1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.3029/1996 (Mohan Lal Prajapat Vs. Jodhpur Central Co-operative Bank Ltd. & Ors.) Date of order : March 10th, 2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Kuldeep Mathur, for the petitioner. Mr. R.N. Upadhyay, for the respondents. By way of filing the present writ petition, the petitioner has prayed for quashing of impugned notices dated 21.5.1988 (Annexure-5) and 15.4.1994 (Annexure-7) passed by Managing Director of the respondent Bank. Further, it is prayed that the respondents may kindly be directed to allow all annual increments to the petitioner since 1982 and promotions for which the petitioner was entitled with all consequential benefits. It is also prayed that the suspension of the petitioner w.e.f. 28.5.1985 may 2 kindly be declared illegal and the petitioner may kindly be treated to be in continuous service of the respondent Bank with full salary and all other ancillary benefits. This writ petition has been filed by the petitioner in the year 1996 narrating the facts that he is employee of Jodhpur Central Co-operative Bank Limited, which is a Co-operative Society registered under the Co-operative Societies Act, 1965. The petitioner was appointed as clerk in the respondent Bank w.e.f. 1.3.1960 and later on he was confirmed on the said post vide Resolution No.5 dated 21.3.1961 passed by Board of Directors. The performance of the petitioner was upto the mark, therefore, as per his seniority and merit he was accorded promotion as Branch Manger under Resolution No.8 dated 7.2.1970, passed by Board of Directors of the Bank. In the year 1982, the petitioner was placed under suspension vide suspension order dated 4/6.9.1982. Aggrieved by the said order, the petitioner preferred a writ petition before this Court, which was registered as S.B. Civil Writ Petition No.1780/1992. During the pendency of the said writ petition, the respondent Bank withdrew the said suspension order, therefore, the said writ petition was dismissed as infructuous. 3 According to the petitioner, he was placed under suspension upon certain extraneous reasons which are having no relevancy with the administrative exigency. The petitioner has stated in the writ petition that he was harassed and humiliated by various means because he was not keeping cordial relations with the then Chairman of the respondent Bank. In all three enquiries were initiated against the petitioner but nothing was found to be adverse against the petitioner. The petitioner was again charge-sheeted vide charge-sheet dated 14.4.1983 in which certain flimsy charges were levlled against the petitioner. During the enquiry in pursuance of the said charge-sheet, necessary documents were not supplied to the petitioner, though he made number of requests but at last the enquiry authority proceeded ex-parte against the petitioner and completed the enquiry on 14.12.1983. The Chairman cum Managing Director of the Bank after receiving enquiry report, sent a notice dated 15.10.1984 to the petitioner to show cause as to why he should not be punished for misconduct. But along with show-cause notice, copy of the enquiry report was not annexed. Aggrieved by the said action of the respondents, the petitioner again preferred a writ petition before this Court, which was registered as 4 S.B. Civil Writ Petition No.3236/84. During the pendency of the said writ petition, an order dated 2.4.1985 was issued by the Chairman cum Managing Director of the Bank whereby the charge-sheet served upon the petitioner was withdrawn as well as the suspension of the petitioner as a consequence of issuance of order dated 2.4.1985 was also withdrawn. Accordingly, the writ petition preferred by the petitioner again rendered infructuous and was dismissed as having become infructuous. This Court while disposing of the aforesaid writ petition imposed cost of Rs.400/- upon the respondent Bank. According to the petitioner he remained under bonafide impression that the respondents have realized their mistake and in future they will not harass him but expectations of the petitioner became futile because by order dated 28.5.1985, the petitioner was again placed under suspension and again served with a charge-sheet. The copies of suspension order as well as charge-sheet are placed on record as Annexure-1 and 2. After going through the charge-sheet dated 28.5.1985, it has come to the knowledge of the petitioner that charges are almost same, which were earlier levelled against him and subsequently withdrawn by the respondent Bank vide order dated 2.4.1985. In the charge-sheet dated 28.5.85 Annexure- 5 2, in all twelve charges were levelled against the petitioner. Out of which, charges Nos. 7 to 10 were subject matter of enquiry, contemplated under Section 74 of the Rajasthan Co-operative Societies Act, 1965 (hereafter, for short “the Act of 1965” only). In the said enquiry for those charges, the competent authority held that there was no misuse of powers and no misappropriation was committed by the petitioner. The competent authority in the enquiry held under Section 74 of the Act of 1965 exonerated the petitioner and imposed cost of Rs.250/- upon the Bank against procedural expenses. The petitioner has placed a copy of said order on record as Annexure-3. The petitioner has assailed the validity of the suspension order dated 28.5.1985 (Annexure-1) and the charge-sheet dated 28.5.1985 (Annexure-2) by way of filing a writ petition before this Court wherein a challenge to the validity of provisions of Rule 41 of the Rajasthan Co-operative Societies Rules, 1966 (hereafter, for short “the Rules of 1966” only) was also made. The said writ petition was registered as D.B. Civil Writ Petition No.1007/85. In the said writ petition, the main contention of the petitioner was that the impugned orders are without jurisdiction. The said writ petition filed by the petitioner was dismissed by Hon'ble Division Bench of this Court vide judgment 6 reported in 1994 (1) RLW 384, while upholding the provision of Rule 41 of the Rules of 1966. During the pendency of the above writ petition, the disciplinary proceedings continued against the petitioner. The enquiry authority after concluding the enquiry submitted enquiry report to the Administrator of the respondent Bank on 27.4.1988. The enquiry officer exonerated the petitioner from all the charges levelled against him. The copy of the enquiry report has been placed on record as Annexure- 4. During the pendency of the above writ petition, the Chairman cum Managing Director of the respondent- Bank served a notice dated 21.5.1988 upon the petitioner mentioning therein that the Bank is not agreeing with the finding given by the enquiry officer, and directed the petitioner to show cause within the stipulated time period as to why he should not be removed from service. A note of disagreement was also appended with the said notice. Thus, it is clear that during the pendency of D.B. Civil Writ Petition No.1007/85 in which the validity of Rule 41 of the Rules of 1966 was challenged, the enquiry officer proceeded to hold enquiry against the petitioner and concluded the enquiry. Therefore, Hon'ble Division Bench in para No.16 of the its judgment observed that the notice issued to the 7 petitioner on 21.5.1988 after completion of enquiry has not been placed on record nor any request has been made to quash the notice dated 21.5.1988, therefore, nothing turns upon it. Thus, the dismissal of the writ petition by Hon'ble Division Bench of this Court wherein the validity of Rule 41 of the Rules of 1966 was challenged does not bar the petitioner to challenge the notice dated 21.5.1988 because the said notice was not under challenge before Hon'ble Division Bench as observed in para-16 of the judgment. In this case, the petitioner is challenging the notice dated 21.5.1988 whereby the Chairman cum Managing Director of the Bank while disagreeing with the finding of the enquiry officer issued a notice for inflicting penalty against the petitioner. It is submitted by the petitioner also in the writ petition that after dismissal of the writ petition filed before Hon'ble Division Bench, the Chairman cum Managing Director of the respondent Bank served a copy of notice dated 15.4.1994 again to the petitioner directing the petitioner to submit his reply to the note of disagreement, therefore, in this writ petition, the notice dated 21.5.1988 and subsequent notice dated 15.4.1994 both are under challenge. The petitioner in para No.17 of the writ petition has stated that in pursuance of subsequent notice dated 15.4.1994 he submitted his reply on 8 17.2.1995 thereafter again on 8.7.1995 but no action has been taken by the respondent Bank and the petitioner remained under suspension from the date of issuance of the order dated 8.5.1985. Prior to it, he was facing suspension in pursuance of the earlier order dated 4/6.9.1982 which was subsequently withdrawn prior to filing of writ petition. In this writ petition while assailing the validity of notice dated 15.4.1994 and 21.5.1988 and note of disagreement made by accountant annexed with the notice dated 21.5.1988 as well as prolonged suspension, the petitioner is making prayer that the appointing authority as well as disciplinary authority of the petitioner is Board of Directors of Jodhpur Central Cooperative Society, as such, whatever action is required to be taken against the petitioner that is to be taken by the Board of Directors of the Bank and the Chairman cum Managing Director of the Bank is not empowered to act on behalf of Board of Directors of Bank. Therefore, the enquiry report submitted by the enquiry authority was to be placed before the Board of Directors and note of disagreement, which is made by accountant of the Bank is required to be ignored because statutory authority of the Bank did not apply its mind while issuing notice which is based upon Note of Disagreement prepared by accountant. Therefore, the petitioner is challenging the notice and Note of Disagreement dated 21.5.1988 which is based upon a 9 note prepared by accountant, so also the notice dated 15.4.1994 which is issued after dismissal of the writ petition by Hon'ble Division Bench, which was filed to challenge the validity of Rule 41 of the Rules of 1966. Learned counsel for the petitioner vehemently argued that the notice dated 15.4.1994 is in continuance of the earlier notice dated 21.5.1988, which is totally illegal and without jurisdiction. As per the petitioner, upon perusal of Office note, it is clear that enquiry report was not placed before the Board of Directors, therefore, there was no occasion for the Board of Directors to give any opinion upon the finding given by the enquiry officer. Therefore, it is clear that Note of disagreement has been given on the basis of observations made by accountant of the respondent Bank whereas the disciplinary authority of the petitioner is Board of Directors, which can examine the pros and cons of the enquiry report, so also they can take decision as to what action is required to be taken on the basis of enquiry authority but in the present case, powers of Board of Directors have been exercised by the accountant of the respondent Bank and the enquiry report was never placed before the Board of Directors of the Bank, therefore, both the orders are totally without jurisdiction. 10 Learned counsel for the petitioner argued that the Managing Director and Chairman of the Bank were having no occasion to see the record of proceedings and only on the basis of the note given by the accountant they issued notice of disagreement with the finding of enquiry officer which is totally without application of mind, so also, it can be said that in fact the action taken by the Managing Director is pre-determined to disagree with the finding given by enquiry officer. Thus, it is clear that in view to victimize the petitioner, the findings of the enquiry authority were not accepted, so also, not produced before the Board of Directors, which is disciplinary body having jurisdiction to take action against the employee of the Bank. It is further argued that the respondents are harassing the petitioner since 1984. Earlier twice, the petitioner was placed under suspension and charge- sheet was issued but the said charge-sheets as well as the suspension orders were withdrawn and this Court has imposed cost of Rs.400/- upon the respondent Bank. So also, for some of the charges, which are subject matter of this enquiry were also subject matter of the enquiry under Section 74 of the Act of 1965 wherein the competent authority while giving specific finding that no case of misappropriation or misuse of powers is made out against the petitioner, imposed cost of Rs.250/- against the respondent Bank. Thereafter, 11 again a detailed enquiry was conducted by high ranked officer of the Government under Rule 16 of the Rajasthan Civil Service (Classification, Control & Appeal) Rules, 1958. In that enquiry, the petitioner was exonerated from the allegations levelled against him but disciplinary authority did not accept the finding of enquiry officer. All these facts clearly show that the respondent Bank for one or another reason wants to harass, humiliate and throw out the petitioner from the Bank service. It is further submitted by learned counsel for the petitioner that the respondent Bank vide its notices under challenge proposed penalty of removal from service against the petitioner whereas any authority of the Bank never took any decision with regard to proposed punishment. In the entire office notings, no authority decided the question with regard to imposition of severest punishment of removal against the petitioner. Therefore, it is clear that notice was issued against the petitioner for imposing severe punishment of removal from service without any decision by competent authority to propose such punishment while disagreement with the finding of the enquiry officer. The petitioner is under suspension since 1982. He was exonerated in the enquiry ultimately but due to malafide action of the respondents still he is facing suspension and waiting for adjudication of this writ petition. Therefore, it 12 is argued by learned counsel for the petitioner that the impugned notices dated 21.5.1988 and 15.4.1994 may kindly be set aside and petitioner may be exonerated from the charges levelled against him as per report of enquiry officer and respondents may be directed to treat the petitioner in service and grant all consequential benefits for which the petitioner is legally entitled. Per contra, learned counsel for the respondent Bank argued that this writ petition is not maintainable in view of the fact that in the year 1985, the order of suspension and charge-sheet dated 28.5.1985 issued to the petitioner was challenged along with challenge to provision to Rule 41 of the Rules of 1966. The said writ petition was amended because there was no stay upon conducting enquiry and during pendency of the writ petition enquiry was concluded and though the petitioner was exonerated by the enquiry officer but notice of disagreement and proposed punishment dated 21.5.1985 was issued and same was challenged by way of amendment in writ petition No.1007/85. The said writ petition was dismissed in toto, therefore, now the petitioner cannot be permitted to again challenge the enquiry so initiated against him. Learned counsel for the respondents vehemently argued that the writ petition deserves to 13 be dismissed only on this ground that earlier writ petition filed against the charge-sheet issued to the petitioner as well as against the notice dated 21.5.1988 was dismissed by this Hon'ble Court. Therefore, this writ petition suffers from vice of res judicata because in this writ petition, the petitioner is challenging the notice dated 21.5.88 also. Upon facts, it is argued by learned counsel for the respondents that it is always open for the disciplinary authority to give its opinion and disagree with the finding of the enquiry officer. In this case, the disciplinary authority is Managing Director, who took decision for disagreement with the finding of the enquiry officer in which there is no illegality. According to the learned counsel for the respondents, the note of disagreement was prepared by the accountant under the instructions of Managing Director and Chairman, therefore, it cannot be said that the Managing Director, who is disciplinary authority has not applied its mind. As such, the contention of the petitioner cannot be accepted that without application of mind and only on the basis of Note given by accountant, a decision was taken. According to the learned counsel for the respondents, it is always open for the displinary authority to take different view than the finding of the enquiry officer 14 after perusal of the enquiry report and he can disagree with the finding of the enquiry officer and at the same time he is only required to give reasons for the same. With regard to arguments of the learned counsel for the petitioner that the Managing Director of the Bank is not competent authority and powers of taking disciplinary action is left with the Board of Directors of the Bank, it is submitted by the learned counsel for the respondents while inviting attention of this Court towards Annexure-R/1 that vide Resolution No.4 dated 16.6.1987. The Board of Directors in its meeting empowered the Chairman under Byelaws 46 of the Bank to take any action with regard to matters of staff of the Bank, therefore, the Chairman was empowered by the Board of Directors to take action against the employees of the Bank as such the petitioner cannot question the validity of notice issued to him by the Managing Director of the Bank and approved by the Chairman because he was fully empowered to take action against the petitioner under Resolution No.4 dated 16.6.1987. Learned counsel for the respondents vehemently argued that exoneration of the petitioner in the enquiry conducted under Section 74 of the Act of 1965 is totally irrelevant for the purpose of taking disciplinary action against the petitioner. 15 Lastly, learned counsel for the respondents vehemently argued that the petitioner is challenging the notice issued by the disciplinary authority after conclusion of the enquiry and disagreement with the finding of the enquiry officer by the competent authority, therefore, if the petitioner is having any grievance, then, he can raise his voice before the Managing Director of the respondent Bank. The notice dated 21.5.1988 (Annexure-5) and 15.4.1994 (Annexure- 7) cannot be treated as final order because the final order is yet to be passed by the Bank, therefore, this writ petition is pre mature at this stage. Thus, the writ petition deserves to be dismissed on the ground of pre-mature stage because the petitioner is having alternative remedy to raise his defence before the disciplinary authority, therefore, in view of settled principal of law, the matter may be remitted to the disciplinary authority to pass final order after providing opportunity of hearing to the petitioner. I have heard learned counsel for the petitioners and perused the entire record of the case. In this case, four questions arise for consideration by this Court; (1) whether the writ petition is pre-mature; (2) whether the principle of res-judicata will apply in the facts and circumstances of the case; (3) whether any final decision is taken by the competent authority while issuing notice to the 16 petitioner and; (4) whether the whole proceedings is out come of harassment attitude of the respondents or having any basis to take action against the petitioner. In this case right from 1982, the respondents have proceeded to take criminal as well as departmental action against the petitioner and for the first time, the petitioner was placed under suspension vide order dated 4/6.9.1982. When the said suspension order was challenged by the petitioner by way of filing writ petition before this Court, the respondent Bank had withdrawn the said order to defeat the result of the said writ petition. Again second time, the petitioner was charge-sheeted vide charge-sheet dated 14.4.1983 and after completion of enquiry, a notice to show cause was issued on 15.10.1984 whereby it was informed to the petitioner why he should not be removed for misconduct but along with the said notice, copy of enquiry report was not enclosed, therefore, again the petitioner preferred a writ petition before this Court against the said action of the respondents. However, during the pendency of writ petition vide order dated 2.4.1985, the respondent Bank had again withdrawn the charge-sheet as well as suspension order of the petitioner. Therefore, this Court rendered the said writ petition infructuous and imposed a cost of Rs.400/- upon the respondent Bank. Meaning thereby, twice the action was taken by the respondent Bank for the same charges against the petitioner but ultimately 17 when challenge was made by the petitioner, then, they withdrew. Third time again, the petitioner was placed under suspension vide order dated 28.5.1985 and he was served with a charge-sheet by adding some more charges as mentioned in earlier charge-sheet. The petitioner filed a writ petition before this Court being DB Civil Writ Petition No.1007/1985 challenging the said charge-sheet as well as suspension order, so also, the petitioner has also challenged the validity of Rule 41 of the Rules of 1966. In the said writ petition, no stay order was granted by this Court, therefore, enquiry officer proceeded with the enquiry and the petitioner remained under suspension. However, ultimately, the said writ petition was dismissed by Hon'ble Division Bench of this Court while upholding the validity of Rule 41 of the Rules of 1966. Therefore, the charge-sheet given to the petitioner was held to be valid. In this writ petition, filed in the year 1996 after dismissal of earlier writ petition by Hon'ble Division Bench of this Court, the petitioner while challenging the notice dated 21.5.1988 and 15.4.1994 has contended that the enquiry officer has exonerated him but without assigning any reasons and without any application of mind, the Managing Director has issued the impugned notice for imposing a major penalty of removal from service against the petitioner. Meaning thereby, twice earlier, the proceedings were initiated 18 for taking action for same charges but when challenge was made by the petitioner, then the respondent Bank withdrew the action as well as the charge-sheet and subsequently again petitioner was charge-sheeted then the enquiry officer was appointed and the enquiry officer proceeded to hold enquiry against the petitioner but in the enquiry conducted by higher official of State of Rajasthan, he has exonerated the petitioner. Meaning thereby, the whole proceedings taken against the petitioner was based upon illegal decision of the Bank to harass the petitioner. This writ petition cannot be treated to be premature because the petitioner is challenging the notice of disagreement with the finding of the enquiry officer, which is based upon a Note prepared by accountant of the respondent Bank. Thus, this Court is required to adjudicate whether the notice given to the petitioner bears any reasons for disagreement or not, so also, this Court is required to examine the validity of notice dated 21.5.1988 and 15.4.1994, which is based upon the note prepared by the accountant upon which the Chairman of the Bank passed an order for calling explanation. Thus, this writ petition is not pre mature. The action taken by the respondents against the petitioner vide Annexure-5 dated 21.5.1988 and Annexure-7 dated 15.4.1994 is required to be examined because both the notices are under judicial scrutiny of the Court on the ground 19 that in between 1982 to 1985 twice action was taken against the petitioner by way of placing him under suspension and issuing charge-sheet but upon challenged having been made by the petitioner before this Court, the respondents withdrew the charge-sheet and suspension order. The respondents have also contended that there is an alternative remedy available to the petitioner to raise all his objections before the competent authority who has issued the notice after disagreement with the finding of the enquiry officer and final order will be passed in accordance with law by the Managing Director who has issued this notice. In my opinion, it is appropriate to examine the action of the respondents independently because right from 1982, the petitioner is facing