THE WEST BENGAL STATE COOPERATIVE BANK LTD. ORS.

PARJTOSH BEGCHI AND ORS.

OCTOBER 19, 1995

!J.S. VERMA AND K. VENKATASWAMI, .1.1.J B

Se1vice Law :

Depmtmental b1quily--Opport11nity of being heard---Copy of Inqui1y repo1t and a further notice to show cause against proposed punishment served C upon delinquent-Held, employee was afforded reasonable opportunity.

Respondent no. 1, an employee of the appellant-bank, was served with a charge-sheet and was called upon to show cause against the charges brought out against him. On receipt of his reply, he was subjected to a regular departmental inquiry. On completion of the enquiry, the discipli- D nary authority issued a further notice to the respondent along with a copy of the inquiry report, to show cause against the proposed punishm•'lt. The respondent challenged the notice before the High Court in a writ petition.

Meanwhile, the respondent was dismissed from service. He withdrew E the earlier writ petition and filed a fresh writ petition challenging the order of dismissal. The Single Judge of the High Court set aside the inquiry proceedings giving liberty to the appellant to proceed against the respondent afresh. The respondent, dissatisfied with the order, appealed to the Division Bench of the High Court, .which upheld the disciplinary proceedings upto the stage of second show cause notice and observed that the disciplinary authority could proceed afresh and decide whether a second show cause notice should be issued to the respondent against the proposed punishment. Accordingly, tlie Bank called upon the respondent to furnish

his explanation. The respondent instead of giving any explanation with regard to the findings of the in<Juiry ollicer, treated the show cause notices G as not in conformity with the directions given by the High Court. The Management after considering the representations of the respondent and hearing him personally, imposed upon him the penalty of dismissal. The respondent challenged the said order before the High Court in a writ petition which was dismissed.

H 499

A On appeal, the Division Bench of the High Court held that the Management did not take a decision pursuant to the liberty given by the earlier llivision Bench with regard t.o issuance of a second show cause notice before passing the order of dismissal. It gave liberty to the appellant to proceed afresh after giving a second sho"' cause notice against the B proposed punishment. Aggrieved, the Bank filed the appeal by special

leave.

Allowing the appeal, this Court

HELD: 1.1. The respondent was given reasonable opportunity before C imposing the penalty of dismissal and the Division Bench of the High Court was not justified in setting aside the order of dismissal on the sole ground that there was no second show cause notice issued before the impugned order was passed. [503-}']

1.2. Factually a second show cause notice was given and the respondent was not diligent enough to avail the opportunity. The respondent was supplied with the copy of the enquiry report. lie was called upon to submit his explanation in the light of earlier Division Bench judgment. The respondent instead of submitting his explanation found fault with the form of notice and raised contentions not relevant to the issue. (503-E]

Managing Director EC/L, Hyderabad & Ors. v. B. Kanmakar and Ors., [19931 4 sec 727, cited.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9491 of 1995.

From the Judgment and Order dated 3.9.93 of the Calcutta High Court in F.M.A.T. No. 1182 of 1992.

Tapas Ray, B.D. Singh and S.K. Jain for the Appellants.

D.P. Mukherjee and S.K. Ghosh for the Respondents.

The Judgment of the Court was delivered by

K. VENKATASWAMI, J. Leave granted. Heard Counsel on both H sides. This appeal is preferred against the judgment and order dated

W.H.STATECOOPERATIVEBANKLTD. c. P. BEGCHI{K VENKATASWAMl.l.] 501

3.9.1993 passed in F.MAT. No. 1182 on the file of the High Court of A Calcutta.

The first respondent was in the service of the appellant Bank. A charge-sheet was issued on ll.5.1981 against him calling upon the first respondent to show cause against the charges brought against him. On receipt of reply to the show cause notice a regular departmental enquiry was held and the Enquiry Officer submitted a report. Thereafter, the disciplinary authority accepting the enquiry report issued a further show cause notice dated 13.8.1981 why the punishment of dismissal should nol be imposed upon him in the light of the enquiry report and findings thereon which were accepted by him. ll must be noted that alongwith this notice, the copy of the enquiry report was also enclosed.

The first respondent challenged the issuance of second show cause notice itself by filling a writ petition. However, he withdrew the same as before the writ petition could be taken up for hearing,. the final order D dismissing the first respondent was passed by the Management.

The first respondent then challenged the order of dismissal by moving the High Court under Article 226 of the Constitution of India. A learned Single Judge of the High Court by order dated 12.6.1986 set aside E the enquiry proceedings and consequently allowed the writ petition with liberty to proceed against the first respondent afresh according to law.

The appellants not satisfied with the order of the learned Single Judge preferred an appeal to the Division Bench in F.M.A.T. No. 1834/1986. The Division Bench by judgment and order dated 29.1.1987 modified the order of the learned Single Judge by upholding the disciplinary proceedings uplo the stage of issuance of second show cause notice.

The learned Judges observed as follows :

"ll would be open to the disciplinary authorities lo proceed afresh G and to decide whether a second show cause notice should be issued upon the writ petitioner against the penalty which may be proposed to be imposed. In case such show cause notice is issued, the writ petitioner would be at liberty to submit his explanation. Upon consideration of the relevant matters, the disciplinary authorities H

will pass orders in accordance with la\v. "

Inasmuch as a copy ol the enquiry report was available with the petitioner, the disciplinary authority after referring the above said Division

Bench judgment called upon the first respondent to submit his explanation

in writing within one month from the date of receipt thereof. lnspite of the

reminders given to the first respondent, he did not choose to give any

explanation dealing with the findings rendered by the enquiry officer

accepted by the disciplinary authority. On the order hand, the first respondent treated the show cause notices as not in conformity with the direction

given by the Division Bench of the High Court while disposing of F.M.A.T. 1834 of 1986. After duly considering the representations, submissions and the statements, the disciplinary authority imposed a penalty of dismissal by order dated 7.3.1989.

The first respondent again challenged the order of dismissal by filing D a writ petition and the learned Single Judge found that full opportunities were given to the first respondent to offer any explanation he wanted to offer and he was also heard personally. The learned Single Judge was satisfied with the reasonable opportunity given to the first respondent in the light of the observations of the Division Bench referred to above.

E Consequently, he dismissed the writ petition. The first respondent aggrieved by the dismissal of the writ petition preferred F.M.A.T. No. 1182

of 1992.

The learned Judges after referring to the observations of the previous Di,; sion Bench held as follows :

"There is nothing on record that the authority concerned had taken

a decision pursuant to the liberty given by the earlier Division Bench \Vith regard to hether second sho\v cause notice before dismissal should be issued or not.... The requirement of giving show cause notice, if this is a part of the principles of natural justice

cannot be curtailed or abridged by any order passed by the Court....

As we are of the view that the order of punishment was passed \vithout issuing any second sho\V cause notice, the order of punishment dated 7th March, 1989 passed by the disciplinary authority cannot stand and accordingly, the order of the learned trial Judge

W.B. STATE COOPERATIVE BANK LID 'I'. BEGCHI [K. VENKATASWAMI, J.] 503

is set aside. 11 A

The Division Bench, however, gave liberty to the appellants to

proceed afresh only after giving the second show cause notice against the proposed punishment.

Learned counsel for the appellant after taking us through the paper book submitted that factually after disposal of the appeal by the Division Bench on earlier occasion, sho\v cause notices were given to the first respondent and it is first respondent who failed lo avail the opportunities given to him. Therefore, according to learned counsel, the assumption of the lcarned•Judges that there was no further show cause notice before the impugned punishment was imposed was not correct and therefore, the order is liable to be set aside.

Learned counsel appearing for the first respondent though initially denied that the first respondent was ever supplied with the report of the D enquiry officer, subsequently admitted the supply of the report of the enquiry officer. However, he contended that the second show cause notice issued was not in conformity with the direction given by the Division Bench on the earlier occasion. We do not think that we can accept this contention of the learned counsel for the first respondent. We have seen factually the first respondent was supplied with the copy of the enquiry report. He was E called upon to submit his explanation in the light of earlier Division Bench judgment. The first respondent instead of submitting his explanation found fault with the form of notice and raised contentions not relevant to the issued.

In the circumstances and on facts, we are satisfied that the first respondent was given reasonable opportunity before impnsing the penalty of dismissal and the Division Bench was not justified in setting aside the order of disn1issal on the sole ground that there was no second show cause notice issued before the impugned order was passed.

Though the question whether second show cause notice was at all necessary having regard to the date of dismissal order and having regard

to pronouncements of this Court's judgment in Managing Directo1; ECIL, Hyderahad and Others v. B. Kanmakar & Othe1', [1993) 4 SCC 727 was raised and argued, we do not propose to go into it in view of the fact that H

A factually a second show cause notice was given and the first respondent was not diligent enough to avail the opportunity.

In the result, the appeal is allowed, the impugned judgment and order of the Division Bench dated 3.9.1993 is set aside and that of the learned Single Judge is restored. However, there will be no order as to

costs.

R.P.

Appeal allowed