disciplinary
authority. According to the learned counsel the only
jurisdiction of the appointing authority is to impose
penalty based upon the findings recorded by the Enquiry
Officer and accepted by the disciplinary authority. We are
afraid, we cannot agree with the said contention in the face
of clear language of clauses (iii) and (iv) of subregulation
(3). The last sentence in the proviso to clause
(iii) clearly says that "the appointing authority shall make
an order imposing such penalty as it considers in its
opinion appropriate". This shows that appointing authority
is not bound by the recommendation made by the disciplinary
authority regarding penalty and that he can come to his own
conclusion on the question of penalty. Now how can he come
to a different conclusion on the question of penalty, if he
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4
cannot differ from the recommendation of the disciplinary
authority regarding penalty and, if necessary, with his
findings. In any event, this matter is placed beyond doubt
by the language of clause (iv) which says that the
disciplinary authority or the appointing authority, as the
case may be, is of the opinion, "having regard to its
findings" on all or any of the articles of charge, that no
penalty is called for, he may pass an order exonerating the
officer. In other words, it is open to the appointing
authority to disagree with the findings of the Enquiry
Officer, which may have been affirmed by the disciplinary
authority and yet find that the articles of charge are not
proved. If he can do this, he can also do the converse
i.e., where the findings are in favour of the delinquent
officer, he can disagree with them and hold the officer
guilty. This, in our opinion, is the true construction of
sub-regulation (3) read as a whole. The appointing
authority cannot be constricted by the opinions of either
the Enquiry Officer or the
483
disciplinary authority, nor can he be reduced to a mere
instrument for imposing higher punishment. We see no reason
to shackle his discretion and authority inhering in him as
the appointing authority.
9.We are, therefore, of the opinion that there is no
substance in the submission of Mr Parthasarthy, learned
counsel for the respondent which appears to be based
exclusively upon the opening words in clause (ii) of subregulation
(3). In fact, one must read the entire subregulation
to properly appreciate its import.
10.For the above reasons, the appeal is allowed. The
judgment of the Division Bench of the High Court is set
aside and the order of punishment is restored. No costs.
11.While granting notice in the special leave petition
this Court made the following order on 7-5-1991:
"Issue notice returnable within ten weeks.
There will be interim stay of the operation of
the judgment of the High Court on condition
that the appellant-Bank will treat the
respondent as if under suspension and grant
him subsistence allowance from the date of the
High Court judgment as admissible under the
rules to one who is under suspension, subject
to the final result of the petition."
12.Now that we have allowed the appeal, the stay order
shall cease to operate. However, the respondent is entitled
to terminal benefits or other benefits, if any, according to
his conditions of service. The same shall be paid to him in
accordance with law.
sreekanth
16 October 2009 at 13:51
my father was an employee with p&t audit works department.he died on 14may 2009 while he was on service.he had only 3 months for retiring.me and my elder brother both are unemployed.my name is kept as nominee for compassionate appointment.we do not have any assets or immovable property in our name.whats my chance of getting the job?does the retirement benefits a hindrance for my job?
pranay
16 October 2009 at 13:15
dear experts....
this question is an extension of my previous question under the criminal topic heading with 'please help'. As i mentioned that my father is an employee of coal india (a public undertaking company) .There are many subsidiaries of it in which ECL is one headquartered in sanctoria , west bengal . Two years back he was in another subs SECL headquartered in bilaspur chhatisgarh . The story is that my father is superintending engineer , civil dpt and has to deal with the construction inside company . As it's a crucial position so he has to deal with different contractors . One such contractor after transfer of my father from chhatisgarh lodged a false complaint against my father due to some personal grudge u/s 420 of ipc dtd 28th jan 2008,that he has taken some amount from that fellow on name of providing employeement . While any type of employment inside company is not the subject of civil engineer and job matters are dealt by personnel dpt and final authority is chief general manager . At the time of investigation, project where my father was posted given my father the clean chit as no job was applied by complainant and there was no land application given by him (which is a criteria for getting job ). But police in nexus with that contractor ignored this point and continued this investigation . Meanwhile my father applied twice in session court for anticipatory bail and both time it was rejected due to diff point . This year on 18th sept a police team finally came to arrest my father . They gave an arrest copies to local PS , my momma and area security officer . As they had to go by road so it is a journey of more than 2 days . Where they took rest the first night there the police team changed statement and told my father that we are not here to arrest you we are just taking you for interrogation . Here we assume that the arrest was illegal as they didn't show any warrant or transit remand (we are not sure though, only you people can say under what condition police can arrest someone from other jurisdiction ). Anyway they told that we are withdrawing the arrest applications given in diff places . Then they took my father to S.P korba on 20th sep evening . There the s.p also said the same thing and told we have not shown anywhere that we have arrested you and took my father's statement. The IO demanded a big money to cancel the FIR which my father denied and to avoid arrest again left that place . On 22nd my father applied for anticipatory bail in h'ble high court of chhatisgarh . After that he returned back to west bengal but a new problem arose . The police team withdrew copy from everywhere but not from the local police station here . Which was unofficially collected by the local management and forwarded to ECL head quarter . Their logic is that according to govt of india employee code of conduct ,if someone is under police custody for more than 24 hrs ( some day 48 and some 72 , we are still not sure ) then they have to face suspension . While my father was never under arrest since he applied for AB and not signed any document by police . Hence this suspension if happens will not be legal . The issue is still under consideration . Fortunately on 8th oct my father was granted anticipatory bail by h'ble high court , which support our claim . Still we need a legal suggestion and some insight to the rules and regulations . If it was not an arrest then why should he be suspended . My father met every management member personally and produced all documents , only tinge is that application in P.S which was collected unofficially and forwarded . Also it's a personal case and no damage is done to the company .
please advice......
Dr. M I Khan
15 October 2009 at 21:51
Whether the meaning of Advice & Referral is same in the eyes of Law? and whether a doctor can be prevented by any Rule for not to give 'Advice' to a patient?
Please give your legal comments as in one of the Judgments of MP High court, the Honble Court has said that the meaning of 'Advice' & 'Referral' is same.
Dr. MI Khan
Chief Orth Surgeon
m gopi
15 October 2009 at 15:51
Dear Legal Experts,
I am Gopi, HR Professional in a Steel Industry. Please clarify the follwoing.
1. Can we bifercate the minimum wages of contract labour in to Basic, HRA, Spl Allowance etc.
2. If so, can we deduct pf only on basic of the contract labour.
treat the matter most urgent.
regards
M GOPI
99895 88029
N.RAMESH
15 October 2009 at 14:31
KINDLY LET ME KNOW THE MAJOR DIFFERENCE BETWEEN ENGAGING A CONTRACT LABOUR AND APPOINTING AN EMPLOYEE
WHAT ARE ALL THE POSITIVE AND NEGATIVE POINTS IN ENGAGING A CONTRACT LABOURER
CAN I ENGAGE A PERSON WITH QUALIFICATION OF BE (MECH) WITH 5 YEARS EXPERIENCE UNDER CONTRACT BASIS
adersh
14 October 2009 at 16:40
Dear Sir,
The State PSC, invites application for a post with a notified qualification (NCVT Certificate). since we are qualified, we applied and attend the test. but the 90% of the candidates attended in the test, didnot have the notified qualification at all. But they have the extremly high qualification, such as Mtech, Mtech etc. PSC without considering the notification, prepare the ranked list. It is because of the diference of intelectula or knowledge level among these 2 groups, the entire qualified as per notification excempted from the ranked list.
so we find the scope to move legally. for that purpose we approach the PSC under Right to Information Act fopr Qualification of candidtes in ranked list. But PSC answers "no qualification detaisl available with them". Since the entire recruitment process is according to qualification etc, it is an irresponsible answer from the side of a Govt Institution. In these circumstances, how can we proceed legally. cab u please guide us with your advice and necessary instructon
thanking you
yours faithfully
for NCVT certificate Holders.
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Provident Fund
Dear All,
Kindly enlighten me on the procedure for creating a trust for Provident fund of employees in any organisation.