N.L. Mapari vs UCO Bank

Anand Byrareddy

Heard the learned counsel for the petitioner and the respondent.

The petitioner had put in 27 years of service with the by an order dated 7.4.2006 by the second respondent. An appeal filed against that order not having been considered for a long time, the petitioner had approached this court by way of a writ petition in WP 1139/2007. This court disposed of the writ petition by its order dated 19.2.2007, with a direction to the appellate authority to decide the appeal within four months from the date of receipt of a certified copy of the order. However, the appellate authority by its order dated 12.6.2007 dismissed the appeal. Questioning the same, the present petition is filed.

The present petition raises a preliminary contention, namely, that of the 27 charges, in respect of which, an inquiry was conducted, the inquiry officer had found that certain charges were proved and certain others were not proved. The disciplinary authority took the view that charge nos. 2, 3, 4, 5, 8, 9, 12, 13, 14, 15, 20 and 22 were partly proved and it is in respect of six charges, which the inquiry officer had held were partly proved, that the disciplinary authority had differed and had expressed that they stood proved. However, the disciplinary authority had not assigned any reasons in reversing the finding of the inquiry officer and there was no notice to the petitioner and no opportunity of hearing was given before such a difference of opinion was formed by the disciplinary authority in proceeding to impose the punishment of compulsory retirement from service. The same having been questioned in an appeal and a specific ground having been raised in this regard, the appellate authority has chosen to hold that the disciplinary authority ought not to have differed with the opinion of the inquiry officer, without assigning reasons or without affording an opportunity of hearing to the petitioner. But however, it is held that insofar as other charges, on which findings have been arrived at while assigning reasons by the disciplinary authority, are sufficient to impose the punishment which has been awarded and accordingly, has affirmed the finding of the disciplinary authority. It is that which is sought to be raised as a preliminary objection in holding that even if the appellate authority had assigned reasons in holding that the difference of opinion formed by the disciplinary authority was in order, it would still not compensate the want of reasons in the order of the disciplinary authority. Therefore, the learned counsel would submit that the legal position is well-settled in a decision of the apex court in the case of ORYX Fisheries Private Limited Vs. Union of India (UOI) and Others, and it is submitted that on this very ground, the petition deserves to be allowed.

While the learned counsel for the respondents would strongly resist the petition and would submit that insofar as the charges, in respect of which, the disciplinary authority may not have given reasons and which opinion was expressed without hearing the petitioner, even if held to be an infirmity, the appellate authority having eschewed those charges and having proceeded to affirm the order of punishment, with reference to other charges which were equally grave. The punishment imposed being in accordance with law and though the petitioner was liable to be dismissed from service, the appellate authority having taken a liberal view, that the order of compulsory retirement would sufficiently meet the ends of justice there is no infirmity. He would further submit that insofar as the legal position is concerned, he is supported by the opinion expressed by the Supreme Court in the case of Union Bank of India Vs. Vishwa Mohan, and would also submit that even if this court were to take a view that the matter ought to be remanded to the disciplinary authority, no purpose would be served as the result is predictable having regard to the gravity of the charges which are held proved and having regard to the large number of charges which are of a serious nature. He would submit further that the consequence of such a remand would reward the petitioner with a large amount of money by way of subsistence allowance which ought not to be and he would submit that the petitioner being provided any such benefit ought to be prospective and further subject to the result of the further proceedings. For otherwise, the learned counsel would submit that, it would result in grave injustice and imbalance to the respondents. In this regard, he would place reliance on Paragraph-35 of the judgment of the Supreme Court in the case of Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., , to contend that the consequential relief, if this court were inclined to grant, ought to be prospective and the monetary benefits ought not to be extended to the petitioner with effect from a retrospective date from the date of dismissal from service as it would result in undue benefit to the petitioner.

By way of reply, the learned counsel for the petitioner would contend that insofar as the contention that the matter stands covered by the ratio laid down in Union Bank of India Vs. Vishwa Mohan, , is incorrect. The same was rendered in a totally different context, where the respondent therein had been denied a copy of the report along with the second show-cause notice, which in fact, was found to be an incorrect assertion and therefore, the appeal of the employer stood allowed and the same cannot be pressed into service in the present case on hand as it would have no bearing. Even the law as laid down therein has been distinguished by a later judgment of the Supreme Court in State Bank of India and Others Vs. K.P. Narayanan Kutty, . He would further submit that insofar as the reliance placed on the decision in Karunakar's case, supra, is concerned, is also of no relevance since the retroactivity of the decision of the Supreme Court was under discussion under the relevant paragraph that is cited and would have no relevance to the several benefits that the present petitioner would be entitled to if the impugned orders are held to be bad in law.

Having regard to the above rival contentions, as rightly pointed out by the learned counsel for the petitioner, the consequence of the disciplinary authority's order having been found to be infirm, would result in the matter requiring a further reconsideration by the disciplinary authority. The appellate authority, seeking to supply the reasoning in respect of the certain charges. on the basis of which, punishment has been imposed while eschewing those charges, on which there was a reversal by the disciplinary authority, without hearing the petitioner or without assigning reasons thereof, cannot be condoned merely by virtue of the appellate authority having confirmed the decision of the disciplinary authority while eschewing the infirmity, on the basis of which, the present petition is Filed. Therefore, on the first ground that the entire proceedings stand vitiated by virtue of the disciplinary authority not having assigned reasons nor having issued notice to the petitioner before reversing the findings of the Inquiry officer is to be upheld. Secondly, insofar as the consequential benefit that the petitioner would derive in the restoration of his status is as if he is under suspension and continues to be under suspension during the pendency of these proceedings as well as before the appellate authority from the date of order of dismissal. Accordingly, he would be reverted to the position as if he continues to be under suspension. Hence, he would be entitled to the subsistence allowance from the date of his dismissal up to date and shall be continued to be paid that amount on remand of the matter to the disciplinary authority for a reconsideration, since this petition is being allowed.

Accordingly, the petition is allowed. The impugned annexures are quashed. The matter is to be reconsidered by the disciplinary authority from the stage where it seeks to differ with the opinion of the inquiry officer and shall, after issuing notice to the petitioner, afford him an opportunity of hearing and thereafter pass an order in accordance with law. The remedies available to the petitioner are left open.