ARBIND KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN both the writ applications common questions of law and fact arise for consideration and as such they are being disposed of by this common order.

(2.) PETITIONERS are members of Bihar Subordinate Education Service and they have been put under suspension of the ground that they have not carried out the orders of transfer. Enquiries were conducted and the Enquiry Officer exonerated the petitioners from all the charges. The report of the Enquiry Officer was placed for consideration before the disciplinary authority, who by his order dated 15th of May, 2000 and order dated 1.6.2000 (Annexure -4 in both the writ petitions) passed orders for revocation of order of suspension but imposed penalty of withholding of two annual increments with non -cumulative effect. He also directed that the aforesaid punishment imposed on the petitioners shall be entered in their service book. It is the assertion of the petitioners that before passing the impugned orders the disciplinary authority did not give any opportunity to the petitioners. This assertion of the petitioners has not been denied.

(3.) MR . Shukla appearing on behalf of the petitioners submits that once the Enquiry Officer has exonerated the petitioners from the charge, the disciplinary authority may have the power to disagree with the same and impose punishment but before doing so it is incumbent upon him to indicate tentative reason for disagreement with the inquiry report and also to give opportunity to the petitioners to show cause. He submits that no reasons have been indicated nor petitioners have been given any show cause. In support of his submission learned counsel has placed reliance on a judgment of the Supreme Court in the case of S.B.I. and others V/s. Arvind M. Shukla (2001 AIR SCW 2472) and my attention has been drawn to a passage of paragraph 2 of the judgment, which reads as follows: "To appreciate this contention, we have been taken through the findings of the enquiring officer and charges 1 (a) and 1 (d) as well as the reasoning and ultimate conclusion of the disciplinary authority on those two charges. On examining the same, we are not persuaded to accept the submission of the learned counsel and in our view, the disciplinary authority has disagreed with the conclusion and findings arrived at by the enquiring officer. The next question therefore is, as has been formulated earlier, whether the disciplinary authority was required to record its tentative reasons for disagreement and give to the delinquent officer and opportunity to represent before it recorded its ultimate findings. This question is concluded by a 3 - Judge Bench decision of this Court in the case of Punjab National Bank V/s. Kunj Behari Misra, (1998) 7 SCC 84: (1998 AIR SCW 2762: AIR 1998 SC 2713: 1998 Lab lC 3012: 1998 All LJ 2009). The Bench in the aforesaid case relied upon the earlier decision in the Institute of Chartered Accountant case (AIR 1987 SC 71) as well as the Ram Kishan case (1995 AIR SCW 4027: AIR 1996 SC 255) and came to hold that the view expressed in S.S. Koshal (1994 AIR SCW 2901) and M.C. Saxena (1998 AIR SCW 965: AIR 1998 SC 1150: 1998 Lab lC 1038) cases do not lay down the correct law. Mr. Sundravardan, however, brought to our notice yet another 3 -Judge Bench decision in the case of Union Bank of India V/s. Vishwa Mohan, (1998) 4 SCC 310: (1998) AIR SCW 2216: AIR 1998 SC 2311: 1998 Lab lC 2514: 1998 All LJ 1599, and contended that a different view has been taken in the aforesaid cases. But on examining the aforesaid decision in Union Bank of India case, we find that the question which arose for consideration in the Punjab National Bank case was not really there before the Court and the Court was examining the question as to what would be the effect, if copy of the enquiry report is not furnished to the delinquent employee. The Court obviously relied upon the Constitution Bench decision of this Court in Managing Director, ECIL V/s. B. Karunakar, (1993) 4 SCC 727: (1994) AIR SCW 1050: AIR 1994 SC 1074: 1994 Lab lC 762). In the absence of any contrary decision of a 3 - Judge Bench decision on the question in issue, we are bound by the earlier judgment of this Court in Punjab National Bank case, necessarily, therefore we do not find any merit in this appeal, which stands dismissed".