MY PETITION TO CHIEF JUSTICEOF PB AND HARYANA HIGH COURT CHANDIGARH

B.R. Mahi (PF 52135), Date – 26 – 12 - 2012
Ex Manager,
B.O. Nawanshahar
Baba Deep Singh Nagar,
Saloh Road,
Backside K.C. Palace,
Nawan Shahar,
Distt. Shaheed Bhagat Singh Nagar,
Punjab.



SH.ARJAN KUMAR SIKRI
CHIEF JUSTICE OF PUNJAB AND HARYANA HIGH COURT CHANDIGARH ( Punjab)

Sh. K.R.KAMATH
The Chairman and Managing Director,
Punjab National Bank
Personnel Administration Division,
H.O.: 7, Bhikaji Cama Place,
New Delhi.
Respected Sir,

Re.: My Petition under Regulation 18 of D&A Regulations 1977 against the impugned orders of Disciplinary Authority dated 6.7.2011 and also against the impugned orders of Appellate Authority dated 10.12.2011 in the matter of Charge Sheet dated 5.10.2009 under Regulation 6 of D&A Regulations 1977 served upon me.

Respectfully, it is submitted to consider as under:-

- That the captioned charge sheet dated 5.10.2009 was served upon me by the Disciplinary Authority, Circle Office, Hoshiarpur and after conclusion of the inquiry proceedings, the Disciplinary Authority i.e. The Deputy General Manager, Circle Office, Hoshiarpur passed the final order dated 6.7.2011 thereby inflicting the punishment of my ‘compulsory retirement’ from the bank service.

- That thereafter, I had preferred an appeal under regulation 17 of D&A Regulations 1977 dated 10.9.2011 to the General Manager (Appellate Authority) Punjab National Bank, Personnel Administration Division, H.O. New Delhi. The Appellate Authority has rejected my appeal vide order dated 10.12.2011 which was sent to me under the cover of Sr. Manager, Punjab National Bank, Personnel Administration Division, H.O. New Delhi vide his No. PAD/Head Office/DAC/15035 dated 15.12.2011 which was received by me on 31.12.2011.

- That being agreed from the order of punishment dated 6.7.2011 and also from the Appellate Authority dated 10.12.2011, I prefer this review petition under Regulation 18 of D&A Regulations 1977 within the stipulated period of 6 months. The period of six months would expire on 02.07.2012 and thus, the Review Petition is in order for favourable consideration.

- That the points in my review petition are as under:-
A) MOST URGENT :- “THAT INSPITE OF SEVERAL NOTICES AND WRITTEN REQUESTS PROPERLY ACKNOWLEDGEMENT BY THE BANK , THE BANK HAS NOT PROVIDED ME DOCUMENTS AND THE LIST OF PROSECUTION WITNESS ON WHICH THE CHARGE SHEET WAS BASED . THEREFORE PROCEEDINGS CONTINOUED WITHOUT PROVIDING THE DOCUMENTS ARE NULL AND VOID.”
1. That the order of penalty has been passed by the incompetent authority.
It is submitted that in terms of PAD Circular No. 16 dated 10.1.2011, the Head Office has scheduled and designated the Disciplinary Authority as well as Appellate Authority w.e.f. 10.1.2011, according to which, the Asstt. General Manager in the Circle Office has been designated as Disciplinary Authority and in case, the Asstt. General Manager is not posted then the Deputy General Manager would be the Disciplinary Authority. In the present case, the Asstt. General Manager Mr. K.V. Anand was posted in the Circle Office and he was designated as Disciplinary Authority. But in my case, the Deputy General Manger Sh. S.S.ARORA has passed the final orders dated 6.7.2011 in violation of PAD Circular No. 16 dated 10.1.2011. It is a settled law that when the order has been passed by the incompetent authority then, the same is vitiated being illegal and not liable to be sustained. The reviewing authority is requested to kindly look into this aspect and to quash and set-aside the impugned orders dated 6.7.2011 of the Disciplinary Authority.

2. That the order of the Appellate Authority has been non speaking and to quote as under:-
That I have raised various issues in my appeal whereas, the Appellate Authority has either not dealt with my those issues or if he has dealt with then he has disposed of the same in a very vague and ambiguous manner despite the fact that he has included most of the issues in his final order dated 10.12.2011 at Sr. No. 4.1 to 4.29, which is evident to quote as under:-

a) That the Appellate Authority has agreed in his order at point 4.1 that I have raised the issues in detail relating to violation of Regulations 6(3), 6(4), 6(5), 6(10-1), 6(11) of D&A Regulations etc. whereas, the Appellate Authority has disposed of these issues in a very vague and ambigious manner at Sr. No. 5.1 of his orders dated 10.12.2011 by stating differently that the charge sheet was served upon me and the inquiry had been instituted and proceeded with as per provisions of Punjab National Bank officer employees’ (D&A) Regulations and I was given ample opportunity to refer the relevant records and to submit my defence statement after being served with the charge sheet, which was not the issue. Thus, the issues have been different whereas, the reply has been totally irrelevant with the issues. My submissions at Sr. No. 4.1 are different whereas the disposal by the Appellate Authority at Sr. No. 5.1 is in a different manner not referring to the issues raised by me. So much so, it is not known to the reply of the Appellate Authority that actually, what was represented by me and what it has been stated by the Appellate Authority and thus, the observations of the Appellate Authority at Sr. No. 5.1 are not inconsonance with the issues raised at Sr. No. 4.1 and thus, the order of Appellate Authority is non-speaking.

b) That in terms of Sr. No. 4.10, 4.12 etc. I had raised the issue that the exhibit M-130 was not a ratified document and it was not to be used against me in the matter of Departmental Inquiry Proceedings because the author of this documents was not examined before the Inquiry Officer and thus, it was only hear say evidence. While, pleading this issue I have given the reference from the vigilance manual circulated by the Head Office wherein it has been provided that if the author of investigation report has not been examined before the Inquiry Officer then, this document is redundant. The principle behind it has been that the other persons or the witnesses may confirm the signatures on this document of the author and these witnesses may confirm the contents in these documents, but the said witnesses cannot confirm the truth in the contents of the investigation report. Moreover, no enclosures were enclosed with this investigation report.

But the Appellate Authority has disposed of this issue at Sr. No. 5.2 in a different but in a vague manner without touching to the actual subject matter. The Appellate Authority at Sr. No. 5.2 has stated that I was given fair and ample opportunity to call and to cross examine any witness for my defence before the close of the case during the case of inqury and thus, my contentions regarding the status of exhibit M-130 (Investigation Report) at this stage was not tenable, which was not the issue. The issue was different that the prosecution has used the exhibit M-130 and the Inquiry Officer has relied upon this exhibit whereas, the author of the document was not examined. There was no issue under this reference if I was given fair or ample opportunity to call and to cross-examine any witness for my defence. Moreover, as to how I could cross examine the author of M-130 document when he was not examined by the PO, but relied upon the exhibit M-30 document. Thus, the observations of the Appellate Authority are totally irrelevant, vague and ambiguous.

c) That in terms of sr. No. 4.1 of the order of Appellate Authority I had raised the issue that Sh. Harpal Singh, Sh. M.L. Ahuja and Sh. Dalvinder Singh were the writers and the signatories to all the loan documents, loan proposals, copies of FDRs, but I have been discriminated by imposing such a penalty whereas, lenient view was taken in the case of other officials Sh. Harpal Singh and Sh. M.L. Ahuja etc. I had also stated that the concept of equity as available under Article 14 of the Constitution of India provides positive concept that the action which has been taken in the case of Sh. Harpal Singh and Sh. M.L. Ahuja, the same should have been imposed upon me, since I have been discriminated highly by inflicting the harsh and shocking punishment of compulsory retirement. But, the Appellate Authority has mentioned differently at Sr. No. 5.3 that in another one case, the erring official has also received the same penalty which has been imposed upon me meaning thereby that no such action was taken against all the indicated officials and more particularly, in the case of Sh. Harpal Singh and Sh. M.L. Ahuja, a very light penalty was inflicted upon. Though, the Appellate Authority has directly denied discrimination at Sr. No. 5.3, but at the same time, he has also agreed that I was discriminated in the matter since, same penalty was not imposed upon me as it has been in the case of Sh. Harpal Singh and Sh. M.L. Ahuja and thus, the discrimination is evidently proved.

d) That at Sr. No. 4.2 and 4.29 of the order of Appellate Authority I had contended that the said penalty was imposed upon me in a unreasoned manner, as the views of the Disciplinary Authority were different and favoured imposing of lesser penalty whereas, the CVO had differed with the Disciplinary Authority repeatedly. Even the observations of the views of the CVO have been distorted by the vigilance department, Head Office while conveying the same to the Disciplinary Authority at Circle Office, Hoshiarpur and copies of this correspondence was not provided to me for my representation against the second stage advise of the CVO.

But the Appellate Authority has disposed of this issue in a very casual and in a different manner at Sr. No. 5.4 thereby stating that copies of first stage advise and second stage advise of the CVO were provided to me, without disclosing that as and when these were provided to me and with what direction. In fact, it is a distorted version of the Appellate Authority because the copies of first stage and second stage advise were never provided to me and only after imposing the penalty by the Disciplinary Authority, I had requisitioned these copies under Right to Information Act 2005, which does mean that copies of these advises were provided to me by the Disciplinary Authority before passing the final order dated 6.7.2011.

e) That in terms of Sr. No. 4.5 of the order of the Appellate Authority, I have stated that the charge sheet was issued when most of the accounts were already closed without any financial loss to the bank and the bank has never been short of funds or collateral securities in the matter of those loan accounts wherein, the statement of imputation has been prepared and projected in a manner as it was a fraud case (vide charge-II [A] and charge-VII [b] etc.). As per record there was an error that the saving fund account of the party was not debited by the concerned clerk despite being voucher for the purpose on the record. The borrower has also not withdrawn the said amount from saving fund account whereas, the FDR was issued for the equivalent amount of debit voucher. Thus, it is not a fraud because the equivalent amount remained intact in saving fund account instead of in FD account and thus, such a harsh punishment is not required when it was a case of an error instead of a fraud.

But, the Appellate Authority has considered it a case of fraud in order to justify the imposed penalty, knowing well that the funds remain intact with the bank in saving fund account. In order to dispose of my this contention, the Appellate Authority has stated at Sr. No. 5.5 that my plea that the bank has not remained short of funds or collateral security was not tenable because closure of account does not absolve me of the charges and my acts have maligned the image of the bank without specifying that as to how the image of the bank was maligned which was not the charge. Thus, the Appellate Authority has not disposed of the relevant issue inconsonance it was raised in my appeal and thus, the order of the Appellate Authority is non-speaking.

f) That in terms of allegation-II [A] – i, I had pleaded as extenuating grounds that the FDR was to be prepared by debit to SF account on 11.12.2008 for which vouchers were prepared but inadvertently, the SF account was not debited by making the entry in the system. But the fact remains, that a sum of Rs. 5,12,000/- always remained in SF account in credit of the party. The bank has not suffered any financial loss and the error has been inadvertent. The FDR was prepared in the hand of Sh. Dalvinder Singh, CTO, it was signed firstly by Sh. Harpal Singh, Deputy Manager and thereafter, I have signed it in good faith. No person has been benefited by this error. The party has also not gained anything as a sum of Rs. 5,50,000/- remained in credit in SF account at a lower rate of interest 4% per annum whereas, the party has paid higher rate of interest on the overdraft limit sanctioned for Rs. 4,70,000/- thereby showing rate of interest 2% over and above from the rate of interest shown in the FDR. Even after doing the error, the saving fund account was not debited and the amount was not credited in the FDR account, so that higher rate of interest is not paid to the party.

But, the Appellate Authority has deliberately considered it a case of fraud in terms of his observations shown at Sr. No. 5.6 of his order thereby stating that my plea was not acceptable that on account of inadvertent for bonafide error the saving fund account could not be debited while issuing FDR in the name of Rakesh Kumar and while sanctioned the loan as OD limit of Rs. 4,70,000/-, without stating that as to how it was not acceptable when no motives are inferred or proved. It is a settled law that a fraud is that where the action is ill-motivated to have unlawful gains. But when in the name of motive it is proved that there was no gain to the party but a considerable loss to the party then it was not a fraud. In fact, the Appellate Authority has borrowed these observations from the Disciplinary Authority who has submitted his comments in this manner. A reasonable man with application of judicious mind may consider that it was not a case of fraud. Had the party availed overdraft limit on the basis of FDR and at the same time, the party utilized the available balance in the saving fund account to the same extent i.e. equivalent to the amount of FDR then it would have been a case of fraud. But, when the party has lost huge money by paying higher rate of interest then it was not a case of fraud. The Disciplinary Authority and the Appellate Authority should have considered this overdraft facility against lien on SF account provided they had been reasonable in approach while appraising these issues involved in the charge. Since, the Appellate Authority has not dealt with my contention in consonance as it was raised therefore, the order of the Appellate Authority is non-speaking. The Appellate Authority has done nothing but repeated the charge as well as the contention of the Disciplinary Authority.

g) That in terms of Sr. No. 4.7, I had pleaded that w.e.f. 14.9.2007 to 29.10.2007, I was in abroad on sanctioned leave and after my returning on 30.10.2007, I relied upon Sh. M.L. Ahuja and signed the confirmation of sanction of loan and for the purpose of brevity the exact text of Sr. No. 4.7 is reproduced hereunder:-
Charge 1 - Articles provides that he had issued fake sanction letters of education loan whereas the statement of imputation provides that the said loan was sanctioned to Shri Suresh Madan & Shri Vishal Madan without prior administrative clearance from the, competent authority. The allegation, which has not been included in the Article of charge, the same is not to be proved. He was on sanctioned leave from 14.9.2007 to 29.10.2007 and after his returning from Abroad on 30.10.2007, Shri ML Ahuja told him that he has disbursed the loan in this case in his absence and as per scheme, the sanction was required from one step higher authority and as the appellant was one step higher to him in rank and file, therefore, the loan should be sanctioned by him. He relied upon Shri M.L. Ahuja who was otherwise very active and intelligent than him and put his sanction on the loan application.

But, the Appellate Authority at Sr. No. 5.7 of his order has mentioned differently that there was nothing on record to show that I have put my signatures in the education loan of Sh. Suresh Mohan and Sh. Vishal Madan after returning from leave despite the fact that I was in abroad against sanctioned leave and this entry has also been made in my passport. For the purpose of brevity the photocopy of the passport is also enclosed as Annexure-A thereby proving that I have visited England during the period 14.9.2007 to 29.10.2007. Thereafter, the Appellate Authority has mentioned that while putting my signatures, I failed to ensure administrative clearing whereas, the administrative clearance was to be obtained by the then officiating manager w.e.f. 14.9.2007 to 29.10.2007. Thereafter, the Appellate Authority has stated that vide my letter dated 23.11.2007, I had provided false information to the competent authority that the loan was secured by way of FDR for Rs. 5.00 lacs whereas, there was no such FDR on record of the bank. The Appellate Authority has not looked into the fact that it was the stipulated condition in the sanction which was not complied with by the officiating manager during the period 14.9.2007 to 29.10.2007 without bringing it on record or to my notice. I presumed in good faith that he had complied with his own terms and conditions. Thereafter, the Appellate Authority has stated that I had failed to bring any document on record to prove that during the leave period, I was away from India and for satisfying this observation of the Appellate Authority, I have already enclosed Annexure-A to this effect. Thereafter, the Appellate Authority has stated that my contention regarding non examination of the author of the investigation report was not tenable as every aspects of the charge has been proved by separate ratified documents. These observations of the Appellate Authority are non-speaking because those alleged ratified documents have not been referred but stated in a generalized manner and thus, the order is non-speaking.

h) That in terms of Sr. No. 4.10 of the order of the Appellate Authority, the case of the defence has been that the house was already mortgaged in a different case whereas, a letter of continuity duly obtained was not made available. Besides, this fact, it was also pleaded that in the sanction-cum-appraisal, there was no condition to create the equitable mortgage because there has been sufficient liquid cash assets under bank’s lien to secure the loan. The loan was further secured from the proceeds of FDR amounting to Rs. 2,90,000/- and also lien in the saving fund account amounting to Rs. 4.50 lacs and the loan was finally closed on 28.10.2009 through the proceeds of FDRs amounting to Rs. 2.90 lacs and a sum of Rs. 4.50 lacs lying in saving fund account, meaning thereby that, sufficient liquid cash was available with the bank to secure the loan and in case there was some irregularity in enforcing of letter of continuity even then neither there was any mis-conduct nor the bank interest was jeopardized.

But, the Appellate Authority remained unreasonable by not considering the fact that the loan was fully secured in liquid cash and raised mechanical observation that my contention about the availability of security in the shape of FDR and SF balance in the education loan of Sh. Taranjit Parbha was irrelevant because, the charge against me was about issuance of sanction letter dated 10.6.2007 addressed to the beneficiary stating that the education loan of Rs. 7.00 lacs was secured by way of mortgage of house worth Rs. 45,28,943/- whereas, no such mortgage was created and the charge has been proved against me. These observations of the Appellate Authority shows that the Appellate Authority remained technical as well as mechanical in nature without applying for a judicious mind that the loan was fully secured with liquid cash and thus, the error was not to be given any weightage. Since the exact plea was not discussed and given weightage without assigning any reason thereof, therefore, the order is non-speaking.

i) That in terms of Sr. No. 4.11, 4.12, and 4.13, I had raised various submissions whereas the Appellate Authority has brushed aside these in terms of Sr. No. 5.9 of his observations by stating that the education loans were sanctioned at far off places and FD dated 11.12.2008 of Rs. 5,10,000/- was opened with zero balance without debiting the SF account of the customer, without stating that as to how the said loans were at far off places and as to how there was a significance that the FDR was opened with zero balance when more than the sum amount of FDR was available in the saving fund account and the error was on the part of the clerk, who had not debited the account after making entry of the transaction. These are all mechanical observations because the party has never withdrawn the amount from SF account and to the contrary the party has paid higher rate of interest in the overdraft limit at the rate of 2% over and above the rate of interest shown in the FDR whereas he was eligible to pay rate of interest at the rate of 6%. The observations of the Appellate Authority are nothing but repetition of the charge wherein the merits of the case have not been considered. If the observations were to be recorded in a mechanical manner by just defending the charge, then there was no need to make a provision of appeal.

j) That in terms of Sr. No. 4.3 of the order dated 10.12.2011, I have raised the following issues which were not discussed and disposed of by the Appellate Authority without assigning in a reason thereof.

The Head Office has issued instructions that no charge sheet should be served upon the officer concerned wherein the event is more than four years period and the irregularity is related to the procedural lapse. But in this case, there are a large number of imputations wherein, the events are more than four years period relating to procedural alleged lapses. Thus, the order of punishment is not reasoned. Prior to issuance of charge sheet, neither any explanation was ever called nor any tabular proforma was even serviced as per system in vogue.

Since, the aforesaid issues has not been discussed by the Appellate Authority in his order, therefore, the order is non-speaking, arbitrary and perverse.

k) That at Sr. No. 4.4 of the order of Appellate Authority, I have raised the following issues:

The witnesses were examined without providing the documents in defence and also on the same day when the list of witnesses was adduced and the procedure so adopted is not known to the Law or to the D&A Regulations, 1977.

Since, the aforesaid issues have not been discussed by the Appellate Authority in his order, therefore, the order is non-speaking, arbitrary and perverse.

l) That at Sr. No. 4.6, I have raised the following issue which were not discussed by the Disciplinary Authority due to which his order is non-speaking, arbitrary and perverse.

He always received meritorious and appreciation letters for his working as Incumbent Incharge. His track record has been unblemished in service of 27 years. There is no fraud in any of the cases except at the most may be foolish bonafide inadvertent procedural lapse, if any. His wife has since expired and he has three daughters. He is suffering JJ from the disease of Filaria.

Since, the aforesaid issues have not been discussed by the Appellate Authority in his order, therefore, the order is non-speaking, arbitrary and perverse.

m) That at Sr. No. 4.8 of the order of Appellate Authority, I have raised the following issues:

The sanction letter dated 15.10.2007 vide Exhibit M2 has been signed by Shri M.L. Ahuja and not by him. Thus the Article of charge is directly attributed to Shri Ahuja. Statement of imputation is not covered under Article of charge. There is no evidence that he has written such letters to RO whereas Shri ML Ahuja has written a letter to this effect on 19.10.2007 (vide Exhibit M3[a]) when he was on leave and also was not in India but in abroad.

Since, the aforesaid issues have not been discussed by the Appellate Authority in his order, therefore, the order is non-speaking, arbitrary and perverse.

n) That at Sr. No. 4.9 of the order of Appellate Authority, I have raised the following issues:

LSS for October 2007 wherein lien on FDR of Rs. 5.00 lacs has been mentioned prepared and signed only by Shri M.L. Ahuja. There is no evidence which may provide that he has provided wrong information for confirmation of his action.

o) That I had visited the branch B.O. Usmanpur for verification of record because the Disciplinary Authority did not provide the listed documents along with the charge sheet. I tendered an application to the branch manager for providing me photocopies of the listed documents, so that I could prepare my defence statement properly. But the Branch Manager refused to provide me the photocopies of the said documents due to which I was unable to prepare my proper statement of defence. It may be seen that neither the Disciplinary Authority provided me the photocopies of the documents nor the branch manager whereas, I was advised to submit my defence statement. This issue was raised in my appeal but the Appellate Authority did not appreciate the evidence on record and instead of addressing the issue on merit he has stated differently that I did not submit my defence statement relating to the charge sheet. Thus, the order of Appellate Authority is non-speaking, arbitrary and perverse. “THAT INSPITE OF SEVERAL NOTICES AND WRITTEN REQUESTS PROPERLY ACKNOWLEDGEMENT BY THE BANK , THE BANK HAS NOT PROVIDED ME DOCUMENTS AND THE LIST OF PROSECUTION WITNESS ON WHICH THE CHARGE SHEET WAS BASED . THEREFORE PROCEEDINGS CONTINOUED WITHOUT PROVIDING THE DOCUMENTS ARE NULL AND VOID.”
p) That with regard to charge no. 4, I had submitted in my appeal that neither this loan was sanctioned by me nor it was renewed by me nor I was posted at B.O. Usmanpur on 17.5.2005 and thus, the allegation was not remotely attributable to me. It may be seen that on 17.5.2005, I was posted in a different branch i.e. Rahon. But, the Appellate Authority has not appropriated this evidence and without making any comment on my this submission, the appeal was rejected. Thus, the order of Appellate Authority is non-speaking, arbitrary and perverse.

Since, the aforesaid issues have not been discussed by the Appellate Authority in his order, therefore, the order is non-speaking, arbitrary and perverse.

In support of my aforesaid contentions, I refer the following landmark judgements thereby showing emphasis in my contention in a legal and valid form to which the reviewing authority is requested to consider the same sympathetically.

- That in the case of S.D. Sharma Vs. State of Himachal Pradesh 2005 (2) SCT 752 (HPHC) (DB), it was upheld that the Appellate Authority must pass a reasoned order while deciding appeal. It must consider and decide all grounds raised in the memo of appeal.

- That in the case of MMRDA Officers Association Vs. Mumbai Metropolitan RDA 2005 (2) SCT 94 (SC) it was upheld that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at, reasons substitute subjectivity by objectivity. Right to reasons is an indispensable part of a sound judicial system. Another rational is that the affected party knows why the decision has gone against him.

- That in the case of Mohammad Yakub Beldar Vs. Haryana Agriculture University 2005 (2) SCT 285 (P&H) it was held that since order is devoid of any reason and is non speaking and violative of principles of natural justice, it is set-aside.

- That in the case of P.K. Khanna Vs. National Fertilizers Limited 2005 (2) SCT 642 (P&H) (DB) it was upheld that it is not sufficient adherence to the principles of natural justice only to observe that ‘reply is considered and found having no merit’ without recording any reasons. If such a course adopted, it will nagate all the tenets of natural justice.

- That in the case of S.D. Parashar Vs. Punjab State Electricity Board 2005 (2) SCT 261 (P&H) (DB) it was upheld that it is settled principle of law that the authorities are duty bound to pass detailed speaking orders when Civil Rights of employees are liable to be adversely affected. Hence, order is liable to be quashed on this short ground.

- That in the case of Narender Mohan Arya Vs. United India Insurance Co. Ltd. 2006 (2) SCT 446 (SC) it was upheld that the speaking order is a must and in absence of the same, it is invalid and not liable to be sustained.

- Case State of Uttranchal Vs. Sunil Kumar Kumar Singh Negi-2008(2) SCT-429(S.C). Absence of reasons in the order- order not sustainable- principles are enumerated:-

1. The requirement of indicating reasons has been judiciously recognized as imperative.
2. Reason is the heartbeat of every conclusion and without the same it becomes life less.
3. Write to reason is an indispensable part of a sound judicial system.
4. Reasons at least sufficient to indicate an application of mind to the matter before the court.
5. Another rational is that the affected party can know why the decision has gone against him.
6. One of the salutary requirement of natural justice is spelling out reasons for the order made.
7. Write to reason is an indispensable part of sound judicial system and reflect the application of mind on the part of the court.

- Case Director of Horticulture, Punjab & Others Vs. Jagjeevan Parshad 2008(2) SCT-725 S.C(DB)(Doctor Arijit Pasayat & P. Satha Sivam and Aftab Allam J.J(3 Judges) wherein it was upheld to read as under:-

1. Reasons introduced clarity in an order.
2. On plainest consideration of justice, the High Court ought to have set forth its reasons, however brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge.
3. The giving of reasons is one of the fundamentals of good administration.
4. Reasons substitutes subjectivity by objectivity.
5. Write to reason is an indispensable part of a sound judicial system.
6. Another rational is that the affected party can know why the decision has gone against him.
7. One of the salutary requirement of natural justice is spelling out reasons for the order made, in other words, a speaking order.
8. The inscrutable fall of the Sphinx is ordinarily in congruous with a judicial or quasi judicial performance.

- National Insurance Company Ltd. Vs. Gulab Nabi & Anothers 2008(3) SCT-839 (SC)(DB).
- Administration of Justice- Reasoning- Disposal of appeal in speaking terms- 8 reasons.
- State of Himachal Vs. Shisha Ram 2008(4) SCT 138(SC) Section 378(3)- Speaking order- Appeal before High Court against order of acquittal- High Court refused leave by order.
- Heard dismissed’- This is non operative order- Order set aside.
- State Bank of Bikaner Vs. Prabhu Dyal Grover 1995(6) SCC 279- SC
- Divisional Forest Officer VS. Madhusudan Rao JT 2008 (2) SC-253
- Madhya Pardesh Industries Ltd. Vs. union of India AIR 1966 SC 671.
- Engineering & Manufacturing Co. Ltd. VS. Union of India AIR 1976 SC 1785.
- S.N. Mukharjee Vs. Union of India 1990(4) SCC 594 SC
- State of Madras Vs. Srinivasan AIR 1966 SC 1827
- Chairman, Disciplinary Authority, Rani Laxmi Bai Kshetrya Gramin Bank Vs. Jagdip Saran & Others 2009(3) SCT 39- SC
- Even in the case of affirmation of the reasons of Disciplinary Authority of by the Appellate Authority, the reasons for affirmation are required.

3. Violation of Regulation 7(2) of D&A Regulations 1977 for non issuing second show cause notice by the Disciplinary Authority after disagreeing with the findings of the Inquiry Officer.
In terms of charge no. 1 (B-i and B-ii) charge 1 (C) and charge 1 (D), the inquiry officer has not proved these charges against me and he has exonerated me from these charges. But, the Disciplinary Authority had disagreed with the findings of the Inquiry Officer under Regulation 7(2) of D&A Regulations 1977 and after disagreeing the Disciplinary Authority has passed the final order thereby imposing major penalty upon me.

As per procedure, the Disciplinary Authority should have provided to me the copy of his own findings with a second show cause notice that I should represent my case on the findings of the Disciplinary Authority and after considering my representation, the final order should have been passed. But in the present case, after disagreeing with the findings in the final order of the Disciplinary Authority, the Disciplinary Authority has simultaneously passed the final order also thereby imposing major penalty without hearing me on the issue. I had raised these issues, specifically and distinctly in my appeal, but the Appellate Authority has not at all referred and considered my this vial issue. The reviewing authority is therefore, requested that he should consider my these submissions because the order of the Disciplinary Authority as well as the Appellate Authority has been vitiated being illegal. Both these orders are not liable to be sustained.

In support of my aforesaid submissions, I refer the following judgements for favourable consideration by the reviewing authority.

- That in the case of Jagdish Chander Verma Vs. Union of India 2008 (2) SCT 448 (P&H) (DB) it was upheld that show cause notice to the employee with the detail of reasons of disagreement with the Inquiry Officer is must to enable him to effectively put forward his defence justifying the findings of the Inquiry Officer. Failure to supply such reasons prior to passing punishment order or supplying such a reasons after passing punishment order will be violative of principles of natural justice and would vitiate the order.

- That in the case of Punjab National Bank Vs. Kunj Bihari Mishra 1998 (3) SCT 833 (SC) it was upheld that when there is disagreement of the Disciplinary Authority with the findings of Inquiry Officer then show cause notice to the charged officer is necessary.

- That in the case of Yogi Nath D. Bagade Vs. State of Maharashtra 1999 (4) SCT 403 (SC)/1999 (7) SCC 739 (SC) it was upheld that in case of disagreement of the Disciplinary Authority with the findings of the Inquiry Officer show cause is necessary and in absence of the same the punishment order is liable to be quashed and set-aside. Same contention was further upheld in the following cases:-

- State Bank of India Vs. K.P. Naryanan Kutty 2003(3) SCT 743 (SC)/2003 (2) SCC 449 (SC).
- Rakesh Pal Rana Vs. Union of India and another 2008 (3) SCT 158 J&K High Court.
- State of Madras Vs. A.R. Srinivasan AIR 1966 (SC) 1827.
- Managing Director ECIL Hyderabad Vs. B. Karunakar 1994 (1) SCT 319 (SC).
- Mewa Singh Vs. Shiromani Gurudwara Prabandhak Committee 1999 (2) SCC 60-SC.
- Sher Bahadur Vs. Union of India 2002 (7) SCC 142 (SC).
- State of Bihar Vs. Lakshmi Shankar Prasad 2002 (10) SCC 351 (SC).
- Narender Mohan Arya Vs. United India Insurance Co. Ltd. 2006 AIR SCW 1969.
- Railway Board New Delhi Vs. Niranjan Singh AIR 1969 SC 966.
- State of Orissa Vs. Vidhya Bhushan Mohapatra AIR 1963 (SC) 779.

Sadha Shivam S. Vs. MD, Head Office, TN State Transport Corporation Limited 2010 – III LLJ 365 (Madras) (N.Kiru Bakaran J). wherein, it was upheld that the Disciplinary Authority disagreed from finding of Inquiry Officer, it has to give employee a second show cause notice thereby disclosing reasons for the difference and opportunity of hearing.

5. That the Appellate Authority has not accorded personnel hearing despite my specific request under the principle of natural justice, even if the same has not been available in any of the Regulations.
In my appeal, I have made specific request to grant me personal hearing under the principle of natural justice, for the reasons that the penalty was capital in nature. The principles of natural justice do provide that the appellant should be heard first particularly when there is a request and only thereafter, the appeal should be considered. But the Appellate Authority has not accorded personal hearing without assigning any reason thereof and thus, the order of the Appellate Authority is vitiated being illegal.

In support of my aforesaid submissions, I refer the following judgements for showing emphasis in my humble submissions.

q) That in the case of S.L. Loona Vs. Punjab National Bank and another 1992(1) SLR(P&H) P-20 the learned court has discussed regulation 17 of D & A Regulations in detail with the reliance of the lordships of Supreme Courts in the case of Union of India and Another Vs. Tulsi Ram Patel 1985(2) SLR-576(SC) that the principles of natural justice stand excluded “ Not only, therefore, can be principles of natural justice be modified but inceptions to the Nemo Judex in cause sua Rule as also to the Audi Alteram Partam Rule. The Nemo Judex in case sua rule is subject to the doctrine of necessity and yields to it as pointed out by this court in J. Mohapatra and Company Vs. State of Orissa (1985)-1 SCR-322, 334-5(AIR 1984-SC-1572,1576-7)”

The High Court has also relied upon the judgment of Apex court in the case of Ram Chander Vs. Union of India and others 1986(2) SLR-608(SC) which reads as under:-

“ it is not necessary for our purpose to go into the vexed question whether a post decisional hearing is a substitute of the denial of a right of hearing at the initial stage or the observance of the rules of natural justice, since the majority in Tulsi Ram Patel’s case (AIR 1985-SC-1416) unequivocally lays down that the only stage at which a Govt. Servant gets a reasonable opportunity of showing cause against the action proposed to be taken in regard to him i.e. an opportunity to exonerate himself from the charge by showing that the evidence adduced at the Inquiry is not worthy of credence or consideration or that the charges proved against him are not of such a character as to merit the extreme penalty of dismissal or removal or reduction in rank and that any of the lesser punishment ought to have been sufficient in his case, is at the stage of hearing of a department appeal. Such being the legal position it is of utmost importance after the forty-second amendment as interpreted by the majority in Tulsi Ram Patel’s Case that the Appellate Authority must not only give a hearing to the Govt. servant concerned but also pass a reasoned order dealing with the contentions raised by him in appeal. We wish to emphasis that reasoned decisions by tribunals, such as the Railway Board, in the present case will promote public confidence in the administrative process. An objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the authority regarding the final order that may be passed on his appeal. Consideration of fair play and justice also require that such a personal hearing should be given.”

The Hon’ble High Court has further observed that it is no doubt correct that their lordships of Supreme Court have observed that the principles of natural justice can be excluded by a specific statuary provisions. However, Tulsi Ram’s case has been considered by their lordship in Ram Chander’s case (Supra). Once the Supreme Court has itself interpreted Tulsi Ram’s case, it is not open to any court / authority to take a view different from the one expressed by the Apex Court. Under Article 144, the law as laid down by their lordship is binding. Thus, the Appellate Authority was bound to hear the appellant before hearing his appeal to satisfy the Appellate Authority. The order of Appellate Authority is non set in the eyes of law.

Thereafter, it was specifically mentioned that there is nothing under regulation 7(3) of D & A Regulations that the Disciplinary Authority has been excluded to pass a reasoned and speaking order, which is required in each and every case by the Disciplinary Authority that the order should be speaking or reasoned one.

r) That in the case of Ram Niwas Bansal Vs. SBOP 1998 Vol. 3 SCT(P&H), which a very detailed and exhaustive judgment wherein reliance has been placed by the learned court of their lordships of Supreme Court, wherein it has been specifically mentioned that if the delinquent has made a request for personal hearing then the same must be granted irrespective of the fact whether it has been specifically provided in any of the rules or regulations, otherwise it amounts to serious violation of principles of natural justice.

s) In the case of Lal Ji. Vs. Director Bal Vikas Sewa Ashram Putshar Allahabad High Court in the CMWP 422-47 of 1992 decided on 04.02.93, P-183 it has been mentioned that no authority is excluded to grant personal hearing when it has been requested by the delinquent, failing which it amounts to violation of principles of natural justice.

t) In the case of Gulab Singh Vs. Maharishi Dayanad University, Rohtak-2005(1) SCT-111(P&H)(DB) it was upheld “ Article 14 & 311- MDU Act, section 9(14)- Disciplinary proceedings- Appeal- Natural Justice at Appellate stage- Personal Hearing at appellate stage is must- Even the statute providing for an appeal against punishment, the Appellate Authority has to adopt a reasonable procedure which would ensure that the Appellant is given a reasoned opportunity to present his case and ensure that it complies with the principles that justice must not only is done but manifestly seen is to be done- The principles of Natural Justice are those fundamental rules, the breach of which will prevent justice from being seen to have been done- The Appellate Authority not only must provide an opportunity of personal hearing to the Appellant but also pass a speaking order dealing with each & every contention raised by recording reasons as why it was persuaded to agree with the same- Mere reference to the fact and history of the case in any amount in detail will not satisfy the requirement of a well reasoned / speaking order unless the reasons for disagreement are not recorded elaborately.

u) In the case of K.C Gupta Vs. PGI of Medical Education and Research, sector-12, Chandigarh through its director and another in the CWP no.5485 of 1993 decided on 29.09.93(P&H) DLJ-1993-182 it was upheld that the opportunity of being heard not afforded to the petitioner before deciding his statuary appeal- order passed by the Appellate Authority set aside.

v) In the case of S.K Khosla Vs. FCI-2004(2) SCT-658/2004(111) A.D Delhi-34(Delhi High Court)(DB), it was upheld that inflicting of punishment without opportunity of hearing and its sustainability- regulation 19(1) confers powers upon FCI to terminate service of permanent employee by merely giving three months notice or pay- held, regulation 19(1) is void in terms of section-23 of 1872 ACT being opposed to public policy and is ultra virus Article 14 of Constitution- hence struck down.

w) Indu Bhushan Dwivedi V/s State of Jharkhand, 2010 (3) SCT 343 SC para 18 – Right of hearing is fundamental and forms integral part of the concept of Rule of Law.

6. Other extenuating grounds
1. That I had a clean, unblemished track record of 27 years in the bank services which may kindly be considered.

2. That I am virtually a handicapped person, since I am suffering from incurable chronic disease of lymphatic filariasis, elephantiasis due to which my leg has become like a pillar due to which I cannot move to undertake day to day assignments etc. This disease spreads with the bite of a mosquito which is incurable in the world. It is like cancer.

3. That my wife had died on 19.8.2010 and I have three daughters in the age group of 23 years, 16 years and 14 years and I do not have sufficient means for their education and marriage. My father is also aged about 80 years and he is also dependant upon me. My all of three daughters are getting education and thus, they are unmarried. I have no other means to arrange for their marriage in a proper house with proper relationship under these circumstances.

4. That my Disciplinary Authority has been adamant to show these cases of fraud, whereas, there was not fraud or merit.

5. That the order of punishment as well as order of the Appellate Authority have been illegal wherein, copy of second stage advise of CVO was not provided to me, second show cause notice was not served upon me after disagreeing with the findings of the Inquiry Officer etc.

6. That the said penalty was enforced by the CVO whereas, the Disciplinary Authority had earlier proposed lesser punishment and thus, it is not the penalty imposed by the Disciplinary Authority, but the penalty as proposed by the CVO.

7. That my date of birth is 24.4.1961 and thus, I am only 51 years of age and at this juncture I am unable to work in any other vocation or place whereas, I have to educate and marry my three unmarried young daughters.

8. That my appeal may be considered as Review Petition since the issue therein have not been appropriately disposed of by the Appellate Authority.

Prayer
1. That my this review petition may kindly be considered sympathetically and favourably.

2. That the impugned orders of the Disciplinary Authority as well as of the Appellate Authority may kindly be quashed and set-aside.

3. That an opportunity of personal hearing may kindly be accorded under the principle of natural justice.

Submitted for favourable consideration.
.

Yours faithfully,

(B.R. Mahi)
Encl.:
1. Annexure-A
2. Proof of visiting England during the
period of 14.9.2007 to 29.10.2007.
3. Proof of disease.
AN KUMAR