Heard Mr. P.K Shahi, learned counsel for the petitioner and Mr. Ram Balak Mahto, learned senior counsel for the Respondent-Bank.
2. The order of dismissal dated 5.11.96 is the subject matter in this writ petition which has been passed in the departmental enquiry on the basis of certain charges levelled against the petitioner.
3. While the petitioner was working in the post of Assistant Accountant on substantive basis a first information report was lodged against him regarding certain occurrence which took place in the year 1984. One Mr. Ashish Kumar Jha, the erstwhile Managing Director of the Bank against whom the petitioner, in the capacity of the Secretary of Employees' Union, made certain complaints, filed a written report resulting in registration of a police case. It is alleged in the first information report that the signature of Mr. L.R Singh, an Advocate of the Supreme Court on the receipt of Rs. 4950/- obtained by the petitioner was forged. However, after investigation the police submitted final form and the same was accepted by the Chief Judicial Magistrate, Patna on 20.3.97 It is stated that the said Ashish Kumar Jha, apart from lodging the first information report, also filed a complaint case in the court of the Chief Judicial Magistrate, Patna on 29.9.95 and the same was also dismissed on 20.3.97
4. During the pendency of the criminal case the petitioner was suspended and the order of suspension was ultimately vacated by the order of the Registrar Co-operative Societies, Bihar, subsequent thereto the Administrator of the Bank initiated departmental proceeding after more than one year of lodging the said first information report by Mr. Jha. Charge memo was served on 17.8.96 making out a case of misconduct against the petitioner. So far as the first charge is concerned, it is stated that the petitioner, while in occupation of government accommodation received 20% house rent allowance. Second charge was relating to forging signature of the said Advocate of the Supreme Court Sri Singh by which the petitioner submitted bill of Rs. 4950/- and thereby defrauded the Bank. Though the inquiry officer was appointed but none was appointed as presenting officer to present the case on behalf of the Bank.
5. The petitioner submitted his show cause and appeared before the Inquiry Officer on 9.10.96 and made a prayer that Sri L.R Singh and Sri Amrendra Sharan, Advocates of the Supreme Court may be summoned to be examined. On 9.10.96 the proceeding could not be concluded and the petitioner was informed by the Inquiry Officer that the next date will be communicated to him. However, instead of intimating the next date the Inquiry Officer, it is stated, submitted his enquiry report to Respondent no. 2 exonerating the petitioner from charge no. 1 but held the petitioner guilty of defalcating of Rs. 4950/-. On the basis of the said enquiry report the Respondent no. 2 took a decision to dismiss the employee and issued second show cause to the petitioner on 18.10.96 The petitioner was given a personal hearing by the Administrator and thereafter considering the facts alleged by the petitioner and finding of the Inquiry Officer dismissed the petitioner by the impugned order dated 5.11.96
6. Mr. Shahi, learned counsel for the petitioner, has challenged the impugned order as well as the entire departmental proceedings on the following grounds:
(i) the petitioner being in the cadre of subordinate staff, his disciplinary authority is the Managing Director of the Bank and not the Administrator in view of Rule 23(ii) of the Service Rules of the Bank, (ii) the right of appeal was taken away as the Administrator being the appellate authority has passed the impugned order and (iii) the entire departmental enquiry is vitiated for not examining the witnesses for proving charge no. 2 against the petitioner and though on first date the inquiry Officer heard on the point on first charge, no hearing was given on the second charge as no further date was communicated to the petitioner as assured. As the petitioner was not given an opportunity to put his defence in regard to second charge he could not produce the letter of Mr. L.R Singh, Advocate, written to the Investigating Officer. The whole departmental proceeding was tained with bias of erstwhile Managing Director, Mr. Jha, as on the complaint made by the petitioner he was put under suspension by the competent authority. Mr. Shahi, learned counsel for the petitioner, has relied on the following decisions;
7. 1995 (2) SCC 474 and 1996 (2) All PLR 849.
8. 6A. Mr. Mahto, learned senior counsel for the Bank, countering the argument of Mr. Shahi contends that at this stage the petitioner cannot be allowed to raise the objection that the impugned order was passed by the Administrator and not the Managing Director, because in his show cause he himself requested the matter to be decided either by the Managing Director or the Administrator. In support of his contention he has referred to second show cause filed by the petitioner as contained in Annexure-Q. In the circumstances, learned counsel contends that the petitioner has waived his right and estopped from challenging that the Administrator had no jurisdiction to pass the impugned order.
9. Similarly referring to the order of the Administrator (Annexure-R) it is contended, that the petitioner himself signed the proceeding before the Administrator on 5.11.96 Lastly, Mr. Mahto submits that the scope of judicial review by the High Court in these types of cases are very limited and when the petitioner has been found guilty by the Inquiry Officer and the disciplinary authority, agreeing with the enquiry report passed the impugned order. In support of his contention learned counsel has relied on the following decisions:
10. 1964 SC 1300; (1990) 1 SCC 732; 1994 Guj 167; 1955 SC 70; 1970 SC 1263 and 1982 SC 1402.
11. To appreciate the rival contentions of the parties it may be useful to refer to certain provisions of Service Rules of the Respondent-Bank. Rule 23(ii) reads thus;
23 (JJ). Competent Authority for disciplinary proceedings; Authorities who shall have power to inflict punishment after departmental proceedings are as follows:—
(i) For Subordinate staff and Assistant-Managing Director.
(ii) Officers- … Board.
Managing Director may impose minor punishment in case of subordinate staff and Assistant but in case of officers, Board's consent may be obtained.
24. Appeals: An appeal against the departmental action can be preferred only after the proceedings are disposed of by authority as laid down in these rules. All appeals must be filed within 3 weeks of the receipt of orders. The appellate authorities are as under—
(i) For General Manager and other officers. … Registrar, Co-operative Societies, Bihar, Patna. (ii) For Assistant and Subordinate staff. … Managing Committee.
12. There shall be no second appeal.
13. Similarly the powers of the Managing Director of the Bank is provided in bye-laws 49(E) which reads thus;
Managing Director and General Manager:— “There shall be a Managing Director of the Bank who shall be of the cadre of Co-operative Service and shall be of the rank of Assistant Registrar/Deputy Registrar Co-operative Societies. There shall also be a General Manager of the Bank to assist the Managing Director who shall normally be of the rank of the Assistant Registrar, Co-operative Societies. Both the officers shall be appointed and deputed to the Bank by the Government of Bihar on such terms and conditions as it may think fit.
The General Manager shall exercise powers conferred on him by the Board of Directors or delegated to him by the Managing Director.
(ii) The Managing Director shall exercise control and supervisions over the affairs of the Bank and the work of all officers subject to the general control of the Board of Directors.
(iii) The Managing Director shall:—
(a) have custody of all the properties of the Bank.
(b) be the officer to sue or be sued on behalf of the Bank (all the bonds in favour of the Central Bank shall be in his name by official designation and all bends by the Central Bank shall be executed by him).
(c) have powers for and on behalf of the Central Bank to operate the Bank's accounts and subject to such directions and limits as may be laid down by the Board or the Working Committee or Local Advisory Committee to buy, sell, pledge, endorse and transfer, promissory notes, government and other securities standing in the name of or held by the Central Bank to sign, endorse and negotiate cheques and other negotiable instruments, and to sign all receipts of all accounts and other documents connected with the business of the Central Bank.
(d) have also power subject to directing of the Board to accept deposits of all kinds and to carry on general banking transactions within the framework of these bye-laws;
(e) examine loan applications and place them before the Working and Advisory Committee for its consideration (the working or Advisory Committee shall not consider any such application without his recommendations):
(f) examine and review the progress made in the collection of instalments of overdues of Central Bank and place proposal for taking award before the Board:
(g) arrange for the holding of the meetings of the Working or Advisory Committee, the Board and the General Body in such manner as may be prescribed;
(h) Deleted— “Advisory”.
(i) maintain such accounts and registers as are prescribed under rule framed under the Act and by the Registrar, Co-operative Societies or these byelaws; and
(j) have the power to sanction leave, annual increment, transfer, suspend and inflict punishment short of dismissal, discharge, removal and reduction in rank in respect of staff other than enumerated in item (iv):
(k) control and supervise the work of the paid employees of the Bank and write their permanent character roll;
(l) inspection the officers of the Bank and keep a careful watch over money transactions;
(m) be responsible for timely submission of regular reports and returns called for by the Reserve Bank of India, the NABARD the Bihar State Co-operative Bank and the Co-operative Department.
(n) sign on behalf of the Bank and conduct its correspondence.
(o) be responsible for maintaining proper accounts of all money and other properties and transactions of the Bank;
(iv) appoint, remove and exercise disciplinary control over all employees except the Development Officer, Assistant Manager, Loan Officer and Chief Accountant.”
14. It is not disputed by the Respondents that the petitioner was holding the post of Substantive staff. If this be the case then, according to the aforesaid rules, the Managing Director of the Bank is the disciplinary authority of the petitioner and appeal lies before the Managing Committee against his order. It is an admitted position that the Managing Committee of the Bank has been superseded since 1988 and in terms of the provisions of the Act the authority of such committee is vested with the Administrator appointed by the State Government. In such circumstances, if the Managing Director would have passed the impugned order against the petitioner as a disciplinary authority, the petitioner could have availed of the statutory remedy by way of appeal before the Administrator.
15. It is well settled that when the power is conferred on a particular officer or the authority under statutory regulations framed under the Act, a mere administrative order does not and cannot run down the power which already vests in the officer on the strength of the statutory provision.
16. In the case of Surjit Ghosh v. The Chairman and Managing Director, United Commercial Bank, reported in 1995 (2) SCC 474, on somewhat similar circumstances, their lordships held that the order of dismissal passed by the Bank suffers from an inherent defect as the impugned order was passed by the Deputy General Manager, though the Divisional Manager or A.G.M (Personnel) was the disciplinary authority of the appellant.
17. The point which remains to be considered is as to whether by mere request made by the petitioner to the Managing Director, the Administrator could have acted as a disciplinary authority. In his second show cause which was addressed to the Managing Director of the Bank, the petitioner after detailing the facts requested his disciplinary authority, that is, the Managing Director to change the Inquiry Officer and to conduct a fresh enquiry. From the perusal of Annexure-Q, the second show cause, it appears that the petitioner made a grievance against the Inquiry Officer for not having complied with the principle of natural justice by providing him adequate opportunity to defend his case in respect of charge no. 2 by producing some documents and examining some witnesses. It was under this circumstance, the petitioner requested the Managing Director to consider his demand for changing the Inquiry Officer and thereafter to take a final decision against him regarding allegations made.
18. This show cause notice as a matter of fact only reveals that the petitioner was aggrieved by the manner in which the Inquiry Officer had conducted the departmental enquiry and for this reason alone the petitioner made a request to the Managing Director to consider his show cause for appointing another Inquiry Officer. He has categorically requested that after conducting a fresh enquiry by another Inquiry Officer final order may be passed by the disciplinary authority. It appears that the petitioner in this context requested the Managing Director to look into the entire case either by himself or by the Administrator on whom the petitioner had every faith.
19. In the circumstances, it cannot be said that the petitioner ever requested the Administrator to act as a disciplinary authority, more so when it was against the statutory provision. Secondly, even assuming that the petitioner did make such request but in all fairness the Managing Director ought to have considered the second show cause himself. Since the action against the petitioner was taken by the Administrator, although the Managing Director was available for taking the action, the petitioner was denied the right of appeal. In this circumstance, in my view, the order of dismissal passed by the Bank suffers from an inherent defect. In the case of Surjit Ghosh (supra) their lordships, inter alia, held that when there is a provision of appeal against the order of disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the power of disciplinary authority in a given case, results in discrimination against the employee concerned. In the case of Dhirendra Nath Gorai v. Sudhir Chandra Ghosh reported in AIR 1964 SC 1300, it is held that a waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction cannot be waived, for consent cannot give a court jurisdiction where there is none. Even if there is in herent jurisdiction, certain provisions cannot be waived. In this context the observation of the Supreme Court in the case of Surjit Ghosh (supra) may be usefully noticed;
“An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. This is particularly so, when there are no guidelines in the rules/regulations as to when the higher authority or the appellate authority should exercise the powers of the disciplinary authority. The higher or appellate authority may chose to exercise the power of the disciplinary authority in some cases while not doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employee and employee. Surely, such a situation cannot favour of legality. Hence we are of the view that the contention advanced on behalf of the respondent-Bank that when an appellate authority chooses to exercise the power of disciplinary authority, it should be held that there is no right of appeal provided under the Regulations cannot be accepted.”
20. Relying on the said observation this Court in the case of Padyuman Prasad v. The Bihar State Financial Corporation, reported in (1996) 2 All PLR 849, under similar circumstances, quashed the order of dismissal. The decisions relied on by the learned counsel for the Respondents, in the facts and circumstances, in my view, are not applicable because all the decisions referred to above deal with the proposition of law raised in the facts and circumstanes of those cases.
21. In the result, this Court is satisfied that the impugned order of dismissal cannot be sustained because the same suffers from an inherent defect. This writ application is, accordingly, allowed and the order of dismissal dated 5.11.96 as contained in Annexure-1 is quashed.
Comments