IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12331 of 2005 Devaki Nandan Joshi SON OF LATE BISHNU DUTT JOSHI RESIDENT OF BLOCK- E 2996, P.S. TAL KATORA, RAJAJIPURAM, LUCKNOW (U.P.) Versus The Tamil Nadu Handloom Weavers’ Cooperative Society Limited and others ---------------------------------- For the Petitioner :- M/S. Pushkar Narain Shahi, Sr. Advocate, M/S. Ritesh Kumar No. 1 and Patanjali Rishi. For the Respondents :- M/S. Ajay Kumar Sinha and Manju Jha. ----- 6 22/12/2011 Petitioner was a Branch Manager posted in Ganga Show Room located at Patna under the respondent Tamil Nadu Handloom Weavers’ Co-operative Society Limited (hereinafter referred to as the Society). On a review of the functioning of the said Branch the superior authorities found short-fall in the cash sale proceeds which emerged from the daily transaction statement no. 5028 dated 16.01.1992 as well as from the stock list reflected on 31.01.1992. Prima facie, the respondents authorities came to an opinion that the present petitioner Mr. D. N. Joshi, Manager and the sales staff Mr. J. Raj - 2 - Kumar were jointly and severally responsible for accounting of cash sale proceeds, shortage in stock or misappropriation of the funds. Petitioner was subjected to a disciplinary proceeding. Enquiry was handed over to one Mr. J. Buther, who is said to be a lawyer by profession. Petitioner participated in the enquiry, evidences led which culminated into an enquiry report which is annexed as Annexure-3. The enquiry officer did come to a considered opinion that the charge of breach of trust stood proved against both Mr. Joshi and Mr. J. Raj Kumar. The enquiry report was submitted to the disciplinary authority which after due notice imposed punishment of dismissal vide order dated 28.11.1994 which is annexure-4 to the writ application. Since the appellate authority disposed of the appeal of the petitioner only on 8.12.2004 (annexure-10), this writ application has been filed challenging not only the order of the disciplinary authority but even the appellate authority. This long protracted proceeding in a way has taken its toll because the petitioner has reached his age of superannuation and is living in Lucknow awaiting adjudication or decision of this Court on this - 3 - issue. The main thrust of the argument on behalf of the petitioner against the order of punishment is that the decisions are vitiated for breach of compliance of the bye-laws which have been notified by the Society which is like a service regulation for the Co-optex staff. The breach which is being talked about is clause 9.1 which is reproduced here-in-below for ready reference :- “9.1 – The authority competent to impose the penalty may if circumstances permit, hold an enquiry into the charge or charges or cause such an enquiry to be held by an officer/Staff superior to the person against whom the action is proposed to be taken for the purpose or ascertaining the truth or otherwise of the charge or charges.” The alternative submission which has been made is that there are certain serious flaws in the manner in which the enquiry was conducted, evidence was taken and all that aspects were raised by the petitioner in his memorandum of appeal before the appellate authority but the appellate authority in a mechanical fashion with a kind of non-speaking order has rejected the appeal upholding the order of punishment passed by the disciplinary authority. Both these aspects, according to - 4 - the petitioner, are fatal for the orders in question and they ought to be set aside, if not declared illegal. To expand the first proposition in relation to breach of clause 9.1, contention of the learned counsel is that the enquiry ought to have been held by an officer or staff superior to the person against whom action was proposed. The clause does not envisage outsourcing of enquiry to any other agency. Since in the present case enquiry was not held by any of the employee of the respondent Society but was held by a lawyer, therefore, breach of clause 9.1 of the said bye-laws has been committed going to the root of the matter. If this point is sustained, nothing remains in the order of punishment or the order of affirmance passed in appeal. The other aspect about the quality of the order rendered by the appellate authority is also required to be looked into whether there is independent application of mind by the appellate authority or it is a mechanical endorsement of the decision of the disciplinary authority. Stand of the learned counsel representing the respondent Society is that there is a jurisdictional question as to the maintainability of the writ application - 5 - as the proceeding was conducted in Delhi and even the order of punishment has come to be passed beyond the territorial jurisdiction of Patna High Court. Such a submission, however, is fit to be rejected because part of the cause of action arose during the posting of the petitioner at Patna in relation to performance of his duty at Patna as the Manager of the show room located at Patna. The set of charges originated for the conduct of the petitioner while being posted at Patna. The jurisdictional objection, therefore, is required to be negated. The other submission on behalf of the respondents which has been made on the basis of the principle which has been laid down in the case of State Bank of Patiala and others Vs. S. K. Sharma reported in (1996) 3 S.C.C., 364 is with regard to the consequences of any deviation from following the service regulation in matter of conduct of a disciplinary proceeding. According to the respondents there was similarity of facts and the Hon’ble Apex Court after taking note of various judicial pronouncements on the issue has summarized the principle in paragraph 33 of the - 6 - said decision. Of the various summaries, one relevant for our purposes is in sub-paragraph (4)(a) & (b) of paragraph 33 which is also reproduced here-in-below:- “(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employees. (b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz. test of prejudice or the test of fair hearing, as it may be called. “ If this is the view which the Hon’ble Supreme Court has taken in such matter, then the primary submission made on behalf of the petitioner with regard - 7 - to the proceeding being vitiated due to violation of clause 9.1 of the bye-laws has no legs to stand. The Court is inclined to go by the view expressed by the Hon’ble Apex Court as well as the enunciation made at the Bar by the learned counsel representing the respondents. Here is a petitioner who subjected himself to the enquiry, participated in the same through and through and only when the order of punishment has come to visit him that he is raising such an objection when there is no substantive evidence to show that the petitioner ever resisted submitting to the jurisdiction of the outsourced enquiry officer, when a breach was being committed by the respondents, specially of clause 9.1 of the bye-laws. This point, therefore, is decided against the petitioner. Coming to the second aspect with regard to the quality and validity of the order passed by the appellate authority, there may be an occasion for this Court to consider that aspect because the Court has gone through the order passed by the appellate authority. First part of the order of the appellate authority is a summary of the background under which the order of punishment has - 8 - come to be passed and the second part of the order is basically affirmance of the findings given by the disciplinary authority. There is no reflection in the said order that any aspect of the issues which had been raised in the appeal, which is quite detailed, has even been looked into by the appellate authority. This compels the Court to come to the conclusion that it is a case of mechanical endorsement of the order of the disciplinary authority by the appellate authority. He is bound to exercise his independent mind by virtue of the position he was holding because the appellate forum is also a substantive forum even though it may be in house forum created under some statute, rule or bye-laws. If there are abrasions committed by the disciplinary authority, it is supposed to be corrected by the appellate authority. Since the Court does not find that performance of duty by the appellate authority, there may be an occasion atleast to interfere with the order passed in appeal contained in annexure-10. This writ application is allowed to the extent that annexure-10 dated 8.12.2004 stands quashed. Matter is remitted back to the appellate authority to re-consider the - 9 - matter by taking into consideration the grounds which have been urged by the petitioner in his memorandum of appeal within a period of three months from the date of receipt/production of a copy of this order. AMIN/ (Ajay Kumar Tripathi, J.)