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PATNA HIGH COURT
S.N.Jha, J.
Narendra Kumar Singh
Versus
National Co-operatire Consumers Federation Of India Limited
Civil Writ Jurisdiction Case No. 2936 of 1989 ;
Decided On : MARCH 9, 1994
SERVICE LAW - Disciplinary Proceedings - Enquiry Officer - Appointment - Outsider - Validity - Service Regulations - Amendment - Approval - Board of Directors - Supersession - Administrator - Delegation of Powers - Mala Fide - Maintainability of Writ Petition - Cause of Action - Service of Order.
Fact of the Case:
The petitioner, an employee of the National Co-operative Consumers Federation of India Ltd. (Federation), challenged the orders of the Managing Director directing a fresh enquiry and dismissal from service. The petitioner contended that the appointment of an outsider as the Enquiry Officer was ultra vires the Service Regulations, that the Managing Director was not competent to pass the impugned orders as the disciplinary authority, and that the Enquiry Officer was actuated by mala fide.
Finding of the Court:
The Court held that the appointment of an outsider as the Enquiry Officer was ultra vires the Service Regulations, which required the enquiry to be held by an employee of the Federation. The Court also held that the Managing Director was competent to pass the impugned orders as the disciplinary authority, as the Administrator had delegated the power of the appointing authority to the Managing Director after the supersession of the Board of Directors. The Court further held that there was no evidence of mala fide on the part of the Enquiry Officer.
Issues: 1. Whether the appointment of an outsider as the Enquiry Officer was ultra vires the Service Regulations? 2. Whether the Managing Director was competent to pass the impugned orders as the disciplinary authority? 3. Whether the Enquiry Officer was actuated by mala fide?
Ratio Decidendi: 1. The Court held that the appointment of an outsider as the Enquiry Officer was ultra vires the Service Regulations, which required the enquiry to be held by an employee of the Federation. The Court relied on Rule 65 of the Service Regulations, which provided that the enquiry shall be held by an employee of the Federation. 2. The Court held that the Managing Director was competent to pass the impugned orders as the disciplinary authority, as the Administrator had delegated the power of the appointing authority to the Managing Director after the supersession of the Board of Directors. The Court relied on clause 30 (xiv) of the Bye-laws, which empowered the Executive Committee to delegate any other power to the Managing Director, and on clause 11 (xix) of the Bye-laws, which empowered the Board to make further delegation in favour of the Managing Director. 3. The Court held that there was no evidence of mala fide on the part of the Enquiry Officer. The Court noted that the petitioner had not alleged any personal mala fide against the Enquiry Officer, and that the Enquiry Officer had exonerated the petitioner of one of the charges.
Final Decision: The Court allowed the writ petition and set aside the impugned orders, but with liberty to the disciplinary authority to proceed afresh in the matter in accordance with law.
S. N. Jha, J.
1. The petitioner seeks quashing of the orders as contained in Annexures 5 and 13. By the former, the Managing Director of the national Co-operative Consumers Federation of India Ltd. (the Federation in short) acting as the Disciplinary authority directed a fresh enquiry in respect of the charges; hy the letter, he passed the order of dismissal of the petitioner from service. The facts of the case, shortly stated, are these.
2. The petitioner, erstwhile Secretary of the Bihar State Religious trust Beard, joined the Federation on deputation on 14.4.83 where he was absorbed later on 206.83. During his tenure as Manager at Nagpur, a departmental proceeding was initiated on 11.10.85. As per the memo of charges, the petitioner was said to have (a) suppressed material facts about his post, status and pay in his parent office and submitted misleading information to secure appointment in the Federation. (b) mismanaged the affairs of the Srinagar Branch resulting in heavy to the organisation, and (c) kept confiscated goods and furniture for his personal use amounting to gross missconduct. It is not necessary to refer to the case of parties as regards the aforesaid charges. It may, however, be stated that charge no.3 aforesaid, to wit, keeping confiscated goods etc. for personal use has not been found to be proved and the dismissal order is based on only the other two charges. The petitioner filed show cause. One Sri D. C. Kapoor, Chief Marketing officer of the Federation was appointed as Enquiry Officer on 13.11.85. The enquiry commenced on 19.11.85 and was concluded on 29.4.86. The enquiry Officer submitted his report on 9.1.87. As per bis findings none of the charges was proved against the petitionr. As no action was being taken on the report, the petitioner moved the Nagpur Bench of the Bombay High court in writ Application No.2365 of 1987 on 12.11.87. During pendency of the said writ petition on 18.1.88 the Managing Director passed an order statiug that the relevant document had not been properly examined by the enquiry Officer meaning thereby Sri D. C. Kapoor and, thus, disagreeing with the findings he directed a fresh enqiury to be held by Sri K. S Mathew. This is one of the orders, copy marked Annexure-5, which is under challenge in this writ petition. The petitioner challenged the appointment of Sri K. S. Mathew as being violative of the service Regulations. Sri Mathew, however, proceeded with the enquiry and took evidence and ultimately submitted his report on 23.6 88 on the basis of dismissal was passed on 29.12.88, this is the other order, marked Aanexure-13 which is under challenge in the writ petition.
3. Mr. Vijayeshwar Narain Sinha raised three contentions : (a) The order of the Managing Director, appointing Sri, K S. Mathew as Enquiry officer was ultra vires Rule 65 of the Service Regulations which provides that the enquiry shall be held by an employee of the Federation. Sri mathew not being an employee of the Federation was not competent to hold enquiry and, therefore, the entire enquiry proceeding was without jurisdiction rendering the order of dismissal based on his enquiry report illegal, (b) The appointing authority of the petitioner being the executive committee, the Managing Director, a subordinate authority, was not competent to pass any order of punishment against the petitioner, and (c) Sri Mathew was actuated by mala fide inasmuch as he did not grant adequate opportunity to the petitioner to defend himself in the enquiry proceeding.
4. Before I take up the contentions raised on behalf of the petitioner, i shall dispose of the preliminary objection regarding maintainability of the writ petition. On behalf of the respondents it has been contended that no part of cause of action having arisen within the territorial jurisdiction of this court the instant writ petition is not maintainable. Reliance in support of the contention has been placed on State of Rajasthan and ors. V/s. M/s Swaika pro
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