The report of the enquiry officer is just a recommendation on the evidence collected, and the disciplinary authority is not bound by those views. The disciplinary authority must record its tentative reasons for disagreement with the enquiry officer's findings and give the delinquent an opportunity to represent before recording its findings. The absence of reasons to justify a finding is enough to set aside an enquiry officer report, and the order of the disciplinary authority can also be set aside on the same ground.

I.P. Mukerji, J.

1. On 16th July, 1993 the writ petitioner, an employee of the respondent bank was suspended. He was to receive only subsistence allowance during the period of his suspension. He was forbidden to enter the bank's premises unless advised to do so by the bank.

2. On 29th July, 1993 he was chargesheeted. He had allegedly at or about 16-45 hours on 26th June, 1993 written "abusive, indecent, obscene and disparaging remarks" against a woman employee, Nupur Roy Chowdhury working as a clerk Gr-I, on the wall around the staircase from the ground to the first floor between the 8th and 14th step. According to the graffiti, the woman was of easy virtue available to everybody on payment of consideration. According to the bank this remark had imputed grave indignity to her and caused grave injury to her character and reputation. An enquiry was started on 30th September, 1993.

3. The presenting officer produced nine witnesses. The defence counsel tendered four witnesses.

4. On 12th April, 1994 the enquiry officer made and published a report stating inter alia that the charges against the writ petitioner were not established. However, on 21st May, 1994 the respondent bank informed him that the competent authority had considered the evidence and had came to the conclusion that the charges against him had been proved. The petitioner was asked to show cause why the following penalty should not be imposed.

"reduction of pay by 3 (three) stages in your scale of pay for a period of one year from the date of final order, having the effect of postponing the date of the future increments."

5. The entire enquiry culminating in the issuance of the said show cause notice asking the petitioner why the proposed punishment should not be imposed was challenged in this court by the writ petitioner, by filing a writ application (C.O. No. 8098 (W) of 1994). In it Mr. Justice K.J. Sengupta on 30th November, 2000 came to the finding that the conclusion reached by the enquiry officer had been reversed by the competent authority without giving an opportunity to the writ petitioner to contest it. The findings arrived at by the competent authority were final. The petitioner was held guilty. The petitioner was called upon to make a submission only on the sentence or punishment that was proposed. Hence, the findings of the competent or disciplinary authority were to be treated as tentative to which the petitioner could file his reply. In deference to the order of this court the competent authority considered the reply of the petitioner dated 1st June, 1994.

6. On 8th May, 2001 the disciplinary authority re-affirmed its earlier order. Its order was as follows:

"I, therefore, pass the order imposing on charge sheeted employee, the penalty of reducing the pay by 3 stages in his scale of pay for a period of one year from the date of this order having the effect of postponing the date of future increment and his period of suspension may be regularised by grant of Extra Ordinary Leave not counting for increment. The period shall be treated as break in service for the purpose of gratuity."

7. On 19th August, 2002 the appellate authority upheld the order of disciplinary authority. All its observations and findings were endorsed, without any reason.

ARGUMENTS:

8. Mr. Bhattacharyya for the petitioner made the following submissions. He said that when the enquiry officer had exonerated the writ petitioner, ordinarily, the disciplinary authority should not have overturned the decision. If the disciplinary authority had to overturn or reverse the finding of the enquiry officer he was obliged to give a hearing to the petitioner. It was also obliged to give proper reason for reversing the finding of the enquiry officer, citing Punjab National Bank And Other v. Kunj Behari Misra reported in (1998) 7 SCC 84. Mr. Bhattacharyya also argued that the alleged misconduct did not fall within the enumerated acts of misconduct in the service regulations or standing order citing R