IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17861 of 2010 Virendra Prasad Singh 'Gautam' S/O Late Shyam Bihari Singh R/O Vill. And P.O.- Hardiya, P.S.- Jagdishpur, Distt.- Bhojpur, At Ara, Presently Residing At Road No. 7A/11, Indrapuri, P.O.- Shastri Nagar, P.S.- Patliputra, Distt.- Patna …Petitioner Versus 1. The Bihar Rajya Sahkari Bhumi Vikas Bank Simit Budh Marg, Patna through The Chairman 2. The Chairman the Bihar Rajya Sahkari Bhumi Vikas Bank Simit, Budha Marg, Patna 3. The Managing Director The Bihar Rajya Sahkari Bhumi Vikas Bank Simit, Budha Marg, Patna 4. The Director Personnel The Bihar Rajya Sahkari Bhumi Vikas Bank Simit, Budha Marg, Patna 5. The Statistical Officer The Bihar Rajya Sahkari Bhumi Vikas Bank Simit, Budha Marg, Patna Respondents 1st set 6. The State Of Bihar Through The Registrar Cooperative Societies, Bihar, Patna 7. The Registrar, Cooperative Societies, Bihar, Patna ----------- For the petitioner :Mr. S.B.K. Mangalam For the Respondent Bank :Mr. Y.V. Giri, Sr. Advocate & :Mr. Rajesh Pd. Choudhary ------ O R D E R 09. 23.09.2011 Sustainability of the order dated 19.11.2009 (Annexure- 13) passed by the Authority of the Respondent-Bihar Rajya Sahkari Bhumi Vikas Bank Simit (for short „the Bank‟) is under challenge by which it has been communicated that the petitioner was found truant/guilty in a departmental proceeding and has been dismissed from service. Background facts giving rise to the present writ petition, in short, are as follows:- Petitioner while working as the Director, Personnel of the Bank by order dated 12.9.2007 as contained in Annexure-1 was transferred from the headquarters at Patna to the Regional 2 Branch of the Bank at Saharsa as Senior Area Manager. Petitioner did not join the post in obedience to the said order. For this act of omission and commission, the Respondent-Bank by a resolution dated 18.01.2008 (Annexure-2) initiated a departmental proceeding against the petitioner in which an Enquiry Officer was appointed and articles of charge (Annexure-2/1) was framed and served on him. By order dated 28.01.2008 as contained in Annexure-3, supplementary charges were framed and served on him. Aggrieved by the initiation of departmental proceeding and appointment of Enquiry Officer, the petitioner raised a dispute before the Respondent-Registrar Co-operative Societies giving rise to Service Appeal No.18 of 2008. By a proceeding dated 06.05.2008 (Annexure-4), the Respondent- Registrar stayed the order by which a retired officer of the Government was appointed as the Enquiry Officer. It is the case of the petitioner that the Respondent-Managing Director by order dated 24.3.2009 (Annexure-5) revoked the order by which the petitioner was placed under suspension and payment of salary for the period he was kept under suspension was made subject to the result of the appeal (Service Appeal No.18/08). By order dated 01.06.2009 (Annexure-6) passed under order of the Respondent- Chairman of the Bank, the petitioner was posted at Saharsa as Senior Recovery Officer of the Bank. The Respondent-Managing Director by an order dated 9.6.2009 (Annexure-7) cancelled the aforesaid order (Annexure-6). The Managing Director by another order contained in memo no.1868 dated 23.06.2009 3 (Annexure-8) assigned the petitioner certain additional duties at the headquarters treating him as the Director, Personnel after revocation of his suspension. The Board of Directors of the Respondent-Bank resolved to set at naught all the orders passed by the In-charge Managing Director and the same was communicated to all concerned under the signature of the chairman of the Bank (Annexure-9). It is the case of the petitioner that he was not made available the order by which the Board of Directors rescinded all the orders passed by the In-charge Managing Director including the order dated 9.6.2009 (Annexure- 7), the office order contained in memo no. 1868 dated 23.06.2009 (Annexure-8) and the order by which the petitioner was relieved from the post of Director Personnel on which post he was treated/posted by the Respondent-Managing Director by his order dated 23.6.2009 (Annexure-8). He, therefore, made application under the provisions contained in Right to Information Act (RTI) whereafter by a communication dated 12.04.2010 (Annexure-12) he was made available the copy of the order dated 02.07.2009 (Annexure-10) whereby he was relieved to join his post at Saharsa (Annexure-10) as also the order dated 19.11.2009 (Annexure-13) wherefrom it appeared that for disobedience of the orders of the authority a proceeding was initiated against him and on conclusion thereof, he was dismissed from service. The petitioner thus filed the present writ petition. A counter affidavit was filed by the Respondent-Bank which was found unsatisfactory and thus withdrawn with the 4 permission of the Court. Thereafter two sets of counter affidavit(s) have been filed on behalf of the Respondent-Bank. Petitioner has filed rejoinder to one of the counter affidavits. Learned counsel for the petitioner submits that respondents framed as many as three charges against the petitioner as is evident from the articles of charge enclosed along with counter affidavit of the respondents (Annexure-D/1). It is contended that in a very perfunctory manner the Enquiry Officer submitted the enquiry report on conclusion of the proceeding vide Annexure-D/3 in which charges were held to be proved. The respondents thereafter issued second show cause notice dated 19.10.2009 (Annexure-D/4) followed by press publication in a daily newspaper requesting for submission of the reply to the second show cause notice. Learned counsel submits that said press publication (Annexure-D/6) only states that a departmental proceeding has been taken up and concluded against him in which he has not submitted his reply to the second show cause notice. In concluding paragraph the respondent required the petitioner to join his place of posting at Saharsa failing which he would be dismissed from service. The respondent thereafter passed the impugned order as contained in Annexure-13 whereby the disciplinary authority afflicted on him the punishment of dismissal from service. Learned counsel strenuously contended that even assuming that the petitioner did not appear in the proceeding in spite of knowledge and notice of the pending departmental proceeding yet the authorities were required to act 5 fairly, judiciously and reasonably in concluding the enquiry. It is contended that the Enquiry Officer, in such matter, exercises quasi judicial duty/function. He was thus required to consider the evidence produced at the enquiry on each charge and record a finding based thereon. If the same has not been done then this Court would interfere with the impugned enquiry report as well as the final order passed by the competent authority based on the aforesaid report. Learned counsel referred to and relied on the following judgments:- 1. (2010) 2 SCC 772 (State of U.P. & Ors. Vs. Saroj Kumar Sinha; para 28, 29 & 30) 2. AIR 1964 SC 364= (1964) 4 SCR 718 (Union of India vs. H.C.Goel; para 10 and 20). Per contra, respondents have supported the impugned action. Learned counsel for the Respondent-Bank submits that there is/are adequate materials on record to show that the petitioner was cognizant of the ongoing departmental proceeding against him and yet he did not choose to participate therein. From the materials on record, it is crystal clear that the petitioner continued to defy the order of his posting at Saharsa since there is no averment that as soon as he came to know about the orders annulling the order of the Respondent-Managing Director as contained in Annexure 7, 8 and 9, he joined the post at Saharsa. Learned counsel contends that the petitioner, therefore, can be treated as defiant employee and this Court, in particular facts of the case, would not exercise its extra-ordinary and discretionary writ jurisdiction since gross disobedience of the order of the 6 authority is more than apparent. Learned counsel for the respondents has placed reliance in this regard on (1997) 4 SCC 565 (Tara Chand Vyas vs. Chairman & Disciplinary Authority & Ors; para 2 and 3) and (1999) 5 SCC 762 (Bank of India & Anr. Vs. Degala Suryanarayana; para 11). It is also contended that the order is appealable in terms of section 49 of the Multi State Co-operative Societies Act, 2002 (for short „the Act, 2002‟) and, as such, the petitioner may be relegated to the forum of appeal. In reply, learned counsel for the petitioner contends that the provision contained in section 49 (2) (d) and (e) on which reliance has been placed do not provide remedy of appeal against an order of dismissal. It is contended that 49(2) (c) is only an enabling provision, whereas 49(2) (d) enables the authorities to deal with the services of those not required. It is further contended that even if there is remedy provided by the statute, this Court can invoke its writ jurisdiction if it is found that there is glaring defect in the decision making process. For this proposition, learned counsel for the petitioner has relied on the following judgment:- 1. (2006) 2 SCC 269 (L.K.Verma vs. HMT Ltd. & Anr.) 2. (2010) 2 SCC 497 (G.Vallikumari vs. Andhra Education Society & Ors. Para 9) 3. AIR 1974 SC 87 (Union of India vs. M.L Capoor & Ors. Para 28) I have heard the parties at length and perused the materials on record. 7 This Court would first deal with the submissions of the respondents that there is alternative remedy under the Act 2002 in terms of section 49 thereof to assail the order of dismissal impugned in the present writ petition. A bare perusal of the said provisions would show that the Board of the Respondent-Bank has been empowered to make provisions for regulating the appointment of employees of the multi State Co- operative Society (the Bank) and the scales of pay, allowances and other conditions of service of, including disciplinary action against such employees and sub clause (d) thereof operates in a different field altogether. This Court, therefore, finds substance in the submissions of the counsel for the petitioner that any appeal could not have been filed against the impugned order before the Board of the Bank invoking the aforesaid jurisdiction of the Board. This takes the Court to consider other submissions advanced on behalf of the parties. It is the stand of the petitioner that the enquiry report furnished by the Enquiry Officer is wholly perverse as the Enquiry Officer has not discharged his quasi judicial function in accordance with the established rules. It has been contended that if the article of charge (Annexure-D/1) is read with enquiry report (Annexure-D/3), it would be apparent that the Enquiry Officer acting in hot haste has only set out the charges and thereafter concluded in one line that those charges have been proved. The Apex Court in the State of Uttar Pradesh vs. Vs. Saroj Kumar Sinha (supra) in paragraph 28 observed that 8 the Inquiry Officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official and to judge as to whether the unrebutted evidence is sufficient to hold that the charges are proved. The Enquiry Officer has to perform a quasi-judicial jurisdiction in the following manner:- “When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.” In a departmental proceeding there has to be a presenting officer. Evidence has to be led by the prosecution and necessary documents exhibited enabling the Enquiry Officer to consider those materials objectively and arrive at his own conclusion/findings. This procedure has to be followed by the prosecution irrespective of the fact that a delinquent may appear or the proceeding be ex parte. All documents necessary to prove the charge(s) is/are required to be brought on record besides adducing oral evidence, if necessary, providing materials to the Enquiry Officer to consider them and come to his own 9 conclusion/findings. No material has been brought on record by the respondents to show that the presenting officer adduced and/or brought on record relevant documents which could prove the charges for which the petitioner was proceeded against. This Court using the expression of the Hon‟ble Apex Court in 2001 (1) SCC 182 (Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shankar Pant & Ors.) can say that the entire chain of events smacks of some personal clash and adaptation of a method unknown to law in hottest of haste. On a close scrutiny of the materials and pleadings on record as also the articles of charge (Annexure-D/1) read with the enquiry report (Annexure-D/3), this Court gets an impression that the Enquiry Officer acted in a manner which can be said to be wholly illegal, if not perverse. Even if the petitioner, in spite of knowledge of the proceeding, chose not to appear thereat, it was incumbent upon the Enquiry Officer to conduct the enquiry in accordance with law. That having not been done, a serious infirmity and/or legal flaw has occurred in decision making process. If that be so, then this Court would be justified in invoking its writ jurisdiction and set right the illegality. It is to be kept in mind that for an employee, punishment of dismissal is close to afflicting him with death penalty. He would be denuded of his livelihood as also his terminal benefits. Although this Court based on materials on record including the contents of the appeal (Annexure-11) to which my attention was drawn, finds substance in the submission of the counsel for the respondents that the petitioner had 10 knowledge of the cancellation of the order passed by the Respondent-Managing Director followed by the relieving order as also the pendency of the present proceeding; yet the same would not absolve the Enquiry Officer of his responsibilities to act in a just and fair manner in recording a finding that the charges have been proved. Any order based thereon would, therefore, cannot be said to be legal in the eye of law. Having held so, this Court would not be justified in withholding exercise of its writ jurisdiction only on the ground that the petitioner acted in a wholesome defiant manner and in spite of notice published in a daily newspaper (Annexure-D/6) he did not join the transferred post. For all these reasons, this Court is persuaded to allow the writ petition. Consequently, the report of the Enquiry Officer as contained in Annexure D/3 is quashed and set aside. Based thereon the order of dismissal passed against the petitioner including the order contained in Anexure-13 is also quashed and set aside. Petitioner is directed to file his response to the articles of charge within four weeks from today and the departmental enquiry thereafter shall proceed in which the petitioner shall fully co-operate. The respondents shall take appropriate action/decision thereafter in accordance with law. In case, any dilly-dally attitude is adopted by the petitioner in expeditious disposal of the proceeding, the respondents are at liberty to proceed ex parte but in accordance with law. Since this Court has granted liberty to the Respondent-Bank to proceed afresh from the stage of filing of the 11 show cause by the petitioner, any decision relating to payment of salary for the period in question shall depend upon the final outcome of the proceeding. Considering the period already consumed, it is expected that the departmental proceeding shall be concluded as quickly as possible preferably within four (04) months of filing of the show cause by the petitioner pursuant to the present order. There shall be no order as to costs. hr ( Kishore K. Mandal )