State Bank of India & Ors. vs Mohammad Badruddin

3 & 5) were not found proved – Disciplinary Authority disagreed with the findings in respect of charge Nos. 1 and 5 – Thus on the basis of charge Nos. 1,4 and 5 and also on the basis of punishment of reversion in earlier departmental proceedings, inflicted penalty/punishment of removal from service – Order was confirmed in departmental appeal – Single Judge of High Court dismissed the writ petition – Division Bench of High Court, in writ appeal, held that punishment of removal stands vitiated because the reasons for disagreement with the Inquiry Report in respect of charge Nos. 1 and 5 was not supplied to the delinquent and because the previous punishment of reversion was taken into consideration without bringing it to the notice of the delinquent – Appeal to Supreme Court – Held: There is no mandatory requirement of communicating the proposed punishment after 42nd Constitutional amendment – Therefore, there cannot be any bar in the constitutional scheme to take into consideration previous punishments – Thus, non-communication of previous punishments in the show cause notice will not vitiate the punishment imposed – Non-communication of reasons for disagreement recorded in respect of charge Nos. 1 and 5 also cannot be faulted with – However, in exercise of power of judicial review, Supreme Court cannot maintain the punishment of removal from service in view of findings recorded on charge No. 4 – It is for the Disciplinary Authority to consider whether punishment of removal on the basis of charge No. 4 alone was sustainable or not – Matter is remitted back to Disciplinary Authority.

Disposing of the appeals, the Court

HELD:

Civil Appeal No. 5605/2019

1. The Division Bench by impugned order set aside the order of punishment on the ground that copy of the Inquiry Report was not supplied to the delinquent, before the Disciplinary Authority passed an order of punishment, but was supplied along with the order of punishment, therefore, there is complete violation of cardinal principle of natural justice. In *Mohd. Ramzan Khan case (case relied on by Division Bench) laid down that wherever Inquiry Officer has furnished a report to the Disciplinary Authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it. A non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter. However, the said judgment itself has been given prospective effect i.e. the inquiries concluded prior to the judgment dated November 20, 1990 will not be affected by the law laid down in the said judgment. Since the order of punishment was passed by the Disciplinary Authority prior to November 20, 1990, therefore, the same could not be set aside only for the reason that the copy of the Inquiry Report was not supplied to the delinquent. Consequently, the order of the High Court in LPA No. 261 of 2007 is set aside and the order of punishment of reversion to the post of Junior Management Grade at the lowest stage, as modified by the Appellate Authority, is ordered to be restored. [Paras 4, 5 and 7] [1021-E-H; 1022-F]

Managing Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors. (1993) 4 SCC 727 : [1993] 2 Suppl. SCR 576; Union of India & Ors. v. Mohd. Ramzan Khan (1991) 1 SCC 588 : [1990] 3 Suppl. SCR 248 – held inapplicable.

Civil Appeal No. 5604/2019

2.1 The previous punishments could not be subject matter of the charge-sheet as it is beyond the scope of inquiry to be conducted by the Inquiry Officer as such punishments have attained finality in the proceedings. The requirement of second show cause notice stands specifically omitted by 42nd Amendment of the Constitution of India. Therefore, the only requirement now is to send a copy of Inquiry Report to the delinquent to meet the principle of natural justice being the adverse material against the delinquent. There is no mandatory requirement of communicating the proposed punishment which was specifically contemplated by clause (2) of Art. 311 of the Constitution prior to 42nd Constitutional amendment. Therefore, there cannot be any bar to take into consideration previous punishments in the constitutional scheme as interpreted by this Court. Thus, the non-communication of the previous punishments in the show cause notice will not vitiate the punishment imposed. [Paras 23 and 24] [1031-E-H; 1032-A]

2.2 The findings recorded by the Division Bench that the order of punishment passed on the basis of uncommunicated reasons of disagreement recorded in respect of charge Nos. 1 and 5 cannot be faulted with. The High Court has set aside the order of punishment on the ground that it violates the principle of natural justice. Though, charge No. 4 may be sufficient to inflict punishment but it is not necessary that charge No. 4 alone will entail punishment of removal from service. While exercising the power of judicial review, it will not be within jurisdiction of this Court to maintain the order of punishment of removal from service in view of findings recorded on charge No. 4 itself. It is for the Disciplinary Authority to inflict punishment as it may consider appropriate after finding the charge No. 4 proved against the delinquent. [Paras 28 and 29] [1033-F-H; 1034-A-C]

2.3 Since the delinquent has attained the age of superannuation, there cannot be any order of reinstatement or of suspension. In view thereof, the order of punishment dated November 4, 1993 as also the order of the Appellate Authority are set aside and the matter is remanded back to the Disciplinary Authority to consider as to whether it would like to record reasons of disagreement on charge Nos. 1 and 5 and/or impose punishment on the basis of charge No. 4 with which there is no disagreement, as it may consider appropriate. [Para 32] [1035-D-E]

P.D. Agrawal v. State Bank of India & Ors. (2006) 8 SCC 776 : [2006] 1 Suppl. SCR 454; Managing

Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors. (1993) 4 SCC 727 : [1993] 2 Suppl. SCR 576 – followed.

Punjab National Bank and Others v. K. K. Verma (2010)

13 SCC494 : [2010] 11 SCR 311;Union of India & Ors. v. Mohd. Ramzan Khan (1991) 1 SCC 588 : [1990] 3 Suppl. SCR 248; Punjab National Bank & Ors. v. Kunj Behari Misra (1998) 7 SCC 84 :

[1998] 1 Suppl. SCR 22 – relied on.

State of Orissa & Ors. v. Bidyabhushan Mohapatra AIR 1963 SC 779 : [1963] Suppl. SCR 648; Nicholas Piramal India Limited v. Harisingh (2015) 8 SCC 272 – distinguished

State of Mysore v. K. Manche Gowda AIR 1964 SC

506 : [1964] SCR 540 – held inapplicable.

Govt. of A.P. & Ors. v. Mohd. Taher Ali (2007) 8 SCC

656 : [2007] 10 SCR 929 ; Union of India & Ors. v. Bishamber Das Dogra (2009) 13 SCC 102

– referred to.