State Bank Of India & Ors vs Ranjit Kumar Chakraborty & Anr

CIVIL APPEAL NO. 3233 OF 2005

STATE BANK OF INDIA & ORS. .. APPELLANTS

vs.

RANJIT KUMAR CHAKRABORTY & ANR. .. RESPONDENTS

ORDER

Heard learned counsel for both the parties.

We have gone through the order passed by the Division Bench of the

Calcutta High Court and we are in full agreement with the same.

The respondent was charge-sheeted and an informal enquiry was held

against him and he was found guilty of all the charges except one charge.

However, the Disciplinary Authority was not competent to pass a major penalty.

Therefore, all the papers were placed before the competent authority for passing

the major penalty. The Appointing Authority passed the major penalty of

dismissal from service without hearing delinquent.

This was challenged by filing a writ petition before the High Court of

Calcutta. Learned Single Judge dismissed the petition and the appeal filed by the

delinquent is succeeded. The Court interpreted the Rule 68(3)(iii) which reads as

under:

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"If the Disciplinary Authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in rule 67 should be imposed on the officer, it shall, notwithstanding anything contained in sub- rule (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 rule 67 and 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 enquiry specified in clause (xxi) (b) of sub-rule (2), together with its recommendations regarding the penalty that may be imposed and the Appointing Authority shall make an order imposing such penalty as it considers in its opinion appropriate."

In this case the respondent was punished with a major penalty was not

heard. Therefore, the order of removal was set aside. We have been taken

through the Rule 68(3)(iii) and we are in full agreement with the view taken by the

High Court. When the Disciplinary Authority is not competent to pass a major

penalty, that is, of the removal or other major penalty prescribed in the Rule, the

papers are required to be placed by the Disciplinary Authority to the Appointing

Authority who is competent to pass a major penalty. In the present case

Disciplinary Authority was not

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competent to pass major penalty, therefore, matter was placed before the

Appointing Authority & Appointing Authority passed major penalty of dismissal

without hearing delinquent. Such order which is on the face of it is against the principles of natural justice, cannot be countenanced as it is void ab initio. The

proviso certainly says that the Appointing Authority, on the recommendation

given by the Disciplinary Authority, shall be competent to pass the major penalty.

Simply by recommending the matter and sending the papers to the Appointing

Authority, does not mean that the incumbent who is going to be served with the

major penalty is not required to be heard in the matter. It is now settled principle

that where ever the Rule is silent the principles of natural justice shall be read in

it. A hearing should be given to a person who is being punished with a major

penalty. Therefore, the principle of natural justice has to be read in this Rule. A

notice ought to have been issued to the delinquent by the Authority to whom

papers were sent to show cause why the major penalty may not be imposed on

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him. It is true that the competent authority could pass the order of major penalty

but not without hearing the incumbent. Therefore, in this context of the matter,

we are of the opinion that the view taken by the Division Bench of the Calcutta

High Court is correct and there is no ground for interference in this appeal.

Accordingly, the appeal is dismissed.

No order as to costs.

....................J. (A.K. MATHUR)

.....................J. (P. SATHASIVAM) NEW DELHI;

JULY 30, 2008.