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2016 Supreme(Pat) 1371
IN THE HIGH COURT OF PATNA
HEMANT GUPTA, AHSANUDDIN AMANULLAH, JJ.
The Bihar State Co-operative Marketing Union Limited through the Administrator & Ors. - Appellants
Versus
Suresh Chandra Sharma, son of Lat Shivnandan Sharma - Respondent
Letters Patent Appeal No. 546 of 2015, Arising out of Civil Writ Jurisdiction Case No. 7631 of 2013
Decided On : 20-10-2016
For the Appellants :Mr. Y.V. Giri, Sr. Advocate with M/s. Ishwari Singh and Rajendra Prasad, Advocates.
For the Respondent:Mr. Ram Suresh Roy, Sr. Advocate with M/S. Binod Kumar Singh and Gaurav Kumar, Advocates.
The main legal point established in the judgment is the importance of following due procedure in employment dismissal cases and the consideration of the company's management at the time of the dismissal orders for determining the maintainability of a writ application.
Headnote:
Misappropriation - Employment Dispute - Indian Penal Code, Sections 403, 409, 465 - The court discussed the misappropriation of fertilizer and subsequent dismissal of the employee. The court found that the orders were passed without following due procedure and when the employee had been cleared in criminal proceedings. The court also considered the maintainability of the writ application against the orders based on the management of the company at the time of the orders and the filing of the writ application.
Fact of the Case:
The writ applicant, an employee, was dismissed for alleged misappropriation of fertilizer. After a long legal battle, the single Judge quashed the dismissal order and directed the settlement of the employee's claim.
Finding of the Court:
The court found that the dismissal orders were passed without following due procedure and when the employee had been cleared in criminal proceedings.
Issues: The main issue was the maintainability of the writ application against the dismissal orders based on the management of the company at the time of the orders and the filing of the writ application.
Ratio Decidendi: The court held that the writ application would not be maintainable against the dismissal order passed by the Managing Director when the elected Board of Directors was managing the company's affairs. The court also considered the implications of the Special Bench's judgment on the maintainability of the writ application.
Final Decision: The court set aside the single Judge's order, ruling that the writ application would not be maintainable before the Court in view of the judgment of the Special Bench.
Mr. Hemant Gupta, J.
1. The challenge in the present Letters Patent Appeal is to an order dated 3rd July, 2014, passed in C.W.J.C. No. 7631 of 2013 by the learned single Judge whereby the order of punishment, dated 09.05.2005 (Annexure-16) and the order, dated 19.10.2012 (Annexure “C”) was quashed and the appellants herein were directed to settle the claim of the writ petitioner as if any liability does not stand against him.
2. The said orders came to be passed after a long drawn litigation. The writ applicant was appointed as Sales Man-cum-Account Assistant in the year 1974. He was later promoted to the post of Assistant Depot Manager. On 14th April, 1988, a first information report, for the offence under Sections 403, 409 and 465 of the Indian Penal Code, was registered alleging misappropriation of fertilizer worth Rs. 2,69,250/-. An order of dismissal was passed by the Administrator on 11.04.1989 on account of allegation of misappropriation of fertilizers, seeds and medicine worth Rs.2,71,925.94/- after the enquiry officer found the writ applicant guilty.
3. A writ, being C.W.J.C. No. 5957 of 1991 filed before this Court against the order of dismissal which was accepted on 30.08.1991. It is thereafter, the petitioner-respondent was reinstated vide order, dated 04.11.1996. The writ applicant was, again, suspended on 26th December, 1996, in contemplation of departmental proceeding. The writ applicant challenged the suspension in C.W.J.C. No. 11938 of 1996. In an interlocutory application (I.A. No. 2869 of 2014) in the said writ application, it was ordered on 5.2.1998 by this Court that the departmental proceeding be concluded within four months failing which the suspension shall stand revoked. It is thereafter, the suspension of the writ applicant was revoked from 05.06.1998.
4. The writ applicant filed another writ application, being C.W.J.C. No. 7004 of 2003 for payment of arrears of salary and other allowances in respect of suspension period. The said writ application was disposed off on 28th July, 2003, with the direction to decide the representation of the writ applicant. The writ applicant filed a contempt petition as well which was dismissed on 11th May, 2005, where it was stated that the dues, due to the writ applicant, shall be paid with the salary of other employees of Bihar State Co-operative Marketing Union Limited. It is thereafter, an order was passed on 9th May, 2005, to recover a sum of Rs. 2,71,925.94/-. The present writ application was filed on 10.04.2013. The writ applicant claimed the following reliefs:
(a) For set-aside the order, passed by the Managing Director, Bihar State Co-operative Marketing Union Limited, Patna, vide order no. B/194 dated 09.05.2005. The said order is annexed herein as Annexure-17.
(b) For payment of salary since 1986-87. The said medical leave certificate is annexed here as Annexure-10.
(c) For issuance of TDS Certificate and Form 16 to the petitioner. The said representation is annexed here in as Annexure-22.
(d) For fixation of salary during suspension period of the petitioner.
(e) For payment of the gratuity, leave encashment, Provident Fund and retrial benefits to petitioner after retirement.
5. Subsequently, Annexure “C”, dated 19th October, 2012, was produced by the Bihar State Co-operative Marketing Union Limited in its counter affidavit wherein another sum of Rs.2,66,569.37/- was ordered to be recovered from the writ applicant. It is the order Annexure-16, dated 09.05.2005, and order, dated 19th October, 2012, Annexure “C” which has been set aside by the learned single Bench. An affidavit was filed on behalf of the appellant that the writ applicant is responsible for vanishing of the files and has manipulated things to his advantage. The learned Single Bench allowed the writ application inter alia on the ground that the Appellant has not produced the proceeding of the departmental enquiry which culminated into passing of the impugned orders; and that the order of punishme
