Judgment

Madan B. Lokur, J.

1. Leave granted.

2. The question for our consideration is whether paragraph 23.7.2 of the Procedure for Taking Disciplinary Action: Award Staff of the State Bank of India relating to the change of an inquiry officer holding a departmental inquiry is mandatory or directory in nature. The said paragraph reads as follows:

"23.7.2 E.O. should not be changed after the commencement of inquiry. Once the enquiry has commenced i.e. witness, etc., have been produced and examined, an Enquiry Officer should not be changed as it is desirable that an authority who hears the arguments should decide the case. Allegation of bias or prejudice, if any, received against the Enquiry Officer, based on facts and reasonable grounds, should be properly examined by the disciplinary authority and reasons for continuing the existing officer or changing him should be recorded."

3. In our opinion, the first part of the said paragraph is enabling in nature and cannot be interpreted as being mandatory. The second part of the said paragraph requiring the recording of reasons is mandatory but in the facts of this case, the failure of the State Bank of India to record reasons is not fatal to the inquiry held against the Respondent.

The Facts

4. Boa Penji (the Respondent) was working as Deputy Head Cashier at Itanagar Branch (Arunachal Pradesh) of the State Bank of India (the Bank). A charge sheet was issued to him on 5th March, 2001 leveling several allegations. Penji denied the allegations and, therefore, a disciplinary enquiry was held against him. The Enquiry Officer submitted a report exonerating him of all the charges. However, by an order dated 17th October, 2003 his Disciplinary Authority set aside the findings of the Enquiry Officer and directed him to hold a de novo enquiry against Penji.

5. Feeling dissatisfied with the order passed by the Disciplinary Authority, Penji preferred a writ petition in the Gauhati High Court which was dismissed by a learned Single Judge on 3rd June, 2005. Thereafter, Penji preferred a writ appeal and a Division Bench of the Gauhati High Court by its judgment and order dated 26th April, 2007 partly allowed the appeal. It was directed that a further enquiry may be held in respect of allegations against Penji but the holding of a de novo enquiry was not appropriate.

6. During the pendency of the writ appeal, the Enquiry Officer Phuntsok Rinchin took voluntary retirement with effect from 31st January, 2007. Therefore, after the decision of the Division Bench on 26th April, 2007, the Bank had no option but to appoint another Enquiry Officer and, accordingly, Nidhir Ranjan Kar was appointed as the Enquiry Officer to conduct a further enquiry into the allegations against Penji.

7. Nidhir Ranjan Kar submitted his report to the Disciplinary Authority and after considering the representation made by Penji, the Disciplinary Authority passed an order removing Penji from the services of the Bank. A departmental appeal was preferred by Penji but it was rejected. This led him to prefer a writ petition in the Gauhati High Court being W.P. No. 256 (AP) of 2010.

8. The writ petition filed by Penji was heard on merits but it was dismissed by a learned Single Judge by a judgment and order dated 11th March, 2011.

9. Feeling aggrieved, Penji preferred Writ Appeal No. 20 of 2011 which came to be allowed by the Division Bench of the Gauhati High Court by the impugned judgment and order dated 7th March, 2012.

10. The only contention urged by Penji before the Division Bench was that in terms of paragraph 23.7.2 of the Procedure for Taking Disciplinary Action, the Enquiry Officer could not have been changed without the recording of reasons by the Bank. This contention was accepted. It may be recalled that the Enquiry Officer was Phuntsok Rinchin, but subsequently Nidhir Ranjan Kar was appointed as the Enquiry Officer. According to the High Court, this was not permissible without reasons being recorded for the change. Therefore, the H