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High Court Of Calcutta
N.Patherya, J.
Chunilal Nanda – Appellant
Versus
State Of West Bengal Si – Respondent
W. P. No. 18988 (W) of 2006
Decided on : Jan 13, 2012
CO-OPERATIVE BANK - DISMISSAL - PRINCIPLES OF NATURAL JUSTICE - ENQUIRY REPORT - SHOW CAUSE NOTICE - RETIREMENT OF EMPLOYEE - RELATIONSHIP BACK: 1. Failure to serve a second show-cause notice on the proposed punishment to the petitioner, as required by Rule 48(f) of the 1987 Rules, renders the order of dismissal bad and liable to be set aside. 2. The Enquiry Officer exceeded his jurisdiction by recommending a penalty in his report, rendering the order of dismissal bad. 3. The Board of Directors of the respondent Co-operative Bank failed to apply their minds independently before deciding to dismiss the petitioner, vitiating the order of dismissal. 4. The principle of relation back is not applicable where the delinquent has retired during the pendency of the writ petition, and no Rules provide for an extension in service till the disposal of the proceeding.
Fact of the Case:
The petitioner, an employee of a Co-operative Bank, was dismissed from service following an enquiry into allegations of misappropriation of funds. The petitioner challenged the dismissal order on the grounds of violation of Rule 48(f) of the 1987 Rules, non-service of the second show-cause notice, and non-application of mind by the Board of Directors.
Finding of the Court:
The Court held that the failure to serve the second show-cause notice on the proposed punishment violated Rule 48(f) of the 1987 Rules and the principles of natural justice. The Court also held that the Enquiry Officer exceeded his jurisdiction by recommending a penalty in his report, and that the Board of Directors failed to apply their minds independently before deciding to dismiss the petitioner.
Issues: 1. Whether the failure to serve the second show-cause notice on the proposed punishment violated Rule 48(f) of the 1987 Rules and the principles of natural justice? 2. Whether the Enquiry Officer exceeded his jurisdiction by recommending a penalty in his report? 3. Whether the Board of Directors failed to apply their minds independently before deciding to dismiss the petitioner? 4. Whether the principle of relation back is applicable where the delinquent has retired during the pendency of the writ petition?
Ratio Decidendi: 1. Rule 48(f) of the 1987 Rules mandates the issuance of a second show-cause notice to the delinquent before imposing a punishment. The failure to serve the second show-cause notice violates the principles of natural justice and renders the order of dismissal bad. 2. The Enquiry Officer's role is limited to conducting an enquiry and submitting a report. He cannot recommend a penalty, as that is the prerogative of the disciplinary authority. 3. The Board of Directors, as the disciplinary authority, is required to apply its mind independently before imposing a punishment. Accepting the Enquiry Officer's recommendation without independent consideration amounts to non-application of mind and vitiates the order of dismissal. 4. The principle of relation back, which allows for the reinstatement of an employee with back wages if the order of dismissal is set aside, is not applicable where the delinquent has retired during the pendency of the writ petition.
Final Decision: The Court allowed the writ petition, set aside the order of dismissal, and directed the Co-operative Bank to pay the petitioner the retiral benefits and back wages.
Nadira Patherya, J.
1. BY this writ petition the petitioner seeks to set aside the order of dismissal dated 21st June, 2006, so also the charge-sheet dated 1st July, 2005, the Enquiry Report dated 18th July, 2002 and the board resolution dated 20th July, 2006.
2. THE case of the petitioner is that on the ground of misappropriation of sums proceedings were initiated against the petitioner and the petitioner put under suspension. Although enquiry was conducted no copy of the Enquiry Report was given to the petitioner, therefore, there has been violation of Rule 48(f) of the 1987 Rules. A writ petition was filed and during the pendency of the special leave petition before the Supreme Court of India from an order passed in contempt proceedings the Enquiry Report was submitted on 18th July, 2002 and the civil appeal and the special leave petition was disposed of with the direction that the there would be no impediment for the bank to take action on the basis of the Enquiry Report. Although a copy of the Enquiry Report was given to the petitioner and representations made, for non-service of the show cause notice with regard to the proposed punishment there has been violation of Rule 48(f) of the 1987 Rules. For the said proposition reliance is placed on AIR 1968 SC 294 and 2008 8 SCC 236.
3. THE charge-sheet also does not give the list of witnesses. THE Presiding Officer himself was a witness and no opportunity of cross-examination was given to the petitioner, instead it was the Enquiry Officer who conducted the cross-examination. THE documents relied on have not been proved and production of documents is not enough as held in 2009 2 SCC 570. From a reading of the Enquiry Report it will appear that in respect of each of the charges levelled a finding has been given by the Enquiry Officer and against each finding penalty proposed, this is beyond the jurisdiction of the Enquiry Officer and renders the Enquiry Report bad. THE Presiding Officer cannot be a Judge and a witness as held in 1984 2 SCC 578. From a reading of the order of dismissal it will appear that the legal measures recommended by the Enquiry Officer have been accepted and there is no independent finding. This evidences non-application of mind by the Board of Directors. No purpose will be served in filing an appeal and taking recourse to alternative remedy as the punishment has been imposed by the Board of Directors which is the appellate authority. There is no scope to make any further enquiry as the petitioner has retired. In fact, no punishment has been recommended in respect of charge-II which is the charge of misappropriation of funds and fraud. Reliance is placed on 1999 3 SCC 666, AIR 1999 SC 463 and 2009 1 CHN 573 Page-35, for the proposition that on retirement the proceeding initiated against the delinquent lapses and need not be proceeded with. THE Regulations also do not provide for continuance of enquiry, therefore, the retiral benefits be paid to the petitioner. For all the said reasons, therefore, the order of dismissal be set aside.
4. OPPOSING the said application on behalf of the Co-operative Bank Counsel submits that although it has been alleged by the petitioner that as the Enquiry Officer cross-examined the witnesses, therefore, the proceeding is bad. No complaint was made at any point of time regarding no opportunity being given to cross-examine. The Enquiry Report was submitted to the delinquent and a reply also given. In view of the existence of alternative remedy of appeal under section 136 of the 1983 Act which is efficacious this application warrants no order. Reliance is placed on 1999 4 Supreme Today 765. The Appendix to Chapter-VI and Rule 15 in particular provides an appeal to the general body of the Co-operative Bank. In the order dated 12th December, 2006 the maintainability issue was kept open and in view of the existence of alternative remedy as held in 1997 3 SCC 73 and 1999 1 SCC 741, this application warrants no order.
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