IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8945 of 2002 BINDA PRASAD SINGH, SON OF LATE JAGANNATH SINGH RESIDENT OF VILLAGE MADHUBANI, P.O. MADHUBANI, P.S. SANGRAMPUR,(GOVINDGANJ) DISTRICT EAST CHAMPARAN. Versus 1. THE STATE OF BIHAR THROUGH REGISTRAR COOPERATIVE SOCIETIES, BIHAR, PATNA. 2. THE REGISTRAR, CO-OPERATIVE SOCIETIES, BIHAR, PATNA. 3. THE ADMINISTRATOR, BIHAR STATE CO- OPERATIVE LAND DEVELOPMENT BANK LTD. BUDH MARG, PATNA. 4. THE DEPUTY MANAGING DIRECTOR (ADMINISTRATION), BIHAR STATE CO- OPERATIVE LAND DEVELOPMENT BANK LTD., BUDH MARG, PATNA. For the Petitioner : Mr. Suresh Mishra, advocate. For the Bank : Mr. Rajesh Pd. Choudhary, advocate. ----------- 06. 08.09.2010 Petitioner at the relevant time held the post of Senior Field Officer officiated as Incharge Branch Manager of Simaria Branch of the Bihar State Cooperative Land Development Bank Limited(hereinafter referred to as the Bank). He is aggrieved by the order of the Administrator of the Bank bearing Memo No.10416 dated 7.9.1999, Annexure-21, whereunder he has been dismissed from service 2 of the Bank holding him guilty of the charges levelled against him pursuant to a departmental proceeding. He is also aggrieved by the order of the Registrar, Cooperative Society bearing Memo No.125/R.L. dated 9.4.2002, Annexure- 23, whereunder Service Appeal No.266 of 1999 filed against order dated 7.9.1999, Annexure-21 has been rejected. While the petitioner served as Incharge Branch Manager, Simaria Branch a fire broke out in the branch on 21.3.1987 around 3.30. a.m., the occurrence was reported to Simaria police station on 21.3.1987 at 5 a.m. by the adhoc accountant serving the branch and Simaria P.S.Case No.32 of 1987 dated 21.3.1987 was registered for the offence under Section-436, 379 I.P.C. against unknown. First Information Report is contained in Annexure-1 to this application. During investigation of Simaria P.S. Case No.32 of 1987 petitioner was placed under suspension by the Managing Director of the Bank under office order bearing memo No.7115 dated 6.4.1987, Annexure-3 3 fixing his headquarter in the regional office of the Bank at Hazaribagh. On the representation of the petitioner dated 21.4.1987, Annexure-4 the headquarter of the petitioner was shifted under office order bearing No.8395 dated 26.5.1987 from Hazaribagh regional office to the head office of the Bank at Patna. Police having investigated Simaria P.S.Case No.32 of 1987 registered for the incident of fire in the branch in the night of 21.3.1987 submitted final form stating occurrence true but no clue, which was accepted by the Additional Chief Judicial Magistrate, Chatra under order dated 28.11.1989, Annexure-2B. In the light of the findings of the Investigating Agency petitioner submitted his further representation and on the representation of the petitioner his suspension was revoked by the Administrator of the Bank under office order bearing Memo No.8469 dated 24.2.1992, Annexure-5 observing that the decision in regard to payment of arrears of salary to the petitioner for the suspension 4 period shall be taken later. After reinstatement petitioner requested the authorities of the Bank for arrears of salary for the suspension period but it appears the request was not considered and petitioner filed C.W.J.C.No.1050 of 1995(R) before the Ranchi Bench of this Court. Ranchi Bench of this Court under interim order dated 28.7.1995, Annexure-6 directed the respondents to consider the representation of the petitioner for payment of arrears of salary and allowance for the suspension period i.e. 6.4.1987-24.2.1992 as also for promotion in the selection grade. 2. In the light of the interim order of the Ranchi Bench petitioner submitted his representation bearing letter No.59 dated 7.8.1995, Annexure-6A requesting the authorities of the Bank to pay him arrears of salary for the suspension period i.e. 6.4.1987 to 24.2.1992 as also to consider his case for promotion, but the authorities of the Bank without considering the representation of the 5 petitioner proceeded to serve on him show cause notice dated 2.9.1995, Annexure-7 alleging that he absented himself from Simaria branch of the Bank from 16.3.1987 and that on account of his lack of control and supervision fire broke out in the branch for which he was also placed under suspension under office order dated 6.4.1987, Annexure-3 but he did not join the headquarter fixed during the period of suspension in the regional office of the Bank at Hazaribagh and submitted his joining on 21.4.1987 in the head office at Patna. It was also alleged in the show cause notice that while proceeding on leave petitioner did not make proper security arrangement in the branch as also failed to fix the roster of the night guards. Had he made proper security arrangement fire may not have broken in the branch which broke out on account of his negligence. It was also stated in the show cause that during inspection of the branch after the incident of fire hardly any remains of furniture etc. was available but 6 from his residence which is situate adjoining the branch petitioner had removed all his belongings while he was proceeding on unauthorized absence, as such, it appears that petitioner had prior information about the branch being subjected to mischief of fire. In paragraph-5 of the notice it was alleged that he did not cooperate in the investigation of the case, although was the controlling officer of the branch and should have come to the branch after the occurrence for assisting the investigation. In paragraph-6 of the notice it is alleged that relationship of petitioner with other employees of the branch was not cordial as he was in the habit of using foul language and threatening the employees serving the branch of lodging case against them as also was regularly marking them absent in the attendance register and stopping their salary. In paragraph-7 of the notice it is alleged that petitioner had taken his residence in the same premises in which the branch was situate and the carpet area of the 7 branch and his residence was almost same but in collusion with the landlord, to harm the financial interest of the Bank he was paying Rs.450/- per month as the rent of the branch premises and Rs.150/- per month for the residence and thereby was causing financial loss to the Bank. In paragraph-8 of the notice petitioner is alleged to have violated the instructions of the superior officers of the Bank contained in letter dated 8.5.1989, 4.10.1986 and 23.12.1986. In paragraph-9 of the notice it is alleged that petitioner while proceeding on unauthorized absence also took the keys of the branch with him and did not come to the branch after the occurrence but sent the keys of the branch through a non-departmental person to the Block Development Officer, Simaria and not to the controlling officer, as such, it appears petitioner had information about the incident of fire from before. In paragraph-10 of the notice it is alleged that from perusal of the deposit-cum- expenditure register it appears that a sum of 8 Rs.60/- is due from the petitioner to the Simaria branch of the Bank. In paragraph-11 and 12 of the notice it is concluded that in view of the allegations contained in paragraphs-1 to 10 it appears that petitioner is an irresponsible, indisciplined and careless employee of the Bank who is guilty of the charge of unauthorized absence as also lacks etiquette and good behaviour and that he did not cooperate in the investigation of the criminal case, as such, he was aware of mischief of fire from before. Petitioner was called upon to submit his reply to the allegations contained in notice within 15 days, failing which appropriate order shall be passed as per the understanding of the authorities of the Bank. 3. In response to the show cause notice dated 2.9.1995, Annexure-7 petitioner filed his reply contained in letter No.81 dated 30.9.1995, Annexure-8 stating that on 16.3.1987 he proceeded on leave after informing the District Manager, Hazaribagh and remained 9 on leave until 15.4.1987 but during the leave period itself was placed under suspension under memo dated 6.4.1987 on false, vague charges of misconduct, although no chargesheet was ever given to him and that his headquarter was fixed at Patna by the authorities of the Bank under order bearing Memo No.8395 dated 26.5.1987. He further stated in paragraph-5 of the show cause reply that as no chargesheet was given to him about the incident of fire even after passage of 5 years, on his representation the authorities of the Bank revoked his suspension under order dated 24.2.1992, Annexure-5 with observation that decision for payment of his salary for the suspension period shall be taken later. It was further stated in the show cause reply that when no decision was taken in regard to payment of arrears of salary of the petitioner for the suspension period he filed C.W.J.C. No.1050 of 1995(R) for payment of arrears of salary for the suspension period. Ranchi Bench 10 of this Court under orders dated 28.7.1995 adjourned the case for two months directing the Administrator of the Bank to dispose of the representation of the petitioner for payment of arrears of salary for the suspension period. In the light of the interim order of the Ranchi Bench petitioner filed representation dated 7.8.1995 but instead of considering the representation of the petitioner he was served with show cause dated 2.9.1995, Annexure-7 for the same misconduct for which he was earlier suspended and the suspension was revoked under order dated 24.2.1992 without serving show cause/chargesheet. Petitioner also stated in his reply that as the matter has become stale and he has not been given any documents it is not possible for him to submit any explanation at this belated stage. 4. Having considered the show cause reply of the petitioner dated 30.9.1995, Annexure-8 the Administrator of the Bank passed order dated 27.10.1995, Annexure-9. In 11 paragraph-3 whereof the learned Administrator considered the statement of the petitioner that he proceeded on leave after informing the District Manager, Hazaribagh submitting application dated 14.3.1987 praying inter alia to grant him leave for the period between 14.3.1987-21.3.1987 and even if petitioner is allowed benefit of doubt for the period between 14.3.1987 to 21.3.1987 he having not filed any application for extension of leave for the period between 22.3.1987 till 14.4.1987 the charge of unauthorized absence is proved againt him. In paragraph-4 the Administrator found proved the charge that petitioner did not submit his joining during the period of suspension in compliance of the order dated 6.4.1987 in the regional office of the Bank at Hazaribagh but joined the headquarter at Patna on 21.4.1987, which is proved from perusal of his joining report itself. In paragraph-5 the Administrator found proved charge no.3 that petitioner did not make any arrangement for security of the 12 branch during the night by arranging the roster of night guards, had he made such arrangement the mischief of fire may not have taken place in the branch. Such finding was recorded by the Administrator as petitioner did not choose to controvert the charge no.3. In paragraph-6 the Administrator found that petitioner had removed all his belongings from his residence while he was proceeding on leave and thus he had prior information about the mischief of fire and he is held guilty of charge no.4 as he has not refuted the said charge. In paragraph-7 petitioner was held guilty of charge no.5 that after the mischief of fire he never visited the branch of the Bank as also did not assist the Investigating Agency in conducting the investigation. Such charge was also found proved on account of failure of the petitioner to refute the same. In paragraph-8 the Administrator found the petitioner guilty of charge no.6 that his relationship with other employees of the branch was not cordial as he 13 always threatened his subordinates that he shall lodge case against them and was also marking them absent in the attendance register. Such charge was also found proved as petitioner did not refute the same. In paragraph-9 the Administrator found charge no.7 also proved against the petitioner that he was paying excessive rent for the branch premises, such charge was also found proved as petitioner did not refute the same. In paragraph-10 charge no.8 that petitioner was not obeying instructions of the superior officers contained in letter dated 8.5.1989, 4.10.1986 and 23.12.1986 was also found proved for the failure of the petitioner to refute the same. In paragraph-11 the Administrator found charge no.9 proved against the petitioner that he is an irresponsible employee of the Bank who took the keys of the branch with him and sent the same on the date of occurrence through a non- departmental person. In paragraph-12 the Administrator granted the petitioner benefit of 14 doubt in regard to charge no.10 that petitioner is liable to pay Rs.60/- to the branch. The Administrator having proved charge nos.1 to 9 against the petitioner proceeded to punish him in paragraph-13 of the order dated 27.10.1995, Annexure-9 by withholding his two annual increment with cumulative effect with further direction that petitioner shall not be allowed any salary or leave for the period of unauthorized absence, suspension period beyond subsistence allowance as per Rules exceeding 75%. 5. Under orders dated 9.1.1996, Annexure-10 Ranchi Bench of this Court disposed of C.W.J.C. No.1050 of 1995(R) directing the Bank to pay the petitioner arrears of salary including allowance etc. for the period of suspension between 6.4.1987 till 24.2.1992 after deducting subsistence allowance already paid to the petitioner. In compliance of order dated 9.1.1996 passed in C.W.J.C. No.1050 of 1995(R), the Administrator of the Bank issued 15 office order bearing Memo No.13134 dated 14.2.1996, Annexure-11 releasing payment of arrears of salary and allowance to the petitioner for the period of suspension between 6.4.1987 till 24.2.1992. Such payment was released subject to the result of modification petition, which the Bank proposed to file against order dated 9.1.1996 passed in C.W.J.C.No.1050 of 1995(R). Petition to modify the order dated 9.1.1996 passed in C.W.J.C.No.1050 of 1995(R) was taken up for consideration on 12.7.1996 and was dismissed as not maintainable. The order dated 12.7.1996 is annexed with the petition as Annexure-12. 6. C.W.J.C. No.3519 of 1995(R) filed by the petitioner challenging the punishment order dated 27.10.1995, Annexure-9 was disposed of under orders dated 12.1.1998, Annexure-15, perusal of order dated 12.1.1998 indicates that thereunder order dated 27.10.1995, Annexure-9 herein and Annexure-1 in the said writ case was quashed, however with 16 liberty to the authorities of the Bank to proceed against the petitioner in accordance with law. 7. In compliance of the orders of the High Court dated 12.1.1998, Annexure-15 the order dated 27.10.1995, Annexure-9 was cancelled under office order bearing Memo No.17617 dated 20.2.1998, Annexure-16. Under office order bearing memo No.17779 dated 23.2.1998, Annexure-17 petitioner was served with another charge sheet dated 18.2.1998 recasting the earlier charges that during Holi holidays he left the headquarter and went to his permanent home(Motihari) without arranging for roster of the night guards in Simaria branch of the Bank and the branch suffered ablaze during the night of 20.3.1987 which was also reported in the newspaper, yet petitioner never thought it appropriate to come to the branch after the mischief of fire. Maintenance of asset/property of the branch is the responsibility of the Branch Manager and on account of irresponsible action of the 17 petitioner fire broke out in the branch for which he is responsible and was placed under suspension under order No.7115 dated 6.4.1987, Annexure-3 which could be served on him with great difficulty at Motihari on 15.4.1987. Being the Branch Manager he should have been present in the branch and for not being present in the branch he is held guilty. Second charge which was included in the charge sheet is that before the Holi holidays itself petitioner removed his all belongings from his residence which was adjoining the branch premises giving rise to the presumption that he had premonition about the occurrence and that when the branch premises was inspected by the Managing Director, Deputy Managing Director and Senior Regional Manager, Ranchi after the incident of fire in the branch, hardly any remains of furniture was found in the branch gives rise to the suspicion that before setting ablaze the branch theft was committed. It was also alleged in the said charge that while 18 removing his belongings from his adjoining residence petitioner also removed the furniture and other belongings of the Branch and the Branch was set ablaze under a conspiracy for which he appears to be responsible. Third charge which was included in the charge sheet is that petitioner did not come to Simaria branch premises during the period between 20.3.1987-16.8.1989 and did not cooperate in the investigation and apprehension of the accused persons and thereby did not discharge the duties of the Branch Manager. Charge no.4 included in the charge sheet is that petitioner did not maintain cordial relationship with his subordinates and encouraged them to fight amongst themselves as also used foul language and threatened to implicate them in cases as also to mark them absent in the attendance register, which is indicative of lack of cooperation affecting the morale of the employees of the branch. 5th charge alleged in the chargesheet is that petitioner was having 19 bad relationship with the landlord of the branch premises and that he fought with him on several occasions. In this charge it is also stated that petitioner was having his residence in the same building in which the branch was housed and the carpet area of both the branch and his residence was the same but the branch was paying rent of Rs.450/- per month and petitioner was paying rent of Rs.150/- per month. 6th charge alleged against the petitioner is that he violated the orders of the superior officer dated 8.5.1989, 4.10.1986 and 23.12.1986. 7th charge alleged against the petitioner is that he was not taking the required interest in maintaining the books of account of the branch as also was violating the instructions in regard to discipline and that District Manager/Regional Manager were annoyed with his behaviour. 8th charge alleged against the petitioner in the charge sheet is that he misbehaved with the public at large affecting the image of the branch/bank. In this 20 connection, complaint of M/s. Parmanand Singh(landlord), Kamakhya Narayan Singh, President of 20 point committee and Chaturbhuj Singh Pramukh was referred to in the charge. 9th charge alleged against the petitioner is that petitioner was not even discharging the essential duties personally and was also entrusting the essential functions of the Branch Manager for being discharged by others. In this connection, it is said that when fire broke out in the branch he had taken the keys of the branch to his home which was sent to the Block Development Officer, Simaria through a person not connected with the branch. In this connection, it is also pointed out that before leaving the headquarter petitioner had neither taken permission from the controlling officer nor deposited the keys of the branch with him, the branch suffered mischief of fire and the property/assets of the branch was reduced to ashes, in the circumstances, he is responsible for his wavering behaviour. 10th 21 charge alleged against the petitioner is that while he was transferred from Bundu branch he did not hand over charge in spite of clear instructions issued under letter dated 4.11.1996, 20.2.1997 and 21.4.1997. Office order dated 23.2.1998 containing the charge sheet dated 18.2.1998, Annexure-17 was served on the petitioner under letter No.17983 dated 28.2.1998, Annexure-17A calling upon him to furnish his show cause reply by 18.3.1998, failing which it will be understood that petitioner is not inclined to submit any reply. 8. In response to the instructions contained in letter dated 28.2.1998 Annexure- 17A petitioner appeared before the Enquiry Officer on 18.3.1998 and filed interim reply and prayed for two weeks’ time to file detailed reply as the charges were more than ten years old. In response to such request the Enquiry Officer allowed him time until 17.4.1998. Petitioner again appeared on 17.4.1998 and prayed for time on the ground of his illness, which was 22 allowed and time until 19.5.1998 was granted for filing further reply. Petitioner appeared on 19.5.1998 but after being informed by the office assistant that the Enquiry Officer is away from office in connection with loan recovery he came back after submitting application dated 19.5.1998. The Enquiry Officer returned to his office on 25.5.1998 and called for the records as also enquired about the appearance of the petitioner on 19.5.1998, but his office assistant informed him that petitioner never appeared to participate in the enquiry on 19.5.1998. The Enquiry Officer remained occupied in connection with loan recovery, as such, he adjourned the enquiry proceeding to 6.7.1998. Information about the date fixed in the enquiry proceeding as 6.7.1998 is said to have been given to the petitioner under registered post. On 6.7.1998 petitioner neither appeared personally nor submitted his further defence together with the evidence refuting the charges levelled against him. In the circumstances, the Enquiry 23 Officer took decision to proceed on the basis of his interim show cause filed on 18.3.1998. Having perused the interim show cause Enquiry Officer concluded that similar charges were served on the petitioner in the year 1996, in response whereto petitioner filed his show cause reply before the then Administrator Sri R.N.Das on 27.1.1996. Even prior thereto in the year 1989 similar charges were served on the petitioner, in response whereto petitioner filed his show cause reply before the earlier Administrator Sri Basu. Sri Shyam Prasad Choudhary appeared to support the charge on behalf of the management and produced establishment file No.373 of 1974-75 and 185 of 1995-96 which was perused by the Enquiry Officer. 9. Having perused the interim show cause reply of the petitioner as also the two departmental file, the Enquiry Officer recorded finding against charge nos.1 and 9 that petitioner submitted application bearing letter 24 No.82 dated 13.3.1987 to the Regional Manager, Hazaribagh through proper channel for availing Holi holidays during the period between 14.3.1987-21.3.1987 away from the branch headquarter as he wanted to avail the said period to assist his daughter in appearing for matriculation examination, 1987 but before leaving the branch headquarter petitioner should have made adequate roster arrangement for night guards in the branch. In this connection, the Enquiry Officer also concluded that petitioner left to avail the Holi holidays with all his belongings thereby making his intentions clear that he had not to return to Simaria. The Enquiry Officer further held that on 20.3.1987 during the day hours, petitioner returned the keys of the branch through his known person to the Block Development Officer, Simaria and not to any employee of the branch. According to the Enquiry Officer the keys of the branch should have been handed over by the petitioner to the employees of the branch and 25 not to the Block Development Officer, Simaria. The Enquiry Officer further found that after the incident of fire in the branch in the night of 20.3.1987 petitioner should have come to the branch, his failure to come to the branch after the incident of fire, is indicative of his lack of sincerity towards the discharge of his duties. As regards charge no.2 the Enquiry Officer concluded that petitioner was not responsible for removal of the furniture and other assets of the branch before the same was set ablaze. Charge no.3 that petitioner did not cooperate in the investigation of the police case registered after the branch was set ablaze was proved by the Enquiry Officer as petitioner did not submit any written defence denying such charge. Charge no.4 that petitioner was not maintaining good relationship with other employees of the branch was proved with reference to the report of the District Manager as also for failure of the petitioner to refute such allegation in his interim show cause reply. Charge nos.5, 6 and 26 7 was also proved as petitioner failed to refute those charges in his interim show cause reply. Charge no.8 that petitioner was not maintaining good relationship with the local people including