L.MOHAPATRA, J & S.K.MISHRA, J. W.P.(C ) NOS.7282, 22771 OF 2010 (Decided on 18.03.2011) HARAPRASAD MOHAPATRA …….. Petitioner. .Vrs. BANK OF INDIA & ORS. ……. Opp.Parties. CONSTITUTION OF INDIA, 1950 – ART.226. For Petitioner - M/s. Ashok Kumar Mohapatra, A.K.Mohapatra, N.C.Rout & A.K.Padhi. For Opp.Parties - M/s. K.K. Jena & D.Mohanty. Nos. 1 to 4 S.K.MISHRA, J. The petitioner, in W.P.(C) No.7282 of 2010, assails the initiation of the proceeding and charge, the findings of the Enquiry Officer and the Disciplinary Authority. He further prays to quash Annexure-3, which happens to be the show cause notice, issued by the Disciplinary Authority to the petitioner on the proposed substitution of the findings of the Enquiry Officer with respect to Charge No.II. In W.P. (C) No.22771 of 2010 the petitioner assails the order of suspension. 2. The case of the petitioner, bereft of unnecessary details, is that he is a staff in the Bank of India and has completed twenty five years of continuous service. While he was continuing as a staff clerk in Puri Branch, he received the charge sheet dated 24.4.2009 consisting of four charges. He further alleges that the charge sheet was framed with malafide intention and official bias with a revengeful attitude because of the petitioner’s union activities. The petitioner further pleads that all the four charges are vague, unspecific and are not definite which is apparent from the record of the enquiry and the document submitted by the opposite parties. The petitioner further pleads that because of non-availability of the required number of staff in Puri Branch, with the full knowledge of the Branch Manager, the sub- ordinate staff, Bharat Kumar Panda, used to sit in the cash counter and work as a clerical staff in the Bank of India, Puri Branch before 20.6.2008 and after 20.6.2008. There was a preliminary enquiry in the Bank of India, Puri Branch, behind the back of the petitioner, report of which was not supplied to the petitioner along with the charge sheet. After receipt of the charge sheet, the petitioner denied the charges and thereafter Sri D.K.Meher, Staff Chief Manager, Bank of India, Zonal Office, was appointed as an Enquiry Officer to enquire into the charges. Thereafter, it is further alleged that the enquiry was conducted in the most illegal manner without affording reasonable opportunity of hearing to the petitioner. In course of enquiry the Management submitted eight management witnesses, out of which seven management witnesses were examined, and thirty two documents were exhibited. From the defence side, seven witnesses were examined and seventeen documents were exhibited. After completion of the enquiry, the Enquiry Officer submitted report to the Disciplinary Authority stating that out of four charges, three are established against the petitioner. The Disciplinary Authority after receiving the enquiry report issued a notice to the petitioner on 25.3.2010, which was received by him on 30.3.2010, stating his disagreement with the Enquiry Officer’s report. The petitioner was intimated that all the charges were considered to be proved. The petitioner alleges that non-examination of Pramod Kumar Mohanty is fatal to the case of the Management. Moreover, it is contended that no loss has been caused to the Bank and therefore the report submitted by the Enquiry Officer is wrong. On such pleadings the petitioner prayed to quash the charge and the findings of the Enquiry Officer and the Disciplinary Authority. 3. The opposite parties appeared and filed their counter affidavit. It is pleaded that the petitioner is a staff clerk of the Bank of India, Puri Branch. He has been placed under suspension since 29.12.2009 for having misappropriating the customer’s money/ public money to the tune of Rs.1,000/-. He has also been charged by the Disciplinary Authority vide charge sheet dated 24.4.2009. The disciplinary proceeding against the delinquent employee/petitioner in accordance with the procedure laid down in the bipartite settlement, after a proper enquiry, in which the petitioner and his defence representative actively participated. The Disciplinary Authority after having considered the representation of the petitioner on the findings of the Enquiry Officer vis-à-vis on the substituted findings, issued a show cause notice for inflicting punishment and proposing therein a gross punishment of compulsory retirement. It is further pleaded that at this stage the petitioner has prayed the Court to quash the proceeding and charge as well as the findings of the Enquiry Officer and the Disciplinary Authority. The opposite parties further plead that Annexure-3 is the notice to show cause, issued by the Disciplinary Authority, to the petitioner as to why the findings of the Enquiry Officer dated 19.12.2009 relating to Charge No.II shall not be substituted by the Disciplinary Authority. In the said show cause notice, the petitioner was advised to submit his reply/ representation in writing to the Disciplinary Authority within seven days of receipt of memorandum with regard to the Enquiry Officer’s findings and the tentative reasoning of the Disciplinary Authority proposing substitution thereto in respect of Charge No.II. The opposite parties further plead that a mere notice of show cause or charge sheet does not infringe the right of anyone. Thus, the opposite parties challenged the maintainability of the writ petition at this stage. 4. The opposite parties further plead that the petitioner has not been able to demonstrate even, prima facie, any infringement of his legal or constitutional right or any error of law apparent on the face of the record, which can entitle the petitioner to invoke the jurisdiction of the Court to interfere in the matter at this stage. It is further pleaded that the petitioner has no cause of action to file this writ petition and the same is premature. It is further pleaded that the petitioner having participated in the enquiry, cannot challenge the charges framed against him on the ground that the same were vague, since he has waived his right to challenge the charge just before submission of explanation or before participating in the enquiry. He can challenge the same after passing of the final order of punishment, if any, by the Disciplinary Authority. On such plea, the opposite parties prayed that the writ petition should be dismissed. 5. The petitioner filed a rejoinder affidavit wherein he took a new plea inasmuch as that the petitioner’s preliminary enquiry memorandum dated 02.9.2008, vide Annexure- C(of the counter affidavit filed by the opposite parties) for explanation was issued by 2 Sri D.K.Meher, the Chief Manager, i.e. opposite party no.4, to the petitioner and the same D.K.Meher was appointed as the Enquiry Officer to enquire into the charges, vide Annexure-1, against the petitioner. The appointment of Sri Meher as Enquiry Officer, it is further pleaded, is illegal and void as violative of principles of natural justice and the enquiry by Sri D.K.Meher, the Chief Manager, and the enquiry report submitted by him, vide Annexure-2, is illegal and one cannot be the judge of his own case. Therefore, the enquiry report, Annexure-2, is a nullity. 6. In course of hearing, learned counsel for the petitioner submitted that Sri D.K.Meher, who had conducted the preliminary enquiry, has been appointed as the Enquiry Officer in this case and, therefore, it violates the principles of natural justice. Therefore, the report submitted by him is void ab initio. Secondly, learned counsel for the petitioner submits that the charges levelled against the petitioner are all vague and, therefore, the same may be quashed. Thirdly, learned counsel for the petitioner submitted that Annexure-3 has been issued without giving any opportunity to the petitioner to submit his explanation to the proposed substitution of findings by the Disciplinary Authority. Hence, it is argued that the charges should be quashed and the reports submitted by the Enquiry Officer and the Annexure-3, i.e. the findings recorded by the Disciplinary Authority, should be quashed. 7. Learned counsel for the opposite parties submitted that the petitioner having subjected himself to the jurisdiction of the Enquiry Officer cannot challenge the report on the ground of violation of natural justice. It is further submitted that the petitioner’s writ petition is against the show cause notice issued by the Disciplinary Authority for a proposed substitution of finding as the disciplinary proceeding has not come to a logical end, the writ petition is not maintainable. 8. It is undisputed that the principles nemo debt esse judex in propria causa is applicable to all cases of this nature. Simply stated the principles means no man shall be the judge of his own case. Therefore, the question remains to be seen is whether opposite party no.4, Sri D.K.Meher, has in fact conducted a preliminary enquiry and issued Annexure-C and thus became the complainant of the case. 9. Mr. Mohapatra, learned counsel for the petitioner, relied upon Annexure-2, wherein it has been referred by the Enquiry Officer, that preliminary hearing was scheduled on 14.5.2009 and notice was served to the P.O. and the charge sheeted employee. It is emphatically submitted that the Enquiry Officer, therefore, held a preliminary investigation. It is further brought to the notice of this Court a memorandum issued by Sri D.K.Meher, the Chief Manager, on 02.9.2008, vide Annexure-C, to the present petitioner indicating the act of omission and commission alleged against him. In the said letter, the Chief Manager further called for an explanation from the petitioner with respect to the allegations made therein. Thus, it is contended by the learned counsel for the petitioner that the Enquiry Officer himself was the complainant. It appears from Annexure-2 that on 24.4.2009, opposite party no.4, the Chief Manager, was appointed as the Enquiry Officer. However, the memorandum was issued much prior to that i.e., on 02.9.2008. Thereafter a preliminary enquiry was held on 14.5.2009. Thus it cannot be said that the preliminary enquiry as held on 14.5.2009 was prior to issuing of the memo or charge basing on such enquiry conducted by Sri D.K.Meher. Furthermore, 3 from the nature of allegations made against the present petitioner, it is borne out that the Chief Manager is not the complainant of the case. He has only issued the memorandum on 02.9.2008 in his official capacity. Thus, the contentions raised by learned counsel for the petitioner on this score is not tenable. 10. The next contention, which the petitioner alleges, is that the charges framed against him are all vague and baseless. This is a factual aspect of the case and the same cannot be examined by the Court in exercise of its jurisdiction under Article 226 of the Constitution of India. This Court not being a Court of appeal refrains from scrutinizing the materials placed before it to find out whether the charges farmed are specific or vague. Such an exercise is to be undertaken by the appellate forum for that reason and we do not see any reason to usurp the jurisdiction of the appellate forum on this score. 11. The third contention raised by the learned counsel for the petitioner is that before issuing Annexure-3, which according to the learned counsel for the petitioner is the finding recorded by the Disciplinary Authority , a reasonable opportunity should have been given to the petitioner on the issue of proposed substitution of the findings recorded by the Enquiry Officer. However, a careful examination of Annexure-3 reveals that at paragraph-iii of page-2, the Disciplinary Authority has enumerated the tentative reasoning for differing with the Enquiry Officer’s observations/findings. At paragraph-3 of page-4 the Disciplinary Authority has clearly intimated the petitioner that on the basis of the reasoning given therein the petitioner was advised to show cause as to why the enquiry findings dated 19.12.2009 relating to Charge-II should not be substituted by the Disciplinary Authority. A copy of the said enquiry findings dated 19.12.2009 was also enclosed thereto and he was called upon to submit his reply/representation in writing with regard to the findings of the E.O. and the tentative reasoning of the Disciplinary Authority proposing substitution thereto in respect of Charge-II. Thus, in actuality Annexure-3 is a notice of show cause issued to the petitioner giving him reasonable opportunity of filing representation as to why the findings of the Enquiry Officer with regard to Charge-II should not be substituted by the Disciplinary Authority. Therefore, it does not violate the principles of natural justice. 12. In course of hearing, learned counsel for the opposite parties has contended that the writ petition is not maintainable as it seeks to quash the show cause notice. In the case of R. Viswanath Pillai v. State of Kerala and others; AIR 2004 SUPREME COURT 1469, the Hon’ble Apex Court has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. It is further observed by the Hon’ble Supreme Court that unless the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. 4 13. A similar view has been taken in the case of Union of India & Anr. V. Kunisetty Satyanarayana; AIR 2007 SUPREME COURT 906, wherein the Hon’ble Supreme Court held that ordinarily no writ lies against a charge sheet or show cause notice. The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or charge sheet is that at that stage the writ petition may be held to be premature. A mere charge sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. The Hon’ble Supreme Court further held it is well settled that a writ lies when some right of any party is infringed. A mere show cause notice or charge sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. No doubt, in some very rare and exceptional cases the High Court can quash a charge sheet or show cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. 14. Applying these principles to the case in hand, we are of the view that this is not a case where the charge has been framed or a show cause notice has been issued by the authority, who has no jurisdiction nor the same can be termed as wholly illegal. The petitioner has the liberty to raise all such issues, which have been taken in this writ petition before the Disciplinary Authority and in such case the Disciplinary Authority is competent to take appropriate decision in accordance with law. 15. Since we have come to the conclusion that the grounds raised in original writ challenging the initiation of proceeding, issuing notices etc. are not tenable, the relief claimed for setting aside the order of suspension is also without any merit. Thus on such observations, we find no merit in the writ petitions filed by the petitioner and, therefore, we dismiss the same being devoid of any merit. Writ petition dismissed. 5